*Adjusted, where applicable, to reflect
the impact of the 1:20 reverse stock split that became effective on February 22, 2019.
The accompanying notes form an integral
part of these consolidated condensed financial statements.
*Adjusted to reflect the impact of the
1:20 reverse stock split that became effective on February 22, 2019.
The accompanying notes form an integral
part of these consolidated condensed financial statements.
The accompanying notes form an integral
part of these consolidated condensed financial statements.
The accompanying notes form an integral
part of these consolidated condensed financial statements.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL
STATEMENTS
(Unaudited)
(In thousands, except for share and
per share data)
Note 1. General
Basis of Presentation and Principals of Consolidation
The unaudited interim consolidated condensed
financial statements have been prepared in accordance with generally accepted accounting principles in the United States of America
(“GAAP”) for interim financial information and the instructions to Article 8-03 of Regulation S-X, and should be read
in conjunction with the Company's Annual Report on Form 10-K for the year ended December 31, 2018. The unaudited interim consolidated
condensed financial statements for all 2018 periods presented have been derived from audited financial statements. The financial
statements include the accounts of the Company, all entities that are wholly owned by the Company, and all entities in which the
Company has a controlling financial interest. All adjustments that, in the opinion of management, are necessary for a fair presentation
for the periods presented have been reflected by the Company. Such adjustments are of a normal, recurring nature. The results of
operations for the three and six-month periods ended June 30, 2019 are not necessarily indicative of the results that may be expected
for the entire fiscal year or for any other interim period. All significant intercompany balances and transactions have been eliminated
in consolidation.
Overview
On January 5, 2018, the Company changed
its name to XpresSpa Group, Inc. (“XpresSpa Group”, the “Company”, “we”, “us”,
“our”) from FORM Holdings Corp. The Company rebranded to XpresSpa Group to align our corporate strategy to build a
pure-play health and wellness services company, which 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, the
leading airport retailer of spa services. The Company offers travelers premium spa services, including massage, nail and skin care,
as well as spa and travel products.
Recent Developments
Calm Private Placement
On July 8, 2019, the Company entered into
a securities purchase agreement (the “Calm Purchase Agreement”) with Calm.com, Inc. (“Calm”) pursuant to
which the Company agreed to sell (i) an aggregate principal amount of $2,500 in 5.00% unsecured convertible Notes due 2022 (the
“Calm Notes”), which will be convertible into shares of Series E Convertible Preferred Stock (the “Series E Preferred
Stock”) and (ii) warrants to purchase 937,500 shares of the Company’s common stock, par value $0.01 per share (the
“Common Stock”), at an exercise price of $2.00 per share (the “Calm Warrants”) (collectively, the “Calm
Private Placement”).
The Company received $2,500 in gross proceeds
from the Calm Private Placement.
Notes and Warrants
The Calm Notes are the unsecured subordinated
obligations of the Company. Unless earlier converted or redeemed, the Calm Notes will mature on May 31, 2022. The Calm Notes bear
interest at a rate of 5% per annum, subject to increase in the event of default to the lesser of 18% per annum or the maximum rate
permitted under applicable law. The Calm Notes are convertible at any time until the Calm Notes are no longer outstanding, in whole
or in part, at the option of Calm into shares of Series E Preferred Stock at a conversion price equal to $3.10 per share, except
that no shares of Series E Preferred Stock may be issued as payment of interest or in connection with anti-dilution protection
or voluntary reduction of the conversion price until receipt of Shareholder Approval. Interest on the Calm Notes is payable in
arrears beginning on the last day of each February, May, August and November during the period beginning on the original issuance
date and ending on, and including, the maturity date, when all amounts outstanding under the Calm Notes become due and payable
in cash. The Company may elect to pay interest in cash, shares of Series E Preferred Stock or a combination thereof.
The Calm Warrants entitle Calm to purchase
an aggregate of 937,500 shares of Common Stock. The Calm Warrants are exercisable beginning six months from the date of issuance,
have a term of five years and feature an exercise price equal to $2.00 per share.
Calm Collaboration Agreement
On July 8, 2019, the Company entered into
an Amended and Restated Product Sale and Marketing Agreement with Calm (the “Amended and Restated Collaboration Agreement”),
which replaced the parties’ previous Product Sale and Marketing Agreement, dated as of November 12, 2018. The Amended and
Restated Collaboration Agreement primarily relates to the display, marketing, promotion, offer for sale and sale of Calm’s
products in each of the Company’s branded stores throughout the United States. The Amended and Restated Collaboration Agreement
will remain in effect until July 31, 2021, unless terminated earlier in accordance with the Amended and Restated Collaboration
Agreement, and automatically renews for successive terms of six months unless either party provides written notice of termination
no later than thirty days prior to any such automatic renewal of the Amended and Restated Collaboration Agreement.
Amendment to Certificate of Designation
of Series E Convertible Preferred Stock
On July 8, 2019, the Company filed a certificate
of amendment to the Certificate of Designation of Series E Convertible Preferred Stock (the “Series E COD Amendment”)
with the State of Delaware to (i) increase the number of authorized shares of Series E Preferred to 2,397,060 and (ii) upon receipt
of Shareholder Approval, reduce the conversion price to $2.00. The Series E COD Amendment was approved by the Board of Directors
of the Company. The Company intends to seek Shareholder Approval of the Series E COD Amendment.
B3D Transaction
On July 8, 2019, the Company entered into
a fourth amendment (the “Credit Agreement Amendment”) to its existing Credit Agreement with B3D, LLC (“B3D”)
in order to, among other provisions, (i) extend the maturity date to May 31, 2021, (ii) reduce the applicable interest rate to
9.0%, and (iii) amend and restate the Senior Secured Note in order to increase the principal amount owed to B3D to $7.0 million,
which principal and any interest accrued thereon will be convertible, at B3D’s option, into Common Stock subject to receipt
of Shareholder Approval (the “B3D Notes”) (together, the “B3D Transaction”).
B3D Notes
The B3D Notes are the senior secured obligations
of the Company, secured by the personal property of the Company and its subsidiaries. Unless earlier converted or redeemed, the
B3D Notes will mature on May 31, 2021. The B3D Notes bear interest at a rate of 9.00% per annum, calculated on a monthly basis.
Interest only is payable in arrears on the last business date of each month (the “Monthly Interest”). Notwithstanding
the foregoing, until the earlier of (i) ninety days from the date of the Credit Agreement Amendment or (ii) the date upon which
Shareholder Approval is received (the “Interest Deferment Date”), the Monthly Interest will continue to accrue, will
be compounded monthly, and all unpaid amounts thereof will be due and payable on the Interest Deferment Date. At the option of
the Company, all or any portion of the Monthly Interest that is payable (i) on the Interest Deferment Date or (ii) after the Interest
Deferment Date, but not more than twenty-one days and not less than five trading days prior to the date on which each payment of
Monthly Interest is due, may be paid in shares of Common Stock. At any time after receipt of Shareholder Approval until the B3D
Notes are no longer outstanding, all or any portion of the outstanding principal amount of the B3D Notes, plus any accrued and
unpaid interest thereon, shall be convertible into Common Stock at the option of B3D at a conversion price equal to $2.00 per share.
Series D Amendment and December 2016
Warrant Amendment
Amendment to Certificate of Designation
of Series D Convertible Preferred Stock
On July 8, 2019, the Company filed a certificate
of amendment to the Certificate of Designation of Series D Convertible Preferred Stock (the “Series D COD Amendment”)
with the State of Delaware to, upon receipt of Shareholder Approval, reduce the conversion price to $2.00 and provide for automatic
conversion of the Series D Convertible Preferred Stock into shares of Common Stock. The Series D COD Amendment was approved by
the Company Board. The Company intends to seek Shareholder Approval of the Series D COD Amendment.
December 2016 Warrant Amendment
On July 8, 2019, the Company entered into
an amendment to certain outstanding warrants issued in December 2016 to the holders of its Series D Convertible Preferred Stock
(the “December 2016 Warrant Amendment”) to provide for (i) a reduction in the exercise price to $2.00, (ii) certain
anti-dilution price protection and (iii) voluntary reduction of the exercise price by the Company in its discretion. The Company
intends to seek Shareholder Approval in connection with the December 2016 Warrant Amendment.
May 2018 SPA Amendment, Series F
Preferred Stock and Series B Preferred Stock
May 2018 SPA Amendment
On July 8, 2019, the Company entered into
an amendment (the “May 2018 SPA Amendment”) to that certain Securities Purchase Agreement, dated as of May 15, 2018,
by and between the Company and the purchasers party thereto (the “May 2018 SPA”), to provide for, among other provisions,
(i) an update to certain definitions, including the definition of an “Exempt Issuance,” (ii) the waiver of certain
provisions regarding restrictions on subsequent equity sales and participation in subsequent financings, and the removal of certain
such provisions upon receipt of Shareholder Approval, (iii) the amendment to certain provisions of the Class A Warrants issued
pursuant to the May 2018 SPA to modify certain provisions in connection with a Notice Failure (as such term is defined in the Class
A Warrants), and to reduce the exercise price of the Class A Warrants issuable pursuant to anti-dilution price protection contained
in such Class A Warrants to $2.00 per share following receipt of Shareholder Approval (iv) the cancellation of all outstanding
Class B Warrants and (v) the establishment of a new class of preferred stock, to be designated Series F Convertible Preferred Stock,
par value $0.01 per share (the “Series F Preferred Stock”) and the issuance of 9,000 shares of such Series F Preferred
Stock to the parties to the May 2018 SPA Amendment, which will be convertible into Common Stock upon receipt of Shareholder Approval.
Certificate of Designation of Series
F Preferred Stock
In connection with the May 2018 SPA Amendment,
on July 8, 2019, the Company filed with the Secretary of State of the State of Delaware a Certificate of Designation of Preferences,
Rights and Limitations of Series F Convertible Preferred Stock (the “Series F Certificate of Designation”) establishing
and designating the rights, powers and preferences of the Series F Preferred Stock. The Company designated 9,000 shares of Series
F Preferred Stock.
Certificate of Elimination of Series
B Preferred Stock
On July 8, 2019, the Company filed a Certificate
of Elimination of Shares of Series B Preferred Stock (the “Certificate of Elimination”) to the Company’s
amended and restated certificate of incorporation. The Certificate of Elimination reduced, pursuant to Section 151(g) of the Delaware
General Corporation Law, the number of authorized shares of Series B Convertible Preferred Stock of the Company, par
value $0.01 per share (the “Series B Preferred Stock”) from
1,609,167
shares
of Series B Preferred Stock to zero shares of Series B Preferred Stock, the number of shares of Series B Preferred Stock issued
and outstanding as of July 8, 2019. Pursuant to the provisions of Section 151(g) of the Delaware General Corporation Law, the
1,609,167
authorized shares
of Series B Preferred Stock eliminated pursuant to the reduction return to the available undesignated preferred stock of
the Company and may be re-designated into another series of preferred stock.
As of June 30, 2019, the Company had $2,259
of cash and cash equivalents and total current assets of $3,819, total current liabilities balance of $8,451, and a working capital
deficiency of $4,632. The $2,500 capital infusion from Calm on July 8, 2019 increased the Company’s cash balance by $2,500
and reduced the Company’s working capital deficiency by $2,500.
The Company is exploring valuable strategic
partnerships, right-sizing its corporate structure, and stream-lining spa operations. The Company expects that these actions will
be executed in alignment with the anticipated timing of its long-term liquidity needs. There can be no assurance, however, that
any such opportunities will materialize.
The Company has also reduced operating
and overhead expenses and generated positive cash flows from continuing operations of $244 for the six months ended June 30, 2019,
compared to a cash loss from continuing operations of $5,061 for the six months ended June 30, 2018. While the Company continues
to focus on its overall profitability, the Company expects to incur net losses in the foreseeable future.
The report of the Company’s independent
registered public accounting firm on its financial statements for the year ended December 31, 2018 included an explanatory paragraph
indicating that there is substantial doubt about the Company’s ability to continue as a going concern. The Company believes
it is probable that it will generate additional liquidity through, not only the transactions that have already occurred, but through
other actions it expects to undertake in the near future. The Company’s management believes it will successfully mitigate
the substantial doubt raised by its historical operating results and will satisfy its liquidity needs for at least 12 months from
the issuance of these financial statements. However, the Company cannot reasonably predict with any certainty that the results
of its actions will generate the liquidity required to satisfy its liquidity needs.
If the Company continues to experience
operating losses, and the Company is not able to generate additional liquidity through the actions described above or through some
combination of other actions, while not expected, the Company may not be able to access additional funds and the Company might
need to secure additional sources of funds, which may or may not be available. Additionally, a failure to generate additional
liquidity could negatively impact its access to inventory or services that are important to the operation of the business.
CEO Transition
On February 8, 2019, Edward Jankowski resigned
as Chief Executive Officer of the Company and as a director of the Company. Mr. Jankowski’s resignation was not as a result
of any disagreement with the Company on any matters related to the Company’s operations, policies or practices. Mr. Jankowski
is receiving termination benefits including $375 payable in equal installments over a twelve-month term which commenced on February
13, 2019 and COBRA continuation coverage paid in full by the Company for up to a maximum of twelve months.
Effective as of February 11, 2019,
Douglas Satzman was appointed by the Company’s board of directors as the Chief Executive Officer of the Company and as a
director of the Company to fill the position vacated by Mr. Jankowski.
Reverse Stock Split
On February 22, 2019, the Company filed
a certificate of amendment to its amended and restated certificate of incorporation with the Secretary of State of the State of
Delaware to effect a 1-for-20 reverse stock split of the Company’s shares of Common Stock. Such amendment and ratio were
previously approved by the Company’s stockholders and board of directors.
As a result of the reverse stock split,
every twenty (20) shares of the Company’s pre-reverse split Common Stock were combined and reclassified into one (1) share
of Common Stock. Proportionate voting rights and other rights of common stockholders were affected by the reverse stock split.
Stockholders who would have otherwise held a fractional share of Common Stock received payment in cash in lieu of any such resulting
fractional shares of Common Stock as the post-reverse split amounts of Common Stock were rounded down to the nearest full share.
No fractional shares were issued in connection with the reverse stock split.
Collaboration Agreement
On November 12,
2018, we entered into a Product Sale and Marketing Agreement (the “Collaboration Agreement”) with Calm primarily related
to the display, marketing, promotion, offer for sale and sale of Calm’s products in each of our branded stores throughout
the United States.
On July 8, 2019,
we entered into an Amended and Restated Product Sale and Marketing Agreement with Calm (the “Amended and Restated Collaboration
Agreement”), which replaced the previous Collaboration Agreement. The Amended and Restated Collaboration Agreement primarily
relates to the display, marketing, promotion, offer for sale and sale of Calm’s products in each of XpresSpa’s stores.
The Amended and Restated Collaboration Agreement shall remain in effect until July 31, 2021, unless terminated earlier in accordance
with the Amended and Restated Collaboration Agreement, and automatically renews for successive terms of six months unless either
party provides written notice of termination no later than thirty days prior to any such automatic renewal of the Amended and Restated
Collaboration Agreement.
Note 2. Accounting and Reporting Policies
(a) Right-of-use asset and lease
liability
The right-of-use asset on our Consolidated
Condensed Balance Sheet represents a lessee's right to use an asset over the life of a lease. The asset is calculated as the initial
amount of the lease liability, plus any lease payments made to the lessor before the lease commencement date, plus any initial
direct costs incurred, minus any lease incentives received. The amortization period for the right-of-use asset is from the lease
commencement date to the earlier of the end of the lease term or the end of the useful life of the asset.
The addition of these items on the balance
sheet is in accordance with new lease accounting standard Topic 842-Leases issued by the FASB. This standard requires operating
leases to be recorded on the balance sheet as assets and liabilities and requires disclosure of key information about leasing arrangements.
Leases will be classified as either finance or operating, with classification affecting the pattern of expense recognition in the
statement of operations and comprehensive loss.
(b) Revenue recognition
The Company recognizes revenue from
the sale of XpresSpa products at the time the goods are purchased at our stores or online (usually by credit card) and services
when they are rendered at our stores. net of discounts and applicable sales taxes. Revenues from the XpresSpa wholesale and e-commerce
businesses are recorded at the time goods are shipped. Accordingly, the Company recognizes revenue for its single performance obligation
related to both in-store and online sales at the point at which the service has been performed or the control of the merchandise
has passed to the customer. The Company excludes all sales taxes assessed to its customers. Sales taxes assessed on revenues are
included in accounts payable, accrued expenses and other current liabilities in the consolidated condensed balance sheets until
remitted to the state agencies.
Other revenue relates to one-time
intellectual property licenses as well as the sale of certain of the Company’s intellectual property. Revenue from patent
licensing is recognized when the Company transfers promised intellectual property rights to customers in an amount that reflects
the consideration to which the Company expects to be entitled in exchange for those intellectual property rights.
(c) Recently adopted accounting pronouncements
ASU No. 2016-02, Leases (Topic 842),
as amended
This standard and its amendments provides
new guidance related to accounting for leases and supersedes GAAP on lease accounting with the intent to increase transparency.
This standard requires operating leases to be recorded on the balance sheet as assets and liabilities and requires disclosure of
key information about leasing arrangements. Leases will be classified as either finance or operating, with classification affecting
the pattern of expense recognition in the statement of operations and comprehensive loss.
On January 1, 2019, the Company adopted
ASU 2016-02 on a prospective basis, beginning on January 1, 2019 using the optional transition method. The Company applied the
transition options permitted by ASU 2018-11 and elected the package of practical expedients to alleviate certain operational and
reporting complexities related to the adoption. See Note 8 “Leases” for further discussion.
The Company recorded right-of-use assets
and lease liabilities for its operating leases of $9,565 upon adoption of ASU 2016-02.
ASU No. 2018-02, Income Statement –
Reporting Comprehensive Income (Topic 220): Reclassification of Certain Tax Effects from Accumulated Other Comprehensive Income
This standard provides guidance on the
reclassification of certain tax effects from accumulated other comprehensive income to retained earnings in the period in which
the effects of the change in the U.S. federal corporate income tax rate in the Tax Cuts and Jobs Act is recorded. The new standard
is effective for the fiscal year beginning after December 15, 2018. The Company adopted this standard on January 1, 2019. Adoption
of this standard did not have a material impact on the Company’s consolidated condensed financial statements.
(d) Recently issued accounting
pronouncements
ASU No. 2016-13, Financial Instruments
-
Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments
This standard changes the impairment model
for most financial assets that are measured at amortized cost and certain other instruments, including trade receivables, from
an incurred loss model to an expected loss model and adds certain new required disclosures. Under the expected loss model, entities
will recognize estimated credit losses to be incurred over the entire contractual term of the instrument rather than delaying recognition
of credit losses until it is probable the loss has been incurred. The new standard is effective for the fiscal year beginning after
December 15, 2019, with early adoption permitted. Based upon the outstanding balance of the Company’s trade receivables and
its positive collection history, the Company’s management does not believe that the adoption of this standard will have a
material impact on its consolidated financial position and results of operations.
ASU No. 2018-13, Fair Value Measurement
(Topic 820): Disclosure Framework—Changes to the Disclosure Requirements for Fair Value Measurement
This amendment provides updates to the
disclosure requirements on fair value measures in Topic 820 which includes the changes in unrealized gains and losses in other
comprehensive income for recurring Level 3 fair value measurements, the option of additional quantitative information surrounding
unobservable inputs and the elimination of disclosures around the valuation processes for Level 3 measurements. The new standard
is effective for the fiscal year beginning after December 15, 2019. The Company’s management does not believe that the adoption
of this standard will have a material impact on its consolidated financial position and results of results of operations.
Note 3. Potentially Dilutive Securities
Loss per share attributable to common shareholders
data for each period presented excludes from the calculation of diluted net loss the following potentially dilutive securities
(reflecting the impact of the 1:20 reverse stock split that became effective on February 22, 2019) as they had an anti-dilutive
impact:
|
|
As of June 30,
|
|
|
|
2019
|
|
|
2018
|
|
|
|
|
|
|
|
|
Both vested and unvested options to purchase
an equal number of shares of Common Stock of the Company
|
|
|
180,000
|
|
|
|
155,125
|
|
Unvested RSUs to issue an equal number of shares of
Common Stock of the Company
|
|
|
52,250
|
|
|
|
23,250
|
|
Warrants to purchase an equal number of shares of Common
Stock of the Company
|
|
|
1,060,424
|
|
|
|
704,169
|
|
Preferred stock on an as converted basis
|
|
|
412,235
|
|
|
|
163,216
|
|
Convertible notes on an as converted
basis
|
|
|
—
|
|
|
|
217,500
|
|
Total
number of potentially dilutive securities excluded from the calculation of loss per share attributable to common
shareholders
|
|
|
1,704,909
|
|
|
|
1,263,260
|
|
The Convertible Notes were converted into
common stock in June 2019. See Note 9 “Senior Secured Note and Convertible Notes.”
Note 4. Cash, Cash Equivalents, and Restricted Cash
Cash, cash equivalents, and restricted
cash in the consolidated condensed balance sheets are comprised of the following as of June 30, 2019 and December 31, 2018:
|
|
June 30, 2019
|
|
|
December 31, 2018
|
|
Cash denominated in United States dollars
|
|
$
|
276
|
|
|
$
|
2,000
|
|
Cash denominated in currency other than United States dollars
|
|
|
1,269
|
|
|
|
1,143
|
|
Restricted cash
|
|
|
429
|
|
|
|
487
|
|
Credit and debit card receivables
|
|
|
714
|
|
|
|
260
|
|
Total cash, cash equivalents, and restricted cash
|
|
$
|
2,688
|
|
|
$
|
3,890
|
|
Cash denominated in Unites States dollars
decreased from December 31, 2018 primarily due to increased capital expenditures to renovate spas and to open new spas, distributions
to the Company’s noncontrolling interest investees and payments made on the Senior Secured Notes. Credit and debit card receivables
balance increased due to the timing of payments from credit card companies at the end of June 2019.
Restricted cash represents balances at
financial institutions to secure bonds and letters of credit as required by the Company’s various lease agreements.
Note 5. Other Current Assets
As of June 30, 2019, and December 31,
2018, the Company’s other current assets were comprised of the following:
|
|
June 30, 2019
|
|
|
December 31, 2018
|
|
Prepaid expenses
|
|
$
|
474
|
|
|
$
|
1,204
|
|
Other
|
|
|
85
|
|
|
|
261
|
|
Total other current assets
|
|
$
|
559
|
|
|
$
|
1,465
|
|
Prepaid expenses are predominantly comprised
of prepaid insurance policies which have terms of one year or less. The balance decreased from December 31,2018 due to the timing
of payments and amortization of the year end prepaid insurance balance.
Note 6. Other Assets
Other assets in the consolidated condensed
balance sheets are comprised of the following as of June 30, 2019 and December 31, 2018:
|
|
June 30, 2019
|
|
|
December 31, 2018
|
|
Cost method investments
|
|
$
|
1,341
|
|
|
$
|
2,482
|
|
Lease deposits
|
|
|
903
|
|
|
|
894
|
|
Other
|
|
|
198
|
|
|
|
—
|
|
Other assets
|
|
$
|
2,442
|
|
|
$
|
3,376
|
|
As of June 30, 2019, the Company’s
cost method investments consist primarily of a $787 investment in InfoMedia Services Limited which the Company acquired in 2014
and the remaining investment in Route1 (“Route1”) of $484, which it received as part of the disposition of Group Mobile
in March 2018.
In the second quarter of 2019, the Company
impaired its investment in Route1, due to an under performance of operating results. The Company recorded an impairment charge
of $1,141 for the three and six months ended June 30, 2019, which is included in “Other non-operating income (expense), net”
on the consolidated condensed statements of operations and comprehensive income.
The Company
has not identified any other events or changes in circumstances that could have a significant adverse effect on the carrying value
of its remaining cost method investments
.
Note 7. Intangible Assets and Goodwill
The following table provides information
regarding the Company’s intangible assets subject to amortization, which consist of the following:
|
|
June 30, 2019
|
|
|
December 31, 2018
|
|
|
|
Gross
Carrying
Amount
|
|
|
Accumulated
Amortization
and
Impairment
|
|
|
Net
Carrying
Amount
|
|
|
Gross
Carrying
Amount
|
|
|
Accumulated
Amortization
and Impairment
|
|
|
Net
Carrying
Amount
|
|
Trade name
|
|
$
|
13,309
|
|
|
$
|
(5,592
|
)
|
|
$
|
7,717
|
|
|
$
|
13,309
|
|
|
$
|
(4,485
|
)
|
|
$
|
8,824
|
|
Customer relationships
|
|
|
312
|
|
|
|
(312
|
)
|
|
|
—
|
|
|
|
312
|
|
|
|
(312
|
)
|
|
|
—
|
|
Software
|
|
|
312
|
|
|
|
(97
|
)
|
|
|
215
|
|
|
|
312
|
|
|
|
(69
|
)
|
|
|
243
|
|
Patents
|
|
|
26,897
|
|
|
|
(26,806
|
)
|
|
|
91
|
|
|
|
26,897
|
|
|
|
(26,797
|
)
|
|
|
100
|
|
Total intangible assets
|
|
$
|
40,830
|
|
|
$
|
(32,807
|
)
|
|
$
|
8,023
|
|
|
$
|
40,830
|
|
|
$
|
(31,663
|
)
|
|
$
|
9,167
|
|
The Company’s trade name relates
to the value of the XpresSpa trade name, customer relationships represent the value of the loyalty customers, software relates
to certain capitalized third-party costs related to a new point-of-sale system, and patents consist of intellectual property portfolios
acquired from third parties.
The Company’s intangible assets are
amortized over their expected useful lives. During the three and six-months ended June 30, 2019 and 2018, the Company recorded
amortization expense of $576 and $611, respectively and $1,144 and $1,217, respectively.
Based on the Intangible assets balance
as of June 30, 2019 the estimated amortization expense for the remainder of the calendar year and each of the succeeding calendar
years is as follows:
Calendar Years ending December 31,
|
|
Amount
|
|
Remainder of 2019
|
|
$
|
1,138
|
|
2020
|
|
|
2,275
|
|
2021
|
|
|
2,275
|
|
2022
|
|
|
2,275
|
|
2023
|
|
|
60
|
|
Total
|
|
$
|
8,023
|
|
There were no impairment indicators related
to any of the Company’s amortizable intangible assets during the six months ended June 30, 2019.
Goodwill Impairment
During the first quarter of fiscal year
2018, our stock price declined from an opening price of $1.36 on January 2, 2018 to $0.72 on March 29, 2018. Subsequently, on April
19, 2018, we entered into a separation agreement with our Chief Executive Officer regarding his resignation as Chief Executive
Officer and Director. These events were identified by our management as triggering events requiring that goodwill be tested
for impairment as of March 31, 2018. As the stock price had not rebounded, we determined that there was an impairment
of the goodwill. The Company performed a quantitative goodwill impairment test, in which the Company compared the carrying value
of the reporting unit to its estimated fair value, which was calculated using an income approach. The key assumptions for this
approach were projected future cash flows and a discount rate, which was based on a weighted average cost of capital adjusted for
the relevant risk associated with the characteristics of the business and the projected future cash flows. As a result of the quantitative
goodwill impairment test performed as of March 31, 2018, the Company determined that the fair value of the reporting unit was less
than its’ carrying amount and, therefore, goodwill of the reporting unit was considered impaired. We recorded an impairment
charge of $19,630 to reduce the carrying value of goodwill to its fair value, which was determined to be zero. The impairment to
goodwill was a result of the structural changes to the Company, including completion of the transition from a holding company to
a pure-play health and wellness company, the change in Chief Executive Officer and the reduction in our stock price.
Note 8. Leases
The Company leases its retail space at
various domestic and international airports. Additionally, the Company leases its corporate office in New York. Certain leases
entered into by the Company fall under ASU No. 2016-02, Leases (“Topic 842”
)
discussed in Note 2 (b) “Recently
adopted accounting pronouncements”. The Company determines if an arrangement is a lease at inception and if it qualifies
under Topic 842. Certain lease arrangements contain fixed payments throughout the term of the lease. Others involve a variable
component to determine the lease obligation where a certain percentage of sales is used to calculate the lease payments.
Additionally, all qualifying leases held
by the Company are classified as operating leases. Operating lease assets represent the Company’s right to use an underlying
asset for the lease term and lease liabilities represent its obligation to make lease payments arising from the lease. Operating
lease assets and liabilities are recognized at commencement date based as the present value of lease payments over the lease term.
The Company records its operating lease assets and liabilities based on required guaranteed payments under each lease agreement.
As the Company’s leases do not provide an implicit rate, the Company used its incremental borrowing rate based on the information
available at commencement date in determining the present value of guaranteed lease payments.
The following is a summary of the activity
in the Company’s Operating lease liabilities for the six months ended June 30, 2019:
Operating lease liability, January 1, 2019
|
|
$
|
10,809
|
|
New leases entered
|
|
|
—
|
|
Termination of existing qualifying leases
|
|
|
(421
|
)
|
Amortization of lease obligation
|
|
|
(1,506
|
)
|
Operating lease liability, June 30, 2019
|
|
$
|
8,882
|
|
In July 2019, the lease for our location
in the World Trade Center in New York was terminated. As a result, the Company assessed all assets (primarily leasehold improvements)
for impairment. This resulted in a charge of approximately $620 which is included in “Impairment of fixed assets” in
the consolidated condensed statements of operations and comprehensive loss for the three and six months ended June 30, 2019. We
also reduced the remaining balance in Right of use asset and the Lease liability by approximately $421.
The Company also expensed approximately
$210 of costs capitalized in anticipation of opening new spas that the Company later determined would never be realized. This charge
is included in the “Impairment of fixed assets” line in the consolidated condensed statements of operations and comprehensive
loss for the three- and six-month periods ended June 30, 2019.
As of June 30, 2019, operating leases
contain the future minimum commitments:
Calendar Years ending December 31,
|
|
Amount
|
|
Remainder of 2019
|
|
$
|
2,048
|
|
2020
|
|
|
3,146
|
|
2021
|
|
|
2,504
|
|
2022
|
|
|
2,152
|
|
2023
|
|
|
1,238
|
|
Thereafter
|
|
|
1,039
|
|
Total future lease payments (including interest)
|
|
$
|
12,127
|
|
Less: interest expense at incremental borrowing rate
|
|
|
(3,245
|
)
|
Net present value of lease liabilities
|
|
$
|
8,882
|
|
Other assumptions and pertinent information
related to the Company’s accounting for operating leases are:
Weighted average remaining lease term:
|
|
|
4.8 years
|
|
Weighted average discount rate used to determine present value of operating lease liability:
|
|
|
11.24
|
%
|
Cash paid for lease obligations during the six months ended June 30, 2019:
|
|
$
|
1,774
|
|
Variable lease payments were $875 and $1,497
for the three and six months ended June 30, 2019, respectively.
Note 9. Senior Secured Note and Convertible
Notes
Senior Secured Note
As of June 30, 2019, the Company had an
11.24% interest bearing senior secured note of $6.500 outstanding with B3D, assigned from Rockmore Investment Master Fund Ltd.
(“Rockmore”). Rockmore is an investment entity controlled by the Company’s Chairman of the Board of Directors,
Bruce T. Bernstein. The senior secured note was due on December 31, 2019 (the “Senior Secured Note”). In May 2017,
the Company granted Rockmore 250,000 class A warrants as consideration for extending the maturity date of the Senior Secured Note
from May 1, 2018 to May 1, 2019. On May 14, 2018, the Company and Rockmore agreed to extend the maturity date of the Senior Secured
Note again from May 1, 2019 to December 31, 2019. The warrants issued to Rockmore are classified as equity warrants in the consolidated
condensed balance sheets.
In July 2019, the Company renegotiated
the terms of the Senior Secured Note to, among other things, increase the principal amount outstanding by $500 and extend the maturity
date to May 31, 2021. As a result, the Senior Secured Note has been reclassified from current liabilities to long-term liabilities
on the Company’s consolidated condensed balance sheet as of June 30, 2019. See Note 16 “Subsequent Events” for
additional information.
Convertible Notes
On May 15, 2018, in a private placement
offering, the Company issued (i) 5% Secured Convertible Notes ( the “Convertible Notes”) convertible into Common Stock
at $12.40 per share, due November 2019, (ii) May 2018 Class A Warrants to purchase 357,863 shares of Common Stock and (iii) Class
B Warrants to purchase 178,932 shares of Common Stock (the “May 2018 Class B Warrants”). The May 2018 Class A and Class
B Warrants were convertible into Common Stock at $12.40 per share. The Company received aggregate proceeds of $4,438 from the May
2018 private placement.
During the second quarter of 2019, the
Company failed to make minimum monthly payments as required pursuant to the Convertible Notes, which failure constituted an event
of default. Pursuant to the terms of the Convertible Notes, upon an event of default, an investor may elect to accelerate payment
of the outstanding principal amount of such investor’s Convertible Note, liquidated damages and other amounts owing in respect
thereof through the date of acceleration, which amounts become immediately due and payable in cash. No investor provided notice
to the Company electing to exercise its right to accelerate payment. We have since renegotiated the terms of the Convertible
Notes (See discussion below).
Debt discount and debt issuance costs were
amortized on a straight-line basis over the remaining term of the Convertible Notes. During the three and six months ended June
30, 2019, the Company recorded $342 and $736 of amortization of debt discount and debt issuance costs, which was included in “Interest
expense” for the three and six months ended June 30, 2019, respectively. Additionally, for the three and six months ended
June 30, 2019, the Company wrote off the balance of debt issuance costs of $135, which is also included in “Interest expense”,
as the Convertible Notes were converted into Common Stock on June 27, 2019, (See discussion below).
On June 27, 2019, the Company entered into
the Third Amendment Agreement to the Convertible Notes (the “Third Amendment”) whereby the holders of the Convertible
Notes agreed to convert their Convertible Notes then held into Common Stock. The Third Amendment reduced the conversion price of
the Convertible Notes to Common Stock from $12.40 per share to $2.48 per share. As a result of the reduction in the conversion
price of the Convertible Notes, the Company recorded a debt conversion expense of $1,547 to account for the additional consideration
paid over what was agreed to in the original Note agreement. The expense is reflected in “Other non-operating income (expense),
net” in the consolidated statement of operations and comprehensive loss in the quarter and year to date periods ended June
30, 2019. Convertible Note holders converted their remaining outstanding principal balances plus accrued interest into 586,389
shares of Common Stock and 356,772 Class A Warrants (the “June 2019 Class A Warrants”). The June 2019 Class A Warrants
had an exercise price of $0.01 and are otherwise identical in form and substance to the Company's existing May 2018 Class A Warrants.
The Company had an independent third party
perform an appraisal of the June 2019 Class A Warrants as of June 30, 2019. The June 2019 Class A Warrants were assigned an appraised
value of $689. The value of these warrants was recorded as a derivative liability on the consolidated balance sheet and will be
marked to market at the end of each quarter. The expense of $689 is included in “Other non-operating income (expense), net”
in the consolidated statements of operations and comprehensive loss in the quarter and year to date periods ended June 30, 2019.
The June 2019 Class A Warrants were converted
into 354,502 shares of Common Stock in July 2019.
The table below summarizes changes in the
book value of the Convertible Notes from December 31, 2018 to June 30, 2019:
Book value as of December 31, 2018
|
|
$
|
1,986
|
|
Conversions into Common Stock and June 2019 Class A Warrants
|
|
|
(2,728
|
)
|
Cash repayments
|
|
|
(129
|
)
|
Amortization of debt discount and debt issuance costs, included in interest expense
|
|
|
871
|
|
Book value as of June 30, 2019
|
|
$
|
—
|
|
Note 10. Fair Value Measurements
Fair value measurements are determined
based on assumptions that a market participant would use in pricing an asset or a liability. A three-tiered hierarchy distinguishes
between market participant assumptions based on (i) observable inputs such as quoted prices in active markets (Level 1), (ii)
inputs other than quoted prices in active markets that are observable either directly or indirectly (Level 2) and (iii) unobservable
inputs that require us to use present value and other valuation techniques in the determination of fair value (Level 3).
The Company’s financial instruments
as of June 30, 2019 and December 31, 2018 consisted of cash and cash equivalents, trade receivables, inventory, accounts payable
and other current liabilities. The carrying amounts of all the aforementioned financial instruments approximate fair value because
of the short-term nature of these instruments.
Derivative Warrant Liabilities
The following table presents the placement
in the fair value hierarchy of derivative warrant liabilities measured at fair value on a recurring basis as of June 30, 2019
and December 31, 2018:
|
|
|
|
|
Quoted prices in
|
|
|
|
|
|
|
|
|
|
|
|
|
active markets
|
|
|
Significant other
|
|
|
Significant
|
|
|
|
|
|
|
for identical
|
|
|
observable
|
|
|
unobservable
|
|
|
|
Balance
|
|
|
assets (Level 1)
|
|
|
inputs (Level 2)
|
|
|
inputs (Level 3)
|
|
June 30, 2019:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 2019 Class A Warrants
|
|
$
|
689
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
689
|
|
May 2018 Class A Warrants
|
|
|
398
|
|
|
|
—
|
|
|
|
—
|
|
|
|
398
|
|
May 2018 Class B Warrants
|
|
|
9
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
9
|
|
Total
|
|
$
|
1,096
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
1,096
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2018:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
May 2018 Class A Warrants
|
|
$
|
476
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
476
|
|
Total
|
|
$
|
476
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
476
|
|
The Company measures its derivative warrant
liabilities at fair value. The derivative warrant liabilities were classified within Level 3 because they were valued using the
Monte-Carlo model, which utilizes significant inputs that are unobservable in the market. These derivative warrant liabilities
were initially measured at fair value and are marked to market at each balance sheet date. The derivative warrant liabilities are
recorded as derivative warrant liabilities in the condensed consolidated balance sheets and the revaluation of the derivative warrants
liabilities is included in “Other non-operating income (expense), net” in the consolidated condensed statements of
operations and comprehensive loss.
The following table summarizes the
changes in the Company’s derivative warrant liabilities measured at fair value using significant unobservable inputs (Level
3) during the six months ended June 30, 2019:
December 31, 2018
|
|
$
|
476
|
|
Issuance of warrants
|
|
|
689
|
|
Decrease in fair value of the derivative warrant liabilities
|
|
|
(69
|
)
|
June 30, 2019
|
|
$
|
1,096
|
|
Valuation processes for Level 3
Fair Value Measurements
Fair value measurement of the derivative
warrant liabilities falls within Level 3 of the fair value hierarchy. The fair value measurements are evaluated by management
to ensure that changes are consistent with expectations of management based upon the sensitivity and nature of the inputs.
June 30, 2019:
Description
|
|
Valuation technique
|
|
Unobservable inputs
|
|
Range
|
|
Derivative warrant liabilities – A Warrants
|
|
Monte Carlo Model
|
|
Volatility
|
|
|
66.7
|
%
|
|
|
|
|
Risk-free interest rate
|
|
|
1.77%
|
|
|
|
|
|
Expected term, in years
|
|
|
3.88
|
|
|
|
|
|
Dividend yield
|
|
|
0.00
|
%
|
The fair value of Class B warrants was immaterial as
of June 30,2019. These warrants were cancelled in July 2019.
December 31, 2018:
Description
|
|
Valuation technique
|
|
Unobservable inputs
|
|
Range
|
|
Derivative warrant liabilities – A Warrants
|
|
Monte Carlo Model
|
|
Volatility
|
|
|
70.61
|
%
|
|
|
|
|
Risk-free interest rate
|
|
|
2.53
|
%
|
|
|
|
|
Expected term, in years
|
|
|
4.38
|
|
|
|
|
|
Dividend yield
|
|
|
0.00
|
%
|
Sensitivity of Level 3 measurements
to changes in significant unobservable inputs
The inputs to estimate the fair value
of the Company’s derivative warrant liabilities were the current market price of the Company’s Common Stock, the exercise
price of the derivative warrant liabilities, their remaining expected term, the volatility of the Company’s Common Stock
price and the risk-free interest rate over the expected term. Significant changes in any of those inputs in isolation can result
in a significant change in the fair value measurement.
Generally, an increase in the market price
of the Company’s shares of Common Stock, an increase in the volatility of the Company’s shares of Common Stock, and
an increase in the remaining term of the derivative warrant liabilities would each result in a directionally similar change in
the estimated fair value of the Company’s derivative warrant liabilities. Such changes would increase the associated liability
while decreases in these assumptions would decrease the associated liability. An increase in the risk-free interest rate or a
decrease in the differential between the derivative warrant liabilities’ exercise price and the market price of the Company’s
shares of Common Stock would result in a decrease in the estimated fair value measurement and thus a decrease in the associated
liability. The Company has not declared, and does not plan to declare, dividends on its Common Stock, and as such, there is no
change in the estimated fair value of the derivative warrant liabilities due to the dividend assumption.
Note 11. Stock-based Compensation
The Company has a stock-based compensation
plan available to grant stock options and RSUs to the Company’s directors, employees and consultants. Under the 2012 Employee,
Director and Consultant Equity Incentive Plan (the “Plan”) a maximum of 355,000 shares of Common Stock may be awarded.
In February 2019, the Company granted a total of 24,500 stock options to members of its board of directors and 75,000 to the Company’s
newly elected Chief Executive Officer at an exercise price of $4.20 per share. The options vest over a period of one year. The
Company also granted 37,500 RSUs to its newly elected Chief Executive Officer at an exercise price of $4.20 per share.
Total stock-based compensation expense
for the three and six months ended June 30, 2019 was $127 and $231, respectively and for the three and six months ended June 30,
2018 stock compensation expense was $259 and $571, respectively.
Note 12. Related Party Transactions
On April 14, 2018, the Company entered
into a consulting agreement with an employee of Mistral Equity Partners, which is a significant shareholder of the Company and
whose Chief Executive Officer is a member of the Board of Directors of the Company, to consult on certain business-related matters.
The total consideration was $10 per month through April 30, 2019, when it was terminated. The Company recorded consulting expense
of $10 and $40 for the three and six months ended June 30, 2019, respectively.
Note 13. Discontinued Operations
and Assets and Liabilities Held for Disposal
FLI Charge
On October 20, 2017
(the “Closing Date”), the Company sold FLI Charge, a wholly owned subsidiary included in its discontinued
technology operating segment, to a group of private investors and FLI Charge management. As part of the sale, the Company
received a perpetual royalty agreement (the “Royalty Agreement”). The Company also received a warrant exercisable
in shares of FLI Charge or an affiliate of FLI Charge upon an initial public offering or certain defined events in connection
with a change of control. The warrant has a five-year life and is based on a valuation of the lesser of $30,000 or the
financing valuation of FLI Charge preceding the initial public offering or certain defined events.
During the six months ended June 30, 2019,
the Company received a buyout from the Royalty Agreement and warrants in the amount of $1,100. This is reflected in “Other”
revenue on the consolidated condensed statements of operations and comprehensive loss.
Group Mobile
On March 7, 2018 , the Company entered
into a membership purchase agreement (the “Purchase Agreement”) with Route1 Security Corporation, a Delaware corporation
(the “Buyer”), and Route1 Inc., an Ontario corporation (“Route1”), pursuant to which the Buyer agreed to
acquire Group Mobile, a wholly-owned subsidiary included in the Company’s discontinued technology operating segment, (the
“Disposition”). The transaction closed on March 22, 2018 (the “Closing Date”), after which the Company
no longer had any involvement with Group Mobile.
In consideration for the Disposition, the
Buyer issued to the Company:
|
·
|
25,000,000 shares of common
stock of Route1 (“Route1 Common Stock”);
|
|
·
|
warrants to purchase 30,000,000
shares of Route1 Common Stock, which feature an exercise price of CAD 5 cents per share of Route 1 Common Stock and will be exercisable
for a three-year period; and
|
|
·
|
certain other payments over
the three-year period pursuant to an earn-out provision in the Purchase Agreement.
|
The Company retained
certain inventory with a value of $555, which was to be disposed of separately from the transaction with Route1 in the first half
of 2018. Of this amount, $110 was sold and the remaining inventory excluded from the transaction was subsequently determined to
be obsolete and unsalable and was fully written off in June 2018. Assets held for disposal includes $109 of accounts receivable,
net of allowance, associated with the sale of inventory excluded from the transaction with Route1 and liabilities held for disposal
of $40 relating to sales taxes as of June 30, 2019 and December 31, 2018. The transaction has not been completed as it is currently
in litigation. (See Note 15 “Commitments and Contingencies”).
Post-closing, the Company owned approximately
6.7% of Route1 common stock. The Route1 common stock is not tradable until a date no earlier than 12 months after the Closing
Date; 50%, or 12,500,000 shares of Route1 common stock are tradeable after 12 months plus an additional 2,083,333 shares of Route1
common stock are tradeable each month until 18 months after the Closing Date, subject to a change of control provision. The Company
has the ability to sell the Route1 common stock and warrants to qualified institutional investors. The Group Mobile Purchase Agreement
also contains representations, warranties, and covenants customary for transactions of this type.
The total consideration of the Disposition
was recognized as a cost method investment and, as such, was measured at cost on the date of acquisition, which, as of the Closing
Date, approximated fair value. The fair value of the total consideration as of the Closing Date was determined to be $1,625, which
was less than the carrying value of the asset and is included in “Other assets” in the consolidated balance sheets
as of June 30, 2019 and December 31, 2018. This resulted in a loss on disposal which is included in consolidated net loss from
discontinued operations in the consolidated statements of operations and comprehensive loss for the three and six months ended
June 30, 2018 of $510 and $1,115, respectively.
The
value of the total consideration for the Group Mobile disposition was determined using a combination of valuation methods including:
|
(i)
|
The value of the Route 1 common stock was determined to be $308, which was estimated by multiplying the number of shares as they become tradeable by the price per share as of the Closing Date.
|
|
(ii)
|
The value of the warrants was determined to be $176, which was calculated using the Black-Scholes-Merton model.
|
|
(iii)
|
The value of the earn-out provision was determined to be $1,141, which was estimated using a Monte-Carlo simulation analysis.
|
Due to the underperformance of operating
results by Group Mobile in the first period for which results were required to be reported to the Company, we determined that the
asset was impaired as of June 30, 2019 and recorded an impairment charge of $1,141 for the three and six months ended June 30,2019,
which is included in “Other non-operating income (expense), net” on the consolidated condensed statements of operations
and comprehensive income. (See Note 6 “Other Assets”).
Operating Results and Assets and
Liabilities Held for Sale
The following table presents the components
of the consolidated net loss from discontinued operations, as presented in the consolidated condensed statements of operations
and comprehensive loss for the three and six-month periods ended June 30, 2018:
|
|
Three and six months ended June 30, 2018
|
|
|
|
Three months
|
|
|
Six months
|
|
Revenue
|
|
$
|
—
|
|
|
$
|
2,834
|
|
Cost of sales
|
|
|
—
|
|
|
|
(2,305
|
)
|
Depreciation and amortization
|
|
|
—
|
|
|
|
(131
|
)
|
General and administrative
|
|
|
(510
|
)
|
|
|
(1,190
|
)
|
Loss on disposal
|
|
|
—
|
|
|
|
(301
|
)
|
Non-operating income (expense), net
|
|
|
—
|
|
|
|
(22
|
)
|
Loss from discontinued operations
|
|
$
|
(510
|
)
|
|
$
|
(1,115
|
)
|
In addition, the following table presents
the carrying amounts of the major classes of assets and liabilities held for sale as of June 30, 2019 and December 31, 2018, as
presented in the consolidated condensed balance sheets:
|
|
June 30, 2019
|
|
|
December 31, 2018
|
|
Accounts receivable, net
|
|
$
|
109
|
|
|
$
|
109
|
|
Assets held for disposal
|
|
$
|
109
|
|
|
$
|
109
|
|
|
|
|
|
|
|
|
|
|
Accounts payable, accrued expenses and other current liabilities
|
|
$
|
40
|
|
|
$
|
40
|
|
Liabilities held for disposal
|
|
$
|
40
|
|
|
$
|
40
|
|
Note 14. Income Taxes
The Company’s provision for income
taxes consists of federal, state, local, and foreign taxes in amounts necessary to align the Company’s year-to-date provision
for income taxes with the effective tax rate that the Company expects to achieve for the full year. Each quarter, the Company updates
its estimate of the annual effective tax rate and records cumulative adjustments as deemed necessary. The income tax provisions
for the six-month period ended June 30, 2019 reflect an estimated global annual effective tax rate of approximately 0.47% compared
to a benefit of 0.50% in 2018.
As of June 30, 2019, deferred tax assets
generated from the Company’s activities in the United States were offset by a valuation allowance because realization depends
on generating future taxable income, which, in the Company’s estimation, is not more likely than not to be generated before
such net operating loss carryforwards expire. The Company expects its effective tax rate for its current fiscal year to be significantly
lower than the statutory rate as a result of a full valuation allowance; therefore, any loss before income taxes does not generate
a corresponding income tax benefit.
The Company recorded income tax expense
during the 2019 periods as compared to an income tax benefit in the 2018 periods due primarily to earnings generated by foreign
subsidiaries in 2019, and a reduction to the valuation allowance as a result of the Tax Cuts and Jobs Act’s impact on the
lives of net operating losses. The final annual tax rate cannot be determined until the end of the fiscal year therefore, the actual
tax rate could differ from current estimates. The Company has an immaterial amount of uncertain tax positions and does not expect
to record any additional material provisions for unrecognized tax benefits in the next year.
Note 15. Commitments and Contingencies
Litigation and legal proceedings
Certain of the Company’s outstanding
legal matters include speculative claims for substantial or indeterminate amounts of damages. The Company regularly evaluates developments
in its legal matters that could affect the amount of any potential liability and makes adjustments as appropriate. Significant
judgment is required to determine both the likelihood of there being any potential liability and the estimated amount of a loss
related to the Company’s legal matters.
With respect to the Company’s outstanding
legal matters, based on its current knowledge, the Company’s management believes that the amount or range of a potential
loss will not, either individually or in the aggregate, have a material adverse effect on its business, consolidated financial
position, results of operations or cash flows. However, the outcome of such legal matters is inherently unpredictable and subject
to significant uncertainties. The Company evaluated the outstanding legal matters and assessed the probability and likelihood of
the occurrence of liability. Based on management’s estimates, the Company recorded $250 as of June 30, 2019 and $290 as of
December 31, 2018, which are included in accounts payable, accrued expenses and other in the consolidated condensed balance sheets.
The Company expenses legal fees in the
period in which they are incurred.
Cordial
Effective October 2014, XpresSpa terminated
its former Airport Concession Disadvantaged Business Enterprise (“ACDBE”) partner, Cordial Endeavor Concessions of
Atlanta, LLC (“Cordial”), in several store locations at Hartsfield-Jackson Atlanta International Airport.
Cordial filed a series of complaints with
the City of Atlanta, both before and after the termination, in which Cordial alleged, among other things, that the termination
was not valid and that XpresSpa unlawfully retaliated against Cordial when Cordial raised concerns about the joint venture. In
response to the numerous complaints it received from Cordial, the City of Atlanta required the parties to engage in two mediations.
After the termination of the relationship
with Cordial, XpresSpa sought to substitute two new ACDBE partners in place of Cordial.
In April 2015, Cordial filed a complaint
with the United States Federal Aviation Administration (“FAA”), which oversees the City of Atlanta with regard to airport
ACDBE programs, and, in December 2015, the FAA instructed that the City of Atlanta review XpresSpa’s request to substitute
new partners in lieu of Cordial and Cordial’s claims of retaliation. In response to the FAA instruction, pursuant to a corrective
action plan approved by the FAA, the City of Atlanta held a hearing in February 2016 and ruled in favor of XpresSpa such substitution
and claims of retaliation. Cordial submitted a further complaint to the FAA claiming that the City of Atlanta was biased against
Cordial and that the City of Atlanta’s decision was wrong. In August 2016, the parties met with the FAA. On October 4, 2016,
the FAA sent a letter to the City of Atlanta directing that the City of Atlanta retract previous findings on Cordial’s allegations
and engage an independent third party to investigate issues previously decided by Atlanta. The FAA also directed that the City
of Atlanta determine monies potentially due to Cordial.
On January 3, 2017, XpresSpa filed a lawsuit
in the Supreme Court of the State of New York, County of New York, against Cordial and several related parties. The lawsuit alleges
breach of contract, unjust enrichment, breach of fiduciary duty, fraudulent inducement, fraudulent concealment, tortious interference,
and breach of good faith and fair dealing. XpresSpa is seeking damages, declaratory judgment, rescission/termination of certain
agreements, disgorgement of revenue, fees and costs, and various other relief. On February 21, 2017, the defendants filed a motion
to dismiss. On March 3, 2017, XpresSpa filed a first amended complaint against the defendants. On April 5, 2017, Cordial filed
a motion to dismiss. On September 12, 2017, the Court held a hearing on the motion to dismiss. On November 2, 2017, the Court granted
the motion to dismiss which was entered on November 13, 2017. On December 22, 2017, XpresSpa filed a notice of appeal, and on September
24, 2018, XpresSpa perfected its appellate rights and submitted a brief to the Supreme Court of New York, First Department appellate
court. Oral arguments on the appeal are expected to take place in early 2019. Oral argument on the appeal went forward on March
20, 2019, and the Company expects the court to rule on the appeal in the coming months.
On March 30, 2018, Cordial filed a lawsuit
against XpresSpa, a subsidiary of XpresSpa, and several additional parties in the Superior Court of Fulton County, Georgia, alleging
the violation of Cordial’s civil rights, tortious interference, breach of fiduciary duty, civil conspiracy, conversion, retaliation,
and unjust enrichment. Cordial has threated to seek punitive damages, attorneys’ fees and litigation expenses, accounting,
indemnification, and declaratory judgment as to the status of the membership interests of XpresSpa and Cordial in the joint venture
and Cordial’s right to profit distributions and management fees from the joint venture. On May 3, 2018, the Court issued
an order extending the time for the defendants to respond to Cordial’s lawsuit until June 25, 2018. On May 4, 2018, the defendants
moved the lawsuit to the United States District Court for the Northern District of Georgia. On June 5, 2018, the Court granted
an extension of time for the defendants’ response until August 17, 2018. On August 9, 2018, the Court granted an additional
extension of time for the defendants’ response until September 7, 2018, and thereafter provided another extension pending
the Court’s consideration of XpresSpa’s Motion to Stay all action in the Georgia lawsuit, pending resolution of the
New York lawsuit and the FAA action. On October 29, 2018, XpresSpa’s Motion to Stay was denied. Prior to resolution of the
Motion to Stay, Cordial filed a Motion for Temporary Restraining Order (“TRO Motion”), seeking to enjoin the defendants
and specifically XpresSpa, from, among other things, distributing any cash flow, net profits, or management fees, or otherwise
expending resources beyond necessary operating expenses. XpresSpa filed an opposition and, in a decision entered December 26, 2018,
the Court denied Cordial’s TRO Motion entirely. Defendants filed a Motion to Dismiss the Complaint in its entirety on November
20, 2018, which is pending decision by the Court.
A Director's Determination was issued by
the FAA in connection with the Part 16 Complaint ("Part 16 Proceeding") filed by Cordial against the City of Atlanta
("City") in 2017 ("Director's Determination"). The Company and Cordial were not parties to the FAA action,
and had no opportunity to present evidence or otherwise be heard in such action. The Director's Determination concluded that the
City was not in compliance with certain Federal obligations concerning the federal government's ACDBE program, including relating
to the City's oversight of the Joint Venture Operating Agreement between Clients and Cordial, Cordial's termination, and Cordial's
retaliation and harassment claims, and the City was ordered to achieve compliance in accordance with the Director's Determination.
The Director's Determination does not constitute a Final Agency Decision and it is not subject to judicial review, pursuant to
14 CFR § 16.247(b)(2). Because the Company is not a party to the Part 16 Proceeding, the Company would not be considered "a
party adversely affected by the Director's Determination" with a right of appeal to the FAA Assistant Administrator for Civil
Rights.
On August 7, 2019, the Company filed a response, advising the
U.S. District Court that: (i) the Company is not party to the FAA proceeding and therefore had no opportunity to present evidence
or otherwise be heard in such action; (ii) as non-party, the Company is not bound by the Director's Determination; and (iii) the
FAA cannot dictate the interpretation or enforceability of the contract between Cordial and the Company, which is the subject of
the U.S. District Court action initiated by Cordial and the New York State Court action initiated by the Company.
In re Chen et al.
In March 2015, four former XpresSpa employees
who worked at XpresSpa locations in John F. Kennedy International Airport and LaGuardia Airport filed a putative class and collective
action wage-hour litigation in the United States District Court, Eastern District of New York.
In re Chen et al.
, CV
15-1347 (E.D.N.Y.). Plaintiffs claim that they and other spa technicians around the country were misclassified as exempt commissioned
salespersons under Section 7(i) of the federal Fair Labor Standards Act (“FLSA”). Plaintiffs also assert class claims
for unpaid overtime on behalf of New York spa technicians under the New York Labor Law, and discriminatory employment practices
under New York State and City laws. On July 1, 2015, the plaintiffs moved to have the court authorize notice of the FLSA misclassification
claim sent to all employees in the spa technician job classification at XpresSpa locations around the country in the last three
years. Defendants opposed the motion. On February 16, 2016, the Magistrate Judge assigned to the case issued a Report & Recommendation,
recommending that the District Court Judge grant the plaintiffs’ motion. On March 1, 2016, the defendants filed Opposition
to the Magistrate Judge’s Report & Recommendation, arguing that the District Court Judge should reject the Magistrate
Judge’s findings. On September 23, 2016, the court ruled in favor of the plaintiffs and conditionally certified the class.
The parties held a mediation on February 28, 2017 and reached an agreement on a settlement in principle. On September 6, 2017,
the parties entered into a settlement agreement. On September 15, 2017, the parties filed a motion for settlement approval with
the Court. XpresSpa subsequently paid the agreed-upon settlement amount to the settlement claims administrator to be held in escrow
pending a fairness hearing and final approval by the Court. On March 30, 2018, the Court entered a Memorandum and Order denying
the motion without prejudice to renewal due to questions and concerns the Court had about certain settlement terms. On April
24, 2018, the parties jointly submitted a supplemental letter to the Court advocating for the fairness and adequacy of the settlement
and appeared in Court on April 25, 2018 for a hearing to discuss the settlement terms in greater detail with the assigned Magistrate
Judge. At the conclusion of the hearing, the Court still had questions about the adequacy and fairness of the settlement terms,
and the Judge asked that the parties jointly submit additional information to the Court addressing the open issues. The parties
submitted such information to the Court on May 18, 2018 and are awaiting the Court’s ruling on the open issues.
Binn v. FORM Holdings Corp. et al.
On November 6, 2017, Moreton Binn and Marisol
F, LLC, former stockholders of XpresSpa, filed a lawsuit against FORM Holdings Corp. (“FORM) and its directors in the United
States District Court for the Southern District of New York. The lawsuit alleged violations of various sections of the Securities
Exchange Act of 1934 (“Exchange Act”), material omissions and misrepresentations (negligent and fraudulent), fraudulent
omission, expropriation, breach of fiduciary duties, aiding and abetting, and unjust enrichment in the defendants’ conduct
related to the Company’s acquisition of XpresSpa, and sought rescission of the transaction, damages, equitable and injunctive
relief, fees and costs, and various other relief. On January 17, 2018, the defendants filed a motion to dismiss the complaint.
On February 7, 2018, the plaintiffs amended their complaint. On February 28, 2018, the defendants filed a motion to dismiss the
amended complaint. By March 30, 2018, the motion to dismiss was fully briefed. On August 7, 2018, the Court ruled on the defendants’
motion, dismissing eight of the plaintiffs’ ten claims and denying the defendants’ motion to dismiss with respect to
the two remaining claims, related to the Exchange Act. On October 30, 2018, the Court ordered that the plaintiffs could file an
amended complaint, and, in response, the defendants could move for summary judgment. Consistent with the Court’s Order, on
November 16, 2018, the plaintiffs filed a second amended complaint, modifying their allegations, and asserting claims pursuant
to the Exchange Act and the Securities Act of 1933, as well as bringing a breach of contract claim. On December 17, 2018, the defendants
filed a motion for summary judgment seeking dismissal of all claims. On February 1, 2019, the plaintiffs opposed defendant’s
motion, requested discovery and cross-moved for partial summary judgement filed an opposition to defendants’ motion and a
counter motion for partial summary judgment. Defendants summary judgement motion and plaintiff’s cross-motion for partial
summary judgment were fully briefed as of March 15, 2019. On April 29, 2019, an emergency hearing was held before the Court in
which the plaintiff sought a temporary restraining order and preliminary injunction to preclude acceleration of the maturity on
the Senior Secured Note. The Court entered a temporary restraining order, while allowing parties the opportunity to brief the issue.
On May 21, 2019, the Court granted the
defendant’s motion for summary judgement in full, dismissing all claims in the action. On July 3, 2019, the plaintiffs filed
a notice of appeal in the United States Court of Appeals for the second circuit. The Company and its directors continue to believe
that this action is without merit and intend to defend the appeal vigorously. On July 1, 2019, the Court held oral argument on
Binn’s motion for preliminary injunction. After hearing argument by both sides, the Court deferred action and ordered that
the temporary restraining order remain in place. On July 23, 2019, the Court denied the plaintiffs’ request for a preliminary
injunction and vacated the temporary restraining order.
Kainz v. FORM Holdings Corp. et al.
On March 20, 2019, a second suit was commenced
in the United States District Court for the Southern District of New York against FORM, seven of its directors and former directors,
as well as a managing director of Mistral Equity Partners (“Mistral”). The individual plaintiff, a shareholder of XpresSpa
Holdings, LLC at the time of the merger in December 2016, alleges that the defendants violated Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 by making false statements concerning,
inter alia,
the merger and the independence of FORM’s
board of directors, violated Section 12(2) of the Securities Act of 1933, breached the merger agreement by making false and misleading
statements concerning the merger and fraudulently induced the plaintiff into signing the joinder agreement related to the merger.
On May 8, 2019, the Company and its directors and the managing director of Mistral filed a motion to dismiss the complaint. On
June 5, 2019, plaintiffs opposed the motion and filed a cross-motion for a partial stay. Defendants’ motion to dismiss was
fully briefed as of June 19, 2019
Binn, et al. v. Bernstein et al.
On June 3, 2019, a third suit was
commenced in the United States District Court for the Southern District of New York against FORM, five of its directors, as
well as Rockmore, the Company’s previous senior secured lender and a senior executive of the lender. Although this
action is brought by Morten Binn and Marisol F, LLC, it is asserted derivatively on behalf of the Company. Plaintiffs assert
eight causes of action, including that certain individual defendants violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, by making false statements concerning,
inter alia,
the merger and the independence of
FORM’s board of directors and the valuation of the Company’s lease portfolio. Plaintiffs also assert common law
claims for breach of fiduciary duty, corporate waste, unjust enrichment, faithless servant doctrine, and aiding and abetting
certain of the directors’ alleged breaches of fiduciary duty. The Company and its directors believe that this action is
without merit and intend to file a motion to dismiss and defend the action vigorously.
Route1
On or about May 23, 2018, Route1 Inc.,
Route1 Security Corporation (together, “Route1”) and Group Mobile Int’l, LLC (“Group Mobile”) commenced
a legal proceeding against the Company in the Ontario Superior Court of Justice.
Route1 and Group Mobile seek damages in
relation to alleged breaches of a Membership Purchase Agreement entered into between Route1 and the Company on or about March 7,
2018, pursuant to which Route1 acquired the Company’s 100% membership interest in Group Mobile. All capitalized terms not
otherwise defined herein have the meanings ascribed to them in the Agreement.
The Plaintiffs allege that the Company:
(i) failed to ensure all Tax Returns were true, correct and compliant in all respects and that all Taxes had been paid in full;
(ii) failed to ensure that all inventory of Group Mobile had been priced in accordance with GAAP (“generally accepted accounting
principles”) and consisted of a quality and quantity that was materially usable and salable in the Ordinary Course of Business;
(iii) failed to ensure that Group Mobile’s Most Recent Balance Sheet was materially complete and correct and prepared in
accordance with GAAP; (iv) failed to record all liabilities on Group Mobile’s Most Recent Balance Sheet; and (v) failed to
deliver the agreed upon amount of Net Working Capital, and/or pay the Shortfall, to Route1.The litigation is at an early stage,
and it is not yet possible to assess the likelihood of success and/or liability.
Rodger Jenkins v. XpresSpa Group, Inc.
In March 2019, Rodger Jenkins filed a lawsuit
against the Company in the United States District Court for the Southern District of New York. The lawsuit alleges breach of contract
of the stock purchase agreement related to the Company’s acquisition of Excalibur Integrated Systems, Inc. and seeks specific
performance, compensatory damages and other fees, expenses and costs.
The Company has denied the material allegations
of the complaint and is currently defending the action. At this stage, we are unable to predict the outcome of this litigation.
Intellectual Property and Other Matters
The Company is engaged in litigation related
to certain of the intellectual property that it owns, for which no liability is recorded, as the Company does not expect a material
negative outcome.
In addition to those matters specifically
set forth herein, the Company and its subsidiaries are involved in various other claims and legal actions that arise in the ordinary
course of business. The Company does not believe that the ultimate resolution of these actions will have a material adverse effect
on the Company’s financial position, results of operations, liquidity, or capital resources. However, a significant increase
in the number of these claims, or one or more successful claims under which the Company incurs greater liabilities than the Company
currently anticipates, could materially adversely affect the Company’s business, financial condition, results of operations
and cash flows.
In the event that an action is brought
against the Company or one of its subsidiaries, the Company will investigate the allegation and vigorously defend itself.
Note 16. Subsequent Events
Calm Private Placement
On July 8, 2019, the Company entered into
a securities purchase agreement (the “Calm Purchase Agreement”) with Calm.com, Inc. (“Calm”) pursuant to
which the Company agreed to sell (i) an aggregate principal amount of $2,500 in 5.00% unsecured convertible Notes due 2022 (the
“Calm Notes”), which will be convertible into shares of Series E Convertible Preferred Stock (the “Series E Preferred
Stock”) and (ii) warrants to purchase 937,500 shares of the Company’s common stock, par value $0.01 per share (the
“Common Stock”), at an exercise price of $2.00 per share (the “Calm Warrants”) (collectively, the “Calm
Private Placement”).
The Company received $2,500 in gross proceeds
from the Calm Private Placement.
Notes and Warrants
The Calm Notes are the unsecured subordinated
obligations of the Company. Unless earlier converted or redeemed, the Calm Notes will mature on May 31, 2022. The Calm Notes bear
interest at a rate of 5% per annum, subject to increase in the event of default to the lesser of 18% per annum or the maximum rate
permitted under applicable law. The Calm Notes are convertible at any time until the Calm Notes are no longer outstanding, in whole
or in part, at the option of Calm into shares of Series E Preferred Stock at a conversion price equal to $3.10 per share, except
that no shares of Series E Preferred Stock may be issued as payment of interest or in connection with anti-dilution protection
or voluntary reduction of the conversion price until receipt of Shareholder Approval. Interest on the Calm Notes is payable in
arrears beginning on the last day of each February, May, August and November during the period beginning on the original issuance
date and ending on, and including, the maturity date, when all amounts outstanding under the Calm Notes become due and payable
in cash. The Company may elect to pay interest in cash, shares of Series E Preferred Stock or a combination thereof.
The Calm Warrants entitle Calm to purchase
an aggregate of 937,500 shares of Common Stock. The Calm Warrants are exercisable beginning six months from the date of issuance,
have a term of five years and feature an exercise price equal to $2.00 per share.
Calm Collaboration Agreement
On July 8, 2019, the Company entered into
an Amended and Restated Product Sale and Marketing Agreement with Calm (the “Amended and Restated Collaboration Agreement”),
which replaced the parties’ previous Product Sale and Marketing Agreement, dated as of November 12, 2018. The Amended and
Restated Collaboration Agreement primarily relates to the display, marketing, promotion, offer for sale and sale of Calm’s
products in each of the Company’s branded stores throughout the United States. The Amended and Restated Collaboration Agreement
will remain in effect until July 31, 2021, unless terminated earlier in accordance with the Amended and Restated Collaboration
Agreement, and automatically renews for successive terms of six months unless either party provides written notice of termination
no later than thirty days prior to any such automatic renewal of the Amended and Restated Collaboration Agreement.
Amendment to Certificate of Designation
of Series E Convertible Preferred Stock
On July 8, 2019, the Company filed a certificate
of amendment to the Certificate of Designation of Series E Convertible Preferred Stock (the “Series E COD Amendment”)
with the State of Delaware to (i) increase the number of authorized shares of Series E Preferred to 2,397,060 and (ii) upon receipt
of Shareholder Approval, reduce the conversion price to $2.00. The Series E COD Amendment was approved by the Board of Directors
of the Company. The Company intends to seek Shareholder Approval of the Series E COD Amendment.
B3D Transaction
On July 8, 2019, the Company entered into
a fourth amendment (the “Credit Agreement Amendment”) to its existing Credit Agreement with B3D, LLC (“B3D”)
in order to, among other provisions, (i) extend the maturity date to May 31, 2021, (ii) reduce the applicable interest rate to
9.0%, and (iii) amend and restate the Senior Secured Note in order to increase the principal amount owed to B3D to $7.0 million,
which principal and any interest accrued thereon will be convertible, at B3D’s option, into Common Stock subject to receipt
of Shareholder Approval (the “B3D Notes”) (together, the “B3D Transaction”).
B3D Notes
The B3D Notes are the senior secured obligations
of the Company, secured by the personal property of the Company and its subsidiaries. Unless earlier converted or redeemed, the
B3D Notes will mature on May 31, 2021. The B3D Notes bear interest at a rate of 9.00% per annum, calculated on a monthly basis.
Interest only is payable in arrears on the last business date of each month (the “Monthly Interest”). Notwithstanding
the foregoing, until the earlier of (i) ninety days from the date of the Credit Agreement Amendment or (ii) the date upon which
Shareholder Approval is received (the “Interest Deferment Date”), the Monthly Interest will continue to accrue, will
be compounded monthly, and all unpaid amounts thereof will be due and payable on the Interest Deferment Date. At the option of
the Company, all or any portion of the Monthly Interest that is payable (i) on the Interest Deferment Date or (ii) after the Interest
Deferment Date, but not more than twenty-one days and not less than five trading days prior to the date on which each payment of
Monthly Interest is due, may be paid in shares of Common Stock. At any time after receipt of Shareholder Approval until the B3D
Notes are no longer outstanding, all or any portion of the outstanding principal amount of the B3D Notes, plus any accrued and
unpaid interest thereon, shall be convertible into Common Stock at the option of B3D at a conversion price equal to $2.00 per share.
Series D Amendment and December 2016
Warrant Amendment
Amendment to Certificate of Designation
of Series D Convertible Preferred Stock
On July 8, 2019, the Company filed a certificate
of amendment to the Certificate of Designation of Series D Convertible Preferred Stock (the “Series D COD Amendment”)
with the State of Delaware to, upon receipt of Shareholder Approval, reduce the conversion price to $2.00 and provide for automatic
conversion of the Series D Convertible Preferred Stock into shares of Common Stock. The Series D COD Amendment was approved by
the Company Board. The Company intends to seek Shareholder Approval of the Series D COD Amendment.
December 2016 Warrant Amendment
On July 8, 2019, the Company entered into
an amendment to certain outstanding warrants issued in December 2016 to the holders of its Series D Convertible Preferred Stock
(the “December 2016 Warrant Amendment”) to provide for (i) a reduction in the exercise price to $2.00, (ii) certain
anti-dilution price protection and (iii) voluntary reduction of the exercise price by the Company in its discretion. The Company
intends to seek Shareholder Approval in connection with the December 2016 Warrant Amendment.
May 2018 SPA Amendment, Series F
Preferred Stock and Series B Preferred Stock
May 2018 SPA Amendment
On July 8, 2019, the Company entered into
an amendment (the “May 2018 SPA Amendment”) to that certain Securities Purchase Agreement, dated as of May 15, 2018,
by and between the Company and the purchasers party thereto (the “May 2018 SPA”), to provide for, among other provisions,
(i) an update to certain definitions, including the definition of an “Exempt Issuance,” (ii) the waiver of certain
provisions regarding restrictions on subsequent equity sales and participation in subsequent financings, and the removal of certain
such provisions upon receipt of Shareholder Approval, (iii) the amendment to certain provisions of the Class A Warrants issued
pursuant to the May 2018 SPA to modify certain provisions in connection with a Notice Failure (as such term is defined in the Class
A Warrants), and to reduce the exercise price of the Class A Warrants issuable pursuant to anti-dilution price protection contained
in such Class A Warrants to $2.00 per share following receipt of Shareholder Approval (iv) the cancellation of all outstanding
Class B Warrants and (v) the establishment of a new class of preferred stock, to be designated Series F Convertible Preferred Stock,
par value $0.01 per share (the “Series F Preferred Stock”) and the issuance of 9,000 shares of such Series F Preferred
Stock to the parties to the May 2018 SPA Amendment, which will be convertible into Common Stock upon receipt of Shareholder Approval.
Certificate of Designation of Series
F Preferred Stock
In connection with the May 2018 SPA Amendment,
on July 8, 2019, the Company filed with the Secretary of State of the State of Delaware a Certificate of Designation of Preferences,
Rights and Limitations of Series F Convertible Preferred Stock (the “Series F Certificate of Designation”) establishing
and designating the rights, powers and preferences of the Series F Preferred Stock. The Company designated 9,000 shares of Series
F Preferred Stock.
Certificate of Elimination of Series
B Preferred Stock
On July 8, 2019, the Company filed a Certificate
of Elimination of Shares of Series B Preferred Stock (the “Certificate of Elimination”) to the Company’s
amended and restated certificate of incorporation. The Certificate of Elimination reduced, pursuant to Section 151(g) of the Delaware
General Corporation Law, the number of authorized shares of Series B Convertible Preferred Stock of the Company, par
value $0.01 per share (the “Series B Preferred Stock”) from
1,609,167
shares
of Series B Preferred Stock to zero shares of Series B Preferred Stock, the number of shares of Series B Preferred Stock issued
and outstanding as of July 8, 2019. Pursuant to the provisions of Section 151(g) of the Delaware General Corporation Law, the
1,609,167
authorized shares
of Series B Preferred Stock eliminated pursuant to the reduction return to the available undesignated preferred stock of
the Company and may be re-designated into another series of preferred stock.