Current Report Filing (8-k)
October 03 2019 - 6:03AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d)
of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): October 1, 2019
XPRESSPA
GROUP, INC.
(Exact Name of Registrant as Specified
in its Charter)
Delaware
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001-34785
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20-4988129
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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780 Third Avenue, 12th Floor
New York, New York 10017
(Address of Principal Executive Offices
and Zip Code)
Registrant’s telephone number,
including area code: (646) 525-4319
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common stock,
par value $0.01 per share
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XSPA
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The Nasdaq Stock Market
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Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of
the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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¨
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Emerging
growth company
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¨
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
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Item 1.01
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Entry into a Material Definitive Agreement
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On
October 1, 2019, XpresSpa Group, Inc. (the “Company”) entered into Amendment No. 3 (the “Amendment”)
to that certain Agreement and Plan of Merger (the “Merger Agreement”), by and among the Company (formerly known
as FORM Holdings Corp.), XpresSpa Holdings, LLC (“XSPA Holdings”) and Mistral XH Representative, LLC, as
representative of the unitholders of XSPA Holdings, dated as of August 8, 2016, as subsequently amended. The Amendment
provides, among other things, for the release from escrow of (i) certain shares of the Company’s Series D Convertible
Preferred Stock, par value $0.01 per share (the “Series D Preferred Stock”), to the unitholders of XSPA Holdings
and (ii) certain shares of Series D Preferred Stock to the Company in satisfaction of certain indemnification claims in
connection with the Merger Agreement. The foregoing description of the Amendment does not purport to be complete and is
subject to and qualified in its entirety by reference to the full text of the document, which is attached hereto as Exhibit
10.1 and incorporated by reference herein.
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Item 5.07.
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Submission of Matters to a Vote of Security Holders.
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(a) On
October 2, 2019, the Company held its 2019 annual meeting of stockholders (the “Annual Meeting”). At the Annual Meeting,
a quorum of 2,786,012 shares, or 83.68%, of the outstanding shares of the Company entitled to vote as of the record date of August
1, 2019, were present in person or represented by proxy. The total voting shares present in person or represented by proxy includes
holders of the Company's common stock, holders of the Company's Series D Preferred Stock and holders of the Company's Series E Convertible
Preferred Stock.
(b) The
following actions were taken in the Annual Meeting:
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(1)
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The following
four nominees were elected or reelected to serve on the board of directors (the “Board”)
until the Company’s 2020 annual meeting of stockholders or until their respective
successors have been elected and qualified, or until their earlier resignation or removal:
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Name of Director Nominees
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Votes For
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Votes Withheld
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Broker Non-Vote
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Douglas Satzman
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1,742,799
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249,205
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794,008
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Bruce T. Bernstein
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1,542,401
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449,603
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794,008
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Donald E. Stout
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1,583,753
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408,251
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794,008
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Salvatore Giardina
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1,588,305
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403,699
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794,008
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(2)
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The selection of CohnReznik LLP as the Company’s
independent registered public accounting firm for the fiscal year ending December 31, 2019, was ratified, based on the following
votes:
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Votes For
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Votes Against
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Votes Abstain
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Broker Non-Vote
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2,613,549
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168,755
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3,708
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0
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(3)
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The proposal to authorize, for purposes of complying
with Nasdaq Listing Rule 5635(a), 5635(b) and 5635(d), the issuance of shares of the Company’s common stock underlying
the instruments below (including upon the operation of anti-dilution provisions, voluntary adjustment provisions
and/or the reduction of conversion ratios):
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a.
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the Series F Convertible Preferred Stock issued by the Company pursuant to that certain
Amendment to Securities Purchase Agreement and Class A Warrants and Class B Warrants, dated as of July 8, 2019
(the “May 2018 SPA Amendment”);
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b.
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the amendment to the Class A Warrants pursuant to the May 2018 SPA Amendment;
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c.
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notes, warrants and Series E Convertible Preferred Stock issued by the Company pursuant
to that certain Securities Purchase Agreement, dated as of July 8, 2019, by and between the Company and Calm.com, Inc.;
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d.
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the convertible note issued by the Company pursuant to that certain Fourth Amendment to Credit Agreement,
dated as of July 8, 2019, by and between XSPA Holdings and B3D, LLC;
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e.
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warrants issued by the Company pursuant to that certain amendment to certain outstanding warrants issued
in December 2016 to holders of Series D Preferred Stock; and
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f.
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the Series D Preferred Stock issued by the Company pursuant to that certain
certificate of amendment to the Certificate of Designation of Preferences, Rights and Limitations of the Series D
Preferred Stock.
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Votes For
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Votes Against
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Votes Abstain
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Broker Non-Vote
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1,863,137
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120,374
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8,493
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794,008
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(4)
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The proposal to approve an amendment to the XpresSpa
Group, Inc. Amended and Restated Certificate of Incorporation to increase the number of authorized shares of the Company’s
preferred stock to 10,000,000 shares from 5,000,000, was approved, based on the following votes:
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Votes For
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Votes Against
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Votes Abstain
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Broker Non-Vote
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1,681,155
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310,728
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121
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794,008
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(5)
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The proposal to approve an amendment to the XpresSpa
Group, Inc. 2012 Employee, Director and Consultant Equity Incentive Plan (the “Plan”) to increase the number of shares
authorized under the Plan by 2,165,000 shares, was approved, based on the following votes:
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Votes For
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Votes Against
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Votes Abstain
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Broker Non-Vote
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1,693,650
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290,441
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7,913
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794,008
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(6)
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The proposal to approve an amendment to the XpresSpa
Group, Inc. Amended and Restated Certificate of Incorporation to effect a reverse stock split of the Company’s issued and
outstanding shares of common stock, at a ratio of between 1-for-2 and 1-for-25, was approved, based on the following votes:
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Votes For
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Votes Against
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Votes Abstain
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Broker Non-Vote
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2,308,618
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471,975
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5,419
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794,008
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(7)
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The compensation of the Company’s named executive
officers, as disclosed in the Company’s proxy statement, was approved by an advisory vote, based on the following votes:
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Votes For
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Votes Against
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Votes Abstain
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Broker Non-Vote
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1,816,178
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153,590
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22,236
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794,008
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(8)
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The frequency of holding an advisory vote on the compensation
of the Company’s named executive officers, as disclosed in the Company’s proxy statement, was approved by an advisory
vote, based on the following votes:
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1 Year
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2 Years
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3 Years
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Votes Abstain
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Broker Non-Vote
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1,883,580
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14,070
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29,259
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65,095
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794,008
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(9)
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The election of Andrew R. Heyer by the holders of Series
D Preferred Stock to serve on the Board until the Company’s 2020 annual meeting of stockholders or until his respective
successor has been elected and qualified, or until their earlier resignation or removal:
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Votes For
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Votes Against
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Votes Abstain
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Broker Non-Vote
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161,891
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0
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0
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0
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(10)
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The proposal to adjourn the Annual Meeting, if necessary,
to solicit additional proxies if there are not sufficient votes in favor of the foregoing proposals was approved, based on the
following votes:
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Votes For
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Votes Against
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Votes Abstain
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Broker Non-Vote
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2,382,978
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372,174
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30,860
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794,008
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In connection with the approval by the Company’s stockholders of Proposal 3 as described above,
all issued and outstanding shares of the Company’s Series D Preferred Stock were converted into shares of
the Company’s common stock pursuant to Section 6.3.4 of the Certificate of Designation of Preferences, Rights and Limitations
of the Series D Preferred Stock, as amended on July 8, 2019, except to the extent that any holder of Series D Preferred Stock would otherwise beneficially own in excess any beneficial
ownership limitation applicable to such holder after giving effect to the conversion, in which case such holder’s Series
D Preferred Stock converts automatically into warrants to purchase the number of shares of the Company’s common stock
equal to the number of shares of common stock into which the holder’s Series D Preferred Stock would otherwise have
converted. After giving effect to such conversion, the Company
has 13,881,448 shares of common stock outstanding.
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Item 9.01
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Financial Statements and Exhibits
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SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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XPRESSPA GROUP, INC.
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Dated: October 2, 2019
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By:
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/s/ Douglas Satzman
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Name:
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Douglas Satzman
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Title:
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Chief Executive Officer
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