Securities Registration: Employee Benefit Plan (s-8)
March 19 2021 - 4:30PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on March 19, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
XpresSpa
Group, Inc.
(Exact name of registrant as specified in
its charter)
Delaware
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20-4988129
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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254 West 31st Street, 11th Floor
New York, New York 10001
(212) 309-7549
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
XpresSpa Group, Inc. 2020 Equity Incentive
Plan
(Full title of the plans)
Douglas Satzman
Chief Executive Officer
XpresSpa Group, Inc.
254 West 31st Street, 11th Floor
New York, New York 10001
(212) 309-7549
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
Robert J. Endicott, Esq.
Kenneth L. Henderson, Esq.
Bryan Cave Leighton Paisner LLP
211 North Broadway, Suite 3600
St. Louis, Missouri 63102-2750
(314) 259-2000
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and "emerging
growth company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer ¨
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Accelerated filer ¨
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Non-accelerated filer x
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Smaller reporting company x
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Emerging
growth company ¨
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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 7(a)(2)(B) of the Securities Act.
¨
CALCULATION OF REGISTRATION FEE
Title of securities
to be registered
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Amount to
be registered (1)
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Proposed maximum offering
price per share
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Proposed maximum aggregate
offering price
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Amount of
registration fee
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Common Stock, $0.01 par value
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5,705,239 shares (2)
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$2.07 (3)
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$11,809,844.73 (3)
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$1,288.46
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”),
this Registration Statement shall also cover an indeterminate number of additional shares of the Registrant’s common stock,
par value $0.01 per share (the “Common Stock”), that becomes issuable under the XpresSpa Group, Inc. 2020 Equity Incentive
Plan by reason of any stock splits, stock dividends, recapitalization or other similar transactions.
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(2)
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Represents (i) 5,000,000 shares of Common Stock (the “2020 Share Reserve”) reserved for issuance under the XpresSpa
Group, Inc. 2020 Equity Incentive Plan (the “2020 Plan”), plus (ii) shares that are subject to awards issued under
the 2012 Employee, Director and Consultant Equity Incentive Plan on the effective date of the 2020 Plan (the “2012 Plan”),
that on or after the effective date of the 2020 Plan cease to be subject to such awards due to the forfeiture, expiration or settlement
in cash of such awards or the reacquisition of such awards by the registrant. The number of shares of Common Stock registered by
this registration statement has been determined for purposes of calculating the amount of the registration fee and reflects the
maximum number of shares underlying awards issued pursuant to the 2012 Plan that could be added to the 2020 Share Reserve and issued
under the 2020 Plan, subject to adjustment as set forth in the 2020 Plan. However, the actual number of shares to be issued under
the 2020 Plan may be significantly less than the reported amount depending on, among other variables, the actual number of recycled
2012 Plan shares.
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(3)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h)
under the Securities Act and based upon the average of the high and low prices of the Company’s Common Stock as reported
by the Nasdaq Stock Market LLC on March 16, 2021.
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EXPLANATORY NOTE
At the 2020 Annual Meeting
of Stockholders of XpresSpa Group, Inc. (the “Registrant”) held on October 28, 2020, the Registrant’s stockholders
approved and adopted the XpresSpa Group, Inc. 2020 Equity Incentive Plan (the “2020 Plan”), which authorizes the issuance
of 5,000,000 shares of the Registrant’s common stock, par value $0.01 per share (the “Common Stock”), plus shares
of Common Stock subject to outstanding awards made under the 2012 Employee, Director and Consultant Equity Incentive Plan, as amended
(the “2012 Plan”), that on or after the effective date of the 2020 Plan may be forfeited, settled in cash or cancelled
or expire or are reacquired by the Registrant. By this Registration Statement, the Registrant hereby registers 705,239 shares of
Common Stock, which reflects the maximum shares of Common Stock underlying awards issued pursuant to the 2012 Plan that could be
issued under the 2020 Plan, subject to adjustment as set forth in the 2020 Plan. The actual number of shares to be issued under
the 2020 Plan may be significantly less than the maximum amount depending on, among other variables, the actual number of recycled
2012 Plan shares.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
As permitted by the rules of the Securities
Exchange Commission (“SEC”), this Registration Statement omits the information specified in Part I of Form S-8. The
documents containing the information specified in Part I of this Registration Statement will be sent or given to eligible employees
as specified by Rule 428(b) promulgated under the Securities Act. Such documents are not being filed with the SEC either as part
of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 promulgated under the Securities
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents
listed in (a) through (e) below, which are on file with the SEC, are incorporated herein by reference (except for the portions
of the Company’s Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 thereof or otherwise not filed
with the SEC which are deemed not to be incorporated by reference into this Registration Statement):
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(b)
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The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2020, filed with the SEC on July 6, 2020, June 30, 2020, filed with the SEC on August 19, 2020, and September 30, 2020, filed with the SEC on November 16, 2020 (File No. 001-34785);
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(c)
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The Registrant’s Current Reports on Form 8-K filed with the SEC on January 3, 2020, January 14, 2020, February 3, 2020, March 6, 2020, March 19, 2020, March 26, 2020, March 30, 2020 (two filings), April 6, 2020, April 7, 2020, April 17, 2020, April 24, 2020, April 28, 2020, May 6, 2020, May 7, 2020, May 11, 2020, May 22, 2020, May 29, 2020, June 4, 2020, June 10, 2020, June 17, 2020, August 11, 2020, August 13, 2020, August 26, 2020, August 28, 2020, September 28, 2020,
October 6, 2020, October 9, 2020, October 26, 2020, October 28, 2020, October 30, December 4, 2020, December 17, 2020 (two filings),
December 21, 2020 and January 22, 2021 (File No. 001-34785); and
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In addition, all documents subsequently
filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than those made
pursuant to Item 2.02 or Item 7.01 of Form 8-K or other information “furnished” to the Commission) prior to the filing
of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the
date of filing of such documents. These documents include periodic reports, such as Proxy Statements, Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K (other than the portions of those documents not deemed to be
filed, which is deemed not to be incorporated by reference in this Registration Statement). Any statement contained in a document
incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such statement.
Item 4. Description of Securities.
The securities to be offered
are registered under Section 12 of the Exchange Act and, accordingly, no description is provided hereunder.
Item 5. Interests of Named Experts and
Counsel.
Not applicable.
Item 6. Indemnification of Directors and
Officers.
Subsection (a) of Section 145 of the General
Corporation Law of Delaware (the “DGCL”) empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director,
employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action,
suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests
of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 of the DGCL
empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification may be
made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 145 of the DGCL further provides
that to the extent a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in the
defense of any action, suit or proceeding referred to in subsections (a) and (b) or in the defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in
connection therewith; that indemnification or advancement of expenses provided for by Section 145 shall not be deemed exclusive
of any other rights to which the indemnified party may be entitled; and empowers the corporation to purchase and maintain insurance
on behalf of a director, officer, employee or agent of the corporation against any liability asserted against him or incurred by
him in any such capacity or arising out of his status as such whether or not the corporation would have the power to indemnify
him against such liabilities under Section 145.
Reference is also made to Section
102(b)(7) of the DGCL, which enables a corporation in its certificate of incorporation to eliminate or limit the personal
liability of a director for monetary damages for violations of a director’s fiduciary duty, except for liability (i)
for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL
(providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions) or (iv)
for any transaction from which the director derived an improper personal benefit.
Our certificate of incorporation, as amended,
provides that a director shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of his or her duty of loyalty to the Company or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (under Section
174 of the DGCL or (iv) for any transaction from which the director derives an improper personal benefit. Article V of our amended
and restated by-laws provides that we shall indemnify our directors and officers, or former directors and officers, against any
and all expenses and liabilities, to the fullest extent permitted by the DGCL.
We have entered into agreements to indemnify
our directors and officers. These agreements, among other things, will indemnify and advance expenses to our directors and officers
for all expenses, including, but not limited to, attorney’s fees, witness fees, damages, judgments, fines and settlement
amounts incurred by any such person in any action or proceeding, including any action by us arising out of such person’s
services as our director or officer, or any other company or enterprise to which the person provides services at our request.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits
are filed herewith or incorporated by reference into this registration statement on Form S-8.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3)
of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in the registration statement or any material change to such information in
the registration statement.
provided, however, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the Commission by registrant pursuant to Section 13 and Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to section
13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director officer or controlling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, New York, on March 19, 2021.
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XpresSpa Group, Inc.
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By:
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/s/ Douglas Saztman
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Douglas Satzman
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Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each
of the undersigned directors and officers of XpresSpa Group, Inc. constitutes and appoints Douglas Satzman his or her true and
lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration
statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, with full power to act alone, full power and authority to
do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents
and purposes as he or she might or could do in person, and hereby ratifying and confirming all that the said attorney-in-fact and
agent, or his substitute or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature
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Title(s)
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Date
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/s/ Douglas Satzman
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Chief Executive Officer and Director )
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March 19, 2021
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Douglas Satzman
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(Principal Executive Officer
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/s/ James A. Berry
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Chief Financial Officer
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March 19, 2021
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James A. Berry
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(Principal Financial Officer and Principal Accounting Officer)
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/s/ Bruce T. Bernstein
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Director, Chairman of the Board of Directors
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March 19, 2021
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Bruce T. Bernstein
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/s/ Robert Weinstein
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Director
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March 19, 2021
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Robert Weinstein
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/s/ Donald E. Stout
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Director
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March 19, 2021
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Donald E. Stout
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/s/ Michael Lebowitz
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Director
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March 19, 2021
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Michael Lebowitz
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