SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Amendment No. )
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780 Third Avenue, 12th Floor
New York, New York 10017
[ ], 2019
780 Third Avenue, 12th Floor
New York, New York 10017
[ ], 2019
A.M. EDT
PURPOSES:
Chief Executive Officer
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APPENDIX
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PRELIMINARY COPIES FILED PURSUANT TO RULE 14a-6(a)
780 Third Avenue, 12th Floor
New York, New York 10017
ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON SEPTEMBER 9, 2019
Nasdaq Listing Rule 5635(d) generally requires us to obtain stockholder approval prior to issuing more than 20% of our outstanding shares of Common Stock under a financing transaction. We are seeking the approval of our stockholders pursuant to Nasdaq Listing Rule 5635(d) with respect to issuances involving our Class A Warrants, Series F Preferred Stock, Calm Note, Calm Warrant, Series E COD Amendment and B3D Note. Nasdaq Listing Rule 5635(a) generally requires us to obtain stockholder approval prior to issuing more than 20% of our outstanding shares of Common Stock in connection with the acquisition of stock or assets of another company. Because the Series D Preferred Stock and December 2016 Warrants were originally issued in connection with our acquisition of XpresSpa Holdings, LLC, we are seeking the approval of our stockholders pursuant to Nasdaq Listing Rule 5635(a) with respect to issuances involving our Series D Preferred Stock and December 2016 Warrants.
For more information, see “Proposal 6: Reverse Stock Split” contained elsewhere in this proxy statement.
| Proposal 1: Election of Directors | | | The four nominees for director who receive the most votes (also known as a “plurality” of the votes cast) will be elected. You may vote either FOR all of the nominees, WITHHOLD your vote from all of the nominees or WITHHOLD your vote from any one or more of the nominees. Votes that are withheld will not be included in the vote tally for the election of the directors. Brokerage firms do not have authority to vote customers’ unvoted shares held by the firms in street name for the election of the directors. As a result, any shares not voted by a customer will be treated as a broker non-vote. Such broker non-votes will have no effect on the results of this vote. | |
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Proposal 2: Ratify Selection of Independent Registered Public Accounting Firm | | | The affirmative vote of the holders of a majority of the shares of Common Stock, Series D Preferred Stock voting on an as-converted basis and Series E Preferred Stock voting on an as-converted basis present and entitled to vote on the matter either in person or by proxy at the annual meeting is required to ratify the appointment of CohnReznick LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2019. Abstentions will be treated as votes against this proposal. Brokerage firms have authority to vote customers’ unvoted shares held by the firms in street name on this proposal. If a broker does not exercise this authority, such broker non-votes will have no effect on the results of this vote. We are not required to obtain the approval of our stockholders to select our independent registered public accounting firm. However, if our stockholders do not ratify the selection of CohnReznick LLP as our independent registered public accounting firm for 2019, our Audit Committee of our Board of Directors will reconsider its selection. | ||
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| Proposal 3: Issuance of Shares of Common Stock in Financing Transaction | | | The affirmative vote of the holders of a majority of the total votes cast in person or by proxy at the annual meeting is required to approve, in accordance with Nasdaq Listing Rules 5625(a), 5635(b) and 5635(d), the issuance of shares of our Common Stock as described in Proposal 3. Abstentions have no effect on this proposal. Brokerage firms do not have authority to vote customers’ unvoted shares held by the firms in street name on this proposal. As a result, any shares not voted by a customer will be treated as a broker non-vote. Such broker non-votes will have no effect on the results of this vote. | |
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| Proposal 4: Authorized Share Increase | | | The affirmative vote of the holders of a majority of the shares of our Common Stock, Series D Preferred Stock voting on an as-converted basis and Series E Preferred Stock voting on an as-converted basis having voting power outstanding on the Record Date is required to approve the amendment to our Amended and Restated Certificate of Incorporation to increase the number of our authorized shares of preferred stock. Abstentions will be treated as votes against this proposal. Brokerage firms do not have authority to vote customers’ unvoted shares held by the firms in street name on this proposal. As a result, any shares not voted by a customer will be treated as a broker non-vote. Such broker non-votes will have no effect on the results of this vote. |
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| Proposal 5: Approval of an Amendment to our 2012 Employee, Director and Consultant Equity Incentive Plan to increase the number of shares available thereunder by 2,165,000 shares | | | The affirmative vote of the holders of a majority of the shares of Common Stock, Series D Preferred Stock voting on an as-converted basis and Series E Preferred Stock voting on an as-converted basis present and entitled to vote on the matter either in person or by proxy at the annual meeting is required to approve the amendment to our 2012 Employee, Director and Consultant Equity Incentive Plan to increase the number of shares available thereunder by 2,165,000 shares. Abstentions will be treated as votes against this proposal. Brokerage firms do not have authority to vote customers’ unvoted shares held by the firms in street name on this proposal. As a result, any shares not voted by a customer will be treated as a broker non-vote. Such broker non-votes will have no effect on the results of this vote. | |
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| Proposal 6: Reverse Stock Split | | | The affirmative vote of the holders of a majority of the shares of our Common Stock, Series D Preferred Stock voting on an as-converted basis and Series E Preferred Stock voting on an as-converted basis having voting power outstanding on the Record Date is required to approve the amendment to our Amended and Restated Certificate of Incorporation to effect a reverse stock split of our Common Stock. Abstentions will be treated as votes against this proposal. Brokerage firms have authority to vote customers’ unvoted shares held by the firms in street name on this proposal. If a broker does not exercise this authority, such broker non-votes will have the same effect as a vote against such proposal. | |
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| Proposal 7: Approve an Advisory Vote on the Compensation of our Named Executive Officers | | | The affirmative vote of the holders of a majority of the shares of Common Stock, Series D Preferred Stock voting on an as-converted basis and Series E Preferred Stock voting on an as-converted basis present and entitled to vote on the matter either in person or by proxy at the annual meeting is required to approve, on an advisory basis, the compensation of our named executive officers, as described in this proxy statement. Abstentions will be treated as votes against this proposal. Brokerage firms do not have authority to vote customers’ unvoted shares held by the firms in street name on this proposal. As a result, any shares not voted by a customer will be treated as a broker non-vote. Such broker non-votes will have no effect on the results of this vote. Although the advisory vote is non-binding, the Compensation Committee and the Board of Directors will review the voting results and take them into consideration when making future decisions regarding executive compensation. | |
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| Proposal 8: Approve an Advisory Vote on the Frequency of Voting on the Compensation of our Named Executive Officers | | | The frequency of holding an advisory vote on the compensation of our named executive officers | |
| | | | when making future decisions regarding the frequency of voting on executive compensation. | |
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Proposal 9: Approve an Adjournment of the Annual Meeting, if Necessary, to Solicit Additional Proxies if there are not Sufficient Votes in Favor of Proposals 2 through 7. | | | Approval of the adjournment of the annual meeting, if necessary, to solicit additional proxies if there are not sufficient votes in favor of Proposals 2 through 7 requires the affirmative vote of the holders of a majority of the shares of Common Stock, Series D Preferred Stock voting on an as-converted basis and Series E Preferred Stock voting on an as-converted basis present and entitled to vote on the matter either in person or by proxy at the annual meeting. A “broker non-vote” or a failure to submit a proxy or vote at the annual meeting will have no effect on the outcome of the vote for this Proposal 9. For purposes of the vote on this Proposal 9, an abstention will have the same effect as a vote “AGAINST” such proposal. | ||
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| Preferred Stockholder Proposal: Election of Director by Series D Preferred Stockholders | | | The nominee for director who receives the most votes (also known as a “plurality” of the votes cast) will be elected. You may vote either FOR the nominee or WITHHOLD your vote from the nominee. Votes that are withheld will not be included in the vote tally for the election of the directors. Brokerage firms do not have authority to vote customers’ unvoted shares held by the firms in street name for the election of the directors. As a result, any shares not voted by a customer will be treated as a broker non-vote. Such broker non-votes will have no effect on the results of this vote. | |
What Constitutes a Quorum for the Annual Meeting?
Name and Address of Beneficial Owner(1) | Number of Shares of Common Stock Beneficially Owned | Percent of Shares of Common Stock Beneficially Owned | Number of Shares of Common Stock Underlying Series D Preferred Beneficially Owned | Percent of Shares of Common Stock Underlying Series D Preferred Beneficially Owned | Number of Shares of Common Stock Underlying Series E Preferred Beneficially Owned | Percent of Shares of Common Stock Underlying Series E Preferred Beneficially Owned | ||||||||||||||||||
Five percent or more beneficial owners: | ||||||||||||||||||||||||
Mistral Spa Holdings, LLC(2) | 8,235,902 | 74.6 | % | 8,049,973 | 71.8 | % | — | — | ||||||||||||||||
Alpha Capital Anstalt(3) | 181,451 | 4.99 | % | — | — | — | — | |||||||||||||||||
Calm.com, Inc.(4) | 443,547 | 13.20 | % | — | — | 443,547 | 100.00 | % | ||||||||||||||||
Directors and named executive officers: | ||||||||||||||||||||||||
Douglas Satzman | — | — | — | — | — | — | ||||||||||||||||||
Edward Jankowski | 16,281 | * | — | — | — | — | ||||||||||||||||||
Andrew Perlman | 28,928 | * | — | — | — | — | ||||||||||||||||||
Anastasia Nyrkovskaya | 10,320 | * | — | — | — | — | ||||||||||||||||||
Janine Canale | — | — | — | — | — | — | ||||||||||||||||||
Bruce T. Bernstein(5) | 1,367,200 | 32.3 | % | 1,311,387 | 11.7 | % | — | — | ||||||||||||||||
Donald E. Stout(6) | 17,232 | * | — | — | — | — | ||||||||||||||||||
Salvatore Giardina(7) | 11,500 | * | — | — | — | — | ||||||||||||||||||
Andrew R. Heyer(2)(8) | 8,249,152 | 74.6 | % | 8,049,973 | 71.8 | % | — | — | ||||||||||||||||
All current directors and officers as a group (5 individuals)(9): | 9,645,084 | 77.6 | % | 9,560,539 | 85.3 | % | — | — |
Name and Address of Beneficial Owner(1) | | | Number of Shares of Common Stock Beneficially Owned | | | Percent of Shares of Common Stock Beneficially Owned | | | Number of Shares of Common Stock Underlying Series D Preferred Beneficially Owned | | | Percent of Shares of Common Stock Underlying Series D Preferred Beneficially Owned | | | Number of Shares of Common Stock Underlying Series E Preferred Beneficially Owned | | | Percent of Shares of Common Stock Underlying Series E Preferred Beneficially Owned | | ||||||||||||||||||
Five percent or more beneficial owners: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Mistral Spa Holdings, LLC(2) | | | | | 319,929 | | | | | | 10.2% | | | | | | 120,750 | | | | | | 71.8% | | | | | | — | | | | | | — | | |
Calm.com, Inc.(3) | | | | | 443,547 | | | | | | 13.20% | | | | | | — | | | | | | — | | | | | | 443,547 | | | | | | 100.00% | | |
Directors and named executive officers: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Douglas Satzman | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Edward Jankowski | | | | | 16,281 | | | | | | * | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Andrew Perlman | | | | | 28,928 | | | | | | * | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Anastasia Nyrkovskaya | | | | | 10,320 | | | | | | * | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Janine Canale | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Bruce T. Bernstein(4) | | | | | 73,753 | | | | | | 2.5% | | | | | | 19,671 | | | | | | 11.6% | | | | | | — | | | | | | — | | |
Donald E. Stout(5) | | | | | 17,232 | | | | | | * | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Salvatore Giardina(6) | | | | | 11,500 | | | | | | * | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Andrew R. Heyer(2)(7) | | | | | 319,929 | | | | | | 10.2% | | | | | | 120,750 | | | | | | 71.8% | | | | | | — | | | | | | — | | |
All current directors and officers as a group (5 individuals)(8): | | | | | 422,414 | | | | | | 13.2% | | | | | | 140,421 | | | | | | 83.5% | | | | | | — | | | | | | — | | |
Name | | Age | | | Position(s) with the Company | | |
Doug Satzman | | | 45 | | | Chief Executive Officer and Director | |
Bruce T. Bernstein*(1)(2)(3) | | | 55 | | | Chairman of the Board of Directors | |
Donald E. Stout*(1)(2)(3) | | | 73 | | | Director | |
Salvatore Giardina*(2) | | | 57 | | | Director | |
Andrew R. Heyer* | | | 61 | | | Director |
corp_governance.
Name and principal position | Year | Salary ($) | Incentive Pay ($)(1) | Equity Awards ($)(2) | Total ($) | |||||||||||||
Edward Jankowski(3) | 2018 | 250,000 | — | — | 250,000 | |||||||||||||
2017 | 375,000 | 125,000 | 361,301 | 861,301 | ||||||||||||||
Andrew D. Perlman(4) | 2018 | 138,000 | — | — | 138,000 | |||||||||||||
2017 | 450,000 | 125,000 | 608,562 | 1,183,562 | ||||||||||||||
Janine Canale(5) | 2018 | 147,500 | 20,000 | — | 167,500 | |||||||||||||
2017 | 130,000 | — | — | 130,000 | ||||||||||||||
Anastasia Nyrkovskaya(6) | 2018 | 311,300 | — | — | 311,300 | |||||||||||||
2017 | 375,000 | 225,000 | 361,301 | 961,301 |
Name and principal position | | | Year | | | Salary ($) | | | Incentive Pay ($)(1) | | | Equity Awards ($)(2) | | | Total ($) | | |||||||||||||||
Edward Jankowski(3) | | | | | 2018 | | | | | | 250,000 | | | | | | — | | | | | | — | | | | | | 250,000 | | |
| | | | | 2017 | | | | | | 375,000 | | | | | | 125,000 | | | | | | 361,301 | | | | | | 861,301 | | |
Andrew D. Perlman(4) | | | | | 2018 | | | | | | 138,000 | | | | | | — | | | | | | — | | | | | | 138,000 | | |
| | | | | 2017 | | | | | | 450,000 | | | | | | 125,000 | | | | | | 608,562 | | | | | | 1,183,562 | | |
Janine Canale(5) | | | | | 2018 | | | | | | 147,500 | | | | | | 20,000 | | | | | | — | | | | | | 167,500 | | |
| | | | | 2017 | | | | | | 130,000 | | | | | | — | | | | | | — | | | | | | 130,000 | | |
Anastasia Nyrkovskaya(6) | | | | | 2018 | | | | | | 311,300 | | | | | | — | | | | | | — | | | | | | 311,300 | | |
| | | | | 2017 | | | | | | 375,000 | | | | | | 225,000 | | | | | | 361,301 | | | | | | 961,301 | | |
On April 19, 2018, Mr. Perlman resigned from his position as Chief Executive Officer and as our Director. On April 19, 2018, we entered into a separation agreement (the “Perlman Separation Agreement”) with Mr. Perlman related to his resignation. The Perlman Separation Agreement includes a release by
On January 20, 2017, we entered into an employment agreement with Ms. Nyrkovskaya that superseded her prior employment agreement. Under the terms of this new employment agreement, Ms. Nyrkovskaya’s annual base salary was increased to $375,000, retroactive to January 1, 2017. The employment agreement was for a term of three (3) years, provided that the employment agreement was to extend in two (2) month increments for up to one (1) year thereafter for each month that the negotiations
Options Awards | ||||||||||||||
Name | Number of securities underlying unexercised options (#) exercisable | Number of securities underlying unexercised options (#) un-exercisable | Option exercise price ($) | Option expiration date | ||||||||||
Edward Jankowski | 8,333 | 4,166 | 42.40 | January 17, 2027 | ||||||||||
Andrew Perlman | 3,125 | — | 636.00 | February 11, 2023 | ||||||||||
Janine Canale | — | 2,500 | — | May 15, 2028 | ||||||||||
Anastasia Nyrkovskaya | 1,500 | — | 570.00 | May 6, 2023 | ||||||||||
Anastasia Nyrkovskaya | 1,500 | — | 820.00 | February 20, 2024 | ||||||||||
Anastasia Nyrkovskaya | 14,583 | — | 31.00 | April 4, 2026 | ||||||||||
Anastasia Nyrkovskaya | 7,291 | — | 42.40 | January 17, 2027 |
| | | Options Awards | | ||||||||||||||||||
Name | | | Number of securities underlying unexercised options (#) exercisable | | | Number of securities underlying unexercised options (#) un-exercisable | | | Option exercise price ($) | | | Option expiration date | | |||||||||
Edward Jankowski | | | | | 8,333 | | | | | | 4,166 | | | | | | 42.40 | | | | January 17, 2027 | |
Andrew Perlman | | | | | 3,125 | | | | | | — | | | | | | 636.00 | | | | February 11, 2023 | |
Janine Canale | | | | | — | | | | | | 2,500 | | | | | | — | | | | May 15, 2028 | |
Anastasia Nyrkovskaya | | | | | 1,500 | | | | | | — | | | | | | 570.00 | | | | May 6, 2023 | |
Anastasia Nyrkovskaya | | | | | 1,500 | | | | | | — | | | | | | 820.00 | | | | February 20, 2024 | |
Anastasia Nyrkovskaya | | | | | 14,583 | | | | | | — | | | | | | 31.00 | | | | April 4, 2026 | |
Anastasia Nyrkovskaya | | | | | 7,291 | | | | | | — | | | | | | 42.40 | | | | January 17, 2027 | |
Nonqualified Deferred Compensation
Name | Fees Earned or Paid in Cash ($) | Option Awards ($)(1) | Total ($) | |||||||||
Bruce T. Bernstein(2) | 50,000 | — | 50,000 | |||||||||
John Engelman(3) | 50,000 | — | 50,000 | |||||||||
Donald E. Stout(4) | 50,000 | — | 50,000 | |||||||||
Salvatore Giardina(5) | 50,000 | — | 50,000 | |||||||||
Richard K. Abbe(6) | 50,000 | — | 50,000 | |||||||||
Andrew R. Heyer(7) | 50,000 | — | 50,000 |
Name | | | Fees Earned or Paid in Cash ($) | | | Option Awards ($)(1) | | | Total ($) | | |||||||||
Bruce T. Bernstein(2) | | | | | 50,000 | | | | | | — | | | | | | 50,000 | | |
John Engelman(3) | | | | | 50,000 | | | | | | — | | | | | | 50,000 | | |
Donald E. Stout(4) | | | | | 50,000 | | | | | | — | | | | | | 50,000 | | |
Salvatore Giardina(5) | | | | | 50,000 | | | | | | — | | | | | | 50,000 | | |
Richard K. Abbe(6) | | | | | 50,000 | | | | | | — | | | | | | 50,000 | | |
Andrew R. Heyer(7) | | | | | 50,000 | | | | | | — | | | | | | 50,000 | | |
Plan Category | No. of securities to be issued upon exercise of outstanding options, warrants and rights | Weighted- average exercise price of outstanding options, warrants and rights ($) | No. of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in the first column) | |||||||||
Total equity compensation plans approved by security holders (1)(2) | 119,729 | $ | 4.34 | 235,271 |
Plan Category | | | No. of securities to be issued upon exercise of outstanding options, warrants and rights | | | Weighted-average exercise price of outstanding options, warrants and rights ($) | | | No. of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in the first column) | | |||||||||
Total equity compensation plans approved by security holders(1)(2) | | | | | 119,729 | | | | | $ | 4.34 | | | | | | 235,271 | | |
2018 | 2017 | |||||||
Audit fees(1) | $ | 346,250 | $ | 431,325 | ||||
Audit-related fees(2) | 103,800 | 25,450 | ||||||
Total | $ | 450,050 | $ | 456,775 |
| | | 2018 | | | 2017 | | ||||||
Audit fees(1) | | | | $ | 346,250 | | | | | $ | 431,325 | | |
Audit-related fees(2) | | | | | 103,800 | | | | | | 25,450 | | |
Total | | | | $ | 450,050 | | | | | $ | 456,775 | | |
29
B3D Transaction
We believe that the Financing Transaction, which yielded gross proceeds of approximately $2.5 million, was necessary in light of the Company’s cash balance and funding requirements at the time. We also believe that the anti-dilution protections, the inclusion of provisions allowing for voluntary adjustment and other provisions of that nature contained in the financing instruments were reasonable in light of market conditions and the size and type of the Financing Transaction, and that we would not have been able to complete the Financing Transaction unless such provisions were offered. In addition, at the time of the
In addition, the Calm Notes are subject to (i) anti-dilution protection in the event we issue additional Common Stock, options or Common Stock equivalents at a price per share less than the price at which the Calm Notes convert into shares of Series E Preferred Stock then in effect, except in the case of issuances of certain excluded securities and (ii) voluntary reduction of the conversion price by the Board of Directors at any time in its discretion. If we issue Common Stock, options or Common Stock equivalents at a price less
Maturity Date
Effect of Issuance of Securities
Nasdaq Listing Rule 5635(a) generally requires us to obtain stockholder approval prior to issuing more than 20% of our outstanding shares of Common Stock in connection with the acquisition of stock of assets of another company involving (i) the sale, issuance or potential issuance by us of our Common Stock (or
Any transaction requiring approval by our stockholders under Nasdaq Listing Rule 5635(a), 5635(b) or 5635(d) would likely result in a significant increase in the number of shares of our Common Stock outstanding, and, as a result, our current stockholders will own a smaller percentage of our outstanding shares of Common Stock.
Plan.
Stock Options. Stock options granted under the Plan may either be incentive stock options, which are intended to satisfy the requirements of Section 422 of the Code, or non-qualified stock options, which are not intended to meet those requirements. Incentive Stock Options may be granted to employees of the Company and its affiliates. Non-qualified options may be granted to employees, directors and consultants
Stock Dividends and Stock Splits. If our Common Stock shall be subdivided or combined into a greater or smaller number of shares or if we issue any shares of Common Stock as a stock dividend, the number of shares of our Common Stock deliverable upon exercise of an option issued or upon issuance of an award shall be appropriately increased or decreased proportionately, and appropriate adjustments shall be made in the exercise price per share of stock options or purchase price, if any, to reflect such subdivision, combination or stock dividend.
Federal Income Tax Considerations
Stock Units:Units: The grantee recognizes no income until the issuance of the shares. At that time, the grantee must generally recognize ordinary income equal to the fair market value of the shares received. We generally will be entitled to a deduction in an amount equal to the ordinary income recognized by the grantee.
“(3) Upon effectiveness of this Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Corporation (the “Effective Time”), the shares of Common Stock issued and outstanding immediately prior to the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time are reclassified into a smaller number of shares such that each [ ] shares of issued Common Stock immediately prior to the Effective Time is reclassified into one (1) share of Common Stock. Notwithstanding the immediately preceding sentence, no fractional shares shall be issued as a result of the reverse stock split. Instead, any stockholder who would otherwise be entitled to a fractional share of our Common Stock as a result of the reclassification shall be entitled to receive a cash payment equal to the product of such resulting fractional interest in one share of our Common Stock multiplied by the closing trading price of our Common Stock on the trading day immediately preceding the effective date of the reverse stock split. Notwithstanding the foregoing, the Corporation shall not be obliged to issue certificates evidencing the shares of Common Stock outstanding as a result of the reverse stock split or cash in lieu of fractional shares, if any, unless and until the certificates evidencing the shares held by a holder prior to the reverse stock split are either delivered to the Corporation or its transfer agent, or the holder notifies the Corporation or its transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement satisfactory to the Corporation to indemnify the Corporation from any loss incurred by it in connection with such certificates.
Book-Entry Shares
Potential Anti-Takeover Effect
If a partnership (or other entity treated as a partnership for United States federal income tax purposes) is a stockholder, the tax treatment of a partner in the partnership or any equity owner of such other entity will generally depend upon the status of the person and the activities of the partnership or other entity treated as a partnership for United States federal income tax purposes.
[ ],
August 9, 2019
(as amended on [ ] )
])
1 The Committee should be comprised of “disinterested persons” as defined under Rule 16b-3 of the Exchange Act and “outside directors” as defined in Section 162(m) of the Code.
Option means an ISO or Non-Qualified Option granted under the Plan.
4.
ISOs may be granted only to Employees who are deemed to be residents of the United States for tax purposes. Non-Qualified Options, Stock Grants and Stock-Based Awards may be granted to any Employee, director or Consultant of the Company or an Affiliate. The granting of any Stock Right to any individual shall neither entitle that individual to, nor disqualify him or her from, participation in any other grant of Stock Rights or any grant under any other benefit plan established by the Company or any Affiliate for Employees, directors or Consultants.
8.
2 If an employee uses previously owned shares to pay for a stock purchase and those shares have not been held by the employee for at least six months, the company will incur a variable accounting charge as of the date of payment to the purchase price of the Stock Grant or Stock-Based Award, or (c) at the discretion of the Administrator, by any combination of (a) and (b) above; or (d) at the discretion of the Administrator, by payment of such other lawful consideration as the Administrator may determine.
The Company shall when required by the applicable Agreement, reasonably promptly deliver the Shares as to which such Stock Grant or Stock-Based Award was made to the Participant (or to the Participant’s Survivors, as the case may be), subject to any escrow provision set forth in the applicable Agreement. In determining what constitutes “reasonably promptly,” it is expressly understood that the issuance and delivery of the Shares may be delayed by the Company in order to comply with any law or regulation (including, without limitation, state securities or “blue sky” laws) which requires the Company to take any action with respect to the Shares prior to their issuance.
(b) Except as provided in Subparagraph (c) below, or Paragraph 15 or 16, in no event may an Option intended to be an ISO, be exercised later than three months after the Participant’s termination of employment.
15. (i)To the extent that the Option has become exercisable but has not been exercised on the date of the Participant’s termination of service due to Disability; and(ii)In the event rights to exercise the Option accrue periodically, to the extent of a pro rata portion through the date of the Participant’s termination of service due to Disability of any additional vesting rights that would have accrued on the next vesting date had the Participant not become Disabled. The proration shall be based upon the number of days accrued in the current vesting period prior to the date of the Participant’s termination of service due to Disability.
In addition, for purposes of this Paragraph 17 and Paragraph 18 below, any change of employment or other service within or among the Company and any Affiliates shall not be treated as a termination of employment, director status or consultancy so long as the Participant continues to be an Employee, director or Consultant of the Company or any Affiliate.
22.
(b) Corporate Transactions. If the Company is to be consolidated with or acquired by another entity in a merger, consolidation, or sale of all or substantially all of the Company’s assets other than a transaction to merely change the state of incorporation (a “Corporate Transaction”), the Administrator or the board of directors of any entity assuming the obligations of the Company hereunder (the “Successor Board”), shall, as to outstanding Options, either (i) make appropriate provision for the continuation of such Options by substituting on an equitable basis for the Shares then subject to such Options either the consideration payable with respect to the outstanding shares of Common Stock in connection with the Corporate Transaction or securities of any successor or acquiring entity; or (ii) upon written notice to the Participants, provide that such Options must be exercised (either (A) to the extent then exercisable or, (B) at the discretion of the Administrator, any such Options being made partially or fully exercisable for purposes of this Subparagraph), within a specified number of days of the date of such notice, at the end of which period such vested Options which have not been exercised shall terminate; or (iii) terminate such Options in exchange for payment of an amount equal to the consideration payable upon consummation of such Corporate Transaction to a holder of the number of shares of Common Stock into which such Option would have been exercisable (either (A) to the extent then exercisable or, (B) at the discretion of the Administrator, any such Options being made partially or fully exercisable for purposes of this Subparagraph) less the aggregate exercise price thereof. For purposes of determining the payments to be made pursuant to Subclause (iii) above, in the case of a Corporate Transaction the consideration for which, in whole or in part, is other than cash, the consideration other than cash shall be valued at the fair value thereof as determined in good faith by the Board of Directors.
25.
30.
1. NAME AND EFFECTIVE DATE 1.1 This Appendix A (the “Appendix”) to the XpresSpa Group, Inc. 2012 Employee, Director and Consultant Equity Incentive Plan (the “Plan”) shall apply only to individuals who are granted |
“3(i) Stock Grants, Stock Rights or Options who are residents of the State of Israel for tax purposes, or are otherwise subject to taxation in Israel with respect to Options.
(i) “102(b)(2) Option” for the special tax treatments under the “Capital Track”, or (ii) “102(b)(1) Option” for the special tax treatments under the “Ordinary Income Track”. “Affiliate |
“Affiliate” means any “employing company” within the meaning of Section 102 of the Ordinance which includes (i) any company which is a Controlling Person of the Company, or (ii) that the Company is a Controlling Person of such company, or (iii) that the Company and such company are controlled by the same Controlling Person, as such term may be amended from time to time.
“Ordinance” Ordinance” means the Israeli Income Tax Ordinance (New Version), 5721-1961, and the rules, regulations, orders or procedures promulgated thereunder and any amendments thereto, including specifically the Rules, all as may be amended from time to time.