Current Report Filing (8-k)
October 26 2016 - 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 25, 2016
FORM HOLDINGS CORP.
(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, 12
th
Floor,
New York, NY 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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x
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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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Item 1.01 Entry into Material Definitive Agreement.
Amendment to Merger Agreement
As previously announced,
on August 8, 2016, FORM Holdings Corp., a Delaware corporation (“FORM”), FHXMS, LLC, a Delaware limited liability company
and wholly-owned subsidiary of FORM (“Merger Sub”), XpresSpa Holdings, LLC, a Delaware limited liability company (“XpresSpa”),
the unitholders of XpresSpa who are parties thereto (the “Unitholders”) and Mistral XH Representative, LLC, as representative
of the Unitholders (the “Representative”), entered into an Agreement and Plan of Merger (the “Merger Agreement”)
pursuant to which Merger Sub will merge with and into XpresSpa, with XpresSpa being the surviving entity and a wholly-owned subsidiary
of FORM (the “Surviving Entity”) and the Unitholders becoming stockholders of FORM (the “Merger”). Upon
completion of the Merger, (i) the then-outstanding common units of XpresSpa (other than those held by FORM and its subsidiaries,
which will be cancelled without any consideration) and (ii) the then-outstanding preferred units of XpresSpa (other than those
held by FORM and its subsidiaries, which will be cancelled without any consideration) will be cancelled and automatically converted
into the right to receive an aggregate of:
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(a)
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2,500,000 shares of FORM common stock, par value $0.01 per share (“FORM Common Stock”),
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(b)
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494,792 shares of newly designated Series D Convertible Preferred Stock, par value $0.01 per share,
of FORM with an aggregate initial liquidation preference of $23,750,000, accruing dividends at 9% per annum and are initially convertible
into 3,958,336 shares of FORM Common Stock, and
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(c)
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five-year warrants to purchase an aggregate of 2,500,000 shares of FORM Common Stock, at an exercise
price of $3.00 per share, in each case, subject to adjustment in the event of a stock split, dividend or similar events.
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On
October 25, 2016, the Company, Merger Sub, XpresSpa and the Representative entered into Amendment No. 2 to the Merger Agreement
(the “Amendment”), which clarifies certain indemnification provisions in connection with the Merger and increases the
amount to be held in escrow by $2 million in connection with such right to indemnification.
The
foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the Amendment,
which is attached hereto as Exhibit 2.1 and incorporated herein by reference. The Amendment has been incorporated herein by reference
to provide information regarding its terms.
Item 9.01. Financial Statements
and Exhibits.
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2.1
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Amendment No. 2 to Agreement and Plan of Merger by and
among FORM Holdings Corp., FHXMS, LLC, XpresSpa Holdings, LLC and Mistral XH Representative, LLC, as representative of the unitholders,
dated October 25, 2016.
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Important Additional Information Will
Be Filed with the SEC
This communication
does not constitute an offer to sell or the solicitation of an offer to buy any securities of FORM, or XpresSpa or the solicitation
of any vote or approval. In connection with the proposed transaction, FORM filed a Registration Statement on Form S-4 with the
SEC on September 9, 2016, containing a proxy statement/prospectus. The proxy statement/prospectus contains important information
about FORM, XpresSpa, the transaction and related matters. FORM will mail or otherwise deliver the proxy statement/prospectus to
its stockholders and the stockholders of XpresSpa when it becomes effective. Investors and security holders of FORM and XpresSpa
are urged to read carefully the proxy statement/prospectus relating to the Merger (including any amendments or supplements thereto)
in its entirety, because it contains important information about the proposed transaction.
Investors and security
holders of FORM will be able to obtain free copies of the proxy statement/prospectus for the proposed Merger (when it is available)
and other documents filed with the SEC by FORM through the website maintained by the SEC at www.sec.gov.
FORM and XpresSpa,
and their respective directors and certain of their executive officers, may be deemed to be participants in the solicitation of
proxies in respect of the transactions contemplated by the Merger Agreement between FORM and XpresSpa. Information regarding FORM's
directors and executive officers is contained in FORM’s Annual Report on Form 10-K for the fiscal year ended December 31,
2015, which was filed with the SEC on March 10, 2016. Information regarding XpresSpa’s directors and officers and a more
complete description of the interests of XpresSpa's directors and officers in the proposed transaction is available in the proxy
statement/prospectus filed by FORM with the SEC in connection with the proposed transaction.
Cautionary Note Regarding Forward-Looking
Statements
Statements in this
report regarding the proposed transaction between FORM, Merger Sub and XpresSpa; the expected timetable for completing the transaction;
the potential value created by the proposed Merger for FORM's and XpresSpa’s stockholders; the potential of FORM’s
business after completion of the Merger; the continued listing of FORM's securities on the Nasdaq Capital Market; market acceptance
of FORM products; the collective ability to protect intellectual property rights; competition from other providers and products;
FORM’s management and board of directors after completion of the Merger; and any other statements about FORM's or XpresSpa’s
management teams' future expectations, beliefs, goals, plans or prospects constitute forward-looking statements within the meaning
of the Private Securities Litigation Reform Act of 1995. Any statements that are not statements of historical fact (including statements
containing the words "believes," "plans," "could," "anticipates," "expects,"
"estimates," "plans," "should," "target," "will," "would" and similar
expressions) should also be considered to be forward-looking statements. There are a number of important factors that could cause
actual results or events to differ materially from those indicated by such forward-looking statements, including: the risk that
FORM and XpresSpa may not be able to complete the proposed transaction; the inability to realize the potential value created by
the proposed Merger for FORM's and XpresSpa's equity holders; the inability to raise capital to fund operations and business plan;
FORM's inability to maintain the listing of its securities on the Nasdaq Capital Market after completion of the Merger; and other
risks and uncertainties. Investors and stockholders are also urged to read the risk factors set forth in the proxy statement/prospectus
carefully.
In addition, the statements
in this report reflect FORM’s expectations and beliefs as of the date of this release. We anticipate that subsequent events
and developments will cause FORM’s expectations and beliefs to change. However, while we may elect to update these forward-looking
statements publicly at some point in the future, we specifically disclaim any obligation to do so, whether as a result of new information,
future events or otherwise. These forward-looking statements should not be relied upon as representing FORM’s views as of
any date after the date of this report.
SIGNATURES
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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FORM HOLDINGS CORP.
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Dated: October 25, 2016
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By:
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/s/ Andrew D. Perlman
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Name:
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Andrew D. Perlman
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Title:
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Chief Executive Officer
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EXHIBIT INDEX
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2.1
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Amendment No. 2 to Agreement and Plan of Merger by and
among FORM Holdings Corp., FHXMS, LLC, XpresSpa Holdings, LLC and Mistral XH Representative, LLC, as representative of the unitholders,
dated October 25, 2016.
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