Item 8.01 Other Events
As previously disclosed in FORM Holding
Corp.’s (“FORM”) final proxy statement/prospectus filed on October 28, 2016 (the “S-4 Filing”), Amiral
Holdings SAS (“Amiral”), the operator of BeRelax spas, filed a complaint for breach of contract against XpresSpa Holdings,
LLC (“XpresSpa”) and Mistral Capital Management LLC (“Mistral”) related to a potential strategic transaction
between Amiral and XpresSpa.
Amiral Holdings SAS v. XpresSpa Holdings LLC et al., Supreme Court of the State of New York,
County of New York
(Index No. 654051/2016). Additional details related to the case can be found in FORM’s S-4 Filing
under the heading “Risk Factors— Litigation has been instituted challenging the Merger and adverse judgments in this
lawsuit (and any other lawsuits that may be instituted challenging the Merger) may prevent the Merger from becoming effective within
the expected timeframe or at all.”
On October 4, 2016, Amiral filed a motion
for a preliminary injunction. A hearing on the preliminary injunction motion was held on November 18, 2016 and the court denied
Amiral’s motion.
Amiral appealed the court’s decision
and on November 23, 2016, the Supreme Court of the State of New York, Appellate Division, 1
st
Department (the “Appellate
Division”) issued a Temporary Restraining Order enjoining XpresSpa and Mistral from closing the proposed merger with FORM
(the “Merger”) until an appeal of the Supreme Court’s decision is heard. The appeal will be briefed and a five
judge appellate panel is expected to decide whether to uphold or overturn the Supreme Court’s decision no later than December
13, 2016.
FORM will be holding its annual meeting
of stockholders to, among other things, approve the Merger on November 28, 2016. Assuming that the stockholders approve the Merger
and assuming that the Appellate Division decides to uphold the Supreme Court’s decision, FORM currently plans to close the
Merger as soon as practicable after a favorable decision by the Appellate Division.
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 Merger, FORM filed a Registration Statement on Form S-4, as amended, declared effective
by the SEC on October 27, 2016 and a final proxy statement/prospectus on October 28, 2016. The proxy statement/prospectus contains
important information about FORM, XpresSpa, the transaction and related matters. FORM has mailed or otherwise delivered the proxy
statement/prospectus to its stockholders and the stockholders of XpresSpa. 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 are able to obtain free copies of the proxy statement/prospectus for the proposed Merger and other
documents filed with the Securities and Exchange Commission (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 the proxy statement/prospectus. 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 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; the potential impact on
FORM’s common stock if FORM determines to repay the preferred stock to be issued in connection with the Merger in stock rather
than cash; 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.