Securities Registration: Employee Benefit Plan (s-8)
October 25 2022 - 5:15PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on October 25, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
XWELL, Inc.
(Exact name of registrant as specified in its charter)
| Delaware |
20-4988129 |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
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)
XWELL, Inc. 2020 Equity Incentive Plan
(Full title of the plans)
Scott R. Milford
Chief Executive Officer
XWELL, Inc.
254 West 31st Street, 11th Floor
New York, New York 10001
(212) 750-9595
(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.
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accelerated filer ¨ | |
Accelerated
filer ¨ |
| Non-accelerated
filer x | |
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. £
EXPLANATORY NOTE
At the 2022 Annual Meeting
of Stockholders of XWELL, Inc., formerly known as XpresSpa Group, Inc. (the “Registrant”) held on October 4, 2022, the Registrant’s
stockholders approved an amendment (the “Amendment”) to the XpresSpa Group, Inc. 2020 Equity Incentive Plan (the “2020
Plan”), which the Registrant’s Board of Directors (the “Board”) had previously approved on August 9, 2022, subject
to such stockholder approval. The 2020 Plan was originally adopted by the Board on September 17, 2020 and approved by the Registrant’s
stockholders on October 28, 2020. On October 10, 2022, the Board approved an additional amendment to the 2020 Plan to change the name
of the 2020 Plan to “XWELL, Inc. 2020 Equity Incentive Plan”, effective as of October 25, 2022. Finally, the Registrant issued
a press release on October 24, 2022 announcing it was changing its name to “XWELL, Inc.” pursuant to an amended and restated
certificate of incorporation filed with the Delaware Secretary of State.
The Amendment provides for
an increase in the number of shares of the Registrant’s Common Stock, $0.01 par value (the “Common Stock”), authorized
for issuance under the 2020 Plan by 7,500,000 shares. Previously, 5,705,239 shares of Common Stock were authorized for issuance and registered
under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to a registration statement on Form S-8 previously
filed on March 19, 2021 (Registration No. 333-254508) (the “Previous S-8”), which remains in full force and effect.
The Registrant is filing this
Registration Statement to register under the Securities Act an additional 7,500,000 shares of Common Stock issuable under the 2020 Plan
pursuant to the Amendment. These additional shares of Common Stock to be registered by this Registration Statement are of the same class
as those securities covered by the Previous S-8. Pursuant to General Instruction E to Form S-8, the contents of the Previous S-8 are incorporated
herein by reference and this Registration Statement is only required to include those items specified by such instruction with respect
to the 2020 Plan and the Amendment.
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):
| (a) | The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC
on March 31, 2022, as amended on May 2, 2022 (File No. 001-34785); |
| (b) | The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2022, filed with the
SEC on May 16, 2022, and June 30, 2022, filed with the SEC on August 15, 2022 (File No. 001-34785); |
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(c) |
The Registrant’s Current Reports on Form 8-K filed with the SEC on January 10, 2022, January 21, 2022, January 26, 2022, May 20, 2022, June 14, 2022, as amended on September 13, 2022, October 7, 2022 and October 24, 2022 (File No. 001-34785); and |
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.
*Filed herewith
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, 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 October 25, 2022.
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XWELL, Inc. |
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By: |
/s/ Scott R. Milford |
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Scott R. Milford
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 XWELL, Inc. constitutes and appoints Scott R. Milford and Cara Soffer, and each
of them, severally, as 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 attorneys-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.
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Signature |
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Title(s) |
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Date |
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/s/ Scott R.
Milford
Scott R. Milford
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Chief Executive Officer and Director
(Principal Executive Officer) |
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October 25, 2022 |
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/s/ Omar A.
Haynes
Omar A. Haynes
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Interim Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
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October 25, 2022 |
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/s/ Bruce T.
Bernstein
Bruce T. Bernstein
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Director, Chairman of the Board of Directors |
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October 25, 2022 |
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/s/ Robert Weinstein
Robert Weinstein
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Director |
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October 25, 2022 |
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/s/ Donald E.
Stout
Donald E. Stout
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Director |
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October 25, 2022 |
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/s/ Michael
Lebowitz
Michael Lebowitz
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Director |
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October 25, 2022 |
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