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)
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Delaware |
20-4988129 |
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(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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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.
£
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):
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(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); |
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(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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