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): November 28, 2016
FORM HOLDINGS CORP.
(Exact Name of Registrant as Specified in its Charter)
| Delaware | | 001-34785 | | 20-4988129 |
(State or other jurisdiction
of incorporation) | | (Commission
File Number) | | (I.R.S. Employer
Identification No.) |
780 Third Avenue, 12th Floor
New York, New York 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:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| | |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| | |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| | |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 3.03 | Material Modification to Rights of Security Holders |
On November 28, 2016, FORM Holdings Corp. (“FORM”) filed a Certificate of Amendment to its Amended and Restated Certificate of Incorporation, as amended, with the Secretary of State of the State of Delaware to remove “only-for-cause” director removal (the “Certificate of Amendment”).
The foregoing description of the Certificate of Amendment is not complete and is subject to, and qualified in its entirety by, the full text of the Certificate of Amendment, which is attached to this Current Report as Exhibit 3.1 and is incorporated herein by reference.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
(e)
On November 28, 2016, at FORM’s 2016 annual meeting of stockholders (the “Annual Meeting”), FORM’s stockholders approved an amendment to FORM’s 2012 Employee, Director and Consultant Equity Incentive Plan (as amended, the “Plan”) to increase the number of shares of FORM’s common stock, par value $0.01 per share (“FORM Common Stock”) reserved for issuance under the Plan to up to a maximum of 7,573,568 shares and to increase the maximum number of shares available for grant to a single participant in any fiscal year from 400,000 to 1,000,000.
The foregoing description of the Plan is not complete and is subject to, and qualified in its entirety by, the full text of the Plan, which is attached to this Current Report as Exhibit 10.1 and is incorporated herein by reference.
| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
(a) On November 28, 2016, FORM held the Annual Meeting. At the Annual Meeting, the holders of 11,756,821 shares of FORM Common Stock were present in person or represented by proxy, which represents 74.41% of the total shares of outstanding FORM Common Stock entitled to vote as of the record date of October 18, 2016.
(b) The following actions were taken in the Annual Meeting:
| (1) | The merger of FHXMS, LLC (“Merger Sub”), a Delaware limited liability company and wholly-owned subsidiary of FORM, with and into XpresSpa Holdings LLC, a Delaware limited liability company (“XpresSpa”), with XpresSpa being the surviving entity and a wholly-owned subsidiary of FORM, pursuant to the terms and conditions of the previously announced Agreement and Plan of Merger, dated as of August 8, 2016, as subsequently amended on September 8, 2016 and October 25, 2016 (collectively, the “Merger Agreement”), by and among FORM, Merger Sub, XpresSpa, the unitholders of XpresSpa who are parties thereto or who become parties thereto (the “Unitholders”) and Mistral XH Representative, LLC, as representative of the Unitholders (the “Representative”) (the “Merger”) was approved, based on the following votes: |
| Votes For | | Votes Against | | Votes Abstain | | Broker Non-Vote |
| 5,030,246 | | 154,107 | | 28,815 | | 6,543,653 |
| (2) | The adoption of a Section 382 Rights Agreement, adopted by the board of directors of FORM (the “Board”) on March 18, 2016 (the “Rights Agreement”), was approved, based on the following votes: |
| Votes For | | Votes Against | | Votes Abstain | | Broker Non-Vote |
| 5,130,234 | | 72,737 | | 10,197 | | 6,543,653 |
| (3) | The following six nominees were elected or reelected to serve on the Board until FORM’s 2017 annual meeting of stockholders or until their respective successors have been elected and qualified, or until their earlier resignation or removal: |
| Name of Director Nominees | | Votes For | | | Votes Withheld | | | Broker Non-Vote | |
| Andrew D. Perlman | | | 5,053,812 | | | | 159,356 | | | | 6,543,653 | |
| John Engleman | | | 5,113,958 | | | | 99,210 | | | | 6,543,653 | |
| Donald E. Stout | | | 4,821,630 | | | | 391,538 | | | | 6,543,653 | |
Salvatore Giardina
| | | 5,105,727 | | | | 107,441 | | | | 6,543,653 | |
| Bruce T. Bernstein | | | 5,096,298 | | | | 116,870 | | | | 6,543,653 | |
| Richard K. Abbe | | | 5,105,548 | | | | 107,620 | | | | 6,543,653 | |
| (4) | The amendment to the Plan to increase the number of shares of FORM Common Stock reserved for issuance under the Plan to up to a maximum of 7,573,568 shares and to increase the maximum number of shares available for grant to a single participant in any fiscal year from 400,000 to 1,000,000 was approved, based on the following votes: |
| Votes For | | Votes Against | | Votes Abstain | | Broker Non-Vote |
| 3,348,264 | | 1,468,087 | | 396,817 | | 6,543,653 |
| (5) | The selection of Cohn Reznick LLP as FORM’s independent registered public accounting firm for the fiscal year ending December 31, 2016, was ratified, based on the following votes: |
| Votes For | | Votes Against | | Votes Abstain | | Broker Non-Vote |
| 11,410,795 | | 135,969 | | 210,057 | | 0 |
| (6) | The Certificate of Amendment to remove “only-for-cause” director removal was approved, based on the following votes: |
| Votes For | | Votes Against | | Votes Abstain | | Broker Non-Vote |
| 10,802,811 | | 874,998 | | 79,012 | | 0 |
| (7) | The compensation of FORM’s named executive officers, as disclosed in FORM’s proxy statement, was approved by an advisory vote, based on the following votes: |
| Votes For | | Votes Against | | Votes Abstain | | Broker Non-Vote |
| 3,731,645 | | 1,410,971 | | 70,552 | | 6,543,653 |
| (8) | The proposal to adjourn the Annual Meeting, if necessary, to solicit additional proxies if there are not sufficient votes in favor of FORM’s Proposal Nos. 1, 2, 3, 4, 5, 6 or 7, was approved, based on the following votes: |
| Votes For | | Votes Against | | Votes Abstain | | Broker Non-Vote |
| 9,298,385 | | 2,124,186 | | 334,250 | | 0 |
| Item 9.01 | Financial Statements and Exhibits |
Exhibit
Number | | Description |
| 3.1 | | Certificate of Amendment to Amended and Restated Certificate of Incorporation, as amended, to remove “only-for-cause” director removal |
| 10.1 | | FORM Holdings Corp. 2012 Employee, Director and Consultant Equity Incentive Plan, as amended. |
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.
| | FORM HOLDINGS CORP. |
| | |
| Dated: November 28, 2016 | By: | /s/ Andrew D. Perlman |
| | | Name: | Andrew D. Perlman |
| | | Title: | Chief Executive Officer |
