Item 4.01 Changes in Registrant's Certifying Accountant.
(a) Dismissal of Previous Independent Registered Accounting Firm
Based on information provided to XpresSpa Group, Inc. (the "Company") by its
independent registered public accounting firm, Friedman LLP ("Friedman"),
effective September 1, 2022 Friedman combined with Marcum LLP ("Marcum") and
continued to operate as an independent registered public accounting firm. On
October 4, 2022, after the conclusion of the Company's Annual Meeting of
Stockholders described under Item 5.07 below, the Audit Committee (the "Audit
Committee") of the Board of Directors of the Company approved the dismissal of
Friedman and the engagement of Marcum to serve as the Company's independent
registered public accounting firm. The services previously provided by Friedman
will now be provided by Marcum.
Friedman's report on the Company's consolidated financial statements as of
December 31, 2021 and December 31, 2020, did not contain an adverse opinion or a
disclaimer of opinion, nor was it qualified or modified as to uncertainty, audit
scope or accounting principles.
During the years ended December 31, 2021 and December 31, 2020 and the
subsequent interim period through October 4, 2022, there were no "disagreements"
(as such term is defined in Item 304(a)(1)(iv) of Regulation S-K and the related
instructions to Item 304) with Friedman on any matter of accounting principles
or practices, financial statement disclosure, or auditing scope or procedure,
which disagreements if not resolved to the satisfaction of Friedman, would have
caused Friedman to make reference to the subject matter of the disagreements or
reportable events in connection with its reports on the financial statements for
such years. During the years ended December 31, 2021 and 2020 and the subsequent
interim period through October 4, 2022, there have been no "reportable events"
(as such term is defined in Item 304(a)(1)(v) of Regulation S-K), except for the
material weakness identified in the Company's internal control over its
financial close and reporting process.
The Company provided Friedman with a copy of the disclosure it is making herein
in response to Item 304(a) of Regulation S-K and requested that Friedman furnish
the Company with a copy of its letter addressed to the Securities and Exchange
Commission (the "SEC"), pursuant to Item 304(a)(3) of Regulation S-K, stating
whether Friedman agrees with the statements made by the Company in response to
Item 304(a) of Regulation S-K. A copy of Friedman's letter to the SEC dated
October 7, 2022 is filed as Exhibit 16.1 to this Current Report on Form 8-K.
(b) Appointment of New Independent Registered Public Accounting Firm
As noted above, on October 4, 2022, the Audit Committee approved the dismissal
of Friedman and the engagement of Marcum to serve as the Company's independent
registered public accounting firm. The services previously provided by Friedman
will now be provided by Marcum.
During the fiscal years ended December 31, 2021 and December 31, 2020 and
through the subsequent interim period as of October 4, 2022, neither the
Company, nor any party on behalf of the Company, consulted with Marcum regarding
either (i) the application of accounting principles to a specified transaction,
either completed or proposed, or the audit opinion that might be rendered
regarding the Company's consolidated financial statements, and no written report
or oral advice was provided to the Company that Marcum concluded was an
important factor considered by the Company in deciding on any accounting,
auditing or financial reporting issue, or (ii) any matter subject to any
"disagreement" (as such term is defined in Item 304(a)(1)(iv) of Regulation S-K
and the related instructions) or a "reportable event" (as such term is defined
in Item 304(a)(1)(v) of Regulation S-K)..
Item 5.07. Submission of Matters to a Vote of Security Holders.
On October 4, 2022, the Company held its 2022 Annual Meeting of Stockholders
(the "Annual Meeting"). At the Annual Meeting, the Company's stockholders voted
on the six proposals described below.
As of the record date for the Annual Meeting, there were 94,278,118 shares of
common stock outstanding and entitled to vote on each matter presented for vote
at the Annual Meeting. At the Annual Meeting, 55,018,686 (58.36% of the total
outstanding) shares of common stock were represented in person or by proxy.
The final results for each of the matters submitted to a vote of stockholders at
the Annual Meeting are as follows:
Item 1: The following five nominees were reelected to serve on the Company's
Board of Directors until the 2023 Annual Meeting of Stockholders or until their
respective successors have been elected and qualified, or until their earlier
resignation or removal, having received the following votes:
Name For Withheld Broker Non-Votes
Scott R. Milford 20,330,768 12,914,219 21,773,699
Bruce T. Bernstein 11,970,368 21,274,619 21,773,699
Robert Weinstein 12,726,243 20,518,744 21,773,699
Donald E. Stout 12,998,766 20,246,221 21,773,699
Michael Lebowitz 20,040,820 13,204,167 21,773,699
Item 2: The appointment of Friedman LLP (now Marcum LLP) as the Company's
independent registered public accounting firm for the fiscal year ending
December 31, 2022 was ratified, having received the following votes:
For Against Abstentions Broker Non-Votes
40,919,305 12,550,696 1,548,685 -
Item 3: The amendment to the Company's Amended and Restated Certificate of
Incorporation to effect a reverse stock split of our issued and outstanding
shares of common stock at a ratio of between 1-for-2 and 1-for-6 was not
approved, having received the following votes:
For Against Abstentions Broker Non-Votes
30,539,674 24,329,446 149,566 -
Item 4: The amendment to the Company's 2020 Equity Incentive Plan to increase
the number of shares authorized for issuance under the Plan by 7,500,000 shares
was approved, having received the following votes:
For Against Abstentions Broker Non-Votes
16,790,763 16,018,358 453,866 21,773,699
Item 5: The compensation of the Company's named executive officers was not
approved, on an advisory basis, by stockholders, having received the following
votes:
For Against Abstentions Broker Non-Votes
15,739,057 17,149,899 356,031 21,773,699
Item 6: The proposal to approve the adjournment of the Annual Meeting, if
necessary, to solicit additional proxies if there are not sufficient votes to
approve Items 2 through 5 was approved, having received the following votes:
For Votes Against Abstentions Broker Non-Votes
30,248,432 24,093,316 676,938 -
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
10.1 XpresSpa Group, Inc. 2020 Equity Incentive Plan, as amended October 4,
2022
16.1 Letter from Friedman LLP to the Securities and Exchange Commission,
dated October 7, 2022
104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
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