UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No. 2 to
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of
the
Securities Exchange Act of 1934
Filed
by the Registrant ☒
Filed
by a Party other than the Registrant ☐
| Check
the appropriate box: |
| |
| ☒ |
Preliminary
Proxy Statement |
| ☐ |
Confidential,
for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
| ☐ |
Definitive
Proxy Statement |
| ☐ |
Definitive
Additional Materials |
| ☐ |
Soliciting
Material under §240.14a-12 |
| FOXO
TECHNOLOGIES INC. |
| (Name
of Registrant as Specified In Its Charter) |
| |
| |
| (Name
of Person(s) Filing Proxy Statement, if other than the Registrant) |
| Payment
of Filing Fee (Check the appropriate box): |
| |
| ☒ |
No
fee required. |
| ☐ |
Fee
paid previously with preliminary materials. |
| ☐ |
Fee
computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11. |
FOXO
TECHNOLOGIES INC.
729
N. Washington Ave., Suite 600
Minneapolis,
MN 55401
TO
THE STOCKHOLDERS OF FOXO TECHNOLOGIES INC.:
It
is my pleasure to invite you to attend the 2025 special meeting of stockholders (the “Special Meeting”),
of FOXO Technologies Inc. to be held at [*] [*].m., Central Time on January __, 2025. The formal meeting notice and
proxy statement for the Special Meeting are attached.
The
Special Meeting will be a completely virtual meeting of stockholders, which will be conducted via live webcast. You will be able
to attend the Special Meeting online, vote and submit your questions during the Special Meeting by visiting www.[*].
We
are pleased to utilize the virtual stockholder meeting technology to provide ready access and cost savings for our stockholders and the
company. The virtual meeting format allows attendance from any location in the world.
Even
if you are planning on attending the Special Meeting online, please promptly submit your proxy vote by internet, telephone, or,
if you received a printed form of proxy in the mail, by completing, dating, signing and returning the enclosed proxy, so your shares
will be represented at the Special Meeting. Instructions on voting your shares are on the proxy materials you received for the
Special Meeting. Even if you plan to attend the Special Meeting online, it is strongly recommended you complete and return
your proxy card before the Special Meeting date, to ensure that your shares will be represented at the Special Meeting
if you are unable to attend. Internet voting facilities for stockholders of record will be available 24 hours a day and will close at
11:59 p.m. Eastern Time on January __, 2025. If you attend the Special Meeting online and wish to vote at the Special
Meeting, you will be able to do so even if you have previously returned your proxy card.
On
behalf of our Board of Directors, thank you for your continued support and interest.
| January __, 2025 |
Sincerely, |
| |
|
| |
/s/
Bret Barnes |
| |
Bret
Barnes |
| |
Director
and Chairman of the Board of Directors |
729
N. Washington Ave., Suite 600
Minneapolis,
MN 55401
NOTICE
OF 2025 SPECIAL MEETING OF STOCKHOLDERS
TO
BE HELD ON JANUARY __, 2025
TO
THE STOCKHOLDERS OF FOXO TECHNOLOGIES INC.:
Notice
is hereby given that the 2025 special meeting of stockholders (the “Special Meeting”) of FOXO Technologies
Inc., a Delaware corporation, and its subsidiaries (the “Company,” “FOXO”, “our,” “we”
or “us”), will be held as a “virtual meeting” via live audio webcast on January __, 2025, at [*]
[*].m., Central Time, for the following purposes, as more fully described in the accompanying proxy statement (the “Proxy Statement”):
1.
To approve, for purposes of complying with NYSE
American Rule 713, pursuant to the terms of the Company’s Series A Cumulative Convertible Redeemable Preferred Stock (the “Series
A Preferred Stock”): (i) the issuance of shares of Class A Common Stock in an amount equal to or in excess of 20% of our Class
A Common Stock outstanding when the Series A Preferred Stock was authorized, upon conversion of the shares of Series A Preferred Stock;
and (ii) the voting terms thereof, which may constitute a “Change of control” as defined by the NYSE American Rules;
2.
To approve the adjournment of the Special
Meeting, if necessary or advisable, to solicit additional proxies in favor of the foregoing proposal if there are not sufficient votes
to approve the foregoing proposal; and
3.
Such other matters as may properly come before the
Special Meeting or any lawful adjournment or postponement thereof.
Pursuant
to our Amended and Restated Bylaws (the “Bylaws”), our Board has fixed the close of business on [*], 2025 as the record
date (the “Record Date”) for determination of stockholders entitled to notice and to vote at the Special Meeting and
any adjournment or postponement thereof. Only holders of record of the Company’s common stock and Series A Preferred Stock on that
date are entitled to have their votes counted at the Special Meeting or any adjournment or postponement thereof.
Our
Special Meeting will be a “virtual meeting” of stockholders which will be conducted exclusively online via live audio
webcast.
You
will be able to attend the Special Meeting via live audio webcast by visiting FOXO’s virtual meeting website at www.[*]
on January __, 2025, at [*] [*].m., Central Time. Upon visiting the meeting website, you will be prompted to enter the __-digit
Control Number provided to you on the Notice that you received for the Special Meeting. The unique Control Number allows us to
identify you as a stockholder and will enable you to securely log on, vote and submit questions during the Special Meeting on
the meeting website. Further instructions on how to attend and participate in the Special Meeting via the Internet, including
how to demonstrate proof of stock ownership, are available at www.[*].
Your
vote is very important. Whether or not you attend the Special Meeting virtually, it is important that your shares be represented.
You may vote your proxy by telephone or through the Internet, or, if you receive a paper proxy card by mail, by completing and returning
the proxy card mailed to you. Voting instructions are provided in the enclosed proxy card and included in the accompanying Proxy Statement.
Even if you have voted by proxy, you may still vote in person if you attend the Special Meeting. If you participate virtually
in the Special Meeting, you may vote at that time, even if you previously submitted your vote. Even if you plan to participate
in the Special Meeting, we urge you to vote as soon as possible over the Internet, by telephone or by mail as described in the
Proxy Statement.
IMPORTANT
NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE
SPECIAL
MEETING TO BE HELD ON [*], 2025: THE
COMPANY’S PROXY MATERIALS ARE
AVAILABLE
AT WWW.[*].COM.
| January __, 2025 |
By
Order of our Board of Directors |
| |
|
| |
/s/
Bret Barnes |
| |
Bret
Barnes |
| |
Director
and Chairman of the Board of Directors |
TABLE
OF CONTENTS
PROXY
STATEMENT
FOR
2025
SPECIAL MEETING OF STOCKHOLDERS
JANUARY
__, 2025
Your
proxy is solicited by the board of directors of FOXO Technologies Inc. (the “Company,” “FOXO”, “our,”
“we” or “us”) for our 2025 Special Meeting of Stockholders (the “Special Meeting”),
to be held January __, 2025, at [*] [*].m., Central Time. Our Special Meeting will be a “virtual meeting” of
stockholders, which will be conducted exclusively online via live audio webcast. The Company’s principal executive office is located
at 729 N. Washington Ave., Suite 600, Minneapolis MN 55401, and the telephone number is (612) 800-0059.
At
the Special Meeting, you will be asked to consider and vote upon the following matters:
1.
To approve, for purposes of complying with NYSE
American Rule 713, pursuant to the terms of the Company’s Series A Cumulative Convertible Redeemable Preferred Stock (the “Series
A Preferred Stock”): (i) the issuance of shares of Class A Common Stock in an amount equal to or in excess of 20% of our
Class A Common Stock outstanding when the Series A Preferred Stock was authorized, upon conversion of the shares of Series A Preferred
Stock; and (ii) the voting terms thereof, which may constitute a “Change of control” as defined by the NYSE American
Rules;
2.
To approve the adjournment of the Special
Meeting, if necessary or advisable, to solicit additional proxies in favor of the foregoing proposal if there are not sufficient votes
to approve the foregoing proposal; and
3.
Such other matters as may properly come before the
Special Meeting or any lawful adjournment or postponement thereof.
Pursuant
to our Amended and Restated Bylaws (the “Bylaws”), our Board has fixed the close of business on [*], 2025 as the record
date (the “Record Date”) for determination of stockholders entitled to notice and to vote at the Special Meeting or
any adjournment or postponement thereof. Holders of our Class A Common Stock and Series A Preferred Stock are entitled to vote at the
Special Meeting. Our Special Meeting will be a “virtual meeting” of stockholders which will be conducted exclusively
online via live audio webcast.
You
will be able to attend the Special Meeting via live audio webcast by visiting our virtual meeting website at www.[*] on [*], [*],
2025, at [*] [*].m., Central Time. Upon visiting the meeting website, you will be prompted to enter the __-digit Control Number
provided to you on the Notice that you received for the Special Meeting. The unique Control Number allows us to identify you as
a stockholder and will enable you to securely log on, vote and submit questions during the Special Meeting on the meeting website.
Further
instructions on how to attend and participate in the Special Meeting via the Internet, including how to demonstrate proof of stock
ownership, are available at www.[*].
QUESTIONS
AND ANSWERS ABOUT THIS PROXY MATERIAL AND VOTING
Why
am I receiving these materials?
The
Board is inviting you to vote at the Special Meeting, including any adjournments or postponements of the Special Meeting,
because you were a stockholder of record at the close of business on the Record Date and are entitled to vote at the Special Meeting.
This
Proxy Statement and the accompanying materials are being provided for the solicitation of proxies by the Board for the Special
Meeting and summarizes the information you need to know to vote by proxy or in person at the Special Meeting.
What
is included in these materials?
These
materials include this Proxy Statement, the Notice of Special Meeting, the proxy card, the annual report on Form 10-K as filed
with the Securities and Exchange Commission (the “SEC”) on June 6, 2024, the Current Report on Form 8-K/A as filed with the
SEC on November 25, 2024, and the Quarterly Report on Form 10-Q as filed with the SEC on November 19, 2024.
What
is the purpose of the Special Meeting?
This
is a Special Meeting of the Company’s stockholders. At the Special Meeting, we will be voting upon the following
matters:
1.
To approve, for purposes of complying with NYSE
American Rule 713, pursuant to the terms of the Company’s Series A Preferred Stock: (i) the issuance of shares of Class A Common
Stock in an amount equal to or in excess of 20% of our Class A Common Stock outstanding when the Series A Preferred Stock was authorized,
upon conversion of the shares of Series A Preferred Stock; and (ii) the voting terms thereof, which may constitute a “Change
of control” as defined by the NYSE American Rules;
2.
To approve the adjournment of the Special
Meeting, if necessary or advisable, to solicit additional proxies in favor of the foregoing proposal if there are not sufficient votes
to approve the foregoing proposal; and
3.
Such other matters as may properly come before the
Special Meeting or any lawful adjournment or postponement thereof.
How
do proxies work?
Our
Board is asking for your proxy. This means you authorize persons selected by us to vote your shares at the Special Meeting in
the way you instruct and, with regard to any other business that may properly come before the Special Meeting, as they think best.
Who
is entitled to vote?
Our
Board has fixed the close of business on January __, 2025 as the “Record Date” for a determination of stockholders
entitled to notice of, and to vote at, the Special Meeting or any adjournment or postponement thereof. You can vote at the Special
Meeting if you held shares of our Class A Common Stock or Series A Preferred Stock as of the close of business on the Record Date.
On January __, 2025, there were [*] shares of Class A Common Stock and ___ shares of Series A Preferred Stock outstanding.
Each share of Class A Common Stock entitles the holder thereof to one vote. The holders of shares of Series A Preferred Stock and the
holders of Class A Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of the Company. Each
share of Series A Preferred Stock entities the holder to cast the number of votes determined by dividing the Stated Value ($1,000) by
the higher of $0.01 (subject to adjustment) or the VWAP of the trading day immediately prior to the Record Date (which was $ ____ ),
provided that prior to receipt of the shareholder approval the Company is seeking pursuant to Proposal 1, the voting power of the Series
A Preferred Stock cannot exceed 19.99% of the aggregate voting power of all of the Company’s voting stock. As a result, in the aggregate,
as of the Record Date, the Series A Preferred Stock has _____ votes.
A
list of stockholders of record entitled to vote at the Special Meeting will be available for inspection at our principal executive
offices located at 729 N. Washington Ave., Suite 600, Minneapolis, MN 55401 for a period of at least 10 days prior to the Special
Meeting and during the Special Meeting. The stock transfer books will not be closed between the Record Date and the date of
the Special Meeting.
What
is the difference between holding shares as a record holder and as a beneficial owner (holding shares in street name)?
If
your shares are registered in your name with our transfer agent, Continental Stock Transfer & Trust Company, you are the “record
holder” of those shares. If you are a record holder, these proxy materials have been provided directly to you by the Company.
If
your shares are held in a stock brokerage account, a bank or other holder of record, you are considered the “beneficial owner”
of those shares held in “street name.” If your shares are held in street name, these proxy materials have been forwarded
to you by that organization. As the beneficial owner, you have the right to instruct this organization on how to vote your shares.
Who
may attend the Special Meeting?
Record
holders and beneficial owners may attend the Special Meeting. If your shares are held in street name and you would like to vote
your shares at the Special Meeting, you will need to obtain a valid proxy from the bank, broker, nominee, fiduciary or other custodian
that holds your shares giving you the right to vote the shares at the Special Meeting.
How
do I vote?
If
on [*], 2025, your shares were registered directly in your name with our transfer agent, Continental Stock Transfer & Trust
Company, then you are a stockholder of record. Stockholders of record may vote by using the Internet, by telephone or (if you received
a proxy card by mail) by mail as described below. Stockholders also may attend the virtual meeting and vote electronically. If you hold
shares through a bank, broker, nominee, fiduciary or other custodian, please refer to your proxy card, Notice or other information forwarded
by your bank, broker, nominee, fiduciary or other custodian to see which voting options are available to you.
●
You may vote by using the Internet at [*].com by following the instructions for Internet voting on the Notice or proxy card mailed to
you. Internet voting is available 24 hours a day and will be accessible until 11:59 p.m. Eastern Time on January __, 2025.
●
You may vote by telephone by dialing 1-800-[*] and following the instructions for voting by phone on the Notice or (if you received a
proxy card by mail) the proxy card mailed to you. Telephone voting is available 24 hours a day and will be accessible until 11:59 p.m.
Eastern Time on January __, 2025.
●
You may vote by mail by requesting, completing and mailing in a paper proxy card, as outlined in the Notice. Your vote and the method
you use to vote will not limit your right to vote at the Special Meeting if you decide to virtually attend the Special
Meeting.
●
If you wish to vote electronically at the Special Meeting, go to [*].com using your unique Control Number that was included in
the proxy materials that you received in the mail.
What
if I return a proxy card but do not make specific choices?
If
you are not a record holder, such as where your shares are held through a bank, broker, nominee, fiduciary or other custodian, you must
provide voting instructions to the record holder of the shares in accordance with the record holder’s requirements in order for
your shares to be properly voted. Therefore, if you do not provide voting instructions to your bank, broker, nominee, fiduciary or other
custodian, they may not vote in any of the matters presented for a vote at this Special Meeting, and your shares will be considered
to be a “broker non-vote” with regard to those matters. Broker non-votes will be counted as present for purposes of determining
whether enough votes are present to hold our Special Meeting, but will not otherwise have an effect on the outcome of a vote for
any proposal in this Proxy Statement.
Proposal
2 (the adjournment proposal) is a “routine” matter on which your broker can exercise voting discretion. The
other proposal is considered non-routine and therefore brokers cannot use discretionary authority to vote shares on such other
proposal to be considered at the Special Meeting if they have not received instructions from their clients. Please submit your
vote instruction form so your vote is counted.
How
will my shares be voted?
All
shares entitled to vote and represented by a properly completed, executed and delivered proxy received before the Special Meeting
and not revoked will be voted at the Special Meeting as you instruct in a proxy delivered before the Special Meeting. If
you do not indicate how your shares should be voted on a matter, the shares represented by your proxy will be voted for each proposal
and with regard to any other matters that may be properly presented at the Special Meeting and all matters incident to the conduct
of the meeting. All votes will be tabulated by the inspector of elections appointed for the meeting, who will separately tabulate affirmative
and negative votes, abstentions and broker non-votes.
Who
is paying for this proxy solicitation?
We
have not engaged a proxy solicitor. Our directors and employees may solicit proxies in person, by telephone or by other means of communication.
Directors and employees will not be paid any additional compensation for soliciting proxies. In addition to these mailed
proxy materials, our directors and employees may also solicit proxies in person, by telephone, or by other means of communication. Directors
and employees will not be paid any additional compensation for soliciting proxies. We may also reimburse brokerage firms, banks and other
agents for the cost of forwarding proxy materials to beneficial owners.
What
does it mean if I receive more than one proxy card or Notice?
If
you receive more than one proxy card or Proxy Statement, your shares are registered in more than one name or are registered in different
accounts. Please complete, sign and return each proxy card or submit a proxy for each Proxy Statement to ensure that all of your shares
are voted.
What
if I share an address with another stockholder?
If
you reside at the same address as another stockholder, you and other stockholders residing at the same address may receive a single copy
of this Proxy Statement. This process, which has been approved by the SEC, is called “householding.” However, if stockholders
prefer to receive multiple sets of our disclosure documents at the same address this year or in future years, the stockholders should
follow the instructions described below. Similarly, if an address is shared with another stockholder and together both of the stockholders
would like to receive only a single set of our disclosure documents, the stockholders should follow these instructions: (i) if the shares
are registered in the name of the stockholder, the stockholder should contact us at 729 N. Washington Ave., Suite 600, Minneapolis, MN
55401, (612) 800-0059 to inform us of such stockholder’s request; or (ii) if a bank, broker, nominee, fiduciary or other custodian
holds the shares, the stockholder should contact the bank, broker, nominee, fiduciary or other custodian directly. Stockholders who participate
in householding will continue to have access to and utilize separate proxy voting instructions. The annual report on Form 10-K, quarterly
reports on Form 10-Q, this Proxy Statement and the related notice are also available at [*].
Can
I change my vote after submitting my proxy?
Yes.
You can revoke your proxy at any time before the final vote at the Special Meeting. You may revoke your proxy in any one of three
ways:
●
You may submit another properly completed proxy card with a later date.
●
You may send a written notice that you are revoking your proxy to FOXO Technologies Inc., 729 N. Washington Ave., Suite 600, Minneapolis,
MN 55401, Attention: CEO.
●
You may virtually attend the Special Meeting and vote electronically by going to www.[*] and using your unique Control Number
that was included in the proxy materials that you received in the mail. Simply attending the meeting will not, by itself, revoke your
proxy.
Who
will solicit proxies on behalf of our Board?
Proxies
may be solicited on behalf of our Board, without additional compensation, by the Company’s directors and employees.
The
original solicitation of proxies by mail may be supplemented by telephone, telegram, facsimile, electronic mail and personal solicitation
by our directors and employees (who will receive no additional compensation for such solicitation activities). You may also be solicited
by advertisements in periodicals, press releases issued by us and postings on our corporate website at www.foxotechnologies.com.
Unless expressly indicated otherwise, information contained on our corporate website is not part of this Proxy Statement.
How
are votes counted?
Votes
will be counted by the inspector of elections appointed for the Special Meeting, who will separately count “FOR,”
and “AGAINST” votes, abstentions and broker non-votes. Abstentions and broker non-votes will be counted as
present for purposes of determining the presence of a quorum.
If
your shares are held by your bank or broker as your nominee (that is, in “street name”), you will need to obtain a voting
instruction form from the institution that holds your shares and follow the instructions included on that form regarding how to instruct
your broker to vote your shares. If you do not give instructions to your broker, your broker can vote your shares with respect to “discretionary”
items, but not with respect to “non-discretionary” items. Discretionary items are proposals considered routine under the
rules of the New York Stock Exchange (“NYSE”) on which your broker may vote shares held in street name without your voting
instructions. On non-discretionary items for which you do not give your broker instructions, the shares will be treated as broker non-votes.
Proposal 1 is a non-routine matter and therefore if you hold your shares through a bank, broker, nominee, fiduciary or other custodian,
your shares will not be voted on that proposal unless you provide voting instructions to the record holder.
How
many votes are needed to approve each proposal?
| Proposal |
|
Vote
Required |
|
Broker
Discretionary
Vote
Allowed |
| To
approve, for purposes of complying with NYSE American Rule 713, pursuant to the terms of the Company’s Series A Preferred Stock:
(i) the issuance of shares of Class A Common Stock in an amount equal to or in excess of 20% of our Class A Common Stock outstanding
when the Series A Preferred Stock was authorized, upon conversion of the shares of Series A Preferred Stock; and (ii) the voting
terms thereof, which may constitute a “Change of control” as defined by the NYSE American Rules. |
|
A
majority of the votes cast |
|
No |
| Approval
of one or more adjournments of the Special Meeting to a later date or dates |
|
A
majority of the votes cast |
|
Yes |
What
are the voting procedures?
You
may vote in favor of or against each proposal, or you may abstain from voting on each proposal. You should specify your respective choices
on the accompanying proxy card or your vote instruction form.
All
shares represented by proxy will be voted at the Special Meeting in accordance with the choices specified on the proxy, and where
no choice is specified, in accordance with the recommendations of the Board. Thus, where no choice is specified, the proxies will be
voted for the proposals being placed before our stockholders at the Special Meeting.
Is
my vote confidential?
Yes,
your vote is confidential. The only persons who have access to your vote are the inspector of elections, individuals who help with processing
and counting your votes, and persons who need access for legal reasons. Occasionally, stockholders provide written comments on their
proxy cards, which may be forwarded to our Company’s management and the Board.
What
is the quorum requirement?
A
quorum of stockholders is necessary to hold a valid meeting. A quorum will be present if one-third of the voting power of all the Company’s
outstanding shares entitled to vote at this Special Meeting are represented, in person or by proxy. On the Record Date, there
were in the aggregate [*] shares of Class A Common Stock and ___ shares of Series A Preferred Stock outstanding and entitled to vote.
Such shares have the right to cast an aggregate of __ votes so holders of shares representing at least __votes must be represented by
stockholders present at the Special Meeting or by proxy to have a quorum.
Your
shares will be counted towards the quorum only if you submit a valid proxy vote or vote at the Special Meeting. Abstentions and
broker non-votes will be counted towards the quorum requirement.
How
will my shares be voted if I mark “ABSTAIN” on my proxy card?
We
will count a properly executed proxy card marked “ABSTAIN” as present for purposes of determining whether a quorum
is present, but the shares represented by that proxy card will not be voted at the Special Meeting for the proposals so marked.
How
can I find out the results of the voting at the Special Meeting?
Preliminary
voting results will be announced at the Special Meeting. Final voting results will be available on a Current Report on Form 8-K
filed with the SEC within four business days after the end of the Special Meeting.
What
if I have additional questions that are not addressed here?
If
you have any questions or require any assistance regarding our Special Meeting, please contact:
Seamus Lagan
Chief Executive Officer
729 N. Washington Ave., Suite 600
Minneapolis, MN 55401
(612)
800-0059
legal@foxotechnologies.com
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table lists, as of November 14, 2024, the number of shares of Class A Common Stock beneficially owned by (i) each person, entity
or group (as that term is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”))
known to us to be the beneficial owner of more than 5% of the outstanding shares of common stock; (ii) each of our directors; (iii)
each of our named executive officers; and (iv) all current executive officers and directors as a group. Information relating to beneficial
ownership of common stock by our principal stockholders and management is based upon information furnished by each person using “beneficial
ownership” concepts under the rules of the SEC. Under these rules, a person is deemed to be a beneficial owner of a security if
that person directly or indirectly has or shares voting power, which includes the power to vote or direct the voting of the security,
or investment power, which includes the power to dispose or direct the disposition of the security. The person is also deemed to be a
beneficial owner of any security of which that person has a right to acquire beneficial ownership within 60 days. Under the SEC rules,
more than one person may be deemed to be a beneficial owner of the same securities, and a person may be deemed to be a beneficial owner
of securities as to which he or she may not have any pecuniary interest. Except as noted below, each person has sole voting and investment
power with respect to the shares beneficially owned and each stockholder’s address is c/o FOXO Technologies Inc., 729 N. Washington
Ave., Suite 600, Minneapolis, MN 55401.
Applicable
percentage of ownership is based on 17,286,574 shares of Class A Common Stock issued as of November 14, 2024.
| Name and Address of Beneficial Owner | |
Number of Shares
of Common Stock (6) | | |
% of
Class (7) | |
| Directors and Executive Officers: | |
| | | |
| | |
| Mark White (1) | |
| 237,037 | | |
| 1.37 | % |
| Martin Ward (1) | |
| 237,037 | | |
| 1.37 | % |
| Bret Barnes (2) | |
| 11,865 | | |
| * | |
| Francis Colt de Wolf III | |
| 0 | | |
| - | |
| Seamus Lagan (3) | |
| 1,023,629 | | |
| 5.92 | % |
| Trevor Langley (4) | |
| 1,023,629 | | |
| 5.92 | % |
| All current directors and executive officers as a group (six individuals) (5) | |
| 1,272,531 | | |
| 7.36 | % |
| | |
| | | |
| | |
5%
Beneficial Holders (Not Named Above) Rennova
Health, Inc. 400
S. Australian Avenue, Suite 800 West Palm Beach, Florida 33401 | |
| 1,023,629 | | |
| 5.92 | % |
| * |
less
than 1%. |
| |
|
| (1) |
Includes
237,037 shares of Class A Common Stock held by KR8 AI, an entity which Messrs. White and Ward control. On December 5, 2024, KR8
AI was issued 3,000 shares of Series D Preferred Stock, which are not included in the above table. |
| |
|
| (2) |
Includes
(i) 3,333 shares of Class A Common Stock held by Mr. Barnes that are subject to forfeiture
pursuant to the Management Contingent Share Plan; and (ii) 3,532 shares of Class A Common
Stock underlying vested options held by Mr. Barnes.
|
| |
|
| (3) |
Shares
are owned by Rennova Health, Inc. (“RHI”). Mr. Lagan is the Chief Executive
Officer and President and a director of RHI. Mr. Lagan disclaims beneficial ownership of
such securities except to the extent of his pecuniary interest therein. On December 5, 2024,
RHI was issued 21,000 shares of Series A Preferred Stock, which are not included in the above
table.
|
| (4) |
Shares
are owned by RHI. Mr. Langley is a director of RHI. Mr. Langley disclaims beneficial ownership of such securities except to the extent
of his pecuniary interest therein. On December 5, 2024, RHI was issued 21,000 shares of Series A Preferred Stock, which are not included
in the above table. |
| |
|
| (5) |
Our
current directors and executive officers are: Francis Colt de Wolf III (Director), Bret Barnes (Chairman and Director), Mark White
(Director), Martin Ward (Interim Chief Financial Officer), Seamus Lagan (Chief Executive Officer and Director) and Trevor
Langley (Director). |
| |
|
| (6) |
These
amounts are based upon information available to the Company as of the date of this filing. |
| |
|
| (7) |
To
our knowledge, except as indicated in the footnotes above and subject to state community property laws where applicable, all beneficial
owners named in the beneficial ownership table above have sole voting and investment power with respect to all shares shown as beneficially
owned by them. |
PROPOSAL
1 – TO APPROVE, FOR PURPOSES OF COMPLYING WITH NYSE AMERICAN RULE 713, PURSUANT TO THE TERMS OF THE COMPANY’S SERIES A PREFERRED
STOCK: (I) THE ISSUANCE OF SHARES OF CLASS A COMMON STOCK IN AN AMOUNT EQUAL TO OR IN EXCESS OF 20% OF OUR CLASS A COMMON STOCK OUTSTANDING
WHEN THE SERIES A PREFERRED STOCK WAS AUTHORIZED, UPON CONVERSION OF THE SHARES OF SERIES A PREFERRED STOCK; AND (II) THE VOTING TERMS
THEREOF, WHICH MAY CONSTITUTE A “CHANGE OF CONTROL” AS DEFINED BY THE NYSE AMERICAN RULES.
As
previously disclosed, on June 10, 2024 the Company entered into a Stock Exchange Agreement (the “RCHI SEA”) with Rennova
Community Health, Inc. (“RCHI”) and RHI. It provided that the Company and RHI would exchange 100 shares of Common Stock
of RCHI for 20,000 shares of the Company’s to-be-designated Series A Preferred Stock, subject to adjustment. Closing of the RCHI
SEA was subject to a number of conditions.
On
September 10, 2024, the Company entered into the Amended and Restated Stock Exchange Agreement with RCHI and RHI (the “Amendment”)
pursuant to which the RCHI SEA was amended to change the consideration to be received by RHI in exchange for all of the equity interest
of RCHI from 20,000 shares of Series A Preferred Stock to $100. In addition, under the Amendment, RCHI issued to RHI a senior note in
the principal amount of $22,000,000 (subject to adjustment) (the “Note”). The Amendment closed on September 10, 2024
and RCHI became a wholly-owned subsidiary of the Company.
On
December 5, 2024, the Company entered into an Exchange Agreement (the “Exchange Agreement”) with RCHI and RHI. Pursuant
to the Exchange Agreement, $21,000,000 of the principal of the Note was exchanged for 21,000 shares of the Company’s Series A
Preferred Stock. This number remains subject to adjustment up to June 10, 2025, and may increase as described in the
agreements. Upon the closing of the Exchange Agreement, RCHI executed a senior secured promissory note payable to RHI in the
principal amount of $1,000,000 on the same terms of the Note (the “New Note”). The New Note will mature six months from
the closing of the Exchange Agreement. The Exchange Agreement also provided for the following:
| |
● |
The
Company filing a proxy statement on Schedule 14A with the SEC in connection with an Annual Meeting of Shareholders to be held on
or prior to December 31, 2024 with a proposal to permit the full conversion of RHI’s shares of Series A Preferred Stock into
shares of Class A Common Stock pursuant to the rules of the New York American Stock Exchange (this approval was deferred to this Special Meeting); |
| |
● |
Mark
White shall be appointed as the sole director and Chief Executive Officer of FOXO Labs Inc., a wholly-owned subsidiary of the Company; |
| |
● |
Seamus
Lagan be appointed as the Chief Executive Officer of the Company; and |
| |
● |
The
Company shall have executed the Registration Rights Agreement with RHI dated December 5, 2024. |
The
Exchange Agreement closed on December 5, 2024.
A
copy of the Exchange Agreement is filed as Exhibit 99.1 to our Current Report on Form 8-K filed with the SEC on December 10, 2024.
Also,
on December 6 and 7, 2024, the Company received three separate letter requests from an institutional investor to exchange an aggregate
of $2,240,000 principal amount of Senior Notes (which were issued on June 14, 2024, August 1, 2024 and December 6, 2024) for $2,464,000
stated value of Series A Preferred Stock (or 2,464 shares). The Senior Notes had an exchange right provision, permitting the institutional
investor to exchange the Senior Notes for Series A Preferred Stock at a 10% premium. As of January __, 2025, the institutional investor
had converted ___________ shares of Series A Preferred Stock into an aggregate of ________ shares of Class A Common Stock.
Why
We Are Seeking Stockholder Approval
The
Exchange Agreement requires that the Company seek stockholder approval. Our Class A Common Stock is listed on the NYSE American and we
are subject to Section 713(a) of the NYSE American Company Guide, which requires us to obtain stockholder approval when shares will be
issued in connection with a transaction involving the sale, issuance or potential issuance by the issuer of common stock (or securities
convertible into common stock) equal to 20% or more of presently outstanding common stock for less than the greater of book or market
value of the stock. In addition, Section 713(b) of the NYSE American Company Guide requires stockholder approval of a transaction involving
the issuance or potential issuance of shares that will result in a change of control of the issuer.
The
Certificate of Designation for the Series A Preferred Stock was filed with the Secretary of State of the State of Delaware on October
18, 2024. On that date, we had ______ shares of Class A Common Stock outstanding. The Certificate of Designation authorizes that up to
35,000 shares may be issued, which (if all shares were issued) would be convertible into ______ shares of Class A Common Stock (assuming
the conversion price of $________ per share, which would be the applicable conversion price as of the Record Date), which represents
more than 20% of our outstanding Class A Common Stock as of October 18, 2024. Also, if RHI converted all of the __________ shares of
its Series A Preferred Stock at that conversion price it would be issued _______ shares of Class A Common Stock, which would represent
a change of control of the Company. The terms of the Series A Preferred Stock, as described below, limit its conversion to a number
of shares of Class A Common Stock equal to no more than 3,164,192 shares, which was less than the 20% limit when the Certificate of Designation
was filed, until shareholder approval is received. An Amended and Restated Certificate of Designation was filed with the Secretary
of State of the State of Delaware on December 27, 2024.
The
Company’s Board of Directors has submitted this proposal to the Company’s shareholders for approval to comply with the listing
requirements of the NYSE American. The terms of the Series A Preferred Stock limit its convertibility to the specified number of shares
until we get shareholder approval. In addition, the Exchange Agreement, pursuant to which the shares of Series A Preferred Stock were
issued, requires us to seek shareholder approval. The conversion price of the Series A Preferred Stock as noted below, may fluctuate
based on the market price of the Class A Common Stock, which, depending on when the shares are converted, may result in more or
less shares of Class A Common Stock being issued than the number indicated above, which assumed a conversion price of $______ per share,
which would have been the applicable price if the shares of Series A Preferred Stock were converted on the Record Date.
Summary
of Terms of the Series A Preferred Stock
The
principal terms of the Series A Preferred Stock are summarized below. A copy of the Amended and Restated Certificate of Designation
for the Series A Preferred Stock is attached as Exhibit A to this Proxy Statement. You should read Exhibit A in its entirety and the
following summary is qualified by reference to Exhibit A.
General.
The Company’s Board of Directors designated up to 35,000 shares as the Series A Preferred Stock. Each share has a stated value
of $1,000. There are ____ shares of Series A Preferred Stock issued as of the Record Date and ______ shares of Series A Preferred
Stock have been converted into shares of Class A Common Stock, leaving up to ______ additional shares that may be issued in the future.
Voting
Rights. The holders of shares of Series A Preferred Stock, the holders of Class A Common Stock and the holders of any other class
or series of shares entitled to vote with the Class A Common Stock shall vote together as one class on all matters submitted to a vote
of stockholders of the Company. The outstanding shares of Series A Preferred Stock are limited in the number of votes they may have in
the aggregate to no more than 19.99% of the aggregate voting power of all of the Company’s voting stock on the applicable record
date provided, that, after the receipt of the shareholder approval, that limitation would no longer be applicable. After receipt
of the shareholder approval, each share of Series A Preferred Stock would have the number of votes determined by dividing the stated
value ($1,000) by the higher of $0.01 (such dollar amount being subject to adjustment) or the VWAP of the trading day immediately prior
to the record date of the vote. For comparison, prior to the shareholder approval, as of the Record Date, each of the ____ ________ currently
outstanding shares of Series A Preferred Stock has ____ votes (using the VWAP of $_____ for the Class A Common Stock on the trading day
immediately prior to the Record Date) and after shareholder approval each such share would have ______ votes.
Dividends.
Holders of shares of the Series A Preferred Stock are entitled to receive, when, as and if authorized by the Board of Directors and
declared by the Company, out of funds of the Company legally available for the payment of dividends, cumulative cash dividends in an
amount for each share equal to 5% per annum multiplied by the stated value ($1,000). Dividends shall accrue daily and are cumulative.
They are payable quarterly. No dividends on the Series A Preferred Stock shall be authorized or paid at any time if the terms of any
agreement of the Company prohibit it or if doing so would result in a default or if it shall be restricted or prohibited by law. Dividends,
however, shall continue to accrue if not paid although no interest will be payable in respect of any dividend payment that may be in
arrears. No cash dividends may be paid on the Class A Common Stock unless the full cumulative dividends on the Series A Preferred Stock
have been paid.
Conversion.
Each share of Series A Preferred Stock is convertible, subject to receipt of the shareholder approval, at any time and from time
to time, at the option of the holder, into that number of shares of Class A Common Stock determined by dividing the stated value of such
share ($1,000), plus any accrued and unpaid dividends thereon (whether declared or not declared), by the conversion price, which is the
higher of $0.01 or 90% of the average VWAP of the five trading days immediately prior to the conversion date. As of the Record Date,
the conversion price would have been $___________, which is the average VWAP of the five trading days immediately prior to the Record
Date.
Issuance
Restrictions. Holders of shares of Series A Preferred Stock (other than RHI and its affiliates) are prohibited from converting
the shares of Series A Preferred Stock into Shares of Class A Common Stock if, as a result of such conversion, the holder, together with
its affiliates, would own more than 4.99% of the number of shares of Class A Common Stock then issued and outstanding. A holder may increase
or decrease such percentage not in excess of 9.99%, provided that any increase shall not be effective until 61 days after notice to the
Company. Notwithstanding anything to the contrary in the Certificate of Designation, until the Company has obtained shareholder approval,
the Company may not issue, upon the conversion of any shares of Series A Preferred Stock, a number of shares of Class A Common Stock
which, when aggregated with any shares of Class A Common Stock issued upon conversion of any other shares of Series A Preferred Stock,
would exceed 3,164,142 (subject to adjustment). Such number represented 20% of the number of shares of Class A Common Stock issued and
outstanding when the Certificate of Designation for the Series A Preferred Stock was filed. As of the Record Date, _______ shares
of Series A Preferred Stock have been converted into ______ shares of Class A Common Stock.
Liquidation
Preference. Upon any liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, the holders of the
Series A Preferred Stock shall be entitled to receive, out of the assets of the Company, an amount equal to the stated value ($1,000),
plus any accrued and unpaid dividends (whether declared or not declared) and any other fees or liquidated damages then due or owing under
the Certificate of Designation, for each share of Series A Preferred Stock, before any distribution or payment shall be made to the holders
of any other capital stock. After the payment in full of all amounts required to be paid to the holders of the Series A Preferred Stock,
the remaining assets of the Company shall be distributed to the holders of the Series A Preferred Stock and the Company’s other
capital stock pro rata based on the number of shares held by such holder, treating for this purpose all such securities as if they had
been converted into Class A Common Stock pursuant to the terms thereof (presuming, for this purpose, that all conditions to the convertibility
of all such shares had been satisfied).
Redemption.
At any time, the Company shall have the right, but not the obligation, to redeem all, or any part, of the Series A Preferred Stock
then outstanding. The redemption price for each share of Series A Preferred Stock would be the stated value ($1,000), plus all accrued
and unpaid dividends on such share (whether declared or not declared).
Exchange
Right. In the event the Company ever issues any other class or series of preferred stock that is registered under Section 12 of the
Exchange Act (each such class or series, the “New Preferred Stock”), a holder of the Series A Preferred Stock shall have
the right, but not the obligation, subject to certain conditions, to exchange shares of the Series A Preferred Stock for shares of the
New Preferred Stock. For each share of Series A Preferred Stock to be exchanged, the holder shall receive shares of New Preferred Stock
with an aggregate stated value equal to the stated value of such share of Series A Preferred Stock ($1,000), plus all accrued but unpaid
dividends thereon (whether declared or not declared).
Impact
of the Issuance of Class A Common Stock on Existing Shareholders
Shareholder
approval of this proposal would have the following effects:
Increased
Dilution. The number of shares of our issued and outstanding Class A Common Stock could be significantly increased if this
proposal is approved. Currently, the shares of Class A Common Stock into which the Series A Preferred Stock may be converted is
limited by the terms of the Series A Preferred Stock to 3,164,142. If this proposal is approved, that limitation would no longer be
in effect and shares of the Series A Preferred Stock could potentially be converted into _____ shares of Class A Common Stock (using
the conversion price as of the Record Date), assuming all __ remaining authorized shares of Series A Preferred Stock are
issued (after deducting from the 35,000 authorized shares the _____ shares of Class A Common Stock already issued upon conversion
of shares of Series A Preferred Stock as noted above). Currently, only _____shares of Series A Preferred Stock are issued,
pursuant to which ______ shares of Class A Common Stock could be issued upon conversion (using the conversion price as of the Record
Date) if stockholder approval is received.
Increased
Number of Shares Available for Public Sale May Decrease Market Price. Similarly, upon conversion of the Series A Preferred Stock
there would be a greater number of shares of our Class A Common Stock eligible for sale in the public markets. Any such sales, or the
anticipation of the possibility of such sales, represents an overhang on the market and could depress the market price of our Class A
Common Stock.
Potential
Issuances of Shares of Class A Common Stock May Discourage Strategic Transactions and Future Financings. The potential future increased
issuance of shares of Class A Common Stock under the Series A Preferred Stock may make it more difficult, or discourage an attempt, to
obtain control of the Company by means of a merger, tender offer, proxy contest or otherwise, and may make future financings more difficult.
Increased
Voting Power of the Series A Preferred Stock and Potential Control of the Company by the Holders of the Series A Preferred Stock. As
noted above, currently the outstanding shares of Series A Preferred Stock are limited to the number of votes they may have in the aggregate
to no more than 19.99% of the aggregate voting power of all of the Company’s voting stock on the applicable record date. That limitation
would not be applicable once shareholder approval is received. In fact, after shareholder approval the shares of Series A Preferred Stock
may represent a majority of the total voting power of the Company’s voting stock. If that is the case, the holders of the Series
A Preferred Stock would have sufficient votes, by themselves, to elect all of the directors and approve or defeat any proposal voted
on by the Company’s stockholders, unless there is a supermajority required under applicable law or by agreement. Holders of our
Class A Common Stock, therefore, would not then have any control on issues submitted to a vote of stockholders.
As
of the Record Date, RHI owns 21,000 shares of Series A Preferred Stock which, assuming receipt of shareholder approval, would represent
__% of the total voting power of the Company’s voting securities. The percentage would fluctuate based on the market price of the
Company’s Class A Common Stock, as well as any future issuances or conversions of the Company’s securities.
Impact
if this Proposal is Not Approved
In
connection with the Exchange Agreement, on December 5, 2024, RCHI delivered a $1,000,000 note with a six-month maturity to RHI.
If shareholder approval is not obtained within 60 days, the principal amount of the note increases to $2,500,000. The Company is unlikely
to be able to pay this Note and would then be in default of the provisions of the Note, which could have significant consequences for
the Company.
Interest
of Certain Persons
Mr.
Lagan and Mr. Langley, directors of the Company, are also directors of RHI. Mr. Lagan, our Chief Executive Officer, is also Chief Executive
Officer of RHI. As such, they may have an interest as to whether shareholder approval is received.
Dissenters’
Rights
Under
Delaware law, stockholders are not entitled to dissenters’ rights with respect to the transactions contemplated by this proposal.
Required
Vote
The
affirmative vote of a majority of the shares of Class Ą Common Stock and Series A Preferred Stock present and entitled to vote
at the Special Meeting is required to approve this Proposel 1. Abstentions and broker non-votes with respect to this proposal
will be counted for purposes of establishing a quorum. Abstentions and broker non-votes will have no effect on the outcome of the vote.
THE
BOARD RECOMMENDS A VOTE “FOR” THE APPROVAL OF PROPOSAL 1.
PROPOSAL
2 – APPROVAL OF ONE OR MORE ADJOURNMENTS OF THE SPECIAL MEETING TO A LATER DATE OR DATES TO SOLICIT ADDITIONAL PROXIES
IF THERE ARE INSUFFICIENT VOTES TO APPROVE THE PROPOSAL IN THIS PROXY STATEMENT
We
are asking our stockholders to approve a proposal that will allow us to adjourn the Special Meeting to a later date or dates to
solicit additional proxies if there are insufficient votes to approve the above proposal in this Proxy Statement. If our stockholders
approve this proposal, we could adjourn the Special Meeting and any reconvened session of the Special Meeting and use the
additional time to solicit additional proxies, including the solicitation of proxies from stockholders that have previously returned
properly executed proxies voting against approval of any of the proposals in this Proxy Statement. Among other things, approval of this
proposal could mean that, even if we had received proxies representing a sufficient number of votes against approval of each of the proposals
in this Proxy Statement, such that each proposal would be defeated, we could adjourn the Special Meeting without a vote on the
approval of each of the proposals in this Proxy Statement and seek to convince the holders of those shares to change their votes to votes
in favor of approval of each of the proposals in this Proxy Statement.
The
Board believes that it is in the best interests of our Company and our stockholders to be able to adjourn the Special Meeting
to a later date or dates if necessary or appropriate for the above-referenced reasons.
REQUIRED
VOTE
The
affirmative vote of a majority of the shares of Class A Common Stock and Series A Preferred Stock present and entitled to vote at the
Special Meeting is required for the approval of the adjournment proposal. Abstentions and broker non-votes with respect to this
proposal will be counted for purposes of establishing a quorum. Abstentions and broker non-votes will have no effect on the outcome of
the vote.
For
this Proposal 2, if a quorum is not present at the Special Meeting, Article II, Subsection 2.6 of our Bylaws states that
the chairman of the meeting may adjourn the Special Meeting.
THE
BOARD RECOMMENDS A VOTE “FOR” THE APPROVAL OF THE ADJOURNMENT PROPOSAL.
OTHER
BUSINESS
As
of the date of this Proxy Statement, our management has no knowledge of any business that may be presented for consideration at the Special
Meeting, other than that described above. As to other business, if any, that may properly come before the Special Meeting,
or any adjournment thereof, it is intended that the proxy hereby solicited will be voted in respect of such business in accordance with
the judgment of the proxy holders.
STOCKHOLDER
PROPOSALS
You
may present proposals for action at a future meeting or submit nominations for election of directors only if you comply with the requirements
of the rules established by the SEC and our Bylaws, as applicable.
In
order for a stockholder proposal to be considered for inclusion in our proxy statement and form of proxy relating to our annual meeting
of stockholders to be held in 2025 pursuant to Rule 14a-8 under the Exchange Act, the proposal must be received by us via physical mail
sent to our principal executive offices at 729 N. Washington
Ave., Suite 600, Minneapolis, MN 55401 Attention: Management no later than ________, 2025.
Stockholders
wishing to bring a proposal or nominate a director at the annual meeting to be held in 2025 under our Bylaws must provide written notice
of such proposal to our Secretary at our principal executive offices between close of business _________, 2025 and close of business
_________, 2025 and comply with the other provisions of our Bylaws. In addition to complying with the advance notice provisions
of our Bylaws, to nominate a director, stockholders must give timely notice that complies with the additional requirements of Rule 14a-19
under the Exchange Act, which must be received no later than ________, 2025.
HOUSEHOLDING
INFORMATION
Unless
we have received contrary instructions, we may send a single copy of this Proxy Statement to any household at which two or more stockholders
reside if we believe the stockholders are members of the same family. This process, known as “householding”, reduces the
volume of duplicate information received at any one household and helps to reduce our expenses. However, if stockholders prefer to receive
multiple sets of our disclosure documents at the same address this year or in future years, the stockholders should follow the instructions
described below. Similarly, if an address is shared with another stockholder and together both of the stockholders would like to receive
only a single set of our disclosure documents, the stockholders should follow these instructions:
| |
● |
If
the shares are registered in the name of the stockholder, the stockholder should contact us at 729 N. Washington Ave., Suite 600,
Minneapolis, MN 55401, (612) 800-0059 to inform us of such stockholder’s request; or |
| |
|
|
| |
● |
If
a bank, broker, nominee, fiduciary or other custodian holds the shares, the stockholder should contact the bank, broker, nominee,
fiduciary or other custodian directly. |
WHERE
YOU CAN FIND MORE INFORMATION
We
file reports, proxy statements and other information with the SEC as required by the Exchange Act. You can read the Company’s SEC
filings, including this Proxy Statement, over the Internet at the SEC’s website at http://www.sec.gov.
You
may also obtain these documents by requesting them via e-mail from the Company at the following address and telephone number:
Seamus
Lagan
Chief
Executive Officer
729
N. Washington Ave., Suite 600
Minneapolis, MN 55401
(612)
800-0059
legal@foxotechnologies.com
If
you are a stockholder of the Company and would like to request documents, please do so by [*], 2025, five business days prior
to the Special Meeting, in order to receive them before the Special Meeting. If you request any documents from us,
we will mail them to you by first class mail, or another equally prompt means.
| |
By
Order of the Board |
| |
|
| |
/s/
Seamus Lagan |
| |
Seamus
Lagan |
| |
Chief
Executive Officer |
January __, 2025
EXHIBIT
A
FOXO Technologies (PK) (USOTC:FOXOW)
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