As filed with the Securities
and Exchange Commission on June 23, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT
OF 1933
FOXO Technologies Inc.
(Exact name of registrant
as specified in its charter)
| Delaware |
|
85-1050265 |
|
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
729 N. Washington Ave.,
Suite 600
Minneapolis, MN
55401
(Address of Principal
Executive Offices)
FOXO TECHNOLOGIES INC.
2022 EQUITY INCENTIVE PLAN, AS AMENDED
(Full title of the
plan)
Tyler Danielson
Interim Chief Executive
Officer
729 N. Washington Ave.,
Suite 600
Minneapolis, MN 55401
(Name and address of
agent for service)
(612) 562-9447
(Telephone number,
including area code, of agent for service)
Copies to:
|
Tyler Danielson
Interim Chief Executive Officer
729 N. Washington Ave.,
Suite 600
Minneapolis, MN 55401
Telephone: (612) 562-9447 |
|
Nimish Patel, Esq.
Blake Baron, Esq.
Mitchell Silberberg & Knupp LLP
437 Madison Ave., 25th Floor
New York, New York 10022
Telephone: (917) 546-7709 |
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.
| Large accelerated filer |
☐ |
Accelerated filer |
☐ |
| Non-accelerated filer |
☒ |
Smaller reporting company |
☒ |
| |
|
Emerging growth company |
☒ |
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
This
Registration Statement on Form S-8 (this “Registration Statement”) is being filed, pursuant to General Instruction
E of Form S-8, by FOXO Technologies Inc. (the “Registrant”) to register an additional 3,232,385
shares of the Registrant’s Class A common stock, par value $0.0001 per share (the “Class A Common Stock”),
for issuance with respect to equity awards made under the FOXO Technologies Inc. 2022 Equity Incentive Plan, as amended (the “2022
Plan”). These additional 3,232,385 shares of Class A Common Stock have been reserved for issuance under the 2022 Plan pursuant
to the amendment to the 2022 Plan, as approved by the Registrant’s stockholders at the 2023 annual meeting of stockholders on May
26, 2023.
The Registrant filed a Registration
Statement on Form S-8 (File No. 333-268981) with the Securities and Exchange Commission (the “Commission”) on December
23, 2022 (the “Prior Form S-8”) to register an aggregate of 6,251,735 shares of Class A Common Stock reserved for issuance
with respect to equity awards made under the 2022 Plan and the FOXO Technologies Inc. 2020 Equity Incentive Plan (the “2020 Plan”),
consisting of 3,286,235 shares of Class A Common Stock reserved for issuance pursuant to the 2022 Plan and 2,965,500 shares of Class A
Common Stock that may be issued pursuant to the exercise of outstanding stock options under the 2020 Plan. The Prior Form S-8 is currently
effective.
These
additional 3,232,385 shares of Class A Common Stock are securities of the same class as other securities for which the Prior Form S-8
relating to the same benefit plan was filed with the Commission. Pursuant to General Instruction E of Form S-8, the contents
of the Prior Form S-8 are incorporated by reference herein. In accordance with the instructional note to Part I of Form S-8 as
promulgated by the Commission, the information specified by Part I of the Form S-8 has been omitted from this Registration Statement.
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents
by Reference.
The
following documents previously filed by FOXO Technologies Inc. (the “Registrant”) with the Commission are incorporated
by reference into this Registration Statement:
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(1) |
The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, as filed with the Commission on March 31, 2023; |
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|
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(2) |
The Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2023, filed with the Commission on May 11, 2023; |
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(3) |
The Registrant’s Current Reports on Form 8-K, filed
with the Commission on January
12, 2023, February 2,
2023, February 3, 2023,
February 6, 2023,
February 8, 2023, March
10, 2023, March 20,
2023, March 31, 2023,
April 18, 2023, May
11, 2023, May 17,
2023, May 30, 2023, June 15, 2023, and June 16, 2023, respectively; and |
| |
(4) |
The description of the Registrant’s Class A Common Stock set forth in Exhibit 4.4 of the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, as filed with the Commission on March 31, 2023, together with any amendments or reports filed for the purpose of updating such description. |
All
documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment to the Registration Statement which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed incorporated by reference into this Registration Statement
and to be a part hereof from the date of the filing of such documents, except that information furnished to the Commission under Item
2.02 or Item 7.01 in Current Reports on Form 8-K and any exhibit relating to such information, shall not be deemed to be incorporated
by reference in this Registration Statement.
Any
statement contained herein or in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall
be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration
Statement, or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this Registration
Statement, modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not
applicable.
Item 5. Interests of Named Experts
and Counsel.
Not
applicable.
Item 6. Indemnification of Directors
and Officers.
Section 145
of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to
directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the Delaware General
Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement
of expenses incurred, arising under the Securities Act of 1933, as amended, or Securities Act.
Our
Certificate of Incorporation contains provisions limiting the liability of directors, and our Bylaws provide that we will indemnify each
of our directors to the fullest extent permitted under Delaware law. The Certificate of Incorporation and Bylaws also provide us with
discretion to indemnify officers and employees when determined appropriate by the Board of Directors.
We
entered into indemnification agreements with each of our directors and executive officers. The indemnification agreements provide that
we indemnify each of our directors, executive officers and such other key employees against any and all expenses incurred by that director,
executive officer or other key employee because of his or her status as one of our directors, executive officers or other key employees,
to the fullest extent permitted by Delaware law, our Certificate of Incorporation and our Bylaws. In addition, the indemnification agreements
provide that, to the fullest extent permitted by Delaware law, we will advance all expenses incurred by our directors, executive officers,
and other key employees in connection with a legal proceeding involving his or her status as a director, executive officer or key employee.
Item 7. Exemption from Registration
Claimed.
Not applicable.
Item 8. Exhibits.
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; 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) and (a)(1)(ii) 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 the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in 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 Commission 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 of 1933, 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 Minneapolis, State of Minnesota, on June 23, 2023.
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FOXO TECHNOLOGIES INC. |
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|
|
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By |
/s/ Tyler Danielson |
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Name: |
Tyler Danielson |
| |
Title: |
Interim Chief Executive Officer |
POWER OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Tyler Danielson and Robby Potashnick as his or her true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for such person and in his or her name, place and stead, in any and all capacities,
to sign any or all further amendments (including post-effective amendments) to this registration statement (and any additional registration
statement related hereto permitted by Rule 462(b) promulgated under the Securities Act (and all further amendments,
including post-effective amendments, thereto)), 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, and each of them, 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 might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent,
or his or her substitute or substitutes, 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 by the following persons in the capacities
and on the dates indicated.
| Signature |
|
Title |
|
Date |
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|
|
|
|
/s/ Tyler Danielson
Tyler Danielson |
|
Interim Chief Executive Officer and Director
(Principal Executive Officer) |
|
June 23, 2023 |
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/s/ Robby Potashnick
Robby Potashnick |
|
Chief Financial Officer
(Principal Accounting Officer) |
|
June 23, 2023 |
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|
|
|
|
/s/ Andrew J. Poole
Andrew J. Poole |
|
Director |
|
June 23, 2023 |
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|
|
|
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/s/ Bret Barnes
Bret Barnes |
|
Director |
|
June 23, 2023 |
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|
/s/ Murdoc Khaleghi
Murdoc Khaleghi |
|
Director |
|
June 23, 2023 |
II-4
