Calidi Biotherapeutics, Inc PRE 14A, filed Apr 29, 2024

Calidi Biotherapeutics, Inc. (CLDI)

PRE 14A 2024-04-29 For: 2024-04-29

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Filed by the Registrant		☒
Filed by a Party other than the Registrant		☐

☒		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

☒	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

	By Order of the Board of Directors,

	/s/ Allan J. Camaisa
San Diego, California	Allan J. Camaisa,
May [●], 2024	Chairman

	1.	To approve an amendment to our Second Amended and Restated Certificate of Incorporation, in substantially the form attached to the Proxy Statement as Appendix A, to, at the discretion of the Board of Directors of the Company (the “Board”), effect a reverse stock split with respect to the Company’s issued and outstanding Common Stock, par value $0.0001 per share, which consists of Voting Common Stock and Non-Voting Common Stock, at a ratio between 1-for-10 and 1-for-50 (the “Range”), with the ratio within such Range to be determined at the discretion of the Board (the “Reverse Stock Split Proposal”) and included in a public announcement.

	2.	To approve for purposes of complying with NYSE American Rule 713(a), the issuance of Common Stock Units at $0.40 per Common Stock Unit with each Common Stock Unit consisting of: (i) one share of our voting common stock, (ii) a Series A Warrant to purchase one share of our common stock, (iii) a Series B warrant to purchase one Series B Unit with each Series B Unit consisting of (a) one share of our common stock and (b) a Series B-1 Warrant to purchase one share of our common stock, and (iv) a Series C warrant to purchase one Series C Unit with each Series C Unit consisting of (a) one share of our common stock and (b) a Series C-1 Warrant to purchase one share of our common stock in connection with the conversion of a $1.0 million Convertible Note dated January 26, 2024, which will result in potential issuances of securities of over 20% of the issued and outstanding shares of Common Stock (the “$1.0 million Convertible Note Proposal”).

	3.	To approve for purposes of complying with NYSE American Rule 713(a), the issuance of Common Stock Units at $0.40 per Common Stock Unit with each Common Stock Unit consisting of: (i) one share of our voting common stock, (ii) a Series A warrant to purchase one share of our common stock, (iii) a Series B warrant to purchase one Series B Unit with each Series B Unit consisting of (a) one share of our common stock and (b) a Series B-1 Warrant to purchase one share of our common stock, and (iv) a Series C warrant to purchase one Series C Unit with each Series C Unit consisting of (a) one share of our common stock and (b) a Series C-1 Warrant to purchase one share of our common stock in connection with the conversion of a $2.0 million convertible note, as amended, issued pursuant to the Settlement Agreement dated March 9, 2024, which will result in potential issuances of securities of over 20% of the issued and outstanding shares of Common Stock (the “$2.0 million Convertible Note Proposal”).

	4.	To approve for purposes of complying with NYSE American Rule 713(a), the issuance of shares of voting Common Stock in connection with the a $25.0 million, with the right to increase to $50.0 million, Standby Equity Purchase Agreement dated December 10, 2024 as may be amended (the “SEPA”), which may result in potential issuances of securities of over 20% of the issued and outstanding shares of Common Stock (the “SEPA Proposal”).

	5.	To approve the adjournment of the meeting, if necessary or advisable, to solicit additional proxies in favor of the Reverse Stock Split Proposal (“Adjournment Proposal”).

	Page
General Information About the Meeting
General Information About the Proxy Materials, Special Meeting and Voting
Proposal 1 —Approve the Reverse Stock Split Proposal	9
Proposal 2 —Approve the $1.0 million Convertible Note Proposal	21
Proposal 3— Approve the $2.0 million Convertible Note Proposal	23
Proposal 4— Approve the SEPA Proposal	25
Proposal 5 — Approve the Adjournment Proposal	27
Security Ownership of Certain Beneficial Owners and Management	28
Stockholder Proposals for the 2024 Special Meeting of Stockholders	30
Sharing the Same Last Name and Address	31
Other Matters	31
Appendix A-Reverse Stock Split Amendment	A-1

Proposal 1:	To approve an amendment to our Second Amended and Restated Certificate of Incorporation in substantially the form attached to the Proxy Statement as Appendix A, to, at the discretion of the Board of Directors of the Company (the “Board”), effect a reverse stock split with respect to the Company’s issued and outstanding Common Stock, par value $0.0001 per share, which consists of Voting Common Stock and Non-Voting Common Stock, at a ratio between 1-for-10 and 1-for-50 (the “Range”), with the ratio within such Range to be determined at the discretion of the Board (the “Reverse Stock Split Proposal”) and included in a public announcement.

Proposal 2:	To approve for purposes of complying with NYSE American Rule 713(a), the issuance of Common Stock Units with each Common Stock Unit consisting of: (i) one share of our voting common stock, (ii) a Series A warrant to purchase one share of our common stock, (iii) a Series B warrant to purchase one Series B Unit with each Series B Unit consisting of (a) one share of our common stock and (b) a Series B-1 Warrant to purchase one share of our common stock, and (iv) a Series C warrant to purchase one Series C Unit with each Series C Unit consisting of (a) one share of our common stock and (b) a Series C-1 Warrant to purchase one share of our common stock in connection with the conversion of a $1.0 million Convertible Note dated January 26, 2024, which may result in potential issuances of securities of over 20% of the issued and outstanding shares of Common Stock (the “$1.0 million Convertible Note Proposal”).

Proposal 3:	To approve for purposes of complying with NYSE American Rule 713(a), the issuance of Common Stock Units with each Common Stock Unit consisting of: (i) one share of our voting common stock, (ii) a Series A warrant to purchase one share of our common stock, (iii) a Series B warrant to purchase one Series B Unit with each Series B Unit consisting of (a) one share of our common stock and (b) a Series B-1 Warrant to purchase one share of our common stock, and (iv) a Series C Warrant to purchase one Series C Unit with each Series C Unit consisting of (a) one share of our common stock and (b) a Series C-1 Warrant to purchase one share of our common stock in connection with the conversion of a $2.0 million convertible note, as amended, issued pursuant to the Settlement Agreement dated March 9, 2024, which may result in potential issuances of securities of over 20% of the issued and outstanding shares of Common Stock (the “$2.0 million Convertible Note Proposal”).

Proposal 4:	To approve for purposes of complying with NYSE American Rule 713(a), the issuance of shares of voting Common Stock (and/or securities convertible into or exercisable for voting Common Stock), in connection with the Standby Equity Purchase Agreement dated December 10, 2024 as may be amended (the “SEPA”), which may result in potential issuances of securities of over 20% of the issued and outstanding shares of Common Stock (the “SEPA Proposal”).

Proposal 5:	To approve the adjournment of the meeting, if necessary or advisable, to solicit additional proxies in favor of the Reverse Stock Split Proposal (“Adjournment Proposal”).

	●	Voting via the Internet. To vote through the Internet before the Special Meeting, go to [●], to complete an electronic proxy card. You will need to review the information included on your proxy card. We encourage you to vote via the Internet.

	●	Voting by telephone. To vote over the telephone, dial toll-free [●] using a touch-tone telephone and follow the recorded instructions. You will be asked to provide the company number and control number from the proxy card.

	●	Voting by mail. To vote using the proxy card, simply complete, sign and date the proxy card that was delivered to you by mail and return it promptly in the envelope provided. If you return your signed proxy card to us before the Special Meeting, we will vote your shares as you direct.

	●	Voting at the Special Meeting. To vote at the Special Meeting, you must join live online at [●]. The webcast will start at 9:00 a.m., Pacific Time. To participate and vote in the Special Meeting, you will need to review the information included on your proxy card or on the instructions included in the instructions that accompanied your proxy material. You may vote and submit questions while attending the Special Meeting online.

	●	You may submit a properly completed proxy card with a later date.

	●	You may grant a subsequent proxy by telephone or through the Internet.

	●	You may send a timely written notice that you are revoking your proxy to Wendy Pizarro, Corporate Secretary, or Andrew Jackson, Chief Financial Officer, which is received by the Company or Equiniti Trust Company, LLC.

	●	You may attend the Special Meeting via the live webcast and vote. Attendance at the Special Meeting will not cause your previously granted proxy to be revoked unless you specifically so request, or you vote at the Special Meeting.

	●	For Proposal 1. The affirmative vote of the holders of a majority of the votes cast is required to approve Proposal 1. Abstentions will have no effect on the outcome of Proposal 1. Because brokers have discretionary authority to vote on Proposal 1, we do not expect any broker non-votes in connection with this proposal. The Board recommends that you vote “FOR” Proposal 1.

	●	For Proposal 2. The affirmative vote of the holders of a majority of the votes cast is required to approve Proposal 2. Abstentions will have no effect on the outcome of Proposal 2 and broker non-votes will not be counted as votes cast and, accordingly, will not have an effect on Proposal 2. This Proposal 2 will be considered “non-routine” by the NYSE and, because brokers will not have discretionary authority to vote on Proposal 2, we expect broker non-votes in connection with this proposal. The Board recommends that you vote “FOR” Proposal 2.

	●	For Proposal 3. The affirmative vote of the holders of a majority of the votes cast is required to approve Proposal 3. Abstentions will have no effect on the outcome of Proposal 3 and broker non-votes will not be counted as votes cast and, accordingly, will not have an effect on Proposal 3. This Proposal 3 will be considered “non-routine” by the NYSE and, because brokers will not have discretionary authority to vote on Proposal 3, we expect broker non-votes in connection with this proposal. The Board recommends that you vote “FOR” Proposal 3.

	●	For Proposal 4. The affirmative vote of the holders of a majority of the votes cast is required to approve Proposal 4. Abstentions will have no effect on the outcome of Proposal 4 and broker non-votes will not be counted as votes cast and, accordingly, will not have an effect on Proposal 4. This Proposal 4 will be considered “non-routine” by the NYSE and, because brokers will not have discretionary authority to vote on Proposal 4, we expect broker non-votes in connection with this proposal. The Board recommends that you vote “FOR” Proposal 4.

	●	Proposal 5. Approval of the Adjournment Proposal requires the affirmative vote of the holders of a majority of the votes cast at the Special Meeting; provided, that in the absence of a quorum, the affirmative vote of the holders of a majority of the shares represented thereat is required for approval of the Adjournment Proposal. Abstentions will have no effect with respect to the vote on the Adjournment Proposal (assuming the presence of a quorum), or, in the absence of a quorum, will have the same effect as a vote “AGAINST” the Adjournment Proposal. We understand that this Adjournment Proposal will be considered “routine” by the NYSE and, because brokers have discretionary authority to vote on Proposal 3, we do not expect any broker non-votes in connection with this proposal. The Board recommends that you vote “FOR” Proposal 5.

	●	the per share price of our Common Stock immediately prior to the Reverse Stock Split;

	●	the expected stability of the per share price of our Common Stock following the Reverse Stock Split;

	●	the likelihood that the Reverse Stock Split will result in increased marketability and liquidity of our Common Stock;

	●	prevailing market conditions;

	●	general economic conditions in our industry; and

	●	our market capitalization before and after the Reverse Stock Split.

	Number of shares of Common Stock before Reverse Stock Split		1-for 10		1-for-30		1-for-50
Authorized⁽¹⁾		330,000,000		330,000,000		330,000,000		330,000,000
Issued and Outstanding⁽²⁾		48,959,284		4,895,928		1,631,976		979,186
Issuable under Outstanding Equity Awards⁽³⁾		11,515,674		1,151,567		383,856		230,313
Reserved for future issuance pursuant to the Equity Plans⁽⁴⁾		3,604,587		360,459		120,153		158,222
Issuable under Public Warrants and Warrants		13,412,154		1,341,215		447,072		268,243
Authorized but Unissued and Unreserved⁽⁵⁾		[●]		[●]		[●]		[●]
Notes

⁽¹⁾	Consists of (i) 312,000,000 are designated as Voting Common Stock, and (2)18,000,000 are designated as Non-Voting Common Stock.
⁽²⁾	Consists of (i) 48,959,284 shares of Voting Common Stock, and (ii) excludes 18,000,000 shares of Non-Voting Common Stock (representing the Escalation Shares held in escrow by the transfer agent). If the Reverse Stock Split is adopted, the Escalation Shares would be subject to the Reverse Stock Split and the number of Escalation Shares outstanding would be 1,800,000, 600,000 and 360,000 respectively after giving effect to the Range of Reversed Stock Split indicated in the table.
⁽³⁾	Consists of shares reserved for issuance pursuant to outstanding stock options and restricted stock units.
⁽⁴⁾	Consists of shares reserved for future issuance under the Plans, excluding shares issuable under outstanding stock options and restricted stock units.
⁽⁵⁾	Consists of shares of Common Stock authorized but unissued and unreserved for future issuance, but excludes [●], [●] and [●] shares of authorized Non-Voting Common Stock, but unissued and unreserved for future issuance after giving effect to the Range of Reverse Stock Split indicated in the table. We do not intend to issue any Non-Voting Common Stock in the future.

	●	rounded up to the nearest whole share of Common Stock, if such shares of Common Stock are held directly; or

	●	rounded down to the nearest whole share of Common Stock, if such shares are subject to an award granted under the Equity Plans, in order to comply with the requirements of Sections 409A and 424 of the Code.

	●	a citizen or resident of the United States;

	●	a corporation or other entity taxed as a corporation created or organized in or under the laws of the United States, any state thereof or the District of Columbia;

	●	an estate, the income of which is subject to U.S. federal income tax regardless of its source; or

	●	a trust (A) if a U.S. court is able to exercise primary supervision over the administration of the trust and one or more “U.S. persons” (as defined in the Code) have the authority to control all substantial decisions of the trust or (B) that has a valid election in effect to be treated as a U.S. person.

	●	each person known by the Company to be the beneficial owner of more than 5% of the outstanding shares of Common Stock on April 26, 2024;
	●	each of the Company’s executive officers and directors; and
	●	all executive officers and directors of the Company as a group.

Name of Beneficial Owners(1)	Number of Shares of Common Stock Beneficially Owned		Percentage of Common Stock**
Five Percent and Greater Holders:
Allan Camaisa⁽²⁾		12,244,742		23.5	%
AJC Capital, LLC ⁽²⁾		5,493,307		10.6	%
Jamir Trust⁽²⁾		6,083,830		12.4	%
Scott Leftwich⁽³⁾		3,447,573		6.9	%
Jackson Investment Group, LLC ⁽¹⁰⁾		2,882,748		5.9	%
Richard L. Jackson⁽¹¹⁾		3,287,788		6.7	%

Executive Officers and Directors:
Allan Camaisa⁽²⁾		12,243,007		23.5	%
Andrew Jackson		-		-
Boris Radoslavov Minev⁽⁴⁾		604,391		1.3	%
Wendy Pizarro Campbell⁽⁵⁾		265,401		*
Scott Leftwich⁽³⁾		3,447,573		6.9	%
George Ng⁽⁶⁾		558,784		1.2	%
Alan R. Stewart⁽⁷⁾		81,549		*
James Schoeneck⁽⁸⁾		1,904,776		3.8	%
David LaPre⁽⁹⁾		6,250		*
All Executive Officers and Directors as a Group (nine individuals)		19,113,466		34.5	%

*	Less than one percent (1%).
**	Based on 48,959,284 shares of common stock outstanding as of April 26, 2024, which excludes 18,000,000 Non-Voting Common Stock held in escrow which may be issued upon achieving certain share price hurdles, and includes shares issuable within sixty (60) days to the following entities or individuals respectively.

(1)	Unless otherwise noted, the business address of each of the following entities or individuals is c/o Calidi Biotherapeutics, Inc., 4475 Executive Drive, Suite 200, San Diego, California 92121.
(2)	Includes (i) 65,565 shares of Common Stock held by Allan Camaisa, (ii) 132,321 shares of Common Stock issuable upon exercise of vested options within sixty (60) days held by Mr. Camaisa, (iii) 469,719 shares of Common Stock issuable upon exercise of warrants within sixty (60) days held by Mr. Camaisa, (iv) 2,676,446 shares of Common Stock issuable upon exercise of vested options within sixty (60) days held by AJC Capital, LLC (“AJC”), (v) 2,815,126 shares of Common Stock held by AJC, and (vi) 6,083,830 shares of Common Stock held by Jamir Trust. Mr. Camaisa is the sole managing member and owner of AJC and the sole trustee of Jamir Trust; as such, Mr. Camaisa may be deemed to have beneficial ownership of the Common Stock held by AJC and Jamir Trust.
(3)	Includes (i) 469,903 shares of Common Stock held by Scott Leftwich, (ii) 551,069 shares of Common Stock issuable upon exercise of vested options within sixty (60) days held by Mr. Leftwich, (iii) 500,000 shares of Common Stock issuable upon exercise of warrants within sixty (60) days held by Mr. Leftwich, (iv) 1,760,563 shares of Common Stock held by SECBL, LLC (“SECBL”), (v) 157,080 shares of Common Stock held by WEBCL, LLC (“WEBCL”), and (vi) 8,958 shares of Common Stock upon vesting of restricted stock units granted to Mr. Leftwich, which vested on December 21, 2023. Mr. Leftwich is the managing member of SECBL and WEBCL; as such, Mr. Leftwich may be deemed to have beneficial ownership of the common stock held by SECBL and WEBCL.
(4)	Includes (i) 424,458 shares of Common Stock and (ii) 179,933 shares of Common Stock issuable upon exercise of vested options within sixty (60) days.
(5)	Includes (i) 72,336 shares of Common Stock held by Wendy Pizarro, (ii) 103,027 shares of Common Stock issuable upon exercise of vested options within sixty (60) days held by Ms. Pizarro, and (iii) 90,038 shares of Common Stock held by Gerwend, LLC, an entity in which Ms. Pizarro is a managing member. As such, Ms. Pizarro may be deemed to have shared voting, investment and dispositive power with respect to the shares held by Gerwend, LLC. Ms. Pizarro disclaims beneficial ownership of these shares except to the extent of her pecuniary interest, if any, therein.
(6)	Includes (i) 18,542 shares of Common Stock held by George Ng, (ii) 530,692 shares of Common Stock issuable upon exercise of vested options within sixty (60) days held by Mr. Ng, and (iii) 9,550 shares of Common Stock held by Peng Ventures, LLC, an entity in which Mr. Ng is a partner. As such, Mr. Ng may be deemed to have shared voting, investment and dispositive power with respect to the shares held by Peng Ventures, LLC. Mr. Ng disclaims beneficial ownership of these shares except to the extent of his pecuniary interest, if any, therein.
(7)	Includes (i) 62,600 shares of Common Stock, (ii) 7,282 shares of Common Stock upon vesting of restricted stock units granted to Mr. Stewart, which vested on December 21, 2023, and (iii) 11,667 shares of Common Stock issuable upon exercise of vested options within sixty (60) days.
(8)	Includes (i) 27,872 shares of Common Stock held by James Schoeneck, (ii) 283,768 shares of Common Stock issuable upon exercise of vested options within sixty (60) day held by Mr. Schoeneck, (iii) 41,624 shares of Common Stock held by Mr. Schoeneck and his wife, (iv) 415,887 shares of Common Stock held by the James & Cynthia Schoeneck Family Trust, (v) 10,625 shares of Common Stock upon vesting of restricted stock units granted to Mr. Schoeneck, which vested on December 21, 2023, and (vi) 1,125,000 shares of Common Stock issuable upon exercise of warrants within sixty (60) days held by the James & Cynthia Schoeneck Family Trust. Mr. Schoeneck is the trustee of the James & Cynthia Schoeneck Family Trust. As such, Mr. Schoeneck may be deemed to have shared voting, investment and dispositive power with respect to the shares held by the James & Cynthia Schoeneck Family Trust. Mr. Schoeneck disclaims beneficial ownership of these shares except to the extent of his pecuniary interest, if any, therein.
(9)	Includes 6,250 shares of Common Stock issuable upon exercise of vested options within sixty (60) days.
(10)	Based on Amendment No. 3 to Schedule 13D jointly filed by Jackson Investment Group, LLC and Richard L. Jackson with the SEC on October 2, 2023. Mr. Jackson is the Chief Executive Officer of Jackson Investment Group, LLC and directly holds 405,040 shares of Common Stock and shares the power to vote and direct the disposition of 2,882,748 shares of Common Stock held by Jackson Investment Group, LLC. Mr. Jackson disclaims beneficial ownership of all of the JIG shares reported to be beneficially owned by him except to the extent of his pecuniary interest therein. The address for the foregoing reporting persons is 2655 Northwinds Parkway, Alpharetta, GA 30009.