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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date
of report (Date of earliest event reported): May 20, 2024
IMMIX
BIOPHARMA, INC.
(Exact
Name of Registrant as Specified in Its Charter)
Delaware |
|
001-41159 |
|
45-4869378 |
(State
or Other Jurisdiction
of
Incorporation) |
|
(Commission
File
Number) |
|
(I.R.S.
Employer
Identification
Number) |
11400
West Olympic Blvd., Suite 200
Los
Angeles, CA 90064
(Address
of principal executive offices)
(310)
651-8041
(Registrant’s
telephone number, including area code)
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under
any of the following provisions.
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14d-2(b) |
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b) |
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c) |
Securities
registered pursuant to Section 12(b)of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common
Stock, par value of $0.0001 per share |
|
IMMX |
|
The
Nasdaq Stock Market LLC |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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 13(a) of the Exchange Act.
Item
3.02 Unregistered Sales of Equity Securities.
The
information set forth in Item 8.01 below, including the description of the Merger Shares (as defined below), are incorporated
by reference into this Item 3.02. The offer and sale of the Merger Shares were exempt from registration pursuant to Section 4(a)(2)
and/or Rule 506 of Regulation D of the Securities Act of 1933, as amended (the “Securities Act”), since the foregoing offer,
sales and issuances did not involve a public offering, the recipients have confirmed that they are “accredited investors”,
and the recipients acquired the securities for investment only and not with a view towards, or for resale in connection with, the public
sale or distribution thereof. The securities were offered without any general solicitation by us or our representatives. The securities
are subject to transfer restrictions, and the certificates evidencing the securities will contain an appropriate legend stating that
such securities have not been registered under the Securities Act and may not be offered or sold absent registration or pursuant to an
exemption therefrom.
Item
8.01. Other Events.
On
May 20, 2024 (the “Effective Time of the Merger”), Nexcella, Inc., a Delaware corporation (“Nexcella”), which
was formerly a majority-owned subsidiary of Immix Biopharma, Inc. (“Company”), was merged (the “Merger”) with
and into the Company, with the Company as the surviving corporation. The Merger was effected pursuant to Section 253 of the Delaware
General Corporation Law (“DGCL”) when the Company filed a Certificate of Ownership and Merger (“Certificate of Merger”)
with the Secretary of State of the State of Delaware. Immediately prior to the Merger, the Company owned greater than 95% of outstanding
common stock on a fully diluted basis of Nexcella, par value $0.0001 per share (the “Nexcella Shares”), and 100% of the outstanding
shares of each other class of capital stock of Nexcella. Under the DGCL, the only approval required was that of the Company’s Board
of Directors for the Merger to become effective. As a result of the Merger, Nexcella ceased to exist and all assets, operations and other
property and rights of Nexcella have been succeeded to by the Company. Pursuant to the terms of the Certificate of Merger, as a result
of the Merger, each of the outstanding Nexcella Shares (other than Nexcella Shares held by the Company) were converted, into common stock
of the Company (“Company Merger Shares”). In connection with the Merger, the Company issued 989,876 shares of its
common stock to the former stockholders of Nexcella (other than shares held by the Company) (including Company common stock issued to
third-party cash investors in Nexcella) (the “Merger Shares”). In addition, the Company issued to the former participants
in the Nexcella 2022 Equity Incentive Plan 275,759 restricted stock awards to receive common stock in the Company and options
to purchase up to 595,676 shares of Company common stock at an exercise price of $2.47 per share (the closing price on May 17,
2024), under the Company’s Amended and Restated 2021 Omnibus Equity Incentive Plan. Notwithstanding the Merger, Nexcella
Shares held by former stockholders of Nexcella who (a) do not request the delivery of a certificate of their Merger Consideration Shares,
(b) perfect their rights to appraisal of such Nexcella Shares in accordance with Section 262 of the DGCL and (c) do not thereafter withdraw
their potential request for appraisal of such Nexcella Shares or otherwise lose or waive their appraisal rights, in each case in accordance
with the DGCL, shall represent the right to receive from the Company such payment as the holders thereof may be entitled to receive as
determined by the Delaware Court of Chancery in an appraisal proceeding. A copy of the Certificate of Merger is attached hereto as Exhibit
4.1.
Item
9.01 Financial Statements and Exhibits
(d)
Exhibits
The
following exhibits are filed with this report:
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
|
Immix
Biopharma, Inc. |
|
|
Dated:
May 20, 2024 |
/s/
Ilya Rachman |
|
Ilya
Rachman |
|
Chief
Executive Officer |
Exhibit
4.1
CERTIFICATE
OF OWNERSHIP AND MERGER
MERGING
NEXCELLA,
INC.,
a
Delaware corporation,
WITH
AND INTO
IMMIX
BIOPHARMA, INC.,
a
Delaware corporation
Immix
Biopharma, Inc., a Delaware corporation (the “Parent”), hereby certifies that:
FIRST:
The Parent owns at least 90% of the outstanding shares of each class of the stock of Nexcella, Inc., a Delaware corporation (the
“Sub”), that, absent Section 253(a) of the General Corporation Law of the State of Delaware (the “DGCL”),
would be entitled to vote on a merger.
SECOND:
The board of directors of the Parent, on May 17, 2024, adopted the following resolution to merge the Sub with and into the Parent,
with the Parent as the surviving corporation, in accordance with Section 253 of the DGCL:
“WHEREAS,
Immix Biopharma, Inc., a Delaware corporation (the “Parent”), owns at least 90% of the outstanding shares of each class of
the stock (the “Sub Shares”) of Nexcella, Inc., a Delaware corporation (the “Sub”), that, absent Section 253(a)
of the General Corporation Law of the State of Delaware (the “DGCL”), would be entitled to vote on a merger.
NOW,
THEREFORE, BE IT RESOLVED, that the merger of the Sub with and into the Parent with the Parent as the surviving corporation (the “Surviving
Corporation”), in accordance with Section 253 of the DGCL and with the effects of Section 259 of the DGCL (the “Merger”),
is advisable, authorized, and approved.
RESOLVED,
that, upon the effectiveness of certificate of ownership and merger effecting the Merger (the “Effective Time”), by virtue
of the Merger and without any action on the part of the Parent, the Sub, or the holders of the Sub Shares, each Sub Share issued and
outstanding immediately prior to the Effective Time held by the Parent shall be automatically cancelled and cease to exist and no payment
or distribution shall be made with respect thereto.
RESOLVED,
that, upon the Effective Time, by virtue of the Merger and without any action on the part of the Parent, the Sub, or the holders of the
Sub Shares, each Sub Share issued and outstanding immediately prior to the Effective Time (other than those held by the Parent or Dissenting
Shares (as defined below)) shall be automatically converted into the right to receive 3.13 shares of the $0.0001 par value Common Stock
of the Parent (the “Parent Shares”) and cease to exist and, upon surrender of a certificate representing the Sub Share(s)
for cancellation (duly endorsed in blank or accompanied by duly executed stock powers with appropriate transfer stamps (if any) affixed
thereto), to the Surviving Corporation, the Surviving Corporation shall issue to the holder of such surrendered certificate a certificate
or notice of book entry representing the Parent Shares to which such holder is entitled as provided above, less any required withholding
of taxes.
RESOLVED,
that, notwithstanding the foregoing, each Sub Share held by a holder entitled to appraisal rights under Section 262 of the DGCL who shall
have properly demanded and perfected and not withdrawn, waived, or lost appraisal rights with respect to his, her, or its Sub Shares
under Section 262 of the DGCL (the “Dissenting Shares”) shall not be converted into the right to receive Parent Shares but
shall be cancelled, cease to exist, and represent only those rights provided under Section 262 of the DGCL; provided, that each Dissenting
Share held by a holder who shall have failed to properly demand and perfect or withdrawn, waived, or lost his, her, or its rights to
appraisal of such Dissenting Shares under Section 262 of the DGCL shall be treated as if, as of the Effective Time, it had been converted
into the right to receive the applicable Parent Shares without any interest thereon and cease to exist, subject to the terms and conditions
set forth above.
RESOLVED,
that the officers of the Parent be, and each hereby is, authorized, empowered, and directed to make, execute, and acknowledge a certificate
of ownership and merger effecting the Merger and to file (or cause the filing of) such certificate with the Secretary of State of the
State of Delaware and do all other acts and things that may be necessary or advisable to carry out and effectuate the purpose and intent
of the foregoing resolutions.”
[Signature
Page Follows]
IN
WITNESS WHEREOF, Immix Biopharma, Inc. has caused this Certificate of Ownership and Merger to be executed on May 19, 2024.
|
IMMIX
BIOPHARMA, INC. |
|
|
|
|
By:
|
/s/
Ilya Rachman |
|
Name:
|
Ilya
Rachman |
|
Title:
|
President
and Chief Executive Officer |
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