IMMX 8-K
Immix Biopharma, Inc. (IMMX)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date
of report (Date of earliest event reported):
(Exact Name of Registrant as Specified in Its Charter)
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification Number) |
(Address of principal executive offices)
(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 | ||
| The
|
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.
| 2 |
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
The following exhibits are filed with this report:
| Exhibit Number | Exhibit Description | |
| 4.1 | Certificate of Ownership and Merger |
| 3 |
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 |
| 4 |
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]
| 1 |
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 | |
| 2 |