As
filed with the Securities and Exchange Commission on July 19, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Immix
Biopharma, Inc.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
45-4869378 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
No.) |
11400
West Olympic Blvd., Suite 200
Los
Angeles, CA |
|
90064 |
| (Address
of principal executive offices) |
|
(Zip
Code) |
AMENDED
AND RESTATED
IMMIX
BIOPHARMA, INC.
2021
OMNIBUS EQUITY INCENTIVE PLAN
(Full
title of the plan)
Ilya
Rachman, MD PhD
Chief
Executive Officer
11400
West Olympic Blvd., Suite 200
Los
Angeles, CA 90064
(Name
and address of agent for service)
(310)
651-8041
(Telephone
number, including area code, of agent for service)
Copy
to:
Gabriel
Morris
Chief
Financial Officer
11400
West Olympic Blvd., Suite 200
Los
Angeles, CA 90064
(310)
651-8041
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. ☐
REGISTRATION
OF ADDITIONAL SHARES
PURSUANT
TO GENERAL INSTRUCTION E
Pursuant
to General Instruction E of Form S-8, Immix Biopharma, Inc. (“Registrant”) is filing this Registration Statement on
Form S-8 with the U.S. Securities and Exchange Commission (the “Commission”) to register 3,000,000 (the “Shares”)
additional shares of the Registrant’s common stock, $0.0001 par value per share (the “Common Stock”), for issuance
under the Registrant’s Amended and Restated 2021 Omnibus Equity Incentive Plan (the “Plan”), pursuant to an
amendment to the Plan increasing the number of shares reserved for issuance thereunder by 3,000,000, effective as of June 11, 2024. This
Registration Statement hereby incorporates by reference the contents of the Registrant’s registration statements on Form S-8 filed
with the Commission on June 13, 2023 (Registration No. 333-272625) and January 25, 2022 (Registration No. 333-262336).
The Shares include (a) 889,000 shares of Common Stock issuable upon the exercise of outstanding options held by officers, directors and
employees of the Company; and (b) 2,111,000 shares of Common Stock reserved for future awards under the Plan. 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 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 filed with the Commission by the Company are incorporated by reference into this registration statement on Form S-8
(the “Registration Statement”) and are made a part hereof:
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(a) |
The
Company’s Annual Report on Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on March
29, 2024 (the “Annual Report”); |
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|
|
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(b) |
The
Company’s Definitive Proxy Statement on Schedule 14A (to the extent incorporated by reference in to the Annual Report),
filed with the SEC on April 29, 2024; |
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|
|
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(c) |
The
Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed with the SEC on May 9, 2024; |
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|
|
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(d) |
The
Company’s Current Reports on Form 8-K and Form 8-K/A (other than information furnished rather than filed) filed with the SEC
on February
5, 2024; February
6, 2024; May
20, 2024; and June 14, 2024; |
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|
|
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(e) |
The
description of the Company’s Common Stock included as Exhibit 4.3 to our Annual Report on Form 10-K for the year ended December
31, 2022, filed with the SEC on March 27, 2023, including any amendment or report filed for the purpose of updating such description;
and |
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|
|
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(f) |
All
other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) since the end of the fiscal year covered by the Annual Report referred to in (a) above. |
All
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of filing
this Registration Statement and prior to such time as the Company files a post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents, except
for the documents, or portions thereof, that are “furnished” rather than filed with the SEC.
Any
statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded
for the purpose of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document
which is also, or is deemed to be, incorporated herein by reference modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item
5. Interests of Named Experts and Counsel
None.
Item
8. Exhibits
Reference
is made to the attached Exhibit Index, which is incorporated herein by reference.
Item
9. Undertakings
| |
(a) |
The
Company 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 of 1933;
(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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the Form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective 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.
However,
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 periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, 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; and
(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 of 1933, each filing
of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) 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 of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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, our company 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 of whether such indemnification
by it is against public policy as expressed in the Securities Act of 1933 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 Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Los Angeles, State of California on July 19, 2024.
| |
Immix
Biopharma, Inc. |
| |
|
| Date:
July 19, 2024 |
By: |
/s/
Ilya Rachman |
| |
Name:
|
Ilya
Rachman |
| |
Title: |
Chief
Executive Officer
(Principal
Executive Officer) |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that the persons whose signature appears below constitute and appoint Ilya Rachman and Gabriel Morris,
and each of them, with full power to act without the other, as such person’s true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to
sign this Registration Statement, and any and all amendments thereto (including post-effective amendments), and to file the same, with
exhibits and schedules thereto, and other documents in connection therewith, with the SEC, 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 necessary or desirable to be done in and about
the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done
by virtue hereof. This Power of Attorney may be signed in several counterparts.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in
the capacities on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Ilya Rachman |
|
Chief
Executive Officer and Chairman |
|
July
19, 2024 |
| Ilya
Rachman |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
| /s/
Gabriel Morris |
|
Chief
Financial Officer and Director |
|
July
19, 2024 |
| Gabriel
Morris |
|
(Principal
Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Jason Hsu |
|
Director |
|
July
19, 2024 |
| Jason
Hsu |
|
|
|
|
| |
|
|
|
|
| /s/
Magda Marquet |
|
Director |
|
July
19, 2024 |
| Magda
Marquet |
|
|
|
|
| |
|
|
|
|
| /s/
Helen C. Adams |
|
Director |
|
July
19, 2024 |
| Helen
C. Adams |
|
|
|
|
| |
|
|
|
|
| /s/
Carey Ng |
|
Director |
|
July
19, 2024 |
| Carey
Ng |
|
|
|
|
| |
|
|
|
|
| /s/
Jane Buchan |
|
Director |
|
July
19, 2024 |
| Jane
Buchan |
|
|
|
|
| |
|
|
|
|
| /s/
Yekaterina Chudnovsky |
|
Director |
|
July
19, 2024 |
| Yekaterina
Chudnovsky |
|
|
|
|
EXHIBIT
INDEX
| * |
Filed
herewith. |
| *** |
Indicates
management contract or compensatory plan or arrangement. |
Exhibit
5.1
July
19, 2024
Immix
Biopharma, Inc.
11400
West Olympic Blvd., Suite 200
Los
Angeles, CA 90064
Re:
Form S-8 Registration Statement
Ladies
and Gentlemen:
We
have acted as counsel for Immix Biopharma, Inc., a Delaware corporation (the “Company”), in connection with the Company’s
registration under the Securities Act of 1933, as amended (the “Act”), of the offer and sale of an aggregate of up
to 3,000,000 (the “Shares”) shares of common stock, $0.0001 par value per share of the Company (the “Common
Stock”), pursuant to the Company’s Registration Statement on Form S-8 (the “Registration Statement”)
to be filed with the Securities and Exchange Commission (the “Commission”) on July 19, 2024, including (a) 889,000
shares of Common Stock issuable upon exercise of outstanding options to purchase shares of Common Stock; and (b) 2,111,000 shares of
Common Stock which are reserved for future awards under the Company’s Amended and Restated 2021 Omnibus Equity Incentive Plan (the
“Plan”).
In
reaching the opinions set forth herein, we have examined and are familiar with originals or copies, certified or otherwise identified
to our satisfaction, of such documents and records of the Company and such statutes, regulations and other instruments as we deemed necessary
or advisable for purposes of this opinion, including (i) the Company’s Third Amended and Restated Certificate of Incorporation,
(ii) the Company’s Amended and Restated Bylaws, (iii) the Registration Statement and the exhibits thereto, (iv) certain resolutions
adopted by the Board of Directors of the Company, (v) the Plan, and (vi) such other certificates, instruments, and documents as we have
considered necessary for purposes of this opinion letter. We have also reviewed such matters of law as we considered necessary or appropriate
as a basis for the opinion expressed below. As to various questions of fact material to the opinions expressed below, we have, without
independent third party verification of their accuracy, relied in part, and to the extent we deemed reasonably necessary or appropriate,
upon the representations and warranties of the Company contained in such documents, records, certificates, instruments or representations
furnished or made available to us by the Company, including the Registration Statement and, to the extent that we deemed such reliance
proper, upon certificates of public officials and officers or other representatives of the Company.
With
your permission, we have made and relied upon the following assumptions, without any independent investigation or inquiry by us, and
our opinion expressed below is subject to, and limited and qualified by the effect of, such assumptions: (1) all corporate records furnished
to us by the Company are accurate and complete; (2) the Registration Statement to be filed by the Company with the Commission will be
identical to the form of the document that we have reviewed; (3) all statements as to factual matters that are contained in the Registration
Statement (including the exhibits to the Registration Statement) and the Plan are accurate and complete; (4) the Company will issue the
Shares in accordance with the terms of the Registration Statement and the Plan; and (5) in connection with each issuance of any Shares,
the Company will duly execute and deliver a stock certificate evidencing the applicable Shares or, with respect to any applicable Shares
issued on an uncertificated basis, the Company will comply with applicable laws regarding the documentation of uncertificated securities.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, and having due regard for the
legal considerations we deem relevant, we are of the opinion that (a) when the Shares are issued by the Company in accordance with the
terms of the Plan and the instruments executed pursuant to the Plan, as applicable, which govern the awards to which any Shares relate,
and (b) when the payment of the consideration for such Shares pursuant to the terms of such Plan and award agreements, have been made
(which shall be at least equal to the par value of the Shares), such Shares, as applicable, will be legally issued, fully paid and non-assessable.
This
opinion is expressly limited in scope to the Shares enumerated herein which are to be expressly covered by the referenced Registration
Statement. Without limiting the generality of the foregoing, we neither express nor imply any opinion regarding the contents of the Registration
Statement, other than as expressly stated above with respect to the Shares.
We
express no opinion as to the laws of any state or jurisdiction other than the General Corporation Law of the State of Delaware and the
federal laws of the United States of America. No opinion is expressed herein with respect to the qualification of the Shares under the
securities or blue sky laws of any state or any foreign jurisdiction. We have made such examination of Delaware law as we have deemed
relevant for purposes of this opinion. We express no opinion as to any county, municipal, city, town or village ordinance, rule, regulation
or administrative decision.
The
foregoing opinion assumes that all requisite steps will be taken to comply with the requirements of the Securities Act and applicable
requirements of state laws regulating the offer and sale of the Shares.
This
opinion (i) is rendered in connection with the filing of the Registration Statement, (ii) is rendered as of the date hereof, and we undertake
no, and hereby disclaim any kind of, obligation to advise you of any change or any new developments that might affect any matters or
opinions set forth herein, and (iii) is limited to the matters stated herein and no opinions may be inferred or implied beyond the matters
expressly stated herein.
We
hereby consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement.
In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7
of the Act.
| |
Sincerely, |
| |
|
| |
/s/
The Loev Law Firm, PC |
| |
The
Loev Law Firm, PC |
Exhibit
23.1
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT
We
consent to the incorporation by reference in this Registration Statement of Immix Biopharma, Inc. (the “Company”) on Form
S-8 of our report dated March 29, 2024, relating to the consolidated financial statements of Immix Biopharma, Inc. and its subsidiaries,
appearing in the Annual Report on Form 10-K of Immix Biopharma, Inc. for the year ended December 31, 2023.
/s/
KMJ Corbin & Company LLP
KMJ
Corbin & Company LLP
Glendora,
California
July
19, 2024
Exhibit
99.2
IMMIX
BIOPHARMA, INC.
STOCK
OPTION GRANT NOTICE AND OPTION AGREEMENT
(Amended
and Restated 2021 Omnibus Equity Incentive Plan)
As
a key leader in our business, you are in a position to have significant influence on the performance and success of Immix Biopharma,
Inc. (the “Company”). I am pleased to inform you that, in recognition of the role you play in our collective success,
you have been granted an option to purchase shares of the Company’s Common Stock. This award is subject to the terms and conditions
of the Immix Biopharma, Inc. Amended and Restated 2021 Omnibus Equity Incentive Plan, this Grant Notice, and the following Stock Option
Agreement. The details of this award are indicated below.
| Optionee: |
[Name] |
| Date of Grant: |
[Date]1 |
| Number of Shares subject to the Option: |
[Shares] Exercise |
| Price Per Share: |
$[Exercise Price] |
| Type of Option: |
[Nonqualified Stock Option/Incentive Stock Option] |
| Expiration Date: |
The tenth (10th) anniversary of the Date of Grant (the
“Expiration Date”). |
| Vesting: |
Options vest in ☒ equal monthly installments following
the Date of Grant, subject to the Optionee’s continued service on the Board through such vesting dates. |
Acknowledged
and agreed as of __________________:
_______________________________
[Name]
1
The options were approved by the Compensation Committee on [Date], and are being emorialized by this Option Agreement, dated [Date].
STOCK
OPTION AGREEMENT
THIS
STOCK OPTION AGREEMENT (together with the above grant notice (the “Grant Notice”), the “Agreement”)
is made and entered into as of the date set forth on the Grant Notice by and between Immix Biopharma, Inc., a Delaware corporation (the
“Company”), and the individual (the “Optionee”) set forth on the Grant Notice.
A.
Pursuant to the Immix Biopharma, Inc. Amended and Restated 2021 Omnibus Equity Incentive Plan (the “Plan”), the Administrator
has determined that it is to the advantage and best interest of the Company to grant to the Optionee an option to purchase the number
of Shares (the “Shares”) set forth on the Grant Notice, at the exercise price per Share set forth on the Grant Notice,
and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference, and this
Agreement (the “Option”).
B.
Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan. For purposes
of this Agreement, the following definitions shall apply:
(i)
“Termination” shall mean the termination of the employment or service of the Optionee with the Company and all Affiliates
thereof (including because of the Optionee’s employer ceasing to be an affiliate of the Company). For purposes of this Agreement,
Termination will not occur when Optionee goes on a military leave, a sick leave or another bona fide leave of absence that was approved
by the Company in writing if the terms of the leave provide for continued service crediting, or when continued service crediting is required
by Applicable Laws. Notwithstanding the foregoing, an approved leave of absence for six months or less, which does not in fact exceed
six months, will not result in Termination for purposes of this Agreement. However, Termination will occur when an approved leave described
in this Section B ends, unless Optionee immediately returns to active work.
(ii)
“Termination Date” shall mean the date of the Optionee’s Termination of Service.
NOW,
THEREFORE, in consideration of the mutual agreements contained herein, the Optionee and the Company hereby agree as follows:
1.
Acceptance of Agreement. Optionee has reviewed all of the provisions of the Plan and this Agreement. Optionee hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the Administrator on questions relating to the Plan and this
Agreement, and, solely as they relate to this Option, the applicable provisions (if any) contained in a written employment agreement
between the Company or an Affiliate and the Optionee. The Optionee’s electronic signature of this Agreement shall have the same
validity and effect as a signature affixed by hand.
2.
Grant and Terms of Stock Option.
2.1
Grant of Option. Pursuant to this Agreement, the Company has granted to the Optionee the right and option to purchase, subject
to the terms and conditions set forth in the Plan and this Agreement, all or any part of the number of Shares set forth on the Grant
Notice at a purchase price per Share equal to the exercise price per Share set forth on the Grant Notice. An Option granted pursuant
to the Grant Notice and this Agreement shall be a Nonqualified Stock Option.
2.2
Vesting and Term of Option. This Section 2.2 is subject to the provisions of the Plan and the other provisions of this Agreement.
2.2.1
This Option shall vest and become exercisable as described in the Grant Notice.
2.2.2
The “Term” of this Option shall begin on the Date of Grant set forth in the Grant Notice and end on the Expiration
Date specified in the Grant Notice. No portion of this Option may be exercised after the expiration of the Term.
2.2.3
Except as otherwise provided in the Grant Notice, in the event of Optionee’s Termination for any reason other than death, Disability,
or Cause:
2.2.3.1
the portion of this Option that is not vested and exercisable as of the Termination Date shall not continue to vest and shall be immediately
cancelled and terminated; and
2.2.3.2
the portion of this Option that is vested and exercisable as of the Termination Date shall terminate and be cancelled on the earlier
of:
(a)
the expiration of the Term; and
(b)
ninety (90) days after such Termination Date.
2.2.4
Except as otherwise provided in the Grant Notice, in the event of Termination due to death or Disability:
2.2.4.1
the portion of this Option that is not vested and exercisable as of the Termination Date shall not continue to vest and shall be immediately
cancelled and terminated; and
2.2.4.2
the portion of this Option that is vested and exercisable as of the Termination Date shall terminate and be cancelled on the earlier
of (a) the expiration of the Term and (b) the date that is twelve (12) months after the Termination Date.
2.2.5
In the event of Optionee’s Termination for Cause, or if, after the Termination, the Administrator determines that Cause existed
before such Termination, this entire Option shall not continue to vest, shall be cancelled and terminated as of the Termination Date,
and shall no longer be exercisable as to any Shares, whether or not previously vested.
3.
Method of Exercise.
3.1
Method of Exercise. Each election to exercise the Option shall be subject to the terms and conditions of the Plan and shall be
in writing, signed by the Optionee or by his or her executor, administrator, or permitted transferee (subject to any restrictions provided
under the Plan), made pursuant to and in accordance with the terms and conditions set forth in the Plan and received by the Company at
its principal offices, accompanied by payment in full as provided in the Plan or in this Agreement. Notwithstanding any of the foregoing,
the Administrator shall have the right to specify all conditions of the manner of exercise. Upon the Company’s determination that
the Option has been validly exercised as to any of the Shares, the Company may issue certificates in the Optionee’s name for such
Shares. However, the Company shall not be liable to the Optionee for damages relating to any reasonable delays in issuing the certificates
to the Optionee, any loss of the certificates, or any mistakes or errors in the issuance of the certificates or in the certificates themselves
which it promptly undertakes to correct.
3.2
Restrictions on Exercise. No Shares will be issued pursuant to the exercise of this Option unless and until there shall have been
full compliance with all applicable requirements of the Securities Act of 1933 (“Securities Act”), as amended (whether
by registration or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange or
other market system on which the Common Stock is then listed and all applicable requirements of any Applicable Laws and of any regulatory
bodies having jurisdiction over such issuance. As a condition to the exercise of this Option, the Company may require the Optionee to
make any representation and warranty to the Company as may be necessary or appropriate, in the judgment of the Administrator, to comply
with any Applicable Law. In addition, Optionee shall not sell any Shares acquired upon exercise of this Option at a time when Applicable
Laws, regulations or Company’s or underwriter trading policies prohibit such sale. Any other provision of this Agreement notwithstanding,
the Company shall have the right to designate one or more periods of time, each of which shall not exceed 180 days in length, during
which this Option shall not be exercisable if the Administrator determines (in its sole discretion) that such limitation on exercise
could in any way facilitate a lessening of any restriction on transfer pursuant to the Securities Act or any state securities laws with
respect to any issuance of securities by the Company, facilitate the registration or qualification of any securities by the Company under
the Securities Act or any state securities laws, or facilitate the perfection of any exemption from the registration or qualification
requirements of the Securities Act or any applicable state securities laws for the issuance or transfer of any securities. Such limitation
on exercise shall not alter the vesting schedule set forth in this Agreement other than to limit the periods during which this Option
shall be exercisable.
3.3
Method of Payment. Payment of the exercise price shall be made in full at the time of exercise (a) by the delivery of cash or
check acceptable to the Administrator, including an amount to cover the withholding taxes (as provided in Section 7.11) with respect
to such exercise, or (b) any other method, if any, approved by the Administrator, including (i) by means of consideration received under
any cashless exercise procedure, if any, approved by the Administrator (including the withholding of Shares otherwise issuable upon exercise)
or (ii) any other form of consideration approved by the Administrator and permitted by Applicable Laws.
3.4
No Rights as a Shareholder. Until the Shares are issued to the Optionee (as evidenced by the appropriate entry on the books of
the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a shareholder
will exist with respect to the Shares, notwithstanding the exercise of the Option.
4.
Non-Transferability of Option. Except as provided below, this Option may not be sold, assigned or transferred in any manner, pledged
or otherwise encumbered other than by will or by the laws of descent or distribution or to a beneficiary designated pursuant to the Plan,
and may be exercised during the lifetime of Optionee only by Optionee or the Optionee’s guardian or legal representative. Subject
to all of the other terms and conditions of this Agreement, following the death of Optionee, this Option may, to the extent it is vested
and exercisable by Optionee in accordance with its terms on the Termination Date, be exercised by Optionee’s executor or administrator,
or the person or persons to whom the Optionee’s rights under this Agreement shall pass by will or by the laws of descent and distribution
as the case may be. Any heir or legatee of the Optionee shall take rights herein granted subject to the terms and conditions hereof.
5.
Restrictions; Restrictive Legends. Ownership and transfer of Shares issued pursuant to the exercise of this Option will be subject
to the provisions of, including ownership and transfer restrictions contained in, the Company’s Certificate of Incorporation or
Bylaws, as amended from time to time, restrictions imposed by Applicable Laws and restrictions set forth or referenced in legends imprinted
on certificates representing such Shares.
6.
Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, to the extent that this Option
had not been previously exercised, it will terminate immediately prior to the consummation of such proposed dissolution or liquidation.
In such instance, the Administrator may, in the exercise of its sole discretion, declare that this Option will terminate as of a date
fixed by the Administrator and give the Optionee the right to exercise this Option prior to such date as to all or any part of the optioned
stock, including Shares as to which this Option would not otherwise be exercisable.
7.
General.
7.1
Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware applicable to agreements
made and to be performed entirely in Delaware, without regard to the conflicts of law provisions of Delaware or any other jurisdiction.
7.2
Community Property. Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement,
the Optionee shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this
Option and the parties hereto shall act in all matters as if the Optionee was the sole owner of this Option. This appointment is coupled
with an interest and is irrevocable.
7.3
No Employment Rights. Nothing herein contained shall be construed as an agreement by the Company or any of its Subsidiaries, express
or implied, to employ the Optionee or contract for the Optionee’s services, to restrict the Company’s or such Subsidiary’s
right to discharge the Optionee or cease contracting for the Optionee’s services or to modify, extend or otherwise affect in any
manner whatsoever the terms of any employment agreement or contract for services which may exist between the Optionee and the Company
or any Affiliate.
7.4
Application to Other Stock. In the event any capital stock of the Company or any other corporation shall be distributed on, with
respect to, or in exchange for Shares as a stock dividend, stock split, reclassification or recapitalization in connection with any merger
or reorganization or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such
other capital stock to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other
capital stock was distributed, and references to “Company” in respect of such distributed stock shall be deemed to refer
to the company to which such distributed stock relates.
7.5
No Third-Party Benefits. Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall
be for the benefit of, or enforceable by, any third-party beneficiary.
7.6
Successors and Assigns. Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit
of the parties, their respective successors and permitted assigns.
7.7
No Assignment. Except as otherwise provided in this Agreement, the Optionee may not assign any of his or her rights under this
Agreement without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be
permitted to assign its rights or obligations under this Agreement so long as such assignee agrees to perform all of the Company’s
obligations hereunder.
7.8
Severability. The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or
more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.
7.9
Equitable Relief. The Optionee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this
Agreement, damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury
and damage. Accordingly, the Optionee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such
relief shall be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.
7.10
Jurisdiction. Any suit, action or proceeding with respect to this Agreement, or any judgment entered by any court in respect of
any thereof, shall be brought in any court of competent jurisdiction in the State of Delaware, and the Company and the Optionee hereby
submit to the exclusive jurisdiction of such courts for the purpose of any such suit, action, proceeding or judgment. The Optionee and
the Company hereby irrevocably waive (i) any objections which it may now or hereafter have to the laying of the venue of any suit, action
or proceeding arising out of or relating to this Agreement brought in any court of competent jurisdiction in the State of Delaware, (ii)
any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum and (iii) any
right to a jury trial.
7.11
Taxes. By agreeing to this Agreement, the Optionee represents that he or she has reviewed with his or her own tax advisors the
federal, state, local and foreign tax consequences of the transactions contemplated by this Agreement and that he or she is relying solely
on such advisors and not on any statements or representations of the Company or any of its agents. The Company shall be entitled to require
a cash payment by or on behalf of the Optionee and/or to deduct from the Shares or cash otherwise issuable hereunder or other compensation
payable to the Optionee the minimum amount of any sums required by federal, state or local tax law to be withheld (or other such sums
that will not cause adverse accounting consequences for the Company and is permitted under applicable withholding rules promulgated by
the Internal Revenue Service or another applicable governmental entity) in respect of the Option, its exercise or any payment or transfer
under or with respect to the Option.
7.12
Headings. The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend
or interpret the scope of this Agreement or of any particular section.
7.13
Number and Gender. Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the
neuter gender includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and
number includes the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties,
sections, paragraphs and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days,
weeks or months mean calendar days, weeks or months.
7.14
Data Privacy. Optionee agrees that all of Optionee’s information that is described or referenced in this Agreement and the
Plan may be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Optionee’s
participation in the Plan.
7.15
Acknowledgments of Optionee. Optionee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain
the advice of counsel prior to executing this Agreement, fully understands all provisions of the Plan and this Agreement and, by accepting
the Notice of Grant, acknowledges and agrees to all of the provisions of the Grant Notice, the Plan and this Agreement.
7.16
Complete Agreement. The Grant Notice, this Stock Option Agreement, the Plan, and the applicable provisions (if any) contained
in a written employment agreement between the Company or an Affiliate and the Optionee constitute the parties’ entire agreement
with respect to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings,
whether oral or written, with respect to the subject matter hereof. In the event of any inconsistency between the Plan and this Agreement,
the terms of the Plan shall control.
7.17
Waiver. The Optionee acknowledges that a waiver by the Company of a breach of any provision of this Agreement shall not operate
or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by the Optionee.
7.18
Signature in Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
7.19
Amendments and Termination. To the extent permitted by the Plan, this Agreement may be wholly or partially amended, altered or
terminated at any time or from time to time by the Administrator or the Board, but no amendment, alteration or termination shall be made
that would materially impair the rights of an Optionee under the Option without such Optionee’s consent. If it is determined that
the terms of this Agreement have been structured in a manner that would result in adverse tax treatment under Section 409A of the Code,
the parties agree to cooperate in taking all reasonable measures to restructure the arrangement to minimize or avoid such adverse tax
treatment without materially impairing Optionee’s economic rights.
7.20
Waiver of Jury Trial. TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP
BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY
JURY. THIS WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT
OR INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES
OF ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY
OF OUR OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.
7.21
Electronic Delivery and Disclosure. The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any
documents related to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the
Plan, the Company’s annual reports or proxy statements by electronic means or to request Optionee’s consent to participate
in the Plan by electronic means, including, but not limited to, the Securities and Exchange Commission’s Electronic Data Gathering,
Analysis, and Retrieval system or any successor system (“EDGAR”). Optionee hereby consents to receive such documents
delivered electronically or to retrieve such documents furnished electronically (including on EDGAR), as applicable, and agrees to participate
in the Plan through any online or electronic system established and maintained by the Company or another third party designated by the
Company.
7.22
Section 409A. The parties intend for the Option to be exempt from Section 409A of the Code or, if not so exempt, to be treated
in a manner which complies with the requirements of such section, and intend that this Agreement be construed and administered in accordance
with such intention. In the event that the parties determine that the terms of this Agreement or the Option needs to be modified in order
to comply with Section 409A of the Code, the parties shall cooperate reasonably to do so in a manner intended to best preserve the economic
benefits of this Agreement. Any payments that qualify for the “short-term deferral” exception or another exception under
Section 409A of the Code shall be paid under the applicable exception. For purposes of the limitations on nonqualified deferred compensation
under Section 409A of the Code, each payment of compensation under this Agreement shall be treated as a separate payment of compensation.
Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties
under Section 409A of the Code, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this
Agreement during the six-month period immediately following the Participant’s separation from service shall instead be paid on
the first business day after the date that is six months following the Participant’s termination date (or death, if earlier).
7.23
Clawback of Incentive Compensation. If the Company is required to prepare an accounting restatement of its financial statements
due to the Company’s material noncompliance (whether one occurrence or a series of occurrences of noncompliance) with any financial
reporting requirement under the securities laws (including if the Company is required to prepare an accounting restatement to correct
an error (or a series of errors)) (a “Covered Accounting Restatement”), and if such Covered Accounting Restatement
includes (i) restatements that correct errors that are material to previously issued financial statements (commonly referred to as “Big
R” restatements), and (ii) restatements that correct errors that are not material to previously issued financial statements, but
would result in a material misstatement if (a) the errors were left uncorrected in the current report or (b) the error correction was
recognized in the current period (commonly referred to as “little r” restatements), then the Committee may, in its sole discretion,
require Optionee to repay (in which event, Optionee shall, within thirty (30) days of the notice by the Company, repay to the Company)
or forfeit (in which case, Optionee shall immediately forfeit to the Company) to the Company, and Optionee hereby agrees to so repay
or forfeit, that portion of the Incentive Compensation (as defined below) received by Optionee during the period comprised of the Company’s
three (3) completed fiscal years (together with any intermittent stub fiscal year period(s) of less than nine (9) months resulting from
Company’s transition to different fiscal year measurement dates) immediately preceding the date the Company is deemed (as described
below) to be required to prepare a Covered Accounting Restatement (such period, the “Look-Back Period”), that the
Committee determines was in excess of the amount of Incentive Compensation that Optionee would have received during such Look-Back Period,
had such Incentive Compensation been calculated based on the restated amounts, and irrespective of any fault, misconduct or responsibility
of Optionee for the Covered Accounting Restatement. It is specifically understood that, to the extent that the impact of the Covered
Accounting Restatement on the amount of Incentive Compensation received cannot be calculated directly from the information therein (e.g.,
if such restatement’s impact on the Company’s stock price is not clear), such excess amount of Incentive Compensation shall
be determined based on a reasonable estimate by the Committee of the effect of the Covered Accounting Restatement on the applicable financial
measure (including the stock price or total shareholder return) based upon which the Incentive Compensation was received. In addition,
in the case of time-based equity-based Incentive Compensation, a recoupment may occur, in the Committee’s sole discretion, if the
Committee concludes that the Incentive Compensation grants, earning and/or vesting would not have been made, or would have been lower
had they been based on the restated financial statements and it is possible to clearly compute the amount of such lesser award. Any decision
by the Committee that no recoupment shall occur because of difficulties of computation shall not be reviewable. The amount of the Incentive
Compensation to be recouped shall be determined by the Committee in its sole and absolute discretion and calculated on a pre-tax basis,
and the form of such recoupment of Incentive Compensation may be made, in the Committee’s sole and absolute discretion, through
the forfeiture or cancellation of vested or unvested Awards, cash repayment or both. Incentive Compensation shall be deemed received,
either wholly or in part, in the fiscal year during which the financial reporting measure specified in such Incentive Compensation award
is attained (or with respect to, or based upon the achievement of, such financial reporting measure, such Incentive Compensation was
granted, earned or vested, as applicable), even if the payment, vesting or grant of such Incentive Compensation occurs after the end
of such fiscal year. For purposes of this Section 7.23, the Company is deemed to be required to prepare a Covered Accounting Restatement
on the earlier of: (A) the date upon which the Board or an applicable committee thereof, or the officer or officers of the Company authorized
to take such action if Board action is not required, concludes, or reasonably should have concluded, that the Company is required to
prepare a Covered Accounting Restatement; or (B) the date a court, regulator, or other legally authorized body directs the Company to
prepare a Covered Accounting Restatement. For the purposes of this Agreement, “Incentive Compensation” shall mean
any compensation (including any Award or any other short-term or long-term cash or equity incentive award or any other payment) that
is granted, earned, or vested based wholly or in part upon the attainment of any financial reporting measure (i.e., any measures that
are determined and presented in accordance with the accounting principles used in preparing the Company’s financial statements,
and any measure that is derived wholly or in part from such measures, including stock price and total shareholder return). For the avoidance
of doubt, financial reporting measures include “non-GAAP financial measures” for purposes of Exchange Act Regulation G and
17 CFR 229.10, as well as other measures, metrics and ratios that are not non-GAAP measures, like same store sales. Financial reporting
measures may or may not be included in a filing with the Securities and Exchange Commission, and may be presented outside the Company’s
financial statements, such as in Management’s Discussion and Analysis of Financial Conditions and Results of Operations or the
performance graph.
Exhibit
99.3
IMMIX
BIOPHARMA, INC.
RESTRICTED
STOCK AWARD GRANT NOTICE
(Amended
and Restated 2021 Omnibus Equity Incentive Plan)
Immix
Biopharma, Inc. (the “Company”), pursuant to its Amended and Restated 2021 Omnibus Equity Incentive Plan
(the “Plan”), hereby awards to Participant, in consideration for Participant’s past or future services
actually or to be rendered to the Company, the number of shares of Common Stock (the “Shares”) set forth below
(the “Award”). The Award is subject to all of the terms and conditions as set forth in this Restricted Stock
Award Grant Notice (the “Grant Notice”) and the attached Restricted Stock Award Terms and Conditions (together
with the Grant Notice, the “Award Agreement”), and the Plan, all of which are attached to this Grant Notice
and incorporated into this Grant Notice in their entirety. Capitalized terms not explicitly defined in the Award Agreement but defined
in the Plan will have the meanings provided in the Plan. If the Company uses an electronic capitalization table system (such as Carta
or Shareworks) and the fields below are blank or the information is otherwise provided in a different format electronically, the blank
fields and other information (such as exercise schedule and type of grant) shall be deemed to come from the electronic capitalization
system and is considered part of this Grant Notice.
| Participant: |
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of Grant: |
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| Vesting
Commencement Date: |
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of Shares Subject to Award: |
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Vesting
Schedule:
Additional
Terms/Acknowledgements: Participant acknowledges receipt of a copy of the Plan and represents that he or she is familiar with the
terms and provisions thereof, and hereby accepts this Award subject to all of the terms and provisions of the Plan and this Award Agreement
(including all attachments and exhibits) and has had an opportunity to obtain the advice of counsel prior to executing and accepting
the Award. By accepting this Award, Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations
of the Board upon any questions arising under the Plan or this Award.
Participant
further consents to receive any documents related to the Plan by electronic delivery and to participate in the Plan through an online
or electronic system established and maintained by the Company or a third party designated by the Company.
Participant
further acknowledges that as of the Date of Grant, this Award Agreement and the Plan set forth the entire understanding between Participant
and the Company regarding the acquisition of stock in the Company and supersede all prior oral and written agreements on that subject,
with the exception of (i) options, restricted stock awards or other compensatory stock awards previously granted and delivered to Participant,
and (ii) any written employment or severance arrangement that would provide for vesting acceleration of this Award upon the terms and
conditions set forth therein.
This
Award may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature
complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission
method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
| Immix Biopharma, Inc. |
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Participant: |
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RESTRICTED
STOCK AWARD AGREEMENT
UNDER
THE IMMIX BIOPHARMA, INC.
Amended
and Restated 2021 Omnibus Equity Incentive Plan
| Name
of Grantee: |
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Pursuant
to the Immix Biopharma, Inc. Amended and Restated 2021 Omnibus Equity Incentive Plan (the “Plan”) as amended through the
date hereof, Immix Biopharma, Inc. (the “Company”) hereby grants a Restricted Stock Award (an “Award”) to the
Grantee named above. Upon acceptance of this Award, the Grantee shall receive the number of shares of Common Stock, par value $0.001
per share (the “Stock”) of the Company specified above, subject to the restrictions and conditions set forth herein and in
the Plan. The Company acknowledges the receipt from the Grantee of consideration with respect to the par value of the Stock in the form
of cash, past or future services rendered to the Company by the Grantee or such other form of consideration as is acceptable to the Administrator.
For the avoidance of doubt, the Award is not issued under the Company’s Plan, as amended from time to time, and does not reduce
the share reserve under such equity plan. If applicable, this Award is granted as an “employment inducement award” pursuant
to the exemption provided by Rule 5635(c)(4) of the Marketplace Rules of the NASDAQ Stock Market, Inc.
1.
Award. The shares of Restricted Stock awarded hereunder shall be issued and held by the Company’s transfer agent in book
entry form, and the Grantee’s name shall be entered as the stockholder of record on the books of the Company. Thereupon, the Grantee
shall have all the rights of a stockholder with respect to such shares, including voting and dividend rights, subject, however, to the
restrictions and conditions specified in Paragraph 2 below. The Grantee shall (i) sign and deliver to the Company a copy of this Award
Agreement and (ii) deliver to the Company a stock power endorsed in blank.
2.
Restrictions and Conditions.
(a)
Any book entries for the shares of Restricted Stock granted herein shall bear an appropriate legend, as determined by the Administrator
in its sole discretion, to the effect that such shares are subject to restrictions as set forth herein and in the Plan.
(b)
Shares of Restricted Stock granted herein may not be sold, assigned, transferred, pledged or otherwise encumbered or disposed of by the
Grantee prior to vesting.
(c)
If the Grantee’s Service Relationship with the Company or a Subsidiary is voluntarily or involuntarily terminated for any reason
(including death) prior to vesting of shares of Restricted Stock granted herein, all shares of Restricted Stock shall immediately and
automatically be forfeited and returned to the Company.
3.
Vesting of Restricted Stock. The restrictions and conditions in Paragraph 2 of this Agreement shall lapse on the Vesting Date
or Dates specified in the Restricted Stock Award Grant Notice. If a series of Vesting Dates is specified, then the restrictions and conditions
in Paragraph 2 shall lapse only with respect to the number of shares of Restricted Stock specified as vested on such dates specified.
Subsequent
to such Vesting Date or Dates, the shares of Stock on which all restrictions and conditions have lapsed shall no longer be deemed Restricted
Stock. The Administrator may at any time accelerate the vesting schedule specified in the Restricted Stock Award Grant Notice.
4.
Dividends. Dividends on shares of Restricted Stock shall be paid currently to the Grantee.
5.
Incorporation of Plan. Notwithstanding anything herein to the contrary, this Award shall be subject to and governed by all the
terms and conditions of the Plan, including the powers of the Administrator set forth in the Plan. Capitalized terms
in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
6.
Transferability. This Agreement is personal to the Grantee, is non-assignable and is not transferable in any manner, by operation
of law or otherwise, other than by will or the laws of descent and distribution.
7.
Tax Withholding. The Grantee shall, not later than the date as of which the receipt of this Award becomes a taxable event for
Federal income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state,
and local taxes required by law to be withheld on account of such taxable event. Except in the case where an election is made pursuant
to Paragraph 8 below, the Company shall have the authority to cause the required tax withholding obligation to be satisfied, in whole
or in part, by withholding from shares of Stock to be issued or released by the transfer agent a number of shares of Stock with an aggregate
Fair Market Value that would satisfy the withholding amount due.
8.
Election Under Section 83(b). The Grantee and the Company hereby agree that the Grantee may, within 30 days following the Grant
Date of this Award, file with the Internal Revenue Service and the Company an election under Section 83(b) of the Internal Revenue Code.
In the event the Grantee makes such an election, he or she agrees to provide a copy of the election to the Company. The Grantee acknowledges
that he or she is responsible for obtaining the advice of his or her tax advisors with regard to the Section 83(b) election and that
he or she is relying solely on such advisors and not on any statements or representations of the Company or any of its agents with regard
to such election.
9.
No Obligation to Continue Service Relationship. Neither the Company nor any Subsidiary is obligated by or as a result of the Plan
or this Agreement to continue the Grantee in a Service Relationship with the Company or a Subsidiary and neither the Plan nor this Agreement
shall interfere in any way with the right of the Company or any Subsidiary to terminate the Grantee’s Service Relationship with
the Company or a Subsidiary at any time.
10.
Integration. This Agreement constitutes the entire agreement between the parties with respect to this Award and supersedes all
prior agreements and discussions between the parties concerning such subject matter.
11.
Data Privacy Consent. In order to administer the Plan and this Agreement and to implement or structure future equity grants, the
Company, its subsidiaries and affiliates and certain agents thereof (together, the “Relevant Companies”) may process any
and all personal or professional data, including but not limited to Social Security or other identification number, home address and
telephone number, date of birth and other information that is necessary or desirable for the administration of the Plan and/or this Agreement
(the “Relevant Information”). By entering into this Agreement, the Grantee (i) authorizes the Company to collect, process,
register and transfer to the Relevant Companies all Relevant Information; (ii) waives any privacy rights the Grantee may have with respect
to the Relevant Information; (iii) authorizes the Relevant Companies to store and transmit such information in electronic form; and (iv)
authorizes the transfer of the Relevant Information to any jurisdiction in which the Relevant Companies consider appropriate. The Grantee
shall have access to, and the right to change, the Relevant Information. Relevant Information will only be used in accordance with applicable
law.
12.
Notices. Notices hereunder shall be mailed or delivered to the Company at its principal place of business and shall be mailed
or delivered to the Grantee at the address on file with the Company or, in either case, at such other address as one party may subsequently
furnish to the other party in writing.
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Title: |
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The
foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned. Electronic acceptance
of this Agreement pursuant to the Company’s instructions to the Grantee (including through an online acceptance process) is acceptable.
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Grantee’s
Signature |
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Grantee’s
name and address: |
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Exhibit
99.4
IMMIX
BIOPHARMA, INC.
AMENDED
AND RESTATED 2021 OMNIBUS EQUITY INCENTIVE PLAN
RESTRICTED
STOCK UNIT AWARD GRANT NOTICE
Immix
Biopharma, Inc., a Delaware corporation, (the “Company”), pursuant to its Amended and Restated 2021 Omnibus Equity
Incentive Plan, as amended from time to time (the “Plan”), hereby grants to the holder listed below (the “Participant”),
an award of restricted stock units (“Restricted Stock Units” or “RSUs”). Each vested Restricted
Stock Unit represents the right to receive, in accordance with the Restricted Stock Unit Award Agreement attached hereto as Exhibit
A (the “Agreement”), one share of Common Stock (“Share”). This award of Restricted Stock Units
is subject to all of the terms and conditions set forth herein and in the Agreement and the Plan, each of which are incorporated herein
by reference. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Restricted
Stock Unit Award Grant Notice (the “Grant Notice”) and the Agreement.
| Participant: |
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| Grant
Date: |
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Number of RSUs: |
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| Vesting
Commencement Date: |
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Schedule: |
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By
his or her signature and the Company’s signature below, the Participant agrees to be bound by the terms and conditions of the Plan,
the Agreement and this Grant Notice. The Participant has reviewed the Agreement, the Plan and this Grant Notice in their entirety, has
had an opportunity to obtain the advice of counsel prior to executing this Grant Notice and fully understands all provisions of this
Grant Notice, the Agreement and the Plan. The Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations
of the Administrator upon any questions arising under the Plan, this Grant Notice or the Agreement. In addition, by signing below, the
Participant also agrees that the Company, in its sole discretion, may satisfy any withholding obligations in accordance with Section
2.6(b) of the Agreement by (i) withholding shares of Common Stock otherwise issuable to the Participant upon vesting of the RSUs, (ii)
instructing a broker on the Participant’s behalf to sell shares of Common Stock otherwise issuable to the Participant upon vesting
of the RSUs and submit the proceeds of such sale to the Company, or (iii) using any other method permitted by Section 2.6(b) of the Agreement
or the Plan.
| IMMIX BIOPHARMA, INC.: |
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PARTICIPANT: |
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By: |
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EXHIBIT
A
TO
RESTRICTED STOCK UNIT AWARD GRANT NOTICE
RESTRICTED STOCK UNIT AWARD AGREEMENT
Pursuant
to the Restricted Stock Unit Award Grant Notice (the “Grant Notice”) to which this Restricted Stock Unit Award Agreement
(this “Agreement”) is attached, Immix Biopharma, Inc., a Delaware corporation (the “Company”),
has granted to the Participant the number of restricted stock units (“Restricted Stock Units” or “RSUs”)
set forth in the Grant Notice under the Company’s Amended and Restated 2021 Omnibus Equity Incentive Plan, as amended from time
to time (the “Plan”). Each vested Restricted Stock Unit represents the right to receive one share of Common Stock
(“Share”). Capitalized terms not specifically defined herein shall have the meanings specified in the Plan and Grant
Notice.
ARTICLE
I.
GENERAL
1.1
Incorporation of Terms of Plan. The RSUs are subject to the terms and conditions of the Plan, which are incorporated herein by
reference. In the event of any inconsistency between the Plan and this Agreement, the terms of the Plan shall control.
ARTICLE
II.
GRANT
OF RESTRICTED STOCK UNITS
2.1
Grant of RSUs. Pursuant to the Grant Notice and upon the terms and conditions set forth in the Plan and this Agreement, effective
as of the Grant Date set forth in the Grant Notice, the Company hereby grants to the Participant an award of RSUs under the Plan in consideration
of the Participant’s past and/or continued employment with or service to the Company or any Affiliates and for other good and valuable
consideration.
2.2
Unsecured Obligation to RSUs. Unless and until the RSUs have vested in the manner set forth in Article 2 hereof, the Participant
will have no right to receive Common Stock under any such RSUs. Prior to actual payment of any vested RSUs, such RSUs will represent
an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company.
2.3
Vesting Schedule. Subject to Section 2.5 hereof, the RSUs shall vest and become nonforfeitable with respect to the applicable
portion thereof according to the vesting schedule set forth in the Grant Notice (rounding down to the nearest whole Share).
2.4
Consideration to the Company. In consideration of the grant of the award of RSUs pursuant hereto, the Participant agrees to render
faithful and efficient services to the Company or any Affiliate.
2.5
Forfeiture, Termination and Cancellation upon Termination of Service. Notwithstanding any contrary provision of this Agreement
or the Plan, upon the Participant’s Termination of Service for any or no reason, all Restricted Stock Units which have not vested
prior to or in connection with such Termination of Service (after taking into consideration any accelerated vesting which may occur in
connection with such Termination of Service (if any)) shall thereupon automatically be forfeited, terminated and cancelled as of the
applicable termination date without payment of any consideration by the Company, and the Participant, or the Participant’s beneficiary
or personal representative, as the case may be, shall have no further rights hereunder. No portion of the RSUs which has not become vested
as of the date on which the Participant incurs a Termination of Service shall thereafter become vested.
2.6
Issuance of Common Stock upon Vesting.
(a)
As soon as administratively practicable following the vesting of any Restricted Stock Units pursuant to Section 2.3 hereof, but in no
event later than thirty (30) days after such vesting date (for the avoidance of doubt, this deadline is intended to comply with the “short
term deferral” exemption from Section 409A of the Code), the Company shall deliver to the Participant (or any transferee permitted
under Section 3.2 hereof) a number of Shares (either by delivering one or more certificates for such Shares or by entering such Shares
in book entry form, as determined by the Company in its sole discretion) equal to the number of RSUs subject to this Award that vest
on the applicable vesting date, unless such RSUs terminate prior to the given vesting date pursuant to Section 2.5 hereof. Notwithstanding
the foregoing, in the event Shares cannot be issued pursuant to the Plan, the Shares shall be issued pursuant to the
preceding sentence as soon as administratively practicable after the Administrator determines that Shares can again be issued in accordance
with such Section.
(b)
As set forth in the Plan, the Company shall have the authority and the right to deduct or withhold, or to require the
Participant to remit to the Company, an amount sufficient to satisfy all applicable federal, state and local taxes required by law to
be withheld with respect to any taxable event arising in connection with the Restricted Stock Units. The Company shall not be obligated
to deliver any new certificate representing Shares to the Participant or the Participant’s legal representative or enter such Shares
in book entry form unless and until the Participant or the Participant’s legal representative shall have paid or otherwise satisfied
in full the amount of all federal, state and local taxes applicable to the taxable income of the Participant resulting from the grant
or vesting of the Restricted Stock Units or the issuance of Shares.
2.7
Conditions to Delivery of Shares. The Shares deliverable hereunder may be either previously authorized but unissued Shares, treasury
Shares or issued Shares which have then been reacquired by the Company. Such Shares shall be fully paid and nonassessable. The Company
shall not be required to issue or deliver any certificates or make any book entries evidencing Shares deliverable hereunder prior to
fulfillment of the conditions set forth in the Plan.
2.8
Rights as Stockholder. The holder of the RSUs shall not be, nor have any of the rights or privileges of, a stockholder of the
Company, including, without limitation, voting rights and rights to dividends, in respect of the RSUs and any Shares underlying the RSUs
and deliverable hereunder unless and until such Shares shall have been issued by the Company and held of record by such holder (as evidenced
by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made
for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in the Plan.
ARTICLE
III.
OTHER PROVISIONS
3.1
Administration. The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent therewith and to interpret, amend or revoke any such rules.
All actions taken and all interpretations and determinations made by the Administrator in good faith shall be final and binding upon
the Participant, the Company and all other interested persons. No member of the Administrator or the Board shall be personally liable
for any action, determination or interpretation made in good faith with respect to the Plan, this Agreement or the RSUs.
3.2
RSUs Not Transferable. The RSUs shall be subject to the restrictions on transferability set forth in the Plan;
provided, however, that this Section 3.2 notwithstanding, with the consent of the Administrator, the RSUs may be transferred to
one or more Permitted Transferees, subject to and in accordance with the Plan.
3.3
Tax Consultation. The Participant understands that the Participant may suffer adverse tax consequences in connection with the
RSUs granted pursuant to this Agreement (and the Shares issuable with respect thereto). The Participant represents that the Participant
has consulted with any tax consultants the Participant deems advisable in connection with the RSUs and the issuance of Shares with respect
thereto and that the Participant is not relying on the Company for any tax advice.
3.4
Binding Agreement. Subject to the limitation on the transferability of the RSUs contained herein, this Agreement will be binding
upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.
3.5
Adjustments Upon Specified Events. The Administrator may accelerate the vesting of the RSUs in such circumstances as it, in its
sole discretion, may determine. The Participant acknowledges that the RSUs are subject to adjustment, modification and termination in
certain events as provided in this Agreement and the Plan.
3.6
Notices. Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of
the Secretary of the Company at the Company’s principal office, and any notice to be given to the Participant shall be addressed
to the Participant at the Participant’s last address reflected on the Company’s records. By a notice given pursuant to this
Section 3.6, either party may hereafter designate a different address for notices to be given to that party. Any notice shall be deemed
duly given when sent via email or when sent by certified mail (return receipt requested) and deposited (with postage prepaid) in a post
office or branch post office regularly maintained by the United States Postal Service.
3.7
Participant’s Representations. If the Shares issuable hereunder have not been registered under the Securities Act or any
applicable state laws on an effective registration statement at the time of such issuance, the Participant shall, if required by the
Company, concurrently with such issuance, make such written representations as are deemed necessary or appropriate by the Company and/or
its counsel.
3.8
Titles. Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of
this Agreement.
3.9
Governing Law. The laws of the State of Delaware shall govern the interpretation, validity, administration, enforcement and performance
of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws.
3.10
Conformity to Securities Laws. The Participant acknowledges that the Plan and this Agreement are intended to conform to the extent
necessary with all provisions of the Securities Act and the Exchange Act and any other Applicable Law. Notwithstanding anything herein
to the contrary, the Plan shall be administered, and the RSUs are granted, only in such a manner as to conform to Applicable Law. To
the extent permitted by Applicable Law, the Plan and this Agreement shall be deemed amended to the extent necessary to conform to such
Applicable Law.
3.11
Amendment, Suspension and Termination. To the extent permitted by the Plan, this Agreement may be wholly or partially amended
or otherwise modified, suspended or terminated at any time or from time to time by the Administrator or the Board; provided, however,
that, except as may otherwise be provided by the Plan, no amendment, modification, suspension or termination of this Agreement shall
adversely affect the RSUs in any material way without the prior written consent of the Participant.
3.12
Successors and Assigns. The Company may assign any of its rights under this Agreement to single or multiple assignees, and this
Agreement shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set
forth in Section 3.2 hereof, this Agreement shall be binding upon the Participant and his or her heirs, executors, administrators, successors
and assigns.
3.13
Limitations Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan or this Agreement, if the Participant
is subject to Section 16 of the Exchange Act, then the Plan, the RSUs and this Agreement shall be subject to any additional limitations
set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3 of the Exchange
Act) that are requirements for the application of such exemptive rule. To the extent permitted by Applicable Law, this Agreement shall
be deemed amended to the extent necessary to conform to such applicable exemptive rule.
3.14
Not a Contract of Service Relationship. Nothing in this Agreement or in the Plan shall confer upon Participant any right to continue
to serve as an employee or other service provider of the Company or any of its Affiliates or interfere with or restrict in any way with
the right of the Company or any of its Affiliates, which rights are hereby expressly reserved, to discharge or to terminate for any reason
whatsoever, with or without cause, the services of the Participant’s at any time.
3.15
Entire Agreement. The Plan, the Grant Notice and this Agreement (including all Exhibits thereto, if any) constitute the entire
agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and the Participant with
respect to the subject matter hereof.
3.16
Section 409A. This Award is not intended to constitute “nonqualified deferred compensation” within the meaning of
Section 409A of the Code (together with any Department of Treasury regulations and other interpretive guidance issued thereunder, including
without limitation any such regulations or other guidance that may be issued after the date hereof, “Section 409A”).
However, notwithstanding any other provision of the Plan, the Grant Notice or this Agreement, if at any time the Administrator determines
that this Award (or any portion thereof) may be subject to Section 409A, the Administrator shall have the right in its sole discretion
(without any obligation to do so or to indemnify Participant or any other person for failure to do so) to adopt such amendments to the
Plan, the Grant Notice or this Agreement, or adopt other policies and procedures (including amendments, policies and procedures with
retroactive effect), or take any other actions, as the Administrator determines are necessary or appropriate for this Award either to
be exempt from the application of Section 409A or to comply with the requirements of Section 409A.
3.17
Limitation on Participant’s Rights. Participation in the Plan confers no rights or interests other than as herein provided.
This Agreement creates only a contractual obligation on the part of the Company as to amounts payable and shall not be construed as creating
a trust. Neither the Plan nor any underlying program, in and of itself, has any assets. The Participant shall have only the rights of
a general unsecured creditor of the Company and its Affiliates with respect to amounts credited and benefits payable, if any, with respect
to the RSUs, and rights no greater than the right to receive the Common Stock as a general unsecured creditor with respect to RSUs, as
and when payable hereunder.
Exhibit
107
CALCULATION
OF FILING FEE TABLE
FORM
S-8
(Form
type)
Immix
Biopharma, Inc.
(Exact
name of Registrant as specified in its charter)
Table
1: Newly Registered Securities
| Security
Type | |
Security
Class Title | |
Fee Calculation
Rule | |
Amount Registered (1)(2) | | |
Proposed Maximum Offering Price
Per Unit | | |
Maximum Aggregate Offering Price | | |
Fee
Rate | | |
Amount
of Registration Fee | |
| Equity | |
Common Stock,
par value $0.0001 per share | |
Rule 457(h) | |
| 889,000 | (3) | |
$ | 2.04 | (4) | |
$ | 1,813,560 | | |
$ | 0.0001476 | | |
$ | 267.68 | |
| Equity | |
Common
Stock, par value $0.0001 per share | |
Rule
457(c) and (h) | |
| 2,111,000 | (5) | |
$ | 2.09 | (6) | |
$ | 4,411,990 | | |
$ | 0.0001476 | | |
$ | 651.21 | |
| Total
Offering Amounts | | |
| | | |
$ | 6,225,550 | | |
| | | |
| 918.89 | |
| | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | |
| Total Fees Previously
Paid | |
| | | |
| | | |
| | | |
| — | |
| | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | |
| Total Fee Offsets | | |
| | | |
| | | |
| | | |
| — | |
| | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | |
| Net
Fee Due | | |
| | | |
| | | |
| | | |
$ | 918.89 | |
| (1) |
This
Registration Statement on Form S-8 relates to the Amended and Restated 2021 Omnibus Equity Incentive Plan (the “Plan”)
of Immix Biopharma, Inc. (the “Registrant” or the “Company”). The offer and sale of an aggregate
of 3,000,000 shares of the Registrant’s common stock, par value $0.0001 per share (the “Common Stock”) reserved
under the Plan for future issuance are being registered herein. |
| (2) |
In
accordance with Rule 416 under the Securities Act, this Registration Statement shall be deemed to cover any additional securities
that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends, recapitalization
or similar transactions. |
| (3) |
Represents
shares issuable upon exercise of outstanding options issued to officers, directors and employees of the Registrant under the Plan
on June 11, 2024, with a weighted average exercise price of $2.04 per share. |
| (4) |
Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act, and based upon the weighted
average price at which such options may be exercised. |
| (5) |
Represents
shares reserved for issuance pursuant to future awards under the Plan. |
| (6) |
Estimated
solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h) under the Securities Act, and based upon
the average of the high ($2.21) and low ($1.96) prices of the Registrant’s Common Stock as reported on the Nasdaq
Capital Market on July 17, 2024, which date is within five business days prior to filing this Registration Statement. |
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