UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report: November 3, 2006

Date of Earliest Event Reported: October 30, 2006

 

ImmunoCellular Therapeutics, Ltd.

(Exact name of registrant as specified in its charter)

 

Delaware    33-17264-NY    11-2856146
(State or other jurisdiction of incorporation)    (Commission File Number)    (I.R.S. Employer
Identification No.)

 

11 th Floor

1999 Avenue of the Stars

Los Angeles, California 90067

  90048
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (310) 789-1213

Optical Molecular Imaging, Inc.

8797 Beverly Boulevard, Suite 310

Los Angeles, California 90048

(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 obligation 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 240.14a-12)

 

¨ 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))

 



Section 1. Registrant’s Business and Operations .

 

Item 1.01. Entry into a Material Definitive Agreement.

Effective as of October 30, 2006, ImmunoCellular Therapeutics, Ltd. (the “Company”) entered into a new agreement with David Wohlberg (the “Wohlberg Agreement”) under which Mr. Wohlberg agreed to continue to serve as the Company’s President and Chief Operating Officer for a one-year term, subject to earlier termination by the Company or Mr. Wohlberg on 30 days notice. Mr. Wohlberg will provide his services to the Company on a part-time basis, spending a majority of his business time on the Company’s affairs. Under the Wohlberg Agreement, Mr. Wohlberg was retroactively paid $2,000 per month for his prior services as the Company’s President and Chief Operating Officer from April 22, 2006 through October 29, 2006 and was granted a fully vested option to purchase 90,000 shares of the Company’s common stock for these prior services. Mr. Wohlberg will receive a salary of $2,000 per month from October 30, 2006 through the date of the Company’s entering into a definitive License Agreement with Cedars-Sinai Medical Center and $2,500 per month thereafter, and he was granted an option to purchase 95,000 shares of the Company’s common stock, which will vest quarterly over a one-year period, with one-half of his remaining unvested shares becoming vested if the Company terminates him without cause.

Effective as of October 30, 2006, the Company entered into a new agreement with C. Kirk Peacock (the “Peacock Agreement”) under which Mr. Peacock agreed to continue to serve as the Company’s Chief Financial Officer for a one-year term, subject to earlier termination by the Company or Mr. Peacock on 30 days notice. Mr. Peacock will provide his services to the Company on a part-time basis. Under the Peacock Agreement, Mr. Peacock was retroactively paid $2,000 per month for his prior services as the Company’s Chief Financial Officer from May 16, 2006 through October 29, 2006 and was granted a fully vested option to purchase 25,000 shares of the Company’s common stock for these prior services. Mr. Peacock will receive a salary of $2,000 per month from October 30, 2006 through the date of the Company’s entering into a definitive License Agreement with Cedars-Sinai Medical Center and $2,500 per month thereafter, and he was granted an option to purchase 50,000 shares of the Company’s common stock, which will vest quarterly over a one-year period, with one-half of his remaining unvested shares becoming vested if the Company terminates him without cause.

On October 30, 2006, the Company granted a fully vested option to purchase 40,000 shares of the Company’s common stock to each of Sanford J. Hillsberg (for his service as director of the Company’s predecessor company and the Company from February 26, 2004 through October 30, 2006), Dr. Rudolph Nisi (for his services as a director of the Company’s predecessor company and the Company from April 21, 2005 through October 30, 2006) and to David Wohlberg (for his service as a director of the Company’s predecessor company and the Company from April 21, 2005 through October 30, 2006). On October 30, 2006, the Company also granted an option to purchase 50,000 shares of the Company’s common stock, vesting quarterly over a one-year period, to each of Mr. Hillsberg, Dr. Nisi and Mr. Wohlberg for their services as a director for the one-year period commencing October 30, 2006. Each of the options granted to the Company’s officers and directors described above has a term of seven years, has an exercise price of $1.00 per share and may be exercised within their term during the period the grantee provides services to the Company and for 24 months after the grantee ceases providing services for any reason other than termination by the Company for cause. The options previously granted to Mr. Wohlberg and Mr. Peacock under their prior agreements with the Company also were revised to provide for the same period of exercisability within their original respective terms.

Section 5 – Corporate Governance and Management

 

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Effective November 2, 2006, the Company amended its Certificate of Incorporation to change the Company’s name from Optical Molecular Imaging, Inc. to ImmunoCellular Therapeutics, Ltd.

 

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Section 9. Financial Statements and Exhibits

 

Item 9.01. Financial Statements and Exhibits.

 

  (c) Exhibits

 

  3.1 Amended and Restated Certificate of Incorporation of the Company,

 

  3.2 Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Company.

 

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SIGNATURES

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.

 

   

ImmunoCellular Therapeutics, Ltd.

November 3, 2006    

By:

  /s/ David Wohlberg
       

Name: David Wohlberg

Title: President and Chief Operating Officer

 

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Exhibit Index

 

Exhibit
No.
  

Description

3.1    Amended and Restated Certificate of Incorporation of the Company.
3.2    Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Company.

 

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EXHIBIT 3.1

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

PATCO INDUSTRIES, LTD.

Patco Industries, Ltd. a corporation duly organized and existing under and by the General Corporation Law of the State of Delaware (“DGCL”), does hereby certify:

Patco Industries, Ltd.

The original Certificate of Incorporation of Patco Industries, Ltd. was filed with the Secretary of State of Delaware on March 20, 1987 under the name Redwing Capitol Corp. and changed its name to Patco Industries, Ltd. on June 16, 1989. This Amended and Restated Certificate of Incorporation amends and restates the original Certificate of Incorporation. In accordance with Section 245 of the DGCL pursuant to a resolution proposed by its Board of Directors and adopted by its stockholders in the manner and by the vote prescribed by Section 242 of the DGCL, Patco Industries, Ltd. hereby adopts the following Amended and Restated Certificate of Incorporation:

The name of the corporation is Optical Molecular Imaging, Inc. (“Company”).

The address of the Company’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.

The purpose of the Company is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

Authorized Capital Stock . The Company is authorized to issue two classes of capital stock, designated Common Stock and Preferred Stock. The total number of shares of capital stock that the Company is authorized to issue is 26,000,000 shares, consisting of 25,000,000 shares of Common Stock, par value $0.0001 per share, and 1,000,000 shares of Preferred Stock, par value $.0001 per share.

Preferred Stock . The Preferred Stock may be issued in one or more series. The Board of Directors of the Company (“Board”) is hereby authorized to issue the shares of Preferred Stock in such series and to fix from time to time before issuance the number of shares to be included in

 

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any such series and the designation, relative powers, preferences, and rights and qualifications, limitations, or restrictions of all shares of such series. The authority of the Board with respect to each such series will include, without limiting the generality of the foregoing, the determination of any or all of the following:

the number of shares of any series and the designation to distinguish the shares of such series from the shares of all other series;

the voting powers, if any, and whether such voting powers are full or limited in such series;

the redemption provisions, if any, applicable to such series, including the redemption price or prices to be paid;

whether dividends, if any, will be cumulative or noncumulative, the dividend rate of such series, and the dates and preferences of dividends on such series;

the rights of such series upon the voluntary or involuntary dissolution of, or upon any distribution of the assets of, the Company;

the provisions, if any, pursuant to which the shares of such series are convertible into, or exchangeable for, shares of any other class or classes or of any other series of the same or any other class or classes of stock, or any other security, of the Company or any other corporation or other entity, and the price or prices or the rates of exchange applicable thereto;

the right, if any, to subscribe for or to purchase any securities of the Company or any other corporation or other entity;

the provisions, if any, of a sinking fund applicable to such series; and

any other relative, participating, optional, or other special powers, preferences, rights, qualifications, limitations, or restrictions thereof;

all as may be determined from time to time by the Board and stated in the resolution or resolutions providing for the issuance of such Preferred Stock (collectively, a “Preferred Stock Designation”).

Common Stock . Except as may otherwise be provided in a Preferred Stock Designation, the holders of Common Stock will be entitled to one vote on each matter submitted to a vote at a meeting of stockholders for each share of Common Stock held of record by such holder as of the record date for such meeting.

Reverse Stock Split . Upon the filing of this Amended and Restated Certificate of Incorporation, and without further action on the part of the Company or its stockholders, each 230.4032258 shares of the Company’s Common Stock, then issued and outstanding, shall become one (1) fully paid and nonassessable share of Common Stock. Each fractional share as a result of such reverse stock split shall be rounded up to the nearest whole share. The capital account of the Company shall not be increased or decreased by such reverse stock split. To reflect such reverse stock split, each certificate representing 230.4032258 or more shares of Common Stock theretofore

 

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issued and outstanding shall represent the number of shares of Common Stock issued and outstanding after such reverse stock split; and the holder of record of each such certificate shall be entitled to receive a new certificate representing a number of shares of Common Stock equal to .004340217 times the number of shares represented by said certificate for theretofore issued and outstanding shares.

The Board may make, amend, and repeal the By-Laws of the Company. Any By-Law made by the Board under the powers conferred hereby may be amended or repealed by the Board (except as specified in any such By-Law so made or amended) or by the stockholders in the manner provided in the By-Laws of the Company.

The number of the Directors of the Company will be fixed from time to time in the manner described in the By-Laws of the Company. The Directors will hold office until their successors are elected and qualified.

To the full extent permitted by the DGCL or any other applicable law currently or hereafter in effect, no Director of the Company will be personally liable to the Company or its stockholders for or with respect to any acts or omissions in the performance of his or her duties as a Director of the Company. Any repeal or modification of this Article Seventh will not adversely affect any right or protection of a Director of the Company existing prior to such repeal or modification.

Each person who is or was or had agreed to become a Director or officer of the Company, and each such person who is or was serving or who had agreed to serve at the request of the Board or an officer of the Company as an employee or agent of the Company or as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other entity, whether for profit or not for profit (including the heirs, executors, administrators, or estate of such person), shall be indemnified by the Company to the fullest extent permitted by the DGCL or any other applicable law as currently or hereafter in effect and will be entitled to advancement of expenses in connection therewith. The right of indemnification and of advancement of expenses provided in this Article Eighth (a) will not be exclusive of any other rights to which any person seeking indemnification may otherwise be entitled, including without limitation pursuant to any contract approved by a majority of the whole Board (whether or not the Directors approving such contract are or are to be parties to such contract or similar contracts), and (b) will be applicable to matters otherwise within its scope whether or not such matters arose or arise before or after the adoption of this Article Eighth. Without limiting the generality of the foregoing, the Company may adopt By-Laws, or enter into one or more agreements with any person, which provide for indemnification and/or advancement of expenses greater or different than that provided in this Article Eighth or the DGCL. Any amendment or repeal of, or adoption of any provision inconsistent with, this Article Eighth will not adversely

 

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affect any right or protection arising hereunder, or arising out of facts occurring, prior to such amendment, repeal, or adoption and no amendment, repeal, or adoption, will affect the legality, validity, or enforceability of any contract entered into or right granted prior to the effective date of such amendment, repeal, or adoption.

* * * * * *

The foregoing Amended and Restated Certificate of Incorporation supersedes the Amended and Restated Certificate of Incorporation, as restated.

IN WITNESS WHEREOF, executed this 27th day of January, 2006.

 

By:   /s/ William Patridge
 

William Patridge

President

 

ATTEST:
By:   /s/ William Patridge
 

William Patridge

Secretary

 

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EXHIBIT 3.2

CERTIFICATE OF AMENDMENT

OF

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

OPTICAL MOLECULAR IMAGING, INC.

(Under Section 242 of the General Corporation

Law of the State of Delaware)

Optical Molecular Imaging, Inc., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

A. The name of the corporation is Optical Molecular Imaging, Inc. The original Certificate of Incorporation of the corporation was filed with the Delaware Secretary of State on March 20, 1987 under the name Redwing Capitol Corp. The corporation changed its name to Redwing Ventures Corp. on November 23, 1987, corrected the name to Redwing Ventures, Inc. on December 28, 1987, changed its name to Patco Industries, Ltd. on June 16, 1989, and an Amended and Restated Certificate of Incorporation was filed on January 30, 2006 which included changing its name to Optical Molecular Imaging, Inc.

B. This Certificate of Amendment was duly adopted by the corporation’s directors and stockholders in accordance with the applicable provisions of Sections 228 and 242 of the Delaware General Corporation Law.

C. The Amended and Restated Certificate of Incorporation is hereby amended by changing ARTICLE I so that, as amended, it shall be and read as follows:

“The name of the Corporation is “ImmunoCellular Therapeutics, Ltd.”

IN WITNESS WHEREOF, the corporation has caused this Certificate to be signed by Sanford J. Hillsberg, its Secretary this 2nd day of November, 2006.

 

Optical Molecular Imaging, Inc.

/s/ Sanford J. Hillsberg

Name: Sanford J. Hillsberg
Title: Secretary