As filed with the Securities and Exchange Commission on November 9, 2007.

File No. 333-             


UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 


IMMUNOCELLULAR THERAPEUTICS, LTD.

(Exact name of registrant as specified in its charter)

 

Delaware   11-2856146

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

1999 Avenue of the Stars, 11 th Floor

Los Angeles, California 90067

(Address of principal executive offices)

 


2006 Equity Incentive Plan of ImmunoCellular Therapeutics, Ltd.

(Full title of the plan)

 


C. Kirk Peacock

Interim President

ImmunoCellular Therapeutics, Ltd.

1999 Avenue of the Stars, 11 th Floor

Los Angeles, California 90067

(Name and address of agent for service)

(310) 423-0845

(Telephone number, including area code, of agent for service)

Copy to:

Marc Brown

Troy & Gould PC

1801 Century Park East, Suite 1600

Los Angeles, California 90067

(310) 789-1269


CALCULATION OF REGISTRATION FEE

 

 
Title of securities to be
registered
  Amount to be
registered (1)
  Proposed maximum
offering price per share
 

Proposed maximum
aggregate offering

price

  Amount of
registration fee

Common Stock, par value $0.0001 per share (2)

  1,186,660 shares (2)   $0.961379 (2)   $1,140,830 (2)   $35.02

Common Stock, par value $0.0001 per share (3)

  303,278 shares (3)   $1.15 (3)   $348,770 (3)   $10.71

Total

  1,489,938 shares   —     $1,489,600   $45.73
 
(1) Pursuant to Rule 416(a) of the Securities Act of 1933, this registration statement covers, in addition to the shares of common stock specified above, an indeterminate number of additional shares of common stock that may become issuable under the 2006 Equity Incentive Plan as a result of the anti-dilution adjustment provisions of the plan.

 

(2) Represents shares issuable upon the exercise of outstanding options under the 2006 Equity Incentive Plan. The proposed maximum offering price per share and maximum aggregate offering price for these shares were estimated pursuant to Rule 457(h) of the Securities Act on the basis of the weighted-average exercise price of such options of $0.961379 per share.

 

(3) Represents shares reserved for issuance pursuant to future awards under the 2006 Equity Incentive Plan. The proposed maximum offering price per share and maximum aggregate offering price for these shares were estimated pursuant to Rule 457(c) of the Securities Act of 1933 on the basis of the $1.15 average of the high and low trading prices of the registrant’s common stock as reported on the OTC Bulletin Board on November 6, 2007.

 



PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1. Plan Information.*

 

Item 2. Registrant Information and Employee Plan Annual Information.*

* Documents containing the information specified in this Part I to be contained in the Section 10(a) prospectus will be delivered to participants in the 2006 Equity Incentive Plan of ImmunoCellular Therapeutics, Ltd. (the “Company”), as required by Rule 428 of the Securities Act of 1933. Such information is not required to be included in this registration statement, and such documents are not required to be filed with the Securities and Exchange Commission (the “SEC”).

 

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PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference

The following documents previously filed by the Company with the SEC under the Securities Exchange Act of 1934 are incorporated by reference into this registration statement:

 

   

The Company’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2006 filed on April 2, 2007;

 

   

The Company’s Quarterly Report on Form 10-QSB for the quarter ended March 31, 2007 filed on May 15, 2007;

 

   

The Company’s Quarterly Report on Form 10-QSB for the quarter ended June 30, 2007 filed on August 14, 2007; and

 

   

The Company’s Current Reports on Form 8-K filed on January 12, 2007, January 26, 2007, February 5, 2007, February 23, 2007, April 11, 2007, May 9, 2007, and July 3, 2007, August 6, 2007, August 10, 2007, October 12, 2007, November 2, 2007 and November 6, 2007, respectively.

In addition, each document that the Company files with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement which indicates that all shares of common stock registered hereunder have been sold or that deregisters all such shares of common stock then remaining unsold shall be deemed to be incorporated by reference into this registration statement and to be part thereof from the date of the filing of such document.

 

Item 4. Description of Securities

The holders of the Company’s common stock are entitled to equal dividends and distributions per share with respect to the common stock when, as and if declared by the Board of Directors from legally available funds. No holder of any shares of common stock has a preemptive right to subscribe for any of the Company’s securities, nor are any common shares subject to redemption or convertible into other securities. Upon liquidation, dissolution or winding-up of the Company, and after payment of creditors and preferred stockholders, if any, the assets will be divided pro rata on a share-for-share basis among the holders of the shares of common stock. All shares of common stock now outstanding are fully paid, validly issued and non-assessable. Each share of the Company’s common stock is entitled to one vote with respect to the election of any director or any other matter upon which stockholders are required or permitted to vote.

 

Item 5. Interests of Named Experts and Counsel

Troy & Gould PC, Los Angeles, California, has rendered an opinion with respect to the validity of the shares of common stock covered by this registration statement. Sanford J. Hillsberg, one of the Company’s directors and the beneficial owner of 1,604,350 shares and options and warrants to acquire shares of the Company’s common stock, is a member of Troy & Gould PC. Troy & Gould PC and certain of its other employees and of counsel beneficially own in the aggregate 789,472 shares, options and warrants to acquire shares of the Company’s common stock. The beneficial ownership of shares described in this paragraph includes all options and warrants that may be exercised within 60 days from the date of this registration statement.

 

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Item 6. Indemnification of Directors and Officers

The Company’s Certificate of Incorporation provides that no officer or director will be personally liable to the Company or its stockholders for monetary damages except as provided pursuant to Delaware law. The Company’s Bylaws and Certificate of Incorporation also provide that the Company will indemnify and hold harmless each person who serves at any time as a director, officer, employee or agent of the Company from and against any and all claims, judgments and liabilities to which such person shall become subject by reason of the fact that he is or was a director, officer, employee or agent of the Company and will reimburse such person for all legal and other expenses reasonably incurred by him or her in connection with any such claim or liability. The Company also has the power to defend such person from all suits or claims in accord with the Delaware law. The rights accruing to any person under the Company’s Bylaws and Certificate of Incorporation do not exclude any other right to which any such person may lawfully be entitled, and the Company may indemnify or reimburse such person in any proper case, even though not specifically provided for by the Bylaws and Certificate of Incorporation.

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 SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.

 

Item 7. Exemption from Registration Claimed

Not applicable.

 

Item 8. Exhibits

The following exhibits are filed with this registration statement or are incorporated by reference as a part of this registration statement:

 

4.1    Certificate of Incorporation, as amended and restated to date, of ImmunoCellular Therapeutics, Ltd. (previously filed by the Company on November 3, 2006 and May 9, 2007, respectively, as exhibits to its Current Reports on Form 8-K and incorporated herein by reference).
4.2    Bylaws, as amended and restated to date, of ImmunoCellular Therapeutics, Ltd. (previously filed by the Company on February 6, 2006 as an exhibit to its Current Report on Form 8-K and incorporated herein by reference).
4.3    2006 Equity Incentive Plan of ImmunoCellular Therapeutics, Ltd. (previously filed by the Company on February 6, 2006 as an exhibit to its Current Report on Form 8-K and incorporated herein by reference).
4.4    Amendment No. 1 to the 2006 Equity Incentive Plan of ImmunoCellular Therapeutics, Ltd. dated October 30, 2006 (previously filed by the Company on September 14, 2007 as an exhibit to SB-2/A and incorporated herein by reference).
4.5    Form of Non-Qualified Stock Option Agreement for the 2006 Equity Incentive Plan of ImmunoCellular Therapeutics, Ltd. (included with this registration statement).

 

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  4.6    Form of Incentive Stock Option Agreement for the 2006 Equity Incentive Plan of ImmunoCellular Therapeutics, Ltd. (included with this registration statement).
  5.1    Opinion of Troy & Gould PC (included with this registration statement).
23.1    Consent of Stonefield Josephson, Inc. (included with this registration statement).
23.2    Consent of Troy & Gould PC (included in the opinion filed as Exhibit 5.1).
24.1    Power of Attorney (included on the signature page of this registration statement).

 

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 which, individually or together, represent a fundamental change in the information set forth in this registration statement;

(iii) To include any additional or changed material information with respect to the plan of distribution; provided, however , that 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 the SEC 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 file a post-effective amendment to remove from registration any of the securities being registered that remain unsold at the termination of the offering.

(b) The Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company’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 this 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 SEC 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

 

4


proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the 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 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.

 

5


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 registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Los Angeles, California, on November 9, 2007.

 

IMMUNOCELLULAR THERAPEUTICS, LTD.
By:   /s/ C. Kirk Peacock
  C. Kirk Peacock
  Chief Financial Officer and Interim President

POWER OF ATTORNEY

Each person whose signature appears below constitutes and appoints C. Kirk Peacock as his or her true and lawful attorney-in-fact and agent, with full power of substitution, for him or her in any and all capacities, to sign this registration statement on Form S-8 and any amendments hereto (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as he or she might do or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may do or cause to be done by virtue of this power of attorney.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

  

Title

 

Date

/s/ C. Kirk Peacock

   Chief Financial Officer and Interim President (principal executive and financial and accounting officer)  

November 9, 2007

C. Kirk Peacock

    

/s/ Jacqueline Brandwynne

  

Director

 

November 9, 2007

Jacqueline Brandwynne

    

/s/ Richard A. Cowell

  

Director

 

November 9, 2007

Richard A. Cowell

    

/s/ Sanford J. Hillsberg

  

Director

 

November 9, 2007

Sanford J. Hillsberg

    
    

Director

 

November   , 2007

Robert L. Martuza

    

/s/ Manfred Mosk

  

Director

 

November 9, 2007

Manfred Mosk

    

/s/ John Yu

  

Director

 

November 9, 2007

John Yu

    

 

6


EXHIBIT INDEX

 

  4.1    Certificate of Incorporation, as amended and restated to date, of ImmunoCellular Therapeutics, Ltd. (previously filed by the Company on November 3, 2006 and May 9, 2007, respectively, as exhibits to its Current Reports on Form 8-K and incorporated herein by reference).
  4.2    Bylaws, as amended and restated to date, of ImmunoCellular Therapeutics, Ltd. (previously filed by the Company on February 6, 2006 as an exhibit to its Current Report on Form 8-K and incorporated herein by reference).
  4.3    2006 Equity Incentive Plan of ImmunoCellular Therapeutics, Ltd. (previously filed by the Company on February 6, 2006 as an exhibit to its Current Report on Form 8-K and incorporated herein by reference).
  4.4    Amendment No. 1 to the 2006 Equity Incentive Plan of ImmunoCellular Therapeutics, Ltd. dated October 30, 2006 (previously filed by the Company on September 14, 2007 as an exhibit to SB-2/A and incorporated herein by reference).
  4.5    Form of Non-Qualified Stock Option Agreement for the 2006 Equity Incentive Plan of ImmunoCellular Therapeutics, Ltd. (included with this registration statement).
  4.6    Form of Incentive Stock Option Agreement for the 2006 Equity Incentive Plan of ImmunoCellular Therapeutics, Ltd. (included with this registration statement).
  5.1    Opinion of Troy & Gould PC (included with this registration statement).
23.1    Consent of Stonefield Josephson, Inc. (included with this registration statement).
23.2    Consent of Troy & Gould PC (included in the opinion filed as Exhibit 5.1).
24.1    Power of Attorney (included on the signature page of this registration statement).

 

7

Exhibit 4.5

IMMUNOCELLULAR THERAPEUTICS, LTD.

NON-QUALIFIED STOCK OPTION AGREEMENT

THIS NON-QUALIFIED STOCK OPTION AGREEMENT (“Agreement”), is made as of the ____ day of ____, 200_ by and between ImmunoCellular Therapeutics, Ltd. a Delaware corporation (the “Company”), and ________ (“Optionee”).

R E C I T A L

Pursuant to the 2006 Equity Incentive Plan (the “Plan”) of the Company, the Board of Directors of the Company or a committee to which administration of the Plan is delegated by the Board of Directors (in either case, the “Administrator”) has authorized the granting to Optionee as an employee, director, consultant or adviser of the Company of a non-qualified stock option to purchase the number of shares of Common Stock of the Company specified in Paragraph 1 hereof, at the price specified therein, such option to be for the term and upon the terms and conditions hereinafter stated.

A G R E E M E N T

NOW, THEREFORE, in consideration of the promises and of the undertakings of the parties hereto contained herein, it is hereby agreed:

1. Number of Shares; Option Price . Pursuant to said action of the Administrator, the Company hereby grants to Optionee the option (“Option”) to purchase, upon and subject to the terms and conditions of the Plan, ______ shares of Common Stock of the Company (“Shares”) at the price of $______ per share.

2. Term . This Option shall expire on the day before the ______ anniversary of the date of grant of the Option (the “Expiration Date”), unless such Option shall have been terminated prior to that date in accordance with the provisions of the Plan or this Agreement. The term “Affiliate” as used herein shall have the meaning as set forth in the Plan.

3. Shares Subject to Exercise . This Option shall be exercisable in installments as to [ __% of the Shares on and after ______, __% of the Shares on and after ______, __% of the Shares on and after ______ and __% of the Shares on and after ______,] provided , however , that an installment shall not become exercisable if the Optionee is not employed as an employee, director, consultant or adviser of the Company, or its Affiliate, as of such installment date. Once exercisable, the Option shall thereafter remain exercisable as to such vested Shares for the term specified in Paragraph 2 hereof, unless Optionee’s employment is terminated pursuant to Paragraph 6 hereof or the Option is terminated pursuant to a Corporate Transaction (as defined in Paragraph 15 hereof).


4. Method and Time of Exercise . The Option may be exercised by written notice delivered to the Company at its principal executive office stating the number of shares with respect to which the Option is being exercised together with:

(A) a check or money order made payable to the Company in the amount of the exercise price and any withholding tax, as provided under Paragraph 5 hereof; or

(B) the tender to the Company of shares of the Company’s Common Stock owned by Optionee or surrender of shares of Common Stock then issuable upon exercise of the Option having a fair market value not less than the exercise price, plus paying in cash the amount of applicable federal, state and local withholding taxes so long as such tender does not, in the Company’s judgment, have an adverse financial or tax accounting effect on the Company; or

(C) in lieu of exercising the Option for cash, the Optionee may elect to receive shares equal to the value (as determined below) of the Option (or the portion thereof being exercised), on the condition that the amount of applicable federal, state and local withholding taxes are paid in cash, in which event the Company shall issue to the Optionee a number of shares of Common Stock computed using the following formula:

 

X

   =    Y (A-B)
      A

 

Where X =

  

the number of shares of Common Stock to be issued to the Optionee

 

Y =

  

the number of shares of Common Stock purchasable under the Option or, if only a portion of the Option is being exercised, the portion of the Option being exercised (at the date of such calculation)

 

A =

  

the fair market value of one share of the Company’s Common Stock (at the date of such calculation)

 

B =

   the Exercise Price (as adjusted to the date of such calculation)

For purposes of the above calculation, fair market value of one share of Common Stock shall be, (i) if traded on a securities exchange, the value shall be deemed to be the closing price of the securities on such exchange on the date notice of exercise is received by the Company prior to the net exercise election; (ii) if traded over-the-counter, the value shall be deemed to be the closing price of such stock on the date notice of exercise is received by the Company, but if selling prices are not reported, the mean between the closing bid and ask prices for such stock on the date notice of exercise is received by the Company; and (iii) if there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the Board of Directors of the Company.

Only whole shares may be purchased.

5. Tax Withholding . As a condition to exercise of this Option, the Company may require Optionee to pay over to the Company all applicable federal, state and local taxes which the Company is required to withhold with respect to the exercise of this Option. At the discretion of the Administrator and upon the request of Optionee, the minimum statutory withholding tax requirements may be satisfied by the withholding of shares of Common Stock of the Company otherwise issuable to Optionee upon the exercise of this Option.


6. Exercise on Termination of Employment . If for any reason Optionee ceases to provide services to the Company or any of its Affiliates (such event being called a “Termination”), other than For Cause, as defined below, this Option (to the extent then exercisable) may be exercised in whole or in part at any time within 90 days of the date of such Termination, but in no event after the earlier of the Expiration Date or a Corporate Transaction which terminates the Option pursuant to Paragraph 15 hereof. For purposes of this Agreement, “services” includes service as an employee, director, consultant or adviser. For purposes of this Agreement, Optionee’s services shall not be deemed to terminate by reason of a transfer to or from the Company or an Affiliate or among such entities, or sick leave, military leave or other leave of absence approved by the Administrator, if the period of any such leave does not exceed 90 days or, if longer, if Optionee’s right to provide services to the Company or any Affiliate is guaranteed either contractually or by statute. For purposes of this Agreement, “For Cause” shall mean Optionee’s loss of employment by the Company or any of its Affiliates due to Optionee’s (a) willful breach or habitual neglect or continued incapacity to perform Optionee’s required duties, or commission of acts of dishonesty, fraud, misrepresentation or other acts of moral turpitude as would prevent the effective performance of Optionee’s duties, or (b) termination for cause under any agreement between the Company and the Optionee (as defined therein). In the event Optionee’s services to the Company or any of its Affiliates is Terminated For Cause, then the Option shall cease to be exercisable as of the date of such Termination.

7. Nontransferability . Except with the express written approval of the Administrator, this Option may not be assigned or transferred except by will or by the laws of descent and distribution, and may be exercised only by Optionee during the Optionee’s lifetime and after the Optionee’s death, by the Optionee’s personal representative or by the person entitled thereto under the Optionee’s will or the laws of intestate succession.

8. Optionee Not a Stockholder . Optionee shall have no rights as a stockholder with respect to the Common Stock of the Company covered by this Option until the date of issuance of a stock certificate or stock certificates to the Optionee upon exercise of this Option. No adjustment will be made for dividends or other rights for which the record date is prior to the date such stock certificate or certificates are issued.

9. No Right to Employment . Nothing in the Option granted hereby shall interfere with or limit in any way the right of the Company or of any of its Affiliates to terminate Optionee’s employment, consulting or advising at any time, nor confer upon Optionee any right to continue in the employ of, or consult or advise with, the Company or any of its Affiliates.

10. Modification and Termination . The rights of Optionee are subject to modification and termination in certain events as provided in Paragraphs 6.1 and 6.2 of the Plan. Except as otherwise specifically set forth in the Plan, this Option may not be modified except by a writing signed by both parties; provided, however, that either party may waive any right hereunder by an instrument unilaterally signed.

11. Restrictions on Sale of Shares . Optionee represents and agrees that upon the Optionee’s exercise of this Option, in whole or in part, unless there is in effect at that time under the Securities Act of 1933 a registration statement relating to the Shares issued to the Optionee, the Optionee will acquire the Shares issuable upon exercise of this Option for the purpose of investment and not with a view to their resale or further distribution, and that upon such exercise thereof the Optionee will furnish to the Company a written statement to such effect, satisfactory to the Company in form and substance. Following the Company becoming eligible to use Form S-8, the Company will register the Shares under the Securities Act of 1933. Optionee agrees that any certificates issued upon exercise of this Option may bear a legend indicating that their transferability is restricted in accordance with applicable state and federal


securities law. Any person or persons entitled to exercise this Option under the provisions of Paragraphs 6 and 7 hereof shall, upon each exercise of this Option under circumstances in which Optionee would be required to furnish such a written statement, also furnish to the Company a written statement to the same effect, satisfactory to the Company in form and substance.

12. Plan Governs . This Agreement and the Option evidenced hereby are made and granted pursuant to the Plan and are in all respects limited by and subject to the express terms and provisions of the Plan, as it may be construed by the Administrator. Optionee hereby acknowledges receipt of a copy of the Plan.

13. Notices . All notices to the Company shall be addressed to the Corporate Secretary at the principal executive office of the Company at 1999 Avenue of the Stars, 11 th Floor, Los Angeles California 90067, and all notices to Optionee shall be addressed to Optionee at the address of Optionee on file with the Company, or to such other address as either may designate to the other in writing. A notice shall be deemed to be duly given if and when enclosed in a properly addressed sealed envelope deposited, postage prepaid, with the United States Postal Service. In lieu of giving notice by mail as aforesaid, written notices under this Agreement may be given by personal delivery to Optionee or to the Corporate Secretary (as the case may be).

14. Sale or Other Disposition . If Optionee at any time contemplates the disposition (whether by sale, gift, exchange, or other form of transfer) of any Shares acquired by exercise of this Option, the Optionee shall first notify the Company in writing of such proposed disposition and cooperate with the Company in complying with all applicable requirements of law, which, in the judgment of the Company, must be satisfied prior to such disposition.

15. Corporate Transactions . In the event of a Corporate Transaction (as defined below), the Administrator shall notify Optionee at least 30 days prior thereto or as soon as may be practicable. To the extent not previously exercised, this Option shall terminate immediately prior to the consummation of such Corporate Transaction unless the Administrator determines otherwise in its sole discretion; provided, however, that the Administrator, in its sole discretion, may (i) permit exercise of this Option prior to its termination, even if this Option would not otherwise have been exercisable, and (ii) provide that this Option shall be assumed or an equivalent option substituted by an applicable successor corporation or any Affiliate of the successor corporation in the event of a Corporate Transaction. A “Corporate Transaction” means a liquidation or dissolution of the Company, a merger or consolidation of the Company with or into another corporation or entity if, as a result of such merger or consolidation, the stockholders of the Company immediately prior to such transaction own less than 50% of the surviving or consolidated entity, a sale of all or substantially all of the assets of the Company, or a purchase or other acquisition of more than 50% of the outstanding capital stock of the Company in a single transaction or a series of related transactions by one person or more than one person acting in concert.

16. Non-Compete Agreement . Notwithstanding anything to the contrary provided herein, as a condition to the receipt of Shares pursuant to the exercise of this Option, at any time during which this Option is outstanding and for six months after any exercise of this Option or the receipt of Shares pursuant to the exercise of this Option, Optionee shall not, unless otherwise permitted by a specific agreement with the Company under which Optionee is providing services to the Company (which permitted arrangement shall be deemed to apply to the post-termination period for purposes of this Paragraph 16 and which permitted exception shall also be


a permitted exception to any similar non-competition provision contained in any option previously granted by the Company to Optionee), directly or indirectly, as agent, employee, consultant, stockholder, partner or in any other capacity, own, operate, manage, control, engage in, invest in or participate in any manner in, act as a consultant or advisor to, render services for, or otherwise assist any person or entity that engages in or owns, invests in, operates, manages or controls, any venture or enterprise that directly or indirectly competes with the Company, provided , however , that nothing contained herein shall be construed to prevent Optionee from investing in the stock of any competing corporation listed on a national securities exchange or traded in the over-the-counter market, but only if Optionee is not involved in the business of said corporation and if Optionee (together with Optionee’s spouse, parents, siblings, and children) does not own more than an aggregate of 5% of the stock of such corporation. Optionee agrees to notify the Company within 10 days of any violation of this Paragraph 16. Failure to comply with this Paragraph 16 shall cause such Option and the exercise or issuance of Shares hereunder to be rescinded and the benefit of such exercise or issuance to be repaid to the Company. Optionee agrees and understands that Optionee’s failure to comply with this Paragraph 16 will subject Optionee’s benefit from the Option to be forfeited and repaid to the Company, and Optionee agrees to do so within 10 days of notification by the Company.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.

 

IMMUNOCELLULAR THERAPEUTICS, LTD.

By

   
  Name:  
  Title:   President

 

OPTIONEE

   

Address:

 
 
 
 

Social Security Number

Exhibit 4.6

IMMUNOCELLULAR THERAPEUTICS, LTD.

INCENTIVE STOCK OPTION AGREEMENT

THIS INCENTIVE STOCK OPTION AGREEMENT (this “Agreement”), is made as of the              day of -              , 200_ by and between ImmunoCellular Therapeutics, Ltd., a Delaware corporation (the “Company”), and                           (“Optionee”).

R E C I T A L

Pursuant to the 2006 Equity Incentive Plan (the “Plan”) of the Company, the Board of Directors of the Company or a committee to which administration of the Plan is delegated by the Board of Directors (in either case, the “Administrator”) has authorized the granting to Optionee as an employee, director, consultant or adviser of the Company of an incentive stock option to purchase the number of shares of common stock of the Company specified in Paragraph 1 hereof, at the price specified therein, such option to be for the term and upon the terms and conditions hereinafter stated.

A G R E E M E N T

NOW, THEREFORE, in consideration of the promises and of the undertakings of the parties hereto contained herein, it is hereby agreed:

1. Number of Shares; Option Price . Pursuant to said action of the Administrator, the Company hereby grants to Optionee the option (“Option”) to purchase, upon and subject to the terms and conditions of the Plan,              shares of common stock of the Company (“Shares”) at the price of $              per Share (which price shall be no less than the fair market value of a Share on the date of grant of this Option).

2. Term . This Option shall expire on the day before the              anniversary of the date of grant of the Option (the “Expiration Date”), unless such Option shall have been terminated prior to that date in accordance with the provisions of the Plan or this Agreement. The term “Affiliate” as used herein shall have the meaning as set forth in the Plan.

3. Shares Subject to Exercise . This Option shall be exercisable in installments as to [ __% of the Shares on and after              , __% of the Shares on and after              , __% of the Shares on and after              and __% of the Shares on and after              ,] provided , however , that an installment shall not become exercisable if the Optionee is not employed as an employee of the Company, or any of its Affiliates, as of such installment date. Once exercisable, the Option shall thereafter remain exercisable as to such Shares for the term specified in Paragraph 2 hereof, unless Optionee’s employment is terminated pursuant to Paragraph 6 hereof or the Option is terminated pursuant to a Corporate Transaction (as defined in Paragraph 15 hereof).

4. Method and Time of Exercise . The Option may be exercised by written notice delivered to the Company at its principal executive office stating (i) that Optionee is in compliance with the non-compete provisions of Paragraph 16 hereof, (ii) that Optionee has no plan to violate Paragraph 16 in the future, (iii) that Optionee agrees to notify the Company within ten (10) days of a violation of Paragraph 16 hereof, and (iv) the number of shares with respect to which the Option is being exercised, together with:

(A) a check or money order made payable to the Company in the amount of the exercise price and any withholding tax, as provided under Paragraph 5 hereof; or


(B) at the time of the Option exercise, the tender to the Company of shares of the Company’s common stock owned by Optionee having a fair market value not less than the exercise price so long as such tender does not, in the Company’s judgment, have an adverse financial or tax accounting effect on the Company; or

(C) in lieu of exercising the Option for cash, the Optionee may elect to receive shares equal to the value (as determined below) of the Option (or the portion thereof being exercised), on the condition that the amount of applicable federal, state and local withholding taxes are paid in cash, in which event the Company shall issue to the Optionee a number of shares of Common Stock computed using the following formula:

 

X

   =    Y (A-B)
      A

 

Where X =

  

the number of shares of Common Stock to be issued to the Optionee

 

Y =

  

the number of shares of Common Stock purchasable under the Option or, if only a portion of the Option is being exercised, the portion of the Option being exercised (at the date of such calculation)

 

A =

  

the fair market value of one share of the Company’s Common Stock (at the date of such calculation)

 

B =

   the Exercise Price (as adjusted to the date of such calculation)

For purposes of the above calculation, fair market value of one share of Common Stock shall be, (i) if traded on a securities exchange, the value shall be deemed to be the closing price of the securities on such exchange on the date notice of exercise is received by the Company prior to the net exercise election; (ii) if traded over-the-counter, the value shall be deemed to be the closing price of such stock on the date notice of exercise is received by the Company, but if selling prices are not reported, the mean between the closing bid and ask prices for such stock on the date notice of exercise is received by the Company; and (iii) if there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the Board of Directors of the Company.

Only whole shares may be purchased.

5. Tax Withholding . In general, no tax withholding is required with respect to this Option or its exercise. If, however, the optionee elects to exercise under Paragraph 4(C) or if for any reason all or part of this Option is considered to be a non-qualified stock option, rather than an incentive stock option, then, as a condition to exercise of such portion of this Option, the Company may require Optionee to pay over to the Company all applicable federal, state and local taxes which the Company is required to withhold with respect to the exercise of this Option in that connection. At the discretion of the Administrator and upon the request of Optionee, the minimum statutory withholding tax requirements may be satisfied by the withholding of Shares otherwise issuable to Optionee upon the exercise of this Option.


6. Exercise on Termination of Employment . If for any reason Optionee ceases to provide services to the Company or any of its Affiliates (such event being called a “Termination”), other than For Cause, as defined below, this Option (to the extent then exercisable) may be exercised in whole or in part at any time within 90 days of the date of such Termination, but in no event after the earlier of the Expiration Date or a Corporate Transaction which terminates the Option pursuant to Paragraph 15 hereof. For purposes of this Agreement, “services” includes service as an employee, director, consultant or adviser. For purposes of this Agreement, Optionee’s services shall not be deemed to terminate by reason of a transfer to or from the Company or an Affiliate or among such entities, or sick leave, military leave or other leave of absence approved by the Administrator, if the period of any such leave does not exceed 90 days or, if longer, if Optionee’s right to provide services to the Company or any Affiliate is guaranteed either contractually or by statute. For purposes of this Agreement, “For Cause” shall mean Optionee’s loss of employment by the Company or any of its Affiliates due to Optionee’s (a) willful breach or habitual neglect or continued incapacity to perform Optionee’s required duties, or commission of acts of dishonesty, fraud, misrepresentation or other acts of moral turpitude as would prevent the effective performance of Optionee’s duties, or (b) termination for cause under any agreement between the Company and the Optionee (as defined therein). In the event Optionee’s services to the Company or any of its Affiliates is Terminated For Cause, then the Option shall cease to be exercisable as of the date of such Termination.

7. Non-Transferability . Except with the express written approval of the Administrator, this Option may not be assigned or transferred except by will or by the laws of descent and distribution, and may be exercised only by Optionee during the Optionee’s lifetime and after the Optionee’s death, by the Optionee’s personal representative or by the person entitled thereto under the Optionee’s will or the laws of intestate succession.

8. Optionee Not a Stockholder . Optionee shall have no rights as a stockholder with respect to the Shares covered by this Option until the date of issuance of a stock certificate or stock certificates to the Optionee upon exercise of this Option. No adjustment will be made for dividends or other rights for which the record date is prior to the date such stock certificate or certificates are issued.

9. No Right to Employment . Nothing in the Option granted hereby shall interfere with or limit in any way the right of the Company or of any of its Affiliates to terminate Optionee’s employment, consulting or advising at any time, nor confer upon Optionee any right to continue in the employ of, consult with, or advise the Company or any of its Affiliates.

10. Modification and Waiver . Except as otherwise specifically set forth in the Plan, this Option may not be modified except by a writing signed by both parties; provided, however, that either party may waive any right hereunder by an instrument unilaterally signed.

11. Restrictions on Sale of Shares . Optionee represents and agrees that upon the Optionee’s exercise of this Option, in whole or in part, unless there is in effect at that time under the Securities Act of 1933 a registration statement relating to the Shares issued to the Optionee, the Optionee will acquire the Shares issuable upon exercise of this Option for the purpose of investment and not with a view to their resale or further distribution, and that upon such exercise thereof the Optionee will furnish to the Company a written


statement to such effect, satisfactory to the Company in form and substance. Following the Company becoming eligible to use Form S-8, the Company will register the Shares under the Securities Act of 1933. Optionee agrees that any certificates issued upon exercise of this Option may bear a legend indicating that their transferability is restricted in accordance with applicable state and federal securities law. Any person or persons entitled to exercise this Option under the provisions of Paragraphs 6 and 7 hereof shall, upon each exercise of this Option under circumstances in which Optionee would be required to furnish such a written statement, also furnish to the Company a written statement to the same effect, satisfactory to the Company in form and substance.

12. Plan Governs . This Agreement and the Option evidenced hereby are made and granted pursuant to the Plan and are in all respects limited by and subject to the express terms and provisions of the Plan, as it may be construed by the Administrator. Optionee hereby acknowledges receipt of a copy of the Plan.

13. Notices . All notices to the Company shall be addressed to the Corporate Secretary at the principal executive office of the Company at 1999 Avenue of the Stars, 11 th Floor, Los Angeles California 90067, and all notices to Optionee shall be addressed to Optionee at the address of Optionee on file with the Company, or to such other address as either may designate to the other in writing. A notice shall be deemed to be duly given if and when enclosed in a properly addressed sealed envelope deposited, postage prepaid, with the United States Postal Service. In lieu of giving notice by mail as aforesaid, written notices under this Agreement may be given by personal delivery to Optionee or to the Corporate Secretary (as the case may be).

14. Sale or Other Disposition . If Optionee at any time contemplates the disposition (whether by sale, gift, exchange, or other form of transfer) of any Shares acquired by exercise of this Option, the Optionee shall first notify the Company in writing of such proposed disposition and cooperate with the Company in complying with all applicable requirements of law, which, in the judgment of the Company, must be satisfied prior to such disposition.

15. Corporate Transactions . In the event of a Corporate Transaction (as defined below), the Administrator shall notify Optionee at least 30 days prior thereto or as soon as may be practicable. To the extent not previously exercised, this Option shall terminate immediately prior to the consummation of such Corporate Transaction unless the Administrator determines otherwise in its sole discretion; provided, however, that the Administrator, in its sole discretion, may (i) permit exercise of this Option prior to its termination, even if this Option would not otherwise have been exercisable, and (ii) provide that this Option shall be assumed or an equivalent option substituted by an applicable successor corporation or any Affiliate of the successor corporation in the event of a Corporate Transaction. A “Corporate Transaction” means a liquidation or dissolution of the Company, a merger or consolidation of the Company with or into another corporation or entity if, as a result of such merger or consolidation, the stockholders of the Company immediately prior to such transaction own less than 50% of the surviving or consolidated entity, a sale of all or substantially all of the assets of the Company, or a purchase or other acquisition of more than 50% of the outstanding capital stock of the Company in a single transaction or a series of related transactions by one person or more than one person acting in concert.

16. Non-Compete Agreement . Notwithstanding anything to the contrary provided herein, as a condition to the receipt of Shares pursuant to the exercise of this Option, at any time during which this Option is outstanding and for six (6) months after any exercise of this Option or the receipt of Shares pursuant to the exercise of this Option, Optionee shall not directly or indirectly, as agent,


employee, consultant, stockholder, partner or in any other capacity, own, operate, manage, control, engage in, invest in or participate in any manner in, act as a consultant or advisor to, render services for, or otherwise assist any person or entity that engages in or owns, invests in, operates, manages or controls, any venture or enterprise that directly or indirectly competes with the Company, provided , however , that nothing contained herein shall be construed to prevent Optionee from investing in the stock of any competing corporation listed on a national securities exchange or traded in the over-the-counter market, but only if Optionee is not involved in the business of said corporation and if Optionee (together with Optionee’s spouse, parents, siblings, and children) does not own more than an aggregate of five percent (5%) of the stock of such corporation. Optionee agrees to notify the Company within ten (10) days of any violation of this Paragraph 16. Failure to comply with this Paragraph 16 shall cause such Option and the exercise or issuance of Shares hereunder to be rescinded and the benefit of such exercise or issuance to be repaid to the Company. Optionee agrees and understands that Optionee’s failure to comply with this Paragraph 16 will subject Optionee’s benefit from the Option to be forfeited and repaid to the Company, and Optionee agrees to do so within ten (10) days of notification by the Company.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.

 

IMMUNOCELLULAR THERAPEUTICS, LTD.

By

   
  Name:  
  Title:   President

 

OPTIONEE

   

Address:

 
 
 
 

Social Security Number

Exhibit 5.1

TROY & GOULD PC

1801 Century Park East, 16 th Floor

Los Angeles, California 90067-2367

November 8, 2007

ImmunoCellular Therapeutics, Ltd.

1999 Avenue of the Stars, 11 th Floor

Los Angeles, California 90067

 

  Re: Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as counsel to ImmunoCellular Therapeutics, Ltd., a Delaware corporation (the “Company”), in connection with a Registration Statement on Form S-8 (the “Registration Statement”) that the Company intends to file with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), for the purpose of registering the offer and sale of up to 1,489,938 shares (the “Shares”) of its common stock, par value $0.0001 per share, which are issuable under the Company’s 2006 Equity Incentive Plan (the “Plan”). This opinion letter is being given to you pursuant to your request.

As a basis for rendering our opinion expressed below, we have reviewed originals or copies of originals, certified or otherwise identified to our satisfaction, of (i) the Registration Statement, (ii) the Plan, (iii) the Company’s Certificate of Incorporation and Bylaws, each as amended to date, (iv) resolutions of the Company’s Board of Directors pertaining to the issuance of the Shares, the Registration Statement and related matters, and (v) such other documents as we have considered necessary or appropriate as a basis for rendering our opinion.

With your permission, in order to render our opinion, we have made and relied upon such customary assumptions as we have deemed necessary or appropriate without any independent investigation or inquiry by us. Among other things, we have assumed that: all signatures on documents reviewed by us are genuine; all documents submitted to us as originals are authentic; and all documents submitted to us as copies conform to the originals of such documents, and such originals are authentic.

We neither express nor imply any opinion as to the laws of any jurisdiction other than applicable statutory provisions of the General Corporation Law of the State of Delaware (including applicable rules and regulations promulgated under the Delaware General Corporation Law and applicable reported judicial and regulatory determinations interpreting the Delaware General Corporation Law). We assume no responsibility with respect to the application or effect of the laws of any other jurisdiction.


This opinion letter is limited to the opinion expressly stated below, does not include any implied opinions and is rendered as of the date hereof. We do not undertake to advise you of matters that may come to our attention subsequent to the date hereof and that may affect our opinion, including, without limitation, future changes in applicable law.

Based upon and subject to all of the foregoing, we are of the opinion that all Shares which are issued, delivered and paid for in accordance with the terms and conditions of the Registration Statement and the Plan will be validly issued, fully paid and non-assessable.

We consent to the filing of this opinion letter as an exhibit to the Registration Statement. However, by giving you this opinion letter and consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.

 

Very truly yours,

/s/ TROY & GOULD PC

TROY & GOULD PC

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 and related Prospectus of ImmunoCellular Therapeutics, Ltd. pertaining to the 2006 Equity Incentive Plan of ImmunoCellular Therapeutics, Ltd. of our report of Independent Registered Public Accounting Firm dated March 28, 2007 covering the financial statements of ImmunoCellular Therapeutics, Ltd. as of December 31, 2006 and 2005 and for the years ended December 31, 2006 and 2005 and for the period from inception of operations (February 25, 2004) to December 31, 2006.

/s/ STONEFIELD JOSEPHSON, INC.

Los Angeles, California

November 8, 2007