Attached files
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| EX-3.1 - EXHIBIT 3.1 - Ocata Therapeutics, Inc. | ex31.htm |
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 (Date of earliest event reported): October 1,
2009
ADVANCED
CELL TECHNOLOGY, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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000-50295
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87-0656515
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(State
or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS
Employer Identification Number)
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381
Plantation Street Worcester, Massachusetts 01605
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(Address
of principal executive offices, including zip code)
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(510)
748-4900
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(Registrant’s
telephone number, including area code)
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Copies
to:
Thomas
A. Rose, Esq.
David
Manno, Esq.
Sichenzia
Ross Friedman Ference LLP
61
Broadway, 32nd Floor
New
York, NY 10006
Phone:
(212) 930-9700
Fax:
(212) 930-9725
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(Former
name or former address, if changed since last
report)
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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:
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b)
o
Pre-commencement communications pursuant to
Rule 13e-4(c) under the Exchange Act (17 CAR
240.13e-4(c))
1
ITEM 1.01 Entry into a Material Definitive
Agreement.
On October
19, 2009, Advanced Cell Technology, Inc. (the “Company”), entered
into two letter agreements with Volation Capital Partners LLC doing business as
Volation Life Sciences Capital Partners, LLC (“Volation”), pursuant to which (i)
the Company reduced the Conversion price of its outstanding Series A-1
Convertible Preferred Stock issued to Volation to $.10 per share resulting in 22,880,000 shares
of Common Stock upon conversion, (ii) issued Volation 2,500,000 shares of its
Common Stock and (iii) Volation waived the delinquency in non-payment
of the Commitment fee required pursuant to the Preferred Stock Purchase
Agreement between the Company and Volation.
In
connection with an amendment to an agreement between the Company and JMJ
Financial, dated October 1, 2009, on October 1, 2009, the Company borrowed
$1,000,000 and issued a convertible promissory note for
$1,200,000. The Company shall pay a one-time interest payment of 10%
of the principal of the promissory note which is due on the maturity date of the
promissory note, which is October 1, 2012. The promissory note
is convertible into shares of the Company’s Common Stock at a conversion price
of the lesser of (i) $.25 per share or (ii) eighty percent of the average of the
three lowest trade prices in the 20 trading days prior to the
conversion.
In
connection with an amendment to an agreement between the Company and JMJ
Financial, dated October 1, 2009, on October 1, 2009, the Company borrowed
$1,000,000 and issued a Secured & Collateralized Promissory Note. The
Company shall pay a one-time interest payment of 12% of the principal of the
promissory note which is due on the maturity date of the promissory note, which
is October 1, 2012. The promissory note is secured by
$1,000,000 of a money market fund or other assets of the Company.
On
November 2, 2009 (the “Effective Date”), the Company entered into a preferred
stock purchase agreement (the “Purchase Agreement”) with Optimus Capital
Partners, LLC, doing business as Optimus Life Sciences Capital Partners, LLC
(the “Investor”). Pursuant to the Purchase Agreement:
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·
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The
Company agreed to sell, and the Investor agreed to purchase, in one or
more purchases from time to time (“Tranches”) in the Company’s sole
discretion (subject to the conditions set forth therein), (i) up to 1,000
shares of Series B Preferred Stock (the “Preferred Shares”) at a purchase
price of $10,000 per share, for an aggregate purchase price of up to
$10,000,000, and (ii) five-year warrants (“Warrants”) to purchase shares
of the Company’s common stock with an aggregate exercise price
equal to 135% of the purchase price paid by the Investor, at an exercise
price per share equal to the closing bid price of the Company’s common
stock on the date the Company provides notice of such Tranche. The
Warrants will be issued in replacement of a five-year warrant to purchase
119,469,027 shares of common stock with an exercise price per share of
$0.113 the Company issued on the Effective
Date.
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·
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the
Company agreed to pay to the Investor a commitment fee of $500,000 (the
“Commitment Fee”), at the earlier of the closing of the first Tranche or
the six month anniversary of the Effective Date, payable at the Company’s
election in cash or common stock valued at 90% of the volume weighted
average price of the Company’s common stock on the five trading days
preceding the payment date.
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·
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the
Company agreed to use its best efforts to file within 60 days of the
Effective Date, and cause to become effective as soon as possible
thereafter, a registration statement with the Securities and Exchange
Commission for the resale of all shares of common stock issuable pursuant
to the Purchase Agreement, including the shares of common stock underlying
the Warrants, and shares issuable in payment of the Commitment
Fee.
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·
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On
November 3, 2009 the Company filed a certificate of designations for
the Series B Preferred Stock (the “Certificate of Designations”). Pursuant
to the Certificate of Designations, the Preferred Shares shall, with
respect to dividend, rights upon
liquidation, winding-up or dissolution, rank: (i) senior to the Company’s
common stock, and any other class or series of preferred stock of the
Company, except Series A-1 Convertible Preferred Stock which shall rank
senior in right of liquidation and pari passu with respect
to dividends; and (ii) junior to all existing and future indebtedness of
the Company. In addition, the Preferred Shares (a) shall accrue dividends
at a rate of 10% per annum, payable in Preferred Shares, (ii)
shall not have voting rights, and (iii) may be redeemed at the
Company’s option, commencing 4 years from the issuance date at a price per
share of (a) $10,000 per share plus accrued but unpaid
dividends (the “Series B Liquidation Value”), or, at a price per share of
: (x) 127% of the Series B Liquidation Value if redeemed on or after the
first anniversary but prior to the second anniversary of the initial
issuance date, (y) 118% of the Series B Liquidation Value if redeemed on
or after the second anniversary but prior to the third anniversary of the
initial issuance date, and (z) 109% of the Series B Liquidation Value if
redeemed on or after the third anniversary but prior to the fourth
anniversary of the initial Issuance
Date
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On
November 12, 2009, the Company entered into a subscription agreement (the
“Subscription Agreement”) with the subscribers identified on the signature pages
thereto (the “Subscribers”). Pursuant to the Subscription Agreement, the Company
agreed to sell, and the Subscribers agreed to purchase, subject to the terms and
conditions therein, promissory notes in the principal amount of a minimum of
$2,400,000, for a purchase price of a minimum of $2,000,000 (the “Notes”). The
Notes will be convertible into shares of the Company’s common stock at a
conversion price of $0.10. Pursuant to the Subscription Agreement, the Company
also agreed to issue (i) one-and-one third Class A warrants (“Class A Warrants”)
for each two shares of common stock underlying the Notes, to purchase shares of
the Company’s common stock with a term of five years and an exercise price of
$0.108, (ii) additional investment rights, exercisable until 9 months after the
second closing date of the Subscription Agreement (“Additional Investment
Rights”), to purchase (a) promissory notes (“Air Notes”) in the principal amount
of up to $2,400,000, for a purchase price of up to $2,000,000, with a conversion
price of $0.10, and (b) one-and-one third Class B warrants (“Class B Warrants”)
for each two shares of common stock underlying the AIR Notes, to purchase shares
of the Company’s common stock with a term of five years and an exercise price of
$0.108.
2
The
Company will be required to redeem the Notes monthly commencing in May 2010, in
the amount of 14.28% of the initial principal amount of the Notes, in cash or
common stock at the Company’s option (subject to the conditions set forth in the
Notes), until the Notes are paid in full..
The
initial closing under the Subscription Agreement occurred on November 12, 2009,
pursuant to which, the Company sold Notes in the principal amount of $1,662,000,
for a purchase price of $1,385,000, and issued 11,080,000 Class A Warrants and
Additional Investment Rights for the purchase of (a) up to $1,662,000 principal
amount of AIR Notes for a purchase price of up to $1,385,000 and (b) up to
11,080,000 Class B Warrants.
The
second closing under the Subscription Agreement will be within 90 days of the
initial closing under the Subscription Agreement and will be for the purchase of
a minimum of $1,200,000 principal amount of Notes, for a purchase price of a
minimum of $1,000,000 (provided that, the Company may close on additional Notes
on November 13, 2009, which will be deemed part of the initial
closing).
Immediately
after the initial closing under the Subscription Agreement, the Company had
613,885,468 shares of common stock issued and outstanding.
In
connection with the foregoing, the Company relied upon the exemption from
securities registration afforded by Rule 506 of Regulation D as promulgated by
the United States Securities and Exchange Commission under the Securities Act of
1933, as amended (the “Securities Act”) and/or Section 4(2) of the Securities
Act. No advertising or general solicitation was employed in offering the
securities. The offerings and sales were made to a limited number of persons,
all of whom were accredited investors, and transfer was restricted by the
Company in accordance with the requirements of the Securities Act of
1933.
ITEM 2.03 Creation of a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet Arrangement of a
Registrant.
See Item
1.01.
ITEM 3.02 Unregistered Sales of Equity
Securities.
See Item
1.01.
ITEM
5.03 Amendment to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
See Item
1.01.
ITEM
9.01 Financial
Statements and Exhibits.
(d) Exhibits.
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Exhibit Number
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Description
of Exhibit
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3.1
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Certificate
of Designations of Series B Preferred
Stock
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3
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.
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ADVANCED
CELL TECHNOLOGY, INC.
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By:
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/s/
William M. Caldwell, IV
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William
M. Caldwell, IV
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Chief
Executive Officer
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Dated:
November 13, 2009
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