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Item 9A. Controls and Procedures

2023-03-01 compared with 2022-03-01 · 85 added, 64 removed, 219 unchanged (40% of the section changed)

3 unchanged sentences

There is no assurance that our disclosure controls and procedures will operate effectively under all circumstances.

Management, with the participation of our CEO and CFO, evaluated the effectiveness of our disclosure controls and procedures as of December 31, 2022.

The term “disclosure controls and procedures,” as defined in Rule 13a-15(e) of the Exchange Act means controls and other procedures of a company that are designed to provide reasonable assurance that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms.

Disclosure controls and procedures include, without limitation, controls and procedures designed to provide reasonable assurance that information required to be disclosed is accumulated and communicated to our management, including our CEO and CFO, as appropriate, to allow timely decisions regarding required disclosure.

Management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their desired control objectives, and management necessarily is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

Based on the evaluation of our disclosure controls and procedures as of December 31, 2022, our CEO and CFO have concluded that, as of December 31, 2022, our disclosure controls and procedures were effective at the reasonable assurance level.

Management’s Report on Internal Control Over Financial Reporting

8 unchanged sentences

Based on this evaluation, our management concluded that, as of December 31, 2022, our internal control over financial reporting was effective.

The effectiveness of the company’s internal control over financial reporting has been audited by Ernst & Young LLP, our independent registered public accounting firm, as stated in its attestation report appearing on page 136 of this Annual Report under the heading “Report of Independent Public Accounting Firm on Internal Control Over Financial Reporting”, which expresses an unqualified opinion concerning the effectiveness of the company’s internal control over financial reporting as of December 31, 2021.

The effectiveness of the company’s internal control over financial reporting has been audited by Ernst & Young LLP, our independent registered public accounting firm, as stated in its attestation report appearing on page 147 of this Annual Report under the heading “Report of Independent Registered Public Accounting Firm,” which expresses an unqualified opinion concerning the effectiveness of the company’s internal control over financial reporting as of December 31, 2022.

Changes in Internal Control over Financial Reporting

13 unchanged sentences

DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE.

The information required by this item will be contained in our definitive proxy statement to be filed with the Securities and Exchange Commission on Schedule 14A in connection with our 2022 Annual Meeting of Stockholders (the Proxy Statement), which is expected to be filed not later than 120 days after the end of our fiscal year ended December 31, 2021, and is incorporated herein by reference.

The information required by this item will be contained in our definitive proxy statement to be filed with the SEC on Schedule 14A in connection with our 2023 Annual Meeting of Stockholders (the Proxy Statement), which is expected to be filed not later than 120 days after the end of our fiscal year ended December 31, 2022, and is incorporated herein by reference.

EXECUTIVE COMPENSATION.

The information required by this item will be contained in the Proxy Statement under the headings “Executive Compensation” and “Board of Directors and Corporate Governance – Director Compensation,” and is incorporated herein by reference.

The information required by this item will be contained in the Proxy Statement under the headings “Executive Compensation,” “Executive Compensation Tables,” and “Director Compensation,” and is incorporated herein by reference.

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS.

The information required by this item will be contained in the Proxy Statement under the headings “Security Ownership of Certain Beneficial Owners and Management” and “Executive Compensation – Equity Compensation Plan Information,” and is incorporated herein by reference.

The information required by this item will be contained in the Proxy Statement under the headings “Security Ownership of Certain Beneficial Owners and Management” and “Equity Compensation Plan Information,” and is incorporated herein by reference.

CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE.

The information required by this item will be contained in the Proxy Statement under the headings “Certain Relationships and Related Party Transactions” and “Board of Directors and Corporate Governance,” and is incorporated herein by reference.

The information required by this item will be contained in the Proxy Statement under the headings “Certain Relationships and Related-Party Transactions” and “Corporate Governance,” and is incorporated herein by reference.

PRINCIPAL ACCOUNTANT FEES AND SERVICES.

The information required by this item will be contained in the Proxy Statement under the heading “Ratification of Appointment of Independent Registered Public Accounting Firm – Fees Paid to the Independent Registered Public Accounting Firm” and is incorporated herein by reference.

The information required by this item will be contained in the Proxy Statement under the heading “Fees Paid to Independent Registered Public Accounting Firm” and is incorporated herein by reference.

EXHIBIT AND FINANCIAL STATEMENT SCHEDULES.

1 unchanged sentence

(1) Financial Statements

Reference is made to the consolidated financial statements identified in the “Index to Financial Statements” under P art II, Item 8.

Reference is made to the consolidated financial statements identified in the “Index to Financial Statements” under Part II, Item 8.

“Financial Statements and Supplementary Data” of this Annual Report.

25 unchanged sentences

S-1 333-205124 4.2 June 19, 2015

4.3 Registration Rights Agreement by and between the Registrant and Cambridge Equities LP.

dated December 23, 2014.

4.3 Registration Rights Agreement by and between the Registrant and Cambridge Equities, LP, dated December 23, 2014.

S-1 333-205124 4.3 June 19, 2015

8 unchanged sentences

4.7 Description of Registrant’s Securities.

10-K 001-37507 4.7 March 1, 2022

10.1 Voting Agreement, dated as of December 21, 2020, by and among ImmunityBio, Inc., NantKwest, Inc.

8 unchanged sentences

S-4 333-252232 10.13 January 19, 2021

10.4 Form of Common Stock Purchase Warrant, dated December 12, 2022, issued by ImmunityBio, Inc.

to the Holder.

8-K 001-37507 4.1 December 12, 2022

10.5† Common Stock Purchase Agreement, dated April 30, 2018, by and among ImmunityBio, Inc.

1 unchanged sentence

S-4 333-252232 10.30 January 19, 2021

10.6 Securities Purchase Agreement, dated as of December 12, 2022, between ImmunityBio, Inc.

and the Purchasers.

8-K 001-37507 10.1 December 12, 2022

10.7 Open Market Sale Agreement dated April 30, 2021, by and between ImmunityBio, Inc.

3 unchanged sentences

S-4 333-252232 10.4 January 19, 2021

10.7 FDA Milestone Contingent Value Rights Agreement, dated as of July 31, 2017, by and between the Company and Shareholder Repre sentative Services LLC .

10.9 FDA Milestone Contingent Value Rights Agreement, dated as of July 31, 2017, by and between the Company and Shareholder Representative Services LLC.

S-4 333-252232 10.11 January 19, 2021

10.8 S ales Milestone Contingent Value Rights Agreement, dated as of July 31, 2017, by and between the Company and Shareholder Representative Services LLC.

10.10 Sales Milestone Contingent Value Rights Agreement, dated as of July 31, 2017, by and between the Company and Shareholder Representative Services LLC.

S-4 333-252232 10.12 January 19, 2021

Number Incorporated by Reference Herein

Description Form File No.

10.11† Agreement and Plan of Merger, entered into as of May 15, 2018, by and among the Company, Receptome Acquisition Corporation, Receptome, Inc., and the Selling Stockholder thereunder.

S-4 333-252232 10.5 January 19, 2021

10.10 Promissory Note by and between ImmunityBio, Inc.

and Nant Capital, LLC dated as of December 17, 2021.

10.12 Promissory Note between ImmunityBio, Inc.

and Nant Capital, LLC dated December 12, 2022.

8-K 001-37507 10.2 December 12, 2022

10.13 Promissory Note between ImmunityBio, Inc.

and Nant Capital, LLC dated August 31, 2022.

10-Q 001-37507 10.1 November 9, 2022

10.14 Amended and Restated Promissory Note between ImmunityBio, Inc.

and Nant Capital, LLC dated August 31, 2022.

10-Q 001-37507 10.2 November 9, 2022

10.15 Amended and Restated Convertible Promissory Note between ImmunityBio, Inc.

and Nant Capital, LLC dated August 31, 2022.

10-Q 001-37507 10.3 November 9, 2022

10.16 Amended and Restated Convertible Promissory Note between ImmunityBio, Inc.

and Nant Capital, LLC dated August 31, 2022.

10-Q 001-37507 10.4 November 9, 2022

10.17 Second Amended and Restated Convertible Promissory Note between ImmunityBio, Inc.

and Nant Capital, LLC dated August 31, 2022.

10-Q 001-37507 10.5 November 9, 2022

10.18 Second Amended and Restated Convertible Promissory Note between ImmunityBio, Inc.

and NantWorks, LLC dated August 31, 2022.

10-Q 001-37507 10.6 November 9, 2022

10.19 Second Amended and Restated Convertible Promissory Note between ImmunityBio, Inc.

and NantCancerStemCell, LLC dated August 31, 2022.

10-Q 001-37507 10.7 November 9, 2022

10.20 Second Amended and Restated Convertible Promissory Note between ImmunityBio, Inc.

and NantMobile, LLC dated August 31, 2022.

10-Q 001-37507 10.8 November 9, 2022

10.21 Lease Agreement by and between ARE-JOHN HOPKINS COURT, LLC and the Company, dated June 19, 2015.

S-1/A 333-205124 10.19 July 27, 2015

10.22 First Amendment to Lease dated July 16, 2015 by and between ARE-JOHN HOPKINS COURT, LLC and Conkwest, Inc.

10-Q 001-37507 10.6 August 8, 2022

10.23 Second Amendment to Lease effective as of June 18, 2016 by and between ARE-JOHN HOPKINS COURT, LLC and NantKwest, Inc., fka Conkwest, Inc.

10-Q 001-37507 10.7 August 8, 2022

Number Incorporated by Reference Herein

Description Form File No.

10.11 Promissory Note issued by ImmunityBio, Inc.

to Nant Capital, LLC dated February 22, 2021.

8-K 001-37507 10.14 March 10, 2021

10.12 Promissory Note issued by ImmunityBio, Inc.

to Nant Capital, LLC dated September 30, 2020.

S-4 333-252232 10.10 January 19, 2021

10.13 Amended and Restated Promissory Note issued by ImmunityBio, Inc.

t o Nant Capital, LLC dated July 28, 2020.

S-4 333-252232 10.6 January 19, 2021

10.14 Amended and Restated Promissory Note issued by ImmunityBio, Inc.

to NantWorks, LLC dated July 28, 2020.

S-4/A 333-252232 10.7 January 19, 2021

10.15 Amended and Restated Promissory Note issued by ImmunityBio, Inc.

to NantCancerStemCell, LLC dated July 28, 2020.

S-4/A 333-252232 10.8 January 19, 2021

10.16 Amended and Restated Promissory Note issued by ImmunityBio, Inc.

to NantMobile, LLC dated July 28, 2020.

S-4/A 333-252232 10.9 January 19, 2021

10.17 Lease Agreement by and between ARE - JOHN HOPKINS COUR T , LLC and the Company, dated June 19, 2015.

S-1/A 333-205124 10.19 July 27, 2015

10.24 Third Amendment to Lease dated April 12, 2022 by and between ARE-JOHN HOPKINS COURT, LLC and ImmunityBio, Inc.

10-Q 001-37507 10.8 August 8, 2022

10.25 Facility License Agreement by and between NantWorks, LLC and the Company, dated as of November 6, 2015.

2 unchanged sentences

10-Q 001-37507 10.2 November 9, 2020

10.27 Second Amendment to Facility License Agreement, effective as of May 1, 2022, by and between NantWorks, LLC, the Licensor, and ImmunityBio, Inc., the Licensee.

10-Q 001-37507 10.4 August 8, 2022

10.28 Commercial Lease by and between 605 Doug St, LLC and the Company, dated September 15, 2016.

6 unchanged sentences

S-4/A 333-252232 10.29 January 19, 2021

Number Incorporated by Reference Herein

Description Form File No.

10.32 Sublease Agreement between Altor BioScience Manufacturing Company, LLC and the Company, dated as of September 30, 2020.

2 unchanged sentences

10-K 001-37507 10.35 March 4, 2021

10.26 First Amendment to Lease (Expansion & Extension) made and entered into as of May 28, 2021 by and between 605 Nash, LLC and Imm unityBio, Inc .

10.34 First Amendment to Lease (Expansion & Extension) made and entered into as of May 28, 2021 by and between 605 Nash, LLC and ImmunityBio, Inc.

10-Q 001-37507 10.1 August 12, 2021

10.27 Membership Interest Purchase Agreement ente red into as of September 27, 2021 by and among Nant Capital, LLC and ImmunityBio, Inc.

10.35 Membership Interest Purchase Agreement entered into as of September 27, 2021 by and among Nant Capital, LLC and ImmunityBio, Inc.

10-Q 001-37507 10.2 November 12, 2021

1 unchanged sentence

10-Q 001-37507 10.3 November 12, 2021

Number Incorporated by Reference Herein

Description Form File No.

10.37 Lease Termination Agreement effective May 31, 2022 by and between ImmunityBio, Inc.

and 557 Doug St., LLC.

10-Q 001-37507 10.9 August 8, 2022

10.38 Commercial Lease Agreement dated September 27, 2021 by and between 420 Nash, LLC and ImmunityBio, Inc.

10-Q 001-37507 10.4 November 12, 2021

10.39 Fort Schuyler Management Corporation Lease, effective as of October 1, 2021, between Fort Schuyler Management Corporation, as Landlord, and Athenex, Inc., as Tenant.

10-Q 001-37507 10.2 May 10, 2022

10.40 First Amendment to Lease, effective as of February 14, 2022, by and among Fort Schuyler Management Corporation and ImmunityBio, Inc.

10-Q 001-37507 10.3 May 10, 2022

10.41 Industrial/Commercial Lease Agreement dated May 1, 2022 by and between 23 Alaska, LLC and ImmunityBio, Inc.

10-Q 001-37507 10.5 August 8, 2022

Purchase Agreement by and between Athenex, Inc.

8 unchanged sentences

10-Q 001-37507 10.1 May 11, 2020

10.33#+ Amended and Restated Executive Employment Agreement between the Company and Patrick Soon-Shiong, M.D., dated July 13 , 2015.

S-1/A 333-205124 10.5 July 15, 2015

10.45 Amended and Restated Shared Services Agreement by and between NantKwest, Inc.

and NantWorks, LLC, dated June 28, 2016.

10-Q 001-37507 10.1 August 15, 2016

10.46#^ Offer Letter between the Company and Richard Adcock, dated October 26, 2020.

3 unchanged sentences

S-4 333-252232 10.31 January 19, 2021

10.36*#^ Offer Letter, dated October 12, 2021, by and among ImmunityBio, Inc.

and Regan Lauer.

10.37# Executive Employment Agreement between the Company and Barry J.

Simon, M.D., dated January 1, 2015.

S-1 333-205124 10.6 June 19, 2015

10.38# Letter Agreement with Barry Simon dated May 3, 2018.

10-Q 001-37507 10.1 August 6, 2018

10.39#^ Offer Letter between Sonja Nelson and the Company, dated April 7, 2016.

10-Q 001-37507 10.1 May 16, 2016

10.40#^ Revised Offer of Employment Letter with Sonja Nelson dated June 11, 2018.

10-Q 001-37507 10.2 August 6, 2018

Number Incorporated by Reference Herein

Description Form File No.

10.41# ImmunityBio, Inc.

Outside Director Compensation Policy as of March 9, 2021.

8-K 001-37507 10.1 March 10, 2021

10.48 Form of Indemnification Agreement between ImmunityBio, Inc.

4 unchanged sentences

10.50# 2014 NantKwest, Inc.

Equity Incentive Plan and f orms of a greement t hereunder.

S-1 333-205124 10.2 June 19, 2015

10.51# ImmunityBio, Inc.

2015 Equity Incentive Plan and forms of agreement thereunder.

S-8 333-265599 10.1 June 14, 2022

10.45# 2015 NantKwest, Inc.

Equity Incentive Plan (as Amended and Restated June 10, 2020) and a ll f orms and a greements t hereunder.

10-Q 001-37507 10.1 August 7, 2020

10.52# NantCell, Inc.

2015 Stock Incentive Plan and f orm s of a greement t hereunder.

2015 Stock Incentive Plan and forms of agreement thereunder.

S-4 333-252332 10.14 January 19, 2021

Number Incorporated by Reference Herein

Description Form File No.

10.53 Assignment Agreement, dated July 2, 2017, by and between NantPharma, LLC and Immunotherapy NANTibody, LLC.

S-4 333-252332 10.25 January 19, 2021

10.48 Letter Agreement, dated February 14, 2018, by and between NantPharma, LLC and Immunother a p y NANTibody, LLC.

10.54 Letter Agreement, dated February 14, 2018, by and between NantPharma, LLC and Immunotherapy NANTibody, LLC.

S-4 333-252332 10.26 January 19, 2021

10 unchanged sentences

32.1** Section 1350 Certification of Chief Executive Officer.

Number Incorporated by Reference Herein

Description Form File No.

32.2** Section 1350 Certification of Chief Financial Officer.

8 unchanged sentences

* Filed herewith.

** The certifications attached as Exhibits 32.1 and 32.2 that accompany this Annual Report are deemed furnished and not filed with the Securities and Exchange Commission and are not to be incorporated by reference into any filing of ImmunityBio, Inc.

under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date of this Annual Report, irrespective of any general incorporation language contained in such filing.

** The certifications attached as Exhibits 32.1 and 32.2 that accompany this Annual Report are deemed furnished and not filed with the SEC and are not to be incorporated by reference into any filing of ImmunityBio, Inc.

under the Securities Act or the Exchange Act, whether made before or after the date of this Annual Report, irrespective of any general incorporation language contained in such filing.

† Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K.

49 unchanged sentences

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures