Item 1.01. Entry into a Material Definitive Agreement.
On
Item 2.03. Creation of a Direct Financial Obligation
The disclosure under Item 1.01 of this current report on Form 8-K is
incorporated in this Item 2.03. The SPA, the Convertible Note and the Security
Agreement were previously disclosed in Part II, Item 2 of the Company's
quarterly report on Form 10-Q for the quarterly period ended
Item 3.02. Unregistered Sales of
The disclosure under Item 1.01 of this current report on Form 8-K is
incorporated in this Item 3.02. The SPA, the Convertible Note and the Security
Agreement were previously disclosed in Part II, Item 2 of the Company's
quarterly report on Form 10-Q for the quarterly period ended
Item 5.02. Compensatory Arrangements of Certain Officers.
(e) 2019 Equity Compensation Plan
At the 2019 Annual Meeting of Stockholders of the Company held on
The following is a general summary of the 2019 Plan and is qualified in its entirety by the full text of the 2019 Plan, which is filed as Exhibit 10.1 to this current report on Form 8-K. Capitalized terms not defined herein have the meanings ascribed to such terms in the plan document.
Participants in the 2019 Plan. Employees of the Company, its parents and its subsidiaries, including employees who are officers or directors, and directors of the Company who are not employees are eligible to receive awards under the 2019 Plan.
Administration. The 2019 Plan will be administered by the compensation committee of the Board (the "Committee"). The Committee will have sole authority to (i) determine the individuals to whom grants shall be made under the 2019 Plan, (ii) determine the type, size and terms of the grants to be made to each such individual, (iii) determine the time when the grants will be made and the duration of any applicable exercise or restriction period, including the criteria for exercisability and the acceleration of exercisability, and (iv) make all determinations with respect to any other matters arising under the 2019 Plan.
Shares Available for the 2019 Plan. Subject to adjustment as provided in the 2019 Plan (for example, in the event of recapitalization, stock split, stock dividend, merger, reorganization or similar event), the maximum number of shares of common stock that may be subject to options issued under the 2019 Plan is 3,000,000 shares, and the maximum number of shares of common stock that may be subject to options issued under the 2019 Plan to any eligible participant in the 2019 Plan in any single calendar year is the lesser of 2% of outstanding shares of the Company's common stock for employees and 0.5% for directors, or 600,000 shares in the aggregate (subject to exceptions contained in the Plan, including for grants to newly hired employees). Grants for newly hired employees are excluded from the maximum annual share grant cap.
Awards. Awards under the 2019 Plan may consist of grants of incentive stock options or non-qualified options. Except for grants made to a person as an inducement material to the individual's entering into employment with the Company, no person may receive more than 20% of the aggregate number of any class of Grants made during any calendar year.
Reorganization or Change in Control.Under the 2019 Plan, a "Reorganization" shall be deemed to occur if the stockholders of the Company approve (or, if stockholder approval is not required, the Board approves) an agreement providing for (i) the merger or consolidation of the Company with another corporation where the stockholders of the Company, immediately prior to the merger or consolidation, will not beneficially own, immediately after the merger or consolidation, shares of the Company's stock entitling such stockholders to more than 50% of all votes to which all stockholders of the surviving corporation would be entitled in the election of directors (without consideration of the rights of any class of stock to elect directors by a separate class vote), (ii) the sale or other disposition of all or substantially all of the assets of the Company, or (iii) a liquidation or dissolution of the Company. A "Change of Control" shall be deemed to have occurred if any "person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) or any of its subsidiaries or affiliates becomes a "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing a majority of the voting power of the then outstanding securities of the Company except where the acquisition is approved by the Board of Directors.
Upon a Reorganization where the Company is not the surviving corporation (or survives only as a subsidiary of another corporation), all outstanding options under the 2019 Plan that are not exercised will be assumed by, or replaced with comparable options or rights by, the surviving corporation. In addition, upon any Reorganization or a Change of Control, (i) the Company will provide each participant with outstanding grants written notice of such event, and (ii) all outstanding Options will automatically accelerate and become fully exercisable.
Termination and Amendment. The Board of Directors may at any time terminate or from time to time amend the 2019 Plan; provided, that the Board of Directors may not make any amendment to the 2019 Plan without the approval of the stockholders if such stockholder approval is required by any requirement of applicable law or regulation. The 2019 Plan shall terminate on the day immediately preceding the tenth anniversary of the effective date of the Plan, unless the Plan is terminated earlier by the Board or is extended by the Board with the approval of the stockholders.
Outstanding Grants and Effect on Prior Plan. Upon the effective date of the 2019 Plan, the 2010 Plan was terminated subject to the provisions of Section 3.5 of the 2010 Plan, relating to the post-termination effectiveness of grants under the 2010 Plan. The 2019 Plan is not an amendment or restatement of the 2010 Plan.
Item 5.03. Amendment to Articles of Incorporation.
On
Item 5.07. Submission of Matters to a Vote of Security Holders.
The Annual Meeting was held on
1) The stockholders voted to elect one Class I director to the Board. Results of
the voting were as follows: Authority Broker Director For Withheld Abstentions Non-Votes R. Janet Whitmore 24,925,379 248,977 - 6,782,357
At the recommendation of the Board's
2) The stockholders voted to approve, in an advisory, non-binding vote, the compensation paid to the Company's named executive officers. Results of the voting were as follows: Broker For Against Abstentions Non-Votes
24,665,283 308,543 200,530 6,782,357
3) The stockholders voted, in an advisory, non-binding vote, on their preferred
frequency of future advisory votes to approve the compensation paid to the
Company's named executive officers. Results of the voting were as follows:
1 Year 2 Years 3 Years Abstentions 1,064,502 19,897 23,864,581 225,376
At the regular meeting of the Board immediately following the Annual Meeting, the Board considered the results of the stockholders' advisory vote on the frequency of future votes to approve the compensation paid to the Company's named executive officers, and the Board decided, in light of such results, that the Company will include a stockholder vote on the compensation of its named executive officers in its proxy materials every three years until the next required vote on the frequency of stockholder votes on the compensation of the Company's named executive officers.
4) The stockholders voted to adopt an amendment to the Company's Certificate of Incorporation to increase the number of authorized shares of common stock from 42,000,000 to 55,000,000. Results of the voting were as follows: Broker For Against Abstentions Non-Votes 24,743,214 363,072 68,070 6,782,357 5) The stockholders voted to approve theNanophase Technologies Corporation 2019 Equity Compensation Plan. Results of the voting were as follows: Broker For Against Abstentions Non-Votes 24,777,923 369,726 26,707 6,782,357 6) The stockholders did not adopt an amendment to the Company's Certificate of Incorporation to allow special meetings to be called by stockholders of record who own, in the aggregate, at least 33% of the voting power of the outstanding shares of the Company. Results of the voting were as follows: Broker For Against Abstentions Non-Votes 24,886,662 198,609 89,085 6,782,357 7) The stockholders voted to ratify the appointment by the Company'sAudit and Finance Committee of RSM US LLP as the independent auditors of the financial statements for the Company's fiscal year endingDecember 31, 2019 . Results of the voting were as follows: Broker For Against Abstentions Non-Votes 31,403,136 201,329 352,248 -
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Fourth Amendment to the Certificate of Incorporation of
Exhibit Securities Purchase Agreement, dated
incorporated by reference to Exhibit 4.1 to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended
Exhibit Commercial Security Agreement, datedNovember 20, 2019 , between 4.2Nanophase Technologies Corporation , Solésence, LLC and Bradford T. Whitmore, incorporated by reference to Exhibit 4.2 to the Company's Quarterly Report on Form 10-Q for the quarterly period endedSeptember 30, 2019 Exhibit 2% Second Secured Convertible Note, datedNovember 20, 2019 , made by the 4.3Nanophase Technologies Corporation and payable to the order ofBradford T. Whitmore , incorporated by reference to Exhibit 4.3 to the Company's Quarterly Report on Form 10-Q for the quarterly period endedSeptember 30, 2019
Exhibit
* Filed herewith
© Edgar Online, source