Item 3.03 Material Modification to Rights of Security Holders.
The information set forth in Item 5.03 of this Current Report on Form 8-K is
hereby incorporated by reference into this Item 3.03.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On June 18, 2020, the Compensation Committee of the Board of Directors (the
"Board") of Adamis Pharmaceuticals Corporation (the "Company") approved the
Company's 2020 Bonus Plan (the "Plan"). The terms of the Plan establish for each
level of Company employee, including the Company's executive officers but
excluding the Company's field sales employees, a target cash bonus amount,
expressed as a percentage of base salary. Bonus payments will be based on an
evaluation by the Committee of the Company's achievement of corporate
performance goals for the relevant year, and, where applicable, individual
goals. The corporate performance goals for 2020, and subsequent plan years, will
be determined by the Committee and may include the achievement of performance
targets and business goals relating to matters such as, without limitation, the
Company's financial results, revenues, net income, EBITDA, return on equity,
stock price, capital raising activities, pre-clinical or clinical trial
activities (including without limitation initiation or completion of trials),
regulatory filings relating to product candidates, other regulatory activities
or approvals, product development, product commercialization activities,
strategic activities and strategic commercial agreements or arrangements, or
other corporate goals.
The foregoing description is a summary only, is not necessarily complete, and is
qualified by the full text of the Plan, which is filed as an exhibit to this
Current Report on Form 8-K.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On June 18, 2020, the Company's Board approved amendments to the Company's
Amended and Restated Bylaws (the "Bylaws"), effective immediately. The
amendments provide, among other things, that except as otherwise provided by law
or by applicable stock exchange or Nasdaq Stock Market rules, or by the
Company's restated certificate of incorporation or Bylaws, in all matters other
than the election of directors, the affirmative vote of a majority of the votes
properly cast on the matter affirmatively or negatively (excluding any
abstentions or broker non-votes) will be the act of the stockholders, and that a
share present at a meeting, but for which there is an abstention or as to which
a stockholder gives no authority or direction as to a particular proposal or
director nominee, will be counted as present for the purpose of establishing a
quorum but will not be counted as a vote cast; and that except as otherwise
provided by law, the Company's restated certificate of incorporation or the
Bylaws, directors will be elected by a plurality of all votes properly cast.
Prior to the amendments, other than with respect to the election of directors,
such matters were to be decided by the affirmative vote of a majority of shares
present in person, by remote communication, if applicable, or represented by
proxy at the meeting and entitled to vote generally on the subject matter, and
directors were elected by a plurality of the votes of the shares present in
person, by remote communication, if applicable, or represented by proxy duly
authorized at the meeting and entitled to vote on the election of directors. The
amendments also clarified certain provisions relating to the advance notice of
stockholder proposals and nominations for director, and concerning the Company's
ability to conduct stockholder meetings by means of remote communication.
The amendments also added a new Article to the Bylaws to add exclusive forum
provisions for resolution of certain disputes. The Article provides that unless
the Company consents in writing to the selection of an alternative forum, the
Court of Chancery of the State of Delaware will, to the fullest extent permitted
by law, be the sole and exclusive forum for (i) any derivative action or
proceeding brought on behalf of the Company; (ii) any action asserting a claim
of breach of a fiduciary duty owed by any director, officer or other employee of
the Company to the Company or the Company's stockholders; (iii) any action
asserting a claim against the Company or any director or officer or other
employee of the Company arising pursuant to any provision of the Delaware
General Corporation Law, the certificate of incorporation or the Bylaws of the
Company, or as to which the Delaware General Corporation Law confers
jurisdiction on the Courts of Chancery of the State of Delaware; or (iv) any
action asserting a claim against the Company or any director or officer or other
employee of the Company governed by the internal affairs doctrine, in all cases
subject to the court's having personal jurisdiction over the indispensable
parties named as defendants (including without limitation as a result of the
consent of such indispensable parties to the personal jurisdiction of such
court). The Article also provides that if any action the subject matter of which
is within the scope of the preceding sentence is filed in a court other than a
court located within the State of Delaware (a "Foreign Action") in the name of
any stockholder, such stockholder shall be deemed to have consented to (i) the
personal jurisdiction of the state and federal courts located within the State
of Delaware in connection with any action brought in any such court to enforce
the preceding sentence and (ii) having service of process made upon such
stockholder in any such action by service upon such stockholder's counsel in the
Foreign Action as agent for such stockholder. The Article provides that the
foregoing provisions do not apply to suits brought to enforce a duty or
liability created by the Securities Act of 1933, as amended (the "Securities
Act"), the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any other claim for which the federal courts have exclusive jurisdiction.
In addition, the Article provides that, unless the Company consents to the
selection of an alternate forum, to the fullest extent permitted by law, the
federal district courts of the United States of America shall be the exclusive
forum for the resolution of any complaint asserting a cause of action arising
under the Securities Act.
The foregoing brief description of the Company's amended Bylaws is qualified in
its entirety by the full text of the Bylaws, as amended, filed as Exhibit 3.1
hereto and incorporated herein by reference.
In connection with the foregoing amendments to the Bylaws, the Company refers
stockholders to the following risk factor:
Our Bylaws provide that the Court of Chancery of the State of Delaware is the
sole and exclusive forum for a wide variety of disputes between us and our
stockholders, and that the federal district courts of the United States of the
America are the sole and exclusive forum for the resolution of any complaint
asserting a cause of action arising under the Securities Act. Exclusive forum
provisions in our Bylaws could limit our stockholders' ability to obtain a
favorable judicial forum for disputes with us or our directors, officers or
employees.
Our Bylaws, as amended, provide that, unless we consent in writing to the
selection of an alternative forum, to the fullest extent permitted by law, the
Court of Chancery of the State of Delaware will be the sole and exclusive forum
for most legal actions involving actions brought against us by stockholders,
including (i) any derivative action or proceeding brought on behalf of the
Company; (ii) any action asserting a claim of breach of a fiduciary duty owed by
any director, officer or other employee of the Company to the Company or the
Company's stockholders; (iii) any action asserting a claim against the Company
or any director or officer or other employee of the Company arising pursuant to
any provision of the Delaware General Corporation Law, the certificate of
incorporation or the Bylaws of the Company, or as to which the Delaware General
Corporation Law confers jurisdiction on the Courts of Chancery of the State of
Delaware; or (iv) any action asserting a claim against the Company or any
director or officer or other employee of the Company governed by the internal
affairs doctrine, in all cases subject to the court's having personal
jurisdiction over the indispensable parties named as defendants (including
without limitation as a result of the consent of such indispensable party to the
personal jurisdiction of such court). The Bylaws provide that the foregoing
provisions do not apply to actions or suits brought to enforce any liability or
duty created by the Securities Act of 1933, as amended (the "Securities Act"),
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any
other claim for which the federal courts have exclusive jurisdiction. Section 27
of the Exchange Act creates exclusive federal jurisdiction over all suits
brought to enforce any duty or liability created by the Exchange Act or the
rules and regulations thereunder. As a result, the exclusive forum provision
will not apply to suits brought to enforce any duty or liability created by the
Exchange Act or any other claim for which the federal courts have exclusive
jurisdiction. Our Bylaws do not relieve us of our duties to comply with federal
securities laws and the rules and regulations thereunder, and our stockholders
will not be deemed to have waived our compliance with these laws, rules and
regulations. In addition, our Bylaws, as amended, provide that, unless we
consent in writing to the selection of an alternative forum, to the fullest
extent permitted by law, the federal district courts of the United States of
America shall be the sole and exclusive forum for the resolution of any
complaint asserting a cause of action arising under the Securities Act. Any
person or entity purchasing or otherwise acquiring or holding any interest in
any of our securities shall be deemed to have notice of and to have consented to
these provisions.
Under the Securities Act, federal and state courts have concurrent jurisdiction
over all suits brought to enforce any duty or liability created by the
Securities Act. There is uncertainty as to whether a court (other than state
courts in the State of Delaware, where the Supreme Court of the State of
Delaware decided in March 2020 that exclusive forum provisions for causes of
action arising under the Securities Act are facially valid under Delaware law)
would enforce forum selection provisions and whether investors can waive
compliance with the federal securities laws and the rules and regulations
thereunder. We believe the forum selection provisions in Bylaws, as amended, may
benefit us by providing increased consistency in the application of Delaware law
. . .
Item 8.01 Other Events
The Company previously announced that it resubmitted to the U.S. Food and Drug
Administration ("FDA") the Company's New Drug Application ("NDA") for its
ZIMHI™ (naloxone HCI Injection, USP) 5mg/0.5mL product candidate for the
treatment of opioid overdose, following the Company's meeting with the agency in
February 2020. The resubmitted NDA was intended to address the issues raised by
the FDA in the agency's November 2019 Complete Response Letter ("CRL"). The FDA
has indicated that it considers the Company's resubmitted NDA as a complete,
class 2 response to the CRL and has provided a user fee goal date under the
Prescription Drug User Fee Act ("PDUFA") for a response by the FDA by November
15, 2020. At the Company's February meeting with the FDA, the agency expressed
its intent to review a resubmitted NDA in a rapid and timely manner.
Forward Looking Statements
This Report on Form 8-K contains forward-looking statements within the meaning
of the Private Securities Litigation Reform Act of 1995. These statements may
relate to future events or our future results of operations and may include,
without limitation, the following statements: the Company's beliefs concerning
the timing and outcome of the FDA's review of the Company's resubmitted New Drug
Application ("NDA") to the FDA concerning the Company's ZIMHI product candidate;
the Company's beliefs concerning the ability of its ZIMHI product, if approved
by the FDA, to compete successfully in the market; the Company's beliefs
concerning the safety and effectiveness of ZIMHI and the Company's other
products and product candidates; and the Company's beliefs concerning the
benefits, risks, and enforceability of the amendments to its Bylaws concerning
exclusive forum provisions. These statements are only predictions and involve
known and unknown risks, uncertainties and other factors beyond the Company's
control, which may cause the Company's actual results to be materially different
from those anticipated by such forward-looking statements. Actual results may
differ materially from those indicated by such forward-looking statements as a
result of various important factors. There can be no assurances, among other
things: (i) regarding the timing of the FDA's review of the Company's
resubmitted NDA relating to ZIMHI or whether the FDA will approve the NDA; (ii)
regarding any future FDA action concerning the Company's resubmitted NDA
relating to ZIMHI; or (iii) that the exclusive forum provisions in the Company's
Bylaws will have the benefits anticipated by the Company or will not be
challenged or held unenforceable in future litigation. The FDA's review
processes can extend beyond, and in some cases significantly beyond, anticipated
completion dates due to the timing of the FDA's review process, FDA requests for
additional data, information, materials or clarification, difficulties
scheduling an advisory committee meeting, FDA workload issues, extensions
resulting from the submission of additional information or clarification
regarding information already in the submission within the last three months of
the target PDUFA date, or other reasons. As a result, the timing of FDA review
and action regarding our resubmitted NDA for ZIMHI, or of any regulatory
approval, if obtained, and commercial introduction of our products, could be
delayed beyond our expectations. We cannot assess the impact of each factor on
our business or the extent to which any factor, or combination of factors, may
cause actual results to differ materially from those contained in any
forward-looking statements. In addition, forward-looking statements concerning
our anticipated future activities assume that we can obtain sufficient funding
to support such research, development and commercialization activities and
continue our operations and planned activities. As discussed in our filings with
the Securities and Exchange Commission, we will require additional funding, and
there are no assurances that such funding will be available if required. We
cannot assess the impact of each factor on our business or the extent to which
any factor, or combination of factors, may cause actual results to differ
materially from those contained in any forward-looking statements. You should
not place undue reliance on any forward-looking statements. In addition, the
forward-looking statements included in this Form 8-K represent the Company's
views as of the date of this Form 8-K. The Company anticipates that subsequent
events and developments may cause its views to change. However, while the
Company may elect to update these forward-looking statements at some point in
the future, it specifically disclaims any obligation to do so, except as
required by applicable laws. These forward-looking statements should not be
relied upon as representing the Company's views as of any date after the date of
this Form 8-K. Certain of these risks, uncertainties, and other factors are
described in greater detail in the Company's filings from time to time with the
SEC, all of which are available free of charge on the SEC's web site
at http://www.sec.gov.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
3.1 Bylaws of the Company, as amended.
4.6 Description of the Registrant's Common Stock.
10.1 Adamis Pharmaceuticals Corporation 2020 Bonus Plan.*
* Represents a compensatory plan of arrangement.
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