Athenex Inc. filed SEC Form 8-K: Leadership Update, Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year, Submission of Matters to a Vote of Security Holders, Other Events, Financial Statements and Exhibits
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CURRENT REPORT
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| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On November 22, 2022, at a special meeting of stockholders (the “Special Meeting”) of Athenex, Inc. (the “Company”), the stockholders of the Company approved the Second Amendment (the “Plan Amendment”) to the Company’s Amended and Restated 2017 Omnibus Incentive Plan (the “Plan”) to increase the number of shares of common stock reserved for issuance thereunder by 12,500,000 shares and extend the term of the Plan until November 22, 2032.
A detailed summary of the material features of the Plan Amendment is set forth in the Company’s definitive proxy statement for the Special Meeting filed with the Securities and Exchange Commission on October 11, 2022 (the “Proxy Statement”). That summary is qualified in its entirety by reference to the text of the Plan, which is filed as Appendix D to the Proxy Statement, and the text of the Plan Amendment, which is filed as Exhibit 10.1 hereto, both of which are incorporated herein by reference.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
At the Special Meeting, the stockholders approved an amendment (the “Certificate of Amendment”) to the Company’s Amended and Restated Certificate of Incorporation (“Charter”) to increase the number of authorized shares of common stock, from 250,000,000 shares to 500,000,000 shares. Following this approval, the Company filed the Certificate of Amendment with the Secretary of State of the State of Delaware and it became effective at 4:00 p.m. Eastern Time on November 22, 2022.
The foregoing description of the Certificate of Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Certificate of Amendment, a copy of which is filed hereto as Exhibit 3.1 and is incorporated herein by reference
| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
The proposals set forth below, each as further described in the Proxy Statement, were submitted to the Company’s stockholders at the Special Meeting. The number of shares of common stock entitled to vote at the Special Meeting was 156,790,234. The number of shares of common stock present or represented by valid proxy at the Special Meeting was 103,464,115. The voting results for the proposals are as follows:
| 1. | The Company’s stockholders voted to approve an amendment to the Charter to effect an increase in the total number of authorized shares of the Company’s common stock from 250,000,000 shares to 500,000,000 shares. The number of shares that voted for, against, and abstained from voting for this proposal is summarized in the table below: |
| FOR |
AGAINST |
ABSTAIN | ||
| 95,522,869 | 7,787,363 | 153,883 |
| 2. | The Company’s stockholders voted to approve an amendment to the Charter, at the discretion of the Board, to effect a reverse stock split of the issued and outstanding shares |
| of common stock in a range of not less than one-for-five shares and not more than one-for-twenty shares, with a corresponding reduction in the total number of authorized shares of common stock in proportion to the reduction of the issued and outstanding shares. The number of shares that voted for, against, and abstained from voting for this proposal is summarized in the table below: |
| FOR |
AGAINST |
ABSTAIN | ||
| 99,183,681 | 4,205,053 | 75,381 |
| 3. | The Company’s stockholders voted to approve the Plan Amendment. The number of shares that voted for, against, and abstained from voting for this proposal as well as the number of broker non-votes, is summarized in the table below: |
| FOR |
AGAINST |
ABSTAIN |
BROKER NON-VOTES | |||
| 72,471,352 | 5,670,519 | 158,157 | 25,164,087 |
Broker non-votes represent shares held by broker nominees for beneficial owners that were not voted because the broker nominee did not receive voting instructions from the beneficial owner and lacked discretionary authority to vote the shares on a non-routine proposal.
| Item 8.01 | Other Events. |
Also on November 22, 2022, the Company issued a press release announcing preliminary results of the Special Meeting. A copy of the press release is attached as Exhibit 99.1 to this report.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit |
Description | |
| 3.1 | Certificate of Amendment of the Amended and Restated Certificate of Incorporation of Athenex, Inc., effective as of November 22, 2022 | |
| 10.1 | Second Amendment to the Athenex, Inc. Amended and Restated 2017 Omnibus Incentive Plan | |
| 99.1 | Press release issued by the Company on November 22, 2022 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | |
SIGNATURES
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.
| ATHENEX, INC. | ||||||
| Date: November 22, 2022 | /s/ Joe Annoni | |||||
| Name: | Joe Annoni | |||||
| Title: | Chief Financial Officer | |||||