UNITED STATES
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): November 22, 2022
ATHENEX, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 001-38112 | 43-1985966 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| 1001 Main Street, Suite 600, Buffalo, New York | 14203 | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (716) 427-2950
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:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Exchange Act:
| Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
| Common Stock, par value $0.001 per share | ATNX | The Nasdaq Global Select Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| 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 | |||||
Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ATHENEX, INC.
Athenex, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), hereby certifies as follows:
| 1. | The name of the Corporation is Athenex, Inc. |
| 2. | This Certificate of Amendment (the “Certificate of Amendment”) amends the provisions of the Corporation’s Amended and Restated Certificate of Incorporation filed with the Secretary of State of the State of Delaware on June 19, 2017 (the “Certificate of Incorporation”). |
| 3. | Pursuant to Section 242 of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation has duly adopted, and a majority of the outstanding stock entitled to vote thereon has duly approved, the amendment to the Certificate of Incorporation set forth in this Certificate of Amendment. |
| 4. | The first sentence of Article IV of the Certificate of Incorporation is hereby deleted in its entirety with the following substituted in its place: |
“The aggregate number of shares which the Corporation shall have authority to issue is Five Hundred Twenty-Five Million (525,000,000), of which Five Hundred Million (500,000,000) shall consist of shares of common stock, par value $0.001 per share (“Common Stock”), and Twenty-Five Million (25,000,000) shall consist of shares of preferred stock, par value $0.001 per share (“Preferred Stock”).”
| 5. | This Amendment shall become effective as of November 22, 2022 at 4 p.m. Eastern Time. |
| 6. | All other provisions of the Certificate of Incorporation shall remain in full force and effect. |
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be executed, signed and acknowledged by the undersigned duly authorized officer of the Corporation as of the date set forth below.
Dated: November 22, 2022
| ATHENEX, INC. | ||
| By: | /s/ Johnson Y.N. Lau | |
| Name: | Johnson Y.N. Lau | |
| Title: | Chief Executive Officer and Chairman of the Board of Directors | |
Exhibit 10.1
SECOND AMENDMENT
TO THE
ATHENEX, INC.
AMENDED AND RESTATED
2017 OMNIBUS INCENTIVE PLAN
The Athenex, Inc. Amended and Restated 2017 Omnibus Incentive Plan (the “Plan”), is hereby amended as follows, effective November 22, 2022:
1. Section 3(a) of the Plan is hereby amended and restated in its entirety to provide as follows:
“(a) Subject to the provisions of Section 10 below, the maximum aggregate number of Shares which may be issued pursuant to all Awards shall be 25,200,000 Shares. Notwithstanding the foregoing, subject to the provisions of Section 10, below, the maximum aggregate number of Shares that may be issued pursuant to Incentive Stock Options is 25,200,000 Shares. The Shares to be issued pursuant to Awards may be authorized, but unissued, or reacquired Common Stock.”
2. Section 12 of the Plan is hereby amended and restated in its entirety to provide as follows:
“12. Effective Date and Term of Plan. The original Plan became effective upon the Company’s initial public offering on June 13, 2017. On May 23, 2019, the Board adopted the amended and restated Plan, which became effective upon the approval of the stockholders thereof on June 5, 2020. The Plan was amended to increase the maximum aggregate number of Shares available under the Plan by a First Amendment thereto, which was adopted by the Board on April 26, 2021, and became effective upon the approval of the stockholders thereof on June 18, 2021. The Plan was amended again to increase the maximum aggregate number of Shares available under the Plan by a Second Amendment thereto, which was adopted by the Board on September 21, 2022, and became effective upon the approval of the stockholders thereof on November 22, 2022. Unless sooner terminated as provided in Section 13, the Plan shall terminate on the date that is ten (10) years from the date that the Plan was last approved by the stockholders of the Company; provided that the termination of the Plan shall not adversely affect any rights under Awards already granted to a Grantee. Incentive Stock Options may only be granted for ten (10) years from the date that the Plan was last approved by the Board.”
* * * * *
Exhibit 99.1
Athenex Announces Positive Results of Special Stockholder Meeting
| • | Shareholders voted in favor of all three proposals submitted before the Special Stockholder Meeting |
BUFFALO, N.Y., Nov. 22, 2022 (GLOBE NEWSWIRE) – Athenex, Inc., (NASDAQ: ATNX), a global biopharmaceutical company dedicated to the discovery, development, and commercialization of novel therapies for the treatment of cancer and related conditions, today announced the results of its special meeting of stockholders (the “Special Meeting”), held as a virtual meeting on November 22, 2022.
Athenex shareholders have approved all three proposals put before them today at the Special Meeting, including: (1) to effect an increase in the total number of authorized shares of common stock of the Company, (2) to authorize a reverse stock split of the Company’s common stock, which is intended to increase the per share price of the common stock and enable the Company to regain compliance with the Nasdaq continued listing requirements, and (3) to increase the number of shares available for issuance under the Company’s 2017 Omnibus Incentive Plan.
Further details on the voting results for each of the proposals put before the shareholders at the Special Meeting can be found in the Current Report on Form 8-K that Athenex intends to file with the Securities and Exchange Commission later today.
About Athenex, Inc.
Founded in 2003, Athenex, Inc. is a global clinical-stage biopharmaceutical company dedicated to becoming a leader in the discovery, development, and commercialization of next generation cell therapy drugs for the treatment of cancer. In pursuit of this mission, Athenex leverages years of experience in research and development, clinical trials, regulatory standards, and manufacturing. The Company’s current clinical pipeline is derived mainly from the following core technologies: (1) Cell therapy, based on NKT cells and (2) Orascovery, based on a P-glycoprotein inhibitor. Athenex’s employees worldwide are dedicated to improving the lives of cancer patients by creating more active, accessible, and tolerable treatments. For more information, please visit www.athenex.com.
Athenex Contacts
Daniel Lang, MD
Athenex, Inc.
Email: danlang@athenex.com