Form 8-K

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or Section 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): July 25, 2019

 

 

BioDelivery Sciences International, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-31361   35-2089858

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

4131 ParkLake Ave., Suite #225

Raleigh, NC

  27612
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: 919-582-9050

Not Applicable

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation to 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 Act:

 

Title of each class

 

Trading

symbol(s)

 

Name of each exchange

on which registered

Common stock, par value $0.001   BDSI   The Nasdaq capital 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 5.03

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

As noted in Item 5.07 below, on July 25, 2019, the stockholders of BioDelivery Sciences International, Inc. (the “Company”) approved an amendment to the Company’s Certificate of Incorporation to increase the number of authorized shares of the Company’s common stock, par value $0.001 per share (“Common Stock”), from 125,000,000 shares to 175,000,000 shares. A copy of the Certificate of Amendment to the Company’s Certificate of Incorporation reflecting the foregoing amendment filed with the Secretary of the State of Delaware is attached hereto as Exhibit 3.1.

 

Item 5.07

Submission of Matters to a Vote of Security Holders.

On July 25, 2019, the Company held its 2019 Annual Meeting of Stockholders (the “Annual Meeting”). Proxies were solicited pursuant to the Company’s definitive proxy statement filed on June 17, 2019, with the Securities and Exchange Commission under Section 14(a) of the Securities Exchange Act of 1934, as amended. The number of shares of common stock, par value $0.001 per share, of the Company (the “Common Stock”) entitled to vote at the Annual Meeting was 89,513,533. The number of shares of Common Stock present or represented by valid proxy at the Annual Meeting was 78,073,297, thus establishing a quorum for the Annual Meeting. All matters submitted to a vote of the Company’s stockholders at the Annual Meeting were approved and the director nominees were elected. The voting results reported below are final.

The following is a tabulation of the voting on the proposals presented at the Annual Meeting:

Proposal 1: To elect five directors to the Board, Peter S. Greenleaf (our current Chairman of the Board), Todd C. Davis (a current director), Herm Cukier (our current Chief Executive Officer and a director), Mark A. Sirgo (our current Vice Chairman of the Board) and Kevin Kotler (a current director) as directors to the Board of Directors (the “Board”), each to hold office until the 2020 annual meeting of the Company and until each such director’s successor shall have been duly elected and qualified or until his earlier resignation or removal.

 

Nominees

   For Nominee      Withhold Authority for Nominee      Broker Non-Votes  

Peter S. Greenleaf

     43,856,317        16,048,286        18,168,694  

Todd C. Davis

     57,849,996        2,054,607        18,168,694  

Herm Cukier

     58,448,724        1,455,879        18,168,694  

Mark A. Sirgo

     55,644,702        4,259,901        18,168,194  

Kevin Kotler

     55,843,304        4,061,299        18,168,194  

Proposal 2: To ratify the appointment by the Audit Committee of the Board of Cherry Bekaert LLP as the Company’s registered public accounting firm for the fiscal year ending December 31, 2019.

 

Shares Voted For

 

Shares Against

 

Shares Abstaining

 

Broker Non-Votes

75,393,572

  1,515,788   1,163,937  

Proposal 3: To approve the Company’s 2019 Stock Option and Incentive Plan.

 

Shares Voted For

 

Shares Against

 

Shares Abstaining

 

Broker Non-Votes

48,385,657

  10,994,113   524,883   18,168,194

Proposal 4: To conduct a non-binding advisory vote on our 2018 executive compensation.

 

Shares Voted For

 

Shares Against

 

Shares Abstaining

 

Broker Non-Votes

57,005,934

  2,351,764   546,905   18,168,194


Proposal 5: To conduct a non-binding advisory vote on the frequency of future advisory votes on executive compensation.

 

One Year

 

Two Years

 

Three Years

 

Shares Abstaining

 

Broker Non-Votes

26,259,069

  1,500,312   31,728,825   416,397   18,168,694

Proposal 6: To approve an amendment to the Charter to increase the number of authorized shares of the Company’s Common Stock from 125,000,000 shares to 175,000,000 shares.

 

Shares Voted For

 

Shares Against

 

Shares Abstaining

 

Broker Non-Votes

71,189,297

  6,234,352   649,648  

Based on the foregoing, Peter S. Greenleaf, Todd C. Davis, Herm Cukier, Mark A. Sirgo and Kevin Kotler were elected as directors each to hold office until the 2020 annual meeting of the Company and until each such director’s successor shall have been duly elected and qualified or until his earlier resignation or removal. Cherry Bekaert LLP was ratified as the Company’s registered public accounting firm for the fiscal year ending December 31, 2019. The Company’s 2019 Stock Option and Incentive Plan was approved. The Company’s 2018 executive compensation was approved. In the Proxy Statement provided to stockholders, the Board recommended that stockholders vote, on a non-binding advisory basis, to hold future non-binding advisory votes on the Company’s executive compensation (“say-on-pay votes”) every three years. The stockholders approved, on a non-binding advisory basis, to hold future say-on-pay votes every three years. After consideration of the voting results and other factors, on July 25, 2019, the Board has determined that the Company will hold a stockholder vote on executive compensation every three years through 2025, when the next stockholder vote on the frequency of say-on-pay votes is required under the Securities Exchange Act of 1934, as amended, or until the Board otherwise determines that a different frequency for such votes is in the best interests of the Company’s stockholders. The amendment to the Company’s Charter described in Proposal 6 was approved.

 

Item 9.01

Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit
No.

  

Description

3.1    Certificate of Amendment to the Certificate of Incorporation of BioDelivery Sciences International, Inc.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

July 25, 2019     BIODELIVERY SCIENCES INTERNATIONAL, INC.
    By:  

/s/ Mary Theresa Coelho

    Name:   Mary Theresa Coelho
    Title:   Chief Financial Officer and Treasurer
EX-3.1

Exhibit 3.1

Charter Amendment

CERTIFICATE OF AMENDMENT TO THE CERTIFICATE OF INCORPORATION OF BIODELIVERY SCIENCES INTERNATIONAL, INC.

BioDelivery Sciences International, Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify:

1.     Pursuant to Section 242 of the DGCL, this Certificate of Amendment to the Certificate of Incorporation (this “Amendment”) amends the provisions of the Certificate of Incorporation of the Corporation (the “Certificate”).

2.    This Amendment has been approved and duly adopted by the Corporation’s Board of Directors and stockholders in accordance with the provisions of Section 242 of the DGCL.

3.    The Certificate is hereby amended as follows:

The first paragraph of Article FIFTH is hereby amended and restated in its entirety to read as set forth below:

“FIFTH: The total number of shares of capital stock which the Corporation shall have authority to issue is 180,000,000 shares, consisting of 175,000,000 (One-Hundred Seventy-Five Million) shares of common stock, each of par value $0.001 (the “Common Stock”), and 5,000,000 (Five Million) shares of preferred stock, each of par value $0.001 (the “Preferred Stock”).”

*_*_*_*


IN WITNESS WHEREOF, the undersigned authorized officer of the Corporation has executed this Certificate of Amendment to the Certificate of Incorporation as of July 25, 2019.

 

BIODELIVERY SCIENCES INTERNATIONAL, INC.

/s/ Herm Cukier

Herm Cukier
Chief Executive Officer