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.
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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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 and federal securities laws by chancellors and judges, as applicable, particularly experienced in resolving
corporate disputes, efficient administration of cases on a more expedited schedule relative to other forums and protection
against the burdens of multi-forum litigation. However, these provisions may have the effect of discouraging lawsuits against
us and/or our directors, officers and employees as it may limit any stockholder’s ability to bring a claim in a
judicial forum that such stockholder finds favorable for disputes with us or our directors, officers or employees. In
addition, stockholders who do bring a claim in the Court of Chancery in the State of Delaware could face additional
litigation costs in pursuing any such claim, particularly if they do not reside in or near Delaware. The enforceability of
similar choice of forum provisions in other companies’ charter documents has been challenged in legal proceedings, and
it is possible that, in connection with any applicable action brought against us, a future court could find the choice of
forum provisions contained in our Bylaws to be inapplicable or unenforceable in such action. If a court were to find the
choice of forum provision contained in our Bylaws to be inapplicable or unenforceable in an action, we may incur additional
costs associated with resolving such action in other jurisdictions, which could adversely affect our business, financial
condition or results of operations.
Attached hereto as Exhibit 4.6 is an
amended Description of the Registrant’s Common Stock, which is incorporated herein by reference.