Adamis Pharmaceuticals Corporation 8-K


 


Exhibit 4.6


 


 


DESCRIPTION OF CAPITAL STOCK


 


General


 


Adamis Pharmaceuticals Corporation (“we,”
“the Company” or “Adamis”) has one class of securities registered under Section 12 of the Securities Exchange
Act of 1934, as amended: our common stock, $0.0001 par value per share. The following description of our capital stock, is not
complete. This description is summarized from, and qualified in its entirety by reference to, our restated certificate of incorporation,
as the same may be amended from time to time, any certificates of designation for our preferred stock, and our amended and restated
bylaws, as amended from time to time, which have been publicly filed with the Securities and Exchange Commission as exhibits to
our Annual Report on Form 10-K, and to the applicable provisions of the Delaware General Corporation Law, or DGCL, which also affects
the terms of these securities. Our authorized capital stock consisted of 100,000,000 shares of common stock, $0.0001 par value
per share, and 10,000,000 shares of preferred stock, $0.0001 par value per share.


 


Common Stock


 


General


 


Our board of directors (the “Board”)
is authorized, without stockholder approval except as required by the listing standards of The Nasdaq Stock Market LLC (or of any
other stock exchange or market on which our common stock is then traded), to issue shares of our common stock from time to time.
Our common stock is currently listed on the Nasdaq Capital Market under the symbol “ADMP.”


 


Voting Rights


 


Each holder of our common stock is entitled
to one vote for each share held of record on all matters submitted to a vote of stockholders. Our restated certificate of incorporation
does not provide for cumulative voting for the election of directors.


 


Dividends and Distributions


 


Subject to preferences that may be applicable
to any outstanding preferred stock, the holders of our common stock are entitled to receive ratably such dividends, if any, as
may be declared by our Board, out of legally available funds. Upon liquidation, dissolution or winding-up, the holders of our common
stock are entitled to share ratably in all of our assets which are legally available for distribution to stockholders, after payment
of or provision for all debts and other liabilities and subject to the prior rights or liquidation preference of any outstanding
preferred stock.


 


Other Rights


 


The holders of our common stock have no preemptive,
subscription, redemption or conversion rights, and there are no redemption or sinking fund provisions applicable to our common
stock. The rights, preferences and privileges of the holders of our common stock are subject to, and may be adversely affected
by, the rights of the holders of shares of any series of our preferred stock that we may designate and issue.


 




    	 



    	 



    

 


Preferred Stock


 


Our restated certificate of incorporation provides
that the Board is authorized, without further action by the stockholders (unless such stockholder action is required by applicable
law or the rules of any stock exchange or market on which our securities are then traded), to provide for the issuance of shares
of preferred stock in one or more series and, by filing a certificate of designation pursuant to the applicable law of the State
of Delaware, to establish from time to time for each such series the number of shares to be included in each such series and to
fix the designation, powers, rights and preferences of the shares of each such series, and the qualifications, limitations and
restrictions thereof, which may include, among others, dividend rights, voting rights, liquidation preferences, conversion rights,
preemptive rights, and the number of shares constituting any series or the designation of any series, any or all of which may be
greater than the rights of the common stock. Any convertible preferred stock we may issue will be convertible into our common stock
or our other securities. Conversion may be mandatory or at the holder’s option and would be at prescribed conversion rates.
Any certificate of designation that establishes a series of preferred stock may include a description of the rights, powers and
preferences of such series including, to the extent applicable:


 


	 	●	the designation of the series, which may be by distinguishing number, letter or title;


 


	 	●	the number of shares of the series, which number the Board may thereafter (except where otherwise provided in the certificate of designation) increase or decrease (but not below the number of shares thereof then outstanding);


 


	 	●	the purchase price;


 


	 	●	whether dividends, if any, shall be paid, and, if paid, the date or dates upon which, or other times at which, such dividends shall be payable, whether such dividends shall be cumulative or noncumulative, the rate of such dividends (which may be variable) and the relative preference in payment of dividends of such series;


 


	 	●	whether shares of such series shall be redeemable, the time or times when, and the price or prices at which, shares of such series shall be redeemable, the redemption price and the terms and conditions of redemption;


 


	 	●	the terms and amounts of any sinking fund or similar fund provided for the purchase or redemption of shares of the series;


 


	 	●	the amounts payable on shares of such series and the rights of holders of such shares in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of our corporation;


 


	 	●	whether the shares of the series shall be convertible into shares of any other class or series, or convertible into or exchangeable for debt securities or any other security, of our corporation or any other corporation, and, if so, the specification of such other class or series of such other security, the conversion or exchange price or prices, or rate or rates, any adjustments thereto, the date or dates on which such shares shall be convertible or exchangeable and other terms and conditions upon which such conversion may be made;


 


	 	●	the preemptive or preferential rights, if any, of the holders of shares of such series to subscribe for, purchase, receive, or otherwise acquire any part of any new or additional issue of stock of any class, whether now or hereafter authorized, or of any bonds, debentures, notes, or any of other securities, whether or not convertible into shares of common stock;


  


	 	●	restrictions on the issuance of shares of the same series or of any other class or series; and


 


	 	●	the voting rights, if any, and whether full or limited, of the holders of shares of the series, which may include no voting rights, one vote per share, or such higher or lower number of votes per share as may be designated by the Board.




    	 



    	 



    

 


Preferred stock may be issued in the future
in connection with acquisitions, financings, or other matters as the Board deems appropriate. In the event that any shares of preferred
stock are to be issued, a certificate of designation containing the rights, privileges and limitations of such series of preferred
stock may be filed with the Secretary of State of Delaware. The effect of such preferred stock is that, subject to federal securities
laws and Delaware law, the Board alone may be able to authorize the issuance of preferred stock, which could have the effect of
delaying, deferring or preventing a change in control of us without further action by the stockholders or of discouraging a third
party from acquiring, a majority of our outstanding voting stock, and may adversely affect the other rights of the holders of our
common stock. The issuance of preferred stock with voting and conversion rights may also adversely affect the voting power of holders
of our common stock, including the loss of voting control to others.


 


The effects of issuing preferred stock could
include one or more of the following:


 


	 	●	decreasing the amount of earnings and assets available for distribution to holders of common stock;


 


	 	●	diluting the voting power of the common stock;


 


	 	●	impairing the liquidation rights of the common stock; or


 


	 	●	delaying, deferring or preventing changes in our control or management.


 


Anti-Takeover Effects of Certain Provisions of our Certificate
of Incorporation, Bylaws and the DGCL


 


Delaware Law


 


We are subject to Section 203 of the DGCL. This
provision generally prohibits a Delaware corporation from engaging in any business combination with any interested stockholder
for a period of three years following the date the stockholder became an interested stockholder, unless:


 


	 	●	prior to such date, the board of directors approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;


 


	 	●	upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding those shares owned by persons who are directors and also officers and by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or


 


	 	●	on or subsequent to such date, the business combination is approved by the board of directors and authorized at an annual meeting or special meeting of stockholders and not by written consent, by the affirmative vote of at least 66-2/3% of the outstanding voting stock that is not owned by the interested stockholder.


 


Section 203 defines a business combination to include:


 


	 	●	any merger or consolidation involving the corporation and the interested stockholder;


 


	 	●	any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;


 


	 	●	subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;


 




    	 



    	 



    

  


	 	●	any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or


 


	 	●	the receipt by the interested stockholder of the direct or indirect benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.


 


In general, Section 203 defines an “interested
stockholder” as any entity or person beneficially owning 15% or more of the outstanding voting stock of a corporation, or
an affiliate or associate of the corporation and was the owner of 15% or more of the outstanding voting stock of a corporation
at any time within three years prior to the time of determination of interested stockholder status; and any entity or person affiliated
with or directly or indirectly controlling or controlled by such entity or person, who presently holds the power to direct management
or is in a director or officer of the corporation.


 


These statutory provisions could delay or frustrate
the removal of incumbent directors or a change in control of our company, and accordingly, may discourage attempts to acquire us
even though such a transaction may offer our stockholders the opportunity to sell their stock at a price above the prevailing market
price.


 


Restated Certificate of Incorporation and Bylaw Provisions


 


Our restated certificate of incorporation, as
amended, and bylaws contain provisions that could have the effect of discouraging potential acquisition proposals or making a tender
offer or delaying or preventing a change in control, including changes a stockholder might consider favorable. In particular, the
restated certificate of incorporation and bylaws, as applicable, among other things:


 


	 	●	permit the Board to issue up to 10,000,000 shares of preferred stock, without further action by the stockholders, with any rights, preferences and privileges as they may designate;


 


	 	●	provide that all vacancies on the Board, including newly created directorships, may, except as otherwise required by law, or as determined otherwise by resolution of the Board, be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum;


 


	 	●	do not provide for cumulative voting rights with respect to election of directors; 


 


	 	●	provide that no action shall be taken by the stockholders, except at an annual or special meeting of stockholders, and no action shall be taken by the stockholders by written consent or by electronic transmission;


 


	 	●	set forth an advance notice procedure with regard to the nomination, other than by or at the direction of the Board, of candidates for election as directors and with regard to business to be brought before a meeting of stockholders.  Although the bylaws do not give the Board the power to approve or disapprove of stockholder nominations of candidates or proposals regarding other proper business to be conducted at a special or annual meeting, the bylaws may have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not followed or may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempting to obtain control of the Company; and


 


	 	●	provide the Board with the ability to alter its bylaws without stockholder approval.


 


Such provisions may make it more difficult for
holders of our common stock to replace our board of directors and may have the effect of discouraging a third-party from making
tender offers for our shares or acquiring us, even if doing so would be beneficial to our stockholders. These provisions also may
have the effect of preventing changes in our management.


 




    	 



    	 



    

 


Choice of Forum. Our bylaws provide that
unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware
shall, 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 DGCL, the certificate
of incorporation or the bylaws of the Company, or as to which the DGCL confers jurisdiction on the Court 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 bylaws further provide 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 bylaws provide that the above 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. 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. The bylaws also provide that unless the Company consents in writing to the
selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent permitted
by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities
Act, and that any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the
Company shall be deemed to have notice of and consented to the provisions described above.


 


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. The forum selection provisions in the bylaws 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.


 


Transfer Agent and Registrar


 


The Transfer Agent and Registrar for our common
stock is American Stock Transfer & Trust Company, LLC.


 




    	 



    	 



    

 


Indemnification of Directors and Officers


 


Section 145 of the DGCL provides, in general,
that a corporation incorporated under the laws of the State of Delaware, as we are, may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than a derivative
action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. In the case of a derivative action,
a Delaware corporation may indemnify any such person against expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, except that no
indemnification will be made in respect of any claim, issue or matter as to which such person will have been adjudged to be liable
to the corporation, unless and only to the extent that the Court of Chancery of the State of Delaware or any other court in which
such action was brought determines such person is fairly and reasonably entitled to indemnity for such expenses.


 


Our bylaws provide that we will indemnify our
directors and officers, to the maximum extent permitted by the DGCL, or any other applicable law, except that we are not required
to indemnify any director or officer in connection with any proceeding initiated by such person, unless (i) such indemnification
is expressly required to be made by law or the bylaws, (ii) the proceeding was authorized by the Board, or (iii) such indemnification
is provided by us pursuant to the powers vested in the company under the DGCL or any other applicable law. In addition, our bylaws
provide that we may indemnify our employees and other agents as set forth in the DGCL or any other applicable law. Our bylaws also
provide for the advancement of expenses incurred by a person who was or is a party or is threatened to be made a party to any threatened,
pending or completed proceeding by reason of the fact that the person is or was a director or officer of the company, or is or
was serving at the request of the company as a director or officer of another corporation, partnership, joint venture, trust or
other enterprise, prior to the final disposition of the proceeding, provided, however, that if the DGCL requires, an advancement
of expenses incurred by a director or officer in his or her capacity as a director or officer shall be made only upon delivery
to the company of an undertaking by or on behalf of the indemnitee to repay all amounts so advanced if it shall ultimately be determined
by final judicial decision from which there is no further right to appeal the indemnitee is not entitled to be indemnified for
such expenses under the bylaws. In addition, our restated certificate of incorporation provides that the liability of any of our
directors for monetary damages shall be eliminated to the fullest extent under applicable law. We carry officer and director liability
insurance with respect to certain matters, including matters arising under the Securities Act of 1933, as amended.


 


Disclosure of Commission Position on Indemnification for Securities
Act Liabilities


 


Insofar as indemnification for liabilities arising
under the Securities Act, may be permitted to our directors, officers and persons controlling us, we have been advised that it
is the Securities and Exchange Commission’s opinion that such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.