Adamis Pharmaceuticals Corporation 10-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 200,000,000 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;





    	2 



    	 



    

 


	 	●	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:




    	3 



    	 



    




	 	●	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.




    	4 



    	 



    




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.




    	5 



    	 



    




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.




    	6 



    	 



    




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.




    	7 



    	 



    




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.



    	8