| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On May 27, 2021, at the 2021 Annual Meeting of Stockholders (the “2021 Annual Meeting”) of Zogenix, Inc. (the “Company”), the Company’s stockholders approved the amendment and restatement of the Company’s 2010 Equity Incentive Award Plan (the “Restated Plan”). The Restated Plan increased the number of shares of common stock reserved for issuance under the 2010 Equity Incentive Award Plan (the “2010 Plan”) by 4,500,000 shares, from 11,500,000 shares to 16,000,000 shares. Under the Restated Plan, no more than 16,000,000 shares may be issued upon the exercise of incentive stock options. The Restated Plan is scheduled to expire after the tenth anniversary of the date the Company’s board of directors adopted the Restated Plan, or after May 27, 2031. A complete copy of the Restated Plan is filed herewith as Exhibit 10.1 and incorporated herein by reference. The above summary of the Restated Plan does not purport to be complete and is qualified in its entirety by reference to such exhibit.
On May 27, 2021, the Board of Directors (the “Board”) of the Company approved the Zogenix, Inc. 2021 Employment Inducement Equity Incentive Award Plan (the “2021 Inducement Plan”). The terms of the 2021 Inducement Plan are substantially similar to the terms of the Company’s 2010 Equity Incentive Award Plan with the exception that incentive stock options may not be issued under the 2021 Inducement Plan and awards under the 2021 Inducement Plan may only be issued to eligible recipients under the applicable Nasdaq Listing Rules. The 2021 Inducement Plan was adopted by the Board without stockholder approval pursuant to Rule 5635(c)(4) of the Nasdaq Listing Rules.
The Board has initially reserved 1,000,000 shares of the Company’s common stock for issuance pursuant to awards granted under the 2021 Inducement Plan. In accordance with Rule 5635(c)(4) of the Nasdaq Listing Rules, awards under the 2021 Inducement Plan may only be made to an employee who has not previously been an employee or member of the board of directors of the Company or any parent or subsidiary, or following a bona fide period of non-employment by the Company or a parent or subsidiary, if he or she is granted such award in connection with his or her commencement of employment with the Company or a subsidiary and such grant is an inducement material to his or her entering into employment with the Company or such subsidiary.
A complete copy of the 2021 Inducement Plan is filed herewith as Exhibit 10.2 and incorporated herein by reference. The above summary of the 2021 Inducement Plan does not purport to be complete and is qualified in its entirety by reference to such exhibit.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On May 27, 2021, the Company’s stockholders voted at the 2021 Annual Meeting to approve an amendment to the Company’s Fifth Amended and Restated Certificate of Incorporation (as amended) to increase the authorized number of shares of common stock from 100,000,000 shares to 200,000,000 shares (the “Share Increase”). On May 28, 2021, the Company filed a certificate of amendment giving effect to the Share Increase which is filed as Exhibit 3.1 herewith and is incorporated herein by reference.
| Item 5.07 | Submission of Matters to a Vote of Security Holders |
The Company held its 2021 Annual Meeting on May 27, 2021. Set forth below are the matters the stockholders voted on and the final voting results.
Proposal 1 — Election of Directors
The Company’s stockholders elected the three persons listed below as Class II Directors, each to serve until the Company’s 2024 Annual Meeting of Stockholders and until their respective successors are duly elected and qualified. The final voting results were as follows:
| | | | | | | | |
Name | | Votes For | | Votes Against | | Abstentions | | Broker
Non-Votes |
James B. Breitmeyer, M.D., Ph.D. | | 32,162,874 | | 13,686,469 | | 47,877 | | 3,370,483 |
Stephen J. Farr, Ph.D. | | 44,883,129 | | 966,220 | | 47,871 | | 3,370,483 |
Mary E. Stutts | | 44,947,636 | | 899,581 | | 50,003 | | 3,370,483 |
