Item 5.03. Amendments to Articles of Incorporation; Change in Fiscal Year
In connection with an underwritten offering of common stock, preferred stock and warrants, on December 19, 2016, RXi Pharmaceuticals
Corporation (the Company) filed a Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock (the Series B Convertible Preferred Stock Certificate of Designation) with the
Secretary of State of the State of Delaware. The Series B Convertible Preferred Stock Certificate of Designation provides for the issuance of up to 8,100 shares of Series B Convertible Preferred Stock (the Series B Convertible Preferred
Shares).
The Series B Convertible Preferred Stock Certificate of Designation provides, among other things, that holders of
Series B Convertible Preferred Stock shall receive dividends on an
as-converted
basis at the same time and in the same form as any dividends paid out on shares of our common stock. Other than as set forth
in the previous sentence, the Series B Convertible Preferred Stock Certificate of Designation provides that no other dividends shall be paid on Series B Convertible Preferred Stock. The Series B Convertible Preferred Stock Certificate of
Designation does not provide for any restriction on the repurchase of Series B Convertible Preferred Stock by the Company while there is any arrearage in the payment of dividends on the Series B Convertible Preferred Stock. There are no
sinking fund provisions applicable to the Series B Convertible Preferred Stock.
With certain exceptions, as described in the Series B
Convertible Preferred Stock Certificate of Designation, the Series B Convertible Preferred Stock have no voting rights. However, as long as any shares of Series B Convertible Preferred Stock remain outstanding, the Series B Convertible
Preferred Stock Certificate of Designation provides that the Company shall not, without the affirmative vote of holders of a majority of the then-outstanding Series B Convertible Preferred Stock, (a) alter or change adversely the powers,
preferences or rights given to the Series B Convertible Preferred Stock or alter or amend the Series B Convertible Preferred Stock Certificate of Designation, (b) increase the number of authorized shares of Series B Convertible Preferred Stock
or (c) effect a stock split or reverse stock split of the Series B Convertible Preferred Stock or any like event.
Each Series B
Convertible Preferred Share is convertible at any time at the holders option into a number of shares of common stock equal to $1,000 per share divided by the Series B Convertible Preferred Share Conversion Price. The Series B Convertible
Preferred Share Conversion Price is initially $0.90 and is subject to adjustment for stock splits, stock dividends, distributions, subdivisions and combinations. Notwithstanding the foregoing, the Series B Convertible Preferred Stock
Certificate of Designation further provides that the Company shall not effect any conversion of Series B Convertible Preferred Stock, with certain exceptions, to the extent that, after giving effect to an attempted conversion, the holder of Series B
Convertible Preferred Stock (together with such holders affiliates, and any other person whose beneficial ownership of common stock would be aggregated with the holders for purposes of Section 13(d) of the Exchange Act and the applicable
regulations thereunder, including any group of which the holder is a member) would beneficially own a number of shares of common stock in excess of 4.99% of the shares of our common stock then outstanding.
This foregoing description of the Series B Convertible Preferred Stock Certificate of Designation does not purport to be complete and is
qualified in its entirety by reference to the complete text of such certificate, which is attached hereto and incorporated herein.
Item 5.07.
Submission of Matters to a Vote of Security Holders.
On December 15, 2016, the Company held its 2016 Annual Meeting of
Stockholders (the Annual Meeting). The following items of business were considered and voted upon at the Annual Meeting: (i) election of five director nominees to serve until the 2017 annual meeting; (ii) ratification of the
selection of BDO USA, LLP as the Companys independent registered public accounting firm for the fiscal year ending December 31, 2016, (iii) an advisory
(non-binding)
vote to approve the
Companys executive compensation, (iv) an increase in the number of shares available for issuance under the RXi Pharmaceuticals Corporation Employee Stock Purchase Plan and (v) an increase in the number of shares available for
issuance under the 2012 RXi Pharmaceuticals Corporation Long Term Incentive Plan.
The number of shares of common stock entitled to vote
at the Annual Meeting was 6,599,846. The number of shares of common stock present or represented by valid proxy at the annual meeting was 4,425,173. All
2
matters submitted to a binding vote of stockholders at the Annual Meeting were approved. The number of votes cast for and against, and the number of abstentions and broker
non-votes
with respect to the matters voted upon at the Annual Meeting, are set forth below:
(i) Election of Directors.
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Director Nominee
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Votes For
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Votes Withheld
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Geert Cauwenbergh, Dr. Med. Sc.
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608,340
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177,014
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Robert J. Bitterman
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681,123
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104,231
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Keith L. Brownlie
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692,759
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92,595
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H. Paul Dorman
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692,483
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92,871
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Curtis A. Lockshin, Ph.D.
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692,573
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92,781
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There were 3,639,819 broker
non-votes
regarding the election of each
director.
(ii) Ratification of Auditors.
Stockholders ratified the appointment of BDO USA, LLP as the Companys independent registered public accounting firm for the fiscal year
ending December 31, 2016. The results of the voting were 4,214,232 votes for, 160,866 votes against and 50,075 abstentions. There were no broker
non-votes
regarding this proposal.
(iii) Advisory
(non-binding)
Vote with Respect to Executive Compensation.
Stockholders approved, on a
non-binding
advisory basis, the compensation paid to the Companys
named executive officers, as described in the Companys definitive proxy statement for the Annual Meeting. The results of the voting were 498,852 votes for, 234,205 votes against and 52,297 abstentions. There were 3,639,819 broker
non-votes
regarding this proposal.
(iv) Increase in the Number of Shares Available for
Issuance under the RXi Pharmaceuticals Corporation Employee Stock Purchase Plan.
Stockholders approved an increase in the number
of shares available for issuance under the RXi Pharmaceuticals Corporation Employee Stock Purchase Plan. The results of the voting were 609,374 votes for, 154,753 votes against and 21,227 abstentions. There were 3,639,819 broker
non-votes
regarding this proposal.
(v) Increase in the Number of Shares Available for
Issuance under the 2012 RXi Pharmaceuticals Corporation Long Term Incentive Plan.
Stockholders approved an increase in the number
of shares available for issuance under the 2012 RXi Pharmaceuticals Corporation Long Term Incentive Plan. The results of the voting were 571,304 votes for, 192,598 votes against and 21,452 abstentions. There were 3,639,819 broker
non-votes
regarding this proposal.