UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 12, 2011
DIADEXUS, INC.
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 0-26483 | 94-3236309 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
343 Oyster Point Boulevard, South San Francisco, California 94080
(Address of Principal Executive Offices) (Zip Code)
Registrant’s telephone number, including area code: (650) 246-6400
N/A
(Former Name or Former Address, if Changed Since Last Report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.07. Submission of Matters to a Vote of Security Holders.
The 2011 Annual Meeting of Stockholders (the “2011 Annual Meeting”) of diaDexus, Inc. (the “Company”) was held pursuant to notice at 1:00 p.m. Pacific Daylight Time on July 14, 2011 at the Company’s principal executive offices in South San Francisco, California. At the 2011 Annual Meeting, the Company’s stockholders elected six directors and approved two Company proposals. The final voting results for the matters submitted to a vote of stockholders at the 2011 Annual Meeting are as follows:
| Proposal 1: | To elect six directors to serve and to hold office until the next annual meeting of stockholders and until their successors have been duly elected and qualified. |
| Nominee |
For | Withheld | Broker Non-Votes |
|||||||||
| Karen Drexler |
27,314,154 | 3,946,387 | 11,681,212 | |||||||||
| Andrew Galligan |
27,324,399 | 3,936,142 | 11,681,212 | |||||||||
| James P. Panek |
26,226,234 | 5,034,307 | 11,681,212 | |||||||||
| Charles W. Patrick |
27,324,299 | 3,936,242 | 11,681,212 | |||||||||
| Lori F. Rafield |
26,212,914 | 5,047,627 | 11,681,212 | |||||||||
| Brian E. Ward |
27,314,279 | 3,946,262 | 11,681,212 | |||||||||
| Proposal 2: | To approve the amendment of the Company’s Restated Certificate of Incorporation to increase the total number of shares of stock authorized for issuance thereunder from 85,000,000 shares to 120,000,000 shares and the number of shares of common stock, par value $0.01 per share, authorized for issuance thereunder from 65,000,000 shares to 100,000,000 shares. |
| For |
Against |
Abstention |
Broker Non-Votes | |||
| 31,608,226 |
11,279,264 | 54,263 | 0 |
| Proposal 3: | To ratify the appointment of PricewaterhouseCoopers LLP as the Company’s independent registered accounting firm for the fiscal year ending December 31, 2011. |
| For |
Against |
Abstention |
Broker Non-Votes | |||
| 42,861,210 |
57,970 | 22,573 | 0 |
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On July 12, 2011, the Company entered into an Executive Employment Agreement (the “Panek Agreement”) with James P. Panek, the Company’s recently appointed Interim President and Chief Executive Officer. The Panek Agreement is effective as of July 1, 2011 and provides that Mr. Panek shall receive a base salary of $380,000 per annum for his services as Interim Chief Executive Officer. Mr. Panek is eligible to receive an annual target bonus of up to 50% of such base salary, payable on such terms and conditions as may be determined by the Board of Directors or its Compensation Committee and mutually agreed upon with Mr. Panek. Mr. Panek’s bonus will be pro-rated based on the number of actual months Mr. Panek is employed as Interim Chief Executive Officer. Mr. Panek is also entitled to receive an option grant under the Company’s Amended and Restated 1996 Stock Option Plan to purchase 170,000 shares of the Company’s common stock, for an exercise price per share equal to the closing trading price of a share of the Company’s common stock on the date of grant. The option award will vest on a monthly basis starting July 1, 2011, such that the option award will be fully vested and exercisable on July 1, 2012, provided that Mr. Panek is an employee of the Company on each vesting date. The Board of Directors may in its discretion accelerate vesting of such option following Mr. Panek’s termination of employment or it may provide that a portion of unvested shares will continue to vest in connection with Mr. Panek’s continued service, if any, on the Board of Directors following the termination of his services as Interim Chief Executive Officer.
On July 12, 2011, the Company also entered into an Executive Employment Agreement (the “Ward Agreement”) with Brian E. Ward, Ph.D., the Company’s recently appointed Interim Chief Operating Officer. The Ward Agreement is effective as of July 1, 2011 and provides for the same salary, bonus and option grant terms as the Panek Agreement. The Ward Agreement also provides that the Company will reimburse Dr. Ward for up to $5,000 per month in temporary housing expenses in the South San Francisco, California area and up to $3,000 per month in travel expenses for travel between the San Francisco Bay Area and Boston, Massachusetts, in each case, for up to six months following July 1, 2011. The Company will also reimburse Dr. Ward for up to $25,000 in reasonable expenses to relocate Dr. Ward’s household to the San Francisco Bay Area after September 1, 2011 and for up to $1,000 per month though September 1, 2011 for Dr. Ward’s automobile expenses related to his performance of services in the South San Francisco, California area.
The foregoing provides only a brief description of the terms and conditions of the Panek Agreement and the Ward Agreement, does not purport to be a complete description of the rights and obligations of the parties thereunder and is qualified in its entirety by reference to the Panek Agreement and the Ward Agreement, which will be filed as exhibits to the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2011.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit |
Description | |
| 3.1 | Amendment to Restated Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on July 15, 2011 | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| diaDexus, Inc. | ||||||
| (Registrant) | ||||||
| Date: July 18, 2011 | ||||||
| By: | /s/ James P. Panek | |||||
| James P. Panek | ||||||
| Interim President and Chief Executive Officer | ||||||
EXHIBIT INDEX
| Exhibit |
Description | |
| 3.1 |
Amendment to Restated Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on July 15, 2011 | |
Exhibit 3.1
CERTIFICATE OF AMENDMENT TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
DIADEXUS, INC.
diaDexus, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), hereby certifies as follows:
FIRST: The name of the Corporation is diaDexus, Inc. The Corporation was originally incorporated under the name “Genenvax, Inc.” and the Corporation’s original Certificate of Incorporation was filed with the Delaware Secretary of State on November 27, 1995.
SECOND: The Corporation filed a Restated Certificate of Incorporation on November 10, 2010 and a Certificate of Change of Registered Agent and Registered Office on January 21, 2011 (collectively, the “Restated Certificate of Incorporation”).
THIRD: This amendment of the Restated Certificate of Incorporation was duly adopted by the Corporation’s Board of Directors and stockholders in accordance with Section 242 of the General Corporation Law of the State of Delaware.
FOURTH: Section 4.1 of the Restated Certificate of Incorporation is hereby amended to read in its entirety as follows:
“4.1 The total number of shares of stock that the corporation is authorized to issue is 120,000,000, consisting of 100,000,000 shares of common stock, par value $0.01 per share, and 20,000,000 shares of preferred stock, par value $0.01 per share. The common stock will be subject to the rights and preferences of the preferred stock as set forth in this Restated Certificate of Incorporation and the resolution or resolutions providing for the issue of any such stock adopted by the board of directors.”
FIFTH: All other provisions of the Restated Certificate of Incorporation shall remain in full force and effect.
IN WITNESS WHEREOF, the Corporation has caused the Certificate of Amendment to the Restated Certificate of Incorporation to be signed by its Interim President and Chief Executive Officer on this 14th day of July, 2011.
| DIADEXUS, INC. | ||
| By: | /s/ James P. Panek | |
| James P. Panek | ||
| Interim President and Chief Executive Officer | ||