Generally, a business combination includes a merger, asset or stock sale, or other transaction or series of transactions together resulting in
a financial benefit to the interested stockholder. An interested stockholder is a person who, together with affiliates and associates, owns or, within
three years prior to the determination of interested stockholder status, did own 15% or more of a corporation’s outstanding voting stock. We expect
the existence of this provision to have an anti-takeover effect with respect to transactions our board of directors does not approve in advance. We
also anticipate that DGCL Section 203 may also discourage attempts that might result in a premium over the market price for the shares of common
stock held by stockholders.
Restated Certificate of Incorporation and Amended and Restated Bylaws Provisions
Our restated certificate of incorporation and our amended and restated bylaws include a number of provisions that could deter hostile
takeovers or delay or prevent changes in control of our management team, including the following:
•Board of Directors Vacancies. Our amended and restated bylaws and our restated certificate of incorporation authorize only our board of
directors to fill vacant directorships resulting from any cause or created by the expansion of our board of directors. In addition, the number
of directors constituting our board of directors may be set only by resolution adopted by a majority vote of our entire board of directors.
These provisions prevent a stockholder from increasing the size of our board of directors and gaining control of our board of directors by
filling the resulting vacancies with its own nominees. This makes it more difficult to change the composition of our board of directors but
promotes continuity of management.
•Classified Board of Directors. Our restated certificate of incorporation provides that our board of directors is classified into three classes
of directors, with directors in each class serving for a term of three years. The existence of a classified board of directors could delay a
successful tender offeror from obtaining majority control of our board of directors, and the prospect of that delay might deter a potential
offeror.
•Directors Removed Only for Cause. Our restated certificate of incorporation provides that stockholders may remove directors only for
cause and only with the affirmative vote of the holders of at least two-thirds of the voting power of the then-outstanding shares of our
outstanding common stock.
•Supermajority Requirements for Amendments of Our Restated Certificate of Incorporation and Amended and Restated Bylaws. Our
restated certificate of incorporation further provides that the affirmative vote of holders of at least two-thirds of the voting power of our
outstanding common stock will be required to amend certain provisions of our restated certificate of incorporation. The affirmative vote of
holders of at least two-thirds of the voting power of our outstanding common stock is required to amend or repeal our amended and
restated bylaws, although our amended and restated bylaws may be amended by a majority vote of our board of directors.
•Stockholder Action; Special Meeting of Stockholders. Our restated certificate of incorporation provides that our stockholders may not
take action by written consent, but may only take action at annual or special meetings of our stockholders. As a result, holders of our
capital stock would not be able to amend our amended and restated bylaws or remove directors without holding a meeting of our
stockholders called in accordance with our amended and restated bylaws. Our restated certificate of incorporation and our amended and
restated bylaws provide that special meetings of our stockholders may be called only by a majority of our board of directors, the
Chairperson of our board of directors, our Chief Executive Officer, our President, or our Lead Independent Director, thus prohibiting a
stockholder from calling a special meeting. These provisions might delay the ability of our stockholders to force consideration of a
proposal or for stockholders to take any action, including the removal of directors.
•Advance Notice Requirements for Stockholder Proposals and Director Nominations. Our amended and restated bylaws provide advance
notice procedures for stockholders seeking to bring business before our annual meeting of stockholders or to nominate candidates for
election as directors at our annual meeting of stockholders. Our amended and restated bylaws also specify certain requirements regarding
the form and content of a stockholder’s notice. These provisions might preclude our stockholders from bringing matters before our annual
meeting of stockholders or from making nominations for directors at our annual meeting of stockholders if the proper procedures are not
followed. We expect that these provisions might also discourage or deter a potential acquirer from conducting a solicitation of proxies to
elect the acquirer’s own slate of directors or otherwise attempting to obtain control of our company.
•Proxy Access. Our amended and restated bylaws provide that, in certain circumstances, a stockholder or group of up to 20 stockholders
may include director candidates that they have nominated in our annual meeting proxy materials. Such stockholder or group of
stockholders need to own 3% or more of our outstanding common stock continuously for at least three years. The number of stockholder-
nominated candidates appearing in any of our annual meeting proxy materials cannot exceed the greater of two individuals or 20% of our
board of directors. The nominating stockholder or group of stockholders is also required to deliver certain information, and each nominee
is required to meet certain qualifications, as described in more detail in the amended and restated bylaws.
•No Cumulative Voting. The DGCL provides that stockholders are not entitled to the right to cumulate votes in the election of directors
unless a corporation’s certificate of incorporation provides otherwise. Our restated certificate of incorporation and amended and restated
bylaws do not provide for cumulative voting.
•Issuance of Undesignated Preferred Stock. Our board of directors has the authority, without further action by the stockholders, to issue
up to 10,000,000 shares of undesignated preferred stock with rights and preferences, including voting rights, designated from time to time
by our board of directors. The existence of authorized but unissued shares of preferred stock enables our board of directors to render more
difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest, or other means.
•Choice of Forum. Our restated certificate of incorporation provides that the Court of Chancery of the State of Delaware is the sole and exclusive
forum for: (i) any derivative action or proceeding brought on our behalf; (ii) any action asserting a claim of breach of a fiduciary duty owed to us
by or our stockholders, or other wrongdoing by, any of our directors, officers, stockholders, employees, or agents; (iii) any action asserting a
claim against us arising pursuant to any provision the DGCL, our restated certificate of incorporation, or our amended and restated bylaws or as
to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware; (iv) any action to interpret, apply, enforce or
determine the validity of our restated certificate of incorporation or our amended and restated bylaws; (v) any action asserting a claim against us
that is governed by the internal affairs doctrine; or (vi) any action asserting an “internal corporate claim” as that term is defined in Section 115 of
the General Corporation Law. Our amended and restated bylaws also provide (the “Federal Forum Provision”) that the federal district courts of
the United States would be the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act of 1933,
as amended (the “Securities Act”). While there can be no assurance that federal or state courts will follow the holding of the Delaware Supreme
Court which found that such provisions are facially valid under Delaware law or determine that the Federal Forum Provision should be enforced
in a particular case, application of the Federal Forum Provision means that suits brought by our stockholders to enforce any duty or liability
created by the Securities Act must be brought in federal court and cannot be brought in state court. Section 27 of the Exchange Act creates
exclusive federal jurisdiction over all claims brought to enforce any duty or liability created by the Exchange Act or the rules and regulations
thereunder. Accordingly, actions by our stockholders to enforce any duty or liability created by the Exchange Act or the rules and regulations