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us to first negotiate with our board of directors. We believe that the benefits of increased protection of our potential ability to negotiate with an unfriendly or unsolicited acquirer outweigh the
disadvantages of discouraging such proposals, including proposals that are priced above the then-current market value of our common stock, because, among other reasons, the negotiation of such
proposals could result in an improvement of their terms.
Certificate of Incorporation and Bylaws
Our amended and restated certificate of incorporation and amended and restated bylaws to become effective upon completion of this
offering will include provisions that:
- authorize our board of directors to issue, without further action by the stockholders, up to shares of
undesignated preferred stock;
- require that any action to be taken by our stockholders be effected at a duly called annual or special meeting and not by
- specify that special meetings of our stockholders can be called only by our board of directors, our chairman of the board,
or our chief executive officer;
- establish an advance notice procedure for stockholder approvals to be brought before an annual meeting of our
stockholders, including proposed nominations of persons for election to our board of directors;
- establish that our board of directors is divided into three classes, Class I,
Class II and Class III,
with each class serving staggered terms;
- provide that our directors may be removed only for cause;
- provide that vacancies
on our board of directors may, except as otherwise required by law, be filled only by a majority of
directors then in office, even if less than a quorum;
- specify that no stockholder is permitted to cumulate votes at any election of directors; and
- require a super-majority of votes to amend certain of the above-mentioned provisions.
Upon the completion of this offering, we will be governed by the provisions of Section 203 of the Delaware General Corporation
Law regulating corporate takeovers.
This section prevents some Delaware corporations from engaging, under some circumstances, in a business combination, which includes a merger or sale of at least 10% of the corporation's assets with
any interested stockholder, meaning a stockholder 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 the corporation's outstanding voting stock, unless:
- the transaction is approved by the board of directors prior to the time that the interested stockholder became an
interested stockholder; or
- subsequent to such time that the stockholder became an interested stockholder the business combination is approved by the
board of directors and authorized at an annual or special meeting of stockholders by at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder.
Delaware corporation may "opt out" of these provisions with an express provision in its original certificate of incorporation or an express provision in its certificate of
incorporation or amended and restated bylaws resulting from a stockholders' amendment approved by at least a majority of the outstanding voting shares. We have not opted out of these provisions. As a
result, mergers or other takeover or change in control attempts of us may be discouraged or prevented.
general, Section 203 defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity
or person affiliated with or controlling or controlled by any of these entities or persons.