Table of Contents
may, except as otherwise required by law or determined by the board, only be filled by a majority vote of the directors then serving on the board, even though less than a quorum.
restated certificate and restated bylaws will also provide that all stockholder actions must be effected at a duly called meeting of stockholders and will eliminate the right of
stockholders to act by written consent without a meeting. Our restated bylaws will also provide that only our chairman of the board, chief executive officer or the board of directors pursuant to a
resolution adopted by a majority of the total number of authorized directors may call a special meeting of stockholders.
restated bylaws will also provide that stockholders seeking to present proposals before a meeting of stockholders to nominate candidates for election as directors at a meeting of
stockholders must provide timely advance notice in writing, and will specify requirements as to the form and content of a stockholder's notice.
restated certificate and restated bylaws will provide that the stockholders cannot amend many of the provisions described above except by a vote of 662/3% or more of
our outstanding common stock.
combination of these provisions will make it more difficult for our existing stockholders to replace our board of directors as well as for another party to obtain control of us by
replacing our board of directors. Since our board of directors has the power to retain and discharge our officers, these provisions could also make it more difficult for existing stockholders or
another party to effect a change in management. In addition, the authorization of undesignated preferred stock makes it possible for our board of directors to issue preferred stock with voting or
other rights or preferences that could impede the success of any attempt to change our control.
provisions are intended to enhance the likelihood of continued stability in the composition of our board of directors and its policies and to discourage coercive takeover
practices and inadequate takeover bids. These provisions are also designed to reduce our vulnerability to hostile takeovers and to discourage certain tactics that may be used in proxy fights. However,
such provisions could have the effect of discouraging others from making tender offers for our shares and may have the effect of delaying changes in our control or management. As a consequence,
these provisions may also inhibit fluctuations in the market price of our stock that could result from actual or rumored takeover attempts. We believe that the benefits of these provisions, including
increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure our company, outweigh the disadvantages of discouraging
takeover proposals, because negotiation of takeover proposals could result in an improvement of their terms.
Choice of Forum
Our restated certificate will provide that the Court of Chancery of the state of Delaware will be the exclusive forum
- any derivative action or proceeding brought on our behalf;
- any action asserting a breach of fiduciary duty;
- any action asserting a claim against us arising pursuant to the Delaware General Corporation Law, our restated certificate, or our
amended and restated bylaws; or
- any action asserting a claim against us that is governed by the internal affairs doctrine.
enforceability of similar choice of forum provisions in other companies' certificates of incorporation has been challenged in legal proceedings, and it is possible that, in