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As filed with the Securities and Exchange Commission on November
12, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DYNAVAX TECHNOLOGIES CORPORATION
(Exact name of registrant as specified in its charter)
2929 Seventh Street, Suite 100
Berkeley, CA 94710-2753
(510) 848-5100
(Address, including zip code, and telephone number, including
area code, of registrants principal executive offices)
Michael S. Ostrach
Vice President, Chief Financial Officer
Dynavax Technologies Corporation
2929 Seventh Street, Suite 100
Berkeley, CA 94710-2753
(510) 848-5100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Glen Sato, Esq.
Cooley LLP
3175 Hanover Street
Palo Alto, CA 94304-1130
(650) 843-5000
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective date of this registration
statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box: ¨
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box: x
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering: ¨
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering:
¨
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, check the following box: x
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the
following box: ¨
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer,
or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company
in Rule 12b-2 of the Exchange Act.
CALCULATION OF REGISTRATION FEE
EXPLANATORY NOTE
This registration statement contains:
The base prospectus immediately follows this explanatory note.
The specific terms of any securities to be offered pursuant to the
base prospectus will be specified in a prospectus supplement to the
base prospectus. The sales agreement prospectus immediately follows
the base prospectus. The $90,000,000 of common stock that may be
offered, issued and sold under the sales agreement prospectus is
included in the securities that may be offered, issued and sold by
us under the base prospectus.
PROSPECTUS
Common Stock
Preferred Stock
Debt Securities
Warrants
From time to time, we may offer, issue and sell any combination
of the securities described in this prospectus, either individually
or in combination with other securities, at prices and on terms
described in one or more supplements to this prospectus. We may
also offer securities as may be issuable upon conversion,
redemption, repurchase, exchange or exercise of any securities
registered hereunder, including any applicable antidilution
provisions.
We will provide the specific terms of these offerings and
securities in one or more supplements to this prospectus. We also
may authorize one or more free writing prospectuses to be provided
to you in connection with these offerings. The prospectus
supplement and any related free writing prospectus also may add,
update or change information contained in this prospectus. You
should carefully read this prospectus, the applicable prospectus
supplement and any related free writing prospectus, as well as any
documents incorporated by reference, before buying any of the
securities being offered.
Our common stock is listed on the NASDAQ Capital Market under
the symbol DVAX. The last reported sale price of our common stock
on November 9, 2015 was $25.92 per share. The applicable prospectus
supplement will contain information, where applicable, as to any
other listing, if any, on the NASDAQ Capital Market or any
securities market or other exchange of the securities covered by
the applicable prospectus supplement.
Investing in our securities involves a high degree of risk. You
should review carefully the risks and uncertainties described under
the heading
Risk Factors
in the applicable prospectus supplement and any related free
writing prospectus, and under similar headings in the documents
that are incorporated by reference into this prospectus.
This prospectus may not be used to consummate a sale of any
securities unless accompanied by a prospectus supplement.
The securities may be sold directly by us to investors, through
agents designated from time to time or to or through underwriters
or dealers, on a continuous or delayed basis. For additional
information on the methods of sale, you should refer to the section
titled Plan of Distribution in this prospectus. If any agents or
underwriters are involved in the sale of any securities with
respect to which this prospectus is being delivered, the names of
such agents or underwriters and any applicable fees, commissions,
discounts and over-allotment options will be set forth in a
prospectus supplement. The price to the public of such securities
and the net proceeds that we expect to receive from such sale will
also be set forth in a prospectus supplement.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is November 12, 2015.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3
that we filed with the Securities and Exchange Commission (SEC)
utilizing a shelf registration process. Under the registration
statement of which this prospectus is a part, we may offer and sell
shares of our common stock and preferred stock, various series of
debt securities and/or warrants to purchase any of such securities,
either individually or in combination with other securities, in one
or more offerings. This prospectus provides you with a general
description of the securities that may be offered.
Each time we offer securities under this prospectus, a
prospectus supplement that will contain more specific information
about the terms of that offering will be provided. We also may
authorize one or more free writing prospectuses to be provided to
you that may contain material information relating to these
offerings. The prospectus supplement and any related free writing
prospectus that we may authorize to be provided to you also may
add, update or change any of the information contained in this
prospectus or in the documents that we have incorporated by
reference into this prospectus. We urge you to read carefully this
prospectus, any applicable prospectus supplement and any free
writing prospectuses we have authorized for use in connection with
a specific offering, together with the information incorporated
herein by reference as described under the heading Incorporation of
Certain Information by Reference, before buying any of the
securities being offered.
This prospectus may not be used to consummate a sale of
securities unless it is accompanied by a prospectus supplement.
You should rely only on the information that we have provided or
incorporated by reference in this prospectus, any applicable
prospectus supplement and any related free writing prospectus that
we may authorize to be provided to you. We have not authorized any
other person to provide you with different or additional
information. No dealer, salesperson or other person is authorized
to give any information or to represent anything not contained in
this prospectus, any applicable prospectus supplement or any
related free writing prospectus that we may authorize to be
provided to you. You must not rely on any unauthorized information
or representation. This prospectus, any applicable supplement to
this prospectus or any related free writing prospectus do not
constitute an offer to sell or the solicitation of an offer to buy
any securities other than the registered securities to which they
relate, nor do this prospectus, any applicable supplement to this
prospectus or any related free writing prospectus constitute an
offer to sell or the solicitation of an offer to buy securities in
any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction.
You should assume that the information appearing in this
prospectus, any applicable prospectus supplement or any related
free writing prospectus is accurate only as of the date on the
front of the document and that any information we have incorporated
by reference is accurate only as of the date of the document
incorporated by reference, regardless of the time of delivery of
this prospectus, any applicable prospectus supplement or any
related free writing prospectus, or any sale of a security. Our
business, financial condition, results of operations and prospectus
may have changed since those dates.
This prospectus contains and incorporates by reference market
data, industry statistics and other data that have been obtained
from, or compiled from, information made available by third
parties. We have not independently verified their data. This
prospectus and the information incorporated herein by reference
includes trademarks, service marks and trade names owned by us or
other companies. All trademarks, service marks and trade names
included or incorporated by reference into this prospectus, any
applicable prospectus supplement or any related free writing
prospectus are the property of their respective owners.
This prospectus contains summaries of certain provisions
contained in some of the documents described herein, but reference
is made to the actual documents for complete information. All of
the summaries are qualified in their entirety by the actual
documents. Copies of some of the documents referred to herein have
been filed, will be filed, or will be incorporated by reference as
exhibits to the registration statement of which this prospectus is
a part, and you may obtain copies of those documents as described
below under the section entitled Where You Can Find Additional
Information.
PROSPECTUS SUMMARY
This summary highlights selected information contained elsewhere
in this prospectus or incorporated by reference in this prospectus,
and does not contain all of the information that you need to
consider in making your investment decision. You should carefully
read the entire prospectus, the applicable prospectus supplement
and any related free writing prospectus, including the risks of
investing in our securities discussed under the heading Risk
Factors contained in the applicable prospectus supplement and any
related free writing prospectus, and under similar headings in the
other documents that are incorporated by reference into this
prospectus. You also should carefully read the information
incorporated by reference into this prospectus, including our
financial statements, and the exhibits to the registration
statement of which this prospectus is a part. Unless the context
requires otherwise, references in this prospectus to Dynavax, the
Company, we, us and our refer to Dynavax Technologies
Corporation.
About Dynavax Technologies Corporation
We are a clinical-stage biopharmaceutical company that uses
toll-like receptor (TLR) biology to discover and develop novel
vaccines and therapeutics. Our development programs are organized
under our three areas of focus: vaccine adjuvants, cancer
immunotherapy, and autoimmune and inflammatory diseases. Our lead
product candidate is HEPLISAV-B
TM, an investigational adult hepatitis B vaccine in
Phase 3 clinical development.
Through our expertise in TLR biology we have designed compounds
that stimulate multiple innate mechanisms of tumor killing along
with developing immune memory associated with antigens found in
tumors. Our lead cancer immunotherapy candidate is SD-101, a C
Class CpG TLR9 agonist that was selected for characteristics
optimal for treatment of cancer, including high interferon
induction.
We have several clinical and preclinical programs focused on
therapeutics for autoimmune and inflammatory diseases. Our most
advanced inflammatory disease candidate is AZD1419, which is
partnered with AstraZeneca AB and being developed for asthma.
We compete with pharmaceutical companies, biotechnology
companies, academic institutions and research organizations in
developing therapies to prevent or treat infectious and
inflammatory diseases and cancer.
We were incorporated in California in August 1996 under the name
Double Helix Corporation, and we changed our name to Dynavax
Technologies Corporation in September 1996. We reincorporated in
Delaware in 2000. Our principal offices are located at 2929 Seventh
Street, Suite 100, Berkeley, California 94710-2753. Our telephone
number is (510) 848-5100. Our Internet address is
www.dynavax.com
. We do not incorporate the information on our website into
this prospectus, and you should not consider it part of this
prospectus.
Dynavax Technologies and HEPLISAV-B are registered trademarks of
the Company. Each of the other trademarks, trade names or service
marks appearing in this prospectus belongs to its respective
holder. For further information regarding us and our financial
information, you should refer to our recent filings with the SEC.
See Where You Can Find More Information.
The Securities That May Be Offered
We may offer shares of our common stock and preferred stock,
various series of debt securities and/or warrants to purchase any
of such securities, either individually or in combination with
other securities from time to time under this prospectus, together
with the applicable prospectus supplement and any related free
writing prospectus, at prices and on terms to be determined by
market conditions at the time of any offering. This prospectus
provides you with a general description of the securities we may
offer. Each time we offer a type or series of securities under this
prospectus, a prospectus supplement that will describe the specific
amounts, prices and other important terms of the securities will be
provided, including, to the extent applicable:
The applicable prospectus supplement and any related free
writing prospectus that we may authorize to be provided to you may
also add, update or change any of the information contained in this
prospectus or in the documents we have incorporated by reference.
However, no prospectus supplement or free writing prospectus will
offer a security that is not registered and described in this
prospectus at the time of the effectiveness of the registration
statement of which this prospectus is a part.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF
SECURITIES UNLESS IT IS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
We may offer and sell these securities to or through one or more
agents, underwriters, dealers or other third parties. We, and our
agents or underwriters, reserve the right to accept or reject all
or part of any proposed purchase of securities. If we do offer
securities to or through agents or underwriters, we will include in
the applicable prospectus supplement:
Common stock.We may issue shares of our common stock from
time to time. The holders of our common stock are entitled to one
vote for each share held of record on all matters submitted to a
vote of stockholders. Subject to preferences that may be applicable
to any outstanding shares of preferred stock, the holders of common
stock are entitled to receive ratably such dividends as may be
declared by our board of directors out of legally available funds.
Upon our liquidation, dissolution or winding up, holders of our
common stock are entitled to share ratably in all assets legally
available for distribution to stockholders remaining after payment
of liabilities and the liquidation preferences of any outstanding
shares of preferred stock. Holders of common stock have no
preemptive rights and no right to convert their common stock into
any other securities. There are no redemption or sinking fund
provisions applicable to our common stock. When we issue shares of
common stock under this prospectus, the shares will be fully paid
and non-assessable. The rights, preferences and privileges of the
holders of common stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any series of
preferred stock which we may designate in the future. In this
prospectus, we have summarized certain general features of our
common stock under Description of Capital StockCommon Stock. We
urge you, however, to read the applicable prospectus supplement
(and any related free writing prospectus that we may authorize to
be provided to you) related to any common stock being offered.
Preferred Stock.We may issue shares of our preferred stock
from time to time, in one or more series. Under our certificate of
incorporation, our board of directors has the authority, without
further action by the stockholders (unless such stockholder action
is required by applicable law or the rules of any stock exchange or
market on which our securities are then traded), to designate and
issue up to 5,000,000 shares of preferred stock in one or more
series and to fix the privileges, preferences and rights of each
series of preferred stock, any or all of which may be greater than
the rights of the common stock. We are not offering any of the
previously designated series of preferred stock under this
prospectus. If we sell any new series of preferred stock under this
prospectus and any applicable prospectus supplement, our board of
directors will determine the designations, voting powers,
preferences and rights
of the preferred stock being offered, as well as the
qualifications, limitations or restrictions thereof, including
dividend rights, conversion rights, preemptive rights, terms of
redemption or repurchase, liquidation preferences, sinking fund
terms and the number of shares constituting any series or the
designation of any series. Convertible preferred stock may be
convertible into our common stock or exchangeable for our other
securities. Conversion may be mandatory or at the holders option
and would be at prescribed conversion rates. We will file as an
exhibit to the registration statement of which this prospectus is a
part, or will incorporate by reference from reports that we file
with the SEC, the form of the certificate of designation that
describes the terms of the series of preferred stock that we are
offering before the issuance of the related series of preferred
stock. In this prospectus, we have summarized certain general
features of the preferred stock under Description of Capital
StockPreferred Stock. We urge you, however, to read the applicable
prospectus supplement (and any related free writing prospectus that
we may authorize to be provided to you) related to the series of
preferred stock being offered, as well as the complete certificate
of designation that contains the terms of the applicable series of
preferred stock.
Debt Securities.We may issue debt securities from time to
time, in one or more series, as either senior or subordinated debt
or as senior or subordinated convertible debt. The senior debt
securities will rank equally with any other unsecured and
unsubordinated debt. The subordinated debt securities will be
subordinate and junior in right of payment, to the extent and in
the manner described in the instrument governing the debt, to all
of our senior indebtedness. Convertible debt securities will be
convertible into or exchangeable for our common stock or our other
securities. Conversion may be mandatory or at the holders option
and would be at prescribed conversion rates.
The debt securities will be issued under an indenture that we
will enter into with a national banking association or other
eligible party, as trustee. In this prospectus, we have summarized
certain general features of the debt securities under Description
of Debt Securities. We urge you, however, to read the applicable
prospectus supplement (and any related free writing prospectus that
we may authorize to be provided to you) related to the series of
debt securities being offered, as well as the complete indenture
and any supplemental indentures that contain the terms of the debt
securities. We have filed the form of indenture as an exhibit to
the registration statement of which this prospectus is a part, and
supplemental indentures and forms of debt securities containing the
terms of the debt securities being offered will be filed as
exhibits to the registration statement of which this prospectus is
a part or will be incorporated by reference from reports that we
file with the SEC.
Warrants.We may issue warrants for the purchase of common
stock, preferred stock and/or debt securities in one or more
series. We may issue warrants independently or in combination with
common stock, preferred stock and/or debt securities. In this
prospectus, we have summarized certain general features of the
warrants under Description of Warrants. We urge you, however, to
read the applicable prospectus supplement (and any related free
writing prospectus that we may authorize to be provided to you)
related to the particular series of warrants being offered, as well
as the form of warrant and/or the warrant agreement and warrant
certificate, as applicable, that contain the terms of the warrants.
We have filed the forms of the warrant agreements and forms of
warrant certificates containing the terms of the warrants that we
may offer as exhibits to the registration statement of which this
prospectus is a part. We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate
by reference from reports that we file with the SEC, the form of
warrant and/or the warrant agreement and warrant certificate, as
applicable, that contain the terms of the particular series of
warrants we are offering, and any supplemental agreements, before
the issuance of such warrants.
Warrants may be issued under a warrant agreement that we enter
into with a warrant agent. We will indicate the name and address of
the warrant agent, if any, in the applicable prospectus supplement
relating to a particular series of warrants.
RISK FACTORS
Investing in our securities involves a high degree of risk. You
should carefully review the risks and uncertainties described under
the heading Risk Factors contained in the applicable prospectus
supplement and any related free writing prospectus, and under
similar headings in the other documents that are incorporated by
reference into this prospectus, before deciding whether to purchase
any of the securities being registered pursuant to the registration
statement of which this prospectus is a part. The risks described
in these documents are not the only
ones we face, but those that we consider to be material. Each of
the risk factors could adversely affect our business, operating
results and financial condition, as well as adversely affect the
value of an investment in our securities, and the occurrence of any
of these risks might cause you to lose all or part of your
investment. Moreover, the risks described are not the only ones
that we face. Additional risks not presently known to us or that we
currently believe are immaterial may also significantly impair our
business operations. Please also read carefully the section below
titled Special Note Regarding Forward-Looking Statements.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents we file with the SEC that are
incorporated by reference in this prospectus contain
forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, which we refer to as the
Securities Act, and Section 21E of the Securities Exchange Act of
1934, as amended, which we refer to as the Exchange Act. These
statements relate to future events or to our future operating or
financial performance and involve known and unknown risks,
uncertainties and other factors that may cause our actual results,
performance or achievements to be materially different from any
future results, performances or achievements expressed or implied
by the forward-looking statements. Forward-looking statements may
include, but are not limited to, statements about:
In some cases, you can identify forward-looking statements by
terms such as may, will, should, could, would, expect, plan,
anticipate, believe, estimate, project, predict, potential, future,
intend, certain, and similar expressions intended to identify
forward-looking statements. These statements reflect our current
views with respect to future events and are based on assumptions
and subject to risks and uncertainties. Given these uncertainties,
you should not place undue reliance on these forward-looking
statements. We discuss many of these risks in greater detail under
the heading Risk Factors on page 4 of this prospectus and in our
SEC filings. Also, these forward-looking statements represent our
estimates and assumptions only as of the date of the document
containing the applicable statement.
You should read this prospectus, the documents we file with the
SEC that are incorporated by reference in this prospectus, any
applicable supplement to this prospectus and any related free
writing prospectus completely and with the understanding that our
actual future results may be materially different from what we
expect. We qualify all of the forward-looking statements in the
foregoing documents by these cautionary statements.
You should not assume that the information contained in this
prospectus is accurate as of any date other than the date on the
front of this prospectus, or that any information incorporated by
reference into this prospectus is accurate as of any date other
than the date of the document so incorporated by reference. Unless
required by law, we undertake no obligation to update or revise any
forward-looking statements to reflect new information or future
events or developments. Thus, you should not assume that our
silence over time means that actual events are bearing out as
expressed or implied in such forward-looking statements.
USE OF PROCEEDS
Except as described in any prospectus supplement or in any
related free writing prospectus that we may authorize to be
provided to you, we currently intend to use the net proceeds from
the sale of the securities offered by us hereunder primarily for
research, development, manufacturing, and commercialization of
product candidates, and for other general corporate purposes.
Pending these uses, we expect to invest the net proceeds in
short-term, interest-bearing securities.
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS TO EARNINGS
Our earnings were insufficient to cover fixed charges and
combined fixed charges and preferred stock dividends for each of
the periods presented. Accordingly, the following table sets forth
the deficiency of earnings to fixed charges for each of the periods
presented. Because of the deficiency, ratio information is not
applicable. Amounts shown are in thousands.
For purposes of computing the deficiency of earnings available
to cover fixed charges and combined fixed charges and preferred
stock dividends, fixed charges represent interest expense on
indebtedness and the portion of operating lease rental expense that
is considered by us to be representative of interest. Deficiency of
earnings consists of loss from operations before income taxes and
fixed charges.
As of September 30, 2015, there were 5,000,000 shares of
preferred stock authorized.
DESCRIPTION OF CAPITAL STOCK
General
Our authorized capital stock consists of 69,500,000 shares of
common stock, $0.001 par value per share, and 5,000,000 shares of
preferred stock, $0.001 par value per share, 450,000 shares of
which has been designated as Series A Junior Participating
Preferred. As of November 9, 2015, there were 38,425,277 shares of
our common stock outstanding and no shares of preferred stock
outstanding.
The following summary description of our capital stock is based
on the provisions of our amended and restated certificate of
incorporation, or certificate of incorporation, and amended and
restated bylaws, or bylaws, and the applicable provisions of the
Delaware General Corporation Law (Delaware Law). This information
is qualified entirely by reference to the applicable provisions of
our certificate of incorporation, bylaws and Delaware Law. For
information on how to obtain copies of our amended and restated
certificate of incorporation and bylaws, which are exhibits to the
registration statement of which this prospectus is a part, see the
section entitled Where You Can Find Additional Information in this
prospectus.
Common Stock
Voting Rights.Each holder of common stock is entitled to one
vote for each share on all matters submitted to a vote of the
stockholders, including the election of directors. Our certificate
of incorporation and bylaws do not provide for cumulative voting
rights. Because of this, the holders of a majority of the shares of
common stock entitled to vote in any election of directors can
elect all of the directors standing for election, if they should so
choose.
Dividends.Subject to preferences that may be applicable to
any then outstanding preferred stock, holders of common stock are
entitled to receive dividends, if any, as may be declared from time
to time by our board of directors out of legally available
funds.
Liquidation.In the event of our liquidation, dissolution or
winding up, holders of common stock will be entitled to share
ratably in the net assets legally available for distribution to
stockholders after the payment of all of our debts and other
liabilities and the satisfaction of any liquidation preference
granted to the holders of any then outstanding shares of preferred
stock.
Rights and Preferences.Holders of common stock have no
preemptive, conversion or subscription rights, and there are no
redemption or sinking fund provisions applicable to the common
stock. The rights, preferences and privileges of the holders of
common stock are subject to, and may be adversely affected by, the
rights of the holders of shares of any series of preferred stock
which we may designate in the future.
Fully Paid and Nonassessable.All of our outstanding shares
of common stock are, and the shares of common stock to be issued in
this offering, if any, will be, fully paid and nonassessable.
Preferred Stock
Pursuant to our certificate of incorporation, our board of
directors has the authority, without further action by the
stockholders (unless such stockholder action is required by
applicable law or the rules of any stock exchange or market on
which our securities are then traded), to designate and issue up to
5,000,000 shares of preferred stock in one or more series, to
establish from time to time the number of shares to be included in
each such series, to fix the designations, voting powers,
preferences and rights of the shares of each wholly unissued
series, and any qualifications, limitations or restrictions
thereof, and to increase or decrease the number of shares of any
such series, but not below the number of shares of such series then
outstanding.
We will fix the designations, voting powers, preferences and
rights of the preferred stock of each series, as well as the
qualifications, limitations or restrictions thereof, in a
certificate of designation relating to that series. We will file as
an exhibit to the registration statement of which this prospectus
is a part, or will incorporate by reference from reports that we
file with the SEC, the form of any certificate of designation that
describes the terms of the series of preferred stock we are
offering before the issuance of that series of preferred stock.
This description will include:
Delaware Law provides that the holders of preferred stock will
have the right to vote separately as a class (or, in some cases, as
a series) on an amendment to our certificate of incorporation if
the amendment would change the par value or, unless the certificate
of incorporation provided otherwise, the number of authorized
shares of the class or change the powers, preferences or special
rights of the class or series so as to adversely affect the class
or series, as the case may be. This right is in addition to any
voting rights that may be provided for in the applicable
certificate of designation.
Our board of directors may authorize the issuance of preferred
stock with voting, exchange or conversion rights that could
adversely affect the voting power or other rights of the holders of
our common stock. Preferred stock could be issued quickly with
terms designed to delay or prevent a change in control of our
company or make removal of management more difficult. Additionally,
the issuance of preferred stock may have the effect of decreasing
the market price of our common stock.
Rights Agreement
On November 5, 2008, we entered into a Rights Agreement with
Mellon Investor Services LLC (now Computershare Limited) under
which one preferred share purchase right was distributed on
November 17, 2008 for each share of common stock held on that date.
No certificates for the rights will be issued unless a person or
group, subject to certain exceptions, acquires or makes a tender
offer to purchase 20% or more of our common stock. Each right
entitles the registered stockholder to purchase from us, upon such
event, one one-hundredth of a share of Series A Junior
Participating Preferred Stock, par value $0.001 per share, at a
price of $6.00 per one one-hundredth of a preferred share, subject
to adjustment. Each preferred share has designations and powers,
preferences and rights, and the qualifications, limitations and
restrictions designed to make it the economic equivalent of one
hundred shares of common stock. The rights expire on November 18,
2018, and are subject to redemption at a price of $0.001 in
specified circumstances.
Anti-Takeover Effects of Provisions of Our Amended and Restated
Certificate of Incorporation and Bylaws
Our certificate of incorporation and bylaws provide for our
board of directors to be divided into three classes, with staggered
three-year terms. Only one class of directors is elected at each
annual meeting of our stockholders, with the other classes
continuing for the remainder of their respective three-year terms.
Because our stockholders do not have cumulative voting rights, our
stockholders representing a majority of the shares of common stock
outstanding will be able to elect all of our directors due to be
elected at each annual meeting of our stockholders. In addition,
our certificate of incorporation provides that vacancies on our
board of directors resulting from death, resignation,
disqualification, removal or other causes may be filled by the
affirmative vote of a majority of the remaining directors in
office, even if less than a quorum, and that newly created
directorships shall be filled by the affirmative vote of a majority
of the directors then in office, even if less than a quorum, unless
our board of directors
determines otherwise. Our bylaws provide that all stockholder
action must be effected at a duly called meeting of stockholders
and not by a consent in writing, and that only the chairman of our
board, our president, our secretary or a majority of the authorized
number of directors may call a special meeting of stockholders. Our
certificate of incorporation requires a 66-2/3% stockholder vote
for the amendment, repeal or modification of certain provisions of
our certificate of incorporation relating to, among other things,
the classification of our board of directors and filling of
vacancies on our board of directors. Our certificate of
incorporation and bylaws also require a 66-2/3% stockholder vote
for the stockholders to adopt, amend or repeal certain provisions
of our bylaws relating to stockholder proposals at annual meetings,
director nominees and the number and term of office of
directors.
The combination of the classification of our board of directors,
the lack of cumulative voting and the 66-2/3% stockholder voting
requirements will...
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