DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock and provisions of our amended and restated certificate of incorporation (the Certificate
of Incorporation and amended and restated bylaws (the Bylaws) are summaries and are qualified by reference to our Certificate of Incorporation and Bylaws.
Our authorized capital stock consists of 400,000,000 shares of common stock, $0.001 par value per share and 20,000,000 shares of preferred
stock, $0.001 par value per share. As of February 12, 2021, there were 118,545,523 shares of common stock and no shares of preferred stock outstanding.
Common Stock
Subject to the rights of
the holders of any series of preferred stock, the holders of shares of common stock are entitled to one vote per share held on all matters submitted to a vote at a meeting of stockholders. Each stockholder may exercise its vote either in person or
by proxy. Subject to any preferences to which holders of shares of preferred stock may be entitled, the holders of outstanding shares of common stock are entitled to receive ratably the dividends, if any, as may be declared from time to time by the
Board of Directors out of funds legally available therefor. In the event that we liquidate, dissolve or wind up, the holders of outstanding shares of common stock are entitled to share ratably in all of our assets which are legally available for
distribution to stockholders, subject to the prior rights on liquidation of creditors and to preferences, if any, to which holders of shares of preferred stock may be entitled. The holders of outstanding shares of common stock do not have any
preemptive, subscription, redemption or sinking fund rights. The outstanding shares of common stock are, and upon issuance and sale as contemplated hereby the shares to be issued in the offering will be, duly authorized, validly issued, fully paid
and nonassessable.
Preferred Stock
Our Certificate of Incorporation authorizes us to issue up to 20,000,000 shares of preferred stock, in one or more series and containing the
rights, privileges and limitations, including dividend rights, voting rights, conversion privileges, redemption rights, liquidation rights or sinking fund rights, as may from time to time be determined by our Board of Directors. Preferred stock may
be issued in the future in connection with acquisitions, financings or other matters as the Board of Directors deems to be appropriate. In the event that any shares of preferred stock shall be issued, a certificate of designations, setting forth the
series of the preferred stock and the relative rights, privileges and limitations with respect thereto, is required to be filed with the Secretary of State of the State of Delaware. The effect of having preferred stock authorized is that our Board
of Directors alone, within the bounds of and subject to the federal securities laws and the Delaware General Corporation Law, may be able to authorize the issuance of preferred stock, which may adversely affect the voting and other rights of holders
of common stock. The issuance of preferred stock may also have the effect of delaying or preventing a change in control of our company.
Registration
Rights Agreements
On May 30, 2003, we entered into a registration rights agreement, as amended on February 18, 2013 with
Mitchell P. Rales and Steven M. Rales (the 2003 Registration Rights Agreement). On January 24, 2012, we entered into registration rights agreements with Mitchell P. Rales, Steven M. Rales and Markel in connection with the issuance
and sale of (i) 2,170,139 shares of common stock to Mitchell P. Rales, (ii) 2,170,139 shares of common stock to Steven M. Rales and (iii) 1,085,070 shares of common stock to Markel (the 2012 Registration Rights Agreements, and together
with the 2003 Registration Rights Agreement, the Registration Rights Agreements). The Investors have registration rights with respect to these shares of common stock, to the extent still beneficially owned by each of the Investors, under
the Registration Rights Agreements as follows:
Shelf Registration and Demand Registration
The Investors have shelf registration rights under the Registration Rights Agreements. Under the 2003 Registration Rights Agreement, holders of
at least 30% of the registrable shares covered by the 2003 Registration Rights Agreement can, under certain conditions, request that we file up to two registration statements registering all or a portion of their registrable shares, provided that
the net offering price for such registration is at least $5,000,000. Under the 2012 Registration Rights Agreements, we were required, no later than three months after January 24, 2012, to file a registration statement covering the resale of the
registrable shares covered by the 2012 Registration Rights Agreements and to use reasonable best efforts to keep such a registration statement continuously effective. If we do not maintain the effectiveness of the shelf registration statement, the
Investors each may require us to register the number of registrable securities beneficially owned by such Investors or any permitted transferees of registrable securities under the Securities Act, subject to certain limitations.
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