DESCRIPTION OF SECURITIES REGISTERED PURSUANT TO SECTION 12
OF THE SECURITIES EXCHANGE ACT OF 1934
The common stock, par value $0.01 per share, of At Home Group Inc. (“At Home”, “the Company”, “we”, “our” and “us”) is the only class of securities of At Home registered under Section 12 of the Securities Exchange Act of 1934, as amended. The following summary of the terms of our common stock is qualified in its entirety by reference to our second amended and restated certificate of incorporation (“certificate of incorporation”) and our second amended and restated bylaws (“bylaws”), copies of which are filed as exhibits to our Annual Report on Form 10-K of which this Exhibit 4.4 is a part, and the applicable provisions of the Delaware General Corporation Law (“DGCL”).
Our authorized capital stock consists of 500,000,000 shares of common stock, par value $0.01 per share, and 50,000,000 shares of preferred stock, par value $0.01 per share. The holders of our common stock are entitled to the following rights, preferences and privileges:
Each share of common stock entitles the holder to one vote with respect to each matter presented to our stockholders on which the holders of common stock are entitled to vote. Subject to any rights that may be applicable to any then outstanding preferred stock, our common stock votes as a single class on all matters relating to the election and removal of directors on our board of directors and as provided by law, except as provided in the Stockholders' Agreement (as defined below). Holders of our common stock will not have cumulative voting rights. Except in respect of matters relating to the election of directors on our board of directors and as otherwise provided in our certificate of incorporation, Stockholders' Agreement or required by law, all matters to be voted on by our stockholders must be approved by a majority of the shares present in person or by proxy at the meeting and entitled to vote on the subject matter. In the case of election of directors, any election must be approved by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote on the election, subject to the majority voting policy contained in our Corporate Governance Guidelines, which requires any director nominee that receives a greater number of votes “withheld” than votes “for” his or her election to promptly tender his or her resignation, conditioned on acceptance by our board of directors.
In connection with our initial public offering, the Company and certain funds affiliated with AEA Investors LP (collectively, “AEA”) and Starr Investment Holdings, LLC (“Starr Investments” and, together with AEA, the “Sponsors”), entered into the Stockholders’ Agreement dated as of July 22, 2016 (the “Stockholders’ Agreement”). The Stockholders' Agreement contains, among other things, certain restrictions on the ability of such Sponsors to freely transfer shares of our stock. In addition, for so long as certain affiliates of AEA, on the one hand, and certain affiliates of Starr Investments, on the other hand, respectively in the aggregate each own at least 10% of our outstanding common stock, on a fully-diluted basis, each such Sponsor shall be entitled to nominate at least one individual for election to our board of directors, and our board of directors and nominating and corporate governance committee shall nominate and recommend to our stockholders that such individual be elected to our board of directors, and each party to the Stockholders’ Agreement agrees to vote all of their shares to elect such individual to our board of directors. The Stockholders’ Agreement terminated in fiscal 2021 immediately after affiliates of AEA sold their remaining shares of our common stock; accordingly, affiliates of our former Sponsors are no longer entitled to nominate any individuals for election to our Board under the Stockholders’ Agreement.
Subject to preferences that may be applicable to any then-outstanding shares of our preferred stock (if any), the holders of our outstanding shares of common stock are entitled to receive dividends to be paid ratably, if any, as may be declared from time to time by our board of directors (in its sole discretion) out of legally available funds. We are a holding company and substantially all of our operations are carried out by our operating subsidiaries. Our operating