DESCRIPTION OF EVERSPIN TECHNOLOGIES, INC. COMMON STOCK
The following is a description of the common stock, $0.0001 par value (the “Common Stock”), of Everspin Technologies, Inc. (the “Company”), which is the only security of the Company registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
The Company’s authorized capital stock consists of 100,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, $0.0001 par value per share. The shares of preferred stock are undesignated, and the rights, preferences, privileges and restrictions may be designated from time to time by the Company’s Board of Directors (the “Board”).
The following description summarizes selected information regarding the Common Stock, as well as relevant provisions of (i) the Company’s Amended and Restated Certificate of Incorporation, as amended and currently in effect (as so amended, the “Certificate of Incorporation”), (ii) the Company’s Amended and Restated Bylaws, as currently in effect (the “Bylaws”), and (iii) the Delaware General Corporation Law (the “DGCL”). The following summary description of the Common Stock of the Company is qualified in its entirety by reference to the provisions of the Certificate of Incorporation and Bylaws, each of which is incorporated by reference as an exhibit to the Company’s Annual Report on Form 10-K of which this Exhibit 4.3 is a part, and the applicable provisions of the DGCL.
Voting Rights. Each holder of Common Stock is entitled to one vote for each share of Common Stock held on all matters submitted to a vote of stockholders, except as otherwise expressly provided in the Certificate of Incorporation or required by applicable law. Cumulative voting for the election of directors is not provided for in the Certificate of Incorporation, which means that the holders of a majority of the shares of Common Stock can elect all of the directors then standing for election.
Dividends and Distributions. Subject to preferences that may apply to any shares of preferred stock outstanding at the time, the holders of outstanding shares of Common Stock are entitled to receive dividends out of funds legally available at the times and in the amounts that the Board may determine.
Liquidation Rights. Upon the liquidation, dissolution or winding-up of the Company, the assets legally available for distribution to the holders of Common Stock would be distributable ratably among the holders of Common Stock and any participating preferred stock outstanding at that time after payment of liquidation preferences, if any, on any outstanding shares of preferred stock and payment of other claims of creditors.
The rights, preferences, and privileges of holders of Common Stock are subject to, and may be adversely affected by, the rights of holders of shares of any series of preferred stock that the Board may designate and issue in the future.
Preemptive or Similar Rights. The Common Stock is not entitled to preemptive rights and is not subject to conversion, redemption or sinking fund provisions.
Anti-Takeover Effects of Provisions of the Certificate of Incorporation and Bylaws and Delaware General Corporation Law
Certificate of Incorporation and Bylaws
The Certificate of Incorporation and the Bylaws contain provisions that may make the acquisition of the Company more difficult, including, but not limited to, the following:
|the Board has the right to expand the size of the Board and to elect directors to fill a vacancy created by the expansion of the Board or the resignation, death or removal of a director, which prevents stockholders from being able to fill vacancies on the Board;
|the Company’s stockholders may not act by written consent or call special stockholders’ meetings; as a result, a holder, or holders, controlling a majority of the Company’s capital stock would not be able to take certain actions other than at annual stockholders’ meetings or special stockholders’ meetings called by the Board pursuant to a resolution adopted by a majority of the total number of authorized directors, the chairman of the Board or the Company’s chief executive officer;
|the Certificate of Incorporation prohibits cumulative voting in the election of directors, which limits the ability of minority stockholders to elect director candidates;