DESCRIPTION OF THE REGISTRANT’S SECURITIES REGISTERED PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934
DESCRIPTION OF THE REGISTRANTS SECURITIES
REGISTERED PURSUANT TO SECTION 12 OF THE
SECURITIES EXCHANGE ACT OF 1934
Henry Schein, Inc. (Henry Schein or the Company) has one class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended (the Exchange Act): the Companys common stock, par value $0.01 per share (Common Stock).
Description of Common Stock
The following summary description sets forth some of the general terms and provisions of the Common Stock. Because this is a summary description, it does not contain all of the information that may be important to you. For a more detailed description of the Companys Common Stock, you should refer to the provisions of the Companys Second Amended and Restated Certificate of Incorporation (the Certificate of Incorporation) and the Companys Second Amended and Restated By-Laws (the By-Laws), each of which is an exhibit to the Annual Report on Form 10-K to which this description is an exhibit.
Authorized Capital Shares
Under the Certificate of Incorporation, Henry Schein is authorized to issue up to 481,000,000 shares, consisting of (i) 480,000,000 shares of Common Stock, and (ii) 1,000,000 shares of preferred stock, having a par value of $0.01 per share.
Henry Scheins board of directors (the Board) may declare dividends (out of funds legally available therefor) upon the shares of Henry Schein (as and when the Board determines) at any regular or special meeting of the Board.
Each holder of shares of Common Stock is entitled to one vote in respect of each share held. The affirmative vote of 80% or more of all outstanding stock of Henry Schein is required for the amendment of this voting rights provision in the Certificate of Incorporation. Cumulative voting is not permitted.
Liquidation, Dissolution or Similar Rights
Subject to the rights of holders of outstanding shares of preferred stock, if any, holders of Common Stock will share ratably in all assets legally available for distribution to our shareholders in the event of a liquidation, dissolution or winding up of the affairs of the Company.
The Certificate of Incorporation provides that no holder of stock of any class is entitled to any preemptive right to subscribe for or purchase any shares of Henry Schein stock. The Common Stock is not redeemable, is not subject to sinking fund provisions, does not have any conversion rights and is not subject to call.
Antitakeover Statute; Business Combinations
Henry Schein has not opted-out of (and is thus subject to) the business combination prohibition under Section 203 of the Delaware General Corporation Law (the DGCL). In general, Section 203 of the DGCL prohibits a publicly held Delaware corporation from engaging in a business combination, such as a merger, with a person or group owning 15% or more of the corporations voting stock (an Interested Stockholder) for a period of three years following the date the person became an Interested Stockholder, unless (with certain exceptions) the business combination or the transaction in which the person became an Interested Stockholder is approved in a prescribed manner.
Approval of Certain Transactions; Protective Provisions
If stockholder approval is required (i) for the adoption of a merger or consolidation agreement, or (ii) to authorize any sale, lease, transfer or exchange of all or substantially all of the assets of Henry Schein, then the affirmative vote of 60% or more of the outstanding stock of Henry Schein entitled to vote thereon is required to approve the relevant action.
The affirmative vote of 60% or more of all outstanding stock of Henry Schein entitled to vote thereon is required for the amendment of the provision above.
Ability to Call Special Meetings of Stockholders
Subject to the rights of any series of Henry Schein preferred stock, special meetings of stockholders may be called by (i) the chairman of the Board or (ii) resolution adopted by the affirmative vote of a majority of the Board, and will be called at the request of stockholders holding more than 10% of the voting power of the outstanding shares entitled to vote in the election of directors.
Advance Notice Procedures Required for Stockholder Proposals
The By-Laws sets forth advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations made by or at the direction of the Board or a committee of the Board.
Stockholder Action by Written Consent
Any action required or permitted to be taken by Henry Schein stockholders at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes necessary to take such action at a meeting at which all shares entitled to vote thereon were present and voted.
The Certificate of Incorporation provides that, whenever a compromise or arrangement is proposed between Henry Schein and its creditors or any class of them and/or between Henry Schein and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application of (i) Henry Schein, (ii) any creditor or stockholder thereof, (iii) any receiver or receivers appointed for Henry Schein under the provisions of Section 291 of Title 8 of the DGCL, (iv) trustees in dissolution, or (v) any receiver or receivers appointed for Henry Schein under the provisions of Section 279 of Title 8 of the DGCL, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of Henry Schein, as the case may be, to be summoned in such manner as the court directs.
If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of Henry Schein, as the case may be, agree to any compromise or arrangement and to any reorganization of Henry Schein as a consequence of such compromise or arrangement, the compromise or arrangement and the reorganization will, if sanctioned by the court to which the application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of Henry Schein, as the case may be, and also on Henry Schein.
Forum Selection Provision
Unless Henry Schein consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware, to the fullest extent permitted by law, will be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of Henry Schein, (ii) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, other employee or stockholder of Henry Schein to Henry Schein or Henry Scheins stockholders, (iii) any action asserting a claim arising under the DGCL, the Certificate of Incorporation or the By-Laws or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware, or (iv) any action asserting a claim governed by the internal affairs doctrine.