Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
On October 10, 2017, Rhythm Pharmaceuticals, Inc.s (the Company) amended and restated certificate of incorporation (the Certificate of Incorporation) filed with the Secretary of State of the State of Delaware and its bylaws (the Bylaws) became effective in connection with the closing of the initial public offering of shares of the Companys common stock. As described in the Registration Statement on Form S-1 (File No. 333-220337), as amended, the Companys board of directors and stockholders previously approved the amendment and restatement of these documents to be effective immediately prior to the closing of the Companys initial public offering.
As amended and restated, the Certificate of Incorporation and the Bylaws contain provisions that, among other things:
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authorize 120,000,000 shares of common stock;
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delete all references to the various series of preferred stock that were previously authorized and instead create 10,000,000 shares of undesignated preferred stock with terms to be set by the board of directors, which rights could be senior to those of the common stock;
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do not provide for cumulative voting in the election of directors, which would otherwise allow less than a majority of stockholders to elect director candidates;
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require the advance notice of nominations for election to the board of directors or for proposing matters that can be acted upon at a stockholders meeting;
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allow the board of directors to alter the bylaws without obtaining stockholder approval;
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eliminate the rights of stockholders to call a special meeting of stockholders and to take action by written consent in lieu of a meeting;
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require the approval of at least 75% of the shares entitled to vote to remove a director for cause;
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require the approval of at least 75% of the shares entitled to vote to adopt, amend or repeal the Bylaws or repeal the provisions of the Certificate of Incorporation regarding the election and removal of directors;
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designate the Court of Chancery of the State of Delaware to be the sole and exclusive forum for certain actions, including, but not limited to, derivative actions or proceedings brought on behalf of the Company or actions asserting claims of breach of a fiduciary duty owed by any of the Companys directors, officers or other employees to the Company or the Companys stockholders, unless the Company consents in writing to the selection of an alternative forum; and
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establish a classified board of directors, as a result of which the successors to the directors whose terms have expired will be elected to serve from the time of election and qualification until the third annual meeting following their election.
The foregoing description of the Certificate of Incorporation and the Bylaws is qualified in its entirety by reference to (1) the Certificate of Incorporation filed as Exhibit 3.1 hereto and (2) the Bylaws filed as Exhibit 3.2 hereto, each of which is incorporated herein by reference.