Document

EXHIBIT 4.2
DESCRIPTION OF THE REGISTRANT’S SECURITIES
REGISTERED PURSUANT TO SECTION 12 OF THE
SECURITIES EXCHANGE ACT OF 1934


As of the date of the Annual Report on Form 10-K of which this Exhibit 4.2 is a part, Express, Inc. (“Company,” “we,” “us” and “our”) had one class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”): our common stock, par value $0.01 per share.


The following description is a summary and does not purport to be complete. It is subject to and qualified in its entirety by reference to the actual terms and provisions contained in our Certificate of Incorporation, as amended (the “Certificate of Incorporation”), our Amended and Restated Bylaws (the “Bylaws”), and the Rights Agreement (as defined below), each of which are incorporated by reference as an exhibit to the Annual Report on Form 10-K of which this Exhibit 4.2 is a part. We encourage you to read our Certificate of Incorporation, our Bylaws and the applicable provisions of the Delaware General Corporation Law (“DGCL”) for additional information.


DESCRIPTION OF CAPITAL STOCK


Authorized Shares of Capital Stock


Our authorized capital stock consists of 500.0 million shares of common stock, par value $0.01 per share (the “Common Stock”), and 10.0 million shares of preferred stock, par value $0.01 per share (the “Preferred Stock”). No shares of Preferred Stock have been issued. 


Common Stock 


Voting Rights 


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. Holders of our Common Stock will not have cumulative voting rights. At a meeting of the stockholders at which a quorum is present, except in respect of matters relating to the election and removal of directors on our board of directors and as otherwise provided in our Certificate of Incorporation, the rules of any stock exchange on which our Common Stock is listed 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, when a quorum is present, a nominee for director will be elected if a majority of the votes casts are for the nominee’s election, except that nominees for director shall be elected by a plurality of the votes cast at a meeting of the stockholders for which: (i) the Secretary of the Company receives a notice that a stockholder has nominated a person for election to the board of directors in compliance with the advance notice provisions set forth in the Bylaws and (ii) such nomination was not withdrawn by such stockholder on or prior to the tenth day preceding the date the Company first mails its notice of such meeting of the stockholders. If directors are to be elected by a plurality of the votes cast, stockholders are not permitted to vote against a nominee for director. In the case of removal of directors, a director may be removed for office only for cause and by an affirmative vote of the holders of at least 66 2/3% percent of the voting shares of Common Stock entitled to vote generally in the election of directors. 










Dividend Rights 


Subject to preferences that may be applicable to any then outstanding Preferred Stock, the holders of our outstanding shares of Common Stock are entitled to receive dividends, if any, as may be declared from time to time by our board of directors out of legally available funds. Because we are a holding company, our ability to pay dividends on our Common Stock is limited by restrictions on the ability of our subsidiaries to pay dividends or make distributions to us, including restrictions under the terms of the agreements governing our indebtedness. 


Liquidation Rights 


In the event of any voluntary or involuntary liquidation, dissolution or winding up of our affairs, holders of our Common Stock would be entitled to share ratably in our assets that are legally available for distribution to stockholders after payment of our debts and other liabilities. If we have any Preferred Stock outstanding at such time, holders of the Preferred Stock may be entitled to distribution and/or liquidation preferences. In either such case, we must pay the applicable distribution to the holders of our Preferred Stock before we may pay distributions to the holders of our Common Stock. 


Stockholder Rights Agreement


            On April 20, 2020, our board of directors declared a dividend of one preferred share purchase right (a “Right”), payable on April 30, 2020, for each share of Common Stock of the Company outstanding on April 30, 2020 to the stockholders of record on that date, and one Right will be issued for each new share of Common Stock issued thereafter. In connection with the distribution of the Rights, the Company entered into a Rights Agreement, dated as of April 20, 2020, between the Company and Computershare Trust Company, N.A., as rights agent, as may be amended from time to time (the “Rights Agreement”). Each Right entitles the registered holder to purchase from the Company one one-thousandth of a share of Series A Preferred Stock, par value $0.01 per share (the “Series A Stock”), of the Company at a price of $12.25 per one one-thousandth of a share of Series A Stock represented by a Right, subject to adjustment as provided in the Rights Agreement.


            The Rights will initially trade with the Common Stock and will generally become exercisable only if any person (or any persons acting as a group) acquires 10% (or 20% in the case of certain passive investors) or more of the Company’s outstanding Common Stock. In the event the Rights become exercisable, each holder of a Right, other than the triggering person, will be entitled to purchase additional shares of Common Stock at a 50% discount or the Company may exchange each Right held by such holders for one share of Common Stock. Existing 10% or greater stockholders are grandfathered in to the extent of their April 21, 2020 ownership levels. 


            The Rights have no voting or dividend privileges, and, unless and until they become exercisable, have no dilutive effect on the earnings of the Company. The Rights will expire on April 19, 2021, unless earlier amended, redeemed or terminated by the Company, as provided in the Rights Agreement.


Other Rights 


Our stockholders have no preemptive, conversion or other rights to subscribe for additional shares. All of the outstanding shares of our Common Stock are fully paid and nonassessable. The rights, preferences and privileges of the holders of our Common Stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of our Preferred Stock that we may designate and issue in the future. Our common stock is not subject to redemption by operating of a sinking fund or otherwise.


Listing 


Our Common Stock is listed on the New York Stock Exchange under the symbol “EXPR.” 










Transfer Agent and Registrar 


The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.


CERTAIN PROVISIONS OF DELAWARE LAW AND 
OUR CERTIFICATE OF INCORPORATION AND BYLAWS


Our Certificate of Incorporation and Bylaws also contain provisions that may delay, defer or discourage another party from acquiring control of us. We expect that these provisions, which are summarized below, will discourage coercive takeover practices or inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors, which we believe may result in an improvement of the terms of any such acquisition in favor of our stockholders. However, they also give our board of directors the power to discourage acquisitions that some stockholders may favor. 


Undesignated Preferred Stock 


The ability to authorize undesignated preferred stock will make it possible for our board of directors to issue preferred stock with super voting, special approval, dividend or other rights or preferences on a discriminatory basis that could impede the success of any attempt to acquire us. These and other provisions may have the effect of deferring, delaying or discouraging hostile takeovers, or changes in control or management of our company.


Classified Board of Directors 


Our Certificate of Incorporation provides that our board of directors will be divided into three classes, with each class serving three-year staggered terms. In addition, our Certificate of Incorporation provides that directors may only be removed from the board of directors for cause and by an affirmative vote of 66 2/3% of our Common Stock. These provisions may have the effect of deferring, delaying or discouraging hostile takeovers, or changes in control or management of our company. 


Requirements for Advance Notification of Stockholder Meetings, Nominations and Proposals 


Our Certificate of Incorporation and Bylaws also provide that, except as otherwise required by law, special meetings of our stockholders can only be called by a resolution adopted by the affirmative vote of the majority of the directors then in office. Our Bylaws prohibit the conduct of any business at a special meeting other than as specified in the notice for such meeting. In addition, any stockholder who wishes to bring business before an annual meeting or nominate directors must comply with the notice requirements set forth in our Bylaws. These provisions may have the effect of deferring, delaying or discouraging hostile takeovers, or changes in control or management of our company. 


Stockholder Action by Written Consent


Pursuant to Section 228 of the DGCL, any action required to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote if a consent or consents 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 that would be necessary to authorize or take such action at a meeting at which all shares of stock entitled to vote thereon were present and voted, unless the company’s certificate of incorporation provides otherwise. Our Certificate of Incorporation provides that any action required or permitted to be taken by our stockholders may be effected at a duly called annual or special meeting of our stockholders and may not be effected by consent in writing by such stockholders. 










Business Combinations with Interested Stockholders 


            We have elected in our Certificate of Incorporation not to be subject to Section 203 of the DGCL, an antitakeover law. In general, Section 203 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 corporation’s voting stock 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. Accordingly, we are not subject to any antitakeover effects of Section 203. However, our Certificate of Incorporation contains provisions that have the same effect as Section 203, except that they provide that Golden Gate Private Equity, Inc. and any persons to whom Golden Gate Private Equity, Inc. sells their common stock will be deemed to have been approved by our board of directors, and thereby not subject to the restrictions set forth in Section 203.


Supermajority Stockholder Vote Required for Certain Actions 


            The DGCL provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation or bylaws, unless the corporation’s certificate of incorporation or bylaws, as the case may be, requires a greater percentage. Any amendments to the foregoing provisions of our Certificate of Incorporation (except related to Preferred Stock) and any amendments to our Bylaws require the affirmative vote of at least 66 2/3% of the voting power of all shares of our Common Stock then outstanding, and any amendments to Article Ten of our Certificate of Incorporation require the affirmative vote of at least 80% of the voting power of all shares of our Common Stock then outstanding.