krys-20201231ex43_descri






Exhibit 4.3  DESCRIPTION OF COMMON STOCK  General  Our authorized capital stock consists of 80,000,000 shares of common stock, $0.00001 par value per share,  and 20,000,000 shares of preferred stock, $0.00001 par value per share. Our common stock is registered under  Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). We have no other  securities registered under Section 12 of the Exchange Act.   The following description summarizes the most important terms of our common stock. Because it is only a  summary, it does not contain all the information that may be important to you. The description is intended as a  summary, and is qualified in its entirety by reference to our second amended and restated certificate of incorporation  (our “Certificate of Incorporation”) and our amended and restated bylaws (our “Bylaws”). For a complete  description, you should refer to our Certificate of Incorporation and Bylaws.  Common Stock  Dividend Rights  The holders of our common stock are entitled to receive dividends out of funds legally available if our  board of directors, in its discretion, determines to issue dividends and then only at the times and in the amounts that  our board of directors may determine.   Voting Rights  Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote  of stockholders. We have not provided for cumulative voting for the election of directors in our Certificate of  Incorporation. Accordingly, holders of a majority of the shares of our common stock will be able to elect all of our  directors. Our Certificate of Incorporation has established a classified board of directors, divided into three classes  with staggered three-year terms. Only one class of directors will be elected at each annual meeting of our  stockholders, with the other classes continuing for the remainder of their respective three-year terms.  No Preemptive or Similar Rights  Our common stock is not entitled to preemptive rights, and is not subject to conversion, redemption or  sinking fund provisions.  Right to Receive Liquidation Distributions  Upon our liquidation, dissolution or winding-up, the assets legally available for distribution to our  stockholders would be distributable ratably among the holders of our common stock at that time, subject to prior  satisfaction of all outstanding debt and liabilities.  Anti-Takeover Provisions  The provisions of Delaware law, our Certificate of Incorporation and our Bylaws could have the effect of  delaying, deferring or discouraging another person from acquiring control of our company. These provisions, which  are summarized below, may have the effect of discouraging takeover bids. They are also designed, in part, to  encourage persons seeking to acquire control of us to negotiate first with our board of directors. We believe that the  benefits of increased protection of our potential ability to negotiate with an unfriendly or unsolicited acquirer  outweigh the disadvantages of discouraging a proposal to acquire us because negotiation of these proposals could  result in an improvement of their terms.  





 






Delaware Law  We are subject to the provisions of Section 203 of the Delaware General Corporation Law (the “DGCL”),  regulating corporate takeovers. In general, Section 203 of the DGCL prohibits a publicly held Delaware corporation  from engaging in a business combination with an interested stockholder for a period of three years following the  date on which the person became an interested stockholder unless:  • prior to the date of the transaction, the board of directors of the corporation approved either the  business combination or the transaction which resulted in the stockholder becoming an interested  stockholder;   • the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the  time the transaction commenced, excluding for purposes of determining the voting stock outstanding,  but not the outstanding voting stock owned by the interested stockholder: (i) shares owned by persons  who are directors and also officers; and (ii) shares owned by employee stock plans in which employee  participants do not have the right to determine confidentially whether shares held subject to the plan  will be tendered in a tender or exchange offer; or   • at or subsequent to the date of the transaction, the business combination is approved by the board of  directors of the corporation and authorized at an annual or special meeting of stockholders, and not by  written consent, by the affirmative vote of at least 66.67% of the outstanding voting stock that is not  owned by the interested stockholder.   Generally, a business combination includes a merger, asset or stock sale, or other transaction or series of  transactions together resulting in a financial benefit to the interested stockholder. An interested stockholder is a  person who, together with affiliates and associates, owns or, within three years prior to the determination of  interested stockholder status, did own 15% or more of a corporation’s outstanding voting stock. We expect the  existence of this provision to have an anti-takeover effect with respect to transactions our board of directors does not  approve in advance. We also anticipate that Section 203 of the DGCL may also discourage attempts that might result  in a premium over the market price for the shares of common stock held by stockholders.  Second Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws  Provisions  Our Certificate of Incorporation and our Bylaws include a number of provisions that could deter hostile  takeovers or delay or prevent changes in control of our company, including the following:  • Board of Directors Vacancies. Our Certificate of Incorporation and Bylaws authorizes only our board  of directors to fill vacant directorships, including newly created seats. In addition, the number of  directors constituting our board of directors may only be set by a resolution adopted by a majority vote  of our entire board of directors. These provisions would prevent a stockholder from increasing the size  of our board of directors and then gaining control of our board of directors by filling the resulting  vacancies with its own nominees. This makes it more difficult to change the composition of our board  of directors but promotes continuity of management.   • Classified Board. Our Certificate of Incorporation and Bylaws provide that our board of directors will  be classified into three classes of directors, each with staggered three-year terms. A third party may be  discouraged from making a tender offer or otherwise attempting to obtain control of us as it is more  difficult and time consuming for stockholders to replace a majority of the directors on a classified  board of directors.  Stockholder Action; Special Meetings of Stockholders. Our Certificate of Incorporation provides that  our stockholders may not take action by written consent, but may only take action at annual or special  meetings of our stockholders. As a result, a holder controlling a majority of our capital stock may not  amend our restated bylaws or remove directors without holding a meeting of our stockholders called in  accordance with our restated bylaws. Further, our Certificate of Incorporation and Bylaws provide that  





 






special meetings of our stockholders may be called only by a majority of our board of directors, the  chairman of our board of directors, or our Chief Executive Officer, thus prohibiting a stockholder from  calling a special meeting. These provisions might delay the ability of our stockholders to force  consideration of a proposal or for stockholders controlling a majority of our capital stock to take any  action, including the removal of directors.   • Advance Notice Requirements for Stockholder Proposals and Director Nominations. Our Bylaws  provides advance notice procedures for stockholders seeking to bring business before our annual  meeting of stockholders or to nominate candidates for election as directors at our annual meeting of  stockholders. Our Bylaws also specifies certain requirements regarding the form and content of a  stockholder’s notice. These provisions may preclude our stockholders from bringing matters before our  annual meeting of stockholders or from making nominations for directors at our annual meeting of  stockholders if the proper procedures are not followed. We expect that these provisions may also  discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s  own slate of directors or otherwise attempting to obtain control of our company.   • No Cumulative Voting. The DGCL provides that stockholders are not entitled to the right to cumulate  votes in the election of directors unless a corporation’s certificate of incorporation provides otherwise.  Our Certificate of Incorporation does not provide for cumulative voting.   • Directors Removed Only for Cause. Our Certificate of Incorporation provides that stockholders may  remove directors only for cause and only by the affirmative vote of the holders of at least two-thirds of  our outstanding common stock.   • Amendment of Charter Provisions. Any amendment of the above expected provisions in our Certificate  of Incorporation requires approval by holders of at least two-thirds of our outstanding common stock.   • Issuance of Undesignated Preferred Stock. Our board of directors has the authority, without further  action by the stockholders, to issue up to 20,000,000 shares of undesignated preferred stock with rights  and preferences, including voting rights, designated from time to time by our board of directors. The  existence of authorized but unissued shares of preferred stock will enable our board of directors to  render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender  offer, proxy contest or other means.   • Choice of Forum. Our Certificate of Incorporation provides that the Court of Chancery of the State of  Delaware will be the exclusive forum for: any derivative action or proceeding brought on our behalf;  any action asserting a breach of fiduciary duty; any action asserting a claim against us arising pursuant  to the DGCL, our Certificate of Incorporation or our Bylaws; any action to interpret, apply, enforce or  determine the validity of our Certificate of Incorporation or our Bylaws; or any action asserting a claim  against us that is governed by the internal affairs doctrine. The enforceability of similar choice of  forum provisions in other companies’ certificates of incorporation has been challenged in legal  proceedings, and it is possible that a court could find these types of provisions to be inapplicable or  unenforceable.   Transfer Agent and Registrar  The transfer agent and registrar for our common stock is Computershare Trust Company, N.A. The transfer  agent’s address is Meidinger Tower, 462 S. 4th Street, Louisville, KY 40202, and its telephone number is 1-502-601- 6000. Our shares of common stock were issued in uncertificated form only, subject to limited circumstances.  NASDAQ Capital Market Listing  Our common stock is listed on The NASDAQ Capital Market under the symbol “KRYS.”