Proxy Statement (Form DEF 14A)

 ☐

Preliminary Proxy Statement

 ☐

Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

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Definitive Proxy Statement

 ☐

Definitive Additional Materials

 ☐

Soliciting Material under §240.14a-12

 

FORIAN INC.

(Name of Registrant as Specified in Its Charter)

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

 

☒

No fee required.

 ☐

Fee paid previously with preliminary materials.

 ☐

Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14(a)-6(i)(1) and 0-11.

1.

Proposal 1 - A proposal to redomicile from the State of Delaware to the State of Maryland through a statutory conversion.

2.

Proposal 2 - To approve one or more adjournments of the Special Meeting, if necessary, to solicit proxies if there are insufficient votes at the time of the Special Meeting to approve Proposal 1.

 

 

 

 

 

 

Page

PROXY STATEMENT

 

 

1

QUESTIONS AND ANSWERS ABOUT THE PROXY MATERIALS AND THE SPECIAL MEETING

 

 

1

PROPOSAL 1: THE REDOMICILIATION PROPOSAL

 

 

6

PROPOSAL 2: APPROVAL OF ONE OR MORE ADJOURNMENTS OF THE SPECIAL MEETING, IF NECESSARY, TO SOLICIT ADDITIONAL PROXIES IF THERE ARE INSUFFICIENT VOTES AT THE TIME OF THE SPECIAL MEETING TO APPROVE PROPOSAL 1

 

 

36

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS, DIRECTORS AND OFFICERS

 

 

37

STOCKHOLDER PROPOSALS AND DIRECTOR NOMINATIONS FOR 2026 ANNUAL MEETING OF STOCKHOLDERS

 

 

39

DELIVERY OF DOCUMENTS TO STOCKHOLDERS SHARING AN ADDRESS

 

 

40

OTHER BUSINESS

 

 

41

APPENDIX A: REDOMICILIATION RESOLUTIONS

 

 

A-1

APPENDIX B: PLAN OF CONVERSION

 

 

B-1

APPENDIX C: MARYLAND ARTICLES OF INCORPORATION OF FORIAN INC.

 

 

C-1

APPENDIX D: MARYLAND BYLAWS OF FORIAN INC.

 

 

D-1

 

 

 

 

Q:

Why am I receiving these materials?

A:

You have received these proxy materials because our Board is soliciting your proxy to vote your shares at the Special Meeting. This Proxy Statement includes information that we are required to provide to you under Securities and Exchange Commission ("SEC") rules and is designed to assist you in voting your shares.

Q:

What is included in these materials?

A:

These materials include:

•

this Proxy Statement for the Special Meeting; and

•

a proxy card for the Special Meeting.

Q:

Who is entitled to vote?

A:

Only stockholders of record as of December 2, 2025 (the "Record Date") shall be entitled to notice of, and to vote at, the Special Meeting. During the ten days before the Special Meeting, you may inspect a list of stockholders eligible to vote. If you would like to inspect the list, please contact our Secretary at 267-376-0525 or [email protected] to arrange a visit to our offices. The list will also be available during the Special Meeting at www.virtualshareholdermeeting.com/FORA2026SM.

Q:

How many shares of common stock can vote?

A:

There were 31,072,252 shares of common stock, par value $0.001 per share ("Common Stock"), of the Company outstanding as of the Record Date. Each stockholder entitled to vote at the Special Meeting may cast one vote for each share of Common Stock owned by such stockholder that has voting power upon each matter considered at the Special Meeting.

Q:

What may I vote on?

A:

You may vote on the following matters:

1.

to redomicile from the State of Delaware to the State of Maryland through a statutory conversion; and

2.

to approve one or more adjournments of the Special Meeting, if necessary, to solicit proxies if there are insufficient votes at the time of the Special Meeting to approve Proposal 1.

Q:

Will any other business be presented for action by stockholders at the Special Meeting?

A:

Management knows of no business that will be presented at the Special Meeting other than Proposals 1 and 2. If any other matter properly comes before the Special Meeting, the persons named as proxies in the accompanying proxy card intend to vote the proxies (which confer discretionary authority to vote on such matters) in accordance with their judgment on the matter.

Q:

How does our Board recommend that I vote on each of the proposals?

A:

Our Board, acting upon the recommendation of the Special Committee, recommends a vote "FOR" the approval of resolutions regarding the redomiciliation of the Company from the State of Delaware to the State of Maryland through a statutory conversion and "FOR" any one or more adjournments of the Special Meeting, if necessary, to solicit proxies if there are insufficient votes at the time of the Special Meeting to approve Proposal 1.

Q:

Why is the Board proposing that the Company redomicile from the State of Delaware to the State of Maryland?

A:

The Board believes the Plan of Conversion (as defined below) (including the Articles of Incorporation and the Bylaws attached thereto) and the transactions contemplated thereby, including the Redomiciliation (as defined below), are advisable and are fair to, and in the best interests of, the Company and the Unaffiliated Stockholders (as defined below). The Redomiciliation will allow the Company to fully consider the Take-Private Offer (as defined below) and any other potential strategic transactions. For further details on why the Board is proposing the Redomiciliation, see "Reasons for the Redomiciliation; Recommendations of the Special Committee and the Board" below. Based solely on the information included in the most recently available Schedule 13D/A filed with the SEC on October 2, 2025, by 2025 Acquisition Corporation and the members of the Consortium (as defined below), the Consortium in the aggregate is the beneficial owner of 20,654,385 shares of Common Stock, constituting 66.5% of the outstanding Common Stock. For more information on the Consortium, see Footnote 14 in "Security Ownership of Certain Beneficial Owners, Directors and Officers." As such, if the members of the Consortium vote in favor of Proposal 1, approval by the shareholders of Proposal 1 is ensured.

Q:

How do I vote my shares?

A:

The answer depends on whether you own your shares of Common Stock of the Company directly (that is, you hold shares that show your name as the registered stockholder) or if your shares are held in a brokerage account or by another nominee holder.

○

If you wish to vote by Internet, go to http://www.proxyvote.com to complete an electronic proxy card. You will be asked to provide the company number and control number from the proxy card provided to you. Your Internet vote must be received by 11:59 p.m. Eastern Time on January 7, 2026, to be counted. Please be aware that you must bear any costs associated with your Internet access, such as usage charges from Internet access providers and telephone companies.

○

If you wish to vote by telephone, dial toll-free 800-690-6903 using a touch-tone phone and follow the recorded instructions. You will be asked to provide the company number and control number from the proxy card. Your telephone vote must be received by 11:59 p.m. Eastern Time on January 7, 2026, to be counted.

○

If you wish to vote by mail, simply complete, sign and date the proxy card that may be delivered and return it promptly in the envelope provided. If you return your signed proxy card to us before the Special Meeting, we will vote your shares as you direct.

○

If you sign your proxy card but do not indicate how you wish to vote, the proxies will vote your shares in accordance with the Board's recommendation of "FOR" for the redomiciliation from the State of Delaware to the State of Maryland through a statutory conversion, "FOR" the proposal to approve one or more adjournments of the Special Meetings, if necessary, to solicit proxies if there are insufficient votes at the time of the Special Meeting to approve Proposal 1, and, in their discretion, on any other matter that properly comes before the Special Meeting. Unsigned proxy cards will not be counted.

○

If you wish to vote at the Special Meeting, attend the live webcast at www.virtualshareholdermeeting.com/FORA2026SM and use your 16-digit control number included on the proxy card or in the instructions that accompany your proxy materials.

Q:

What do I need to do to attend the Special Meeting virtually?

A:

In order to attend our Special Meeting live via the Internet, you must register at www.virtualshareholdermeeting.com/FORA2026SM and use your 16-digit control number included on the proxy card. If you hold your shares beneficially through a bank or broker, you must provide a legal proxy from your bank or broker during registration and you will be assigned a 16-digit control number included on the proxy card in order to vote your shares during the Special Meeting. If you are unable to obtain a legal proxy to vote your shares, you will still be able to view the Special Meeting (but will not be in attendance and not be able to vote your shares during the Special Meeting) so long as you demonstrate proof of stock ownership. Instructions on how to connect and participate via the Internet, including how to demonstrate proof of stock ownership, are posted at www.virtualshareholdermeeting.com/FORA2026SM.

Q:

Will I have the same participation rights in this virtual-only stockholder meeting as I would have at an in-person stockholder meeting?

A:

Yes. If you register to attend, and attend, the Special Meeting pursuant to the instructions above, you will be able to vote online during the Special Meeting, change a vote you may have submitted previously, or ask questions online that will be reviewed and answered by the speakers.

Q:

What is a proxy?

A:

A proxy is a person you appoint to vote on your behalf. By using any of the methods discussed above, you will be appointing as your proxy our General Counsel and Secretary, Caroline McGrail, and our Chief Financial Officer, Michael Vesey. Each of them may act on your behalf and will have the authority to appoint a substitute to act as proxy. Whether or not you expect to attend the Special Meeting, we request that you please use the means available to you to vote by proxy so as to ensure that your shares of Common Stock may be voted.

Q:

What is the effect if I fail to give voting instructions to my broker or other nominee?

A:

If you are a beneficial owner of shares held in street name and you do not instruct your broker, bank or other organization how to vote your shares (or do not provide instructions by the deadline prescribed by it), the broker bank or other organization can still vote the shares with respect to matters that are considered to be "routine," but not with respect to "non-routine" matters. Under applicable rules, Proposal 1 and Proposal 2 are considered non-routine matters. Accordingly, if you are a beneficial owner and (i) you do not provide your broker or other nominee who holds your shares with voting instructions, or (ii) you do provide a voting instruction card but you fail to specify your voting instructions on Proposal 1 or Proposal 2 to be voted upon at the Special Meeting, under applicable rules, your broker or other nominee cannot exercise discretionary authority to vote your shares in favor of the applicable proposal and will not vote your shares on the proposals presented at the Special Meeting, which will have the same effect as a "no" vote on, or a vote "against", Proposal 1 and will have no effect on Proposal 2.

Q:

What if I want to change my vote or revoke my proxy?

A:

A registered stockholder may change their vote or revoke their proxy at any time before the Special Meeting by (i) going to www.virtualshareholdermeeting.com/FORA2026SM and logging in using your 16-digit control number included on the proxy card, (ii) attending and voting at the Special Meeting, or (iii) submitting a later dated proxy card. We will count your vote in accordance with the last instructions we receive from you prior to the closing of the polls, whether your instructions are received by mail or at the Special Meeting. If you hold your shares through a broker, bank or other nominee and wish to change your vote, you must follow the procedures required by your nominee.

Q:

What is a quorum?

A:

The holders of one-third of the 31,072,252 shares of our Common Stock outstanding as of the Record Date, either present in person or represented by proxy, constitutes a quorum. A quorum is necessary in order to conduct the Special Meeting. If you choose to have your shares represented by proxy at the Special Meeting, you will be considered part of the quorum. Abstentions will be counted as present for the purpose of establishing a quorum. If a quorum is not present by attendance at the Special Meeting or represented by proxy, the stockholders present by attendance at the meeting or by proxy may adjourn the Special Meeting until a quorum is present. If an adjournment is for more than 30 days or a new record date is fixed for the adjourned meeting, we will provide notice of the adjourned meeting to each stockholder of record entitled to vote at the meeting.

Q:

What vote is required to approve each proposal?

A:

The following table sets forth the voting requirements for each proposal being voted on at the Special Meeting and the Board's recommendations.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Effect of

Proposal

 

 

Recommendation

of the Board

(Acting Upon the

Recommendation

of the Special

Committee)

 

 

Required Vote

 

 

Abstentions

 

 

Failing to provide your

Broker your Voting Instructions**

1.

 

 

Approval of redomiciliation of the Company to the State of Maryland through a statutory conversion.

 

 

FOR

 

 

Majority of the voting power of the shares outstanding

 

 

Same as a vote

AGAINST

 

 

Same as a vote AGAINST

2.

 

 

Approval of one or more adjournments of the Special Meeting, if necessary, to solicit proxies if there are insufficient votes at the time of the Special Meeting to approve Proposal 1.

 

 

FOR

 

 

Majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter

 

 

Same as a vote

AGAINST

 

 

Not counted as entitled to vote and so no effect

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

**

Applicable if your shares are held beneficially in street name only.

Q:

What if additional proposals are presented at the Special Meeting?

A:

We do not intend to bring any other matter for a vote at the Special Meeting and we do not know of anyone else who intends to do so. However, with respect to any other business that properly comes before the Special Meeting, your proxies are authorized to vote on your behalf using their judgment.

Q:

Do the directors and officers of the Company have an interest in the outcome of the matters to be voted on?

A:

Our directors and officers will not receive any special benefit as a result of the outcome of the matters to be voted on. See "Background and Principal Features of the Take-Private Offer and Special Committee" below for a discussion regarding certain directors and officers and the Take-Private Offer (as defined below).

Q:

How many shares do the directors and officers of the Company beneficially own and how do they plan to vote their shares?

A:

Directors and executive officers, who, as of the Record Date, had beneficial ownership (or had the right to acquire beneficial ownership within sixty days following the Record Date) of approximately 24.3% of our outstanding Common Stock, are expected to vote, or direct the voting of their shares, in favor of the redomiciliation from the State of Delaware to the State of Maryland through a statutory conversion and in favor of Proposal 2.

Q:

Who will count the votes?

A:

Broadridge will count the votes cast by proxy. A representative of Broadridge will count the votes cast at the Special Meeting and will serve as the inspector of election.

Q:

Who can attend the Special Meeting?

A:

All stockholders as of the Record Date are invited to virtually attend the Special Meeting.

Q:

Who pays the costs of this proxy solicitation?

A:

The Company will pay all the costs of soliciting proxies. In addition to these proxy materials, our directors and employees may also solicit proxies by telephone, or by other means of communication and they will not be paid any additional compensation for solicitation. We may also reimburse brokerage firms, banks and other agents for the cost of forwarding proxy materials to beneficial owners.

Q:

Where can you find the voting results?

A:

Preliminary voting results will be announced at the Special Meeting. In addition, final voting results will be published in a Current Report on Form 8-K that we expect to file within four business days after the Special Meeting. If final voting results are not available to us in time to file a Current Report on Form 8-K within four business days after the Special Meeting, we intend to file a Current Report on Form 8-K to publish preliminary results and, within four business days after the final results are known to us, file an additional Current Report on Form 8-K to publish the final results.

•

The Company will continue in existence as a Maryland corporation and will continue to operate our business under the current name, "Forian Inc." The corporate existence of Forian Inc. will not cease at any time.

•

The internal affairs of the Company will cease to be governed by Delaware law and will instead be subject to Maryland law. See "Comparison of Delaware Organizational Documents and DGCL to Maryland Organizational Documents and MGCL" below.

•

The Company will cease to be governed by our existing certificate of incorporation, as amended (the "Delaware Charter") and bylaws, as amended (the "Delaware Bylaws" and, together with the Delaware Charter, the "Delaware Organizational Documents") and will instead be subject to the provisions of the proposed Maryland articles of incorporation (the "Maryland Charter") and the proposed Maryland bylaws (the "Maryland Bylaws" and, together with the Maryland Charter, the "Maryland Organizational Documents"), forms of which are included as Appendix C and Appendix D, respectively, to this Proxy Statement. See "Comparison of Delaware Organizational Documents and DGCL to Maryland Organizational Documents and MGCL" below.

•

The Redomiciliation will not result in any change in headquarters, business, jobs, management, properties, location of any of our offices or facilities, number of employees, obligations, assets, liabilities or net worth (other than as a result of the transaction costs related to the Redomiciliation).

•

Each issued and outstanding share of our Common Stock will be automatically converted, without any action on the part of any holder thereof, into one share of Common Stock, par value $0.001 per share, of the Maryland Corporation pursuant to the Redomiciliation.

•

You will not have to exchange your existing stock certificates for new stock certificates. At the same time, each outstanding warrant, option or right to acquire shares of Common Stock will continue to be a warrant, option or right to acquire an equal number of shares of Maryland Corporation Common Stock under the same terms and conditions.

•

Our Common Stock will continue to be traded on The Nasdaq Stock Market LLC under the symbol "FORA." We do not expect any interruption in the trading of our Common Stock as a result of the Redomiciliation.

•

Section 203 Impediments. The Company is currently subject to certain anti-takeover protections under Section 203, which prohibits certain transactions between the Company and an "interested stockholder" (as defined in Section 203) of the Company for a period of three years after the date such interested stockholder acquired its stock. These restrictions hinder the Company's ability to fully take advantage of transactions with Mr. Wygod and other interested stockholders, specifically the Take-Private Offer. These restrictions also hinder the Company's ability to use equity to compensate its directors and officers who are members of the Consortium. While the Company could seek to amend its Delaware Organizational Documents to opt out of the Section 203 anti-takeover provision, the restrictions under Section 203 would continue to apply to Mr. Wygod or any other current "interested stockholder" of the Company for a period of time while the Company remains a Delaware corporation. Additionally, while the Company could seek the affirmative vote of sixty-six and two-thirds (66 2/3%) of the outstanding shares of Common Stock held by the Company's stockholders other than the interested stockholders for any transaction with an "interested stockholder," including the Take-Private Offer, (i) the Consortium has indicated that it is not willing to seek this stockholder approval, and (ii) the Special Committee believes that seeking such a vote would create significant uncertainty as to whether a Take-Private Offer could be consummated due, in part, to the composition of the Company's stockholder base other than the members of the Consortium. As a result of the Redomiciliation, the Company would no longer be subject to Section 203, which would allow the Special Committee to consider the Take-Private Offer and for the Company to continue to use equity to compensate its directors and officers who are members of the Consortium. In connection with the Redomiciliation, the Company will opt out of the similarly restrictive comparable business combination statute and control share acquisition statute contained in the MGCL (although the Board may repeal or modify this by bylaw amendment at any time in the future). See the sections entitled "- Business Combinations with Certain Persons" and "- Restrictions on Voting Rights" under "Comparison of Delaware Organizational Documents and DGCL to Maryland Organizational Documents and MGCL" below.

•

Alternative Jurisdictions. In addition to considering the Redomiciliation or whether the Company should remain a Delaware corporation, the Special Committee, with assistance from its advisors, and, where appropriate, members of Company management and Duane Morris, also evaluated other possible jurisdictions into which the Company could redomicile through a statutory conversion, specifically, Pennsylvania and Texas. The Special Committee considered the material differences in reincorporating to

•

Stockholder Rights. Generally, the material rights of the Company's stockholders, as they currently exist, can be replicated or closely approximated as a Maryland corporation, subject to a few key differences, such as with respect to fiduciary duties, appraisal rights, and exculpation of directors, as discussed in more detail under "Comparison of Delaware Organizational Documents and DGCL to Maryland Organizational Documents and MGCL" below.

•

Consortium's Willingness to Enter into Standstill. The Consortium agreed to enter into the Consortium NDA, pursuant to which provided for, among other things, a twelve (12)-month standstill that prevented the Consortium from, among other things, acquiring, offering or seeking to acquire, agreeing to acquire or making a proposal to acquire Company securities, and from seeking to elect, place or remove a director on or from the Board (and, in each case, from making public announcements or entering into agreements with respect to the foregoing). The existence of the Consortium NDA enables the Board and the Special Committee to have a fulsome negotiation with the Consortium regarding the terms of the Take-Private Offer without the threat of an unnegotiated tender offer transaction.

•

The MGCL does not impose a tax on domestic or foreign corporations. In contrast, Delaware imposes a franchise tax on Delaware corporations, but not on foreign corporations.

 

 

 

 

 

 

 

 

 

 

 

 

Delaware

 

 

Maryland

 

 

Authorized Capital Stock:

 

 

The Delaware Charter authorizes up to 95,000,000 shares of common stock, $0.001 par value per share, and 5,000,000 shares of preferred stock, $0.001 par value per share, all of which shares of preferred stock are undesignated.

 

 

The Maryland Charter will authorize up to 95,000,000 shares of common stock, $0.001 par value per share, and 5,000,000 shares of preferred stock, $0.001 par value per share, all of which shares of preferred stock are undesignated.

 

 

Voting Rights:

 

 

Under the Delaware Charter, each holder of Common Stock is entitled to one vote for each share on all matters submitted to a vote of the stockholders.

 

 

Under the Maryland Charter, each holder of Common Stock will be entitled to one vote for each share on all matters submitted to a vote of the stockholders.

 

 

Cumulative Voting Right:

 

 

Under the DGCL and the Delaware Charter, the holders of Common Stock do not have cumulative voting rights in the election of directors.

 

 

Under the MGCL and the Maryland Charter, the holders of Common Stock do not have cumulative voting rights in the election of directors.

 

 

Rights of Holders of Preferred Stock:

 

 

The Delaware Charter provides that the Board is authorized to fix the designation, powers, preferences, rights, and any qualifications, limitations, or restrictions of the preferred stock.

 

 

The Maryland Charter will provide that the Board is authorized to fix the designation, powers, preferences, rights, and any qualifications, limitations, or restrictions of the preferred stock.

 

 

Number and Classification of Directors:

 

 

There are currently eight (8) directors on the Board. The Delaware Charter provides that the number of directors that will constitute the Board shall be fixed from time to time by the Board of Directors in the manner provided by the bylaws, which provide that the number of directors shall be fixed pursuant to a resolution adopted by a majority of the total number of authorized directors. Each director will serve until his or her successor is duly elected and qualified or until his or her earlier death, resignation or removal.

 

The Delaware Charter provides for a classified board of directors (Class I, Class II and Class III) so that all directors will be elected to hold office for staggered three-year terms expiring at the third annual meeting following the annual meeting at which such director was elected.

 

 

There will initially be eight (8) directors on the Board.

The Maryland Charter and Maryland Bylaws will provide that the number of directors shall not exceed fifteen (15), with the exact number of directors to be determined from time to time by resolution adopted by affirmative vote of a majority of the Board, and which number may be increased or decreased only by the Board pursuant to the Maryland Charter and Maryland Bylaws but shall never be less than the minimum number required by the MGCL.

 

Similar to the Delaware Charter, the Maryland Charter will provide for a classified board of directors (Class I, Class II and Class III) so that all directors will be elected to hold office for staggered three-year terms expiring at the third annual meeting following the annual meeting at which such director was elected.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Delaware

 

 

Maryland

 

 

Removal of Directors:

 

 

Because the Board is classified and the Delaware Charter does not otherwise provide, directors may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least a majority of the shares of stock entitled to vote generally in the election of directors.

 

 

The Maryland Charter will provide that any directors, or the entire Board of Directors, may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of shares entitled to cast at least a majority of all the votes entitled to be cast generally in the election of directors.

 

The MGCL permits a Maryland corporation with a class of equity securities registered under the Securities Exchange Act of 1934, as amended, and at least three independent directors to elect to be subject, by provision in its charter or bylaws or a resolution of its board of directors and notwithstanding any contrary provision in its charter or bylaws, to, among others, the following provision: that a director may be removed only by a two-thirds vote of the stockholders.

 

 

Election of Directors:

 

 

The Delaware Bylaws provide that at any meeting duly called and held for the election of directors at which a quorum is present, directors shall be elected by a plurality of the votes of the holders of shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors.

 

 

The Maryland Bylaws will provide that at any meeting duly called and held for the election of directors at which a quorum is present, directors shall be elected by a plurality of all of the votes cast at the meeting.

 

 

Vacancies on the Board:

 

 

The Delaware Bylaws provide that, subject to the rights of the holders of any series of preferred stock, vacancies on our Board resulting from death, resignation, removal, disqualification or other cause, and newly created directorships resulting from any increase in the number of directors on the Board, will, unless the Board determines by resolution that any such vacancies or newly created directorships will be filled by stockholders, be filled only by the affirmative vote of a majority of the remaining directors then in office (even though less than a quorum) or by the sole remaining director, and not by the stockholders. Any director elected in accordance with the preceding sentence

will hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director's successor shall have been elected and qualified.

 

 

The Maryland Charter will provide that, except as may be provided by the Board in setting the terms of any class or series of stock, any and all vacancies on the Board of Directors may be filled only by the affirmative vote of a majority of the remaining directors in office, even if the remaining directors do not constitute a quorum, and any director elected to fill a vacancy shall serve until the next annual meeting of stockholders and until a successor is duly elected and qualified.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Delaware

 

 

Maryland

 

 

Special Meetings of Stockholders:

 

 

The Delaware Bylaws provide that the special meetings of stockholders may be called by the Chairperson of the Board, the Chief Executive Officer of the Company, or the Board (pursuant to a resolution adopted by a majority of the total number of authorized directors).

 

 

The Maryland Bylaws will provide that the special meetings of stockholders may be called by the chairman of the Board, president, chief executive officer or the Board. Special meetings of stockholders may also be called by the secretary of the Corporation upon the written request of stockholders holding not less than a majority of the votes entitled to be cast at the meeting.

 

 

Special Meetings of Board:

 

 

The Delaware Bylaws provide that special meetings of the Board may be called by the Chairperson of the Board, the Chief Executive Officer of the Company or a majority of the total number of authorized directors.

 

 

The Maryland Bylaws will provide that special meetings of the Board may be called by the chairman of the Board, the chief executive officer, the president or by a majority of the directors then in office.

 

 

Stockholder Action by Written Consent:

 

 

The DGCL permits corporate action without a meeting of stockholders of a corporation upon the written consent of the holders of that number of shares necessary to authorize the proposed corporate action being taken, unless the corporation's certificate of incorporation expressly provides otherwise.

 

The Delaware Charter eliminates the ability of the stockholders to take action by written consent.

 

 

The MGCL permits stockholders of Maryland corporations to act by consent, except that, under Maryland law, an action by consent must be unanimous unless otherwise provided in the charter. The Maryland charter does not provide otherwise.

 

 

Quorum and Voting of Stockholders:

 

 

Under the Delaware Bylaws, the presence, in person or by proxy, of the holders of at least one-third of the outstanding capital stock of the Company entitled to vote will constitute a quorum for the transaction of business.

 

Under the Delaware Bylaws, unless otherwise provided by the DGCL, the applicable stock exchange rules, the certificate of incorporation or bylaws, in all matters other than the election of directors, the affirmative vote of the holders of a majority of shares present in person or represented by proxy at the meeting and entitled to vote thereon will be the act of the shareholders.

 

 

The Maryland Bylaws will provide that at any meeting of stockholders, the presence in person or by proxy of stockholders entitled to cast a majority of all the votes entitled to be cast at such meeting on any matter will constitute a quorum.

 

The Maryland Charter will provide that, unless a greater vote is required by statute or by the Maryland Charter, other than with respect to the election of directors, the affirmative vote of the holders of a majority of the shares present in person or represented by proxy at the meeting of stockholders and entitled to vote generally on the subject matter shall be sufficient to approve any other matter which may properly come before the meeting.

 

 

Advance Notice Procedures

for Stockholder Proposals or Director Nominations:

 

 

Under the Delaware Bylaws, a stockholder entitled to vote at an annual meeting may nominate an

 

 

The Maryland Bylaws will provide that a stockholder entitled to vote at an annual meeting may nominate an

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Delaware

 

 

Maryland

 

 

 

 

individual for election as a director and propose business for consideration at the annual meeting by providing written notice as set forth in the Delaware Bylaws to the Secretary not less than 90 nor more than 120 days prior to the first anniversary of the date of the preceding year's annual meeting of stockholders; provided, that in the event that the date of the meeting is advanced by more than 30 days or delayed by more than 30 days from such anniversary date, notice by the stockholder in order to be timely must be so delivered no earlier than the 120th day and no later than the 90th day prior to the date of the meeting or the 10th day following the day on which public announcement of the date of such meeting is first made.

 

 

individual for election as a director and propose business for consideration at the annual meeting by providing written notice as set forth in the Maryland Bylaws to the Secretary not less than 90 nor more than 120 days prior to the first anniversary of the date of the preceding year's annual meeting of stockholders; provided, that in the event that the date of the meeting is advanced by more than 30 days or delayed by more than 30 days from such anniversary date, notice by the stockholder in order to be timely must be so delivered no earlier than the 120th day and no later than the 90th day prior to the date of the meeting or the 10th day following the day on which public announcement of the date of such meeting is first made.

 

 

Business Combinations with Certain Persons:

 

 

Under Section 203 of the DGCL, an "interested stockholder" is generally defined as a person that (a) is owner of 15% or more of the outstanding voting stock of the corporation or (b) is an affiliate or associate of the corporation and was the owner of 15% or more of the outstanding voting stock of the corporation at any time within the three-year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder, and the affiliates and associates of such person, in each case subject to certain exceptions.

 

The DGCL prohibits a corporation from engaging in a "business combination" with an "interested stockholder" for a period of three years following the time that such stockholder became an interested stockholder, unless one of the following exceptions apply: (1) prior to becoming an interested stockholder the board approved either the business combination or transaction that resulted in the stockholder becoming an interested stockholder; (2) upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested

 

 

Under Subtitle 6 of Title 3 of the MGCL, Maryland law restricts business combinations with "interested stockholders" and their associates and affiliates. Unlike Delaware, Maryland's restriction on such transactions extends for 5 (rather than 3) years from the time such person became an interested stockholder.

 

In addition, after such 5-year period, a business combination with an interested stockholder must be recommended by the board of directors and approved by the affirmative vote of at least: (1) 80% of the votes entitled to be cast by outstanding shares of voting stock of the corporation, voting together as a single voting group; and (2) two-thirds of the votes entitled to be cast by holders of voting stock other than voting stock held by the interested stockholder who will (or whose affiliate will) be a party to the business combination or by an affiliate or associate of the interested stockholder, voting together as a single voting group.

 

Similar to Delaware, a corporation may opt out of Maryland's business combinations statute in its charter. A corporation may also opt out of the

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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stockholder owned at least 85% of the voting stock outstanding at the time the transaction commenced (subject to certain exceptions); or (3) at the time the business combination is approved by the board or subsequent to board approval, the transaction is authorized at an annual or special stockholder meeting (and not by written consent) by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder.

 

The DGCL generally defines a "business combination" as (i) any merger and consolidations with the interested stockholder or that results in Section 203 no longer being applicable; (ii) any sale lease, exchange, mortgage, pledge, transfer or other disposition of assets having an aggregate market value of 10% or more of either the consolidated assets or the outstanding stock of a company; (iii) any transaction that would result in the issuance or transfer of stock of the corporation to an interested stockholder; (iv) any transaction that has the effect, directly or indirectly, of increasing the proportionate share of stock of the corporation which is owned by the interested stockholder, subject to exceptions; and (v) any receipt by the interested stockholder of the benefit, directly or indirectly, of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation, subject to certain exceptions. The DGCL allows a corporation to elect not to be governed by Section 203.

 

The Company has not opted out of Section 203.

 

 

business combination statute by written resolutions of the board of directors.

 

An "interested stockholder" is defined as a beneficial owner, directly or indirectly, of ten percent or more of the voting power of the outstanding voting stock of the corporation.

 

However, a person is not an interested stockholder if, prior to the most recent time at which such person would otherwise have become an interested stockholder, the board of directors of the corporation approved the transaction which otherwise would have resulted in the person's becoming an interested stockholder (which approval may be made subject to compliance, at or after the time of approval, with any terms and conditions determined by the board, e.g., a standstill requirement).

 

Pursuant to the Maryland Charter, the provisions of Sections 3-601 to 3-604, including Section 3-602 in whole, of the MGCL will not apply to any "business combination" (as defined in Section 3-601(e) of the MGCL) between the Company and any of its present or future stockholders and no person will have or obtain the status of an "interested stockholder" (as defined in Section 3-601(j) of the MGCL). Therefore, following the Redomiciliation, no "business combination," including the business combination contemplated by the Take Private Offer, will be subject to the five-year waiting period or the supermajority votes.

 

 

Charter Amendments:

 

 

Under the DGCL, a corporation may amend its certificate of incorporation in any respect.

 

To amend the certificate of incorporation, the board must approve and declare advisable the amendment and present the proposed amendment

 

 

Maryland requires a higher vote than Delaware for charter amendments, specifically, the affirmative vote of two-thirds of all of the votes entitled to be cast on the matter. The Maryland Charter will not contain any additional voting requirements with respect to charter amendments, but in accordance

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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to the stockholders entitled to vote for approval (subject to limited exceptions, including name changes and forward stock splits).

 

An amendment is adopted if holders of a majority of the shares entitled to vote approve the amendment. In addition, if an amendment would increase or decrease the number of authorized shares of a class, change the par value of the shares of a class, or alter or change the powers, preferences or special rights of the shares of a class, such class will be entitled to a separate class vote. Further, if an amendment would alter or change the powers, preferences or special rights of the shares of a series of a class (but not the whole class), only the affected series shall be entitled to a separate series vote.

 

If the shares are listed on a national securities exchange, an amendment to increase or decrease the number of authorized shares of a class or effect a reverse stock split may be approved if the votes cast for the amendment exceed the votes cast against the amendment (subject to certain limitations).

 

The Delaware Charter does not contain any additional voting requirements with respect to charter amendments.

 

 

with the MGCL, will reduce the required vote to a majority of all of the votes entitled to be cast on the matter.

 

 

Bylaw Amendments:

 

 

Stockholders of Delaware corporations have the inherent authority to adopt, amend or repeal the bylaws. Under the DGCL, the certificate of incorporation may confer power to amend the bylaws upon the board, but such conferral does not limit or divest the stockholders of their power to amend the bylaws. The Delaware Charter expressly authorizes the board to amend the bylaws.

 

The Delaware Bylaws require that in addition to any vote of the holders of any class or series of stock of the Company required

by law or by the Delaware Charter, amending the bylaws shall require the

 

 

Similar to Delaware, stockholders of Maryland corporations have the inherent authority to amend the bylaws, but corporations may confer such ability to amend the bylaws solely on the board of directors.

 

The Maryland Charter will provide that the power to adopt, alter, and repeal the bylaws will be jointly vested in the board of directors and the stockholders of the Company.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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affirmative vote of the holders of at least a majority of the voting power of all of the then- outstanding shares of the capital stock of the Company entitled to vote generally in the

election of directors, voting together as a single class.

 

 

 

 

Extraordinary Transactions:

 

 

Under the DGCL, generally, a merger, consolidation, conversion, sale of all or substantially all of a corporation's assets (other than a sale to a wholly owned subsidiary), transfer, domestication, continuance or dissolution must be approved by the corporation's board of directors and a majority in voting power of the outstanding shares entitled to vote thereon.

 

 

Under the MGCL, a Maryland corporation generally may not dissolve, merge or consolidate with, or convert to, another entity, sell all or substantially all of its assets or engage in a statutory share exchange unless the action is declared advisable by the board of directors and approved by the affirmative vote of stockholders entitled to cast at least two-thirds of the votes entitled to be cast on the matter, unless a lesser percentage (but not less than a majority of all of the votes entitled to be cast on the matter) is specified in the corporation's charter.

 

The Maryland Charter will provide that these actions must be approved by the affirmative vote of the holders of shares entitled to cast a majority of all the votes entitled to be cast on the matter.

 

 

Control Share Acquisitions:

 

 

Delaware does not have a control share acquisition statute.

 

 

The Maryland Bylaws will contain a provision that exempts from the control share acquisition statute any and all acquisitions by any person of any shares of Common Stock, including the Consortium.

 

The MGCL provides that a holder of "control shares" of a Maryland corporation acquired in a "control share acquisition" has no voting rights with respect to the control shares except to the extent approved by the affirmative vote of two-thirds of the votes entitled to be cast on the matter, excluding shares of stock in respect of which any of the following persons is entitled to exercise or direct the exercise of the voting power of such shares in the election of directors: (a) a person who makes or proposes to make a control share acquisition, (b) an officer of the corporation or (c) an employee of the corporation who is

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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also a director of the corporation. "Control shares" are voting shares of stock which, if aggregated with all other such shares of stock owned by the acquirer, or in respect of which the acquirer is able to exercise or direct the exercise of voting power (except solely by virtue of a revocable proxy), that would entitle the acquirer to exercise voting power in electing directors within one of the following ranges of voting power: (i) one-tenth or more but less than one-third; (ii) one-third or more but less than a majority; or (iii) a majority or more of all voting power. Control shares do not include shares that the acquiring person is then entitled to vote as a result of having previously obtained stockholder approval. A "control share acquisition" means the acquisition of issued and outstanding control shares, subject to certain exceptions.

 

A person who has made or proposes to make a control share acquisition, upon satisfaction of certain conditions (including an undertaking to pay expenses and making an "acquiring person statement" as described in the MGCL), may compel the board of directors to call a special meeting of stockholders to be held within 50 days of demand to consider the voting rights of the shares. If no request for a meeting is made, the corporation may itself present the question at any stockholders meeting.

 

If voting rights are not approved at the meeting or if the acquiring person does not deliver an "acquiring person statement" as required by the statute, then, subject to certain conditions and limitations, the corporation may redeem for fair value any or all of the control shares (except those for which voting rights have previously been approved).

 

Fair value is determined, without regard to the absence of voting rights for the control shares, as of the date of

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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the last control share acquisition by the acquirer or if a meeting of stockholders is held at which the voting rights of such shares are considered and not approved, as of the date of the meeting. If voting rights for control shares are approved at a stockholders meeting and the acquirer becomes entitled to vote a majority of the shares entitled to vote, all other stockholders may exercise appraisal rights. The fair value of the shares as determined for purposes of such appraisal rights may not be less than the highest price per share paid by the acquirer in the control share acquisition.

 

The control share acquisition statute does not apply to (a) shares acquired in a merger, consolidation or share exchange if the corporation is a party to the transaction or (b) acquisitions approved or exempted by the charter or bylaws of the corporation.

 

 

Dividends:

 

 

The Delaware Bylaws provide that subject to the provisions of the Delaware Charter and applicable law, the Board may declare and pay dividends upon the shares of capital stock of the Company, which dividends may be paid either in cash, in property or in shares of the capital stock of the Company.

 

 

The Maryland Bylaws will provide that subject to the provisions of law and the Maryland Charter, the Board may declare and pay dividends upon the shares of capital stock of the Company, which dividends may be paid either in cash, in property or stock of the Company.

 

 

Limitation of Liability:

 

 

Under the DGCL, a Delaware corporation is permitted to eliminate or limit the personal liability of a director or officer to the corporation or its stockholders for monetary damages for breaches of fiduciary duty, other than: (i) breach of the duty of loyalty; (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) willful or negligent violation of the laws governing the payment of dividends or the purchase or redemption of stock (directors only); (iv) any transaction from which the director or officer derives an improper personal benefit; or (v) in any action by or in the right of a Delaware corporation (officers only).

 

 

 

Under the MGCL, the charter of a Maryland corporation may limit directors' and officers' liability to the corporation or its stockholders. Maryland has more limited exceptions to this limitation on liability than Delaware, however, the only exceptions to the liability limitation permitted in the charter are: (a) actual receipt of an improper benefit or profit in money, property or services and (b) active and deliberate dishonesty established by a final judgment as material to the cause of action. Maryland corporations are also expressly permitted to expand directors' and officers' liability in the charter.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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As permitted by the DGCL, the Delaware Charter provides that no director will have personal liability to the Company or any of its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL.

 

 

Under the MGCL, directors who approve the payment of unlawful dividends, redemptions or stock purchases are liable to the corporation for the unlawful portion of the payment only if the director also violated the standard of conduct for directors and to the extent that one of the exceptions to the limitation of liability discussed above apply. A director who is held liable for amounts unlawfully paid is entitled to contribution from stockholders who accepted the dividend or asset with knowledge of the violation of the law. Directors and officers also are criminally liable for a misdemeanor if they knowingly and willfully authorize or consent to the issuance of unauthorized stock of the corporation.

 

Additionally, a present or former director who performs his or her duties in good faith, in a manner the director reasonably believes to be in the best interest of the corporation, and with the care that an ordinarily prudent person in a like position would use under similar circumstances is immune from liability in any action based on an act of the director.

 

The Maryland Charter will provide that, to the fullest extent permitted by Maryland law, no director or officer of the Company will be liable to the Company or its stockholders for money damages.

 

 

Indemnification of Officers and Directors:

 

 

The Delaware Governing Documents provide for the indemnification and advancement of expenses for directors and executive officers to the extent not prohibited by the DGCL and applicable law, and also provide the Company with the power to indemnify its other officers, employees and other agents as set forth in the DGCL or any other applicable law. The Company has also entered into indemnification agreements with its directors and certain officers.

 

 

 

 

The Maryland Organizational Documents will provide for the indemnification and advancement of expenses for current and former directors and officers to the fullest extent the Company is empowered to do so unless prohibited by the MGCL.

 

Similar to Delaware, the MGCL allows for permissive indemnification of current and past directors, officer, and employees in certain circumstances. Under the MGCL, a corporation may indemnify any director, officer, or employee or any prior director, officer,

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Under the DGCL, a Delaware corporation has the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful.

 

A Delaware corporation has the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except

 

 

or employee made a party to any proceeding by reason of service in that capacity unless it is established that: (i) the act or omission of the director, officer, or employee was material to the matter giving rise to the proceeding; and was committed in bad faith, or was the result of active and deliberate dishonesty; (ii) the director, officer, or employee actually received an improper personal benefit in money, property, or services; or (iii) in the case of any criminal proceeding, the director, officer, or employee had reasonable cause to believe that the act or omission was unlawful.

 

Maryland provides for a broad scope of indemnification, similar to Delaware. Under the MGCL, indemnification may be against judgments, penalties, fines, settlements, and reasonable expenses actually incurred by the director in connection with the proceeding. However, if the proceeding was one by or in the right of the corporation, indemnification may not be made in respect of any proceeding in which the director shall have been adjudged to be liable to the corporation.

 

Additionally, in Maryland, a director, officer, or employee may not be indemnified in respect of any proceeding charging improper personal benefit to the director, whether or not involving action in the director's official capacity, in which the director was adjudged to be liable on the basis that personal benefit was improperly received.

 

Under the MGCL, unless limited by charter, indemnification is mandatory if a director or officer is successful on the merits or otherwise in the defense of any proceeding, or in the defense of any claim, issue or matter in the proceeding, covered by the indemnification statute.

 

 

Under the MGCL, a Maryland corporation may not advance expenses for a proceeding brought by a director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

 

The DGCL requires indemnification for expenses (including attorneys' fees) actually and reasonably incurred with respect to any claim, issue or matter on which the director or officer is successful on the merits or otherwise, in the defense of the proceeding. Delaware allows for the permissive advancement of expenses (including attorneys' fees).

 

 

against the corporation, except: (i) for a proceeding brought to enforce indemnification; or (ii) if the charter or bylaws of the corporation, a resolution of the board of directors of the corporation, or an agreement approved by the board of directors of the corporation to which the corporation is a party expressly provide otherwise. The Maryland charter will require advancement to the maximum extent of Maryland law.

 

In the advancement context, the MGCL requires, as a condition to such advancement, that the corporation receive a written affirmation by the director of his or her good faith belief that the standard of conduct for indemnification has been met or written undertaking by or on behalf of the director.

 

 

Fiduciary Duties:

 

 

Directors and officers have a fiduciary duty to act in the best interests of the corporation and its stockholders. This fiduciary responsibility includes the duty of care and the duty of loyalty.

 

The duty of care requires directors to act in a fully informed manner and exercise that degree of care and prudence that would be expected of them in the management of their own affairs.

 

The duty of loyalty requires a director to place the interests of the corporation and its stockholders above any personal interest when making decisions. The duty of loyalty prohibits a director from using their corporate position to realize personal gain at the expense of the corporation. Subsumed within the duty of loyalty is the duty to act in good faith, which requires directors to act honestly and in a manner that is not knowingly unlawful or contrary to public policy. Deliberate indifference or inaction in the face of a known duty to act are hallmarks of bad faith conduct.

 

 

Maryland has codified fiduciary duties in a statutory standard of conduct as follows: A director of a corporation shall act: (1) in good faith; (2) in a manner the director reasonably believes to be in the best interests of the corporation; and (3) with the care that an ordinarily prudent person in a like position would use under similar circumstances. The same duties apply to officers of a corporation. Maryland directors are entitled to a statutory presumption of compliance with the standard of conduct. Under Maryland law, directors are not subject to any heightened standard of care or level of review under any circumstances.

 

No "common law" fiduciary principles are applied to directors under Maryland law, even in the case of interested party transactions.

 

Maryland observes common law fiduciary duties with respect to officers of a Maryland corporation. Officers of a Maryland corporation are entitled to

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Directors' and officers' actions are protected by the "business judgment rule," which presumes that a director's or officer's business decision was made on an informed basis, in good faith, and in the honest belief that the action was in the best interest of the corporation. Unless a plaintiff challenging a board action can rebut the business judgment rule, Delaware courts refrain from second guessing board decisions. The business judgment rule recognizes the need to encourage directors to undertake the risks and make the decisions necessary to run a business.

 

When the presumptions of the business judgment rule apply, a finding of a breach of the duty of care requires a showing of gross negligence. In this context, gross negligence means "reckless indifference to or a deliberate disregard of the stockholders, … or actions which are without the bounds of reason." The duty of loyalty may be implicated whenever directors have a material conflict with respect to a transaction or have a material relationship with a person that has a material conflict with respect to the transaction.

 

If a plaintiff is able to rebut the presumptions of the business judgment rule, directors and officers can face heightened scrutiny and a court will determine if their actions were entirely fair to the corporation. The entire fairness standard of review is typically triggered when (i) a corporation undertakes a transaction with its controlling stockholder, (ii) a majority of the board are not disinterested and independent, or (iii) a majority of the board is found to have breached its duty of care or duty of loyalty.

 

In addition, in certain situations, including the adoption of anti-takeover measures and change in control transactions, the business judgment rule will not be available until certain

 

 

presumption of compliance by way of a common law business judgment rule. Maryland courts have not recognized any heighted standard of care or level of review with respect to whether officers have complied with their common law fiduciary duties.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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enhanced standards are met. For example, in the sale of control context, the board must seek to obtain the highest value reasonably available to stockholders.

 

Under Delaware law, directors and officers who are found to have violated their fiduciary duty may be personally liable to the corporation, subject to exculpatory provisions in the certificate of incorporation eliminating monetary damages for breaches of the duty of care.

 

 

 

 

Stockholders' Right to Inspect Books and Records:

 

 

Under the DGCL, any stockholder may inspect and make copies and extracts from the corporation's stock ledger, stockholder list, and its other books and records, during usual business hours, for any proper purpose upon written demand under oath stating the purpose of the inspection.

 

Delaware recently defined "books and records" by statute, limiting the books and records a stockholder is entitled to inspect (subject to certain exceptions) to the certificate of incorporation, bylaws, minutes of stockholder meetings and stockholder actions by consent over the past 3 years, communications to stockholders within the past 3 years, minutes of the board of directors and committee meetings, materials provided to the board of directors and committees, annual financial statements of the corporation for the past 3 years, any agreements entered into under Section 122(18) of the DGCL (such as stockholders' agreements), and director and officer independence questionnaires.

 

A stockholder may inspect and copy the Delaware corporation's books and records only if the stockholder's demand is made in good faith and for a proper purpose, the stockholder's demand describes with reasonable particularity the stockholder's purpose and the books and records the stockholder seeks to inspect, and the books and records sought are specifically related to the stockholder's purpose. If a Delaware corporation refuses to permit inspection

 

 

Under the MGCL, any stockholder, holder of a voting trust certificate in a corporation, or his agent, on request provided in writing or by electronic transmission, may inspect and copy during usual business hours any of the following corporate documents: (1) bylaws; (2) minutes of the proceedings of the stockholders; (3) annual statements of affairs; and (4) voting trust agreements provided to the corporation.

 

Additionally, one or more stockholders who, for at least six months, have held shares of record or voting trust certificates representing at least 5% of the outstanding shares of any class or series may also demand and inspect: (1) the corporation's books of account; (2) a statement of the corporation's affairs and (3) the stock ledger of the corporation.

 

A Maryland corporation may impose reasonable restrictions on the confidentiality, use, or distribution of books and records and may condition producing such books and records on the stockholder agreeing that any information included in the corporation's books and records is confidential.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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or fails to reply to the demand within five business days after the demand has been made, the stockholder may apply to the Delaware Court for an order to compel such inspection. Generally, the stockholder bears the burden of showing that each category of requested records is essential to accomplishment of the stockholder's stated purpose for the inspection. However, when a stockholder seeks to inspect a corporation's stockholder list of stock ledger, the burden shifts to the corporation to prove the inspection is sought for an improper purpose.

 

A corporation may impose reasonable restrictions on the confidentiality, use, or distribution of books and records and may condition producing such books and records on the stockholder agreeing that any information included in the corporation's books and records is deemed incorporated by reference in any complaint filed by or at the direction of the stockholder in relation to the subject matter referenced in the demand. A corporation may also redact portions of books and records to the extent such portions are not specifically related to the stockholder's purpose.

 

 

 

 

Appraisal and Dissenters Rights:

 

 

Under the DGCL, with certain exceptions, stockholders have the right to dissent and demand an appraisal by the Court of Chancery to award the "fair value" of shares in certain mergers, consolidations, conversions, transfers, domestications and continuances.

 

Stockholders do not have appraisal rights with respect to shares of any class or series of stock if such shares of stock are either (i) listed on a national securities exchange or (ii) held of record by more than 2,000 holders, unless the stockholders receive in exchange for their shares anything other than shares of stock of the surviving or resulting corporation or of any other corporation that is publicly listed or held by more than 2,000 holders of record, cash in lieu of fractional shares or any combination of the foregoing.

 

 

Under the MGCL, a stockholder of a Maryland corporation has the right to demand and receive payment of the fair value of the stockholder's stock from the successor if the transaction is governed by the business combination statute.

 

Maryland provides for appraisal rights (or rights of an objecting stockholder under Subtitle 2 of Title 3 of the MGCL) in a similar array of circumstances as does Delaware, with such rights being available for consolidations and mergers, share exchanges, transfers of a corporation's assets, entity conversions, and certain charter amendments.

 

However, Maryland provides for broader exceptions to appraisal rights, including, among other things, if the corporation is listed on a national securities exchange. The only exception to this market-out

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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exception is management-led buyouts where management holders more than 5% of the outstanding voting stock and management's stock will be treated differently than other stockholders. Additionally, unlike Delaware, the charter of a Maryland corporation may eliminate appraisal rights entirely.

 

The Maryland Charter will provide that a holder of shares of stock of the Company shall be entitled to the right to fair value of their stock in accordance with the provisions of Subtitle 2 of Title 3 of the MGCL (i.e. to the fullest extent provided for under Maryland law).

 

The Maryland Charter will also provide that, with respect to a merger or consolidation, a holder of shares of the Company who otherwise would be bound by the terms of the transaction under Section 3-202(c)(1) of the MGCL may demand the fair value of the stockholder's stock if, in the transaction, the holder of shares of the Company will be required to accept for such holder's shares anything other than (i) shares of the corporation surviving or resulting from the merger or consolidation, (ii) shares of any other corporation if such shares will be listed on a national securities exchange, (iii) cash in lieu of fractional shares, or (iv) any combination of the foregoing. It is not clear as a matter of Maryland law whether a Maryland corporation can provide, in its articles of incorporation, for appraisal rights in the circumstances described in the immediately preceding sentence. Therefore, it is not certain that this provision in the Maryland Charter will provide the Company's stockholders with the same appraisal rights as would be available under Delaware law in such circumstances.

 

 

Exclusive Forum:

 

 

The Delaware Bylaws provides that the Court of Chancery of the State of Delaware (or, if and only if the Court of Chancery of the State of Delaware lacks subject matter jurisdiction, any state court located within the State of Delaware or, if and only if all such state

 

 

The Maryland Charter will provide that unless the Company consents in writing to the selection of an alternative forum, the Circuit Court for Baltimore City, Maryland or, if that court does not have jurisdiction, the United States District Court for the District of Maryland,

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Delaware

 

 

Maryland

 

 

 

 

courts lack subject matter jurisdiction, the federal district court for the District of Delaware) shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer or other employee of the Company to the Company or the Company's stockholders, (iii) any action asserting a claim against the Company or any current or former director, officer or other employee of the Corporation, arising out of or pursuant to any provision of the DGCL or the Delaware Organizational Documents, (iv) any action or proceeding to interpret, apply, enforce or determine the validity of the Delaware Organizational Documents (including any right, obligation, or remedy thereunder), (v) any action or proceeding as to which the DGCL confers jurisdiction to the Court of Chancery of the State of Delaware; and (vi) any action asserting a claim against the Company, director, officer or other employee of the Company governed by the internal affairs doctrine. Additionally, unless the Company consents in writing to the selection of an alternative forum, the federal district courts of the District of Delaware will be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended.

 

 

Northen Division, will be the sole and exclusive forum for (a) any Internal Corporate Claim, as such term is defined in the MGCL, including, without limitation, (i) any derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim of breach of duty owed by any director, officer, employee or agent of the Company to the Company or the Company's stockholders, or (iii) any action asserting a claim arising pursuant to any provision of the MGCL, or (b) any action asserting a claim governed by the internal affairs doctrine.

 

 

 

 

 

 

 

 

 

 

•

No gain or loss will be recognized by, and no amount will be included in the income of, a holder of the Delaware Corporation Common Stock upon the conversion of such Delaware Corporation Common Stock into the Maryland Corporation Common Stock in connection with the Redomiciliation;

•

The aggregate tax basis of the shares of the Maryland Corporation Common Stock received by a holder of shares of the Delaware Corporation Common Stock in connection with the Redomiciliation will equal the aggregate tax basis of the shares of the Delaware Corporation Common Stock converted into such shares of the Maryland Corporation Common Stock; and

•

The holding period of the shares of the Maryland Corporation Common Stock received by a holder of the Delaware Corporation Common Stock in connection with the Redomiciliation will include the holding period of the Common Stock converted into such shares of the Maryland Corporation Common Stock.

•

each stockholder known by the Company to own beneficially more than 5% of our Common Stock;

•

each of our named executive officers;

•

each of our directors; and

•

all directors and executive officers as a group.

 

 

 

 

 

 

 

Name of Beneficial Owner

 

 

Number of

Shares of

Common

Stock

 

 

Percentage

of

Class

Named Executive Officers and Directors:

 

 

 

 

Mark J. Adler, M.D.⁽¹⁾

 

 

73,833

 

 

*

Ian G. Banwell⁽²⁾

 

 

142,284

 

 

*

Adam Dublin

 

 

2,405,533

 

 

7.7%

Jennifer Hajj⁽³⁾

 

 

47,500

 

 

*

Shahir Kassam-Adams⁽⁴⁾

 

 

212,434

 

 

*

Edward Spaniel, Jr.⁽⁵⁾

 

 

2,520,491

 

 

8.1%

Alyssa Varadhan⁽⁶⁾

 

 

42,500

 

 

*

Michael Vesey⁽⁷⁾

 

 

846,042

 

 

2.7%

Kristiina Vuori⁽⁸⁾

 

 

66,257

 

 

*

Max C. Wygod⁽⁹⁾

 

 

3,922,251

 

 

12.6%

Directors and Executive Officers as a group (10 individuals)⁽¹⁰⁾

 

 

7,758,634

 

 

24.8%

Beneficial Owners of more than 5% of our Common Stock:

 

 

 

 

Phyllis Dublin⁽¹¹⁾

 

 

1,831,526

 

 

5.9%

Anthony Vuolo⁽¹²⁾

 

 

4,015,795

 

 

12.9%

Emily Bushnell⁽¹³⁾

 

 

3,431,699

 

 

11.0%

2025 Acquisition Corp⁽¹⁴⁾

 

 

20,654,385

 

 

66.5%

 

 

 

 

 

 

 

*

Represents beneficial ownership of less than one percent (1%).

(1)

Includes (i) 36,333 shares held by Dr. Adler and (ii) 37,500 shares issuable to Dr. Adler pursuant to options exercisable within 60 days of December 15, 2025.

(2)

Includes (i) 5,000 shares held by Mr. Banwell; (ii) 99,784 shares held by Mr. Banwell's spouse; and (iii) 37,500 shares issuable to Mr. Banwell pursuant to options exercisable within 60 days of December 15, 2025.

(3)

Includes (i) 5,000 shares held by Ms. Hajj; (ii) 5,000 shares held by Ms. Hajj's spouse; and (iii) 37,500 shares issuable to Ms. Hajj pursuant to options exercisable within 60 days of December 15, 2025.

(4)

Includes (i) 174,934 shares held by Mr. Kassam-Adams and (ii) 37,500 shares issuable to Mr. Kassam-Adams pursuant to options exercisable within 60 days of December 15, 2025.

(5)

Includes (i) 688,965 shares held by Mr. Spaniel; and (ii) 1,831,526 shares held by The Adam H. Dublin 2019 Family Trust of which Mr. Spaniel is co-trustee and has joint investment and dispositive power. Mr. Spaniel disclaims beneficial ownership of the shares held by The Adam H. Dublin 2019 Family Trust.

(6)

Includes (i) 5,000 shares held by Ms. Varadhan and (ii) 37,500 shares issuable to Ms. Varadhan pursuant to options exercisable within 60 days of December 15, 2025.

(7)

Includes (i) 106,355 shares held by Mr. Vesey and (ii) 739,687 shares issuable to Mr. Vesey pursuant to options exercisable within 60 days of December 15, 2025.

(8)

Includes (i) 28,757 shares of held by Dr. Vuori and (ii) 37,500 shares issuable to Dr. Vuori pursuant to an option exercisable within 60 days of December 15, 2025.

(9)

Includes (i) 1,328,927 shares held individually, (ii) 1,489,576 shares held the WYGOD FAMILY REV LT U/T/A (the "Family Trust") of which Mr. Wygod is co-trustee and has shared investment and dispositive power, (iii) 1,040,899 shares held by the ADMINISTRATIVE TRUST U/ WYGOD FAMILY RV (the "Administrative Trust") of which Mr. Wygod is co-trustee and has shared investment and dispositive power, and (iv) 62,849 held by the Estate of Martin J. Wygod of which Mr. Wygod is executor.

(10)

Includes directors and all current executive officers.

(11)

These shares are held by The Adam H. Dublin 2019 Family Trust of which Ms. Dublin is co-trustee and has joint investment and dispositive power. The address for The Adam H. Dublin 2019 Family Trust is c/o Phyllis Dublin/Trustee, 936 Sheridan Road, Wilmette, IL 60091.

(12)

Includes (i) 370,396 shares held directly by Mr. Vuolo and (ii) 3,645,399 shares held by the Max Wygod Dynasty Trust of which Mr. Vuolo is trustee and has sole investment and dispositive power. Mr. Vuolo disclaims beneficial ownership of the shares held by the Max Wygod Family Dynasty Trust.

(13)

Includes (i) 901,224 shares held individually, (ii) 1,489,576 shares held by the Family Trust of which Ms. Bushnell is co-trustee and has shared investment and dispositive power, and (iii) 1,040,899 shares by the Administrative Trust of which Ms. Bushnell is co-trustee and has shared investment and dispositive power.

(14)

Based solely on the information included in the most recently available Schedule 13D/A filed with the SEC on October 2, 2025, by 2025 Acquisition Corporation and the other parties thereto (collectively, the "Consortium"). The aggregate number of shares held by members of the Consortium include: (i) 0 shares held by 2025 Acquisition Corporation, a Delaware corporation; (ii) 1,328,927 held by Max. C. Wygod; (iii) 901,224 shares held by Emily Bushnell; (iv) 1,040,899 shares held by the Administrative Trust of which Mr. Wygod and Ms. Bushnell are co-trustees and have shared investment and dispositive power; (v) 1,489,576 held by the Family Trust of which Mr. Wygod and Ms. Bushnell are co-trustees and have shared investment and dispositive power; (vi) 370,396 held by Mr. Vuolo; (vii) 3,645,399 shares of the Max Wygod Family Dynasty Trust of which Mr. Vuolo is trustee and has sole investment and dispositive power; (viii)(a) 935,598 shares held by Oracle Partners, L.P., a Delaware limited partnership ("Partners"), (b) 113,9292 shares held by Oracle Institutional Partners, L.P., a Delaware limited partnership ("Institutional Partners"), (c) 28,000 shares held by Oracle Investment Management, Inc. Employees' Retirement Plan, an employee benefit plan organized in Connecticut (the "Retirement Plan"), (d) 7,200 shares held by the Feinberg Family Foundation, a foundation organized in Connecticut (the "Foundation"), (e) 1,049,527 shares held by Oracle Associates, LLC, a Delaware limited liability company ("Oracle Associates"), (f) 1,077,527 shares held by Oracle Investment Management, Inc., a Delaware corporation (the "Investment Manager"), and (g) 281, 380 shares held by Larry N. Feinberg, Mr. Feinberg is managing member of Oracle Associates, which is general partner of Partners, Institutional Partners, and Ten Fund, Mr. Feinberg is also trustee of Retirement Plan and Foundation and President of Investment Manager; (ix) 748,865 shares held by the Feinberg Children's Trust, a Connecticut Trust, of which Adam Usdan is sole trustee; (x) 2,505,533 shares held by Adam H. Dublin; (xi) 1,831,526 shares held by The Adam H. Dublin 2019 Family Trust of which Mr. Spaniel and Ms. Dublin are co-trustees and have joint investment and dispositive power; (xii) 688,965 shares held by Mr. Spaniel; (xiii) 525,000 shares held jointly by Carl Berg and his spouse, Rachel Berg; (xiv) 237,578 shares held by Rachel Berg GST Exempt 2012 Trust, of which Mr. Berg is trustee; (xv) 597,000 shares held directly by Mr. Berg; (xvi) 52,000 shares held by Rachel Berg, over which Mr. Berg has investment authority; (xvii) 32,300 shares held by Eric Berg, over which Mr. Berg has investment authority; (xviii) 30,300 shares held by Adam Berg, over which Mr. Berg has investment authority, (xix) 36,700 shares held by Emma Berg, over which Mr. Berg has investment authority; (xx) 30,000 shares held by Alexander Berg, over which Mr. Berg has investment authority; (xxi) 1,472,984 shares held by Marble Lane Partners I, LLC, David Mehlman is managing member of the partnership and has sole voting and dispositive power; (xxii) 717,699 shares held by Michael Sawyer; (xxiii) 618,908 shares held by the Nell and Jane Cameron 2006 Trust (the "2006 Trust"), Keri Cameron is sole trustee of the 2006 Trust and has sole voting and dispositive power; (xxiv) 202,434 shares held by Mr. Kassam-Adams; (xxv) 202,434 shares held by 360 Ventures, LLC, a Virginia limited liability company of which Mr. Kassam-Adams is the general manager and has sole voting and dispositive power; (xxvi) 103,911 shares held by Charles Mele; and (xxvii) 80,154 shares held by Michael Glick.

•

no earlier than December 30, 2025; and

•

no later than January 29, 2026; or

•

if the 2026 Annual Meeting will be held be on or before May 15, 2026 or on or after July 16, 2026, then no earlier than the close of business on the 120th day prior to the 2026 Annual Meeting and not later than the close of business on the later of (A) the 90th day prior to the 2026 Annual Meeting and (B) the 10th day following the day on which notice of the date of the 2026 Annual Meeting was mailed or public disclosure of the date of such annual meeting was made, whichever first occurs; or (ii) in the case of an election of directors at a special meeting of stockholders, provided that our Board, or such person or persons requested by a majority of our Board to call special meetings, has determined that directors shall be elected at such special meeting and provided further that the nomination made by the stockholder is for one of the director positions that our Board, or such person or persons requested by a majority of our Board to call special meetings, as the case may be, has determined will be filled at such special meeting not later than the close of business on the later of (x) the 90th day prior to such special meeting and (y) the 10th day following the day on which notice of the date of such special meeting was mailed or public disclosure of the date of such special meeting was made, whichever first occurs.

 

 

 

 

 

 

By Order of the Board of Directors,

 

 

 

 

 

Max Wygod

 

 

Executive Chairman, Chief Executive

Officer and President

 

 

 

 

 

 

 

 

 

 

FORIAN INC.

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

 

Title:

 

 

 

 

 

 

 

 

 

 

 

 

 

Signature of the Incorporator:

 

 

 

 

Bruce H. Jurist, solely in his capacity as the Incorporator

 

 

 

 

Signature of the Resident Agent:

 

 

 

 

 

 

 

 

[Name of Resident Agent]

 

 

 

 

 

By:

 

 

 

 

 

 

[Name, Title]

 

 

 

 

[Filing Party's Name and Return Address:

 

 

 

 

 

[Insert information]]