CALM 8-K
Cal-Maine Foods Inc (CALM)
8-K
2025-02-25
For: 2025-02-25
View Original
Added on
April 11, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement.
Background
Cal-Maine Foods, Inc. (“Cal-Maine Foods,” the “Company,” “we,” “us” or “our”) has been controlled by members of the family
of our founder, Fred R. Adams, Jr., since its founding and since it became a public company. In connection with Mr. Adams’
estate planning in 2018, Mr. Adams’ four daughters and Adolphus B. Baker, Chair of the Company’s Board of Directors (the
“Board”) and Mr. Adams’ son-in-law (the “Members”) (and/or their respective predecessors-in-interest), took certain actions,
including forming DLNL, LLC, a Delaware limited liability company (“Daughters’ LLC” and together with the Members, the
“Stockholder Parties”), to enable Mr. Adams’ family to continue to own and retain shares of the Company’s Class A common
stock, $0.01 par value per share (the “Class A Shares”), and common stock, $0.01 par value per share (the “Common Shares”)
sufficient to maintain majority voting control of the Company after his death and to provide for the long-term, stable and
consistent ownership and governance of the Company. Mr. Adams passed away on March 29, 2020.
Daughters’ LLC holds 4,800,000 Class A Shares, representing 100% of the outstanding Class A Shares. The Class A Shares have
ten votes per share and are convertible on a share-for-share basis into Common Shares, which have one vote per share. Generally,
the Class A Shares automatically convert to Common Shares upon transfer to persons not related to the family.
The outstanding Class A Shares currently represent approximately 52.0% of the Company’s total voting power. In addition to the
Class A Shares, Daughters’ LLC also holds 1,087,956 Common Shares, bringing the total voting power of the shares held by
Daughters’ LLC to approximately 53.2%.
The Members have informed the Board that they are potentially interested in diversifying their respective financial portfolios (the
“Potential Portfolio Diversification”), including through the potential sale of all or a portion of the Common Shares underlying
the Class A Shares held by Daughters’ LLC, as most of them have become more focused on their individual estate planning efforts
and philanthropic endeavors. The Potential Portfolio Diversification could result in Daughters’ LLC ceasing to have majority
voting control of the Company, which in turn would result in the Company ceasing to be a “controlled company” pursuant to the
rules of The Nasdaq Stock Market. The Members indicated that they were willing to work with the Company towards achieving
a smooth transition. Before giving effect to any potential sales, if Daughters’ LLC were to convert its Class A Shares into Common
Shares, Daughters’ LLC’s total voting power would decline from 53.2% to 12.0% of the voting power of the Company’s then-
outstanding Common Shares. The Class A Conversion would have no impact on the Daughters’ LLC’s economic interest in the
Company, which would remain at 12.0%.
As noted above, Mr. Baker has an interest in the Potential Portfolio Diversification and, as a director, has an interest in certain of
the potential actions by the Company to address the Potential Portfolio Diversification. Because Mr. Baker’s interests may be
different from the interests of the stockholders generally, the Board authorized a special committee, consisting solely of
disinterested independent directors (the “Special Committee”), to consider what corporate actions, if any, should be taken to
address the impact of the Potential Portfolio Diversification on the Company and its stockholders.
The Special Committee, among other things, considered and determined that it was in the best interests of the Company and its
stockholders for the Company to facilitate the Members’ sale of their Common Shares, including the Common Shares underlying
their Class A Shares, and manage the loss of controlled company status, in each case, in an orderly manner in compliance with
legal requirements.
On February 24, 2025, the Special Committee unanimously recommended to the Board, and, on February 25, 2025, the Board
approved the Agreement Regarding Conversion (the “Conversion Agreement”), by and among the Company and the Stockholder
Parties, including the documents contemplated by that agreement, which include: (i) the Third Amended and Restated Certificate
of Incorporation of the Company (“Restated Charter”), to become effective upon filing with the Delaware Secretary of State (the
“Restated Charter Effective Date”), (ii) the Amended and Restated Bylaws of the Company (“Restated Bylaws”), to become
effective on the Restated Charter Effective Date, and (iii) an amendment and restatement of the Daughters’ LLC’s operating
agreement to permit Daughters’ LLC to take the actions provided for in the Conversion Agreement (the “Daughters’ LLC
Amendment”). The Conversion Agreement, including the documents contemplated by that agreement, are referred to collectively
as the “Transactions.” At the meeting at which the Board approved the Conversion Agreement, the Board also unanimously
approved and declared advisable the Restated Charter, and directed that it be submitted for stockholder approval by the majority
written consent of stockholders.
Thereafter, on February 25, 2025, the Conversion Agreement was executed and delivered by the Company and the Stockholder
Parties, and Daughters’ LLC executed and delivered the majority written consent in lieu of a meeting of stockholders approving
the Restated Charter (the “Majority Written Consent”) in accordance with Section 228 of the Delaware General Corporation Law
(the “DGCL”).
As requested by the Board, Mr. Baker plans to continue to serve as Board Chair at least until the Company’s 2027 annual meeting
of stockholders.
Contemporaneously with the filing of this Current Report on Form 8-K, the Company is also filing a preliminary Information
Statement with the U.S. Securities and Exchange Commission (“SEC”) regarding the Restated Charter and related matters. The
Restated Charter will become effective upon filing with the Secretary of State of the State of Delaware (the “Delaware Secretary
of State”), which the Company expects to occur on or promptly after the 20th calendar day following the distribution of the
definitive Information Statement to stockholders.
Because the Restated Charter has been approved by the Board and by the stockholder vote required by law, the Company will not
be soliciting proxies or holding a meeting of stockholders to consider the Restated Charter.
Agreement Regarding Conversion
The Conversion Agreement provides for the following:
●
The approval by the Board, and approval by Daughters’ LLC by majority written consent, of the Restated Charter, to be
effective upon the Restated Charter Effective Date;
●
The approval by the Board of the Restated Bylaws, which include provisions that align with the Restated Charter, to
become effective on the Restated Charter Effective Date;
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The agreement by the Stockholder Parties not to convert any Class A Shares into Common Shares prior to the Restated
Charter Effective Date;
●
The agreement by the Stockholder Parties that if Daughters’ LLC converts any Class A Shares into Common Shares, it
will simultaneously convert all (but not less than all) Class A Shares into Common Shares (the “Class A Conversion”);
●
After the effective date of the Class A Conversion (the “Class A Conversion Date”), and ending on the 12-month
anniversary of the Class A Conversion Date (or, if earlier, December 31, 2026), certain registration rights of the Members
to offer or sell Common Shares in a registered offering under the Securities Act; and
●
The adoption by the Stockholder Parties of an amended and restated limited liability company operating agreement of
Daughters’ LLC, which provides for certain changes to permit Daughters’ LLC to take the actions provided for in the
Conversion Agreement.
The Conversion Agreement also provides that, prior to the expiration of the registration rights, each Stockholder Party agrees
(i) to cause all Common Shares and Class A Shares held by such Stockholder Party (or over which such Stockholder Party has
voting discretion or control as of the applicable record date) to be present either in person or by proxy for quorum purposes at
any stockholders’ meeting at which directors of the Company are elected, and (ii) to vote, or cause to be voted, such Common
Shares and Class A Shares held by it (or over which such Stockholder Party has voting discretion or control) in favor of not less
than three independent directors.
The Transactions do not require any Stockholder Party to convert Class A Common Shares into Common Shares or to sell any
Common Shares. As noted above, the registration rights provided to the Members pursuant to the Conversion Agreement expire
on the 12-month anniversary of the Class A Conversion Date (or, if earlier, December 31, 2026).
The foregoing description does not purport to be complete and is subject to, and qualified in its entirety by, the provisions of the
Conversion Agreement, a copy of which is filed herewith as Exhibit 99.1.
Item 1.02 Termination of a Material Definitive Agreement.
Pursuant to the Conversion Agreement, that certain Agreement Regarding Common Stock, dated as of July 20, 2018, by and
among the Company and the Members, among others, which is filed as Exhibit 10.1 to the Company’s annual report on Form 10-
K for the fiscal year ended June 1, 2024, terminated on February 25, 2025, upon execution and delivery of the Conversion
Agreement.
Item 5.01 Changes in Control of Registrant.
(a)
The Company has not experienced a change of control.
(b)
As described in Item 1.01, if the Class A Conversion occurs, Daughters’ LLC will no longer control a majority of the
Company’s total voting power, and the Company would no longer be a “controlled company” under the rules of The Nasdaq
Stock Market.
As described in Item 1.01, the Conversion Agreement does not require Daughters’ LLC to convert its Class A Shares or to sell
any shares of the Company. Therefore, there can be no assurance that the Class A Conversion will occur or, if so, when it will
occur. However, even if the Class A Conversion occurs, it would represent a dissipation of control, not a “change of control” in
the traditional sense because no other third party would be acquiring control. For example, the Class A Conversion would not be
considered a “change of control” for purposes of the Company’s incentive plan or outstanding equity grants.
The description of the Conversion Agreement and the documents contemplated by that agreement set forth in Item 1.01 is
incorporated by reference into this Item 5.01.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Third Amended and Restated Certificate of Incorporation
As described in Item 1.01, the Restated Charter will become effective upon filing with the Delaware Secretary of State, which
the Company expects to occur on or promptly after the 20th calendar day following the distribution of the definitive Information
Statement to stockholders. The Restated Charter provides for the following changes, among others, to the Company’s existing
Second Amended and Restated Certificate of Incorporation, as amended (the “Current Charter”):
Authorization of Undesignated Preferred Stock
Under the Restated Charter, the Board will have the authority, without further action by the stockholders, to authorize the issuance
by the Company of up to 10,000,000 shares of preferred stock, $0.01 par value per share (the “Preferred Stock”), in one or more
series and to fix the rights, preferences, privileges and restrictions granted to or imposed upon the Preferred Stock. Any or all of
these rights may be greater than the rights of our Common Shares or Class A Shares. Under the Current Charter, the Company is
not authorized to issue preferred stock.
Classified Board
The Restated Charter provides for classification of the Board, pursuant to which directors will be divided into three classes, as
nearly equal in number as possible. The directors in Class I will each have a term expiring at the first annual meeting of the
stockholders following the effectiveness of the Restated Charter. The directors in Class II will each have a term expiring at the
second annual meeting of the stockholders following the effectiveness of the Restated Charter. The directors in Class III will
each have a term expiring at the third annual meeting of stockholders following the effectiveness of the Restated Charter.
At each annual meeting of stockholders of the Company beginning with the first annual meeting of stockholders following the
effectiveness of the Restated Charter, subject to any rights of the holders of shares of any class or series of Preferred Stock, the
successors of the directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year of their election and will hold office until their successors are
duly elected and qualified, subject to such director’s earlier death, resignation or removal. In the case of any increase or decrease,
from time to time, in the number of directors of the Company, the number of directors in each class shall be apportioned as nearly
equal as possible. No decrease in the number of directors shall shorten the term of any incumbent director.
Upon the effective date of the Restated Charter, the Board will be classified into three classes, and it is expected that the current
directors will be apportioned into the three classes as provided below:
Class
Directors
Class I
(terms expiring at the 2025 Annual Meeting)
Sherman L. Miller and Camille S. Young
Class II
(terms expiring at the 2026 Annual Meeting)
Max P. Bowman and Letitia C. Hughes
Class III
(terms expiring at the 2027 Annual Meeting)
Adolphus B. Baker, Steve W. Sanders and James E. Poole
Pursuant to the Current Charter, the Board is not classified, and directors are elected at each annual meeting to serve for a term
of one year and until their successors are duly elected and qualified.
No Cumulative Voting in Director Elections
Under the Restated Charter, cumulative voting in director elections will not be permitted. Cumulative voting, which is permitted
by the Current Charter, is a process for electing directors that permits each stockholder to cast a number of votes equal to the
number of Board seats up for election, multiplied by the number of votes attributable to the Company Shares the stockholder
owns. Those votes can then be allocated by the stockholder disproportionately to one or more candidates.
Removal of Directors by Stockholders Only for Cause
Under the Restated Charter, subject to the rights of holders of any series of Preferred Stock with respect to the election of directors,
a director may be removed from office by the stockholders of the Company only for cause and only by the affirmative vote of the
holders of at least a majority of the voting power of all then outstanding shares of capital stock of the Company entitled to vote
generally in the election of directors, voting together as a single class. The DGCL permits corporations with classified boards to
include this provision in their charters. The Current Charter and the Company’s existing Amended and Restated Bylaws (the
“Current Bylaws”) are silent with regard to the removal of directors, and therefore, pursuant to the DGCL, directors may be
removed, with or without cause, by the holders of a majority of the voting power.
Vacancies and Newly Created Directorships
The Restated Charter provides that, subject to the rights of holders of any series of Preferred Stock with respect to the election of
directors, vacancies occurring on the Board for any reason and newly created directorships resulting from an increase in the
number of directors may be filled only by vote of a majority of the remaining members of the Board, although less than a quorum,
or by a sole remaining director, at any meeting of the Board and not by the stockholders. A person so elected by the Board to fill
a vacancy or newly created directorship shall hold office until the next election of the class for which such person shall have been
assigned by the Board and until such person’s successor shall be duly elected and qualified or until such director’s earlier death,
resignation or removal. The Current Bylaws contain a similar provision, but do not restrict the power to fill vacancies to the Board
and do not address vacancies occurring in a class of directors, as under the Current Charter the Board is not classified.
Amendments to Charter
Pursuant to the Restated Charter, any amendment to the Restated Charter will require the affirmative vote of the holders of at
least 66
2
/
3
% of the voting power of all then outstanding shares of capital stock of the Company entitled to vote generally in the
election of directors, voting together as a single class. In addition, so long as any Class A Shares are outstanding, the Company
may not, without first obtaining the approval by vote or written consent in the manner provided by law of the holders of not less
than 66
2
/
3
% of the total number of Class A Shares outstanding, voting separately as a class, (i) alter or change the rights or
privileges of Class A Shares, (ii) amend any provision of the section of the Restated Charter designating the special rights and
privileges of the Class A Shares affecting the Class A Shares or (3) effect any re-classification or re-capitalization of the
Company’s outstanding capital stock.
The Current Charter contains the same provisions with respect to the special voting rights of the Class A Shares described
immediately above. The Current Charter is otherwise silent with respect to amendments; therefore, under the DGCL, except for
such special voting rights of the Class A Shares, or as may otherwise be required by law, the Current Charter can be amended by
the approval of a majority in voting interest of the Common Shares and Class A Shares issued and outstanding, voting together
as a group.
Amendments to Bylaws
Under the Restated Charter, the bylaws of the Company then in effect may be amended by the Board or the affirmative vote of
the holders of at least 66
2
/
3
% of the voting power of all then outstanding shares of capital stock of the Company entitled to vote
generally in the election of directors, voting together as a single class.
The Current Charter provides that the Board is authorized to amend the Company’s bylaws, and the Current Bylaws provide that
they may be amended by the Board or by the stockholders by the vote of the holders of a majority in voting interest of the capital
stock having voting power present in person or represented by proxy.
Stockholder Action by Written Consent
The Restated Charter specifically denies the ability of stockholders to act by written consent. The Current Charter is silent with
respect to the ability of stockholders to act by written consent; therefore, under the DGCL, stockholder action may be taken
without a meeting, without prior notice and without a vote, if a consent or consents, setting forth the action so taken, is signed by
the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were present and voted.
Special Meetings of Stockholders
The Restated Charter provides that special stockholder meetings may be called at any time only by the Board Chair or by the
Board. The ability of stockholders to call special stockholder meetings is specifically denied. The Current Charter is silent with
respect to calling special stockholder meetings, and the Current Bylaws provide that special stockholder meetings may be called
by the Board Chair, chief executive officer, president, a majority of the Board, or by stockholders owning a majority in voting
interest of the entire capital stock of the Company issued and outstanding and entitled to vote.
Indemnification
Under the Restated Charter, the Company will indemnify its directors and officers to the fullest extent authorized or permitted by
the DGCL, as now or hereafter in effect. A director’s right to indemnification will include the right to be paid the expenses
incurred in defending or otherwise participating in any proceeding in advance of its final disposition, but only if that director
presents to the Company a written undertaking to repay that amount if it shall ultimately be determined that the director is not
entitled to be indemnified.
Insurance
Pursuant to the Restated Charter, the Company may purchase and maintain insurance on behalf of any current or former director
or officer against any liability asserted against that person to the fullest extent authorized or permitted by the DGCL.
Forum Selection
The Restated Charter provides that, unless a majority of the Board, acting on behalf of the Company, consents in writing to the
selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have
jurisdiction, another state court located within the State of Delaware or, if no state court located within the State of Delaware has
jurisdiction, the federal district court for the District of Delaware), will be the sole and exclusive forum for (i) any derivative
action or proceeding brought on behalf of the Company under Delaware law, (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 of its directors, officers or other employees
arising pursuant to any provision of the DGCL, the Company’s certificate of incorporation or bylaws (in each case, as may be
amended from time to time), (iv) any action asserting a claim against the Company or any of its directors, officers or other
employees governed by the internal affairs doctrine of the State of Delaware or (v) any other action asserting an “internal
corporate claim,” as defined in Section 115 of the DGCL, in all cases subject to the court’s having personal jurisdiction over all
indispensable parties named as defendants.
The Restated Charter further provides that, unless a majority of the Board, acting on behalf of the Company, consents in writing
to the selection of an alternative forum, the federal district courts of the United States of America will be the sole and exclusive
forum for the resolution of any action asserting a cause of action arising under the Securities Act.
The foregoing description does not purport to be complete and is subject to, and qualified in its entirety by, the provisions of the
Company’s Third Amended and Restated Certificate of Incorporation, a copy of which is filed herewith as Exhibit 99.2.
Amended and Restated Bylaws
As described in Item 1.01, the Restated Bylaws will become effective when the Restated Charter becomes effective. The Restated
Bylaws contain changes that align with the Restated Charter. In addition, the Restated Bylaws provide for the following changes,
among others, to the Current Bylaws:
Advance Notice for Stockholder Proposals and Director Nominations
The Restated Bylaws establish advance notice procedures for stockholder proposals to be brought before a meeting of our
stockholders, including proposed nominations of persons for election to the Board. At an annual meeting, stockholders may
consider only proposals or nominations (i) specified in the notice of the meeting given at the direction of the Board, or as otherwise
properly brought before the meeting at the direction of the Board, or (ii) submitted by a stockholder who is a stockholder of record
at the time of giving the notice provided for in the Restated Bylaws through the meeting date, is entitled to vote at the meeting
and complies with the advance notice procedures, including with respect to timing and content, set forth in the Restated Bylaws.
To be timely, stockholder notice of proposals and nominations must be received by the corporate secretary no later than the close
of business on the 90th day, and no earlier than the 120th day, prior to the first anniversary of the date of the preceding year’s
annual meeting (unless the meeting date is significantly shifted as provided in the Restated Bylaws).
At a special meeting, stockholders may consider only business brought before the meeting pursuant to the Company’s notice of
the meeting, and if the notice includes director elections, nominations may be made (i) at the direction of the Board or (ii) by any
stockholder who is a stockholder of record at the time of giving the notice provided for in the Restated Bylaws through meeting
date, is entitled to vote at the meeting and on the election, and complies with the advance notice procedures, including with
respect to timing and content, set forth in the Restated Bylaws. To be timely, stockholder notice of a nomination must be received
by the corporate secretary no earlier than the close of business on the 120th day prior to the special meeting and no later than the
close of business on the later of (i) the 90th day prior to the meeting and (ii) the tenth day following the day on which public
disclosure of the date of the meeting is first made by the Company.
In addition, stockholders may consider a stockholder proposal included in the Company’s proxy materials in compliance with
Rule 14a-8 under the Exchange Act. All proposals and nominations must also comply with all applicable legal requirements.
Director Eligibility
Under the Restated Bylaws, no person will be eligible for election as a director unless he or she has, within ten days following a
reasonable request, made himself or herself available to be interviewed by the Board (or any committee or other subset thereof).
Conduct of Meetings
Under the Restated Bylaws, the Board Chair (or, in his or her absence, a director or officer appointed by the Board) will act as
the chairperson of stockholder meetings. The Board and the chairperson of a stockholder meeting may adopt rules, regulations
and procedures for the conduct of that meeting, and the chairperson will have the authority to convene and (for any or no reason)
recess or adjourn that meeting.
Lead Independent Director
Pursuant to the Restated Bylaws, if the Board Chair does not qualify as independent, the independent directors shall appoint a
lead independent director. The lead independent director, if any, shall preside at all executive sessions of the Board, serve as a
liaison to the Chief Executive Officer and other directors not present at executive sessions of the Board regarding topics discussed
in executive session or other matters as may be raised from time to time by one or more independent directors, work with the
Board Chair and other directors to determine agenda items for Board meetings, have the power to call meetings of the independent
directors, and have such other responsibilities, and perform such duties, as may from time to time be assigned to him or her by
the Board. The independent directors may remove or replace the lead independent director from such position at any time with
or without cause by the vote of a majority of the independent directors present at a duly convened Board meeting. The independent
directors shall periodically consider whether and, if so, when to rotate the position of lead independent director, and may appoint
a lead independent director for a specified term, which may be renewed. Pursuant to the Restated Bylaws, the independent
directors will appoint a lead independent director, effective as of the Restated Charter Effective Date.
The foregoing description does not purport to be complete and is subject to, and qualified in its entirety by, the provisions of the
Restated Bylaws, a copy of which is filed herewith as Exhibit 99.3.
Item 5.07 Submission of Matters to a Vote of Security Holders.
On February 25, 2025, the Board approved the Transactions, including approving and declaring advisable the Restated Charter,
and directing that it be submitted for stockholder approval by the majority written consent of stockholders. Also on
February 25, 2025, Daughters’ LLC delivered the Majority Written Consent to the Company approving the Restated Charter.
Because the Majority Written Consent is sufficient to satisfy the stockholder vote requirement under the DGCL for the approval
of amendments to the Current Charter, no additional stockholder vote will be needed to approve the Restated Charter.
Consequently, the Company will not be soliciting proxies or holding a meeting of stockholders to consider the Restated Charter.
Pursuant to Section 228 of the DGCL, Article II, Section 11 of the Current Bylaws and Section 14(c) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), and the regulations promulgated thereunder, including Regulation 14C, a
Schedule 14C Information Statement will be filed with the SEC and sent or given to the stockholders of the Company to provide
prompt notice of the taking of a corporate action by written consent of stockholders to the Company’s stockholders who have not
consented in writing to such action.
Item 7.01 Regulation FD Disclosure.
The Company also announced on February 25, 2025 that its Board has approved a new $500 million share repurchase program.
The share repurchase program authorizes the Company, in management’s discretion, to repurchase Common Shares from time to
time for an aggregate purchase price up to $500 million (exclusive of any fees, taxes, commissions or other expenses related to
such repurchases), subject to market conditions and other factors. The actual timing, number and value of shares repurchased
under the program will be determined by management in its discretion and will depend on a number of factors, including, but not
limited to, the market price of the Common Shares and general market and economic conditions.
The Company expects to strategically and opportunistically repurchase shares from time to time through solicited or unsolicited
transactions in the open market, in privately negotiated transactions or by other means in accordance with securities laws. It is
also possible that the Company could use a portion of its new share repurchase program to repurchase some of the Members’
Common Shares as part of the Potential Portfolio Diversification. Any repurchases from the Members would require special
approval from the Special Committee. The Company expects that share repurchases under the program will be funded from one
or a combination of existing cash balances and future free cash flow. The share repurchase program does not obligate the Company
to repurchase any specific amount of shares, does not have an expiration date, and may be suspended, modified or discontinued
at any time without prior notice.
Cal-Maine Foods issued a press release, dated February 25, 2025, titled “Cal-Maine Foods, Inc. Announces Agreement with
Company’s Founder’s Family and Also Announces New $500 Million Share Repurchase Program.” A copy of the press release
is furnished herewith as Exhibit 99.4 and is incorporated herein by reference.
The information included in this Item 7.01, including Exhibit 99.4 furnished herewith, is being furnished and shall not be deemed
to be filed for purposes of Section 18 of the Exchange Act, or otherwise subject to the liabilities of that section, nor shall it be
deemed incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as
shall be expressly set forth by specific reference in such filing.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in this Current Report on Form 8-K may contain “forward-looking statements” within the meaning
of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Exchange Act. Such forward-looking statements
are identified by the use of words such as “believes,” “intends,” “expects,” “hopes,” “may,” “should,” “plans,” “projected,”
“contemplates,” “anticipates,” or similar words. Actual outcomes or results could differ materially from those projected in the
forward-looking statements. The forward-looking statements are based on management’s current intent, belief, expectations,
estimates, and projections regarding the Company and its industry. These statements are not guarantees of future performance
and involve risks, uncertainties, assumptions, and other factors that are difficult to predict and may be beyond our control. The
factors that could cause actual results to differ materially from those projected in the forward-looking statements include, among
others, (i) the risk factors set forth in Part I Item 1A Risk Factors of our Annual Report on Form 10-K for the year ended
June 1, 2024, as well as those included in other reports we file from time to time with the SEC (including our Quarterly Reports
on Form 10-Q and Current Reports on Form 8-K), (ii) the occurrence of any event, change or other circumstances that could give
rise to the Board’s decision to abandon the Restated Charter or to the termination of the Conversion Agreement, (iii) the effect of
the announcement of the Conversion Agreement on the Common Shares’ trading price, the ability of the Company to retain and
hire key personnel and maintain relationships with its customers and suppliers, and on the Company’s operating results and
business generally, (iv) the impact on the Common Shares’ trading price of the sale or marketing, or potential sale or marketing,
of a significant number of Common Shares as part of the family’s portfolio diversification, (v) the risks and hazards inherent in
the shell egg business (including disease, pests, weather conditions, and potential for product recall), including but not limited to
the current outbreak of HPAI affecting poultry in the U.S., Canada and other countries that was first detected in commercial flocks
in the U.S. in February 2022 and that first impacted our flocks in December 2023, (vi) changes in the demand for and market
prices of shell eggs and feed costs, (vii) our ability to predict and meet demand for cage-free and other specialty eggs, (viii) risks,
changes, or obligations that could result from our recent or future acquisition of new flocks or businesses and risks or changes
that may cause conditions to completing a pending acquisition not to be met, (ix) risks relating to changes in inflation and interest
rates, (x) our ability to retain existing customers, acquire new customers and grow our product mix, (xi) adverse results in pending
litigation matters, and (xii) global instability, including as a result of the war in Ukraine, the conflicts in Israel and surrounding
areas and attacks on shipping in the Red Sea. Readers are cautioned not to place undue reliance on forward-looking statements
because, while we believe the assumptions on which the forward-looking statements are based are reasonable, there can be no
assurance that these forward-looking statements will prove to be accurate. Further, forward-looking statements included herein
are only made as of the respective dates thereof, or if no date is stated, as of the date hereof. Except as otherwise required by law,
we disclaim any intent or obligation to update publicly these forward-looking statements, whether because of new information,
future events, or otherwise.
Additional Information and Where to Find It
This Current Report on Form 8-K is being made in respect of the Transactions involving the Company and the Stockholder
Parties. Contemporaneously with the filing of this Current Report on Form 8-K, the Company is also filing a preliminary
Information Statement, containing the information with respect to the Restated Charter specified in Schedule 14C promulgated
under the Exchange Act. When completed, a definitive Information Statement will be mailed or delivered to the Company’s
stockholders. This Current Report on Form 8-K is not a substitute for the Information Statement on Schedule 14C, or any other
document that the Company may file with the SEC or send to its stockholders in connection with the Transactions.
STOCKHOLDERS OF THE COMPANY ARE URGED TO READ ALL RELEVANT DOCUMENTS FILED WITH THE SEC,
INCLUDING THE INFORMATION STATEMENT ON SCHEDULE 14C, AS WELL AS ANY AMENDMENTS OR
SUPPLEMENTS TO THESE DOCUMENTS, CAREFULLY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL
CONTAIN IMPORTANT INFORMATION ABOUT THE TRANSACTIONS.
The Company’s stockholders may obtain copies of all documents filed by the Company with the SEC, free of charge, at the SEC’s
website, www.sec.gov or from the Company’s website at https://www.calmainefoods.com/sec-filings or by contacting the
Company’s Secretary in writing or by telephone at Cal-Maine Foods, Inc., ATTN: Max P. Bowman, Secretary, 1052 Highland
Colony Pkwy, Suite 200, Ridgeland, MS 39157, telephone number (601) 948-6813.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
Exhibit
Number
Description
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
SIGNATURES
Pursuant to the requirements for the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
CAL-MAINE FOODS, INC.
Date:
February 25, 2025
By:
/s/ Max P. Bowman
Max P. Bowman
Director, Vice President, and Chief Financial Officer
AGREEMENT REGARDING CONVERSION
This AGREEMENT REGARDING CONVERSION (this “Agreement”) is made and entered into as
of February 25, 2025, among Cal-Maine Foods, Inc., a Delaware corporation (the “Company”), DLNL,
LLC, a Delaware limited liability company (“Daughters’ LLC”), and each member of Daughters’ LLC (each
a “Member” and, collectively with Daughters’ LLC, the “Stockholder Parties”).
RECITALS
WHEREAS, Daughters’ LLC was formed to invest in shares of Class A Common Stock, par value
$0.01 per share (“Class A Shares”), and shares of Common Stock, par value $0.01 per share (“Common
Shares”), of the Company;
WHEREAS, effective as of July 20, 2018, the initial owners of membership interests in Daughters’
LLC entered into the Limited Liability Company Operating Agreement for Daughters’ LLC (the “Existing
Daughters’ LLC Operating Agreement”);
WHEREAS, the Company’s issued and outstanding capital stock consists of: (a) Common Shares,
which are publicly traded on the NASDAQ stock exchange under the symbol “CALM,” and (b) Class A
Shares, which are privately held and not publicly traded, but are convertible on a share-for-share basis into
Common Shares at any time at the option of the holder thereof and automatically convert into Common
Shares under certain circumstances set forth in the Company’s existing Second Amended and Restated
Certificate of Incorporation, as amended (the “Current Charter”), including upon transfer to persons other
than Immediate Family Members or Permitted Transferees as defined in the Current Charter;
WHEREAS, pursuant to the Current Charter, except as required by law or the Current Charter, (a) the
Common Shares and Class A Common Shares vote together as a class, with the holders of Common Shares
having one vote per share and the holders of Class A Shares having ten votes per share on all matters on
which such shares are entitled to vote, and (b) except for such conversion and voting rights, the Common
Shares and Class A Shares have substantially similar rights, powers and privileges;
WHEREAS, Daughters’ LLC is the record owner of (a) 4,800,000 Class A Shares, representing
100% of the outstanding Class A Shares, and (b) 1,087,956 Common Shares;
WHEREAS, the Class A Shares currently represent over 50% of the total voting power of the
outstanding shares of the Company in the election of directors and matters other than the election of
directors, and the Company is a “controlled company” pursuant to the rules of the NASDAQ Stock Market;
WHEREAS, the Members (and/or their respective predecessors-in-interest) formed Daughters’ LLC
and entered into the Existing Daughters’ LLC Operating Agreement to permit the Members (together with
their Permitted Transferees, as defined in the Current Charter) to continue to own and retain, directly or
indirectly, Common Shares and Class A Shares sufficient to maintain control of the Company, in order to
provide for the long-term, stable and consistent ownership and governance of the Company;
WHEREAS, the Members have expressed to the Company’s Board of Directors (the “Board”) that
the Members are potentially interested in diversifying their respective financial portfolios, including the
potential sale of all or a portion of the Common Shares owned by Daughters’ LLC and the Common Shares
underlying the Class A Shares owned by Daughters’ LLC (the “Potential Portfolio Diversification”);
WHEREAS, Adolphus B. Baker, the Company’s Chairman of the Board, is the Managing Member
of Daughters’ LLC, and the other Members of Daughters’ LLC are Mr. Baker’s wife and her three sisters;
WHEREAS, because Mr. Baker has an interest in the matters provided for in this Agreement, the
Board has authorized an ad hoc committee (the “Special Committee”), consisting solely of disinterested
Independent Directors (as defined in Section 3.1), to consider what corporate actions, if any, should be taken
to address the impact of the Potential Portfolio Diversification on the Company and its stockholders;
WHEREAS, the Special Committee considered and determined, among other things, that it is in the
best interests of the Company and its stockholders for the Company to facilitate the sale of shares (including
Common Shares underlying the Class A Common Stock) and manage the loss of controlled company status,
in each case, in an orderly manner in compliance with legal requirements;
WHEREAS, on February 24, 2025, the Special Committee unanimously recommended to the Board
that the Company, the Members and Daughters’ LLC enter into this Agreement to implement the following
corporate actions to address the impact of the Potential Portfolio Diversification on the Company and its
stockholders: (a) amending and restating the Current Charter, (b) amending and restating the Company’s
Bylaws (the “Bylaws”), and (c) effective upon the conversion by Daughters’ LLC of all Class A Shares into
Common Shares, granting to the Members certain rights to cause the sale or transfer of Common Shares
owned by Daughters’ LLC or such Members to be registered under the Securities Act of 1933, as amended
(the “Securities Act”), in accordance with the registration rights set forth in Exhibit A, in each case, on the
terms and subject to the conditions set forth herein; and
WHEREAS, on February 25, 2025, the Board of Directors of the Company (taking into account the
recommendation of the Special Committee) approved the Company’s execution of this Agreement and the
actions and the Company’s performance of the transactions contemplated hereby, which approval was
unanimous, with the sole exception being that Adolphus B. Baker recused himself with respect to the vote
to approve the execution of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties,
covenants and agreements set forth in this Agreement, the parties agree as follows:
ARTICLE I
MODIFICATIONS TO THE COMPANY’S ORGANI
Z
ATIONAL DOCUMENTS
1.1
Restated Charter
(a) The Board has approved (i) the Third Amended and Restated Certificate of
Incorporation of the Company substantially in the form attached to this Agreement as Exhibit B (the
“Restated Charter”), and (ii) the submission of the Restated Charter to Daughters’ LLC for approval by
majority written consent of stockholders in accordance with the Current Charter and Section 228 of the
Delaware General Corporation Law (the “DGCL”).
(b) Promptly following the execution and delivery of this Agreement, Daughters’ LLC
agrees to execute and deliver to the Company the majority written consent of stockholders substantially in
the form attached to this Agreement as Exhibit C (the “Majority Written Consent”), which Majority Written
Consent, upon execution and delivery by Daughters’ LLC, would constitute stockholder approval of the
Restated Charter in compliance with Section 242(b) of the DGCL.
(c) The Company shall use commercially reasonable efforts to obtain an amendment,
consent or waiver from the requisite lenders under the Company’s Amended and Restated Credit Agreement,
dated as of May 26, 2023, such that the Class A Conversion (as defined in Section 2.1(a)) will not result in
a “change of control” within the meaning of such credit agreement (the “Credit Agreement Amendment”).
(d) As soon as practicable following (i) the execution and delivery by Daughters’ LLC
of the Majority Written Consent, (ii) the satisfaction by the Company of applicable notice and information
statement requirements under the DGCL and the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and (iii) the execution and delivery by the requisite lenders of the Credit Agreement
Amendment, the Company shall file the Restated Charter with the Secretary of State of the State of
Delaware, to become effective promptly after filing in accordance with the DGCL, subject to the Board’s
ability, prior to the effectiveness of the Restated Charter, in accordance with DGCL Section 242(c), to
abandon the Restated Charter without further action by the Company’s stockholders if the Board determines
that doing so is in the best interests of the Company and its stockholders. The date and time of such
effectiveness shall be referred to herein as the “Restated Charter Effective Date.”
1.2
Restated Bylaws. The Board has approved the Amended and Restated Bylaws substantially
in the form attached to this Agreement as Exhibit D (the “Restated Bylaws”), which shall become effective
upon the Restated Charter Effective Date.
ARTICLE II
REGISTRATION RIGHTS UPON CONVERSION OF ALL CLASS A SHARES
2.1 Conversion of All Class A Shares into Common Shares. The Stockholder Parties agree
that any conversion of Class A Shares shall be made in accordance with the provisions of this
Agreement, including the following covenants:
(a) If Daughters’ LLC converts any Class A Shares into Common Shares, it shall
simultaneously convert all (but not less than all) outstanding Class A Shares into Common Shares in
accordance with the terms of the Class A Shares (the “Class A Conversion”). The effective date of the
Class A Conversion is referred to in this Agreement as the “Class A Conversion Date.”
(b) Daughters’ LLC shall not convert any Class A Shares prior to (i) the Restated Charter
Effective Date or (ii) the date that the Company obtains the Credit Agreement Amendment, whichever is
later.
(c) The Members acknowledge and agree that, in order to exercise any registration rights
under this Agreement or to offer or sell any Common Shares in a registered offering under the Securities
Act, Daughters’ LLC must have first converted all outstanding Class A Shares into Common Shares.
2.2
Amendment and Restatement of the Limited Liability Company Operating Agreement for
Daughters’ LLC. Immediately following the execution and delivery of this Agreement, Daughters’ LLC
and each of the Members shall execute and deliver the Amended and Restated Limited Liability Company
Operating Agreement for Daughters’ LLC substantially in the form attached to this Agreement as Exhibit E
(the “Daughters’ LLC Amendment”). Daughters’ LLC and the Members agree that, following the
effectiveness of the Daughters’ LLC Amendment, the Daughters’ LLC Agreement shall not be revoked,
terminated, amended, modified or supplemented without the prior written consent of the Special Committee.
2.3
Takedowns of Subject Shares from Resale Shelf Registration Statement.
(a) The term “Subject Shares” means, for each Member:
(i) the Common Shares listed opposite such Member’s name in Table I of
Schedule 2 under the heading titled “Total Economic Beneficial Ownership of Common
Shares”; and
(ii) the Common Shares listed opposite such Member’s name in Table II of
Schedule 2 under the heading titled “Common Shares.”
(b) During the Term (as defined below), each Member shall be entitled to offer and sell
Subject Shares held by such Member pursuant to a Takedown under a Resale Shelf Registration Statement
(as such terms are defined in Exhibit A), to the extent provided by the registration rights and related
provisions set forth on Exhibit A, which provisions are incorporated herein as if set forth in this Agreement.
The “Term” shall mean the period beginning on the Class A Conversion Date and ending on (i) the 12-
month anniversary of the Class A Conversion Date or (ii) December 31, 2026, whichever is earlier.
2.4
Potential Repurchase of Common Shares by the Company. The parties acknowledge that,
from time to time, the Company or the Members may propose that the Company repurchase a portion of the
Subject Shares; provided, however, that the terms of any such repurchase must be approved by each such
selling Member and the Special Committee and that no party shall be obligated to enter into any such
repurchase transaction.
ARTICLE III
VOTING OF COMMON SHARES AND CLASS A SHARES
3.1
Voting on the Election of Directors. Prior to the expiration of the Term, at any meeting of
the stockholders of the Company, each Stockholder Party agrees (i) to cause all Common Shares and Class A
Common Shares held by such Stockholder Party, or over which such Stockholder Party has voting discretion
or control as of the applicable record date, to be present either in person or by proxy for quorum purposes
at any stockholders meeting at which directors of the Company are elected, and (ii) to vote, or cause to be
voted, such Common Shares and Class A Common Shares held by it, or over which such Stockholder Party
has voting discretion or control, in favor of not less than three Independent Directors. For purposes of this
Agreement, the term “Independent Director” shall mean a member of the Board of Directors of the Company
(or a nominee for such position) who is (1) not a managing member, manager, officer, employee or
consultant of, or advisor to, the Company or any Stockholder Party, or a person who shall have served in
such capacity within three years immediately preceding the date of such determination, (2) independent of,
and not affiliated with, any Stockholder Party, as determined in good faith by the Board’s Nominating
Committee, and (3) otherwise independent within the meaning of the rules and regulations of the U.S.
Securities and Exchange Commission (the “SEC”) and the NASDAQ listing standards.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
As an inducement to enter into this Agreement and to consummate the transactions contemplated
hereby, the Company represents and warrants to the Stockholder Parties, as of the date hereof, as follows:
4.1
Power and Authority. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all corporate right, power and authority to
enter into and deliver this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated by this Agreement. The execution, delivery and performance of this Agreement
by the Company has been duly and validly authorized by all necessary corporate action. This Agreement
has been duly executed and delivered by the Company and (assuming due authorization, execution and
delivery by the Stockholder Parties), constitutes the legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, subject to (a) applicable bankruptcy, insolvency,
fraudulent conveyance and other similar laws and (b) general principles of equity, including equitable
defenses and limits as to the availability of equitable remedies, whether such principles are considered in a
proceeding at law or in equity.
4.2
Conflicts; Consents and Approvals. The execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement by the Company do not and will not
(a) violate, conflict with, or result in a breach of any provision of, or constitute a default under, (i) the
Current Charter or the Bylaws, or (ii) subject to obtaining the Credit Agreement Amendment, any
agreement, indenture, mortgage, or other instrument to which the Company is a party or by which the
Company is or may be bound or to which any of the Company’s property or assets is subject; (b) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to the Company; or (c) require any action
or consent or approval of, or review by, or registration or material filing by it with any governmental
authority, other than the filing of the Information Statement and other disclosures with the SEC in
compliance with the Exchange Act and as otherwise contemplated in Exhibit A in connection with the
registration of the Subject Shares pursuant to a Resale Shelf Registration Statement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF EACH STOC
K
HOLDER PARTY
As an inducement to enter into this Agreement and to consummate the transactions contemplated
hereby, each Stockholder Party represents and warrants to the Company as follows:
5.1
Power and Authority. Each Stockholder Party has full capacity and all requisite right, power
and authority to enter into and deliver this Agreement, to perform such party’s obligations hereunder and to
consummate the transactions contemplated by this Agreement. This Agreement has been duly executed and
delivered by such Stockholder Party and (assuming due authorization, execution and delivery by the
Company), constitutes the legal, valid and binding obligation of such Stockholder Party, enforceable against
such party in accordance with its terms, subject to (a) applicable bankruptcy, insolvency, fraudulent
conveyance and other similar laws and (b) general principles of equity, including equitable defenses and
limits as to the availability of equitable remedies, whether such principles are considered in a proceeding at
law or in equity.
5.2
Conflicts; Consents and Approvals. The execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement by such Stockholder Party do not and
will not (a) violate, conflict with, or result in a breach of any provision of, or constitute a default under, any
agreement, indenture, mortgage, or other instrument to which such Stockholder Party is a party or by which
such Stockholder Party is or may be bound or to which any of such Stockholder Party’s property or assets
is subject; (b) violate any order, writ, injunction, decree, statute, rule or regulation applicable to such
Stockholder Party or the applicable Subject Shares; or (c) require any action or consent or approval of, or
review by, or registration or material filing by it with any governmental authority, other than one or more
amendments to the Schedule 13D, as amended, filed by Adolphus B. Baker and others with the SEC and as
otherwise contemplated in Exhibit A in connection with the registration of the Subject Shares pursuant to a
Resale Shelf Registration Statement.
5.3
Securities Laws. As of the date hereof, each Stockholder Party represents and warrants to
and agrees with the Company as follows with respect to securities laws:
(a) Such Stockholder Party is an “accredited investor” (as that term is defined in
Rule 501 of Regulation D under the Securities Act).
(b) Such Stockholder Party, together with such party’s legal, financial and other advisors,
has such knowledge and experience in financial and business matters and is capable of evaluating the merits
and risks of the transactions contemplated by this Agreement so as to make an informed decision with
respect thereto.
(c) Such Stockholder Party (i) has received all information that such party and such
party’s advisors deem necessary to make an informed decision with respect to the transactions contemplated
by this Agreement; (ii) has had the unrestricted opportunity to make such investigation as such Stockholder
Party and such advisors desire pertaining to the Company and its capital stock and to verify any information
with respect to the Company and its capital stock; and (iii) has had the opportunity to ask questions of
representatives of the Company concerning the Company and its capital stock.
ARTICLE VI
MISCELLANEOUS
6.1
Survival. All representations, warranties and obligations contained in this Agreement shall
survive the consummation of the transactions contemplated by this Agreement.
6.2
Counterparts. This Agreement may be executed in any number of counterparts, which
together shall constitute one and the same Agreement. The parties may execute more than one copy of the
Agreement, each of which shall constitute an original.
6.3
Entire Agreement. This Agreement (including the Schedules and Exhibits hereto) constitutes
the entire agreement between the parties and supersedes all prior agreements, understandings, arrangements
or representations by or between the parties, written and oral, with respect to the subject matter hereof.
Consistent with the foregoing and for the avoidance of doubt, that certain Agreement Regarding Common
Stock dated as of July 20, 2018 by and among the Company and the Members, among others, will terminate
upon execution and delivery of this Agreement.
6.4
Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended or shall
be construed to create any third party beneficiaries.
6.5
Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of
Delaware, without giving effect to the conflict of laws principles thereof.
6.6
Amendment; Waiver. This Agreement may not be altered, amended or supplemented except
by an agreement in writing signed by each of the parties hereto. Any provision of this Agreement may not
be waived without a written instrument from the waiving party with respect to each such waiver.
6.7
Specific Performance. The parties acknowledge and agree that any breach of the terms of
this Agreement would give rise to irreparable harm for which money damages would not be an adequate
remedy and accordingly the parties hereto agree that, in addition to any other remedies, each party shall be
entitled to enforce the terms of this Agreement by a decree of specific performance without the necessity of
proving the inadequacy of money damages as a remedy.
6.8
Notices. All notices, requests, claims, demands and other communications hereunder shall
be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt)
by delivery in person, by courier service or by registered or certified mail to the respective parties at the
addresses set forth on Schedule 1 (or at such other address for a party as shall be specified in a notice given
in accordance with this Section), with a copy (which shall not constitute notice) to the counsel of such party
as set forth on Schedule 1.
6.9
Severability. If any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or legal substance of the
transactions contemplated herein are not affected in any manner materially adverse to any party hereto.
6.10
Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement shall be binding upon, inure
to the benefit of and be enforceable by the parties and their respective successors and assigns. Not in
limitation of the generality of the foregoing, this Agreement shall be binding upon, inure to the benefit of
and be enforceable by the estate and heirs of any individual Stockholder Party after such Stockholder Party’s
death. Notwithstanding anything in this Agreement (including Exhibit A hereto) to the contrary, the
registration rights provided hereunder are personal to each Member and may not be transferred or assigned
without the prior written consent of the Special Committee.
6.11
Fees and Expenses. Except as otherwise may be provided in this Agreement (including
Exhibit A hereto), all costs and expenses incurred in connection with this Agreement and the transactions
contemplated by this Agreement, including, to the extent applicable, any stock transfer or similar taxes or
brokerage or similar fees, shall be the responsibility of and shall be paid by the party incurring such fees or
expenses, regardless of whether the transactions contemplated by this Agreement are consummated. The
obligations of the parties with respect to expenses related to a Resale Shelf Registration Statement and
Takedown are set forth on Exhibit A hereto and are incorporated herein by reference.
6.12
Further Assurances. Each of the parties hereto shall use such party’s reasonable best efforts
to take, or cause to be taken, all appropriate action, to do or cause to be done all things necessary, proper or
advisable under applicable law, and to execute and deliver such documents and other papers, as may be
required to carry out the provisions of this Agreement and to consummate and make effective the
transactions contemplated by this Agreement.
6.13
LEGAL REPRESENTATION. EACH STOCKHOLDER PARTY HEREBY
ACKNOWLEDGES THAT SUCH STOCKHOLDER PARTY HAS BEEN ADVISED TO SEEK, AND
HAS HAD THE OPPORTUNITY TO SEEK, INDEPENDENT LEGAL COUNSEL TO REVIEW THIS
AGREEMENT ON SUCH STOCKHOLDER PARTY’S BEHALF. EACH STOCKHOLDER PARTY
FURTHER ACKNOWLEDGES AND AGREES THAT ROB HOLLADAY (THE COMPANY’S
GENERAL COUNSEL), SIDLEY AUSTIN LLP AND JONES WALKER LLP ARE LEGAL COUNSEL
SOLELY TO THE COMPANY AND DO NOT REPRESENT ANY OF THE STOCKHOLDER PARTIES
WITH RESPECT TO THIS AGREEMENT OR ANY OF THE OTHER DOCUMENTS OR ACTIONS
TAKEN IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE
REGISTRATION RIGHTS PROVISIONS CONTAINED IN EXHIBIT A AND THE DAUGHTERS’ LLC
AMENDMENT.
6.14
WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
6.15
EXCLUSIVE FORUM. EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURT OF CHANCERY
OF THE STATE OF DELAWARE (OR IF SUCH COURT DOES NOT HAVE SUBJECT MATTER
JURISDICTION, ANY OTHER STATE COURT OF THE STATE OF DELAWARE OR THE FEDERAL
COURTS LOCATED IN THE STATE OF DELAWARE) IN ANY ACTION, SUIT OR PROCEEDING
ARISING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION,
SUIT OR PROCEEDING SHALL BE BROUGHT ONLY IN THE COURT OF CHANCERY (OR SUCH
OTHER COURTS IDENTIFIED HEREIN IF THE COURT OF CHANCERY DOES NOT HAVE
SUBJECT MATTER JURISDICTION) AND WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS OR ANY OTHER OBJECTION TO VENUE THEREIN; PROVIDED, HOWEVER,
THAT SUCH CONSENT TO JURISDICTION IS SOLELY FOR THE PURPOSE REFERRED TO IN
THIS PARAGRAPH AND SHALL NOT BE DEEMED TO BE A GENERAL SUBMISSION TO THE
JURISDICTION OF SUCH COURTS OR IN THE STATE OF DELAWARE OTHER THAN FOR SUCH
PURPOSE. SERVICE OF PROCESS ON A PARTY TO ANY SUCH ACTION, SUIT OR PROCEEDING
SHALL BE EFFECTIVE IF DELIVERED TO SUCH PARTY IN ACCORDANCE WITH SECTION 6.8.
[Signature Page Follows; Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed
as of the date first set forth above.
COMPANY:
CAL-MAINE FOODS, INC.
By: /s/ Max P. Bowman
Max P. Bowman
Vice President and Chief Financial Officer
STOCKHOLDER PARTIES:
DLNL, LLC
By: /s/ Adolphus B. Baker
Adolphus B. Baker
Managing Member
Dinnette Adams Baker
Luanne Adams
Nancy Adams Briggs
Laurel Adams Krodel
Adolphus B. Baker
COMPANY
Address: Cal-Maine Foods, Inc.
Telephone: 601-948-6813
Fax: 601-969-0905
Email:
With a copy to counsel:
Telephone: 601-948-6813
Fax: 601-969-0905
Email:
DAUGHTERS’ LLC
Address: DLNL, LLC c/o Adolphus B. Baker
Telephone: 601-948-6813
Fax: 601-969-0905
Email:
DINNETTE ADAMS BAKER:
Address: c/o Adolphus B. Baker
Telephone: 601-948-6813
Fax: 601-969-0905
Email:
LUANNE ADAMS:
Address: c/o Adolphus B. Baker
Telephone: 601-948-6813
Fax: 601-969-0905
Email:
NANCY ADAMS BRIGGS:
Address: c/o Adolphus B. Baker
Telephone: 601-948-6813
Fax: 601-969-0905
Email:
LAUREL ADAMS KRODEL:
Address: c/o Adolphus B. Baker
Telephone: 601-948-6813
Fax: 601-969-0905
Email:
ADOLPHUS B. BAKER:
Address: c/o Cal-Maine Foods, Inc.
Telephone: 601–948–6813
Fax: 601–969–0905
Email:
With a copy to counsel:
Name of Attorney: Joseph E. Varner III
Name of Firm: Brunini Law
Address: 190 East Capitol Street, Suite 190
Address (continued): Jackson, MS 39201
Telephone:
Fax:
Email:
SUBJECT SHARES
TABLE I:
MEMBERS’ ECONOMIC BENEFICIAL OWNERSHIP OF
COMMON SHARES AND CLASS A SHARES
THROUGH DAUGHTERS’ LLC
Member
Daughters’
LLC
Common
Units
Common
Shares
Underlying
Daughters’
LLC
Common
Units
Daughters’
LLC
Class A
Units
Class A
Shares
Underlying
Daughters’
LLC Class A
Units
Common
Shares
Underlying
Class A
Shares
Total
Economic
Beneficial
Ownership
of Common
Shares
Adolphus B. Baker
0
0
1,309,245
1,309,245
1,309,245
1,309,245
Dinnette Adams Baker
56,595
56,595
1,090,755
1,090,755
1,090,755
1,147,350
Luanne Adams
343,787
343,787
800,000
800,000
800,000
1,143,787
Nancy Adams Briggs
343,787
343,787
800,000
800,000
800,000
1,143,787
Laurel Adams Krodel
343,787
343,787
800,000
800,000
800,000
1,143,787
Total
1,087,956
1,087,956
4,800,000
4,800,000
4,800,000
5,887,956
TABLE II:
MEMBERS’ ECONOMIC BENEFICIAL OWNERSHIP OF
COMMON SHARES NOT OWNED BY DAUGHTERS’ LLC,
BUT COVERED BY EXHIBIT A REGISTRATION RIGHTS
Member
Common
Shares
Adolphus B. Baker
145,266
Dinnette Adams Baker
230,570
Adolphus B. Baker &
Dinnette Adams Baker, joint tenants
46
Luanne Adams
738
Nancy Adams Briggs
57,007
Laurel Adams Krodel
887
Total
434,514
REGISTRATION RIGHTS
This Exhibit A to the Agreement Regarding Conversion (the “Agreement”) describes the agreements
of the parties thereto relating to Resale Shelf Registration Statements and Takedowns. Capitalized terms
used but not defined herein shall have the respective meanings set forth in the Agreement.
ARTICLE I
DEMAND RESALE SHELF REGISTRATION
1.1
(a) Subject to the terms and conditions of this Exhibit A, the Company shall, promptly
after the Class A Conversion Date, file a shelf registration statement with the SEC in accordance with the
Securities Act for an offering on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act (a “Resale Shelf Registration Statement”). Subject to the terms of the Agreement, the Company (with
the cooperation of the applicable Members) shall cause there to be filed with the SEC a Resale Shelf
Registration Statement meeting the requirements of the Securities Act and such Members shall be entitled
to have included therein all of the Subject Shares. If the Company qualifies as a Well Known Seasoned
Issuer (as defined in Rule 405 under the Securities Act), then, promptly after the Class A Conversion Date,
the Company will file an Automatic Shelf Registration Statement (as defined in Rule 405 under the
Securities Act) on Form S-3 (“Form S-3ASR”), which will become automatically effective. As permitted
for a Form S-3ASR, such registration statement will not specify which Members may be selling stockholders
or the number of shares to be sold, and instead will register an indeterminate amount of Subject Shares for
resale without identifying the selling stockholders. Instead, the Members who will be selling stockholders
and the Subject Shares to be sold will be disclosed in a subsequent Resale Shelf Prospectus Supplement for
a Takedown (as such terms are defined below). Also, as permitted by Rule 456(b) under the Securities Act,
the SEC registration fees shall not be paid at the time of filing of such Form S-3ASR and, instead, shall be
deferred and paid at the time of filing of such Resale Shelf Prospectus Supplement for a Takedown.
(b) Following the effectiveness of a Resale Shelf Registration Statement, the applicable
Members shall be entitled to request the Company to file a prospectus or prospectus supplement (a “Resale
Shelf Prospectus Supplement”) with respect thereto to effect a takedown for an offering of Common Shares
registered thereby (“Takedown”). Any request made pursuant to this Section 1.1(b) shall be made pursuant
to Section 2.3 of the Agreement, and shall specify the number of Subject Shares to be offered, the intended
methods of disposition thereof and that the request is for a Resale Shelf Prospectus Supplement. Upon
receipt of a request from a Member, the Company shall provide notice to all other Members that it has
received a request to file a Resale Shelf Prospectus for a Takedown to permit other Members to permit them
to request to include their Subject Shares therein at the same time.
(c) The Special Committee shall have the authority to approve any demands for
Takedowns, including the minimum number of shares to be included, the timing of any Takedown, how
frequently Takedowns may be permitted, and whether to require standstill agreements from the selling
shareholders beyond what is required from the underwriters and, if so, the terms thereof.
1.2
Company shall:
(a) File the Resale Shelf Registration Statement with the SEC as promptly as practicable,
and shall use the Company’s commercially reasonable efforts to have the registration declared effective
under the Securities Act as soon as reasonably practicable.
(b) Continue to maintain and renew the Resale Shelf Registration Statement for such
periods as approved by the Special Committee.
1.3
The Special Committee shall continue to consider requests for Takedowns for the Subject
Shares from a Member until the expiration of the Term.
1.4
A Resale Shelf Registration Statement shall be on Form S-3 or any successor form provided
that the Company qualified for such form at the time.
1.5
If any Takedown will involve an underwritten offering (whether on a “firm,” “best efforts”
or “all reasonable efforts” basis or otherwise), or an agented offering, the Company shall have the right to
select one or more underwriters and underwriters’ representatives to administer such underwritten offering
or the agents for such agented offering, subject to the consent of the applicable Members and their counsel,
which consent shall not be unreasonably withheld.
ARTICLE II
TA
K
EDOWN PROCEDURES
2.1
Subject to approval by the Special Committee under Article I of this Exhibit A to effect the
Takedown of any Common Shares and subject to Section 2.2 of this Exhibit A, the Company shall, as
expeditiously as practicable:
(a) Prepare and file with the SEC such amendments and supplements to the Resale Shelf
Registration Statement and the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act, the Exchange Act and rules and regulations
thereunder with respect to the disposition of all securities covered by such registration statement in
accordance with the method of disposition set forth in such registration statement. If the registration is for
an underwritten offering, the Company shall amend the registration statement or supplement the prospectus
whenever reasonably required by the terms of the underwriting agreement. Subject to Rule 415 under the
Securities Act, the Company shall amend the registration statement or supplement the prospectus so that it
will remain current and in compliance with the requirements of the Securities Act for such period as shall
be approved by the Special Committee. If any event or development occurs as a result of which a registration
statement or prospectus contains a misstatement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading, the Company shall promptly
notify the applicable Members and their counsel, amend the registration statement or supplement the
prospectus so that each will thereafter comply with the Securities Act and furnish to such Members and their
counsel such amended or supplemented prospectus for use in the offer and sale of Common Shares covered
by such registration statement. Pending such amendment or supplement, such Members shall cease making
offers and sales of Common Shares pursuant to the prior prospectus. In the event that any Common Shares
included in a registration statement remain unsold following all Takedowns approved by the Special
Committee, the Company may file a post-effective amendment to the registration statement for the purpose
of removing such securities from registered status.
(b) Furnish to the applicable Members and their counsel such numbers of copies of the
registration statement, any pre-effective or post-effective amendment thereto, the prospectus, including each
preliminary prospectus and any amendments or supplements thereto, in each case in conformity with the
requirements of the Securities Act and the rules thereunder, and such other related documents as such
Members and their counsel may reasonably request in order to facilitate the disposition of Common Shares
owned by such Members.
(c) To the extent necessary, use the Company’s commercially reasonable efforts (i) to
register and qualify the Common Shares covered by such registration statement under such other securities
or Blue Sky laws of such states or U.S. jurisdictions as shall be reasonably requested by the underwriters’
representative or agent (as applicable, or if inapplicable, the applicable Members and their counsel), (ii) to
keep such registration or qualification in effect for so long as such registration statement remains in effect,
and (iii) to obtain the withdrawal of any order suspending the effectiveness of a registration statement, or
the lifting of any suspension of the qualification (or exemption from qualification) of the offer and sale of
any of such Common Shares in any jurisdiction, at the earliest possible moment; provided, however, that
the Company shall not be required in connection therewith or as a condition thereto to qualify to do business
or to file a general consent to service of process in any such states or jurisdictions.
(d) In the event of any underwritten or agented offering, enter into and perform the
Company’s obligations under an underwriting or agency agreement (including indemnification and
contribution obligations of underwriters or agents), in usual and customary form, with the managing
underwriter or underwriters of or agents for such offering, and (i) make such representations and warranties
to the underwriters’ representative or agent with respect to the business of the Company and its subsidiaries,
the registration statement or prospectus, in each case, in form, substance and scope as are customarily made
by issuers to underwriters in underwritten offerings and confirm the same if and when requested and
(ii) deliver such documents and certificates as may be reasonably requested by the applicable Members,
their counsel, the underwriters’ representative or agent, if any, to evidence the continued validity of the
representations and warranties of the Company and its subsidiaries made pursuant to clause (i) above and
to evidence compliance with any customary conditions contained in the underwriting agreement or similar
agreement entered into by the Company. The foregoing actions shall be taken in connection with each
closing under such underwriting or similar agreement as and to the extent required thereunder. The
Company shall also cooperate with the applicable Members and their counsel and the underwriters’
representative or agent for such offering in the marketing of the Common Shares, including making
available, on a commercially reasonable basis, the Company’s officers, accountants, counsel, premises,
books and records for such purpose, but the Company shall not be required to incur any material out-of-
pocket expense pursuant to this sentence.
(e) In the event of any underwritten or agented offering, the Company and members of
its management (which shall include the Chief Executive Officer and the Chief Financial Officer or such
other members of its management acceptable to the underwriters’ representative or agent, if any) shall
participate in roadshows and other similar selling efforts as the underwriters’ representative or agent, if any,
shall reasonably deem to be necessary; provided, however, the Company and members of its management
shall not be obligated to participate in more than a total of two roadshows or other similar selling efforts
with respect to the Subject Shares.
(f) Promptly notify the applicable Members and their counsel of any stop order issued
or threatened to be issued by the SEC in connection therewith (and take commercially reasonable actions
required to prevent the entry of such stop order or to remove it if entered).
(g) Make generally available to the Company’s security holders copies of all periodic
reports, proxy statements, and other information referred to in Section 6.1 below, and an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act no later than 90 days following the end of the
12-month period beginning with the first month of the Company’s first fiscal quarter commencing after the
effective date of each registration statement filed pursuant to this Agreement.
(h) Make available for inspection by the applicable Members and their counsel, any
underwriter participating in such offering and the representatives of such Members and the underwriter (but
not more than one firm of counsel to each), all financial and other information as shall be reasonably
requested by them, and provide such Members and their counsel, any underwriter participating in such
offering and the representatives thereof the opportunity, on a commercially reasonable basis, to discuss the
business affairs of the Company with appropriate officers and independent public accountants who have
certified the audited financial statements included in such registration statement, in each case all as
necessary to enable them to exercise their due diligence responsibility under the Securities Act; provided,
however, that any records, information or documents that are designated by the Company as confidential at
the time of delivery of such records, information or documents shall be kept confidential by such persons
unless (i) such records, information or documents are in the public domain or otherwise publicly available
(other than by reason of breach of this confidentiality provision), (ii) disclosure of such records, information
or documents is required by court or administrative order or is necessary to respond to inquiries of regulatory
authorities, or (iii) disclosure of such records, information or documents, in the reasonable opinion of
counsel to such person, is otherwise required by law or regulation (including, without limitation, pursuant
to the requirements of the Securities Act or regulations promulgated thereunder); provided, however, that in
the case of clauses (ii) and (iii) of this Section 2.1(h), prior to making such disclosure, such Members and
their counsel shall consult with the Company and its counsel as to the necessity of such disclosure, the
timing and content of such disclosure and the nature and wording of such disclosure and shall use its
reasonable best efforts to obtain, at the Company’s expense, confidential treatment of such records,
information or documents, or portions thereof. Also, to the extent possible, the Company shall be given a
reasonable opportunity to intervene with the appropriate authorities in order to prevent disclosure of such
records, information or documents, or portions thereof.
(i) Use the Company’s commercially reasonable efforts to obtain a so-called “comfort
letter” from its independent public accountants, and legal opinions of counsel to the Company addressed to
the applicable Members, or the underwriters’ representative or agent, as applicable, in customary form and
covering such matters of the type customarily covered by such letters, and in a form that shall be reasonably
satisfactory to such Members and their counsel or the underwriters’ representative or agent, as applicable.
The Company shall furnish to such Members and their counsel a signed counterpart of any such comfort
letter or legal opinion. Delivery of any such opinion or comfort letter shall be subject to the recipient
furnishing such written representations or acknowledgements as are customarily provided by sellers of
securities who receive such comfort letters or opinions.
(j) Take such other actions as are commercially reasonably required in order to expedite
or facilitate the effectiveness of the Takedown of the Subject Shares approved by the Special Committee.
2.2
(a) Notwithstanding anything to the contrary in the Agreement (including in this
Exhibit A):
(i) the Company shall be entitled to postpone the filing or effectiveness of, or, at
any time after a Resale Shelf Registration Statement has been declared effective by the SEC,
suspend the use of, a Resale Shelf Registration Statement (including the Resale Shelf
Prospectus Supplement included therein) if in the good faith judgment of the Special
Committee, such registration, offering or use could reasonably be expected to materially
affect the Company in an adverse manner, or materially interfere with any significant
transaction under consideration by the Company, or would require the disclosure of
information that has not been, and is not otherwise required to be, disclosed to the public and
the premature disclosure of which could reasonably be expected to materially affect the
Company in an adverse manner; and
(ii) at any time after a Resale Shelf Registration Statement has been declared
effective by the SEC, the Company may delay the disclosure of material non-public
information concerning the Company if the disclosure of such information at the time would,
in the good faith judgment of the Special Committee, adversely affect the Company (the
period of a postponement or suspension as described in Section 2.2(a)(i) of this Exhibit A
and/or a delay described in this Section 2.2(a)(ii), a “Grace Period”), but only if neither the
Company nor any Member has a duty to disclose such material non-public information under
applicable law.
(b) The Company shall promptly (i) notify the Members in writing of the existence of
circumstances giving rise to a Grace Period (provided, however, that the Company shall not disclose the
substance of such circumstances, including any related material non-public information, to any Member,
without the express consent of such Member) or the need to file a post-effective amendment or amended
Resale Shelf Prospectus Supplement, as applicable, and the date on which such Grace Period will begin,
(ii) use commercially reasonable efforts to terminate a Grace Period as promptly as practicable and
(iii) notify the Members in writing of the date on which the Grace Period ends.
(c) The duration of any single Grace Period shall not exceed 90 days, and the aggregate
duration of all Grace Periods in total shall not exceed 120 days. For purposes of determining the length of
a Grace Period, the Grace Period shall be deemed to begin on and include the date the Members receive the
notice referred to in clause (i) of Section 2.2(b) of this Exhibit A and shall end on and include the later of
(i) the date the Members receive the notice referred to in clause (iii) of Section 2.2(b) of this Exhibit A and
(ii) the date referred to in such notice.
ARTICLE III
MEM
B
ERS’ O
B
LIGATIONS
3.1
It shall be a condition precedent to the obligations of the Company to take any action pursuant
to this Agreement with respect to the Subject Shares of a Member that such Member shall:
(a) Furnish to the Company such information regarding such Member, the number of
Common Shares beneficially owned by such Member (within the meaning of the Rule 13d-3 under the
Exchange Act), and the intended method of disposition of such Member’s Subject Shares as shall be required
to effect the registration and Takedown of his or her Subject Shares, and to cooperate with the Company in
preparing such registration and Takedown; and
(b) Agree to sell Common Shares to the underwriters at the price and on terms and
conditions, including the payment of commissions, fees, costs and expenses, set forth in, and to execute, the
underwriting agreement agreed to by such Member and the Company.
(c) The Members shall agree to a standstill agreement to the extent requested by the
Special Committee in connection with any Takedown.
ARTICLE IV
EXPENSES OF REGISTRATION
4.1
The Members participating in a Takedown, on the one hand, and the Company, on the other
hand, shall each bear and pay 50% of all expenses incurred in connection with any registration, filing, or
qualification of Common Shares with respect to any Resale Shelf Registration Statement (excluding any
underwriting discounts and selling commissions and all legal fees and expenses of legal counsel for the
applicable Members), including all registration, filing and National Association of Securities Dealers, Inc.
fees, all rating agency fees, stock exchange listing fees, all fees and expenses of complying with securities
or blue sky laws (including fees and expenses of underwriters counsel), all word processing, duplicating
and printing expenses, messenger and delivery expenses, the fees and disbursements of counsel for the
Company, and of the Company’s independent registered public accountants, including the expenses of “cold
comfort” letters required by or incident to such performance and compliance (the “Registration Expenses”);
provided, however, that if the Company participates as an issuer or seller in any Takedown, it will pay 100%
of such costs (excluding any underwriting discounts and selling commissions or any legal fees and expenses
of legal counsel for the applicable Members) and will pay its respective underwriting discounts and selling
commissions. The Members participating in the Takedown will pay the fees to be paid by the Members on
a pro rata basis based on the number of shares being sold.
ARTICLE V
INDEMNIFICATION; CONTRI
B
UTION
5.1
If any Common Shares are included in a registration statement under this Exhibit A:
(a) To the extent permitted by applicable law, the Company shall indemnify and hold
harmless each Member, such party’s heirs (if applicable), successors and permitted assigns, against any and
all losses, claims, damages, liabilities and reasonable expenses (joint or several), including reasonable
attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any
actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing persons may
become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such
losses, claims, damages, liabilities and reasonable expenses arise out of or are based upon any of the
following statements, omissions or violations (collectively a “Violation”):
(i) Any untrue statement or alleged untrue statement of a material fact contained
in such registration statement, including any preliminary prospectus or final prospectus
contained therein, or any amendments or supplements thereto;
(ii) The omission or alleged omission to state therein a material fact required to
be stated therein, or necessary to make the statements therein not misleading; or
(iii) Any violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any applicable state securities law or any rule or regulation promulgated under
the Securities Act, the Exchange Act or any applicable state securities law;
provided, however, that the indemnification required by this Section 5.1 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the
consent of the Company, nor shall the Company be liable in any such case for any such loss, claim, damage,
liability or expense to the extent that it arises out of or is based upon a Violation that occurs in reliance upon
and in conformity with written information furnished to the Company by the indemnified party expressly
for use in connection with such registration; provided further that the indemnity agreement contained in this
Section 5.1 shall not apply to any underwriter to the extent that any such loss is based on or arises out of an
untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state
a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct
such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the
final prospectus has not been sent or given to such person at or prior to the confirmation of sale to such
person if such underwriter was under an obligation to deliver such final prospectus and failed to do so. The
Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers, directors, agents and employees and each person
who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) to the same extent as provided above with respect to the indemnification of the Members.
(b) To the extent permitted by applicable law, each Member shall indemnify and hold
harmless the Company, each of its directors, each of its officers who shall have signed the registration
statement, each person, if any, who controls the Company within the meaning of the Securities Act, against
any and all losses, claims, damages, liabilities and reasonable expenses (joint and several), including
reasonable attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant
to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing persons
may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws,
insofar as such losses, claims, damages, liabilities and reasonable expenses arise out of or are based upon
any Violation by such Member, in each case to the extent (and only to the extent) that such Violation occurs
in reliance upon and in conformity with written information furnished by such Member or such party’s
counsel expressly for use in connection with such registration; provided, however, that the indemnification
required by this Section 5.1(b) shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if settlement is effected without the consent of the such Member.
(c) Promptly after receipt by an indemnified party under this Section 5.1 of notice of the
commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which
such indemnified party may make a claim under this Section 5.1, such indemnified party shall deliver to the
indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to
the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with
the fees and disbursements and expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a
reasonable time following the commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 5.1
but shall not relieve the indemnifying party of any liability that it may have to any indemnified party
otherwise than pursuant to this Section 5.1. Any fees and expenses incurred by the indemnified party
(including any fees and expenses incurred in connection with investigating or preparing to defend such
action or proceeding) shall be paid to the indemnified party, as incurred, within 30 days of written notice
thereof to the indemnifying party; provided, however, that such notice is accompanied by an appropriate
undertaking to reimburse the indemnifying party if it is ultimately determined that an indemnified party is
not entitled to indemnification hereunder. Any such indemnified party shall have the right to employ
separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the
indemnifying party has agreed to pay such fees and expenses or (ii) the indemnifying party shall have failed
to promptly assume the defense of such action, claim or proceeding or (iii) the named parties to any such
action, claim or proceeding (including any impleaded parties) include both such indemnified party and the
indemnifying party, and such indemnified party shall have been advised by counsel that there may be one
or more legal defenses available to it that are different from or in addition to those available to the
indemnifying party and that the assertion of such defenses would create a conflict of interest such that
counsel employed by the indemnifying party could not faithfully represent the indemnified party (in which
case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood,
however, that the indemnifying party shall not, in connection with any one such action, claim or proceeding
or separate but substantially similar or related actions, claims or proceedings in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys (together with appropriate local counsel) at any time for all such
indemnified parties, unless in the reasonable judgment of such indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified parties with respect to such action,
claim or proceeding, in which event the indemnifying party shall be obligated to pay the fees and expenses
of such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for
any settlement of any action, proceeding or claim without the written consent of the indemnifying party,
which consent shall not be unreasonably withheld.
(d) If the indemnification required by this Section 5.1 from the indemnifying party is
unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to in this Section 5.1:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in connection with the actions
that resulted in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party and
indemnified parties shall be determined by reference to, among other things, whether any
Violation has been committed by, or relates to information supplied by, such indemnifying
party or indemnified parties, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such Violation. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and expenses referred
to above shall be deemed to include, subject to the limitations set forth in this Section 5.1,
any legal or other fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5.1 were determined by pro rata allocation or by any other method
of allocation that does not take into account the equitable considerations referred to in this
Section 5.1. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) If indemnification is available under this Section 5.1, the indemnifying parties shall
indemnify each indemnified party to the full extent provided in this Section 5.1 without regard to the relative
fault of such indemnifying party or indemnified party or any other equitable consideration referred to in this
Section 5.1.
(f) The obligations of the Company and the Members under this Section 5.1 shall survive
the completion of any offering of Common Shares pursuant to a registration statement under this Agreement,
and otherwise.
ARTICLE VI
OTHER COVENANTS OF THE COMPANY
6.1
The Company hereby agrees and covenants as follows:
(a) The Company shall file as and when applicable, on a timely basis, all reports required
to be filed by it under the Exchange Act.
(b) The Company shall not, directly or indirectly, (i) enter into any merger, consolidation
or reorganization in which the Company shall not be the surviving corporation or (ii) sell or agree to sell all
or substantially all the Company’s assets, unless prior to such merger, consolidation, reorganization or asset
sale, the surviving corporation or the transferee, respectively, shall have agreed in writing to assume the
obligations of the Company under this Agreement, with respect to any securities that the Members would
be entitled to receive in exchange for Common Shares pursuant to any such merger, consolidation or
reorganization.
[Remainder of Page Intentionally Left Blank]
FORM OF
RESTATED CHARTER
(Please see Exhibit 99.2 to Cal-Maine Foods, Inc.’s Current Report on Form 8-K filed on February 25,
2025)
OMITTED
FORM OF
RESTATED BYLAWS
(Please see Exhibit 99.3 to Cal-Maine Foods, Inc.’s Current Report on Form 8-K filed on February 25,
2025)
FORM OF
DAUGHTERS’ LLC AMENDMENT
DLNL, LLC
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY
OPERATING AGREEMENT
Dated as of February 25, 2025
TABLE OF CONTENTS
Recitals ....................................................................................................................................... 1
Article I Defined Terms ............................................................................................................ 2
1.1 Defined Terms ..................................................................................................... 2
1.2 Interpretation ....................................................................................................... 5
Article II Organization ............................................................................................................. 5
2.1 Formation ............................................................................................................ 5
2.2 Name ................................................................................................................... 6
2.3 Principal Office ................................................................................................... 6
2.4 Registered Office; Registered Agent ................................................................... 6
2.5 Purpose; Powers .................................................................................................. 6
2.6 Term .................................................................................................................... 6
2.7 Tax Status of the LLC ......................................................................................... 7
2.8 No State Law Partnership .................................................................................... 7
Article III Units ......................................................................................................................... 7
3.1 Units Generally .................................................................................................... 7
3.2 Authorization and Issuance of Class A Units ...................................................... 8
3.3 Authorization and Issuance of Common Units ................................................... 8
3.4 Certificates Representing Units ........................................................................... 8
Article IV Members ................................................................................................................... 8
4.1 Admission of New Members ............................................................................... 8
4.2 No Personal Liability ........................................................................................... 8
4.3 No Withdrawal .................................................................................................... 9
4.4 Death ................................................................................................................... 9
4.5 Voting .................................................................................................................. 9
Article V Contribution of Company Shares ........................................................................... 9
5.1 Shares to be Contributed to LLC ......................................................................... 9
5.2 Contribution of Shares ......................................................................................... 10
5.3 Inspection, Disclosure and Public Filing of the Agreement ................................ 10
Article VI Membership Certificates ........................................................................................ 11
6.1 Issuance of Membership Certificates .................................................................. 11
6.2 Form of Certificates ............................................................................................. 11
6.3 Replacement of Certificates ................................................................................ 11
6.4 Membership Interest Register ............................................................................. 11
6.5 Record Date ......................................................................................................... 11
Article VII Redemption or Conversion of Shares .................................................................. 11
7.1 No Redemption of Class A Shares ...................................................................... 11
7.2 Conversion ........................................................................................................... 12
7.3 Redemption of Common Shares .......................................................................... 12
7.4 Transfers of Shares .............................................................................................. 13
Article VIII Transfers of Membership Interests .................................................................... 13
8.1 Permissible Transfers; Restrictions on Transfer ................................................. 13
8.2 Transfers .............................................................................................................. 13
8.3 Transferees Bound by Agreement ....................................................................... 13
8.4 Other Requirements for Transfers ....................................................................... 14
Article IX Dividends and Certain Changes to Stock .............................................................. 14
9.1 LLC to Distribute Cash Dividends ...................................................................... 14
9.2 Distributions other than Cash .............................................................................. 14
9.3 No Distributions in Violation of Law .................................................................. 15
9.4 Certain Changes to Class A Shares or Common Shares ..................................... 15
Article X Capital Contributions; Capital Accounts ............................................................... 15
10.1 Initial Capital Contributions ................................................................................ 15
10.2 Additional Capital Contributions ........................................................................ 16
10.3 Maintenance of Capital Accounts ....................................................................... 16
10.4 Succession Upon Transfer ................................................................................... 16
10.5 Treasury Regulations ........................................................................................... 16
Article XI Allocations ................................................................................................................ 16
11.1 Allocation of Net Income and Net Loss .............................................................. 16
11.2 Tax Allocations ................................................................................................... 16
Article XII Management of LLC; Voting and Other Rights and Powers of Members ...... 17
12.1 Management of the LLC ..................................................................................... 17
12.2 Managing Member Rights and Powers ............................................................... 17
12.3 Contributed Shares to be Voted as a Unit ........................................................... 17
12.4 Failure to Achieve a Majority if there is more than one Managing Member ...... 18
12.5 Certain Transactions Require Joint Consent of Managing Member and Non-Managing
Members .............................................................................................................. 18
12.6 Powers of LLC .................................................................................................... 19
12.7 Sale or Conversion of Contributed Shares by Managing Member ..................... 20
12.8 Meetings and Procedures ..................................................................................... 20
12.9 Voting by Managing Members if there are more than one Managing Member .. 20
12.10 Status of Managing Members .............................................................................. 20
12.11 Removal of Managing Member .......................................................................... 21
12.12 Resignation of Managing Members .................................................................... 21
12.13 Costs and Expenses ............................................................................................. 21
12.14 Other Relationships Between Managing Member and Company ....................... 21
12.15 Compensation of Managing Member .................................................................. 21
12.16 Responsibility of Managing Member .................................................................. 21
12.17 Reliance by Managing Member .......................................................................... 22
12.18 Legal Compliance by Managing Member ........................................................... 22
Article XIII Exculpation and Indemnification ....................................................................... 22
13.1 Exculpation; Indemnification of Members .......................................................... 22
Article XIV Records, Accounting and Tax Matters ............................................................... 24
14.1 Records Required by the Delaware Act .............................................................. 24
14.2 Book and Records ............................................................................................... 24
14.3 Accounting Methods; Fiscal Year ....................................................................... 24
14.4 LLC Funds ........................................................................................................... 24
14.5 Tax Matters Member ........................................................................................... 24
Article XV Dissolution and Liquidation .................................................................................. 25
15.1 Events of Dissolution .......................................................................................... 25
15.2 Effectiveness of Dissolution ................................................................................ 25
15.3 Liquidation .......................................................................................................... 25
15.4 Cancellation of Certificate of Formation ............................................................. 26
Article XVI Representations and Warranties of Members ................................................... 26
16.1 Representations and Warranties .......................................................................... 26
Article XVII Covenants ............................................................................................................ 27
17.1 Confidentiality ..................................................................................................... 27
Article XVIII General Provisions ............................................................................................ 27
18.1 Successors and Assigns ....................................................................................... 27
18.2 Notices ................................................................................................................. 27
18.3 Amendment of Agreement .................................................................................. 28
18.4 Costs and Expenses ............................................................................................. 28
18.5 Severability of Provisions ................................................................................... 28
18.6 Controlling Law; Submission to Jurisdiction; Specific Performance ................. 28
18.7 Construction of Agreement ................................................................................. 29
18.8 Multiple Counterparts .......................................................................................... 29
18.9 Entire Agreement ................................................................................................ 29
18.10 No Third-party Beneficiaries ............................................................................... 29
Amended and Restated
Limited Liability Company Operating Agreement
dated as of February 25, 2025
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING
AGREEMENT (the “Agreement”) is made as of February 25, 2025 (the “Restatement Date”), by and among
DLNL, LLC (the “LLC”), Adolphus B. Baker, as the initial Managing Member (“Managing Member”), and
the Non-Managing Members (“Non-Managing Members”) identified on the signature pages hereto (such
persons, together with any Persons who become members of the LLC in accordance with this Agreement,
the “Members”).
RECITALS
WHEREAS, the LLC has been formed to invest in shares of Class A Common Stock, par value
$0.01 per share (“Class A Shares”), and shares of Common Stock, par value $0.01 per share (“Common
Shares”), of Cal-Maine Foods, Inc., a Delaware corporation (the “Company”);
WHEREAS, effective as of July 20, 2018, the initial owners of Membership Interests entered into
the Limited Liability Company Operating Agreement for the LLC (the “Existing Operating Agreement”);
WHEREAS, the Company’s capital stock consists of: (i) Common Shares, which are publicly traded
on the NASDAQ under the symbol “CALM,” and (ii) Class A Shares, which are privately held and not
publicly traded, but are convertible on a share-for-share basis into Common Shares at any time at the option
of the holder thereof;
WHEREAS, the Common Shares have one vote per share and Class A Shares have ten votes per
share on all matters on which such shares are entitled to vote and certain other differences, but otherwise
have substantially similar rights, powers and privileges;
WHEREAS, each of the Members, including Adolphus B. Baker, is an Immediate Family Member
or Permitted Transferee (in each case, as defined in the Company’s Second Amended and Restated
Certificate of Incorporation, as amended from time to time (the “Restated Charter”));
WHEREAS, the LLC is also a Permitted Transferee;
WHEREAS, the LLC currently owns Common Shares, as well as 100% of the outstanding Class
A
Shares;
WHEREAS, the Class A Shares currently represent over 50% of the total voting power of the
outstanding shares of the Company in the election of directors and matters other than the election of
directors;
WHEREAS, the Members (and/or their respective predecessors-in-interest) formed the LLC and
entered into the Existing Operating Agreement to permit the Immediate Family and Permitted Transferees
to continue to own and retain, directly or indirectly, Class A Shares to maintain control of the Company, in
order to provide for the long-term, stable and consistent ownership and governance of the Company;
WHEREAS, in furtherance of such purpose, the Existing Operating Agreement conferred upon the
Managing Member the right to vote and to act with respect to the Class A Shares and Common Shares that
they (and/or their respective predecessors-in-interest) have contributed to the LLC, subject to the terms and
conditions of this Agreement;
WHEREAS, contemporaneously with the execution of this Agreement, the LLC, the Members and
the Company have entered into that certain Agreement Regarding Conversion dated as of the Restatement
Date, pursuant to which the Company has agreed to take certain corporate actions to address the fact that
the LLC and the Members have expressed a potential interest in monetizing all or a portion of the Common
Shares owned by the LLC and the Common Shares underlying the Class A Shares owned by the LLC, which
corporate actions include (a) amending and restating the Restated Charter, (b) amending and restating the
Company’s Bylaws, and (c) effective upon the conversion by the LLC of all Class A Shares into Common
Shares, granting the LLC and the Members certain rights to cause the sale or transfer of Common Shares
owned by the LLC or such Members to be registered under the Securities Act, in each case, on the terms
and subject to the conditions set forth therein (as amended from time to time, the “Agreement Regarding
Conversion”);
WHEREAS, the Board of Directors of the Company (taking into account the recommendation of a
Special Committee of the Board of Directors, consisting solely of independent directors) has approved the
Company’s execution and performance by the Company of the Agreement Regarding Conversion and the
actions and transactions contemplated thereby; and
WHEREAS, in consideration of the foregoing and in order to facilitate the conversion of Class
A
Shares contemplated by the Agreement Regarding Conversion, the LLC and the Members hereby amend
and restate the Existing Operating Agreement, in accordance with the Delaware Limited Liability Company
Act, as follows:
ARTICLE I
DEFINED TERMS
1.1 Defined Terms.
“Agreement Regarding Conversion” has the meaning set forth in the Recitals.
“Applicable Law” means all applicable provisions of (a) constitutions, treaties, statutes, laws
(including the common law), rules, regulations, decrees, ordinances, codes, proclamations, declarations or
orders of any Governmental Authority; (b) any consents or approvals of any Governmental Authority; and
(c) any orders, decisions, advisory or interpretative opinions, injunctions, judgments, awards, decrees of, or
agreements with, any Governmental Authority.
“Business” has the meaning set forth in Section 2.5(a).
“Capital Account” has the meaning set forth in Section 10.3.
“Capital Contribution” means, for any Member, the total amount of cash and cash equivalents and
the value of any property contributed to the LLC by such Member.
“Class A Shares” means Class A Common Stock, par value $0.01 per share, of the Company.
“Class A Unit” means a Unit representing a fractional part of the Membership Interests issued by
the LLC in exchange for one Class A Share.
“Code” means the Internal Revenue Code of 1986, as amended.
“Common Shares” means Common Stock, par value $0.01 per share, of the Company.
“Common Unit” means a Unit representing a fractional part of the Membership Interests issued by
the LLC in exchange for one Common Share or in connection with the conversion of Class A Shares in
accordance with Section 7.2.
“Company” means Cal-Maine Foods, Inc., a Delaware corporation.
“Contributed Shares” has the meaning set forth in Section 5.1.
“Daughters’ Revocable Trust” means the Fred R. Adams, Jr. Daughters’ Trust formed under
agreement dated July 20, 2018, of which Adolphus B. Baker and Jean Reed Adams serve as co-trustees and
Fred R. Adams, Jr. is the lifetime beneficiary, and of which his four daughters are remainderman
beneficiaries.
“Delaware Act” means the Delaware Limited Liability Company Act, Title 6, Chapter 18, §§ 18-
101,
, and any successor statute, as it may be amended from time to time.
“Effective Date” has the meaning set forth in Section 5.2(a).
“Existing Operating Agreement” has the meaning set forth in the Recitals.
“Governmental Authority” means any federal, state, local or foreign government or political
subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any
self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority
(to the extent that the rules, regulations or orders of such organization or authority have the force of law),
or any arbitrator, court or tribunal of competent jurisdiction.
“Immediate Family Member” has the meaning set forth in the Recitals.
“Initial Dissolution Date” has the meaning set forth in Section 2.6(a).
“Joinder” means the Joinder agreement in form and substance attached hereto as Exhibit C.
“Joinder of Managing Member” means the Joinder of Managing Member agreement in form and
substance attached hereto as Exhibit D.
“Managing Member” means, initially, Adolphus B. Baker, or such other Member as may be
designated or become a Managing Member pursuant to the terms of this Agreement.
“Member” means (a) each Person identified on Exhibit B as of the date hereof as a Member and who
has executed this Agreement or a counterpart thereof; and (b) and each Person who is hereafter admitted as
a Member in accordance with the terms of this Agreement and the Delaware Act, in each case so long as
such Person is shown on the LLC’s books and records as the owner of one or more Units or has entered into
an agreement or commitment to contribute Class A Shares and/or Common Shares in exchange or one or
more Units. The Members shall constitute the “members” (as that term is defined in the Delaware Act) of
the LLC.
“Members Schedule” has the meaning set forth in Section 3.1.
“Membership Certificate” means a certificate issued by the LLC to a Member evidencing Units
owned by such Member in accordance with Article VI of this Agreement.
“Membership Interest” means an interest in the LLC owned by a Member, including such Member’s
right (based on the type and class of Unit or Units held by such Member), as applicable, (a) to a distributive
share of net income, net losses and other items of income, gain, loss and deduction of the LLC; (b) to a
distributive share of the assets of the LLC; (c) to vote on, consent to or otherwise participate in any decision
of the Members as provided in this Agreement; and (d) to any and all other benefits to which such Member
may be entitled as provided in this Agreement or the Delaware Act. The Membership Interest of each
Member shall be expressed as a number of Class A Units or Common Units, which Units shall be equal to
the number of Class A Shares or Common Shares, as applicable, that such Member contributed in exchange
for such Units, taking into account permitted conversions and redemptions. Exhibit F sets forth, as of the
Restatement Date, the number of Class A Units and Common Units held by each Member, together with
the number Class A Shares or Common Shares, as applicable, contributed by or on behalf of such Member
in exchange for such Units.
“Non-Managing Member” means at any time each Member that is not the Managing Member.
“Permitted Transferee” has the meaning set forth in the Recitals.
“Person” means an individual, corporation, partnership, joint venture, limited liability company,
Governmental Authority, unincorporated organization, trust, association or other entity.
“Restated Charter” has the meaning set forth in the Recitals.
“Revocable Trust” means the Daughters’ Revocable Trust and any successor to the Daughters’
Revocable Trust.
“Restatement Date” has the meaning set forth in the Preamble.
“
Securities Act
”
the rules and regulations thereunder, which shall be in effect at the time.
“Tax Matters Member” has the meaning set forth in Section 14.6(a).
“Treasury Regulations” means the final or temporary regulations issued by the United States
Department of Treasury pursuant to its authority under the Code, and any successor regulations.
“Unit” means a unit representing a fractional part of the Membership Interests of the Members and
shall include all types and classes of Units, including the Class A Units and the Common Units; provided,
however, that any type or class of Unit shall have the privileges, preference, duties, liabilities, obligations
and rights set forth in this Agreement and the Membership Interests represented by such type or class of
Unit shall be determined in accordance with such privileges, preference, duties, liabilities, obligations and
rights.
1.2 Interpretation.
“including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not
exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement
as a whole. The definitions given for any defined terms in this Agreement shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The headings used herein are for convenience
only, are not part of the article, section or subsection to which they relate, and are not to be used in construing
the legal intent of this instrument. Unless the context otherwise requires, references herein: (x) to Articles,
Sections, and Exhibits mean the Articles and Sections of, and Exhibits attached to, this Agreement; (y) to
an agreement, instrument or other document means such agreement, instrument or other document as
amended, supplemented and modified from time to time to the extent permitted by the provisions thereof
and (z) to a statute means such statute as amended from time to time and includes any successor legislation
thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to
any presumption or rule requiring construction or interpretation against the party drafting an instrument or
causing any instrument to be drafted. The Exhibits referred to herein shall be construed with, and as an
integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
ARTICLE II
ORGANI
Z
ATION
2.1 Formation.
(a) The LLC was formed on or prior to July 20, 2018, pursuant to the provisions of the
Delaware Act, upon the filing of the Certificate of Formation of the LLC with the Secretary of State of the
State of Delaware.
(b) This Agreement shall constitute the “limited liability company agreement” (as that
term is used in the Delaware Act) of the LLC. The rights, powers, duties, obligations and liabilities of the
Members shall be determined pursuant to the Delaware Act and this Agreement. To the extent that the
rights, powers, duties, obligations and liabilities of any Member are different by reason of any provision of
this Agreement than they would be under the Delaware Act in the absence of such provision, this Agreement
shall, to the extent permitted by the Delaware Act, control.
2.2 Name.
Member may from time to time designate; provided, however, that the name shall always contain the words
“Limited Liability Company” or the abbreviation “L.L.C.” or the designation “LLC.” The Managing
Member shall give prompt notice to each of the Members of any change to the name of the LLC.
2.3 Principal Office.
Inc., 1052 Highland Colony Pkwy, Suite 200, Ridgeland, MS 39157, or such other place as may from time
to time be determined by the Managing Member. The Managing Member shall give prompt notice of any
such change to each of the Members.
2.4 Registered Office; Registered Agent.
(a) The registered office of the LLC shall be 251 Little Falls Drive, Wilmington, DE
19808 or such other office (which need not be a place of business of the LLC) as the Managing Member
may designate from time to time in the manner provided by the Delaware Act and Applicable Law.
(b) The registered agent for service of process on the LLC in the State of Delaware shall
be Corporation Service Company or such other Person or Persons as the Managing Member may designate
from time to time in the manner provided by the Delaware Act and Applicable Law.
2.5 Purpose; Powers.
(a) The purpose of the LLC is to acquire, vote and hold, either alone or with other
Persons, securities of the Company, to convert Class A Shares in accordance with Section 7.2, transfer
Common Shares in redemption of Common Units in accordance with Section 7.3 and to engage in any and
all activities necessary or incidental thereto (the “Business”). The LLC shall not engage in any other
operating or investment activities.
(b) The LLC shall have all the powers necessary or convenient to carry out the purposes
for which it is formed, including the powers granted by the Delaware Act.
2.6 Term .
(a) Initial Dissolution Date. The term of the LLC commenced on the date the
Certificate of Formation of the LLC was filed with the Secretary of State of the State of Delaware. The
LLC shall continue until the tenth anniversary after the death of Fred R. Adams, Jr. (the “Initial
Dissolution Date”), unless renewed or sooner dissolved and terminated as herein provided.
(b) Extension. Prior to the Initial Dissolution Date, subject to the consent of Members
holding no less than a majority of the voting power of the Units at the time, the Managing Member may
elect to extend the term of the LLC and this Agreement for an extended term of up to ten years after the
Initial Dissolution Date. In such event, not later than thirty days prior to the Initial Dissolution Date, the
Managing Member shall notify all other Members that the initial term of the LLC will be extended and the
date, not later than ten years after the Initial Dissolution Date, of the extended dissolution date (the
“Extended Dissolution Date”).
(c) Additional Extensions. Prior to the Extended Dissolution Date, subject to the
consent of Members holding no less than a majority of the voting power of the Units at the time, the
Managing Member may elect to extend the term of the LLC and this Agreement for an additional
extended term of up to ten years after the Extended Dissolution Date, and may further elect to
successively extend the term of the LLC and this Agreement for additional extended terms of up to ten
years each after the last applicable subsequent extended dissolution date (“Subsequent Extended
Dissolution Date”). In such event, not later than thirty days prior to the applicable Subsequent Extended
Dissolution Date, the Managing Member shall notify all other Members that the term of the LLC will be
extended and the date, not later than ten years after the last Subsequent Extended Dissolution Date, of the
new Subsequent Extended Dissolution Date.
(d) Notwithstanding the foregoing, the LLC may be earlier dissolved and terminated as
provided in Article XV.
2.7 Tax Status of the LLC.
disregarded for federal and, if applicable, state and local income tax purposes. At all times that the LLC
has more than one Member, the Members intend that the LLC shall be treated as a partnership for federal
and, if applicable, state and local income tax purposes, and, to the extent permissible, the LLC shall elect to
be treated as a partnership for such purposes. The Managing Member shall cause to be prepared and
provided to each Member all necessary or appropriate income tax information, including, if requested by
such Member, a copy of the federal, state and local income tax or information returns for each taxable year
of the LLC. The LLC and each Member shall file all tax returns and shall otherwise take all tax and financial
reporting positions in a manner consistent with such treatment and no Member shall take any action
inconsistent with such treatment.
2.8 No State Law Partnership.
to constitute the LLC a partnership (including a limited partnership) or joint venture, or any Member a
partner or joint venturer of or with any other Member, for any purposes other than federal, state and local
tax purposes.
ARTICLE III
UNITS
3.1 Units Generally.
and outstanding Units, which may be divided into one or more types or classes. Each type or class of Units
shall have the privileges, preferences, duties, liabilities, obligations and rights, including voting rights, set
forth in this Agreement with respect to such type or class. The Managing Member shall maintain a schedule
of all Members, their respective mailing addresses and the amount and type and class of Units held by them
(the “Members Schedule”). Such Schedule shall be used to establish the initial Membership Interest
Register as provided in Section 6.4, and such Schedule shall be deemed to be automatically updated for any
subsequent changes reflected in the Membership Interest Register. Such information with respect to the
Members as of the Restatement Date is attached hereto as Exhibit F. The only Units that may initially be
issued are (a) one Class A Unit for each Class A Share contributed to the LLC, (b) one Common Unit for
each Common Share contributed to the LLC and (c) the issuance of Common Units upon conversion of
Class A Units in accordance with Section 7.2(b). Each Class A Share contributed to the LLC in the future
will entitle the Member making the contribution to one Class A Unit and each Common Share contributed
to the LLC in the future will entitle the Member making the contribution to one Common Unit.
3.2 Authorization and Issuance of Class A Units.
Agreement, the LLC is hereby authorized to issue a class of Units designated as Class A Units. As of the
Restatement Date, there are 4,800,000 Class A Units issued and outstanding to the Members in the amounts
set forth on Exhibit F hereto.
3.3 Authorization and Issuance of Common Units.
this Agreement, the LLC is hereby authorized to issue a class of Units designated as Common Units. As of
the Restatement Date, there are 1,087,956 Common Units issued and outstanding to the Members in the
amounts set forth on Exhibit F hereto. The LLC will issue additional Common Units for any additional
Common Shares contributed and, upon conversion of Class A Shares, as provided in Section 7.2.
3.4 Certificates Representing Units.
Certificates to the Members representing the Units held by such Member in the form attached hereto as
Exhibit A, including the legend set forth thereon.
ARTICLE IV
MEM
B
ERS
4.1 Admission of New Members.
(a) New Members may be admitted from time to time (i) in connection with an issuance
of Units by the LLC, subject to compliance with the applicable provisions of this Agreement, and (ii) in
connection with a transfer of Units, subject to compliance with the provisions of this Agreement.
Notwithstanding any provision herein to the contrary, no Person shall be admitted as a Member of the LLC
unless such Person is an Immediate Family Member or a Permitted Transferee.
(b) In order for any Person not already a Member of the LLC to be admitted as a Member,
whether pursuant to an issuance or transfer of Units, such Person shall have executed and delivered to the
LLC a written undertaking substantially in the form of the Joinder attached hereto as Exhibit C. Upon the
amendment of the Members Schedule by the Managing Member and the satisfaction of any other applicable
conditions, including, if a condition, the receipt by the LLC of additional Class A Shares or Common Shares
in exchange for the issuance of the applicable Units, such Person shall be admitted as a Member and deemed
listed as such on the books and records of the LLC and thereupon shall be issued his, her or its Units. The
Managing Member shall also adjust the Capital Accounts of the Members as necessary in accordance with
Article X.
4.2 No Personal Liability.
Law or expressly in this Agreement, no Member will be obligated personally for any debt, obligation or
liability of the LLC or other Members, whether arising in contract, tort or otherwise, solely by reason of
being a Member.
4.3 No Withdrawal.
such Member or as a result of any other events specified in §18-304 of the Delaware Act. So long as a
Member continues to hold any Units, such Member shall not have the ability to withdraw or resign as a
Member prior to the dissolution and winding up of the LLC and any such withdrawal or resignation or
attempted withdrawal or resignation by a Member prior to the dissolution or winding up of the LLC shall
be null and void. As soon as any Person who is a Member ceases to hold any Units, such Person shall no
longer be a Member.
4.4 Death.
and its business shall be continued by the remaining Member or Members. In such event the Units owned
by the deceased Member shall automatically be transferred to such Member’s heirs; provided, however, that
such heirs shall not be admitted as Members of the LLC unless such heirs are Immediate Family Members
or Permitted Transferees and such Members shall not be entitled to receive a Membership Certificate in
their names or receive any distributions from the LLC until they sign a written undertaking substantially in
the form of the Joinder attached hereto as Exhibit C.
4.5 Voting .
(a) Except as otherwise provided by this Agreement or as otherwise required by the
Delaware Act or Applicable Law:
(i) each Member shall be entitled to ten votes per Class A Unit on all matters
upon which the Members have the right to vote under this Agreement; and
(ii) each Member shall be entitled to one vote per Common Unit on all matters
upon which the Members have the right to vote under this Agreement.
(b) To the full extent permitted by law, Members shall have no right to vote on any
matters under this Agreement, the Delaware Act or otherwise except as expressly provided in this
Agreement.
ARTICLE V
CONTRI
B
UTION OF COMPANY SHARES
5.1 Shares to be Contributed to LLC.
time by any Member (including any Class A Shares acquired by any Member after the date of the Existing
Operating Agreement and before the dissolution of the LLC), and the Common Shares held by the
Revocable Trust, shall be contributed hereunder and accepted by, and transferred to, the LLC, in exchange
for Units. Except as provided in this Section 5.1, each Member shall have the right, but not the obligation,
to contribute Common Shares to the LLC from time to time in exchange for Units with the prior consent of
the Managing Member. Any and all shares contributed to the LLC (including shares issued upon conversion
of Class
A
Shares contributed to the LLC), less shares exchanged by the LLC upon redemptions of Common
Units, are referred to herein as “Contributed Shares.”
5.2 Contribution of Shares.
(a) Following the date that the Restated Charter is filed with the Secretary of State of the
State of Delaware and becomes effective (the “Effective Date”), each Member shall promptly contribute
and transfer to the LLC all stock certificates representing Class A Shares owned or later acquired by such
Member, duly endorsed in blank, or accompanied by proper instruments of assignment and transfer duly
executed in blank or (and accompanied by any revenue stamps required for the transfer), in exchange for
Membership Certificates issued hereunder in the form herein provided. Any Member who acquires
ownership of any Class A Shares after the date of the Existing Operating Agreement shall contribute and
transfer such shares to the LLC no later than thirty (30) days after acquiring such shares.
(b) Following the receipt of Common Shares by the Revocable Trust, but no later than
the time that Class A Shares are contributed to the LLC following the Effective Date, the Revocable Trust
shall contribute and transfer to the LLC all stock certificates representing Common Shares listed with respect
to the Revocable Trust, duly endorsed in blank, or accompanied by proper instruments of assignment and
transfer duly executed in blank or (and accompanied by any revenue stamps required for the transfer), in
exchange for Membership Certificates issued hereunder in the form herein provided.
(c) The LLC shall accept such contributions and hold all shares so contributed under the
terms and conditions of this Agreement. Such contribution of Class A Shares and Common Shares and the
acceptance of Membership Certificates by a Person, subject to the provisions of Section 4.1, shall cause
such Person to become a Member hereunder subject to all the terms and conditions of this Agreement.
(d) The contribution of Class A Shares and Common Shares to the LLC hereunder shall
constitute an assignment and transfer to the LLC of full legal title to such shares, and shall vest in the LLC
all rights and powers of every nature incident to ownership of such shares, including the right to vote such
shares, subject only to the limitations specifically set forth herein, including the prohibition of sales,
dispositions or transfers of such shares by the LLC except as permitted in Sections 7.2 and 7.3.
(e) Promptly upon receipt from time to time of stock certificates representing
Contributed Shares, the LLC shall cause the certificates to be surrendered to the Company and cancelled
and new certificates issued therefor to, and in the name of, the LLC, and shall cause the LLC ownership of
legal title pursuant to this Agreement to be entered in the stock transfer records of the Company and noted
on the newly issued certificates.
5.3 Inspection, Disclosure and Public Filing of the Agreement.
cause a copy of this Agreement to be delivered to the principal place of business of the Company and shall
request that the Company make a copy of this Agreement open to the inspection of any stockholder of the
Company or Member at the principal place of business of the Company during ordinary business hours.
The parties hereto recognize and understand that a copy of this Agreement may also be disclosed and
publicly filed with the Securities and Exchange Commission.
ARTICLE VI
MEM
B
ERSHIP CERTIFICATES
6.1 Issuance of Membership Certificates.
LLC hereunder or acquired by the LLC as provided in this Agreement shall be held by the LLC and voted
by the Managing Member under and pursuant to the terms and conditions of this Agreement. The LLC, in
exchange for the shares so contributed or otherwise held hereunder, shall cause to be issued and delivered,
Membership Certificates to Members for the appropriate number of Class A Shares or Common Shares held
hereunder.
6.2 Form of Certificates.
be substantially in the form set forth in Exhibit A attached hereto (or in such other form as the Managing
Member determines).
6.3 Replacement of Certificates.
sole discretion may prescribe with respect to indemnity or otherwise, shall provide for the issuance and
delivery of new Membership Certificates in lieu of lost, stolen or destroyed Membership Certificates or in
exchange for mutilated Membership Certificates.
6.4 Membership Interest Register.
Membership Interests in the books and records of the LLC of the holders of Membership Certificates and
shall make such register available to the Members upon written request. Such books and records shall record
the issuance and any transfer of Membership Certificates and shall contain the names and addresses of
Members and the number of Units represented by the Membership Certificates, and the dates when they
became the owners thereof. Such register shall be kept at the principal office of the LLC or at such other
place as the Managing Member shall determine and set forth in a written notice given to all Members.
6.5 Record Date.
purpose, the Managing Member shall also close the books and records of Membership Certificates for such
period, and whenever a record date is properly fixed as a record date of the Company, the Managing Member
shall use the same record date for any rights consequent thereon.
The Managing Member, in his discretion, may also fix a record date as of which the Members
entitled to take any action may be determined.
The Managing Member shall send or cause to be sent to all Members, as registered in the books and
records of the LLC, copies of all requests, notices, proxy statements and other documents sent by the
Company to its shareholders, promptly upon their becoming available
.
ARTICLE VII
REDEMPTION OR CONVERSION OF SHARES
7.1 No Redemption of Class A Shares.
LLC and Managing Member shall have no power or right to redeem from any Member, Class A Units, and
no Member shall have any right to receive from the LLC Class A Shares, in each case, until the dissolution
and liquidation of the LLC. Any purported redemption of Class A Units or receipt of Class A Shares from
the LLC before the dissolution and liquidation of the LLC shall be void.
7.2 Conversion.
shall not convert any Class A Shares held by the LLC into Common Shares during the term of this
Agreement. If the Managing Member converts any or all of the Class A Shares held by the LLC in
accordance with either Section 12.5(a)(vii) or Section 12.7, then:
(a) the Common Shares received by the LLC upon such conversion shall be held, voted
and/or transferred by the LLC in accordance with the provisions of this Agreement;
(b) each Member’s Class A Units shall automatically convert into the number of
Common Units equal to the number of Common Shares issued upon conversion with respect to the Class A
Shares underlying such Member’s Class A Units; and
(c) in order to evidence that such conversion of Class A Units has occurred, each
Member shall promptly exchange his or her Membership Certificate(s) formerly representing Class A Units
for a Membership Certificate representing Common Units, which exchange will be made in compliance
with Article VI.
7.3 Redemption of Common Shares.
in exchange for an equivalent number of Common Shares prior to the dissolution of the LLC from time to
time, upon the surrender of the corresponding Membership Certificate or Certificates, as follows:
(a) Redemption to Facilitate a Transfer or Sale of Underlying Common Shares.
A
Member may request to redeem Common Units in exchange for an equivalent number of Common Shares
to effect a transfer or sale of underlying Common Shares, but only if such transfer or sale is in compliance
with the Agreement Regarding Conversion and applicable federal and state securities laws.
(b) Redemption to Facilitate a Transfer to a Charitable Donor Advised Fund.
A
Member may request to redeem Common Units in exchange for an equivalent number of Common Shares
to effect a transfer to a charitable donor advised fund.
(c) Other Redemptions of Common Units. In addition, a Member may request to
redeem Common Units in exchange for an equivalent number of Common Shares, which the Managing
Member from time to time may approve.
(d) Redemption Request. The Member requesting a redemption shall submit a written
redemption request to the Managing Member substantially in the form prescribed in Exhibit E attached
hereto.
(e) Manner of Redemption. Upon approval of the form and substance of any such
redemption request by the Managing Member and the surrender for cancellation of such Members’
Membership Certificate representing Common Units, the Managing Member shall (i) cause a certificate
representing Common Shares to be transferred to and registered in the name of such Member equal to the
number of Common Units being redeemed, and (ii) issue a new Membership Certificate to the Member
representing the number of Common Units that are not being redeemed and that will continue to be owned
by such Member after the redemption, if any.
7.4 Transfers of Shares.
A
Shares or Common Shares during the term of this Agreement, except as permitted in Sections 7.2 and 7.3.
In the event there is a desire to sell, dispose of or transfer Common Shares held by the LLC, such shares
first be delivered to the Member in redemption of such Member’s Membership Certificate pursuant to
Section 7.3, and any such sale, disposition or transfer shall be effected by the Member.
ARTICLE VIII
TRANSFERS OF MEM
B
ERSHIP INTERESTS
8.1 Permissible Transfers; Restrictions on Transfer.
Family Member or Permitted Transferee may be a Member hereunder.
The Members hereby agree that none of the Membership Interests, the Membership Certificates nor
any interest in any of the foregoing may be transferred (whether directly or indirectly, and including by sale,
lease, assignment, pledge, encumbrance, hypothecation, gift, bequest, appointment, operation of law or
otherwise) to any Person except (i) an Immediate Family Member or Permitted Transferee may transfer
Membership Interests and related Membership Certificates to another Immediate Family Member or
Permitted Transferee, provided that such permitted transferee shall not be admitted as a Member until he,
she or it executes a form of joinder substantially in the form set forth in Exhibit C attached hereto (or in
such other form as the Managing Member determines) or (ii) a transfer by the Managing Member permitted
by Section 12.7. The Managing Member shall not register any transfer except in compliance with this
Agreement. Any purported transfer of Membership Interests or Membership Certificates other than in
accordance with the terms of this Agreement shall be void. Not in limitation of the generality of the
foregoing, Membership Interests, including any rights to profits, losses or distributions associated therewith,
transferred on death to any person who is not an Immediate Family Member or Permitted Transferee shall
be void.
8.2 Transfers.
represented thereby shall be transferable on the books of the LLC by the holders of record thereof, subject
to such procedures as may be required by the Managing Member for that purpose. Until so transferred, the
Managing Member may treat the existing Member as the owner of the Membership Certificates for all
purposes. As a condition of making or permitting any transfer or delivery of Membership Certificates, the
Managing Member may require the payment of a sum sufficient to pay or reimburse the Managing Member
or the LLC for any stamp tax or other governmental charge in connection therewith or any other charge
applicable to such transfer or delivery.
The Managing Member shall have the sole discretion to determine whether a person is eligible to be
a Member pursuant to this Agreement.
8.3 Transferees Bound by Agreement.
Transferee who acquires Membership Certificates and is admitted as a Member in accordance with this
Agreement shall, with respect thereto and by the acceptance thereof, become a party hereto with like force
and effect as though an original party hereto and shall be embraced within the meaning of the term
“Member” wherever used herein.
8.4 Other Requirements for Transfers.
Agreement, and notwithstanding any other provision of this Agreement, each Member agrees that it will
not, directly or indirectly, transfer any of its Units, and the LLC agrees that it shall not issue any Units:
(a) except as permitted under the Securities Act and other applicable federal or state
securities or blue sky laws, and then, with respect to a transfer of Units, if requested by the Managing
Member, only upon delivery to the LLC of an opinion of counsel in form and substance satisfactory to the
Managing Member to the effect that such transfer may be effected without registration under the Securities
Act;
(b) if such transfer or issuance would affect the LLC’s existence or qualification as a
limited liability company under the Delaware Act;
(c) if such transfer or issuance would cause the LLC to lose its status as a partnership for
federal income tax purposes; or
(d) if such transfer or issuance would cause a termination of the LLC for federal income
tax purposes.
ARTICLE IX
DIVIDENDS AND CERTAIN CHANGES TO STOC
K
9.1 LLC to Distribute Cash Dividends.
Each Member shall be entitled during the term of this
LLC, except as may be otherwise provided herein, to receive from time to time payments equal to the
dividends payable in cash, received by the LLC with respect to his, her or its Contributed Shares, and the
Managing Member shall distribute such cash to the Members on a pro rata basis, provided that the Managing
Member may first deduct any charges and expenses or taxes incurred by the LLC or the Managing Member
in connection with the administration of the LLC.
9.2 Distributions other than Cash.
(a) In the event the LLC shall receive any dividend or distribution other than cash as a
result of a dividend or other distribution in respect of any Contributed Shares, the Managing Member may
determine to hold such distribution subject to this Agreement in his sole discretion, provided that if the
distribution consists of Class A Shares or any security that has greater voting power than the Common
Shares, the Managing Member shall hold such distribution subject to this Agreement.
(b) If the distribution consists of Class A Shares or any security that has greater voting
power than the Common Shares, additional Membership Certificates shall be issued to the Members entitled
to such distribution as shown in the books and records of the LLC.
(c) For distributions other than cash and Class A Shares or any security that has greater
voting power than the Common Shares:
(i) if the Managing Member determines to hold such distribution subject to this
Agreement, if appropriate, additional Membership Certificates shall be issued to the
Members entitled to such distribution as shown in the books and records of the LLC; and
(ii) if the Managing Member determines not to hold such distribution, the
Managing Member shall pass through the distribution to the Members in proportion to their
respective Membership Interests.
(d) If rights to subscribe to purchase or acquire any shares of capital stock or other assets
of the Company should inure to the LLC in respect of Contributed Shares, the Managing Member shall
notify the Members. Upon the written direction of the Member relating to the Membership Certificates
issued with respect to such Contributed Shares, accompanied by a capital contribution of the funds from the
Member required for such purpose, the Managing Member shall cause the LLC to exercise such rights to
subscribe for, purchase or acquire such shares of stock or other assets with respect to such Contributed
Shares. In the event that any additional shares of stock of the Company so acquired by the LLC shall be
Class A Shares, or other securities that the Managing Member determines not to distribute to Members, such
shares shall thereupon be subject to all the terms and conditions of this Agreement and, if appropriate,
additional Membership Certificates shall be issued to such Members.
9.3 No Distributions in Violation of Law.
contained in this Agreement, the LLC shall not make any distribution to Members if such distribution would
violate § 18-607 of the Delaware Act or other Applicable Law.
9.4 Certain Changes to Class A Shares or Common Shares.
(i) subdivision, combination, reclassification, recapitalization or other change of Class A Shares or Common
Shares, or (ii) any merger to which the Company is a constituent entity, in each case as a result of which the
Class A Shares and Common Shares are converted into or exchanged for capital stock or other securities of
the Company or successor company, then, unless the Managing Member determines to distribute such stock
or other securities to the Members: (i) such stock and other securities shall be retained by the LLC subject
to all the terms and conditions of this Agreement, (ii) if appropriate, additional or replacement Membership
Certificates shall be issued to such Members and (iii) unless the Managing Member determines otherwise,
all references in this Agreement to Contributed Shares shall be deemed to include reference to such stock
and other securities.
ARTICLE X
CAPITAL CONTRI
B
UTIONS; CAPITAL ACCOUNTS
10.1 Initial Capital Contributions.
Operating Agreement and as set forth on Exhibit B to the Existing Operating Agreement, each initial
Member owning Class A Units has contributed an equivalent number of Class A Shares, and each initial
Member owning Common Units has contributed an equivalent number of Common Shares, which represent
each such Member’s initial Capital Contribution giving rise to such initial Member’s initial Capital Account.
10.2 Additional Capital Contributions.
Section
12.13, no Member shall be required to make any additional Capital Contributions to the LLC. Any
future Capital Contributions made by any Member shall be made only with the consent of the Managing
Member and the contributing Member in compliance with this Agreement; provided, however, that each
Member and the Managing Member hereby consent to the requirement of each Member to contribute all
Class A Shares that it owns during the term of the LLC to the LLC as provided in Section 5.1.
10.3 Maintenance of Capital Accounts.
shall maintain for each Member, a separate capital account (a “
Capital Account
”) on its books and records.
Unless otherwise determined by the Managing Member, the Capital Account of each such Member shall
consist of such Member’s capital contribution, increased by each such Member’s respective share of net
income (including exempt income) and additional capital contributions, if any, and decreased by each such
Member’s respective share of net losses (including nondeductible losses and expenses) and distributions
from the LLC.
10.4 Succession Upon Transfer.
Family Member or a Permitted Transferee in accordance with the terms of this Agreement, the Immediate
Family Member or Permitted Transferee, as applicable, shall succeed to the Capital Account of the transferor
to the extent it relates to the transferred Units and shall receive allocations and distributions pursuant to this
Agreement in respect of such Units.
10.5 Treasury Regulations.
Capital Accounts are intended to comply with Section 704 of the Code and Section 1.704-1(b) of the
Treasury Regulations and shall be interpreted and applied in a manner consistent with such Treasury
Regulations.
ARTICLE XI
ALLOCATIONS
11.1 Allocation of Net Income and Net Loss.
as otherwise provided in this Agreement, net income and net loss (and, to the extent necessary, individual
items of income, gain, loss or deduction) of the LLC shall be allocated among the Members in accordance
with their respective Membership Interests.
11.2 Tax Allocations.
federal, state and local income tax purposes, among the Members in accordance with the allocation of such
income, gains, losses and deductions among the Members for computing their Capital Accounts, except that
if any such allocation for tax purposes is not permitted by the Code or other Applicable Law, the LLC’s
subsequent income, gains, losses and deductions shall be allocated among the Members for tax purposes, to
the extent permitted by the Code and other Applicable Law, so as to reflect as nearly as possible the
allocation set forth herein in computing their Capital Accounts.
ARTICLE XII
MANAGEMENT OF LLC; VOTING AND OTHER RIGHTS AND POWERS OF MEM
B
ERS
12.1 Management of the LLC.
Managing Member. Subject to the provisions of this Agreement, the Managing Member shall have full and
complete discretion to manage and control the business and affairs of the LLC, to make all decisions
affecting the business and affairs of the LLC and to take all such actions as the Managing Member deems
necessary or appropriate to accomplish the purposes of the LLC. The actions of the Managing Member
taken in accordance with the provisions of this Agreement shall bind the LLC. No other Member of the
LLC shall have any authority or right to act on behalf of or bind the LLC, unless otherwise provided herein
or unless specifically authorized by the Managing Member.
Notwithstanding the foregoing, the Managing Member shall provide regular reports and information
about the LLC to the other Members and keep them informed and up to date on the activities of the LLC
and of the Managing Member.
12.2 Managing Member Rights and Powers
. Subject to Section 12.4 and Section 12.5, the
Managing Member, acting on behalf of the LLC, shall possess and shall be entitled to exercise all the rights
and powers of owners of all of the Contributed Shares held hereunder to vote for every purpose and to
consent to any and all corporate acts of the Company. Without limiting the foregoing, but subject to
Section 12.4 and Section 12.5, the Managing Member, acting on behalf of the LLC, shall have the following
authority with respect to the Contributed Shares: (i) to nominate candidates for election or reelection as
directors of the Company; (ii) to take any of the actions contemplated by Section 12.5(b); (iii) to propose
business (including amendments to the Bylaws of the Company) for action by the stockholders of the
Company; and (iv) to cause the calling of a special meeting of stockholders (to the extent stockholders are
permitted to call special meetings of stockholders in accordance with the Restated Charter or the Bylaws of
the Company). Such rights and powers shall cease upon the actual delivery to the Member of a certificate
issued by the Company representing any Company shares held hereunder in exchange for the Member’s
Membership Certificates upon a permitted redemption/withdrawal or dissolution and liquidation of the LLC,
as provided in this Agreement.
It is expressly stipulated that no right to vote or to consent or to be consulted in respect to any such
shares is created in or passes to any Member by or under any Membership Certificate, or by or under this
Agreement, or by or under any other agreement, express or implied, except as provided in Section 12.4 and
Section 12.5.
12.3 Contributed Shares to be Voted as a Unit.
Contributed Shares or take any other action with respect to such shares as a unit in accordance with his
determination or, if applicable, as provided in Section 12.4 and Section 12.5. Notwithstanding the
foregoing, the Managing Member may cumulate votes for the election of directors of the Company in any
manner the Managing Member may determine, if cumulative voting is permitted by the Company’s then-
current certificate of incorporation.
12.4 Failure to Achieve a Majority if there is more than one Managing Member.
there is at any time more than one Managing Member, and in the event of the failure of the Managing
Members to achieve a majority vote with respect to the exercise of the right to vote the Contributed Shares
with respect to any proposal submitted to a shareholder vote, the Managing Members shall promptly notify
all Members of the proposal. The Managing Members shall thereupon vote all Contributed Shares held
hereunder with respect to each such proposal as directed by the affirmative vote of Members holding
Membership Certificates representing no less than a majority of the voting power of the Units at the time.
12.5 Certain Transactions Require Joint Consent of Managing Member and Non-Managing
Members.
(a) Joint Consent Required for LLC Actions. Joint consent of the Managing Member,
and of Members holding no less than a majority of the voting power of the Units at the time, shall be
required for any of the following actions relating to this Agreement and/or the LLC:
(i) Subject to Section 18.3, the material amendment, modification or waiver of
the Certificate of Formation of the LLC or this Agreement or a merger of the LLC with
another entity or the conversion of the LLC into another entity; provided, however, that the
Managing Member may, without the consent of any other Member, amend the Member
Schedule following any new issuance, redemption, repurchase or transfer of Membership
Interests in accordance with this Agreement even if material;
(ii) the making of any material change to the nature of the Business conducted by
the LLC or enter into any business other than the Business;
(iii) the issuance of additional Membership Interests or admission of additional
Members to the LLC except as permitted by this Agreement;
(iv) the incurrence of any indebtedness or obligations by the LLC in excess of
amounts required by the Managing Member to pay the ordinary taxes, costs and expenses of
the LLC (the repayment of any such obligations to be financed by the Managing Member by
retaining a portion of the dividends paid on the Class A Shares and Common Shares);
(v) the making of any material loan, advance or capital contribution to any
Person;
(vi) entering into or effecting any material transaction not contemplated by this
Agreement; or
(vii) converting any Class A Shares into Common Shares.
(b) Joint Consent Required for Company Action. Joint consent of the Managing
Member, and of Members holding no less than a majority of the voting power of the Units at the time,
shall be required for any proposal submitted for shareholder approval by the Company for:
(i) a merger or consolidation transaction which requires the vote of the holders
of the Company’s Class A Shares and/or Common Shares under the Delaware General
Corporation Law as then in effect;
(ii) a sale, lease or exchange of all, or substantially all, the property and assets of
the Company which requires the vote of the holders of the Company’s Class A Shares and/or
Common Shares under the Delaware General Corporation Law as then in effect;
(iii) a dissolution, winding up or liquidation of the Company or its business which
requires the vote of the holders of the Company’s Class A Shares and/or Common Shares
under the Delaware General Corporation Law as then in effect;
(iv) an amendment of the Company’s Restated Charter which requires the vote of
the holders of the Company’s Class A Shares and/or Common Shares under the Delaware
General Corporation Law as then in effect;
(v) the authorization or issuance of Class A Shares or any securities by the
Company having voting rights superior to the Class A Shares; or
(vi) any other transaction not previously described in this Section 12.5(b) which
would require the filing of a Current Report on Form 8-K to disclose a change of control of
the Company under the rules and regulations of the Securities and Exchange Commission.
(c) In the event that joint consent under Section 12.5(b) is required, the Managing
Member shall promptly notify all other Members and the Managing Member shall not approve or implement
any such action and shall not vote any Contributed Shares, as applicable, in favor of any such proposal
unless the Managing Member receives the affirmative vote from Members holding at least a majority of the
voting power of the Units, as well as approval by the Managing Member. In the absence of both such
conditions being satisfied, the Managing Member shall vote Contributed Shares against any proposal which
would have the effect of approving any transaction described in Section 12.5(b) and take action to assert
dissenter’s appraisal rights, if available, upon instructions from a Member to assert such dissenter’s appraisal
rights.
12.6 Powers of LLC.
as owner of such shares (without limitation except as herein otherwise expressly provided) with all of the
rights, powers and privileges of every kind and character of an owner thereof, including, without limiting
the generality of the foregoing: (a) subject to Sections 12.5 and 12.7, the right to vote the same, either in
person or by proxy, for every purpose; (b) the right to become parties to or prosecute or intervene in any
suits or other legal or administrative proceedings; (c) the right to incur costs and expenses and to borrow or
to arrange for borrowing for such purposes; and (f) the right to engage counsel and other advisors or agents
for such purposes. In connection with the foregoing, the Managing Member may exercise such rights,
powers and privileges on behalf of the LLC, except as otherwise provided in Sections 12.5 and 12.7.
12.7 Sale or Conversion of Contributed Shares by Managing Member.
expressly permitted herein, the Managing Member shall not cause or permit the LLC to sell, lease, assign,
transfer, alienate, pledge, encumber or hypothecate the Contributed Shares, or convert any Class A Shares
into Common Shares, provided that, the Managing Member may take such action to the extent the Managing
Member determines is necessary with respect to estate taxes and related interest expense and other related
costs, if approved by Members holding a majority of the voting power of all of the Units held hereunder.
Any purported transfer of Contributed Shares other than in accordance with the terms of this Agreement
shall be void.
12.8 Meetings and Procedures.
and votes of the Members. Also, in the event there is at any time more than one Managing Member, the
Managing Members may establish procedures for meetings, consents and other matters relating to the
Managing Members.
12.9 Voting by Managing Members if there are more than one Managing Member.
is at any time more than one Managing Member, each Managing Member acting hereunder shall have one
vote in connection with actions of the Managing Member and approval of any action by the Managing
Members shall require the affirmative vote by a majority in number of the Managing Members. Except to
the extent provided herein, the number of Managing Members serving from time to time shall be determined
exclusively by (and newly created Managing Member positions shall be filled exclusively by) (i) a majority
of the persons who are then Managing Members, (ii) the sole Managing Member, if there is only one
Managing Member or (iii) if there are no Managing Members then in office, by Members having a
majority in voting power of the Units. For the avoidance of doubt, whenever this Agreement refers to an
action or determination by “the Managing Member” and at the time of such action or determination there is
more than one Managing Member, the approval of such action or determination shall require, and shall only
require, the affirmative vote by a majority in number of the Managing Members. In the event of a deadlock
among Managing Members with respect to any action or determination, the decision with respect to such
action or determination shall be resolved by the vote of Members having a majority in voting power of the
Units.
12.10 Status of Managing Members.
(a) Terms of Office . Any Managing Member named hereunder shall serve as
Managing Member until his resignation, removal, disability, death or failure to act. In the event of the
initial Managing Member’s resignation, removal, disability, death or failure to act, Dinnette Baker and
Luanne Adams shall become successor co-Managing Members, provided that they are Members at such
time and execute and deliver the joinder described below in Section 12.10(b). In the event of the
resignation of any such or other successor Managing Members, the resigning Managing Member shall
designate a successor Managing Member or Managing Members before such resignation is effective. In
the event of the removal, disability, death, or failure to act of any successor Managing Member, or in the
event of the failure of any resigning successor Managing Member to designate a successor, the successor
Managing Member or Managing Members (if any) shall be determined by Members having a majority of
the voting power of the Units.
(b) Additional and Successor Managing Member. Each additional or successor
Managing Member appointed hereunder shall be a natural person who is an Immediate Family Member
and Member and shall execute a joinder substantially in the form set forth in Exhibit D attached hereto (or
in such other form as the predecessor Managing Member or Managing Members shall determine).
12.11 Removal of Managing Member.
with or without cause, by an instrument signed by seventy-five percent (75%) in voting power of the Units
at the time such instrument is delivered to the Managing Member (s), such removal to occur upon delivery
or other date and time specified in such instrument.
12.12 Resignation of Managing Members.
at any time resign as the Managing Member effective immediately or at any future time or upon the
happening of any future event specified in the resignation. In such event, the Managing Member shall
become a Non-Managing Member, if otherwise eligible to be a Member.
12.13 Costs and Expenses.
indebtedness or expenses deemed necessary by the Managing Member in connection with the operation of
the LLC pursuant to the terms of this Agreement. In the discretion of the Managing Member, any such
expenses or discharge of indebtedness may be deducted from the dividends received by the LLC with respect
to the Contributed Shares before distributing such dividends to the Members, or funded by a capital
contribution of cash by each Member, to be paid by such Member in proportion to their respective Units.
In the event that a Member fails to make any such capital contribution, the Managing Member shall deduct
such amount from the dividends received by the LLC with respect to the Contributed Shares before
distributing such dividends such Member. The Managing Member may establish reserves to pay expenses
before making distributions of cash from dividends.
12.14 Other Relationships Between Managing Member and Company.
Any Managing
Member shall be permitted to be, at the same time, an officer, director, consultant, agent, or employee of
the Company or of any affiliate of the Company, and shall be permitted to have a pecuniary interest in his
personal capacity, either directly or indirectly, in any matter or transaction to which the Company or any
affiliate may be a party or in which the Company or any affiliate may be concerned to the same extent as
though he were not a Managing Member.
Any such Managing Member shall be permitted to receive compensation, of whatever character, as
provided by existing contracts or to enter into new contracts with the Company or its affiliates, for acting in
such other capacity, without being disqualified to act as Managing Member hereunder.
12.15 Compensation of Managing Member.
compensation for his services as Managing Member hereunder, but shall be entitled to reimbursement from
the LLC of all costs and expenses and taxes incurred by the Managing Member hereunder.
12.16 Responsibility of Managing Member.
Contributed Shares or in exercising any consent with respect thereto, the Managing Member shall exercise
his best judgment, from time to time, to select suitable directors and in voting or giving directions for voting
and acting on other matters for shareholders’ action; provided, however, that the Managing Member
assumes no responsibility in respect of any such action or other action taken by the Managing Member, and
the Managing Member shall not incur or be under any liability in the capacity as Managing Member, by
reason of any error of law or any error in the construction of this Agreement or of any matter or thing done
or suggested or omitted to be done pursuant to this Agreement. No bond shall be required of any Managing
Member for the performance of the services of Managing Member.
12.17 Reliance by Managing Member.
rely upon any notice or statement received by him from the Company, the LLC, any officer or agent of the
LLC, any counsel or other advisor to the LLC or to Managing Member, or the holders of record of
Membership Certificates, and believed by him in good faith to be genuine and shall act and shall be fully
protected in acting in accordance therewith.
12.18 Legal Compliance by Managing Member
. The Managing Member shall comply with all
legal requirements of the LLC created hereby, including making all regulatory filings, such as filings with
the Securities and Exchange Commission (“SEC”), including Schedule 13D and filings under Section 16 of
the Securities Exchange Act of 1934, as amended.
ARTICLE XIII
EXCULPATION AND INDEMNIFICATION
13.1 Exculpation; Indemnification of Members.
includes reference to a Managing Member.
(a) Each member shall have all of the fiduciary and other duties imposed by Applicable
Law.
(b) To the fullest extent permitted by the Delaware Act, as the same now exists or may
hereafter be amended, no Member shall be liable to any holder of a Membership Certificate or to any other
Person, under this Agreement or Applicable Law, by reason of any matter arising out of or in relation to this
Agreement (including, without limitation, any action taken, or omitted to be taken by him, her or it in
reliance upon and in conformity with, the advice of counsel, or other professional advisor, or by reason of
any error of judgment or mistake of law or other mistake, or any act or omission of any agent or attorney,
or any misconstruction of this Agreement, or any action of any sort taken or omitted thereunder or believed
by such Member to be in accordance with the provisions and intents hereof or otherwise), provided, that
(x) such Member acted in good faith and in a manner believed by such Member to be in, or not opposed to,
the best interests of the LLC and, with respect to any criminal proceeding, had no reasonable cause to believe
his conduct was unlawful, and (y) such Member’s conduct did not constitute fraud, gross negligence, willful
misconduct or a material breach of this Agreement by such Member or a knowing violation of the provisions
of this Agreement.
(c) EACH HOLDER OF MEMBERSHIP CERTIFICATES, BY ENTERING INTO
THIS AGREEMENT, HEREBY WAIVES ANY RIGHT TO BRING OR PURSUE ANY ACTION,
DIRECTLY OR DERIVATIVELY, ON HIS, HER OR ITS OWN BEHALF OR ON BEHALF OF THE
LLC, AGAINST ANY OTHER MEMBER, EXCEPT FOR TO THE EXTENT PROVIDED IN THE
PROVISO OF THE PRECEDING PARAGRAPH, OR TO ENFORCE THE UNDERTAKING
CONTEMPLATED BY THE NEXT PARAGRAPH.
(d) To the fullest extent permitted by the Delaware Act, as the same now exists or may
hereafter be amended, each current or former Member shall be indemnified and held harmless by the LLC
from and against any and all of such current or former Member’s actions pursuant to this Agreement,
including any expenses incurred by a current or former Member in defending any proceeding or action
brought against such Member for actions taken in his, her or its capacity as a Member, provided, that (x) such
Member acted in good faith and in a manner believed by such Member to be in, or not opposed to, the best
interests of the LLC and, with respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful, and (y) such Member’s conduct did not constitute fraud, gross negligence, willful
misconduct or a material breach of this Agreement by such Member or a knowing violation of the provisions
of this Agreement.
(e) Each current or former Managing Member shall be entitled to receive prompt
payments for expenses and costs reasonably incurred in connection with the defense of any such proceeding
or action in advance of the final adjudication of any disputes relating thereto, but only if the current or
former Managing Member undertakes in writing to repay the LLC such advances if, following the
conclusion of such proceeding or action, it is ultimately determined by a court of competent jurisdiction that
the current or former Managing Member is not entitled to indemnification pursuant to this paragraph.
Subject to the approval of the Managing Member in his sole discretion, a current or former Non-Managing
Member may receive prompt payments for expenses and costs reasonably incurred in connection with the
defense of any such proceeding or action in advance of the final adjudication of any disputes relating thereto,
but only if the current or former Non-Managing Member undertakes in writing to repay the LLC such
advances if, following the conclusion of such proceeding or action, it is ultimately determined by a court of
competent jurisdiction that the current or former Non-Managing Member is not entitled to indemnification
pursuant to this paragraph.
(f) A current or former Member shall also be indemnified for any expenses and other
costs incurred to enforce such Member’s rights pursuant to this Section 13.1 or incurred to defend any action
brought by or on behalf of the LLC to recover advances pursuant to an undertaking, but in each case only if
the Member is successful in such enforcement or defense action.
(g) The rights to indemnification and advancement of expenses set forth in this
Section 13.1 shall not be deemed exclusive and shall be in addition to any such rights a Member may have,
including but not limited to rights of such Member, in his or her capacity as an officer, director, employee
or agent of the Company.
(h) The Managing Member may obtain and maintain insurance, at the expense of the
LLC created hereby, to protect any current or former Member or fiduciary or agent of the LLC, against any
expense, liability or loss.
ARTICLE XIV
RECORDS, ACCOUNTING AND TAX MATTERS
14.1 Records Required by the Delaware Act.
a period of four years thereafter, the Managing Member shall maintain at the LLC’s principal office all
records required to be kept pursuant to the Delaware Act.
14.2 Book and Records.
account for the LLC on a basis consistent with appropriate provisions of the Code, containing, among other
entries, a Capital Account for each Member. Such books and records shall be kept at the principal office of
the LLC or at such other place as the Managing Member shall determine and set forth in a written notice
given to all Members, and shall be available to the Members upon written request.
14.3 Accounting Methods; Fiscal Year.
methods and fiscal year for the LLC.
14.4 LLC Funds.
be designated by the Managing Member, in such checking, savings or other accounts, or held in its name in
the form of such other investments as shall be designated by the Managing Member. The funds of the LLC
shall not be commingled with the funds of any other Person. All withdrawals of such deposits or liquidations
of such investments by the LLC shall be made exclusively upon the signature or signatures of the Managing
Member.
14.5 Tax Matters Member
.
(a) Appointment. The Members hereby appoint the Managing Member as the “tax
matters partner” (as defined in Code Section 6231 prior to its amendment by the Bipartisan Budget Act of
2015 and, for tax years beginning on or after January 1, 2018, the “partnership representative” as provided
in Code Section 6223(a) (as amended by the Bipartisan Budget Act of 2015) (the “Tax Matters Member”).
In connection therewith, the Tax Matters Member, in his sole discretion, shall cause to be prepared and file
all tax returns, make all tax determinations and tax elections, and represent the LLC (at the LLC’s expense)
in connection with all examinations of the LLC’s affairs by taxing authorities, including resulting
administrative and judicial proceedings, and may expend LLC funds for professional services and costs
associated therewith.
(b) Notwithstanding the foregoing, the Managing Member may make an election under
Section 754 of the Code to adjust the basis of partnership property under Sections 734 and 743 of the Code.
(c) As soon as reasonably possible after the end of each fiscal year, the Managing
Member will cause to be delivered to each Person who was a Member at any time during such fiscal year,
IRS Schedule K-1 to Form 1065 and such other information with respect to the LLC as may be necessary
for the preparation of such Person’s federal, state and local income tax returns for such fiscal year.
ARTICLE XV
DISSOLUTION AND LI
Q
UIDATION
15.1 Events of Dissolution.
occurrence of any of the following events:
(a) Upon the expiration of the term of the LLC as provided in Section 2.6;
(b) The determination of the Managing Member to dissolve the LLC;
(c) A joint election to dissolve the LLC made by the Managing Member and by holders
of a majority of the voting power of the Units;
(d) The sale, exchange, or other disposition or transfer of all or substantially all the assets
of the LLC;
(e) The entry of a decree of judicial dissolution under §18-802 of the Delaware Act; or
(f) Any other event causing a dissolution of the LLC under the Delaware Act, unless the
LLC is continued as permitted under the Delaware Act.
15.2 Effectiveness of Dissolution.
the event described in Section 15.1 occurs, but the LLC shall not terminate until the winding up of the LLC
has been completed, the assets of the LLC have been distributed as provided in Section 15.3 and the
Certificate of Formation shall have been cancelled as provided in Section 15.4.
15.3 Liquidation.
and its business and affairs wound up in accordance with the Delaware Act and the following provisions:
(a) Liquidation. The Managing Member shall wind up and liquidate the affairs of the
LLC in an orderly and business-like manner, provided that the Managing Member shall not liquidate any
Class A Shares or Common Shares and shall distribute these in kind as provided in Section 15.3(c).
(b) Accounting. As promptly as possible after dissolution and again after final
liquidation, the Managing Member shall cause a proper accounting to be made of the LLC’s assets,
liabilities and operations through the last day of the calendar month in which the dissolution occurs or the
final liquidation is completed, as applicable.
(c) Distribution of Assets. Subject to the payment of all of the LLC’s debts and
liabilities to its creditors and the expenses of dissolution and liquidation, and subject to Section 18-804 of
the Delaware Act, the Managing Member shall distribute the Class A Shares and any Common Shares to
the holders of the Class A Units and Common Units, and any proceeds of liquidation, as follows: Subject
to the surrender for cancellation of the Membership Certificates, the Managing Member shall cause the
Class A Shares to be transferred to and registered in the name of the Member identified as the owner on
such Membership Certificates in liquidation of such Member’s Class A Units and, if there are any
Common Units outstanding at such time, the Managing Member shall cause Common Shares to be
transferred to and registered in the name of the Member identified as the owner on such Membership
Certificates in liquidation of such Member’s Common Units. In such liquidation, Members shall receive
one Class A Share for each Class A Unit, and one Common Share for each Common Unit. The Managing
Member shall also distribute any proceeds of liquidation in proportion to such Units.
15.4 Cancellation of Certificate of Formation
. Upon completion of the distribution of the assets
of the LLC as provided in Section 15.3 hereof, the LLC shall be terminated and the Managing Member shall
cause the cancellation of the Certificate of Formation in the State of Delaware and any qualifications and
registrations of the LLC as a foreign limited liability company in jurisdictions other than the State of
Delaware and shall take such other actions as may be necessary to terminate the LLC.
ARTICLE XVI
REPRESENTATIONS AND WARRANTIES OF MEM
B
ERS
16.1 Representations and Warranties.
Each Member represents and warrants as follows:
(a) Such Member will be acquiring the Units represented by Membership Certificate(s)
for his, her or its own account for investment and not with a view to the distribution or resale thereof; that
he, she or it is aware that the such certificates have not been registered pursuant to the Securities Act or the
securities laws of any state; and that the LLC is relying in part upon these investment representations to
establish exemptions from securities registration under applicable federal and state securities laws. Each
Member understands and agrees that the LLC will place a legend on the Membership Certificates to the
effect that they have not been registered under either federal or state law; that they may not be offered, sold,
transferred or encumbered by the Member unless they have been first duly registered or unless an exemption
from registration is available. The Member acknowledges that he, she or it understands that unregistered
securities, such as the Membership Certificates, must be held indefinitely unless they are subsequently
registered or unless an exemption from registration is available with respect to a proposed offer, sale, transfer
or encumbrance;
(b) Such Member is an “accredited investor” within the meaning of Rule 501
promulgated under the Securities Act, and agrees that it will not take any action that could have an adverse
effect on the availability of the exemption from registration provided by such Rule 501 with respect to the
offer and sale of the Units;
(c) Such Member, together with such Member’s legal, financial and other advisors, has
such knowledge and experience in financial and business matters and is capable of evaluating the merits
and risks of an investment in the LLC so as to make an informed decision with respect thereto;
(d) Such Member is able to bear the economic and financial risk of an investment in the
LLC for an indefinite period of time;
(e) Such Member (i) has received all information that such Member deems necessary to
make an informed investment decision with respect to an investment in the LLC;(ii) has had the unrestricted
opportunity to make such investigation as such Member desires pertaining to the LLC and an investment
therein and to verify any information furnished to such Member; and (iii) has had the opportunity to ask
questions of representatives of the LLC concerning the LLC and such Member’s investment;
(f) The execution, delivery and performance of this Agreement have been duly
authorized by such Member and do not require such Member to obtain any consent or approval that has not
been obtained and do not contravene or result in a default in any material respect under any provision of
any law or regulation applicable to such Member or other governing documents or any agreement or
instrument to which such Member is a party or by which such Member is bound; and
(g) This Agreement is valid, binding and enforceable against such Member in accordance
with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, and other
similar laws of general applicability relating to or affecting creditors’ rights or general equity principles
(regardless of whether considered at law or in equity).
ARTICLE XVII
COVENANTS
17.1 Confidentiality
. Each Non-Managing Member agrees not to divulge, communicate or use
to the detriment of the Company or the LLC, or misuse in any way, any confidential information or trade
secrets of the Company or the LLC, except as may be required by law; provided, however, that this
prohibition shall not apply to any information that has been publicly disclosed.
ARTICLE XVIII
GENERAL PROVISIONS
18.1 Successors and Assigns.
the benefit of and be binding upon the parties hereto, their heirs, executors, administrators, successors and
assigns. Without limiting the foregoing, the parties intend for the rights and obligations under this
Agreement to survive the death of any party or other person, including any Member and the related
Contributed Shares, and to be specifically enforceable against any deceased party’s heirs, executors,
administrators, representatives, successors or assigns to the fullest extent permitted by law.
18.2 Notices.
given and received if actually received, such as by telephone, telecopier, electronic mail, hand delivery, or
other means, and the giver has reasonable evidence or acknowledgment of its receipt. Notice shall also be
deemed to have been given if deposited in the United States mail, postage prepaid, in which case it shall be
deemed to have been received on the third business day after the date of such deposit, or if deposited with
a commercial or government overnight carrier, in which case it shall be deemed to be received the first
business day after the date of such deposit.
(a) Address of Member. In the case of a Participant or Certificate Holder, such notice
shall be addressed to such party, as set forth on Exhibit B attached hereto.
(b) Addresses of Managing Member(s). In the case of a notice to the Managing
Member by a Non-Managing Member, such notice shall be given to the Managing Member at the
principal office of the LLC, located at the principal business office of the Company, as set forth on
Exhibit B attached hereto, or as it may be changed from time to time by the Managing Member by written
notice to all such holders.
18.3 Amendment of Agreement.
hereunder may be amended upon the consent in writing of the Managing Member and by all Members
holding Membership Certificates representing no less than a majority of the voting power of the Units at the
time; provided, however, that an amendment or modification modifying the rights or obligations of any
Member in a manner that is disproportionately adverse to (i) such Member relative to the rights of other
Members in respect of Units of the same class or (ii) a class of Units relative to the rights of another class
of Units, shall in each case be effective only with that Member’s consent or the consent of the Members
holding a majority of the Units in that class. Notwithstanding the foregoing, the Managing Member may
amend this Agreement without the consent of the Members to (i) reflect the admission of new Members in
accordance with this Agreement so long as such Members have executed the applicable joinder
contemplated hereby and (ii) update any exhibit hereto to reflect any changes in any Managing Member’s
or Non-Managing Member’s name, address or number of LLC Units, including the Members Schedule.
Executed counterparts of all amendments to this Agreement (including all joinders and amended exhibits to
this Agreement) shall be filed at the principal business office of the Company.
18.4 Costs and Expenses.
LLC and each Member, shall pay its, his or her own expenses incurred in connection with the preparation
and execution of this Agreement, or any amendment hereof, this Agreement.
18.5 Severability of Provisions.
this Agreement shall not affect the validity of the remainder hereof.
18.6 Controlling Law; Submission to Jurisdiction; Specific Performance.
hereunder is a limited liability company created under the Delaware Act. All questions concerning this
Agreement and the LLC created hereunder, including the validity, construction, effect, assignment and
administration of this Agreement and the LLC created hereunder, shall always, and in all events, be
determined under the law of the State of Delaware without regard to conflict of law principles (whether of
the State of Delaware or any other jurisdiction).
EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE
(OR IF SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, ANY OTHER STATE
COURT OF THE STATE OF DELAWARE OR THE FEDERAL COURTS LOCATED IN THE STATE
OF DELAWARE) IN ANY ACTION, SUIT OR PROCEEDING ARISING IN CONNECTION WITH
THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL
BE BROUGHT ONLY IN THE COURT OF CHANCERY (OR SUCH OTHER COURTS IDENTIFIED
HEREIN IF THE COURT OF CHANCERY DOES NOT HAVE SUBJECT MATTER JURISDICTION)
AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS OR ANY OTHER
OBJECTION TO VENUE THEREIN; PROVIDED, HOWEVER, THAT SUCH CONSENT TO
JURISDICTION IS SOLELY FOR THE PURPOSE REFERRED TO IN THIS PARAGRAPH AND
SHALL NOT BE DEEMED TO BE A GENERAL SUBMISSION TO THE JURISDICTION OF SUCH
COURTS OR IN THE STATE OF DELAWARE OTHER THAN FOR SUCH PURPOSE. THE PARTIES
HERETO HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY
SUCH ACTION, SUIT OR PROCEEDING.
Service of process on a party in any action arising out of or relating to this Agreement shall be
effective if delivered to such party in accordance with Section 18.2.
The parties hereto hereby agree that it is impossible to measure in money the damages which will
accrue to a party hereto or to its heirs, personal representatives, or assigns by reason of a failure to perform
any obligations under this Agreement and agree that the terms of this Agreement shall be specifically
enforceable. If any party hereto or its heirs, personal representatives, or assigns institutes any action or
proceeding to specifically enforce the provisions hereof, any person against whom such action or proceeding
is brought (i) hereby waives the claim or defense therein that such party or such personal representative has
an adequate remedy at law, (ii) hereby waives any bond, surety, or other security that might be required of
any other party with respect thereto, and (iii) shall not offer in any such action or proceeding the claim or
defense that an adequate remedy at law exists.
18.7 Construction of Agreement.
this Agreement shall be determined by the Managing Member, whose decision shall be final and binding on
all parties.
18.8 Multiple Counterparts.
them, in any number of counterparts, with the same force and effect as if they had all executed the same
instrument.
18.9 Entire Agreement.
entire understanding among the parties hereto with respect to the subject matter hereof, and no
representation, warranty, covenant or condition other than those expressly set forth herein shall be of any
force or effect.
18.10 No Third-party Beneficiaries.
the sole benefit of the parties hereto (and their respective heirs, executors, administrators, successors and
assigns) and nothing herein, express or implied, is intended to or shall confer upon any other Person,
including any creditor of the LLC, any legal or equitable right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
* * * * *
IN WITNESS WHEREOF, the LLC, the Managing Member and each other Member has caused this
Agreement to be duly executed as of the date first specified above.
DLNL, LLC
By:
Adolphus B. Baker
Managing Member
Managing Member:
Adolphus B. Baker, Managing Member
Non-Managing Members:
Dinnette Adams Baker
Luanne Adams
Nancy Adams Briggs
Laurel Adams Krodel
EXHIBIT A
FORM OF MEMBERSHIP CERTIFICATE
No.
Number of
[Class A Units]
[Common Units]
DLNL, LLC
Formed under the Laws of the State of Delaware
THIS IS TO CERTIFY that __________________________ is the registered owner of __________
[Class A Units] [Common Units] of DLNL, LLC, a Delaware limited liability company (the “LLC”), under
the Amended and Restated Limited Liability Company Operating Agreement dated as of February 25, 2025
(the “Agreement”), by and among the LLC, Adolphus B. Baker, as Managing Member, and the other
Members and holders of Membership Certificates.
A copy of the Agreement is on file with the Company, and with the Managing Member, Adolphus
B. Baker, at the principal place of business of the Company. Each holder of this Certificate by the
acceptance hereof assents and agrees to be bound by all the provisions of the Agreement.
NEITHER THIS CERTIFICATE NOR THE UNITS REPRESENTED HEREBY IS
TRANSFERABLE, WHETHER BY SALE, ASSIGNMENT, GIFT, BEQUEST, APPOINTMENT OR
OTHERWISE, BY THE HOLDER OF RECORD HEREOF EXCEPT TO THE EXTENT PROVIDED BY
THE AGREEMENT AND SUBJECT TO SUCH PROCEDURES AS MAY BE REQUIRED BY THE
MANAGING MEMBER. THIS CERTIFICATE AND THE UNITS REPRESENTED HEREBY ARE
SUBJECT TO ADDITIONAL TRANSFER AND VOTING RESTRICTIONS SET FORTH IN THE
AGREEMENT. THE MANAGING MEMBER MAY TREAT THE HOLDER OF RECORD HEREOF
AS THE OWNER OF THIS CERTIFICATE FOR ALL PURPOSES. ANY ATTEMPTED TRANSFER
OF THIS CERTIFICATE OR THE UNITS REPRESENTED HEREBY WHICH IS NOT PERMITTED
PURSUANT TO THE AGREEMENT SHALL BE VOID. IN THE EVENT OF A TRANSFER
PERMITTED BY THE AGREEMENT, EVERY TRANSFEREE OF THIS CERTIFICATE SHALL BY
THE ACCEPTANCE HEREOF BECOME SUBJECT TO THE PROVISIONS OF THE AGREEMENT.
THE SALE, ASSIGNMENT, GIFT, PLEDGE OR OTHER ENCUMBRANCE, OR OTHER
TRANSFER OF THIS MEMBERSHIP CERTIFICATE OR THE UNITS (OR ANY INTEREST
THEREIN) REPRESENTED HEREBY IS SUBJECT TO THE RESTRICTIONS, TERMS AND
CONDITIONS SET FORTH IN THE COMPANY ’S RESTATED CERTIFICATE OF INCORPORATION
AND IN THE AGREEMENT DESCRIBED IN THIS CERTIFICATE AND PURSUANT TO WHICH
THIS CERTIFICATE IS ISSUED. A COPY OF THE AGREEMENT IS ON FILE AT THE PRINCIPAL
PLACE OF BUSINESS OF THE COMPANY . NO SUCH TRANSFER OF THIS CERTIFICATE, OR
THE SHARES REPRESENTED BY THIS CERTIFICATE, MAY BE EFFECTED, EXCEPT PURSUANT
TO THE TERMS OF SUCH RESTATED CERTIFICATE OF INCORPORATION AND THE
AGREEMENT.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE APPLICABLE
SECURITIES LAWS OF ANY STATE BUT HAVE BEEN ISSUED IN RELIANCE UPON
EXEMPTIONS FROM REGISTRATION CONTAINED IN SAID LAWS . NO SALE, OFFER TO SELL
OR OTHER TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE
MADE UNLESS A REGISTRATION STATEMENT UNDER SAID LAWS IS IN EFFECT WITH
RESPECT TO THE SECURITIES, OR AN EXEMPTION FROM THE REGISTRATION PROVISIONS
OF SUCH LAWS IS THEN APPLICABLE.
IN WITNESS WHEREOF, the Managing Member has executed this Certificate on behalf of the
LLC by affixing his hand this day of , 20 .
DLNL, LLC
By:
Adolphus B. Baker, Managing Member
(FORM OF ASSIGNMENT FOR REVERSE SIDE OF
MEMBERSHIP CERTIFICATE)
FOR VALUE RECEIVED, ______________________________ hereby sells, assigns and transfers
unto ______________________________ the within Certificate and all rights and interests thereby and
does hereby irrevocably constitute and appoint ______________________________ attorney to transfer
such certificate on the books of the LLC under the Agreement within referred to, with full power of
substitution in the premises.
Dated: ___________
Name:
In the presence of:
________________________________
INFORMATION RELATING TO MANAGING MEMBER
AND NON-MANAGING MEMBERS
MANAGING MEMBER:
ADOLPHUS B. BAKER:
Address: c/o Cal-Maine Foods, Inc.
Telephone: 601–948–6813
Fax: 601–969–0905
Email:
NON-MANAGING MEMBERS:
DINNETTE ADAMS BAKER:
Address: c/o Adolphus B. Baker
Telephone: 601-948-6813
Fax: 601-969-0905
Email:
LUANNE ADAMS:
Address: c/o Adolphus B. Baker
Telephone: 601-948-6813
Fax: 601-969-0905
Email:
NANCY ADAMS BRIGGS:
Address: c/o Adolphus B. Baker
Telephone: 601-948-6813
Fax: 601-969-0905
Email:
LAUREL ADAMS KRODEL:
Address: c/o Adolphus B. Baker
Telephone: 601-948-6813
Fax: 601-969-0905
Email:
With a copy to counsel:
Name of Attorney: Joseph E. Varner III
Name of Firm: Brunini Law
Address: 190 East Capitol Street, Suite 190
Address (continued): Jackson, MS 39201
Telephone:
Fax:
Email:
JOINDER
This Joinder is made as of the date written below by the undersigned (the “Joining Party”) in
accordance with the Amended and Restated Limited Liability Company Operating Agreement dated as of
February 25, 2025 by and among DLNL, LLC (the “LLC”), Adolphus B. Baker, as Managing Member, and
the other Members of the LLC under such Agreement (the “LLC Operating Agreement”). Capitalized terms
used, but not defined, herein shall have the respective meanings ascribed to such terms in the LLC Operating
Agreement.
The Joining Party hereby represents and warrants to the LLC that the undersigned is an Immediate
Family Member or Permitted Transferee. The Joining Party hereby acknowledges, agrees and confirms
that, by its execution of this Joinder, the Joining Party shall be deemed to be a party to the LLC Operating
Agreement as of the date hereof and shall have all of the rights and obligations of a “Member” thereunder,
as if it had executed the LLC Operating Agreement. The Joining Party hereby ratifies, as of the date hereof,
and agrees to be bound by, all of the terms, provisions and conditions contained in the LLC Operating
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Joinder as of the date written below.
Date: _____________ ____, 20__
If an entity:
[Name of Joining Party]
By: _____________________
If a natural person
_____________________
Name:
JOINDER OF MANAGING MEMBER
This Joinder of Managing Member is made as of the date written below by the undersigned (the
“Joining Party”) in accordance with the Amended and Restated Limited Liability Company Operating
Agreement dated as of February 25, 2025 by and among DLNL, LLC (the “LLC”), Adolphus B. Baker, as
Managing Member, and the other Members of the LLC (the “LLC Operating Agreement”). Capitalized
terms used, but not defined, herein shall have the respective meanings ascribed to such terms in the LLC
Operating Agreement.
The Joining Party hereby represents and warrants to the LLC that the undersigned is an Immediate
Family Member. The Joining Party hereby acknowledges, agrees and confirms that, by its execution of this
Joinder, the Joining Party shall be deemed to be a party to the LLC Operating Agreement as of the date
hereof and shall have all of the rights and obligations of a “Managing Member” thereunder, as if it had
executed the LLC Operating Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees
to be bound by, all of the terms, provisions and conditions contained in the LLC Operating Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Joinder of Managing Member as of
the date written below.
Date: _____________ ____, 20__
_____________________
Name:
REDEMPTION REQUEST
Dated: ________________, 20_____
To the Managing Member of DLNL, LLC (the “LLC”)
The undersigned hereby requests the redemption of Common Units of the LLC pursuant to
Section 7.3 of the Amended and Restated Limited Liability Company Operating Agreement dated as of
February 25, 2025 by and among DLNL, LLC (the “LLC”), Adolphus B. Baker, as Managing Member, and
the other Members of the LLC (the “LLC Operating Agreement”). Capitalized terms used, but not defined,
herein shall have the respective meanings ascribed to such terms in the LLC Operating Agreement.
The undersigned hereby requests the redemption of __________ Common Units in exchange for an
equivalent number of Common Shares of Cal-Maine Foods, Inc. (the “Company”).
[Such redemption is being requested pursuant to Section 7.3(a) to effect a transfer or sale of
underlying Common Shares, which sale or transfer is in compliance with the Agreement Regarding
Conversion and applicable federal and state securities laws.]
[Such redemption is being requested pursuant to Section 7.3(b) to effect a transfer to a charitable
donor advised fund.]
[Such redemption is being requested pursuant to Section 7.3(c) for the following purposes:
_________________________________________________________. Delivered with this notice is
documentation supporting the number of Common Units requested to be redeemed for such purposes.]
Delivered with this request is Membership Certificate(s) No(s). ________ registered in the name of
the undersigned Member. To the extent this request is approved by the Managing Member, please (i) cause
a certificate representing ___________ Common Shares to be transferred to and registered in the name of
the undersigned Member, equal to the __________ Common Units being redeemed, and (ii) issue a new
Membership Certificate to the Member for ________ Common Units, representing the number of Common
Units that are not being redeemed and that will continue to be owned by the undersigned Member after the
redemption.
Member
UNIT OWNERSHIP
AS OF THE RESTATEMENT DATE
Member
Common
Units
Common
Shares
Contributed in
Exchange for
Such Common
Units
Class A
Units
Class A
Shares
Contributed
in Exchange
for Such
Class
A
Units
Total Units
Total Votes
Dolph Baker
0
0
1,309,245
1,309,245
1,309,245
13,092,450
Dinnette Adams Baker
56,595
56,595
1,090,755
1,090,755
1,147,350
10,964,145
Luanne Adams
343,787
343,787
800,000
800,000
1,143,787
8,343,787
Nancy Adams Briggs
343,787
343,787
800,000
800,000
1,143,787
8,343,787
Laurel Adams Krodel
343,787
343,787
800,000
800,000
1,143,787
8,343,787
Total
1,087,956
1,087,956
4,800,000
4,800,000
5,887,956
49,087,956
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CAL-MAINE FOODS, INC.
Cal-Maine Foods, Inc. (the “Corporation”), a corporation organized and existing under and pursuant
to the provisions of
the General Corporation Law of the State of Delaware (the “DGCL”), does hereby
certify as follows:
FIRST
: The original Certificate of Incorporation of the Corporation was filed with the Secretary of
State of the State of Delaware on September 10, 1969; the Amended and Restated Certificate of
Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on
October 3, 1996; the Second Amended and Restated Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on July 20, 2018; and a Certificate of Amendment
to the Second Amended and Restated Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on October 4, 2024.
SECOND
: This Third Amended and Restated Certificate of Incorporation was duly adopted in
accordance with
Sections 242 and 245 of the DGCL and was duly approved by the written consent of the
stockholders of the Corporation in accordance with Section 228 of the DGCL.
THIRD
: This Third Amended and Restated Certificate of Incorporation shall become effective upon
filing with the Secretary of State of the State of Delaware.
The Corporation hereby restates and integrates and further amends the Second Amended and
Restated Certificate of Incorporation, as amended, of the Corporation
by revising such document in its
entirety as follows:
ARTICLE I
NAME
The name of the Corporation is CAL-MAINE FOODS, INC.
ARTICLE II
REGISTERED OFFICE
The name of its registered agent is The Corporation Service Company
.
The address of such
registered office in the State of Delaware is 251 Little Falls Drive, Wilmington, Delaware 19808, in the
County of New Castle.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may
be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
1. Authorized Capital Stock. The amount of capital stock that the Corporation is authorized to
issue shall be 134,800,000 shares of Capital Stock and shall consist of (a) 120,000,000 shares of common
stock with a par value of $0.01 per share (the “Common Stock”), (b) 10,000,000 shares of preferred stock
with a par value of $0.01 per share (the “Preferred Stock”) and (c) 4,800,000 shares of Class A Common
Stock with a par value of $0.01 per share.
2. Increase or Decrease in Authorized Preferred Stock. The number of authorized shares of
Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding)
by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled
to vote generally in the election of directors, irrespective of the provisions of Section 242(b)(2) of the DGCL
(or any successor provision thereto), voting together as a single class, without a separate vote of the holders
of the Preferred Stock , unless a vote by any holders of one or more series of Preferred Stock is required by
the express terms of any series of Preferred Stock as provided for or fixed pursuant to the provisions of
Article IV, Section 4 of this amended and restated certificate of incorporation of the Corporation (as further
amended from time to time in accordance with the provisions hereof and including, without limitation, the
terms of any certificate of designation with respect to any series of Preferred Stock, this “Certificate of
Incorporation”).
3. Common Stock.
(a) The holders of shares of Common Stock shall be entitled to one vote for each such share on
each matter properly submitted to the stockholders of the Corporation on which the holders of shares of
Common Stock are entitled to vote. The holders of shares of Common Stock shall not have cumulative
voting rights. Except as otherwise required by law or this Certificate of Incorporation, and subject to the
rights of the holders of shares of Preferred Stock, if any, at any annual or special meeting of the stockholders
of the Corporation, the holders of shares of Common Stock shall have the right to vote for the election of
directors and on all other matters properly submitted to a vote of the stockholders; provided, however, that,
except as otherwise required by law, holders of shares of Common Stock shall not be entitled to vote on any
amendment to this Certificate of Incorporation that relates solely to the terms, number of shares, powers,
designations, preferences or relative, participating, optional or other special rights (including, without
limitation, voting rights), or to qualifications, limitations or restrictions thereof, of one or more outstanding
series of Preferred Stock if the holders of such affected series are entitled, either separately or together with
the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation or
pursuant to the DGCL.
(b) Except as otherwise required by law or this Certificate of Incorporation, and subject to the
rights of the holders of shares of Preferred Stock, the holders of shares of Common Stock shall be entitled
to receive such dividends and other distributions (payable in cash, property or capital stock of the
Corporation) when, as and if declared thereon by the board of directors of the Corporation (the “Board”)
from time to time out of any assets or funds of the Corporation legally available therefor and shall share
equally on a per share basis in such dividends and distributions.
(c) Except as otherwise required by law or this Certificate of Incorporation, in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, after payment or
provision for payment of the debts and other liabilities of the Corporation, and subject to the rights of the
holders of shares of Preferred Stock in respect thereof, the holders of shares of Common Stock shall be
entitled to receive all of the remaining assets of the Corporation available for distribution to its stockholders,
ratably in proportion to the number of shares of Common Stock held by them.
4. Preferred Stock.
(a) The Board is expressly authorized to issue from time to time shares of Preferred Stock in one
or more series pursuant to a resolution or resolutions providing for such issue duly adopted by the Board.
The Board is further authorized, subject to limitations prescribed by law, to fix by resolution or resolutions
and to set forth in a certification of designation filed pursuant to the DGCL the powers, designations,
preferences and relative, participating, optional or other special rights, if any, and the qualifications,
limitations or restrictions thereof, if any, of any wholly unissued series of Preferred Stock, including, without
limitation, dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption
(including, without limitation, sinking fund provisions), redemption price or prices and liquidation
preferences of any such series, and the number of shares constituting any such series and the designation
thereof, or any of the foregoing.
(b) The Board is further authorized to increase (but not above the total number of authorized
shares of the class) or decrease (but not below the number of shares of any such series then outstanding) the
number of shares of any series of Preferred Stock, the number of which was fixed by it, subsequent to the
issuance of shares of such series then outstanding, subject to the powers, preferences and rights, and the
qualifications, limitations and restrictions thereof, stated in this Certificate of Incorporation or the resolution
of the Board originally fixing the number of shares of such series. If the number of shares of any series of
Preferred Stock is so decreased, then the shares constituting such decrease shall resume the status that they
had prior to the adoption of the resolution originally fixing the number of shares of such series.
5. Class A Common Stock. As long as any shares of Class A Common Stock are issued and
outstanding, the powers, designations, preferences or relative, participating, optional or other special rights
(including, without limitation, voting rights) of the Common Stock shall be subject to the powers,
designations, preferences or relative, participating, optional or other special rights (including, without
limitation, voting rights) of the Class A Common Stock, as described in this Article IV, Section 5 and, if
applicable, elsewhere in this Certificate of Incorporation. At the earliest date that no shares of Class
A
Common Stock are issued or outstanding, the provisions of this Article IV, Section 5 shall terminate and
cease to be of any further force or effect.
(a) The holders of shares of Class
A
Common Stock shall not have cumulative voting rights.
(b) Each share of Class A Common Stock shall have ten votes per share on all matters that may
be submitted to a vote or consent of the stockholders.
(c) Except as otherwise provided herein or required by law, the Common Stock and the Class A
Common Stock shall together vote as a class, except that the holders of Common Stock shall have one vote
per share and the holders of Class A Common Stock shall have ten votes per share.
(d) Anything herein to the contrary notwithstanding, the holders of Common Stock shall have
exclusive voting power on all matters at any time when no shares of Class A Common Stock are issued and
outstanding, and the holders of the Class A Common Stock will have the exclusive voting power on all
matters at any time when no shares of the Common Stock are issued and outstanding.
(e) Except as otherwise provided herein or required by applicable law, shares of Common Stock
and Class A Common Stock shall have the same rights and powers, rank equally (including as to dividends
and distributions, and upon any liquidation, dissolution or winding up of the Corporation), share ratably and
be identical in all respects and as to all matters.
(f) Shares of Common Stock and Class A Common Stock shall be treated equally, identically
and ratably, on a per share basis, with respect to any dividends or distributions as may be declared and paid
from time to time by the Board out of any assets of the Corporation legally available therefor; provided,
however, that in the event a dividend is paid in the form of shares of Capital Stock (or rights to acquire such
shares), then holders of Common Stock shall receive shares of Common Stock (or rights to acquire such
shares, as the case may be) and holders of Class A Common Stock shall receive shares of Class A Common
Stock (or rights to acquire such shares, as the case may be), with holders of shares of Common Stock and
Class A Common Stock receiving, on a per share basis, an identical number of shares of Common Stock or
Class A Common Stock, as applicable. Notwithstanding the foregoing, the Board may pay or make a
disparate dividend or distribution per share of Common Stock or Class A Common Stock (whether in the
amount of such dividend or distribution payable per share, the form in which such dividend or distribution
is payable, the timing of the payment, or otherwise) if such disparate dividend or distribution is approved in
advance by the affirmative vote of the holders of a majority of the outstanding shares of Common Stock and
Class A Common Stock, each voting separately as a class.
(g) Shares of Common Stock or Class A Common Stock may not be subdivided, combined or
reclassified unless the shares of the other class are concurrently therewith proportionately subdivided,
combined or reclassified in a manner that maintains the same proportionate equity ownership between the
holders of the outstanding Common Stock and Class A Common Stock on the record date for such
subdivision, combination or reclassification; provided, however, that shares of one such class may be
subdivided, combined or reclassified in a different or disproportionate manner if such subdivision,
combination or reclassification is approved in advance by the affirmative vote of the holders of a majority
of the outstanding shares of Common Stock and Class A Common Stock, each voting separately as a class.
(h) In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation,
and subject to the rights of the holders of shares of Preferred Stock in respect thereof, the holders of shares
of Common Stock and Class A Common Stock shall be entitled to receive all of the remaining assets of the
Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of
Common Stock or Class A Common Stock, as applicable, held by them, unless disparate or different
treatment of the shares of each such class with respect to distributions upon any such liquidation, dissolution
or winding up is approved in advance by the affirmative vote of the holders of a majority of the outstanding
shares of Common Stock and Class A Common Stock, each voting separately as a class.
(i) In the event of (i) a merger, consolidation or other business combination requiring the
approval of the holders of the Corporation’s capital stock entitled to vote thereon, (ii) a tender or exchange
offer to acquire any shares of Common Stock or Class A Common Stock by an third party pursuant to an
agreement to which the Corporation is a party, or (iii) a tender or exchange offer to acquire any shares of
Common Stock or Class A Common Stock by the Corporation, holders of the Common Stock and the
Class A Common Stock shall have the right to receive, or the right to elect to receive, the same form and
amount of consideration on a per share basis.
(j) The holders of record of Class A Common Stock may at any time convert any whole number
or all of such holder’s shares of Class A Common Stock into fully paid and non-assessable shares of
Common Stock of the Corporation at the rate (subject to adjustment as hereinafter provided) of one share
of Common Stock for each share of Class A Common Stock converted. Such conversion shall be effected
by the holder of Class A Common Stock surrendering such Class A Common Stock certificate or certificates
to be converted, duly endorsed, at the office of the Corporation or at any transfer agent for the Corporation
or for the Class A Common Stock together with a written election to the Corporation at such office that the
holder thereof elects to convert all or the specified number of shares of Class A Common Stock into
Common Stock and specifying the name or names in which the holder desires the certificate or certificates
for such shares of Common Stock to be issued. Upon conversion, the Corporation shall issue and deliver to
such holder or holders, nominee or nominees, a certificate or certificates for the number of shares of
Common Stock to which such holder shall be entitled. Such conversion shall be deemed to have been made
at the close of business on the day of presentation for conversion and the person or persons entitled to receive
the shares of Common Stock as a result of such conversion shall be treated for all purposes as the record
holder or holders of such shares of Common Stock on such date.
(k) Before any shares of Common Stock shall be delivered upon conversion, the holders of
shares of Class A Common Stock whose shares are being converted into Common Stock shall deliver the
certificate or certificates representing such shares to the Corporation or its duly authorized agent (or if such
certificates have been lost, stolen, or destroyed, the holder thereof shall execute an agreement satisfactory
to the Corporation to indemnify the Corporation from any loss incurred by it in relation to such conversion)
specifying the place where the Common Stock issued in conversion thereof shall be sent. The endorsement
of the certificate or certificates of Class A Common Stock to be converted into Common Stock shall be in
form satisfactory to the Corporation or its agent, as the case may be.
(l) The number of shares of Common Stock into which the shares of Class A Common Stock
may be converted shall be subject to adjustment from time to time in the event of any capital reorganization,
reclassification of stock of the Corporation or consolidation or merger of the Corporation with or into
another corporation. Each share of the Class A Common Stock shall thereafter be convertible into such
kind and amount of securities or other assets or both as are issuable or distributable in respect to the number
of shares of Common Stock into which each share of Class A Common Stock is convertible immediately
prior to such reorganization, reclassification, consolidation or merger. In any such case, appropriate
adjustments shall be made by the Board in the application of the provisions herein set forth with respect to
the rights and interests thereafter of the holders of Class A Common Stock such that the provisions set forth
herein (including provisions for adjustment of the conversion rate) shall thereafter be applicable, as nearly
as reasonably may be possible in relation to any securities or other assets thereafter deliverable upon
conversion of the Class A Common Stock.
(m) The Corporation shall at all times reserve and keep available out of the authorized and
unissued shares of Common Stock, solely for the purpose of effecting the conversion of the outstanding
Class A Common Stock, such number of the shares of Common Stock as shall from time to time be
sufficient to effect conversion of all outstanding Class A Common Stock and if, at any time, the number of
authorized and unissued shares of Common Stock shall not be sufficient to effect conversion of the then
outstanding Class A Common Stock, the Corporation shall take such action as may be necessary to increase
the number of authorized and unissued shares of Common Stock to such number shall be sufficient for such
purposes.
(n) The Class A Common Stock may be issued only to Fred R. Adams, Jr., his Immediate Family
Members and any Permitted Transferee.
(o) As used herein “Immediate Family Members” is defined as Fred R. Adams, Jr., his spouse,
his natural children, his sons-in-law, and his grandchildren, including the estates of all of such persons. For
purposes of the foregoing, the estate of a person shall include only such person’s estate, and a person who
receives a distribution from such estate shall not be an Immediate Family Member unless such person is
otherwise included in the foregoing definition of Immediate Family Member.
(p) As used herein “Permitted Transferee” includes:
(i) an Immediate Family Member;
(ii) a trust held for the sole or primary benefit of one or more Immediate Family Members
or Permitted Transferees, including any trustee in such trustee’s capacity as such; provided, however, that
if a trust is not for the sole benefit of one or more Immediate Family Members or Permitted Transferees, an
Immediate Family Member or Permitted Transferee must retain sole dispositive and exclusive power to
direct the voting of the shares of Class A Common Stock held by such trust; provided further that in the
event an Immediate Family Member or Permitted Transferee ceases to retain sole dispositive and exclusive
power to direct the voting of the shares of Class A Common Stock held by such trust, each share of Class A
Common Stock held by such trust shall automatically be converted into one fully paid and non-assessable
share of Common Stock without any further action by the Corporation or any holder of Class A Common
Stock;
(iii) a corporation, limited liability company or partnership, including but not limited to,
a family limited partnership or similar limited liability company or corporation, or a single member limited
liability company, but only if all of the equity interest in such entity is owned, directly or indirectly, by one
or more Immediate Family Members or Permitted Transferees and an Immediate Family Member or
Permitted Transferee retains sole dispositive and exclusive power to direct the voting of the shares of
Class A Common Stock held by such entity; provided, however, that in the event an Immediate Family
Member or Permitted Transferee ceases to retain sole dispositive and exclusive power to direct the voting
of the shares of Class A Common Stock held by such entity, each share of Class A Common Stock held by
such entity shall automatically be converted into one fully paid and non-assessable share of Common Stock
without any further action by the Corporation or any holder of Class A Common Stock;
(iv) an Individual Retirement Account, as defined in Section 408(a) of the Internal
Revenue Code, or a pension, profit sharing, stock bonus or other type of plan or trust of which an Immediate
Family Member or Permitted Transferee is a participant or beneficiary and which satisfies the requirements
for qualification under Section 401 of the Internal Revenue Code, but only if, in each case, an Immediate
Family Member or Permitted Transferee retains sole dispositive and exclusive power to direct the voting of
the shares of Class A Common Stock held by such account, plan or trust; provided, however, that in the
event an Immediate Family Member or Permitted Transferee ceases to retain sole dispositive and exclusive
power to direct the voting of the shares of Class A Common Stock held by such account, plan or trust, each
share of Class A Common Stock held by such account, plan or trust shall automatically be converted into
one fully paid and non-assessable share of Common Stock without any further action by the Corporation or
any holder of Class A Common Stock; or
(v) any guardianship, conservatorship or custodianship for the benefit of an Immediate
Family Member who has been adjudged disabled, incapacitated, incompetent or otherwise unable to manage
his or her own affairs by a court of competent jurisdiction, including any guardian, conservator or custodian
in such guardian’s, conservator’s or custodian’s capacity as such.
(q) In the event that beneficial or record interest in any shares of Class A Common Stock shall
be transferred, sold, assigned, conveyed, hypothecated, gifted or otherwise disposed of or transferred,
whether or not for value and whether voluntary or involuntary or by operation of law or intestacy, to, or in
the event any shares of Class A Common Stock, by operation of law or otherwise, are (or shall be deemed
to be) owned by, any person or entity other than an Immediate Family Member or Permitted Transferee,
each such share of Class A Common Stock shall automatically be converted into one fully paid and non-
assessable share of Common Stock without any further action by the Corporation or any holder of Class A
Common Stock. For the avoidance of doubt, a “transfer” shall also include, without limitation, a transfer
of shares of Class A Common Stock to a broker or other nominee (regardless of whether or not there is a
corresponding change in beneficial ownership), or the transfer of, or entering into a binding agreement with
respect to, the power to vote or direct the vote of any shares of Class A Common Stock by proxy or
otherwise; provided, however, that granting a proxy to officers or directors of the Corporation at the request
of the Board in connection with actions to be taken at an annual or special meeting of stockholder shall not
be considered a “transfer.”
(r) For the avoidance of doubt, no “transfer” shall be deemed to have resulted from, and no
conversion of Class A Common Stock into Common Stock shall occur as a result of, any person’s entry into
that certain Amended and Restated Memorandum of Understanding dated May 14, 2018 or the transaction
documents contemplated thereby.
(s) At such time as less than 4,300,000 shares of Class A Common Stock, or less than 4,600,000
shares of Class A Common Stock and Common Stock in the aggregate, (such amounts to be adjusted from
time to time for subdivisions, combinations,
stock splits and pro rata stock dividends), are beneficially
owned by Immediate Family Members or Permitted Transferees, then each outstanding share of Class A
Common Stock shall automatically be converted into one validly issued and non-assessable share of
Common Stock without any further action by the Corporation or any holder of Class A Common Stock.
(t) No shares of Class A Common Stock acquired by the Corporation by reason of redemption,
purchase, conversion or otherwise shall be reissued and all such shares shall be cancelled, retired and
eliminated from the shares that the Corporation shall be authorized to issue.
(u) The holder of shares of Class A Common Stock of the Corporation may pledge or otherwise
utilize Class A Common Stock as security for an obligation of a holder of such stock. Such pledge or
utilization shall not be considered as a transfer of ownership for the purposes of determining eligibility of
ownership of the Class A Common Stock until the beneficial ownership of any such pledged or
hypothecated stock is transferred of record to a person or entity who is not an Immediate Family Member
or Permitted Transferee.
(v) Conversion into Common Stock shall be deemed to have occurred (whether or not
certificates representing such shares are surrendered) as of the close of business on the date of transfer and
the person or persons (including any entity or entities) entitled to receive shares of Common Stock issuable
upon such conversion shall be treated for all purposes as the record holder or holders of such shares of
Common Stock on such date.
(w) The Corporation shall pay any and all taxes or other fees payable in respect of the issuance
and delivery of shares of Common Stock issuable as a result of the conversion of Class A Common Stock
unless the issuance of Common Stock results from the transfer of Class A Common Stock to a person or
entity not entitled to the ownership thereof.
(x) So long as any shares of Class A Common Stock are outstanding, the Corporation shall not,
without first obtaining the approval by vote or written consent in the manner provided by law of the holders
of not less than 66
2
/
3
% of the total number of shares of Class A Common Stock outstanding, voting
separately as a class, (1) alter or change the rights or privileges of Class A Common Stock, (2) amend any
provision of this Article IV, Section 5 affecting the Class A Common Stock or (3) effect any re-
classification or re-capitalization of the Corporation’s outstanding capital stock.
(y) Shares of Class A Common Stock may be issued to any party eligible to own such stock for
such consideration, in an amount not less than the par value thereof, as the Board shall determine to be
adequate, including without limitation, shares of the Corporation’s Common Stock on a share for share
basis.
ARTICLE V
BOARD OF DIRECTORS
1. General Powers. The business and affairs of the Corporation shall be managed by or under
the direction of the Board.
2. Number of Directors; Election; Term.
(a) The number of directors that shall constitute the entire Board shall not be less than three nor
more than twelve. Within such limit, the number of members of the entire Board shall be fixed, from time
to time, exclusively by the Board in accordance with the bylaws of the Corporation (as amended from time
to time in accordance with the provisions hereof and thereof, the “Bylaws”), subject to the rights of holders
of any series of Preferred Stock with respect to the election of directors, if any.
(b) Subject to the rights of holders of any series of Preferred Stock with respect to the election
of directors, the directors of the Corporation shall be divided into three classes as nearly equal in number as
is practicable, hereby designated Class I, Class II and Class III. The Board is authorized to assign members
of the Board already in office to such classes. The term of office of the initial Class I directors shall expire
upon the election of directors at the first annual meeting of stockholders following the effectiveness of this
Article V; the term of office of the initial Class II directors shall expire upon the election of directors at the
second annual meeting of stockholders following the effectiveness of this Article V; and the term of office
of the initial Class III directors shall expire upon the election of directors at the third annual meeting of
stockholders following the effectiveness of this Article V. At each annual meeting of stockholders,
commencing with the first annual meeting of stockholders following the effectiveness of this Article V,
each of the successors elected to replace the directors of a class whose term shall have expired at such annual
meeting shall be elected to hold office until the third annual meeting next succeeding his or her election and
until his or her respective successor shall have been duly elected and qualified. Subject to the rights of
holders of any series of Preferred Stock with respect to the election of directors, if the number of directors
that constitutes the Board is changed, any newly created directorships or decrease in directorships shall be
so apportioned by the Board among the classes as to make all classes as nearly equal in number as is
practicable; provided, however, that no decrease in the number of directors constituting the Board shall
shorten the term of any incumbent director.
(c) Subject to the rights of holders of any series of Preferred Stock with respect to the election
of directors, each director shall serve until such director’s successor is duly elected and qualified or until
such director’s earlier death, resignation or removal.
(d) Elections of directors need not be by written ballot unless the Bylaws shall so provide.
3. Removal. Subject to the rights of holders of any series of Preferred Stock with respect to the
election of directors, a director may be removed from office by the stockholders of the Corporation only for
cause and only by the affirmative vote of the holders of at least a majority of the voting power of all then
outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors,
voting together as a single class.
4. Vacancies and Newly Created Directorships. Subject to the rights of holders of any series
of Preferred Stock with respect to the election of directors, vacancies occurring on the Board for any reason
and newly created directorships resulting from an increase in the number of directors may be filled only by
vote of a majority of the remaining members of the Board, although less than a quorum, or by a sole
remaining director, at any meeting of the Board and not by the stockholders. A person so elected by the
Board to fill a vacancy or newly created directorship shall hold office until the next election of the class for
which such person shall have been assigned by the Board and until such person’s successor shall be duly
elected and qualified or until such director’s earlier death, resignation or removal.
ARTICLE VI
AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by statute, the Board is expressly
authorized to adopt, amend, alter or repeal the Bylaws. The Bylaws may also be adopted, amended, altered
or repealed by the stockholders of the Corporation by the affirmative vote of the holders of at least 66
2
/
3
%
of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class.
ARTICLE VII
STOCKHOLDERS
1. No Action by Written Consent of Stockholders. Except as otherwise expressly provided by
the terms of any series of Preferred Stock permitting the holders of such series of Preferred Stock to act by
written consent, any action required or permitted to be taken by the stockholders of the Corporation must
be effected at a duly called annual or special meeting of the stockholders of the Corporation and may not be
effected by written consent in lieu of a meeting.
2. Special Meetings. Except as otherwise expressly provided by the terms of any series of
Preferred Stock permitting the holders of such series of Preferred Stock to call a special meeting of the
holders of such series, special meetings of the stockholders of the Corporation may be called only by the
Board Chair or the Board, and the ability of the stockholders to call a special meeting of the stockholders is
hereby specifically denied.
ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
1. Limitation of Personal Liability. No director or officer of the Corporation shall have any
personal liability to the Corporation or its stockholders for monetary damages for breach of fiduciary duty
as a director or officer, except to the extent such exemption from liability or limitation thereof is not
permitted under the DGCL, as it presently exists or may hereafter be amended from time to time. If the
DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of
directors or officers, then the liability of a director or officer of the Corporation shall be eliminated or limited
to the fullest extent permitted by the DGCL, as so amended. For purposes of this Article VIII, Section 1,
“officer” shall have the meaning provided in Section 102(b)(7) of the DGCL, as it presently exists or may
hereafter be amended from time to time.
2. Indemnification and Advancement of Expenses. The Corporation shall indemnify its
directors and officers to the fullest extent authorized or permitted by the DGCL, as now or hereafter in
effect, and such right to indemnification shall continue as to a person who has ceased to be a director or
officer of the Corporation and shall inure to the benefit of such person’s heirs, executors and personal and
legal representatives. A director’s right to indemnification conferred by this Article VIII, Section 2 shall
include the right to be paid by the Corporation the expenses incurred in defending or otherwise participating
in any proceeding in advance of its final disposition, but only if such director presents to the Corporation a
written undertaking to repay such amount if it shall ultimately be determined that such director is not entitled
to be indemnified by the Corporation under this Article VIII or otherwise. Notwithstanding the foregoing,
except for proceedings to enforce any director’s or officer’s rights to indemnification or any director’s rights
to advancement of expenses, the Corporation shall not be obligated to indemnify any director or officer, or
advance expenses of any director (or such director’s or officer’s heirs, executors or personal or legal
representatives), in connection with any proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized by the Board.
3. Rights not Exclusive. The rights to indemnification and advancement of expenses conferred
in Article VIII, Section 2 of this Certificate of Incorporation shall not be exclusive of, or be deemed in
limitation of, any rights to which any person may otherwise be or become entitled or permitted under this
Certificate of Incorporation, the Bylaws, any statute, agreement, vote of stockholders or disinterested
directors or otherwise.
4. Insurance. To the fullest extent authorized or permitted by the DGCL, the Corporation may
purchase and maintain insurance on behalf of any current or former director or officer of the Corporation
against any liability asserted against such person, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this Article VIII or otherwise.
5. Effect of Modifications. Any amendment, repeal or modification of any provision contained
in this Article VIII shall, unless otherwise required by law, be prospective only (except to the extent such
amendment or change in law permits the Corporation to further limit or eliminate the liability of directors
or officers) and shall not adversely affect any right or protection of any current or former director or officer
of the Corporation existing at the time of such amendment, repeal or modification with respect to any acts
or omissions occurring prior to such amendment, repeal or modification.
ARTICLE IX
GENERAL
1. Forum for Certain Actions.
(a) Unless a majority of the Board, acting on behalf of the Corporation, consents in writing to
the selection of an alternative forum (which consent may be given at any time, including during the
pendency of litigation), the Court of Chancery of the State of Delaware (or, if the Court of Chancery does
not have jurisdiction, another state court located within the State of Delaware or, if no state court located
within the State of Delaware has jurisdiction, the federal district court for the District of Delaware), to the
fullest extent permitted by law, shall be the sole and exclusive forum for (i) any derivative action or
proceeding brought on behalf of the Corporation under Delaware law, (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
Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against
the Corporation or any of its directors, officers or other employees arising pursuant to any provision of the
DGCL, this Certificate of Incorporation or the Bylaws (in each case, as may be amended from time to time),
(iv) any action asserting a claim against the Corporation or any of its directors, officers or other employees
governed by the internal affairs doctrine of the State of Delaware or (v) any other action asserting an
“internal corporate claim,” as defined in Section 115 of the DGCL, in all cases subject to the court’s having
personal jurisdiction over all indispensable parties named as defendants. Unless a majority of the Board,
acting on behalf of the Corporation, consents in writing to the selection of an alternative forum (which
consent may be given at any time, including during the pendency of litigation), the federal district courts of
the United States of America, to the fullest extent permitted by law, shall be the sole and exclusive forum
for the resolution of any action asserting a cause of action arising under the Securities Act of 1933, as
amended.
(b) If any action the subject matter of which is within the scope of subparagraph (a) of this
Article IX, Section 1 is filed in a court other than a court located within the State of Delaware (a “Foreign
Action”) in the name of any stockholder, such stockholder shall be deemed to have consented to (i) the
personal jurisdiction of the state and federal courts located within the State of Delaware in connection with
any action brought in any such court to enforce subparagraph (a) of this Article IX, Section 1 (an
“Enforcement Action”) and (ii) having service of process made upon such stockholder in any such
Enforcement Action by service upon such stockholder’s counsel in the Foreign Action as agent for such
stockholder.
(c) If any provision of this Article IX, Section 1 shall be held to be invalid, illegal or
unenforceable as applied to any person, entity or circumstance for any reason whatsoever, then, to the fullest
extent permitted by law, the validity, legality and enforceability of such provision in any other circumstance
and of the remaining provisions of this Article IX, Section 1, and the application of such provision to other
persons or entities and circumstances shall not in any way be affected or impaired thereby.
(d) For the avoidance of doubt, any person or entity purchasing or otherwise acquiring or holding
any interest in any security of the Corporation shall be deemed to have notice of and consented to the
provisions of this Article IX, Section 1.
2. Amendment. The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by this
Certificate of Incorporation and the DGCL, and all rights, preferences and privileges herein conferred upon
stockholders of the Corporation by and pursuant to this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the right reserved in this Article IX, Section 2. Notwithstanding
any other provision of this Certificate of Incorporation, and in addition to any other vote that may be required
by law, applicable stock exchange rule or the terms of any series of Preferred Stock, the affirmative vote of
the holders of at least 66
2
/
3
% of the voting power of all then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be
required to amend, alter, repeal or adopt any provision of this Certificate of Incorporation.
3. Severability. If any provision or provisions of this Certificate of Incorporation shall be held
to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever, the validity,
legality and enforceability of such provision in any other circumstance and of the remaining provisions of
this Certificate of Incorporation (including, without limitation, each portion of any Section, paragraph or
subparagraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal or
unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby.
IN WITNESS WHEREOF, this Third Amended and Restated Certificate of Incorporation has been
signed by a duly authorized officer of the Corporation, as of the [●] day of [●], 2025.
__________________________________________
[●]
Title: [●]
AMENDED AND RESTATED BYLAWS
OF
CAL-MAINE FOODS, INC.
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1.1.
Place of Meetings. Meetings of the stockholders of Cal-Maine Foods, Inc. (the
“Corporation”) shall be held at such time and place, if any, either within or without the State of Delaware,
as shall be designated from time to time by the board of directors of the Corporation (the “Board”). The
Board may, in its sole discretion, determine that a meeting shall not be held at any place, but shall instead
be held solely by means of remote communication in accordance with Section 211(a) of the General
Corporation Law of the State of Delaware, as amended (the “DGCL”).
Section 1.2.
Annual Meetings. The annual meeting of stockholders of the Corporation for the
election of directors and for the transaction of such other business as may properly be brought before the
meeting in accordance with these amended and restated bylaws of the Corporation (as amended, restated or
amended and restated from time to time in accordance with the provisions hereof, these “Bylaws”) shall be
held on such date and at such time as may be designated from time to time by the Board. The Board may
postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board.
Section 1.3.
Special Meetings. Unless otherwise required by law or by the certificate of
incorporation of the Corporation (including the terms of any certificate of designation with respect to any
series of preferred stock), as amended, restated or amended and restated from time to time (the “Certificate
of Incorporation”), special meetings of the stockholders of the Corporation, for any purpose or purposes,
may be called only by the Board Chair or the Board. The ability of the stockholders of the Corporation to
call a special meeting of stockholders is hereby specifically denied. At a special meeting of stockholders,
only such business shall be conducted as shall be specified in the notice of meeting. The Board Chair or the
Board may postpone, reschedule or cancel any special meeting of stockholders previously called by either
of them.
Section 1.4.
Notice. Whenever stockholders of the Corporation are required or permitted to take
any action at a meeting, a written notice of the meeting shall be given, which shall state the place, if any,
date and time of the meeting, the record date for determining the stockholders entitled to vote at the meeting,
if such date is different from the record date for determining stockholders entitled to notice of meeting, the
means of remote communications, if any, by which stockholders and proxy holders may be deemed present
in person and vote at such meeting and, in the case of a special meeting, the purpose or purposes for which
the meeting is called. Unless otherwise required by law or the Certificate of Incorporation, written notice
of any meeting shall be given either personally, by mail or by electronic transmission (as defined below) (if
permitted under the circumstances by the DGCL) not less than ten nor more than 60 days before the date of
the meeting, by or at the direction of the Board Chair, the Chief Executive Officer or the Board, to each
stockholder entitled to vote at such meeting as of the record date for determining stockholders entitled to
notice of the meeting. If mailed, such notice shall be deemed to be given when deposited in the United
States mail with postage thereon prepaid, addressed to the stockholder at the stockholder’s address as it
appears on the stock transfer books of the Corporation. If notice is given by means of electronic
transmission, such notice shall be deemed to be given at the times provided in the DGCL. Any stockholder
may waive notice of any meeting before or after the meeting. The attendance of a stockholder at any meeting
shall constitute a waiver of notice of such meeting, except where the stockholder attends the meeting for the
1
Note
: Adopted by the Board of Directors on February 25, 2025, but to be effective upon the effective filing of the
Corporation’s Third Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware.
express purpose of objecting, and does so object, at the beginning of the meeting to the transaction of any
business because the meeting is not lawfully called or convened. For the purposes of these Bylaws,
“electronic transmission” means any form of communication, not directly involving the physical
transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient
thereof and that may be directly reproduced in paper form by such a recipient through an automated process.
Section 1.5.
Adjournments. Any meeting of stockholders of the Corporation may be adjourned or
recessed from time to time to reconvene at the same or some other place, if any, by holders of a majority of
the voting power of the Corporation’s capital stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, though less than a quorum, or by any officer entitled to preside
at or to act as secretary of such meeting, and notice need not be given of any such adjourned or recessed
meeting (including an adjournment taken to address a technical failure to convene or continue a meeting
using remote communication) if the time and place, if any, thereof, and the means of remote communication,
if any, by which stockholders and proxy holders may be deemed to be present in person or represented by
proxy and vote at such adjourned or recessed meeting, are (a) announced at the meeting at which the
adjournment or recess is taken, (b) displayed during the time scheduled for the meeting, on the same
electronic network used to enable stockholders and proxy holders to participate in the meeting by means of
remote communication or (c) set forth in the notice of meeting given in accordance with these Bylaws. At
the adjourned or recessed meeting, the Corporation may transact any business that might have been
transacted at the original meeting. If the adjournment is for more than 30 days, notice of the adjourned
meeting in accordance with the requirements of Section 1.4 of these Bylaws shall be given to each
stockholder of record entitled to vote at the meeting. If, after the adjournment, a new record date for
determination of stockholders entitled to vote is fixed for the adjourned meeting, the Board shall fix as the
record date for determining stockholders entitled to notice of such adjourned meeting the same or an earlier
date as that fixed for determination of stockholders entitled to vote at the adjourned meeting and shall give
notice of the adjourned meeting to each stockholder of record as of the record date so fixed for notice of
such adjourned meeting.
Section 1.6.
Quorum. Unless otherwise required by applicable law or the Certificate of
Incorporation, the holders of a majority of the voting power of the Corporation’s capital stock issued and
outstanding and entitled to vote thereat, present in person, present by means of remote communication, if
any, or represented by proxy, shall constitute a quorum at a meeting of stockholders. Where a separate vote
by a class or classes or series is required, a majority of the voting power of the shares of such class or classes
or series present in person, present by means of remote communication, if any, or represented by proxy shall
constitute a quorum entitled to take action with respect to such vote. If a quorum shall not be present or
represented at any meeting of stockholders, either the chairperson of the meeting or the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from
time to time, in the manner provided in Section 1.5 of these Bylaws, until a quorum shall be present or
represented. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave
less than a quorum.
Section 1.7. Voting .
(a)
General. Except as provided in the Certificate of Incorporation, every stockholder
having the right to vote shall have one vote for each share of stock having voting
power registered in such stockholder’s name on the books of the Corporation. Such
votes may be cast in person, by means of remote communication (if any) or by proxy
as provided in Section 1.10 of these Bylaws. The Board, in its discretion, or the
person presiding at a meeting of stockholders, in such person’s discretion, may
require that any votes cast at such meeting shall be cast by written ballot.
(b)
Matters Other Than Election of Directors. Any matter brought before any meeting
of stockholders of the Corporation, other than the election of directors, shall be
decided by the affirmative vote of the holders of a majority of the voting power of
the Corporation’s capital stock present in person, present by means of remote
communication, if any, or represented by proxy at the meeting and entitled to vote on
such matter, voting as a single class, unless the matter is one upon which, by express
provision of law, the Certificate of Incorporation, these Bylaws or the rules or
regulations of any stock exchange applicable to the Corporation, a different vote is
required, in which case such express provision shall govern and control the decision
of such matter.
(c)
Election of Directors. Subject to the rights of the holders of any series of preferred
stock to elect directors under specified circumstances, election of directors at all
meetings of the stockholders at which directors are to be elected shall be by a plurality
of the votes cast at any meeting for the election of directors at which a quorum is
present.
Section 1.8.
Voting of Stock of Certain Holders. Shares of stock of the Corporation standing in
the name of another corporation or entity, domestic or foreign, and entitled to vote may be voted by such
officer, agent or proxy as the bylaws or other internal regulations of such corporation or entity may prescribe
or, in the absence of such provision, as the board of directors or comparable body of such corporation or
entity may determine. Shares of stock of the Corporation standing in the name of a deceased person, a
minor, an incompetent or a debtor in a case under Title 11, United States Code, and entitled to vote may be
voted by an administrator, executor, guardian, conservator, debtor-in-possession or trustee, as the case may
be, either in person or by proxy, without transfer of such shares into the name of the official or other person
so voting. A stockholder whose shares of stock of the Corporation are pledged shall be entitled to vote such
shares, unless on the transfer records of the Corporation such stockholder has expressly empowered the
pledgee to vote such shares, in which case only the pledgee, or the pledgee’s proxy, may vote such shares.
Section 1.9.
Treasury Stock. Shares of stock of the Corporation belonging to the Corporation, or
to another corporation a majority of the shares entitled to vote in the election of directors of which are held
by the Corporation, shall not be voted at any meeting of stockholders of the Corporation and shall not be
counted in the total number of outstanding shares for the purpose of determining whether a quorum is
present. Nothing in this Section 1.9 shall limit the right of the Corporation to vote shares of stock of the
Corporation held by it in a fiduciary capacity.
Section 1.10.
Proxies. Each stockholder entitled to vote at a meeting of stockholders of the
Corporation may authorize another person or persons to act for such stockholder by proxy filed with the
secretary of the Corporation (the “Secretary”) before or at the time of the meeting. No such proxy shall be
voted or acted upon after three years from its date, unless the proxy expressly provides for a longer period.
A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is
coupled with an interest sufficient in law to support an irrevocable power.
Section 1.11.
No Consent of Stockholders in Lieu of Meeting. Except as otherwise expressly
provided by the terms of any series of preferred stock permitting the holders of such series of preferred stock
to act by written consent, any action required or permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annual or special meeting of stockholders of the Corporation, and, as
specified by the Certificate of Incorporation, the ability of the stockholders to consent in writing to the
taking of any action is specifically denied.
Section 1.12.
List of Stockholders Entitled to Vote. The officer of the Corporation who has charge
of the stock ledger of the Corporation shall prepare and make or have prepared and made, at least ten days
before every meeting of stockholders of the Corporation, a complete list of the stockholders entitled to vote
at the meeting (provided, however, that if the record date for determining the stockholders entitled to vote
is less than ten days before the meeting date, the list shall reflect the stockholders entitled to vote as of the
tenth day before the meeting date), arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder. Nothing in this
Section 1.12 shall require the Corporation to include electronic mail addresses or other electronic contact
information on such list. Such list shall be open to the examination of any stockholder for any purpose
germane to the meeting for a period of at least ten days ending on the day before the meeting date: (a) on a
reasonably accessible electronic network, provided that the information required to gain access to such list
is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal place of
business of the Corporation. In the event that the Corporation determines to make the list available on an
electronic network, the Corporation may take reasonable steps to ensure that such information is available
only to stockholders of the Corporation.
Section 1.13.
Record Date. In order that the Corporation may determine the stockholders entitled
to notice of any meeting of stockholders of the Corporation or any adjournment thereof, the Board may fix
a record date, which record date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board, and which record date shall not be more than 60 days nor less than ten days before
the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining
the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record
date, that a later date on or before the date of the meeting shall be the date for making such determination.
If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting, but the Board may fix a new record
date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also
fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier
date as that fixed for determination of stockholders entitled to vote in accordance with the foregoing
provisions of this Section 1.13 at the adjourned meeting.
Section 1.14.
Organization and Conduct of Meetings. The Board Chair shall act as chairperson of
meetings of stockholders of the Corporation. The Board may designate any director or officer of the
Corporation to act as chairperson of any meeting in the absence of the Board Chair, and only the Board may
further provide for determining who shall act as chairperson of any meeting of stockholders in the absence
of the Board Chair and such designee. The Board may adopt by resolution such rules, regulations and
procedures for the conduct of any meeting of stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules, regulations and procedures as adopted by the Board, the chairperson of any
meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess
or adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the
judgment of such chairperson, are necessary, appropriate or convenient for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the
chairperson of the meeting, may include the following: (a) the establishment of an agenda or order of
business for the meeting; (b) the determination of when the polls shall open and close for any given matter
to be voted on at the meeting; (c) rules, regulations and procedures for maintaining order at the meeting and
the safety of those present; (d) limitations on attendance at or participation in the meeting to stockholders
of record of the Corporation, their duly authorized proxies or such other persons as the chairperson of the
meeting shall determine; (e) restrictions on entry to the meeting after the time fixed for the commencement
of the meeting; (f) limitations on the time allotted to questions or comments by participants; (g) removal of
any stockholder or any other individual who refuses to comply with meeting rules, regulations or
procedures; (h) the conclusion, recess or adjournment of the meeting, regardless of whether a quorum is
present, to a later date and time and at a place, if any, announced at the meeting; (i) restrictions on the use
of audio and video recording devices, cell phones and other electronic devices; (j) rules, regulations or
procedures for compliance with any state or local laws or regulations including those concerning safety,
health and security; (k) procedures (if any) requiring attendees to provide the Corporation advance notice
of their intent to attend the meeting; and (l) any rules, regulations or procedures as the chairperson may
deem appropriate regarding the participation by means of remote communication of stockholders and
proxyholders not physically present at a meeting, whether such meeting is to be held at a designated place
or solely by means of remote communication. The Board or the chairperson of a stockholder meeting, in
addition to making any other determinations that may be appropriate regarding the conduct of the meeting,
shall determine and declare to the meeting that a matter of business was not properly brought before the
meeting, and, if the chairperson (or the Board) should so determine, the chairperson (or the Board) shall so
declare to the meeting and any such matter of business not properly brought before the meeting shall not be
transacted or considered. Except to the extent determined by the Board or the person presiding at the
meeting, meetings of stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
Section 1.15.
Inspectors of Election. In advance of any meeting of stockholders of the Corporation,
the Board Chair, the Chief Executive Officer or the Board, by resolution, shall appoint one or more
inspectors to act at the meeting and make a written report thereof. One or more other persons may be
designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is
able to act at a meeting of stockholders, the chairperson of the meeting shall appoint one or more inspectors
to act at the meeting. Unless otherwise required by applicable law, inspectors may be officers, employees
or agents of the Corporation. Each inspector, before entering upon the discharge of the duties of inspector,
shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according
to the best of such inspector’s ability. The inspector shall have the duties prescribed by law and shall take
charge of the polls and, when the vote is completed, shall make a certificate of the result of the vote taken
and of such other facts as may be required by applicable law.
Section 1.16. Notice of Stockholder Proposals and Director Nominations.
(a)
Annual Meetings of Stockholders. Nominations of persons for election to the Board
and the proposal of business other than nominations to be considered by the
stockholders may be made at an annual meeting of stockholders only: (i) pursuant to
the Corporation’s notice of meeting (or any supplement thereto) with respect to such
annual meeting given by or at the direction of the Board (or any duly authorized
committee thereof), (ii) as otherwise properly brought before such annual meeting by
or at the direction of the Board (or any duly authorized committee thereof) or (iii) by
any stockholder of the Corporation who (A) is a stockholder of record at the time of
the giving of the notice provided for in this Section 1.16 through the date of such
annual meeting, (B) is entitled to vote at such annual meeting and (C) complies with
the notice procedures set forth in this Section 1.16. For the avoidance of doubt,
compliance with the foregoing clause (iii) shall be the exclusive means for a
stockholder to make nominations, or to propose any other business (other than a
proposal included in the Corporation’s proxy materials pursuant to and in compliance
with Rule 14a-8 under the Securities Exchange Act of 1934, as amended (such act,
and the rules and regulations promulgated thereunder, the “Exchange Act”)), at an
annual meeting of stockholders.
(b)
Timing of Notice for Annual Meetings. In addition to any other applicable
requirements, for nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to Section 1.16(a)(iii) above, the
stockholder must have given timely notice thereof in proper written form to the
Secretary, and, in the case of business other than nominations, such business must be
a proper matter for stockholder action. To be timely, such notice must be received by
the Secretary at the principal executive offices of the Corporation not later than the
Close of Business on the 90th day, or earlier than the 120th day, prior to the first
anniversary of the date of the preceding year’s annual meeting of stockholders;
provided, however, that if the date of the annual meeting of stockholders is more than
30 days prior to, or more than 60 days after, the first anniversary of the date of the
preceding year’s annual meeting or if no annual meeting was held in the preceding
year, to be timely, a stockholder’s notice must be so received not earlier than the
120th day prior to such annual meeting and not later than the Close of Business on
the later of (i) the 90th day prior to such annual meeting and (ii) the tenth day
following the day on which Public Disclosure (as defined below) of the date of the
meeting is first made by the Corporation. In no event shall the adjournment, recess,
postponement, judicial stay or rescheduling of an annual meeting (or the Public
Disclosure thereof) commence a new time period (or extend any time period) for the
giving of notice as described above.
(c)
Form of Notice. To be in proper written form, the notice of any stockholder of record
giving notice under this Section 1.16 (each, a “Noticing Party”) must set forth:
(i)
as to each person whom such Noticing Party proposes to nominate for election
or reelection as a director (each, a “Proposed Nominee”), if any:
(A)
the name, age, business address and residential address of such
Proposed Nominee;
(B)
the principal occupation and employment of such Proposed Nominee;
(C)
a written questionnaire with respect to the background and
qualifications of such Proposed Nominee, completed by such
Proposed Nominee in the form required by the Corporation (in the
form to be provided by the Secretary upon written request of any
stockholder of record within ten days after receiving such request);
(D)
a written representation and agreement completed by such Proposed
Nominee in the form required by the Corporation (in the form to be
provided by the Secretary upon written request of any stockholder of
record within ten days after receiving such request) providing that
such Proposed Nominee: (I) is not and will not become a party to any
agreement, arrangement or understanding with, and has not given any
commitment or assurance to, any person or entity as to how such
Proposed Nominee, if elected as a director of the Corporation, will act
or vote on any issue or question (a “Voting Commitment”) that has not
been disclosed to the Corporation or any Voting Commitment that
could limit or interfere with such Proposed Nominee’s ability to
comply, if elected as a director of the Corporation, with such Proposed
Nominee’s fiduciary duties under applicable law; (II) is not and will
not become a party to any agreement, arrangement or understanding
with any person or entity other than the Corporation with respect to
any direct or indirect compensation, reimbursement or
indemnification in connection with service or action as a director or
nominee with respect to the Corporation that has not been disclosed
to the Corporation; (III) will, if elected as a director of the
Corporation, comply with all applicable rules of any securities
exchanges upon which the Corporation’s securities are listed, the
Certificate of Incorporation, these Bylaws, all applicable publicly
disclosed corporate governance, ethics, conflict of interest,
confidentiality, stock ownership and trading policies and all other
guidelines and policies of the Corporation generally applicable to
directors (which other guidelines and policies will be provided to such
Proposed Nominee within five business days after the Secretary
receives any written request therefor from such Proposed Nominee),
and all applicable fiduciary duties under state law; (IV) consents to
being named as a nominee in the Corporation’s proxy statement and
form of proxy for the meeting and consents to the public disclosure of
information regarding or relating to such Proposed Nominee provided
to the Corporation by such Proposed Nominee or otherwise pursuant
to these Bylaws; (V) intends to serve a full term as a director of the
Corporation, if elected; and (VI) will provide facts, statements and
other information in all communications with the Corporation and its
stockholders that are or will be true and correct in all material respects
and that do not and will not omit to state any fact necessary in order
to make the statements made, in light of the circumstances under
which they are made, not misleading in any material respect;
(E)
a description of all direct and indirect compensation and other material
monetary agreements, arrangements or understandings, written or
oral, during the past three years, and any other material relationships,
between or among such Proposed Nominee, on the one hand, and any
Noticing Party or any Stockholder Associated Person (as defined
below) (other than such Proposed Nominee), on the other hand, or that
such Proposed Nominee knows any of such Proposed Nominee’s
Associates (as defined below) has with any Noticing Party or any
Stockholder Associated Person, including all information that would
be required to be disclosed pursuant to Item 404 promulgated under
Regulation S-K as if such Noticing Party and any Stockholder
Associated Person (other than the Proposed Nominee) were the
“registrant” for purposes of such rule and the Proposed Nominee were
a director or executive officer of such registrant;
(F)
a description of any business or personal interests that would
reasonably be expected to place such Proposed Nominee in a potential
conflict of interest with the Corporation or any of its subsidiaries;
(G)
the date(s) of first contact between the Noticing Party or any
Stockholder Associated Person, on the one hand, and the Proposed
Nominee, on the other hand, with respect to any proposed
nomination(s) of any person(s) (including the Proposed Nominee) for
election as a director of the Corporation; and
(H)
all other information relating to such Proposed Nominee or such
Proposed Nominee’s Associates that would be required to be disclosed
in a proxy statement in connection with the solicitation of proxies by
such Noticing Party or any Stockholder Associated Person for the
election of directors in a contested election pursuant to the Proxy
Rules (as defined below);
(ii)
as to any other business that such Noticing Party proposes to bring before the
meeting:
(A)
a description of the business desired to be brought before the meeting
and the reasons for conducting such business at the meeting;
(B)
the text of the proposal or business (including the complete text of any
resolutions proposed for consideration and, in the event that such
business includes a proposal to amend the Certificate of Incorporation
or these Bylaws, the text of the proposed amendment); and
(C)
all other information relating to such business that would be required
to be disclosed in a proxy statement in connection with the solicitation
of proxies by such Noticing Party or any Stockholder Associated
Person in support of such proposed business pursuant to the Proxy
Rules; and
(iii)
as to such Noticing Party and each Stockholder Associated Person:
(A)
the name and address of such Noticing Party and each Stockholder
Associated Person (including, as applicable, as they appear on the
Corporation’s books and records);
(B)
the class, series and number of shares of each class or series of capital
stock (if any) of the Corporation that are, directly or indirectly, owned
beneficially or of record (specifying the type of ownership) by such
Noticing Party or any Stockholder Associated Person (including any
right to acquire beneficial ownership at any time in the future, whether
such right is exercisable immediately or only after the passage of time
or the fulfillment of a condition) and the date or dates on which such
shares were acquired;
(C)
the name of each nominee holder for, and number of, any securities of
the Corporation owned beneficially but not of record by such Noticing
Party or any Stockholder Associated Person and any pledge by such
Noticing Party or any Stockholder Associated Person with respect to
any of such securities;
(D)
(I) a description of all agreements, arrangements or understandings,
written or oral, (including any derivative or short positions, profit
interests, hedging transactions, forwards, futures, swaps, options,
warrants, convertible securities, stock appreciation or similar rights,
repurchase agreements or arrangements, borrowed or loaned shares
and so-called “stock borrowing” agreements or arrangements) that
have been entered into by, or on behalf of, such Noticing Party or any
Stockholder Associated Person, the effect or intent of which is to
mitigate loss, manage risk or benefit from changes in the price of any
securities of the Corporation, or maintain, increase or decrease the
voting power of such Noticing Party or any Stockholder Associated
Person with respect to securities of the Corporation, whether or not
such instrument or right shall be subject to settlement in underlying
shares of capital stock of the Corporation (any of the foregoing, a
“Derivative Instrument”) and (II) all other information relating to
Derivative Instruments that would be required to be disclosed in a
proxy statement in connection with the solicitation of proxies by such
Noticing Party or any Stockholder Associated Person in support of the
business proposed by such Noticing Party, if any, or for the election
of any Proposed Nominee in a contested election pursuant to the Proxy
Rules if the creation, termination or modification of Derivative
Instruments were treated the same as trading in the securities of the
Corporation under the Proxy Rules;
(E)
any substantial interest, direct or indirect (including any existing or
prospective commercial, business or contractual relationship with the
Corporation), of such Noticing Party or, to the knowledge of such
Noticing Party (or the beneficial owner(s) on whose behalf such
Noticing Party is submitting a notice to the Corporation), any
Stockholder Associated Person in the Corporation or any Affiliate (as
defined below) thereof or in the proposed business or nomination(s)
to be brought before the meeting by such Noticing Party, other than
an interest arising from the ownership of Corporation securities where
such Noticing Party or such Stockholder Associated Person receives
no extra or special benefit not shared on a
pro rata
holders of the same class or series;
(F)
a description of all agreements, arrangements or understandings,
written or oral, (I) between or among such Noticing Party and any
Stockholder Associated Person or (II) between or among such
Noticing Party or, to the knowledge of such Noticing Party (or the
beneficial owner(s) on whose behalf such Noticing Party is submitting
a notice to the Corporation), any Stockholder Associated Person and
any other person or entity (naming each such person or entity), in each
case, relating to acquiring, holding, voting or disposing of any
securities of the Corporation, including any proxy (other than any
revocable proxy given in response to a solicitation made pursuant to,
and in accordance with, the Proxy Rules by way of a solicitation
statement filed on Schedule 14A);
(G)
any rights to dividends on the shares of the Corporation owned
beneficially by such Noticing Party or any Stockholder Associated
Person that are separated or separable from the underlying shares of
the Corporation;
(H)
any proportionate interest in shares of the Corporation or Derivative
Instruments held, directly or indirectly, by a general or limited
partnership, limited liability company or similar entity in which such
Noticing Party or any Stockholder Associated Person (I) is a general
partner or, directly or indirectly, beneficially owns an interest in a
general partner of such general or limited partnership or (II) is the
manager, managing member or, directly or indirectly, beneficially
owns an interest in the manager or managing member of such limited
liability company or similar entity;
(I)
any Derivative Instruments in or beneficial ownership of any
securities of (in each case, with a market value of more than $100,000)
any competitor of the Corporation identified in Part I, Item 1 of the
annual report on Form 10-K or amendment thereto most recently filed
by the Corporation with the Securities and Exchange Commission or
in Item 8.01 of any current report on Form 8-K filed by the
Corporation with the Securities and Exchange Commission thereafter
but prior to the tenth day before the deadline for a stockholder’s notice
under this Section 1.16 (each, a “Principal Competitor”) held by such
Noticing Party or any Stockholder Associated Person;
(J)
any direct or indirect interest (other than solely as a result of security
ownership) of such Noticing Party or any Stockholder Associated
Person in any agreement with the Corporation, any Affiliate of the
Corporation or any Principal Competitor (including any employment
agreement, collective bargaining agreement or consulting agreement);
(K)
a representation that (I) neither such Noticing Party nor any
Stockholder Associated Person has breached any agreement,
arrangement or understanding with the Corporation except as
disclosed to the Corporation pursuant hereto and (II) such Noticing
Party and each Stockholder Associated Person has complied, and will
comply, with all applicable requirements of state law and the
Exchange Act with respect to the matters set forth in this Section 1.16;
(L)
a description of the investment strategy or objective, if any, of such
Noticing Party (or the beneficial owner(s) on whose behalf such
Noticing Party is submitting a notice to the Corporation);
(M)
all information that would be required to be set forth in a
Schedule 13D filed pursuant to Rule 13d-1(a) under the Exchange Act
or an amendment pursuant to Rule 13d-2(a) under the Exchange Act
if such a statement were required to be filed under the Exchange Act
by such Noticing Party or any Stockholder Associated Person with
respect to the Corporation (regardless of whether such person or entity
is actually required to file a Schedule 13D), including a description of
any agreement, arrangement or understanding that would be required
to be disclosed by such Noticing Party or any Stockholder Associated
Person pursuant to Item 5 or Item 6 of Schedule 13D;
(N)
a certification that such Noticing Party and each Stockholder
Associated Person has complied with all applicable federal, state and
other legal requirements in connection with such Noticing Party’s or
Stockholder Associated Person’s acquisition of shares of capital stock
or other securities of the Corporation and such Noticing Party’s or
Stockholder Associated Person’s acts or omissions as a stockholder of
the Corporation, if such Stockholder Associated Person is a
stockholder of the Corporation; and
(O)
all other information relating to such Noticing Party or any
Stockholder Associated Person that would be required to be disclosed
in a proxy statement in connection with the solicitation of proxies by
such Noticing Party or any Stockholder Associated Person in support
of the business proposed by such Noticing Party, if any, or for the
election of any Proposed Nominee in a contested election pursuant to
the Proxy Rules;
provided, however, that the disclosures described in the foregoing
subclauses (A) through (O) shall not include any such disclosures with respect
to the ordinary course business activities of any depositary or any broker,
dealer, commercial bank, trust company or other nominee who is a Noticing
Party solely as a result of being the stockholder directed to prepare and submit
the notice required by these Bylaws on behalf of a beneficial owner (any such
entity, an “Exempt Party”).
(iv)
a representation that such Noticing Party intends to appear or cause a
Qualified Representative (as defined below) of such Noticing Party to appear
at the meeting to bring such business before the meeting or nominate any
Proposed Nominees, as applicable, and an acknowledgment that, if such
Noticing Party (or a Qualified Representative of such Noticing Party) does
not appear to present such business or Proposed Nominees, as applicable, at
such meeting, the Corporation need not present such business or Proposed
Nominees for a vote at such meeting, notwithstanding that proxies in respect
of such vote may have been received by the Corporation;
(v)
a description of any pending or, to the knowledge of such Noticing Party (or
the beneficial owner(s) on whose behalf such Noticing Party is submitting a
notice to the Corporation), threatened legal proceeding or investigation in
which such Noticing Party or any Stockholder Associated Person is a party or
participant directly involving or directly relating to the Corporation or, to the
knowledge of such Noticing Party (or the beneficial owner(s) on whose behalf
such Noticing Party is submitting a notice to the Corporation), any current or
former officer, director or Affiliate of the Corporation;
(vi)
identification of the names and addresses of other stockholders (including
beneficial owners) known by such Noticing Party (or the beneficial owner(s)
on whose behalf such Noticing Party is submitting a notice to the Corporation)
to provide financial support of the nomination(s) or other business proposal(s)
submitted by such Noticing Party and, to the extent known, the class and
number of shares of the Corporation’s capital stock owned beneficially or of
record by such other stockholder(s) or other beneficial owner(s); and
(vii)
a representation from such Noticing Party as to whether such Noticing Party
or any Stockholder Associated Person intends or is part of a group (as such
term is used in Rule 13d-5 under the Exchange Act) that intends to (A) solicit
proxies in support of the election of any Proposed Nominee in accordance
with Rule 14a-19 under the Exchange Act or (B) engage in a solicitation
(within the meaning of Exchange Act Rule 14a-1(l)) with respect to the
nomination of any Proposed Nominee or proposed business to be considered
at the meeting, as applicable, and, if so, the name of each participant (as
defined in Instruction 3 to Item 4 of Schedule 14A under the Exchange Act)
in such solicitation.
(d)
Additional Information. In addition to the information required pursuant to the
foregoing provisions of this Section 1.16, the Corporation may require any Noticing
Party to furnish such other information that would reasonably be expected to be
material to a reasonable stockholder’s understanding of (i) any item of business
proposed by such Noticing Party under this Section 1.16, (ii) the solicitation of
proxies from the Corporation’s stockholders by the Noticing Party (or any
Stockholder Associated Person) or (iii) the eligibility, suitability or qualifications of
a Proposed Nominee to serve as a director of the Corporation or the independence, or
lack thereof, of such Proposed Nominee, under the listing standards of each securities
exchange upon which the Corporation’s securities are listed, any applicable rules of
the Securities and Exchange Commission, any publicly disclosed standards used by
the Board in selecting nominees for election as a director and for determining and
disclosing the independence of the Corporation’s directors, including those
applicable to a director’s service on any of the committees of the Board, or the
requirements of any other laws or regulations applicable to the Corporation. If
requested by the Corporation, any supplemental information required under this
paragraph shall be provided by a Noticing Party within ten days after it has been
requested by the Corporation.
(e)
Special Meetings of Stockholders. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant to
the Corporation’s notice of meeting (or any supplement thereto). Nominations of
persons for election to the Board may be made at a special meeting of stockholders
at which directors are to be elected pursuant to the Corporation’s notice of meeting
(or any supplement thereto) (i) by or at the direction of the Board (or any duly
authorized committee thereof) or (ii) provided that one or more directors are to be
elected at such meeting pursuant to the Corporation’s notice of meeting, by any
stockholder of the Corporation who (A) is a stockholder of record on the date of the
giving of the notice provided for in this Section 1.16(e) through the date of such
special meeting, (B) is entitled to vote at such special meeting and upon such election
and (C) complies with the notice procedures set forth in this Section 1.16(e). In
addition to any other applicable requirements, for director nominations to be properly
brought before a special meeting by a stockholder pursuant to the foregoing
clause (ii), such stockholder must have given timely notice thereof in proper written
form to the Secretary. To be timely, such notice must be received by the Secretary at
the principal executive offices of the Corporation not earlier than the Close of
Business on the 120th day prior to such special meeting and not later than the Close
of Business on the later of (x) the 90th day prior to such special meeting and (y) the
tenth day following the day on which Public Disclosure of the date of the meeting is
first made by the Corporation. In no event shall an adjournment, recess,
postponement, judicial stay or rescheduling of a special meeting (or the Public
Disclosure thereof) commence a new time period (or extend any time period) for the
giving of a stockholder’s notice as described above. To be in proper written form,
such notice shall include all information required pursuant to Section 1.16(c) above,
and such stockholder and any Proposed Nominee shall comply with Section 1.16(d)
above, as if such notice were being submitted in connection with an annual meeting
of stockholders.
(f)
General.
(i)
No person shall be eligible for election as a director of the Corporation unless
the person is nominated by a stockholder in accordance with the procedures
set forth in this Section 1.16 or the person is nominated by the Board, and no
business shall be conducted at a meeting of stockholders of the Corporation
except pursuant to Rule 14a-8 under the Exchange Act and business brought
by a stockholder in accordance with the procedures set forth in this
Section 1.16 or by the Board. The number of Proposed Nominees a
stockholder may include in a notice under this Section 1.16 may not exceed
the number of directors to be elected at such meeting (based on public
disclosure by the Corporation prior to the date of such notice), and for the
avoidance of doubt, no stockholder shall be entitled to identify any additional
or substitute persons as Proposed Nominees following the expiration of the
time periods set forth in Section 1.16(b) or Section 1.16(e), as applicable.
Except as otherwise provided by law, the Board or the chairperson of a
meeting shall have the power and the duty to determine whether a nomination
or any business proposed to be brought before the meeting has been made or
proposed in accordance with the procedures set forth in these Bylaws, and, if
the Board or the chairperson of the meeting determines that any proposed
nomination or business was not properly brought before the meeting, the
chairperson (or the Board) shall declare to the meeting that such nomination
shall be disregarded or such business shall not be transacted, and no vote shall
be taken with respect to such nomination or proposed business, in each case,
notwithstanding that proxies with respect to such vote may have been
received by the Corporation. Notwithstanding the foregoing provisions of
this Section 1.16, unless otherwise required by law, if the Noticing Party (or
a Qualified Representative of the Noticing Party) proposing a nominee for
director or business to be conducted at a meeting does not appear at the
meeting of stockholders of the Corporation to present such nomination or
propose such business, such proposed nomination shall be disregarded or such
proposed business shall not be transacted, as applicable, and no vote shall be
taken with respect to such nomination or proposed business, notwithstanding
that proxies with respect to such vote may have been received by the
Corporation.
(ii)
A Noticing Party shall update such Noticing Party’s notice provided under the
foregoing provisions of this Section 1.16, if necessary, such that the
information provided or required to be provided in such notice shall be true
and correct in all material respects as of (A) the record date for determining
the stockholders entitled to receive notice of the meeting and (B) the date that
is ten business days prior to the meeting (or any postponement, rescheduling
or adjournment thereof), and such update shall (I) be received by the
Secretary at the principal executive offices of the Corporation (x) not later
than the Close of Business five business days after the record date for
determining the stockholders entitled to receive notice of such meeting (in the
case of an update required to be made under clause (A)) and (y) not later than
the Close of Business seven business days prior to the date of the meeting or,
if practicable, any postponement, rescheduling or adjournment thereof (and,
if not practicable, on the first practicable date prior to the date to which the
meeting has been postponed, rescheduled or adjourned) (in the case of an
update required to be made pursuant to clause (B)), (II) be made only to the
extent that information has changed since such Noticing Party’s prior
submission and (III) clearly identify the information that has changed in any
material respect since such Noticing Party’s prior submission. For the
avoidance of doubt, any information provided pursuant to this
Section 1.16(f)(ii) shall not be deemed to cure any deficiencies or
inaccuracies in a notice previously delivered pursuant to this Section 1.16 and
shall not extend the time period for the delivery of notice pursuant to this
Section 1.16. If a Noticing Party fails to provide any update in accordance
with the foregoing provisions of this Section 1.16(f)(ii), the information as to
which such written update relates may be deemed not to have been provided
in accordance with this Section 1.16.
(iii)
If any information submitted pursuant to this Section 1.16 by any Noticing
Party nominating individuals for election or reelection as a director or
proposing business for consideration at a stockholder meeting shall be
inaccurate in any material respect (as determined by the Board or a committee
thereof), such information may be deemed not to have been provided in
accordance with this Section 1.16. Any such Noticing Party shall notify the
Secretary in writing at the principal executive offices of the Corporation of
any material inaccuracy or change in any information submitted pursuant to
this Section 1.16 (including if any Noticing Party or any Stockholder
Associated Person no longer intends to solicit proxies in accordance with the
representation made pursuant to Section 1.16(c)(vii)(A)) within two business
days after becoming aware of such material inaccuracy or change, and any
such notification shall clearly identify the inaccuracy or change, it being
understood that no such notification may cure any deficiencies or inaccuracies
with respect to any prior submission by such Noticing Party. Upon written
request of the Secretary on behalf of the Board (or a duly authorized
committee thereof), any such Noticing Party shall provide, within seven
business days after delivery of such request (or such other period as may
reasonably be specified in such request), (A) written verification, reasonably
satisfactory to the Board, any committee thereof or any authorized officer of
the Corporation, to demonstrate the accuracy of any information submitted by
such Noticing Party pursuant to this Section 1.16 and (B) a written
affirmation of any information submitted by such Noticing Party pursuant to
this Section 1.16 as of an earlier date. If a Noticing Party fails to provide such
written verification or affirmation within such period, the information as to
which written verification or affirmation was requested may be deemed not
to have been provided in accordance with this Section 1.16.
(iv)
Notwithstanding anything herein to the contrary, if (A) any Noticing Party or
any Stockholder Associated Person provides notice pursuant to Rule 14a-
19(b) under the Exchange Act with respect to any Proposed Nominee and
(B) (1) such Noticing Party or Stockholder Associated Person subsequently
either (x) notifies the Corporation that such Noticing Party or Stockholder
Associated Person no longer intends to solicit proxies in support of the
election or reelection of such Proposed Nominee in accordance with
Rule 14a-19(b) under the Exchange Act or (y) fails to comply with the
requirements of Rule 14a-19(a)(2) or Rule 14a-19(a)(3) under the Exchange
Act (or fails to timely provide reasonable evidence sufficient to satisfy the
Corporation that such Noticing Party or Stockholder Associated Person has
met the requirements of Rule 14a-19(a)(3) under the Exchange Act in
accordance with the following sentence) and (2) no other Noticing Party or
Stockholder Associated Person that has provided notice pursuant to Rule 14a-
19(b) under the Exchange Act with respect to such Proposed Nominee (x) to
the Corporation’s knowledge based on information provided pursuant to
Rule 14a-19 under the Exchange Act or these Bylaws, still intends to solicit
proxies in support of the election or reelection of such Proposed Nominee in
accordance with Rule 14a-19(b) under the Exchange Act and (y) has
complied with the requirements of Rule 14a-19(a)(2) and Rule 14a-19(a)(3)
under the Exchange Act and the requirements set forth in the following
sentence, then the nomination of such Proposed Nominee shall be disregarded
and no vote on the election of such Proposed Nominee shall occur
(notwithstanding that proxies in respect of such vote may have been received
by the Corporation). Upon request by the Corporation, if any Noticing Party
or any Stockholder Associated Person provides notice pursuant to Rule 14a-
19(b) under the Exchange Act, such Noticing Party shall deliver to the
Secretary, no later than five business days prior to the applicable meeting date,
reasonable evidence that the requirements of Rule 14a-19(a)(3) under the
Exchange Act have been satisfied.
(v)
In addition to complying with the foregoing provisions of this Section 1.16, a
stockholder shall also comply with all applicable requirements of state law
and the Exchange Act with respect to the matters set forth in this Section 1.16.
Nothing in this Section 1.16 shall be deemed to affect any rights of
(A) stockholders to request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act, (B) stockholders
to request inclusion of nominees in the Corporation’s proxy statement
pursuant to the Proxy Rules or (C) the holders of any series of preferred stock
to elect directors pursuant to any applicable provisions of the Certificate of
Incorporation.
(vi)
Any written notice, supplement, update or other information required to be
delivered by a stockholder to the Corporation pursuant to this Section 1.16
must be given by personal delivery, by overnight courier or by registered or
certified mail, postage prepaid, to the Secretary at the Corporation’s principal
executive offices and shall be deemed not to have been delivered unless so
given.
(vii)
For purposes of these Bylaws:
(A)
“Affiliate” and “Associate” each shall have the respective meanings
set forth in Rule 12b-2 under the Exchange Act;
(B)
“beneficial owner” or “beneficially owned” shall have the meaning set
forth for such terms in Section 13(d) of the Exchange Act;
(C)
“Close of Business” shall mean 5:00 p.m. Eastern Time on any
calendar day, whether or not the day is a business day;
(D)
“Proxy Rules” shall mean Section 14 of the Exchange Act and the
rules promulgated thereunder;
(E)
“Public Disclosure” shall mean disclosure in a press release reported
by a national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant
to Section 13, 14 or 15(d) of the Exchange Act;
(F)
a “Qualified Representative” of a Noticing Party means (I) a duly
authorized officer, manager or partner of such Noticing Party or (II) a
person authorized by a writing executed by such Noticing Party (or a
reliable reproduction or electronic transmission of the writing)
delivered by such Noticing Party to the Corporation prior to the
making of any nomination or proposal at a stockholder meeting stating
that such person is authorized to act for such Noticing Party as proxy
at the meeting of stockholders, which writing or electronic
transmission, or a reliable reproduction of the writing or electronic
transmission, must be produced at the meeting of stockholders; and
(G)
“Stockholder Associated Person” shall mean, with respect to a
Noticing Party and if different from such Noticing Party, any
beneficial owner of shares of stock of the Corporation on whose behalf
such Noticing Party is providing notice of any nomination or other
business proposed: (I) any person or entity who is a member of a
group (as such term is used in Rule 13d-5 under the Exchange Act)
with such Noticing Party or such beneficial owner(s) with respect to
acquiring, holding, voting or disposing of any securities of the
Corporation, (II) any Affiliate or Associate of such Noticing Party
(other than any Noticing Party that is an Exempt Party) or such
beneficial owner(s), (III) any participant (as defined in Instruction 3
to Item 4 of Schedule 14A) with such Noticing Party or such
beneficial owner(s) with respect to any proposed business or
nomination, as applicable, under these Bylaws, (IV) any beneficial
owner of shares of stock of the Corporation owned of record by such
Noticing Party (other than a Noticing Party that is an Exempt Party)
and (V) any Proposed Nominee.
ARTICLE II
DIRECTORS
Section 2.1.
Number; Eligibility. Within the limit set forth in the Certificate of Incorporation, the
number of directors that shall constitute the entire Board shall be fixed, from time to time, exclusively by
the Board, subject to the rights of the holders of any series of preferred stock with respect to the election of
directors, if any. No person shall be eligible for election or appointment as a director unless such person
has, within ten days following any reasonable request therefor from the Board or any committee thereof,
made himself or herself available to be interviewed by the Board (or any committee or other subset thereof)
with respect to such person’s qualifications to serve as a director or any other matter reasonably related to
such person’s candidacy or service as a director of the Corporation.
Section 2.2.
Duties and Powers. The business and affairs of the Corporation shall be managed by
or under the direction of the Board, which may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by law, the Certificate of Incorporation or these Bylaws required to be
exercised or done by the stockholders.
Section 2.3.
Meetings. The Board may hold meetings, both regular and special, either within or
without the State of Delaware. Regular meetings of the Board may be held at such time and at such place
as may from time to time be determined by the Board. Special meetings of the Board may be called by the
Board Chair (if there be one), the Chief Executive Officer or the Board and shall be held at such place, on
such date and at such time as he, she or it shall specify.
Section 2.4.
Notice. Notice of any meeting of the Board stating the place, date and time of the
meeting shall be given to each director by mail posted not less than five days before the date of the meeting,
by nationally recognized overnight courier deposited not less than two days before the date of the meeting
or by email, facsimile or other means of electronic transmission delivered or sent not less than 24 hours
before the date and time of the meeting, or on such shorter notice as the person or persons calling such
meeting may deem necessary or appropriate under the circumstances. If mailed or sent by overnight courier,
such notice shall be deemed to be given at the time when it is deposited in the United States mail with first
class postage prepaid or deposited with the overnight courier. Notice by facsimile or other electronic
transmission shall be deemed given when the notice is transmitted. Any director may waive notice of any
meeting before or after the meeting. The attendance of a director at any meeting shall constitute a waiver
of notice of such meeting, except where the director attends the meeting for the express purpose of objecting,
and does so object, at the beginning of the meeting to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular
or special meeting of the Board need be specified in any notice of such meeting unless so required by law.
A meeting may be held at any time without notice if all of the directors are present or if those not present
waive notice of the meeting in accordance with Section 5.6 of these Bylaws.
Section 2.5.
Board Chair; Board Vice Chair. The Board Chair shall be chosen from among the
directors and may be the Chief Executive Officer. Except as otherwise provided by law, the Certificate of
Incorporation or Section 2.6 or Section 2.7 of these Bylaws, the Board Chair shall preside at all meetings of
stockholders and of the Board. The Board Chair shall have such other powers and duties as may from time
to time be assigned by the Board. The Board may also choose a Board Vice Chair from among the directors,
and such Board Vice Chair shall have such powers and duties as may from time to time be assigned by the
Board.
Section 2.6.
Lead Independent Director. If the Board Chair does not qualify as independent in
accordance with the applicable rules of any securities exchanges upon which the Corporation’s securities
are listed, the Independent Directors (as defined below) shall appoint a Lead Independent Director. The
Lead Independent Director shall be one of the directors who has been determined by the Board to be an
“independent director” (any such director, an “Independent Director”). The Lead Independent Director, if
any, shall preside at all executive sessions of the Board, serve as a liaison to the Chief Executive Officer and
other directors not present at executive sessions of the Board regarding topics discussed in executive session
or other matters as may be raised from time to time by one or more Independent Directors, work with the
Board Chair and other directors to determine agenda items for Board meetings, have the power to call
meetings of the Independent Directors, and have such other responsibilities, and perform such duties, as
may from time to time be assigned to him or her by the Board. The Independent Directors may remove or
replace the Lead Independent Director from the position of Lead Independent Director at any time with or
without cause by the vote of a majority of the Independent Directors present at a duly convened Board
meeting. The Independent Directors shall periodically consider whether and, if so, when to rotate the
position of Lead Independent Director, and may appoint a Lead Independent Director for a specified term,
which may be renewed.
Section 2.7.
Organization. At each meeting of the Board, the Board Chair, or, in the Board Chair’s
absence, the Lead Independent Director (if any), or, in the Lead Independent Director’s absence, the Board
Vice Chair (if any), or, in the Board Vice Chair’s absence, a director chosen by a majority of the directors
present, shall act as chairperson. The Secretary shall act as secretary at each meeting of the Board. In case
the Secretary shall be absent from any meeting of the Board, an assistant secretary shall perform the duties
of secretary at such meeting, and in the absence from any such meeting of the Secretary and all assistant
secretaries, the chairperson of the meeting may appoint any person to act as secretary of the meeting.
Section 2.8.
Director Resignation and Removal. Any director of the Corporation may resign at
any time, by giving notice in writing or by electronic transmission to the Board Chair, the Chief Executive
Officer or the Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective
at some other time or upon the occurrence of some other event, and, unless otherwise specified in such
notice, the acceptance of such resignation shall not be necessary to make it effective. Subject to the rights
of holders of any series of preferred stock with respect to the election of directors, a director may be removed
from office by the stockholders of the Corporation only for cause and only by the affirmative vote of the
holders of at least a majority of the voting power of all then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, voting together as a single class.
Section 2.9.
Quorum. At all meetings of the Board, a majority of directors constituting the Board
shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at
any meeting at which a quorum is present shall be the act of the Board. If a quorum shall not be present at
any meeting of the Board, the directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting of the time and place of the adjourned meeting, until a
quorum shall be present.
Section 2.10.
Actions of the Board by Unanimous Written Consent. Any action required or
permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a
meeting, if all the members of the Board or committee, as the case may be, consent thereto in writing or by
electronic transmission, and the writing or electronic transmission is filed with the minutes of proceedings
of the Board or committee.
Section 2.11.
Telephonic Meetings. Members of the Board, or any committee thereof, may
participate in a meeting of the Board or such committee by means of a conference telephone or other
communications equipment by means of which all persons participating in the meeting can hear and speak
with each other, and participation in a meeting pursuant to this Section 2.11 shall constitute presence in
person at such meeting.
Section 2.12.
Committees. The Board may designate one or more committees, each committee to
consist of one or more of the directors of the Corporation and, to the extent permitted by law, to have and
exercise such authority as may be provided for in the resolutions creating such committee, as such
resolutions may be amended from time to time. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not such member
or members constitute a quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of any absent or disqualified member. Each committee shall keep regular minutes and
report to the Board when required. A majority of the members of any committee present at any committee
meeting at which there is a quorum present may determine such committee’s action and fix the time and
place of its meetings, unless the Board shall otherwise provide. Except as may be provided in any
resolutions establishing or designating a committee of the Board, the Board shall have the power at any time
to fill vacancies in, to change the membership of or to dissolve any committee of the Board.
Section 2.13.
Compensation. The Board shall have the authority to fix the compensation of
directors, which may be payable in cash or securities (or a combination of cash and securities), and may
delegate the authority to recommend or determine all or part of such compensation to a Board committee.
The directors shall be paid their reasonable expenses, if any, of attendance at each meeting of the Board or
any committee thereof. No such payment shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor. Directors who are full-time employees of the
Corporation shall not receive any compensation for their service as director.
Section 2.14.
Interested Directors. No contract or transaction between the Corporation and one or
more of its directors or officers, or between the Corporation and any other corporation, partnership,
association or other organization in which one or more of the Corporation’s directors or officers are directors
or officers or have a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board or committee thereof that
authorizes the contract or transaction, or solely because any such director’s or officer’s vote is counted for
such purpose if: (a) the material facts as to the director’s or officer’s relationship or interest and as to the
contract or transaction are disclosed or are known to the Board or the committee and the Board or committee
in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; (b) the material facts as to the
director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon and the contract or transaction is specifically approved in good
faith by vote of the stockholders; or (c) the contract or transaction is fair as to the Corporation as of the time
it is authorized, approved or ratified by the Board, a committee thereof or the stockholders. Interested
directors may be counted in determining the presence of a quorum at a meeting of the Board or of a
committee that authorizes the contract or transaction.
ARTICLE III
OFFICERS
Section 3.1.
General. The officers of the Corporation shall be chosen by the Board and shall be a
Chief Executive Officer, a President, a Chief Financial Officer, a Chief Operating Officer, a Vice President,
a Secretary and a Treasurer. The Board, in its discretion, may also choose, or may delegate to the Chief
Executive Officer the authority to appoint, additional Vice Presidents and one or more Assistant Secretaries
and Assistant Treasurers. Any two or more offices may be held by the same person, but no officer may act
in more than one capacity where action of two or more officers is required and no Vice President may at the
same time hold the office of President. The officers of the Corporation need not be stockholders of the
Corporation.
Section 3.2.
Election; Term. The Board shall elect the officers of the Corporation who shall hold
their offices for such terms and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board, and each officer of the Corporation shall hold office until such officer’s
successor is elected and qualified, or until such officer’s earlier death, resignation or removal. Any officer
may be removed at any time by the Board, and any officer appointed by the Chief Executive Officer may
be removed at any time by the Chief Executive Officer. Any officer may resign upon notice given in writing
or electronic transmission to the Chief Executive Officer or the Secretary. Such resignation shall be effective
upon receipt unless it is specified to be effective at some other time or upon the occurrence of some other
event. Any vacancy occurring in any office of the Corporation shall be filled in the manner prescribed in
this Article III for the regular election to such office.
Section 3.3.
Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers
of notice of meeting, consents and other instruments relating to securities owned by the Corporation may
be executed in the name of and on behalf of the Corporation by the Chief Executive Officer, the Secretary
or any other officer authorized to do so by the Board, and any such officer may, in the name of and on behalf
of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy
at any meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and power incident to the ownership of
such securities and that, as the owner thereof, the Corporation might have exercised and possessed if present.
The Board may, by resolution, from time to time confer like powers upon any other person or persons.
Section 3.4.
Chief Executive Officer. The Chief Executive Officer shall, subject to the control of
the Board, have general supervision over the business of the Corporation and shall direct the affairs and
policies of the Corporation. The Chief Executive Officer may also serve as the Board Chair or as President,
if so elected by the Board. The Chief Executive Officer shall also perform such other duties and may
exercise such other powers as may from time to time be assigned to such officer by these Bylaws or by the
Board.
Section 3.5.
President. The President shall act in a general executive capacity and shall assist the
Chief Executive Officer in the administration and operation of the Corporation’s business and general
supervision of its policies and affairs. The President shall, in the absence of or because of the inability to
act of the Chief Executive Officer, perform all duties of the Chief Executive Officer. The President shall
also perform such other duties and may exercise such other powers as may from time to time be assigned to
such officer by these Bylaws, the Board or the Chief Executive Officer.
Section 3.6.
Chief Financial Officer. The Chief Financial Officer shall be the principal financial
officer of the Corporation. The Chief Financial Officer shall also perform such other duties and may
exercise such other powers as may from time to time be assigned to such officer by these Bylaws, the Board
or the Chief Executive Officer.
Section 3.7.
Chief Operating Officer. The Chief Operating Officer shall have general
responsibility for the day-to-day operational activities of the Corporation. The Chief Operating Officer may
also serve as the President, if so elected by the Board, if the Board has not elected the Chief Executive
Officer or another person to serve as President. The Chief Operating Officer shall also perform such other
duties and may exercise such other powers as may from time to time be assigned to such officer by these
Bylaws or by these Bylaws, the Board or the Chief Executive Officer.
Section 3.8.
Vice Presidents. The Vice Presidents shall have such powers and shall perform such
duties as shall be assigned to them by the Board or the Chief Executive Officer.
Section 3.9.
Secretary. The Secretary shall give the requisite notice of meetings of stockholders
and directors and shall record the proceedings of such meetings, shall have custody of the seal of the
Corporation and shall affix it or cause it to be affixed to such instruments as require the seal and attest it
and, besides the Secretary’s powers and duties prescribed by law, shall have such other powers and perform
such other duties as shall be provided in these Bylaws or shall at any time be assigned to such officer by the
Board or the Chief Executive Officer.
Section 3.10.
Treasurer. The Treasurer shall exercise general supervision over the receipt, custody
and disbursement of corporate funds. The Treasurer shall cause the funds of the Corporation to be deposited
in such banks as may be authorized by the Board or in such banks as may be designated as depositaries in
the manner provided by resolution of the Board. The Treasurer shall have such other powers and perform
such other duties as shall be provided in these Bylaws or shall at any time be assigned to such officer by the
Board or the Chief Executive Officer.
Section 3.11.
Assistant Secretaries. Assistant Secretaries, if there be any, shall assist the Secretary
in the discharge of the Secretary’s duties, shall have such powers and perform such other duties as shall at
any time be assigned to them by the Board and, in the absence or disability of the Secretary, shall perform
the duties of the Secretary’s office, subject to the control of the Board or the Chief Executive Officer.
Section 3.12.
Assistant Treasurers. Assistant Treasurers, if there be any, shall assist the Treasurer
in the discharge of the Treasurer’s duties, shall have such powers and perform such other duties as shall at
any time be assigned to them by the Board and, in the absence or disability of the Treasurer, shall perform
the duties of the Treasurer’s office, subject to the control of the Board or the Chief Executive Officer.
Section 3.13.
Other Officers. Such other officers as the Board may appoint shall perform such
duties and have such powers as from time to time may be assigned to them by the Board. The Board may
delegate to any other officer of the Corporation the power to choose such other officers and to prescribe
their respective duties and powers.
ARTICLE IV
STOCK
Section 4.1.
Evidence of Stock Ownership. The shares of the Corporation shall be represented by
certificates unless the Board shall by resolution provide that some or all of any class or series of stock shall
be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until the
certificate is surrendered to the Corporation. Notwithstanding the adoption of any resolution providing for
uncertificated shares, every holder of stock represented by certificates and upon request every holder of
uncertificated shares shall be entitled to have a certificate signed by, or in the name of the corporation by,
the Board Chair or the Chief Executive Officer, or the President or a Vice President, and by the Treasurer or
an Assistant Treasurer, or the Secretary or an Assistant Secretary, representing the number of shares
registered in certificate form.
Section 4.2.
Record Date. In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any rights or the stockholders
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted and which record date shall be not more than
60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any
such purpose shall be the Close of Business on the day on which the Board adopts the resolution relating
thereto.
Section 4.3.
Record Owners. The Corporation shall be entitled to recognize the exclusive right of
a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and
to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not
be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any
other person, whether or not it shall have express or other notice thereof, except as otherwise required by
law.
Section 4.4.
Transfer and Registry Agents. The Corporation may from time to time maintain one
or more transfer offices or agencies and registry offices or agencies at such place or places as may be
determined from time to time by the Board.
ARTICLE V
MISCELLANEOUS
Section 5.1.
Contracts. The Board may authorize any officer or officers or any agent or agents to
enter into any contract or execute and deliver any instrument or other document in the name of and on behalf
of the Corporation, and such authority may be general or confined to specific instances.
Section 5.2.
Disbursements. All checks or demands for money and notes of the Corporation shall
be signed by such officer or officers or such other person or persons as the Board may from time to time
designate.
Section 5.3.
Fiscal Year. The fiscal year of the Corporation shall be fixed from time to time by
resolution of the Board.
Section 5.4.
Corporate Seal. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words “Corporate Seal, Delaware.” The seal may be used
by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.
Section 5.5.
Offices. The Corporation shall maintain a registered office inside the State of
Delaware and may also have other offices outside or inside the State of Delaware. The books and records
of the Corporation may be kept (subject to any applicable law) outside the State of Delaware at the principal
executive offices of the Corporation or at such other place or places as may be designated from time to time
by the Board.
Section 5.6.
Waiver of Notice. Whenever any notice is required to be given to any stockholder or
director of the Corporation under the provisions of the DGCL or these Bylaws, a waiver thereof in writing,
signed by the person or persons entitled to such notice, or a waiver by electronic transmission by the person
or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent
to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any annual or
special meeting of the stockholders or any regular or special meeting of the Board or committee thereof
need be specified in any waiver of notice of such meeting unless so required by law.
Section 5.7.
Severability. To the extent any provision of these Bylaws would be, in the absence
of this Section 5.7, invalid, illegal or unenforceable for any reason whatsoever, such provision shall be
severable from the other provisions of these Bylaws, and all provisions of these Bylaws shall be construed
so as to give effect to the intent manifested by these Bylaws, including, to the maximum extent possible, the
provision that would be otherwise invalid, illegal or unenforceable.
ARTICLE VI
AMENDMENTS
These Bylaws may be adopted, amended, altered or repealed by the Board or by the stockholders of
the Corporation by the affirmative vote of the holders of at least 66
2
/
3
% of the voting power of all then
outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors,
voting together as a single class.
Exhibit 99.4
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Contacts:
Sherman Miller, President and CEO
Max P. Bowman, Vice President and CFO
(601) 948-6813
CAL-MAINE FOODS, INC. ANNOUNCES
AGREEMENT WITH COMPANY’S FOUNDER’S FAMILY
ALSO ANNOUNCES
NEW $500 MILLION SHARE REPURCHASE PROGRAM
Announces Potential Transition to Non-Controlled Company
RIDGELAND, Miss. (February 25, 2025) - Cal-Maine Foods, Inc. (NASDAQ: CALM) (“Cal-Maine Foods”
or the “Company”) today announced that it has entered into an agreement with members of the family of
its founder Fred R. Adams, Jr., relating to the potential diversification of their individual financial
portfolios. As discussed below, the agreement creates a process for the potential conversion of all of their
super voting Class A Common Stock (“Class A Shares”) to Cal-Maine Foods’ Common Stock (“Common
Shares”). Should the conversion occur, all the Company’s shares would be a single class, with one vote per
share. Because the family-owned controlling stockholder owns all of the Company’s super voting shares,
converting those shares into Common Shares would cause the controlling stockholder’s voting power to fall
from 53.2% to 12.0%, although its economic interest in the Company would remain unchanged at 12.0%.
The potential diversification could result in the Company ceasing to be a “controlled company” pursuant to
the rules of The Nasdaq Stock Market. The timing and manner of these potential diversification
transactions have not been decided. The Board of Directors (the “Board”) has taken the steps described
below to position the Company for the potential loss of controlled company status.
The Company also announced that its Board has approved a new share repurchase program which
authorizes repurchases of up to $500 million of Cal-Maine Foods’ Common Stock. The actual timing, value
and manner of share repurchases will be determined by management in its discretion. The Company
expects to strategically and opportunistically repurchase shares from time to time in the open market,
subject to market conditions and other factors.
As described below, the Company has granted registration rights to the family members to facilitate
the sale of Common Shares in the open market, should they decide to sell their shares. It is also possible
that the Company could use a portion of its new share repurchase program to repurchase some of the family
members’ Common Shares as part of the family’s portfolio diversification efforts. Any repurchases from
the family members would require approval from the Special Committee of the Board described below.
Sherman Miller, President and Chief Executive Officer of Cal-Maine Foods, added, “Our share
repurchase program underscores our continued confidence in the strength of our business and future cash
flow generation, as well as our commitment to returning capital to our valued shareholders. We enjoy a
strong cash balance and strong balance sheet. Our management and Board are continually evaluating
opportunities to deploy our cash in a manner to achieve the best value for our stockholders. The share
repurchase program provides us with another tool to achieve that objective.”
Agreement with Founder’s Family
Cal-Maine Foods has entered into an Agreement Regarding Conversion (the “Conversion
Agreement”) with DLNL, LLC (“Daughters’ LLC”) and its members (the “Members”), who include
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Mr. Adams’ four daughters and Adolphus B. Baker, Board Chair (and Mr. Adams’ son-in-law). The
Conversion Agreement was unanimously approved and recommended to the Board by a special committee
consisting solely of independent directors.
Daughters’ LLC holds 4.8 million shares of the Class A Shares, representing 100% of the
outstanding Class A Shares. The Class A Shares have ten votes per share and are convertible on a share-
for-share basis into Common Shares, which have one vote per share. Generally, the Class A Shares
automatically convert to Common Shares upon transfer to persons not related to the family.
The outstanding Class A Shares currently represent approximately 52.0% of the Company’s total
voting power. In addition to the Class A Shares, Daughters’ LLC also holds approximately 1.1 million
Common Shares, bringing the total voting power of the shares held by Daughters’ LLC to approximately
53.2%.
The Members have advised the Company that they are potentially interested in selling all or a
portion of the Common Shares held by Daughters’ LLC, including shares that would be issued upon
conversion of its Class A Shares. The Members indicated that they were willing to work with the Company
towards achieving a smooth transition. Before giving effect to any potential sales, if Daughters’ LLC were
to convert all of its Class A Shares into Common Shares, Daughters’ LLC’s total voting power would decline
from 53.2% to 12.0% of the voting power of the Company’s then -outstanding Common Shares but there
would be no impact on Daughters’ LLC’s economic interest in the Company, which would remain at 12.0%.
Pursuant to the Conversion Agreement, Daughters’ LLC has agreed not to convert any Class A
Shares into Common Shares until after the effectiveness of the Restated Charter (as defined below).
Daughters’ LLC has also agreed that if it converts any Class A Shares into Common Shares, it will
simultaneously convert all (but not less than all) Class A Shares into Common Shares (the “Class A
Conversion”). The Conversion Agreement does not require Daughters’ LLC to convert any Class A Shares
or to sell any shares.
If the Class A Conversion does occur, the Company would have a single class of common stock
outstanding with one vote per share, resulting in the following benefits to stockholders:
●
A reduction in the concentration of voting power
●
Simplification of the Company’s equity capital structure
●
Better alignment of the voting rights and economic interests of all stockholders
●
Broader appeal of the Company’s shares to investors, many of which prefer single voting
class common stock structures
The Conversion Agreement grants registration rights to the Members, but those rights do not
become effective until after the Class A Conversion occurs. The registration rights expire on (1) the 12-
month anniversary of the date of the Class A Conversion or (2) December 31, 2026, whichever is earlier.
In connection with the approval of the Conversion Agreement, the Board unanimously approved
the adoption of the Company’s Third Amended and Restated Certificate of Incorporation (the “Restated
Charter”), which was approved by Daughters’ LLC by majority written consent in lieu of a meeting of
stockholders. The Restated Charter will become effective upon filing with the Secretary of State of the State
of Delaware (the “Delaware Secretary of State”). The Board also amended and restated the Company’s
bylaws to align them with the Restated Charter. The amended and restated bylaws will become effective
when the Restated Charter becomes effective. Because Daughters’ LLC has approved the Restated Charter
by majority written consent, no further stockholder action is required at this time.
Among other things, the Restated Charter divides the Board into three classes of directors serving
staggered three-year terms. Cal-Maine Foods expects the term of the first class of directors to expire at the
2025 annual meeting of stockholders.
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The Board plans to establish a fully independent Nominating and Corporate Governance
Committee, and the independent directors will appoint a lead independent director, to be effective upon
the effectiveness of the Restated Charter.
Dolph Baker, Board Chair of Cal-Maine Foods, stated, “I am confident in the future of the Company,
its strategy and its management team. The decisions to consider diversifying our family’s individual
financial portfolios are personal decisions made in connection with our own respective financial and estate
planning efforts. The Board has asked me to remain as executive Board Chair at least through the
Company’s 2027 annual meeting of stockholders, and I look forward to working with our Board and
management as we continue to successfully execute our strategy.”
Miller stated, “These arrangements will provide the Company with stability of governance and
management during its transition from controlled to non-controlled company status and facilitate the
Members’ portfolio diversification in an orderly manner in compliance with legal requirements. Since
1986, Dolph Baker has contributed to the tremendous growth and success of Cal-Maine Foods. We are
pleased that he will remain executive Board Chair at least through our 2027 annual meeting, and we will
continue to benefit from his
deep understanding of the Company’s operations, depth and breadth of
experience and continued poultry industry engagement.”
$500 Million Share Repurchase Program
The share repurchase program authorizes Cal-Maine Foods, in management’s discretion, to
repurchase up to $500 million of Common Shares from time to time, subject to market conditions and
other factors. The actual timing, number and value of shares repurchased under the program will be
determined by management in its discretion and will depend on a number of factors, including, but not
limited to, the market price of Common Shares and general market and economic conditions.
Share repurchases under the program may be made from time to time through solicited or
unsolicited transactions in the open market, in privately negotiated transactions or by other means in
accordance with securities laws. The Company expects that share repurchases under the program will be
funded from one or a combination of existing cash balances and future free cash flow. The share repurchase
program does not obligate Cal-Maine Foods to repurchase any specific amount of shares, does not have an
expiration date, and may be suspended, modified or discontinued at any time without prior notice.
Additional Information and Where To Find It
The Company intends promptly to file a preliminary Information Statement with the U.S. Securities
and Exchange Commission (the “SEC”) regarding the Restated Charter and related matters. The Restated
Charter will become effective upon filing with the Delaware Secretary of State, which the Company expects
to occur on or promptly after the 20th calendar day following the distribution of the definitive Information
Statement to stockholders.
Because the Restated Charter has been approved by the Board and by the stockholder vote required
by law, the Company will not be soliciting proxies or holding a meeting of stockholders to consider the
Restated Charter.
Additional details regarding the Conversion Agreement, the Restated Charter and related matters
are contained in a Form 8-K filed by the Company with the SEC contemporaneously with the issuance of
this press release and will also be contained in the Information Statement. Investors may obtain copies of
all documents filed by Cal-Maine with the SEC, free of charge, at the SEC’s website, www.sec.gov or at Cal-
Maine Food’s website at www.calmainefoods.com/sec-filings.
About Cal-Maine Foods
Cal-Maine Foods is primarily engaged in the production, grading, packaging, marketing and
distribution of fresh shell eggs, including conventional, cage-free, organic, brown, free-range, pasture-
raised and nutritionally enhanced eggs. The Company, which is headquartered in Ridgeland, Mississippi,
is the largest producer and distributor of fresh shell eggs in the nation and sells most of its shell eggs
throughout the majority of the United States.
Forward Looking Statements
Statements contained in this press release that are not historical facts are forward-looking
statements as that term is defined in the Private Securities Litigation Reform Act of 1995. The forward-
looking statements are based on management’s current intent, belief, expectations, estimates and
projections regarding our Company and our industry. These statements are not guarantees of future
performance and involve risks, uncertainties, assumptions and other factors that are difficult to predict
and may be beyond our control. The factors that could cause actual results to differ materially from those
projected in the forward-looking statements include, among others, (i) the risk factors set forth in Part I
Item 1A Risk Factors of our Annual Report on Form 10-K for the year ended June 1, 2024, as well as those
included in other reports we file from time to time with the SEC (including our Quarterly Reports on Form
10-Q and Current Reports on Form 8-K), (ii) the occurrence of any event, change or other circumstances
that could give rise to the Board’s decision to abandon the Restated Charter or to the termination of the
Conversion Agreement, (iii) the effect of the announcement of the Conversion Agreement on the Common
Shares’ trading price, the ability of the Company to retain and hire key personnel and maintain
relationships with its customers and suppliers, and on the Company’s operating results and business
generally, (iv) the impact on the Common Shares’ trading price of the sale or marketing, or potential sale
or marketing, of a significant number of Common Shares as part of the family’s portfolio diversification,
(v) the risks and hazards inherent in the shell egg business (including disease, pests, weather conditions,
and potential for product recall), including but not limited to the current outbreak of HPAI affecting
poultry in the U.S., Canada and other countries that was first detected in commercial flocks in the U.S. in
February 2022 and that first impacted our flocks in December 2023, (vi) changes in the demand for and
market prices of shell eggs and feed costs, (vii) our ability to predict and meet demand for cage-free and
other specialty eggs, (viii) risks, changes, or obligations that could result from our recent or future
acquisition of new flocks or businesses and risks or changes that may cause conditions to completing a
pending acquisition not to be met, (ix) risks relating to changes in inflation and interest rates, (x) our
ability to retain existing customers, acquire new customers and grow our product mix, (xi) adverse
results in pending litigation matters, and (xii) global instability, including as a result of the war in
Ukraine, the conflicts in Israel and surrounding areas and attacks on shipping in the Red Sea. Readers
are cautioned not to place undue reliance on forward-looking statements because, while we believe the
assumptions on which the forward-looking statements are based are reasonable, there can be no
assurance that these forward-looking statements will prove to be accurate. Further, forward-looking
statements included herein are only made as of the respective dates thereof, or if no date is stated, as of
the date hereof. Except as otherwise required by law, we disclaim any intent or obligation to update
publicly these forward-looking statements, whether because of new information, future events, or
otherwise.
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