CALM 8-K
Cal-Maine Foods Inc (CALM)
8-K
2025-03-27
For: 2025-03-25
View Original
Added on
April 11, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
CURRENT REPORT
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Explanatory Note
On March 7, 2025, Cal-Maine Foods, Inc. (“Cal-Maine Foods,” the “Company,” “we,” “us” or “our”) filed a definitive
Information Statement on Schedule 14C (the “Information Statement”) with the Securities and Exchange Commission.
As set forth in more detail below, this Form 8-K is filed to inform the Company’s security holders that certain actions
contemplated by the Information Statement have occurred, namely (i) the Lender Consent, as defined in the Information
Statement, was obtained, as described in Item 1.01 of this Form 8-K, (ii) the Third Amended and Restated Certificate of
Incorporation of the Company (“Restated Charter”) was filed with the Delaware Secretary of State on March 27, 2025
(the “Restated Charter Effective Date”), (iii) the Amended and Restated Bylaws of the Company (“Restated Bylaws”)
became effective on the Restated Charter Effective Date, and (iv) the Company took certain actions related to corporate
governance contemplated by the Information Statement, as described in Item 8.01 of this Form 8-K. In addition, the
Company has entered into Indemnification Agreements with its directors and certain officers as described in Item 1.01.
Item 1.01 Entry into a Material Definitive Agreement
Lender Consent (Second Amendment to Amended and Restated Credit Agreement)
On March 25, 2025, the Company entered into the Second Amendment to Amended and Restated Credit Agreement (as
amended, the “Credit Agreement”) between Cal-Maine Foods, Inc. and certain subsidiaries as guarantors, BMO Bank
N.A. as administrative agent and the lenders party thereto (the “Second Amendment”). Under the Credit Agreement, a
Change of Control is an event of default. The Second Amendment amended the definition of Change of Control to
exclude from that definition the conversion (the “Class A Conversion”) of all outstanding shares of the Company’s Class
A Common Stock, par value $0.01 per share, into Common Stock, par value $0.01 per share (“Common Stock”), in
accordance with the Agreement Regarding Conversion (the “Conversion Agreement”) dated as of February 25, 2025
among the Company, DLNL, LLC and each member of DLNL, LLC. The Second Amendment constitutes the Lender
Consent as defined in the Information Statement.
Under the Second Amendment, prior to the Class A Conversion, the definition of Change of Control is unchanged. On
and after the Class A Conversion, Change of Control will mean any of (i) the acquisition by any “person” or “group” (as
such terms are used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) at any time of
beneficial ownership of 30.0% or more of the outstanding capital stock or other equity interests of the Company on a
fully-diluted basis, (ii) the failure of individuals who are members of the board of directors (or similar governing body) of
the Company on the effective date of the Second Amendment (together with any new or replacement directors whose
initial nomination for election was approved by a majority of the directors who were either directors on the effective date
of the Second Amendment or previously so approved) to constitute a majority of the board of directors (or similar
governing body) of the Company, or (iii) any “Change of Control” (or words of like import), as defined in any agreement
or indenture relating to any issue of Material Indebtedness of any Loan Party or any Subsidiary of a Loan Party (each as
defined in the Credit Agreement), shall occur.
The foregoing description does not purport to be complete and is qualified in its entirety by reference to the full text of
the Second Amendment, which is filed as Exhibit 99.1 to this Form 8-K and incorporated herein by reference.
Indemnification Agreements
Effective as of March 25, 2025, the Company entered into an Indemnification Agreement (“Indemnification Agreement”)
with each of the Company’s directors and certain officers. The officers who entered into Indemnification Agreements are
Adolphus B. Baker (Board Chair and director), Sherman L. Miller (President, Chief Executive Officer and director), Max
P. Bowman (Vice President, Chief Financial Officer, Treasurer, Secretary and director), Robert L. Holladay, Jr. (Vice
President and General Counsel), Michael T. Walters (Vice President–Operations and Chief Operating Officer), Scott D.
Hull (Vice President–Sales) and Matthew S. Glover (Vice President–Accounting).
Each Indemnification Agreement is intended to provide protection against personal liability for individuals serving in
these capacities, thereby encouraging the retention and attraction of highly capable personnel.
Each Indemnification Agreement provides that the Company will indemnify the director or officer, to the fullest extent
permitted by law, against any and all expenses, liabilities, losses, judgments, fines, and amounts paid in settlement that
arise from his or her role within the Company. This indemnification includes the advancement of expenses incurred in
defending any such proceeding. Any such advancement of expenses is subject to the receipt of a written request and
undertaking from the officer or director that the officer or director will repay any advanced funds if it is ultimately
determined that he or she is not entitled to indemnification.
Each Indemnification Agreement outlines the process for determining whether the officer or director is entitled to
indemnification. This determination will be made by (i) the Board, (ii) a committee consisting solely of disinterested
directors, (iii) independent counsel selected by the Board, or (iv) the Company’s stockholders, depending on the
circumstances (each, a “Reviewing Party”). However, if the officer or director is successful in defending any proceeding,
he or she will be indemnified against expenses incurred in connection with the defense, without the need for further
authorization or determination by the Reviewing Party.
In the event of a “change in control” of the Company (as defined in the Indemnification Agreement), each
Indemnification Agreement includes specific provisions to safeguard the rights of the officer or director. After a change
in control, the determination of the officer or director’s entitlement to indemnification will be made by an independent
counsel.
The rights provided under each Indemnification Agreement are in addition to any other rights the officer or director may
have under the Company’s certificate of incorporation, bylaws, applicable law, or other agreements. Each
Indemnification Agreement also requires the Company to cover the officer or director under the Company’s directors’
and officers’ liability insurance policies.
The duration of each Indemnification Agreement extends until ten years after the officer or director ceases to serve in his
or her role as an officer, director or employee, or one year after the final disposition of any proceeding related to his or
her service, whichever is later. Each Indemnification Agreement is binding on the Company and its successors and
assigns.
The foregoing description does not purport to be complete and is qualified in its entirety by reference to the full text of
the form of the Indemnification Agreement, which is filed as Exhibit 99.2 to this Form 8-K and incorporated herein by
reference.
Item 3.03 Material Modification to Rights of Security Holders.
On the Restated Charter Effective Date, the Company filed the Restated Charter with the Delaware Secretary of State and
the Restated Charter became effective upon filing. The Restated Bylaws also became effective on the Restated Charter
Effective Date. The Restated Charter and Restated Bylaws modified the rights of the holders of a class of securities of the
Company registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended, namely the
Company’s Common Stock.
Under the Conversion Agreement, DLNL, LLC agreed not to cause the Class A Conversion prior to the Restated Charter
Effective Date or the date the Company obtained the Lender Consent, whichever is later. Because those conditions have
been met, the Class A Conversion may now occur at any time. However, DLNL, LLC is not required to implement the
Class A Conversion, and there is no assurance that the Class A Conversion will occur or, if it occurs, when it will occur.
Descriptions of the provisions adopted or changed by the Restated Charter and, if applicable, the previous provision are
included in the Information Statement under the heading “
,”
which is incorporated herein by reference.
Descriptions of the provisions adopted or changed by the Restated Bylaws and, if applicable, the previous provision are
included in the Information Statement under the heading “
,” which is
incorporated herein by reference.
The description of the Common Stock after the Restated Charter Effective Date is included in the Information Statement
in the section titled “
,” which is incorporated herein by reference.
The foregoing descriptions of the Common Stock, Restated Charter and Restated Bylaws do not purport to be complete
and are qualified in their entirety by reference to the full text of the Restated Charter and Restated Bylaws, which are
filed as Exhibits 3.1 and 3.2 hereto, respectively, and incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers;
Compensatory Arrangements of Certain Officers
Effective March 27, 2025, the Company entered into Indemnification Agreements with certain officers and the
description of such agreements in Item 1.01 is incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
As contemplated by the Information Statement, the Restated Charter and Restated Bylaws became effective on the
Restated Charter Effective Date. The information in Item 3.03 is incorporated herein by reference.
Item 8.01 Other Events.
As contemplated by the Information Statement, the Company’s Board of Directors (the “Board”) took the following actions
related to corporate governance on March 25, 2025:
●
appointed Letitia C. Hughes to serve as lead independent director in accordance with Section 2.6 of the Restated
Bylaws;
●
established a Nominating and Corporate Governance Committee of the Board (the “N&CGC”), adopted a charter
for the N&CGC (the “N&CGC Charter”), appointed Letitia C. Hughes, James E. Poole, Steve W. Sanders and
Camille S. Young, all independent directors, to serve on the N&CGC, and appointed Steve W. Sanders as Chair
of the N&CGC;
●
adopted a new charter for its Audit Committee; and
●
adopted a new charter for its Compensation Committee.
The members and chairs of the Audit Committee and Compensation Committee were not changed.
Copies of the N&CGC Charter and new charters for the Compensation Committee and Audit Committee can be found on
the Company’s website at www.calmainefoods.com under “Investor Relations – Corporate Governance.” Information on
the Company’s website is not part of this Form 8-K.
In connection with the adoption of the new charter for the Compensation Committee, the Amended and Restated Cal-
Maine Foods, Inc. 2012 Omnibus Long-Term Incentive Plan was amended to provide that the plan is administered by the
Compensation Committee instead of the Company’s Long-Term Incentive Plan Committee (“LTIP Committee”).
Because the LTIP Committee had no other responsibilities, the Board dissolved the LTIP Committee. A copy of such
amendment is filed as Exhibit 99.3 hereto.
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:
March 27, 2025
By:
/s/ Max P. Bowman
Max P. Bowman
Director, Vice President, and Chief Financial Officer
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 27
th
/s/ Sherman L. Miller________________________
Sherman L. Miller
President – Chief Executive Officer
AMENDED AND RESTATED BYLAWS
OF
CAL-MAINE FOODS, INC.
(Effective March 27, 2025)
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
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.
S
ECOND
A
MENDMENT TO
A
MENDED AND
R
ESTATED
C
REDIT
A
GREEMENT
This Second Amendment to Amended and Restated Credit Agreement (herein, this
“Amendment”
)
is entered into as of March 25, 2025 (the
“Effective Date”
), between C
AL
-M
AINE
F
OODS
,
I
NC
., a Delaware
corporation (the
“Borrower”
), the direct and indirect Wholly-owned Domestic Subsidiaries of the Borrower
from time to time party to the Credit Agreement (as hereinafter defined), as Guarantors, the several financial
institutions from time to time party to the Credit Agreement, as Lenders, and BMO
B
ANK
known as BMO Harris Bank N.A.), as administrative agent (the “
Administrative Agent
”).
P
RELIMINARY
S
TATEMENTS
Amended and Restated Credit Agreement, dated as of November 15, 2021 (as amended, restated,
supplemented or modified from time to time, the
“Credit Agreement”
). All capitalized terms used herein
without definition shall have the same meanings herein as such terms have in the Credit Agreement.
conditions set forth in this Amendment.
N
OW
,
T
HEREFORE
,
for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
S
ECTION
MENDMENTS
.
Upon the satisfaction of the conditions precedent set forth in Section 2 below, the Credit Agreement
shall be and hereby is amended, effective as of the Effective Date, as follows:
Documents are hereby replaced with references to “BMO Bank N.A. (formerly known as BMO Harris Bank
N.A.)”.
amended and restated in its entirety to read as follows:
Change of Control
” means (I) prior to the Conversion, Fred R. Adams Jr., his spouse, natural
children, sons-in-law or grandchildren, or any trust, guardianship, conservatorship or custodianship
for the primary benefit of any of the foregoing, or any family limited partnership, similar limited
liability company or other entity that 100% of voting control of such entity, is held by any of the
foregoing, cease at any time and for any reason (including death or incapacity) to own, legally and
beneficially, at least 50% of the votes represented by the Voting Stock of the Borrower, and (II) on
and after the Conversion, any of (a) the acquisition by any “person” or “group” (as such terms are
used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) at any time
of beneficial ownership of 30.0% or more of the outstanding capital stock or other equity interests
of the Borrower on a fully-diluted basis, (b) the failure of individuals who are members of the board
of directors (or similar governing body) of the Borrower on the Second Amendment Effective Date
(together with any new or replacement directors whose initial nomination for election was approved
by a majority of the directors who were either directors on the Second Amendment Effective Date
or previously so approved) to constitute a majority of the board of directors (or similar governing
body) of the Borrower, or (c) any “Change of Control” (or words of like import), as defined in any
agreement or indenture relating to any issue of Material Indebtedness of any Loan Party or any
Subsidiary of a Loan Party, shall occur.
the appropriate alphabetical order to read as follows:
“Conversion”
Agreement) are converted to Common Shares (as defined in the Conversion Agreement) under and
in accordance with the terms specified in the Conversion Agreement. Evidence of the Conversion
shall be provided to the Administrative Agent.
means that certain Agreement Regarding Conversion dated as of
February 25, 2025 among the Borrower, DLNL, LLC, a Delaware limited liability company (the
“
Daughters’ LLC
”), and each member of the Daughters’ LLC, as such agreement may be amended
from time to time with notice to the Administrative Agent.
“
Second Amendment Effective Date
” means, March 25, 2025.
Effective Date, by deleting such Schedule 6.2 in its entirety and substituting therefor the Schedule 6.2
attached hereto as Exhibit A.
S
ECTION
2. C
ONDITIONS
P
RECEDENT
.
The effectiveness of this Amendment is subject to the satisfaction of all of the following conditions
precedent:
this Amendment.
S
ECTION
3. R
EPRESENTATIONS
.
In order to induce the Administrative Agent and the Lenders to execute and deliver this Amendment,
each Loan Party hereby represents to the Administrative Agent and the Lenders that as of the date hereof
(a) the representations and warranties set forth in Section 6 of the Credit Agreement and in the other Loan
Documents are and shall be and remain true and correct and (b) each Loan Party is in compliance with the
terms and conditions of the Credit Agreement and in the other Loan Documents and no Default or Event of
Default has occurred and is continuing under the Credit Agreement or shall result after giving effect to this
Amendment.
S
ECTION
4. M
ISCELLANEOUS
.
Documents to which it is a party. Each Loan Party hereby acknowledges and agrees that the Liens created
and provided for by the Collateral Documents continue to secure, among other things, the Obligations
arising under the Credit Agreement as amended hereby. The Collateral Documents and the rights and
remedies of the Administrative Agent thereunder, the Obligations of the Loan Parties thereunder, and the
Liens created and provided for thereunder remain in full force and effect and shall not be affected, impaired
or discharged hereby. Nothing herein contained shall in any manner affect or impair the priority of the liens
and security interests created and provided for by the Collateral Documents as to the indebtedness which
would be secured thereby prior to giving effect to this Amendment.
shall continue in full force and effect in accordance with its original terms. Reference to this Amendment
need not be made in the Credit Agreement, the Note, or any other instrument or document executed in
connection therewith, or in any certificate, letter or communication issued or made pursuant to or with
respect to the Credit Agreement, any reference in any of such items to the Credit Agreement being sufficient
to refer to the Credit Agreement as amended hereby.
Administrative Agent in connection with the negotiation, preparation, execution and delivery of this
Amendment, including the fees and expenses of counsel for the Administrative Agent.
on different counterpart signature pages, all of which taken together shall constitute one and the same
agreement. Any of the parties hereto may execute this Amendment by signing any such counterpart and
each of such counterparts shall for all purposes be deemed to be an original. Delivery of a counterpart
hereof by facsimile transmission or by e-mail transmission of an Adobe portable document format file (also
known as a “PDF” file) shall be effective as delivery of a manually executed counterpart hereof. THIS
AMENDMENT AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE
CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
[S
IGNATURE
P
AGE TO
F
OLLOW
]
This Second Amendment to Amended and Restated Credit Agreement is entered into as of the date
and year first above written.
“B
ORROWER
”
C
AL
-M
AINE
F
OODS
,
I
NC
.
By /s/ Max Bowman ______________________
“G
UARANTORS
”
A
MERICAN
E
GG
P
RODUCTS
,
LLC
By /s/ Max Bowman ______________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
B
ENTON
C
OUNTY
F
OODS
,
LLC
By /s/ Max Bowman ______________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
W
HARTON
C
OUNTY
F
OODS
,
LLC
By /s/ Max Bowman ______________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
S
OUTH
T
EXAS
A
PPLICATORS
,
I
NC
.
By /s/ Max Bowman ______________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
C
AL
-M
AINE
R
EAL
E
STATE
LLC
By /s/ Max Bowman ______________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
T
EXAS
E
GG
P
RODUCTS
,
LLC
By /s/ Max Bowman ______________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
“A
DMINISTRATIVE
A
GENT AND
L/C
I
SSUER
”
BMO
B
ANK
N.A.
(formerly known as BMO Harris Bank
N.A.), as Administrative Agent and L/C Issuer
By /s/ David J. Bechstein __________________
“L
ENDERS
”
BMO
B
ANK
N.A.
(formerly known as BMO Harris Bank
N.A.)
By: /s/ David J. Bechstein _________________
G
REEN
S
TONE
F
ARM
C
REDIT
S
ERVICES
,
ACA
By /s/ Curtis Flammini ____________________
A
G
F
IRST
F
ARM
C
REDIT
B
ANK
By /s/ Creighton Culvern __________________
C
OMPEER
F
INANCIAL
,
ACA
By /s/ Jeremy Voigts _____________________
F
ARM
C
REDIT
B
ANK OF
T
EXAS
By /s/ Katrina Lange ______________________
Exhibit A
S
CHEDULE
S
UBSIDIARIES
N
AME
J
URISDICTION OF
O
RGANIZATION
P
ERCENTAGE
O
WNERSHIP
American Egg Products, LLC
Georgia
100%
Texas Egg Products, LLC
Texas
Borrower 78.2%
Wharton County Foods, LLC
21.8%
Benton County Foods, LLC
Arkansas
100%
South Texas Applicators, Inc.
Delaware
100%
Wharton County Foods, LLC
Texas
100%
Cal-Maine Real Estate LLC
Mississippi
100%
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT
March 25, 2025, between Cal-Maine Foods, Inc., a Delaware corporation (the “Company”), and [NAME]
(“Indemnitee”).
WHEREAS,
employees the most capable persons available;
WHEREAS,
WHEREAS,
being asserted against directors, officers and key employees of corporations;
WHEREAS,
in order to enhance Indemnitee’s continued and effective service to the Company, and in order to induce
Indemnitee to provide continued services to the Company as a director, officer or employee, the Company
wishes to provide in this Agreement for the indemnification of and the advancing of expenses to Indemnitee
to the fullest extent (whether partial or complete) permitted by law and as set forth in this Agreement and
for the coverage of Indemnitee under the Company’s directors’ and officers’ liability insurance policies; and
WHEREAS,
indemnification and advancement rights provided to the Company’s directors or officers under the
Company’s Third Amended and Restated Certificate of Incorporation (as amended from time to time, the
“Certificate of Incorporation”) and Amended and Restated Bylaws (as amended from time to time, the
“Bylaws”) and any resolutions adopted pursuant thereto, and shall not be deemed a substitution therefor,
nor to diminish any rights of Indemnitee thereunder.
NOW, THEREFORE,
continuing to serve as a director, officer or employee of the Company and intending to be legally bound
hereby, the parties agree as follows:
1.
Certain Definitions
:
(a)
Board: The Board of Directors of the Company.
(b)
Change in Control:
(i)
the acquisition by any individual, entity or group (a “Person”), including any
“person” within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 25% or more of either (A) the then outstanding
shares of common stock of the Company (the “Outstanding Common Stock”) or (B) the
combined voting power of the then outstanding securities of the Company entitled to vote
generally in the election of directors (the “Outstanding Voting Securities”); provided, however,
the following shall not be a “Change in Control”: (1) any acquisition directly from the Company
(excluding any acquisition resulting from the exercise of an exercise, conversion or exchange
privilege unless the security being so exercised, converted or exchanged was acquired directly
from the Company), (2) any acquisition by the Company, (3) any acquisition by an employee
benefit plan (or related trust) sponsored or maintained by the Company or any corporation
controlled by the Company, (4) any acquisition by any corporation pursuant to a transaction that
complies with clauses (A), (B) and (C) of subsection (iii) of this Section or (5) any transaction
contemplated by that certain Agreement Regarding Conversion by and among the Company and
the other parties thereto dated as of February 25, 2025; provided further that, for purposes of
clause (2), if any Person (other than the Company or any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the Company) shall
become the beneficial owner of 25% or more of the Outstanding Common Stock or 25% or more
of the Outstanding Voting Securities by reason of an acquisition by the Company, and such
Person shall, after such acquisition by the Company, become the beneficial owner of any
additional shares of the Outstanding Common Stock or any additional Outstanding Voting
Securities and such beneficial ownership is publicly announced, such additional beneficial
ownership shall constitute a Change in Control; or
(ii)
the cessation of individuals who, as of the date hereof, constitute the Board (the
“Incumbent Board”) to constitute at least a majority of such Board; provided, however, that any
individual who becomes a director of the Company subsequent to the date hereof whose election,
or nomination for election by the Company’s stockholders, was approved by the vote of at least
a majority of the directors then constituting the Incumbent Board shall be deemed a
member
the Incumbent Board; and provided further that any individual who was initially elected as a
director of the Company as a result of an actual or threatened solicitation by a Person other than
the Board for the purpose of opposing a solicitation by any other Person with respect to the
election or removal of directors, or any other actual or threatened solicitation of proxies or
consents by or on behalf of any Person other than the Board shall not be deemed a member of
the Incumbent Board; or
(iii)
the consummation of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the Company (a “Corporate Transaction”);
provided, however, “Change in Control” shall not include a Corporate Transaction pursuant to
which:
(A)
all or substantially all of the individuals or entities who are the beneficial
owners, respectively, of the Outstanding Common Stock and the Outstanding Voting
Securities immediately prior to such Corporate Transaction will beneficially own, directly
or indirectly, more than 50% of, respectively, the outstanding shares of common stock, and
the combined voting power of the outstanding securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting from such Corporate
Transaction (including, without limitation, a corporation that as a result of such transaction
owns, directly or indirectly, the Company or all or substantially all of the Company’s assets)
in substantially the same proportions relative to each other as their ownership, immediately
prior to such Corporate Transaction, of the Outstanding Common Stock and the Outstanding
Voting Securities, as the case may be,
(B)
no Person (other than the Company; any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation controlled by the
Company; the corporation resulting from such Corporate Transaction; and any Person that
beneficially owned, immediately prior to such Corporate Transaction, directly or indirectly,
25% or more of the Outstanding Common Stock or the Outstanding Voting Securities, as
the case may be) will beneficially own, directly or indirectly, 25% or more of, respectively,
the outstanding shares of common stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the outstanding securities of such corporation
entitled to vote generally in the election of directors and
(C)
individuals who were members of the Incumbent Board will constitute at least
a majority of the members of the board of directors of the corporation resulting from such
Corporate Transaction; or
(iv)
the consummation of a plan of complete liquidation or dissolution of the Company.
(c)
Disinterested Director: A director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification is sought by Indemnitee.
(d)
Expenses: Any expense broadly construed, including, without limitation, attorneys’
fees, retainers, court costs, transcript costs, fees and expenses of experts, including accountants and other
advisors, travel expenses, duplicating costs, postage, delivery service fees, filing fees, and all other
disbursements or expenses of the types typically paid or incurred in connection with investigating,
defending, being a witness in, or participating (including on appeal), or preparing for any of the foregoing,
in any Proceeding relating to any Indemnifiable Event, and any expenses of establishing a right to
indemnification under any of Section
,
(e)
Indemnifiable Costs: Any and all Expenses reasonably incurred, liabilities, losses,
judgments, fines (including any excise taxes assessed on a person with respect to any employee benefit plan)
and amounts paid in settlement and any interest, assessments, or other charges imposed thereon, and any
federal, state, local, or foreign taxes imposed as a result of the actual or deemed receipt of any payments
under this Agreement.
(f)
Indemnifiable Event: Any event or occurrence that takes place either prior to or after
the execution of this Agreement, by reason of the fact that Indemnitee is or was a director, officer or
employee of the Company or any of its subsidiaries, or has or had agreed to become a director, officer or
employee of the Company or any of its subsidiaries, or, while a director, officer or employee of the Company
or any of its subsidiaries, is or was serving at the request of the Company as a director, officer, employee or
agent of another corporation or of a limited liability company, partnership, joint venture, trust, enterprise or
nonprofit entity, including service with respect to employee benefit plans, or related to anything done or not
done by Indemnitee in any such capacity, whether or not the basis of the Proceeding is alleged action in an
official capacity as a director, officer or employee of the Company, or in any other capacity, as described
above.
(g)
Independent Counsel: means law firm partner or shareholder (or similar position)
who is experienced in matters of corporation law and neither presently is, nor in the past three years has
been, retained to represent: (i) the Company or any of its subsidiaries or affiliates, (ii) Indemnitee or (iii) any
other party to the Proceeding giving rise to a claim for indemnification or Expense Advances hereunder, in
any matter material to such law firm or such member of such law firm (other than with respect to matters
relating to indemnification and advancement of expenses). No lawyer shall qualify to serve as Independent
Counsel if such lawyer, or such lawyer’s law firm would, under the applicable standards of professional
conduct then prevailing, have a conflict of interest in representing either the Company or Indemnitee in an
action to determine Indemnitee’s rights under this Agreement. The Board shall select a lawyer to serve as
Independent Counsel, subject to the consent of Indemnitee, which consent shall be withheld only if the
Independent Counsel selected by the Board does not meet the requirements of the foregoing definition of
Independent Counsel, and Indemnitee sets forth with particularity, in writing, the factual basis of such
assertion. The Company agrees to pay the reasonable fees of the Independent Counsel and to indemnify
fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities, loss, and
damages arising out of or relating to this Agreement or the engagement of Independent Counsel pursuant
hereto.
(h)
Proceeding: Any action, suit or proceeding, whether civil, criminal, administrative
or investigative that relates to an Indemnifiable Event.
(i)
Reviewing Party: Reviewing Party shall have the meaning ascribed to such term in
Section
2.
Agreement to Indemnify
(a)
General Agreement Regarding Indemnification. In the event Indemnitee was, is, or
is threatened to be made a party to or is otherwise involved in a Proceeding by reason of an Indemnifiable
Event, the Company shall indemnify Indemnitee from and against Indemnifiable Costs, to the fullest extent
permitted by applicable law, as the same exists or may hereafter be amended; provided, however, that the
Company’s commitment set forth in this Section
the limitations and procedural requirements set forth in this Agreement.
(b)
Partial Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of Indemnifiable Costs, but not,
however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled.
(c)
Advancement of Expenses. If so requested by Indemnitee, the Company shall
advance to Indemnitee, to the fullest extent not prohibited by applicable law, as the same exists or may
hereafter be amended or interpreted, any and all Expenses incurred by Indemnitee (an “Expense Advance”
or an “Advance”) in defending any Proceeding in advance of its final disposition within 30 calendar days
after the receipt by the Company of a request from Indemnitee for an Advance, whether prior to or after
final disposition of any Proceeding; provided, however, that the Company shall not advance any expenses
to Indemnitee unless and until it shall have received a request and undertaking substantially in the form
attached hereto as Exhibit A. Any request for an Expense Advance shall be accompanied by an itemization,
in reasonable detail, of the Expenses for which advancement is sought; provided, however, that Indemnitee
need not submit to the Company any information that counsel for Indemnitee deems is privileged and
exempt from compulsory disclosure in any proceeding. Subject to applicable law, Advances shall be made
without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate
entitlement to indemnification under the other provisions of this Agreement. If Indemnitee has commenced
legal proceedings in a court of competent jurisdiction in the State of Delaware to secure a determination that
Indemnitee should be indemnified under applicable law, as provided in Section
, any determination made
by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall
not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance
until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom
have been exhausted or have lapsed). Indemnitee’s obligation to reimburse the Company for Expense
Advances shall be unsecured and no interest shall be charged thereon. This Section
apply to any claim by Indemnitee for which indemnity is excluded pursuant to Section
(d)
Exception to Obligation to Indemnify. Notwithstanding anything in this Agreement
to the contrary, the Company shall not be obligated under this Agreement to make any indemnification
payment in connection with any claim made against Indemnitee:
(i)
except as otherwise provided in Section
, in connection with any Proceeding
commenced by Indemnitee, unless the commencement of such Proceeding by Indemnitee was
authorized in the specific case by the Board; or
(ii)
for which payment has actually been made to or on behalf of Indemnitee
under any insurance policy or other indemnity provision, except with respect to any excess
beyond the amount paid under any insurance policy or other indemnity provision.
3.
Reviewing Party
(a)
Definition of Reviewing Party. Other than as contemplated by Section
or as ordered by a court, the person, persons or entity who shall determine whether Indemnitee is entitled to
indemnification (the “Reviewing Party”), (i) if Indemnitee is a director, officer or employee at the time of
such determination, shall be (A) the Board acting by a majority vote of Disinterested Directors, even though
less than a quorum, (B) a committee of Disinterested Directors designated by a majority vote of
Disinterested Directors on the Board, even though less than a quorum, (C) if there are no Disinterested
Directors, or if the Disinterested Directors so direct, by Independent Counsel in a written opinion to the
Board, a copy of which shall be delivered to Indemnitee, or (D) by the stockholders of the Company and
(ii) if Indemnitee is a former director, officer or employee at the time of such determination, shall be any
person, persons or entity having the authority to act on the matter on behalf of the Company.
(b)
Reviewing Party Following Change in Control. After a Change in Control (other
than a Change in Control approved by a majority of the Incumbent Board), the Reviewing Party shall be
Independent Counsel. With respect to all matters arising from such a Change in Control concerning the
rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other
agreement or under applicable law or the Company’s Certificate of Incorporation or Bylaws now or hereafter
in effect relating to indemnification for Indemnifiable Events, the Company shall seek legal advice only
from Independent Counsel. Such counsel, among other things, shall render its written opinion to the Board
and Indemnitee as to whether and to what extent Indemnitee should be indemnified under applicable law.
(c)
Successful Proceeding or Defense. Notwithstanding anything contained herein to the
contrary, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any
Proceeding by reason of (or arising in part out of) an Indemnifiable Event or in defense of any claim, issue
or matter therein, Indemnitee shall be indemnified against Expenses actually and reasonably incurred by
Indemnitee in connection therewith, without the necessity of authorization or determination by the
Reviewing Party as to whether Indemnitee is entitled to indemnification in the specific case.
4.
Indemnification Process and Appeal
(a)
Indemnification Payment.
(i)
Subject to the last sentence of Section
, the determination with respect to
Indemnitee’s entitlement to indemnification shall be made by the Reviewing Party not later than
30 calendar days after receipt by the Company of a written demand on the Company for
indemnification (which written demand shall include such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to determine whether and to
what extent Indemnitee is entitled to indemnification). The Reviewing Party making the
determination with respect to Indemnitee’s entitlement to indemnification shall notify
Indemnitee of such written determination no later than two business days thereafter.
(ii)
Unless the Reviewing Party has provided a written
determination to the Company that Indemnitee is not entitled to indemnification under this
Agreement, Indemnitee shall be entitled to indemnification of Indemnifiable Costs, and shall
receive payment thereof, from the Company in accordance with this Agreement within
10 business days after the Reviewing Party has made its determination with respect to
Indemnitee’s entitlement to indemnification or, if the Reviewing Party has not made such
determination, within 30 calendar days after the date by which it was required to do so pursuant
to Section
(b)
Suit to Enforce Rights. If (i) payment of indemnification pursuant to
Section
Reviewing Party determines pursuant to Section
indemnification under this Agreement, (iii) Indemnitee has not received advancement of Expenses within
the time period permitted for such advancement by Section
, or (iv) the Company or any other
Person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes
any litigation or other action or Proceeding designed to deny, or to recover from, Indemnitee the benefits
provided or intended to be provided to Indemnitee hereunder, then Indemnitee shall have the right to enforce
the indemnification and advancement rights granted under this Agreement by commencing litigation in any
court of competent jurisdiction in the State of Delaware seeking an initial determination by the court or
challenging any determination by the Reviewing Party or any aspect thereof. The remedy provided for in
this Section
(c)
Defense to Indemnification, Burden of Proof, and Presumptions.
(i)
To the maximum extent permitted by applicable law in making a
determination with respect to entitlement to indemnification hereunder, the Reviewing Party shall
presume that an Indemnitee is entitled to indemnification under this Agreement if Indemnitee has
submitted a request for indemnification in accordance with Section
, and the
Company shall have the burden of proof to overcome that presumption in connection with the
making by the Reviewing Party of any determination contrary to that presumption. Neither the
failure of the Company (including by its directors or Independent Counsel) to have made a
determination prior to the commencement of any action pursuant to this Agreement that
indemnification is proper in the circumstances because Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Company (including by its directors or
Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be
a defense to the action or create a presumption that Indemnitee has not met the applicable standard
of conduct.
(ii)
It shall be a defense to any action brought by Indemnitee against the
Company to enforce this Agreement that it is not permissible under applicable law for the
Company to indemnify or to make an Advance of Expenses to Indemnitee for the amount claimed.
(iii)
For purposes of this Agreement, the termination of any claim, action,
suit, proceeding or matter therein, by judgment, order, settlement (whether with or without court
approval and whether with or without an admission of liability on the part of Indemnitee),
conviction, or upon a plea of nolo contendere or its equivalent, shall not create of itself a
presumption that Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is not permitted by applicable
law.
(iv)
For purposes of any determination under this Agreement, Indemnitee
shall be deemed to have acted in good faith and in a manner such person reasonably believed to
be in or not opposed to the best interests of the Company, or, with respect to any criminal
Proceeding, to have had no reasonable cause to believe Indemnitee’s conduct was unlawful, if
Indemnitee’s action was based on good faith reliance on the records or books of account of the
Company or another enterprise, including financial statements, or on information supplied to
Indemnitee by the directors or officers of the Company or another enterprise in the course of their
duties, or on the advice of legal counsel for the Company or another enterprise or on information
or records given or reports made to the Company or another enterprise by an independent certified
public accountant or by an appraiser or other professional or expert selected with reasonable care
by the Company or another enterprise. The term “another enterprise” as used in this
Section
company, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is
or was serving at the request of the Company as a director, officer, employee, representative or
agent. For purposes of this Agreement, references to “serving at the request of the Company”
shall include any service as a director, officer, employee, representative or agent of the Company
that imposes duties on, or involves services by, such director, officer, employee, representative
or agent with respect to an employee benefit plan, its participants or beneficiaries, and if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be
deemed to have acted in a manner not opposed to the best interests of the Company. The
provisions of this Section
way the other circumstances in which Indemnitee may be deemed to have met the applicable
standard of conduct set forth in this Agreement.
(v)
The knowledge and/or actions, or failure to act, of any director,
officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
5.
Indemnification for Expenses Incurred in Enforcing Rights.
indemnify Indemnitee against any and all Expenses to the fullest extent permitted by law as the same exists
or may hereafter be amended and, if requested by Indemnitee pursuant to the procedures set forth in
Section
, shall advance such Expenses to Indemnitee, that are incurred by Indemnitee in
connection with any claim asserted against or action brought by Indemnitee for:
(a)
interpretation, enforcement or defense of Indemnitee’s rights under this Agreement;
(b)
indemnification of Indemnifiable Costs or payment of Expense Advances by the
Company under this Agreement or any other agreement or under applicable law or the Company’s
Certificate of Incorporation or Bylaws now or hereafter in effect relating to indemnification for
Indemnifiable Events; and/or
(c)
recovery under directors’ and officers’ liability insurance policies maintained by the
Company.
Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement of
Indemnitee to indemnification under this Agreement shall be required to be made prior to the final
disposition of the Proceeding.
6.
Notification and Defense of Proceeding
(a)
Notice. Promptly upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding or matter that may be
subject to indemnification or advancement of Expenses covered hereunder Indemnitee will, if a claim in
respect thereof is to be made against the Company under this Agreement, notify the Company thereof. The
failure to notify or promptly notify the Company shall not relieve the Company from any liability that it
may have to Indemnitee otherwise than under this Agreement, and shall not relieve the Company from
liability hereunder except to the extent the Company has been prejudiced or as further provided in
Section
(b)
Defense. With respect to any Proceeding as to which Indemnitee notifies the
Company of the commencement thereof, the Company will be entitled to participate in the Proceeding at its
own expense and except as otherwise provided below, to the extent the Company so wishes, it may assume
the defense thereof with counsel selected by the Company. After notice from the Company to Indemnitee
of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under
this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the
defense of such Proceeding other than as provided below. Indemnitee shall have the right to employ separate
counsel in such Proceeding, but, notwithstanding any other provision of this Agreement, all Expenses
related thereto incurred after notice from the Company of its assumption of the defense shall be at
Indemnitee’s expense unless: (i) the employment of counsel by Indemnitee has been authorized by the
Company, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between
Indemnitee and the Company in the defense of the Proceeding, (iii) after a Change in Control, the
employment of counsel by Indemnitee has been approved by Independent Counsel, or (iv) the Company
shall not within 60 calendar days in fact have employed counsel to assume the defense of such Proceeding,
in each of which case, all Expenses of the Proceeding shall be borne by the Company. If the Company has
selected counsel to represent Indemnitee and other current and former directors, officers or employees of
the Company in the defense of a Proceeding, and a majority of such persons, including Indemnitee,
reasonably object to such counsel selected by the Company pursuant to the first sentence of this
Section
, then such persons, including Indemnitee, shall be permitted to employ one additional
counsel of their choice and the reasonable fees and expenses of such counsel shall be at the expense of the
Company; provided, however, that such counsel shall be chosen from among the list of counsel, if any,
approved by any company with which the Company obtains or maintains directors and officers insurance.
In the event separate counsel is retained by a group of persons including Indemnitee pursuant to this
Section
, the Company shall cooperate with such counsel with respect to the defense of the
Proceeding, including making documents, witnesses and other reasonable information related to the defense
available to such separate counsel pursuant to joint-defense agreements or confidentiality agreements, as
appropriate. The Company shall not be entitled to assume the defense of any Proceeding brought by or on
behalf of the Company or as to which Indemnitee shall have made the determination provided for in clause
(ii) in the third sentence of this Section
(c)
Settlement of Claims. The Company shall not be liable to indemnify Indemnitee
under this Agreement or otherwise for any amounts paid in settlement of any Proceeding effected without
the Company’s prior written consent. The Company shall not settle any Proceeding in any manner that
would impose upon Indemnitee any penalty, limitation or obligation to repay advanced Expenses without
Indemnitee’s prior written consent. Neither the Company nor Indemnitee will unreasonably withhold,
condition or delay its, his or her consent to any proposed settlement. The Company shall not be liable to
indemnify Indemnitee under this Agreement with regard to any judicial award if the Company was not given
a reasonable and timely opportunity, at its expense, to participate in the defense of such action; provided,
however, that the Company’s liability hereunder shall not be excused if participation in the Proceeding by
the Company was barred by this Agreement.
7.
Non-Exclusivity.
Indemnitee may have under the laws of the State of Delaware, the Company’s Certificate of Incorporation,
the Company’s Bylaws, applicable law, any agreement, a resolution of the Board or otherwise; provided,
however, that in no event will Indemnitee be permitted to receive indemnification or advancement of
expenses more than once for the same Expenses and Indemnifiable Costs. No amendment, alteration or
repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by Indemnitee in Indemnitee’s capacity as a director,
officer, employee or agent of the Company or of any other corporation, limited liability company,
partnership or joint venture, trust or other enterprise that such person is or was serving at the request of the
Company, prior to such amendment, alteration or repeal. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right
or remedy.
8.
Liability Insurance.
providing directors’ or officers’ liability insurance, Indemnitee, if a director or officer of the Company, shall
be covered by such policy or policies, in accordance with its or their terms.
9.
Amendment of this Agreement.
shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions
of this Agreement shall operate as a waiver of any other provisions hereof (regardless of whether similar),
nor shall such waiver constitute a continuing waiver. Except as specifically provided herein, no failure to
exercise or any delay in exercising any right or remedy hereunder shall constitute a waiver thereof.
10.
Subrogation.
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute
all papers required and shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to bring suit to enforce such
rights.
11.
No Duplication of Payments.
make any payment in connection with any claim made against Indemnitee to the extent Indemnitee has
otherwise actually received payment (whether under the Company’s Certificate of Incorporation, the
Company’s Bylaws, any insurance policy, by law, or otherwise) of the amounts otherwise indemnifiable
hereunder.
12.
Duration and Binding Effect.
later of: (a) ten years after the date that Indemnitee shall have ceased to serve as a director, officer or
employee of the Company or at the request of the Company, as a director, officer, employee, agent, or
fiduciary, of another corporation, partnership, joint venture, trust or other enterprise, as applicable, and
(b) one year after the later of (i) the final disposition of any Proceeding then pending in respect of which
Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and (ii) the final
disposition of any proceeding commenced by Indemnitee pursuant to Section
thereto. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors, assigns, including any direct or indirect successor by purchase,
merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company,
spouses, heirs, executors, administrators and personal and legal representatives. The Company shall require
and cause any successor (whether direct or indirect by purchase, merger, consolidation, or otherwise) to all,
substantially all, or a substantial part, of the business and/or assets of the Company, by written agreement
in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to perform if no such
succession had taken place. This Agreement shall continue in effect regardless of whether Indemnitee
continues to serve as a director, officer or employee of the Company or of any other enterprise at the
Company’s request.
13.
Enforcement
.
(d)
The Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve or continue to
serve as a director, officer or employee of the Company, and the Company acknowledges that Indemnitee
is relying upon this Agreement in serving or continuing to serve as a director, officer or employee of the
Company.
(e)
This Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written
and implied, between the parties hereto with respect to the subject matter hereof; provided, however, that
this Agreement is a supplement to and in furtherance of the Company’s Certificate of Incorporation and
Bylaws, any resolutions adopted pursuant thereto and applicable law, and shall not be deemed a substitute
therefor, nor to supersede or otherwise diminish any rights of Indemnitee thereunder.
14.
Severability.
competent jurisdiction to be invalid, void, or otherwise unenforceable, the remaining
provisions shall remain enforceable to the fullest extent permitted by law. Furthermore, to the
fullest extent possible, the provisions of this Agreement (including, without limitation, each
portion of this Agreement containing any provision held to be invalid, void, or otherwise
unenforceable, that is not itself invalid, void, or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, void, or unenforceable.
15.
Governing Law and Consent to Jurisdiction.
construed and enforced in accordance with, the laws of the State of Delaware applicable to
contracts made and to be performed in such State, without giving effect to the principles of
conflicts of laws. The Company and Indemnitee hereby irrevocably and unconditionally (i)
agree that any action or proceeding arising out of or in connection with this Agreement shall be
brought only in the Court of Chancery of the State of Delaware (the “Delaware Court”), and
not in any other state or federal court in the United States of America or any court in any other
country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes
of any action or proceeding arising out of or in connection with this Agreement, (iii) waive any
objection to the laying of venue of any such action or proceeding in the Delaware Court, and
(iv) waive, and agree not to plead or to make, any claim that any such action or proceeding
brought in the Delaware Court has been brought in an improper or inconvenient forum.
16.
Notices
.
given pursuant to the terms of this Agreement must be in writing and will be deemed to have
been duly given: (a) on the date of delivery, if personally delivered by hand; (b) upon the date
scheduled for delivery, if such notice is sent by a nationally recognized overnight-express
courier or (c) upon written confirmation of receipt by the recipient of such notice (including
any automatic confirmation that is received), if transmitted by electronic mail:
To the Company at:
Cal-Maine Foods, Inc.
1052 Highland Colony Pkwy
Suite 200
Ridgeland, MS 39157
Attention: Sherman Miller, President and CEO
With a copy to the same address:
Attention: Rob Holladay, Vice President and General Counsel
Email: [email protected]
and
To Indemnitee at:
[NAME]
[ADDRESS]
[ADDRESS]
[EMAIL ADDRESS]
Notice of change of address shall be effective only when done in accordance with this Section
[Signature Page Follows; Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF,
of the day specified above.
COMPANY:
CAL-MAINE FOODS, INC.,
a Delaware corporation
By:______________________________________
Name:
Title:
INDEMNITEE:
______________________________________
[NAME]
EXHIBIT A
REQUEST AND UNDERTAKING
Cal-Maine Foods, Inc.
[ADDRESS]
[ADDRESS]
Attn: [TITLE]
To Whom It May Concern:
I request, pursuant to Section
“Indemnification Agreement”), between Cal-Maine Foods, Inc. (the “Company”) and me, that the Company
advance Expenses (as such term is defined in the Indemnification Agreement) incurred in connection with
[describe Proceeding] (the “Proceeding”). I have attached an itemization, in reasonable detail, of the
Expenses for which advancement is sought.
I undertake and agree to repay to the Company any funds advanced to me or paid on my behalf if it shall
ultimately be determined that I am not entitled to indemnification. I shall make any such repayment
promptly following written notice of any such determination.
__________________________________
[Name]
Date: _________________
AMENDMENT NO. 1
to the
AMENDED AND RESTATED CAL-MAINE FOODS, INC. 2012 OMNIBUS
LONG-TERM INCENTIVE PLAN
This Amendment No. 1, effective March 25, 2025 (the “Amendment Date”), amends the Amended
and Restated Cal-Maine Foods, Inc. 2012 Omnibus Long-Term Incentive Plan (the “Plan”), which Plan was
adopted by the Board of Directors (the “Board”) of Cal-Maine Foods, Inc. (the “Company”) and approved
by the Company’s stockholders on October 2, 2020. Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed thereto in the Plan.
ARTICLE I
AMENDMENTS
The Plan is hereby amended as follows as of the Amendment Date to designate the Compensation
Committee of the Board as the administrator of the Plan:
1. Section 2.8 is amended and restated in its entirety as follows:
“2.8 “
Committee
” means the Compensation Committee of the Board, as further described
in Article 3.”
2. Section 3.1 is amended and restated in its entirety as follows:
“3.1
Committee Composition
. The Committee shall administer the Plan. The Committee
shall consist of at least two or more members of the Board, who shall be appointed by the
Board. In addition, each member of the Committee shall meet the following requirements:
Company's equity securities are traded;
for administrators acting under plans in order for awards under such plans to qualify for the
exemption under Rule 16b-3 (or its successor) under the Exchange Act; and
ARTICLE II
GENERAL
Except as expressly set forth in Article I, this Amendment No. 1 does not by implication or otherwise alter,
modify, amend or in any way affect any of the other terms, conditions, obligations, covenants or agreements
contained in the Plan, all of which are ratified and affirmed in all respects and will continue in full force and
effect.
* * * * * * *
Inc. 2012 Omnibus Long-Term Incentive Plan was duly approved by the Board of Directors of Cal-Maine
Foods, Inc. on March 25, 2025.
th
Vice President – Chief Financial Officer, Treasurer,
and Secretary