8-K
Cal-Maine Foods Inc (CALM)
View as plain text
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported):
October 4, 2024
Cal-Maine Foods, Inc.
(Exact name of registrant as specified in its charter)
Delaware
001-38695
64-0500378
(State or other jurisdiction of
incorporation)
(Commission File Number)
(IRS Employer Identification No.)
1052 Highland Colony Pkwy
,
Suite 200
,
Ridgeland
,
MS
39157
(Address of principal executive offices (zip code))
601
-
948-6813
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the
registrant under any of the following provisions (see General Instruction A.2 below):
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the
Act:
Title of each class
Trading
Symbol(s)
Name of each exchange on which registered
Common Stock, $0.01 par value per share
CALM
The
NASDAQ
Global Select Market
Indicate by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of
1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
☐
If an emerging growth company, indicate by check mark if the registrant has elected not
to use the extended transition period
for complying with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange
Act.
☐
Item 5.07.
Submission of Matters to a Vote of Security Holders.
The Company’s Annual
Meeting of Stockholders was held on October 4, 2024 (the “Annual Meeting”).
Proposal No. 1: Election of Directors.
The following persons were nominated and elected to serve as members of the Board of
Directors until our next annual meeting of stockholders and until their successors
are elected and qualified.
Nominees for the Board of Directors of the Company:
Names
Votes
For
Votes
Withheld
Non-Votes
Adolphus B. Baker
68,050,669
17,292,145
3,058,159
Max P. Bowman
71,605,168
13,737,646
3,058,159
Letitia C. Hughes
71,743,606
13,599,208
3,058,159
Sherman L. Miller
74,003,234
11,339,580
3,058,159
James E. Poole
70,370,045
14,972,769
3,058,159
Steve W. Sanders
73,600,695
11,742,119
3,058,159
Camille S. Young
73,632,949
11,709,865
3,058,159
Proposal No. 2: Ratification
of the selection of Frost,
PLLC as the independent registered
public accounting firm for
the
Company for fiscal 2025.
The Company’s stockholders approved
the proposal by the following vote:
Votes
For
Votes
Against
Abstentions
Non-Votes
88,158,964
179,260
62,749
N/A
Proposal
No.
3:
Approval
of
an
amendment
to
our
Second
Amended
and
Restated
Certificate
of
Incorporation.
The
Company’s stockholders
approved the proposal by the following vote:
Votes
For
Votes
Against
Abstentions
Non-Votes
65,710,702
19,551,796
80,316
3,058,159
Item 8.01.
Other Events.
At the Annual Meeting, the Company’s
stockholders approved an amendment to the Company’s
Second Amended and Restated
Certificate of
Incorporation (the
“Certificate of
Incorporation”) to
provide for
the exculpation
of officers
pursuant to
Delaware
law,
as described
in the
Company’s
proxy statement
for the
Annual Meeting.
Accordingly,
on October
4, 2024,
the Company
filed
a
certificate
of
amendment
to
its Certificate
of
Incorporation
with
the
Delaware
Secretary
of
State,
and
the
amendment
became
effective
on
the date
of
filing.
The
foregoing
description
of
the amendment
to the
Certificate
of
Incorporation
is not
intended to be complete and is qualified in its entirety by reference to the Company’s Composite Second Amended
and Restated
Certificate of Incorporation, a copy of which is attached hereto as Exhibit
3.1.
Item 9.01.
Financial Statements and Exhibits.
(d)
Exhibits
Exhibit
Number
Description
3.1
Composite Second Amended and Restated Certificate of Incorporation of Cal-Maine Foods Inc., as
amended through October 4, 2024
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:
October 4, 2024
By:
/s/ Max P. Bowman
Max P. Bowman
Director, Vice President, and Chief Financial Officer
exhibit31
Exhibit 3.1
COMPOSITE
SECOND AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
CAL-MAINE FOODS, INC.
(as amended through October 4, 2024)
Cal-Maine Foods, Inc., a corporation organized and existing under and pursuant to the provisions
of the General Corporation Law of the State of Delaware (the “Corporation”), 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.
SECOND
:
This Second Amended and Restated Certificate of Incorporation was duly adopted in
accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware.
THIRD
:
This Second 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 Amended and Restated
Certificate of Incorporation, as amended, of the Corporation by revising such document in its entirety as
follows:
1.
The name of the Corporation is CAL-MAINE FOODS, INC.
2.
The name of its registered agent is The Corporation Trust Company.
The address of such
registered office in the State of Delaware is Corporation Trust Center,
1209 Orange Street, Wilmington,
Delaware 19801, in the County of New Castle.
3.
The nature of the business or purposes to be conducted or promoted is:
To raise, produce, or otherwise acquire, invest in, own, hold, use, mortgage, pledge, sell,
assign, transfer, or otherwise dispose of, trade, deal in and deal with any and all kinds of animals
and agricultural products, and manufacture, produce, purchase, or otherwise acquire, invest in,
own, mortgage, pledge, sell, assign, transfer, or otherwise dispose of, deal in, and deal with any
and all articles or things manufactured, produced, resulting, or derived in whole or in part from
animals or agricultural products of any kind, whether to be used as food or in commerce,
manufacture, the sciences, the arts or otherwise.
To engage in any lawful act or activity for which corporations may be organized
under the
General Corporation Law of Delaware.
To manufacture, purchase or otherwise acquire, invest in, own, mortgage, pledge, sell,
assign and transfer or otherwise dispose of, trade, deal in and deal with goods, wares and
merchandise and personal property of every class and description.
To acquire, and pay for in cash, stock or bonds of this Corporation or otherwise, the good
will, rights, assets and property, and to undertake or assume the whole or any part of the
obligations or liabilities of any person, firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise
dispose of letters patent of the United States or any foreign country, patent rights, licenses and
privileges, inventions, improvements and processes, copyrights, trademarks and trade names,
relating to or useful in connection with any business of this Corporation.
To acquire by purchase, subscription or otherwise, and to receive, hold, own, guarantee,
sell, assign, exchange, transfer, mortgage, pledge or otherwise dispose of or deal in and with any of
the shares of the capital stock, or any voting trust certificates in respect of the shares of capital
stock, scrip, warrants, rights, bonds, debentures, notes, trust receipts, and other securities,
obligations, choses in action and evidences of indebtedness or interest issued or created by an
corporations, joint stock companies, syndicates, associations, firms, trusts or persons, public or
private, or by the government of the United States of America, or by any foreign government, or
by any state, territory, province, municipality or other political subdivision or by any governmental
agency, and as owner thereof to possess and exercise all the rights, powers and privilege of
ownership, including the right to execute consents and vote thereon, and to do any and all acts and
things necessary or advisable of the preservation, protection, improvement and enhancement in
value thereof.
To borrow or raise moneys for any of the purposes of the Corporation and, from time to
time without limit as to amount, to draw, make, accept, endorse, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds, debentures and other negotiable or non-negotiable
instruments and evidences of indebtedness, and to secure the payment of any thereof and of the
interest thereon by mortgage upon or pledge, conveyance or assignment in trust of the whole or
any part of the property of the Corporation, whether at the time owned or thereafter acquired, and
to sell, pledge or otherwise dispose of such bonds or other obligations of the Corporation for its
corporate purposes.
To purchase, receive, take by grant, gift, devise, bequest or otherwise, lease, or otherwise
acquire, own, hold, improve, employ, use and otherwise deal in and with real or personal property,
or any interest therein, wherever situated, and to sell, convey, lease, exchange, transfer or
otherwise dispose of, or mortgage or pledge, all or any of the Corporation's property and assets, or
any interest therein, wherever situated.
In general, to possess and exercise all the powers and privileges granted by the General
Corporation Law of Delaware or by any other law of Delaware or by this Second Amended and
Restated Certificate of Incorporation together with any powers incidental thereto, so far as such
powers and privileges are necessary or convenient to the conduct, promotion or attainment of the
business or purposes of the Corporation.
The business and purposes specified in the foregoing clauses shall, except where otherwise
expressed, be in no wise limited or restricted by reference to, or inference from, the terms of any
other clause in this Certificate of Incorporation, but the business and purposes specified in each of
the foregoing clauses of this article shall be regarded as independent business and purposes.
4.
The amount of capital stock which the Corporation is authorized to issue shall be
124,800,000 shares of Capital Stock and shall consist of (a) 120,000,000 shares of Common Stock with a
par value of One Cent ($.01) per share and (b) 4,800,000 shares of Class A Common Stock with a par
value of One Cent ($.01) per share.
No holder of Capital Stock of the Corporation shall have any pre-emptive right to subscribe
to any stock of the Corporation or to any security convertible into stock of the Corporation.
The designations, preferences, privileges, and voting powers of the aforesaid classes of
stock of the Corporation and the restrictions, limitations, and qualifications thereof are as follows:
COMMON STOCK
At all elections of directors of the Corporation, each holder of the Common Stock shall be
entitled to as many votes as shall equal the number of votes which (except for such provisions as to
cumulative voting) he would be entitled to cast for the election of directors with respect to his
shares of stock multiplied by the number of directors to be elected, and he may cast all of such
votes for a single director or may distribute them among the number to be voted for, or for any two
or more of them as he may see fit.
Except for the right of cumulative voting in relation to the election of directors as set forth
above, the holders of the Common Stock shall be entitled to one vote per share of Common Stock.
Except as otherwise provided herein or required by law, the Common Stock and the Class
A Common Stock of the Corporation of the par value of one cent ($.01) referred to under “Class A
Common Stock” below (the “Class A Common Stock”) shall together vote as a class provided 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.
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.
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.
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 of Directors of the Corporation 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 of Directors of
the Corporation 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.
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.
Upon the dissolution, liquidation or winding up of the corporation, whether voluntary or
involuntary, holders of Common Stock and Class A Common Stock will be entitled to receive
ratably all assets of the Corporation available for distribution to its stockholders 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.
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.
CLASS A COMMON STOCK
At all elections of directors of the Corporation, each holder of the Class A Common Stock
shall be entitled to as many votes as shall equal the number of votes which, except for such
provisions as to cumulative voting, he would be entitled to cast for the election of directions with
respect to his shares of stock multiplied by the number of directors to be elected and he may cast
all of such votes for a single director or may distribute them among the number to be voted for, or
for any two or more of them as he sees fit.
Except for the right of cumulative voting in relation to the election of directors as set forth
above, 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 shareholders.
Except as otherwise provided herein or required by law, the Common Stock and the Class
A Common Stock shall together vote as a class provided 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.
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.
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.
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.
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 of Directors of the Corporation 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.
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.
The Class A Common Stock may be issued only to Fred R. Adams, Jr., his Immediate
Family Members and any Permitted Transferee.
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.
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 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, provided that 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, 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 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, provided that 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, 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 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.
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 that granting a proxy to officers or directors of the Corporation at the
request of the Board of Directors of the Corporation in connection with actions to be taken at an
annual or special meeting of stockholder shall not be considered a “transfer”.
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.
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.
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.
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.
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.
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.
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% per cent 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 paragraph 4 affecting the Class A Common
Stock or (3) effect any re-classification or re-capitalization of the Corporation’s outstanding capital
stock.
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 of Directors of
the Corporation shall determine to be adequate, including without limitation, shares of the
Corporation’s Common Stock on a share for share basis.
GENERAL
5.
The Corporation is to have perpetual existence.
6.
In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors of the Corporation is expressly authorized:
To make, alter or repeal the by-laws of the Corporation.
To authorize and cause to be executed mortgages and liens upon the real and personal
property of the Corporation.
To set apart out of any of the funds of the Corporation available for dividends a reserve or
reserves for any proper purposes and to abolish any such reserve in the manner in which it was
created.
7.
Whenever a compromise or arrangement is proposed between this Corporation and its
creditors or any class of them and/or between this Corporation and its stockholders or any class of them,
any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way
of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or
receivers appointed for this Corporation under § 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for this Corporation under § 279 of Title
8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree
to any compromise or arrangement and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if
sanctioned by the court to which the said application has been made, be binding on all the creditors or
class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
8.
Meetings of stockholders may be held within or without the State of Delaware, as the by-
laws may provide. The books of the Corporation may be kept (subject to any provision contained in the
statutes) outside the State of Delaware at such place or places as may be designated from time to time by
the Board of Directors or in the by-laws of the Corporation. Elections of directors need not be by written
ballot unless the by-laws of the Corporation shall so provide.
9.
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 statute, and all
rights conferred upon stockholders herein are granted subject to this reservation.
10.
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,
respectively; provided, however, that this section shall not eliminate or limit liability (i) for any breach of
a director’s or officer’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of law, (iii) of a director
under Section 174 of the General Corporation Law of the State of Delaware, (iv) for any transaction from
which the director or officer derived an improper personal benefit, or (v) of an officer in any action by or
in the right of the Corporation. The limitation of liability shall not eliminate or limit the liability of any
director or officer for any act or omission occurring prior to the date upon which this provision became
effective with respect to such director or officer, respectively.