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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
Date of Report (Date of Earliest Event Reported):
March 25, 2025
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 On March 7, 2025, Cal-Maine Foods, Inc. (“Cal-Maine Foods,” the “Company,” “we,” “us” or “our”) filed a definitive
Act.
☐
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Explanatory Note
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 Cal-Maine Foods, Inc. (the “Corporation”), a corporation organized and existing under and pursuant
EX-3.1 5 exhibit31.htm EX-3.1 exhibit31
 
 
 
 
 
 
 
 
THIRD AMENDED AND RESTATED
CERTIFICATE
 
OF INCORPORATION
OF
CAL-MAINE FOODS, INC.
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 limitations or restrictions thereof, if any, of any wholly unissued series of Preferred Stock, including, without
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,
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 disparate dividend or distribution per share of Common Stock or Class A Common Stock (whether in the
 
 
Class A
 
Common
 
Stock,
 
as
 
applicable.
 
Notwithstanding
 
the
 
foregoing,
 
the
 
Board
 
may
 
pay
 
or
 
make
 
a
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 (s) At such time as less than 4,300,000 shares of Class A Common Stock, or less than 4,600,000
documents contemplated thereby.
 
 
 
 
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 IN WITNESS WHEREOF, this Third Amended and Restated Certificate of Incorporation has been
or impaired thereby.
 
signed by a duly authorized officer of the Corporation, as of the 27
th
 
day of March, 2025.
/s/ Sherman L. Miller________________________
Sherman L. Miller
President – Chief Executive Officer
 
EX-3.2 6 exhibit32.htm EX-3.2 exhibit32
 
 
 
 
 
 
 
 
 
 
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 thereof and that may be directly reproduced in paper form by such a recipient through an automated process.
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
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 decided by the affirmative vote of the holders of a majority of the voting power of
of
 
stockholders
 
of
 
the
 
Corporation,
 
other
 
than
 
the
 
election
 
of
 
directors,
 
shall
 
be
 
 
 
 
 
 
 
 
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 health and security; (k) procedures (if any) requiring attendees to provide the Corporation advance notice
 
 
 
 
 
 
 
 
 
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,
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, Secretary, and, in the case of business other than nominations, such business must be
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
 
 
 
 
 
 
 
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 as to any other business that such Noticing Party proposes to bring before the
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)
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 voting power of such Noticing Party or any Stockholder Associated
 
securities
 
of
 
the
 
Corporation,
 
or
 
maintain,
 
increase
 
or
 
decrease
 
the
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
 
basis by all
 
other
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 owns an interest in the manager or managing member of such limited
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
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 stockholder of the Corporation; and
 
 
 
 
 
the
 
Corporation,
 
if
 
such
 
Stockholder
 
Associated
 
Person
 
is
 
a
(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 nomination of any Proposed Nominee or proposed business to be considered
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
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 requirements of Rule 14a-19(a)(2) or Rule 14a-19(a)(3) under the Exchange
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
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; calendar day, whether or not the day is a business day;
 
 
 
 
 
 
(C)
“Close
 
of
 
Business”
 
shall
 
mean
 
5:00 p.m. Eastern
 
Time
 
on
 
any
(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 position of Lead Independent Director, and may appoint a Lead Independent Director for a specified term,
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
 
 
 
 
 
 
 
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.
EX-99.1 7 exhibit991.htm EX-99.1 exhibit991
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
 
N.A. (formerly
known as BMO Harris Bank N.A.), as administrative agent (the “
Administrative Agent
”).
P
RELIMINARY
S
TATEMENTS
 
A.
 
The
 
Borrower,
 
Lenders
 
and
 
the
 
Administrative
 
Agent
 
previously
 
entered
 
into
 
a
 
certain
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.
 
B.
 
The Borrower and
 
the Lenders have
 
agreed to amend
 
the Credit Agreement
 
on the terms
 
and
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
 
1.
 
A
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:
 
1.1.
 
All
 
references
 
to
 
“BMO
 
Harris
 
Bank
 
N.A.”
 
in
 
the
 
Credit
 
Agreement
 
and
 
the
 
other
 
Loan
Documents are hereby
 
replaced with
 
references to “BMO
 
Bank N.A. (formerly
 
known as BMO
 
Harris Bank
N.A.)”.
 
1.2.
 
The
 
definition
 
of
 
“Change
 
of
 
Control”
 
in
 
Section
 
1.1
 
of
 
the
 
Credit
 
Agreement
 
is
 
hereby
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.
 
 
1.3.
 
The following new defined
 
terms are hereby added
 
to Section 1.1 of
 
the Credit Agreement in
the appropriate alphabetical order to read as follows:
 
 
“Conversion”
 
means
 
the date
 
upon which
 
all
 
Class A
 
Shares
 
(as
 
defined in
 
the 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.
 
“Conversion
 
Agreement”
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.
 
1.4.
 
Schedule
 
6.2 to
 
the Credit
 
Agreement shall
 
be and
 
hereby
 
is amended,
 
effective
 
as of
 
the
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:
 
2.1.
 
The Borrower, Administrative Agent and Lenders shall have executed and delivered
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
.
 
4.1.
 
Each Loan Party heretofore executed and delivered to the Administrative Agent the Collateral
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.
 
4.2.
 
Except as
 
specifically amended
 
herein, the
 
Credit Agreement
 
and the
 
other Loan
 
Documents
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.
 
4.3.
 
The
 
Borrower
 
agrees
 
to
 
pay
 
on
 
demand
 
all
 
costs
 
and
 
expenses
 
of
 
or
 
incurred
 
by
 
the
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.
 
4.4.
 
This Amendment may be executed in any number of counterparts, and by the different
 
parties
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
 
______________________
 
 
Name: Max Bowman __________________
 
 
Title: VP-CFO
 
_______________________
 
“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 __________________
 
 
Name: David J. Bechstein
 
Title: Director
 
“L
ENDERS
”
BMO
B
ANK
N.A.
(formerly known as BMO Harris Bank
N.A.)
By: /s/ David J. Bechstein
 
_________________
 
 
Name: David J. Bechstein
 
Title: Director
G
REEN
S
TONE
F
ARM
C
REDIT
S
ERVICES
,
ACA
By /s/ Curtis Flammini ____________________
 
 
Name Curtis Flammini
 
__________________
 
 
Title VP Capital Markets Lending
 
_________
 
 
A
G
F
IRST
F
ARM
C
REDIT
B
ANK
By /s/ Creighton Culvern __________________
 
 
Name Creighton Culvern
 
________________
 
 
Title AVP ____________________________
 
C
OMPEER
F
INANCIAL
,
ACA
By /s/ Jeremy Voigts
 
_____________________
 
 
Name Jeremy Voigts
 
___________________
 
 
Title Director, Capital Markets
 
___________
 
F
ARM
C
REDIT
B
ANK OF
T
EXAS
By /s/ Katrina Lange
 
______________________
 
 
Name Katrina Lange
 
___________________
 
 
Title VP Director Capital Markets
 
_________
 
 
Exhibit A
 
S
CHEDULE
 
6.2
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%
EX-99.2 8 exhibit992.htm EX-99.2 exhibit992
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
INDEMNIFICATION AGREEMENT
THIS
 
INDEMNIFICATION AGREEMENT
 
(this
 
“Agreement”)
 
is
 
entered
 
into,
 
effective
 
as
 
of
March 25, 2025, between
 
Cal-Maine Foods, Inc.,
 
a Delaware corporation
 
(the “Company”), and
 
[NAME]
(“Indemnitee”).
WHEREAS,
 
it
 
is
 
essential
 
to
 
the
 
Company
 
to
 
retain
 
and
 
attract
 
as
 
directors,
 
officers
 
and
 
key
employees the most capable persons available;
WHEREAS,
 
Indemnitee is a director, officer or key employee of the Company;
WHEREAS,
 
both
 
the
 
Company
 
and
 
Indemnitee
 
recognize
 
the
 
risk
 
of
 
litigation
 
and
 
other
 
claims
being asserted against directors, officers and key employees of corporations;
WHEREAS,
 
in recognition of
 
Indemnitee’s need for
 
substantial protection against
 
personal liability
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,
 
this
 
Agreement
 
is
 
intended
 
to
 
be
 
supplemental
 
to
 
and
 
in
 
furtherance
 
of
 
the
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,
 
in
 
consideration
 
of
 
the
 
above
 
premises
 
and
 
of
 
Indemnitee’s
 
service
 
or
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
 
of
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 individuals who were members of the Incumbent Board will constitute at least
 
 
 
 
 
(C)
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
,
 
or
 
of this Agreement.
(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 Proceeding: Any action, suit or proceeding, whether civil, criminal, administrative
hereto.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(h)
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
 
to indemnify Indemnitee
 
shall be subject
 
to
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
 
shall not
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 under any insurance policy or other indemnity provision, except with respect to any excess
 
 
 
 
 
 
 
 
(ii)
for
 
which
 
payment
 
has
 
actually
 
been
 
made
 
to
 
or
 
on
 
behalf
 
of
 
Indemnitee
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 determination, within 30 calendar days after the date by which it was required to do so pursuant
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
 
to Section
 
of this Agreement.
(b)
Suit
 
to
 
Enforce
 
Rights.
 
If
 
(i) payment
 
of
 
indemnification
 
pursuant
 
to
Section
 
is not made
 
within the period
 
permitted for such
 
payment by such
 
section, (ii) the
Reviewing
 
Party
 
determines
 
pursuant
 
to
 
Section
 
that
 
Indemnitee
 
is
 
not
 
entitled
 
to
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
 
shall be in addition to any other remedies available to Indemnitee in law or equity.
(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
 
shall
 
mean
 
any
 
other
 
corporation
 
or
 
any
 
partnership,
 
limited
 
liability
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
 
shall not be deemed
 
to be exclusive or
 
to limit in any
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.
 
The
 
Company
 
shall
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 Company of the commencement thereof, the Company will be entitled to participate in the Proceeding at its
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
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.
 
The
 
rights
 
of
 
Indemnitee
 
hereunder
 
shall
 
be
 
in
 
addition
 
to
 
any
 
other
 
rights
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 remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right
Company,
 
prior
 
to
 
such
 
amendment,
 
alteration
 
or
 
repeal.
 
The
 
assertion
 
or
 
employment
 
of
 
any
 
right
 
or
 
 
 
 
 
 
 
 
 
 
 
 
or remedy.
8.
Liability
 
Insurance.
 
To
 
the
 
extent
 
the
 
Company
 
maintains
 
an
 
insurance
 
policy
 
or
 
policies
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.
 
No supplement,
 
modification, or
 
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.
 
In
 
the
 
event
 
of
 
payment
 
under
 
this
 
Agreement,
 
the
 
Company
 
shall
 
be
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.
 
The Company
 
shall not
 
be liable
 
under this
 
Agreement to
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.
 
This Agreement shall continue until and terminate upon the
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
 
of this Agreement relating
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 respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written
Company.
 
 
 
 
 
 
 
 
 
(e)
This
 
Agreement
 
constitutes
 
the
 
entire
 
agreement
 
between
 
the
 
parties
 
hereto
 
with
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.
 
If any provision (or portion thereof) of this Agreement shall be held by a court of
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.
 
This Agreement shall be governed by, and
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
.
 
All notices, requests, demands or other communications that are required or may be
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 Notice of change of address shall be effective only when done in accordance with this Section
Email:
 
rholladay@cmfoods.com
and
To Indemnitee at:
[NAME]
[ADDRESS]
[ADDRESS]
[EMAIL
 
ADDRESS]
[Signature Page Follows; Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF,
 
the parties hereto have duly executed and delivered this Agreement as
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
 
of
 
the
 
Indemnification Agreement,
 
dated
 
as
 
of
 
[●], 2025
 
(the
“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:
 
_________________
EX-99.3 9 exhibit993.htm EX-99.3 exhibit993
 
 
 
 
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:
 
(a)
 
Any listing standards prescribed
 
by the principal securities
 
market on which the
Company's equity securities are traded;
 
(b)
 
Such requirements
 
as the
 
Securities and
 
Exchange Commission
 
may establish
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
 
(c)
 
Any other requirements imposed by applicable law, regulations or rules.
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.
* * * * * * *
 
I hereby certify
 
that the foregoing
 
Amendment No. 1
 
to Amended and
 
Restated Cal-Maine Foods,
Inc. 2012 Omnibus Long-Term
 
Incentive Plan was duly approved
 
by the Board of
 
Directors of Cal-Maine
Foods, Inc. on March 25, 2025.
 
 
Executed on this 25
th
 
day of March, 2025.
 
/s/ Max Bowman
 
 
Max P.
 
Bowman
Vice
 
President
 
–
 
Chief
 
Financial
 
Officer,
 
Treasurer,
and Secretary