AGREEMENT REGARDING CONVERSION

 
 
 
 
 
 
 
 
 
 
 
 
 
This AGREEMENT
 
REGARDING CONVERSION (this “Agreement”)
 
is made and entered
 
into as
of
 
February 25, 2025,
 
among
 
Cal-Maine
 
Foods,
 
Inc.,
 
a
 
Delaware
 
corporation
 
(the
 
“Company”),
 
DLNL,
LLC, a
 
Delaware limited
 
liability company
 
(“Daughters’
 
LLC”), and
 
each member
 
of Daughters’
 
LLC (each
a “Member” and, collectively with Daughters’ LLC, the “Stockholder Parties”).
RECITALS
WHEREAS, Daughters’ LLC was formed to
 
invest in shares
 
of Class A Common Stock, par
 
value
$0.01 per
 
share (“Class A
 
Shares”), and
 
shares
 
of Common
 
Stock, par
 
value $0.01
 
per share
 
(“Common
Shares”), of the Company;
WHEREAS, effective as of July 20, 2018, the
 
initial owners of membership interests in Daughters’
LLC entered into the Limited
 
Liability Company Operating Agreement for Daughters’ LLC (the “Existing
Daughters’ LLC Operating
 
Agreement”);
WHEREAS, the Company’s issued and
 
outstanding capital stock consists of:
 
(a) Common Shares,
which are
 
publicly traded
 
on the
 
NASDAQ stock
 
exchange under
 
the symbol
 
“CALM,” and
 
(b) Class A
Shares, which are privately held and not publicly traded, but are convertible
 
on a share-for-share basis into
Common Shares
 
at any
 
time at
 
the option
 
of the
 
holder
 
thereof and
 
automatically
 
convert into
 
Common
Shares
 
under
 
certain
 
circumstances
 
set
 
forth
 
in
 
the
 
Company’s
 
existing
 
Second Amended
 
and
 
Restated
Certificate of Incorporation,
 
as amended (the
 
“Current Charter”), including
 
upon transfer to
 
persons other
than Immediate Family Members or Permitted Transferees as defined in the Current Charter;
WHEREAS, pursuant
 
to the
 
Current Charter,
 
except as
 
required by
 
law or
 
the Current
 
Charter, (a) the
Common Shares and Class A
 
Common Shares vote together as a class, with
 
the holders of Common Shares
having one
 
vote per
 
share and
 
the holders
 
of Class A Shares
 
having ten
 
votes per
 
share on
 
all matters
 
on
which such shares
 
are entitled
 
to vote, and
 
(b) except for
 
such conversion and
 
voting rights,
 
the Common
Shares and Class A Shares have substantially similar rights, powers and privileges;
WHEREAS,
 
Daughters’ LLC
 
is
 
the
 
record
 
owner
 
of
 
(a) 4,800,000 Class A
 
Shares,
 
representing
100% of the outstanding Class A Shares, and (b) 1,087,956 Common Shares;
WHEREAS,
 
the
 
Class A
 
Shares
 
currently
 
represent
 
over
 
50%
 
of
 
the
 
total
 
voting
 
power
 
of
 
the
outstanding
 
shares
 
of
 
the
 
Company
 
in
 
the
 
election
 
of
 
directors
 
and
 
matters
 
other
 
than
 
the
 
election
 
of
directors, and the Company is
 
a “controlled company” pursuant to
 
the rules of the NASDAQ
 
Stock Market;
WHEREAS, the Members
 
(and/or their respective
 
predecessors-in-interest) formed Daughters’
 
LLC
and entered into the
 
Existing Daughters’ LLC Operating Agreement to permit the Members
 
(together with
their
 
Permitted Transferees,
 
as
 
defined in
 
the
 
Current
 
Charter)
 
to
 
continue
 
to
 
own and
 
retain,
 
directly
 
or
indirectly, Common
 
Shares and
 
Class A Shares sufficient
 
to maintain
 
control of
 
the Company,
 
in order
 
to
provide for the long-term, stable and consistent ownership and governance of the Company;
WHEREAS, the Members have
 
expressed to the Company’s
 
Board of Directors (the
 
“Board”) that
the
 
Members
 
are
 
potentially
 
interested
 
in
 
diversifying
 
their
 
respective
 
financial
 
portfolios,
 
including
 
the
potential sale of all or a portion
 
of the Common Shares owned by Daughters’
 
LLC and the Common Shares
underlying the Class A Shares owned by Daughters’
 
LLC (the “Potential Portfolio Diversification”);
WHEREAS, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the Company’s Chairman
 
of the Board, is the
 
Managing Member
of Daughters’ LLC, and the other Members of Daughters’
 
LLC are ▇▇. ▇▇▇▇▇’▇ wife and her three sisters;
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
WHEREAS, because
 
▇▇. ▇▇▇▇▇ has
 
an interest
 
in the
 
matters provided
 
for in
 
this Agreement, the
Board
 
has
 
authorized
 
an
 
ad
 
hoc
 
committee
 
(the
 
“Special
 
Committee”),
 
consisting
 
solely
 
of
 
disinterested
Independent Directors
 
(as defined
 
in Section 3.1),
 
to consider
 
what corporate
 
actions, if
 
any, should
 
be taken
to address the impact of the Potential Portfolio Diversification on the Company and its stockholders;
WHEREAS, the Special Committee considered and determined, among other
 
things, that it is in the
best interests of
 
the Company and
 
its stockholders for
 
the Company to
 
facilitate the sale
 
of shares (including
Common Shares underlying
 
the Class A
 
Common Stock) and
 
manage the loss
 
of controlled company
 
status,
in each case, in an orderly manner in compliance with legal requirements;
WHEREAS, on February 24, 2025,
 
the Special Committee
 
unanimously recommended to
 
the Board
that the Company, the Members and Daughters’
 
LLC enter into this Agreement to implement the following
corporate actions
 
to address
 
the impact
 
of the
 
Potential Portfolio
 
Diversification on
 
the Company
 
and its
stockholders:
 
(a) amending and
 
restating the
 
Current Charter,
 
(b) amending and
 
restating the
 
Company’s
Bylaws (the “Bylaws”), and (c) effective
 
upon the conversion by
 
Daughters’
 
LLC of all Class A
 
Shares into
Common Shares,
 
granting to
 
the Members
 
certain rights
 
to cause
 
the sale
 
or transfer
 
of Common
 
Shares
owned by Daughters’
 
LLC or such Members to be registered under the Securities Act of 1933, as amended
(the “Securities Act”), in accordance with the registration rights set
 
forth in Exhibit A, in each case,
 
on the
terms and subject to the conditions set forth herein; and
WHEREAS, on February 25, 2025, the Board of Directors of the Company (taking into account the
recommendation of the Special
 
Committee) approved the Company’s
 
execution of this Agreement and the
actions
 
and
 
the
 
Company’s
 
performance
 
of
 
the
 
transactions
 
contemplated
 
hereby,
 
which
 
approval
 
was
unanimous, with the sole
 
exception being that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
recused himself with respect
 
to the vote
to approve the execution of this Agreement;
NOW, THEREFORE, in consideration of the foregoing
 
and the mutual representations, warranties,
covenants and agreements set forth in this Agreement, the parties agree as follows:
ARTICLE I
MODIFICATIONS TO THE COMPANY’S ORGANI
Z
ATIONAL DOCUMENTS
1.1
Restated Charter
(a)
 
The
 
Board
 
has
 
approved
 
(i) the
 
Third
 
Amended
 
and
 
Restated
 
Certificate
 
of
Incorporation
 
of
 
the
 
Company
 
substantially
 
in
 
the
 
form
 
attached
 
to
 
this
 
Agreement
 
as
 
Exhibit B
 
(the
“Restated
 
Charter”),
 
and
 
(ii) the
 
submission
 
of
 
the
 
Restated
 
Charter
 
to
 
Daughters’ LLC
 
for
 
approval
 
by
majority
 
written
 
consent
 
of
 
stockholders
 
in
 
accordance
 
with
 
the
 
Current
 
Charter
 
and
 
Section 228
 
of
 
the
Delaware General Corporation Law (the “DGCL”).
(b)
 
Promptly following
 
the execution
 
and delivery
 
of this Agreement,
 
Daughters’ LLC
agrees to execute and deliver
 
to the Company the majority
 
written consent of stockholders substantially
 
in
the form attached to
 
this Agreement
 
as Exhibit C (the “Majority
 
Written Consent”), which Majority
 
Written
Consent,
 
upon
 
execution
 
and
 
delivery
 
by
 
Daughters’ LLC,
 
would
 
constitute
 
stockholder
 
approval
 
of
 
the
Restated Charter in compliance with Section 242(b) of the DGCL.
(c)
 
The
 
Company
 
shall
 
use
 
commercially
 
reasonable
 
efforts
 
to
 
obtain
 
an
 
amendment,
consent or
 
waiver from
 
the requisite
 
lenders under
 
the Company’s
 
Amended and
 
Restated Credit
 
Agreement,
dated as of May 26, 2023, such that the Class A Conversion (as defined in Section 2.1(a)) will not result in
a “change of control” within the meaning of such credit agreement (the “Credit Agreement
 
Amendment”).
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(d)
 
As soon
 
as practicable
 
following (i) the
 
execution and
 
delivery by
 
Daughters’ LLC
of the Majority Written Consent, (ii) the
 
satisfaction by the Company of
 
applicable notice and information
statement
 
requirements
 
under
 
the
 
DGCL
 
and
 
the
 
Securities
 
Exchange
 
Act
 
of
 
1934,
 
as
 
amended
 
(the
“Exchange Act”),
 
and
 
(iii) the
 
execution
 
and
 
delivery
 
by
 
the
 
requisite
 
lenders
 
of
 
the
 
Credit Agreement
Amendment,
 
the
 
Company
 
shall
 
file
 
the
 
Restated
 
Charter
 
with
 
the
 
Secretary
 
of
 
State
 
of
 
the
 
State
 
of
Delaware, to
 
become effective
 
promptly after
 
filing in
 
accordance with
 
the DGCL,
 
subject to
 
the Board’s
ability,
 
prior
 
to
 
the
 
effectiveness
 
of
 
the
 
Restated
 
Charter,
 
in
 
accordance
 
with
 
DGCL
 
Section 242(c),
 
to
abandon the Restated
 
Charter without further
 
action by the
 
Company’s stockholders if
 
the Board determines
that
 
doing
 
so
 
is
 
in
 
the
 
best
 
interests
 
of
 
the
 
Company
 
and
 
its
 
stockholders.
 
The
 
date
 
and
 
time
 
of
 
such
effectiveness shall be referred to herein as the “Restated Charter Effective Date.”
1.2
Restated Bylaws.
 
The Board has approved the Amended and Restated Bylaws substantially
in the form attached to this Agreement as Exhibit D (the “Restated Bylaws”), which shall become
 
effective
upon the Restated Charter Effective Date.
ARTICLE II
REGISTRATION RIGHTS UPON CONVERSION OF ALL CLASS A SHARES
2.1
 
Conversion of All Class A
 
Shares into Common Shares.
 
The Stockholder Parties agree
that
 
any
 
conversion
 
of
 
Class A
 
Shares
 
shall
 
be
 
made
 
in
 
accordance
 
with
 
the
 
provisions
 
of
 
this
Agreement, including the following covenants:
(a)
 
If
 
Daughters’
 
LLC
 
converts
 
any
 
Class A
 
Shares
 
into
 
Common
 
Shares,
 
it
 
shall
simultaneously
 
convert
 
all
 
(but
 
not
 
less
 
than
 
all)
 
outstanding
 
Class A
 
Shares
 
into
 
Common
 
Shares
 
in
accordance
 
with
 
the
 
terms
 
of
 
the
 
Class A Shares
 
(the
 
“Class A Conversion”).
 
The
 
effective
 
date
 
of
 
the
Class A Conversion is referred to in this
 
Agreement as the “Class A Conversion Date.”
(b)
 
Daughters’
 
LLC shall not
 
convert any Class A
 
Shares prior to
 
(i) the Restated Charter
Effective Date
 
or (ii) the
 
date that
 
the Company
 
obtains the
 
Credit Agreement Amendment, whichever
 
is
later.
(c)
 
The Members acknowledge
 
and agree that,
 
in order to
 
exercise any registration
 
rights
under this Agreement
 
or to
 
offer or
 
sell any
 
Common Shares
 
in a
 
registered offering
 
under the
 
Securities
Act, Daughters’ LLC must have first converted all outstanding Class A
 
Shares into Common Shares.
2.2
Amendment
 
and
 
Restatement
 
of the
 
Limited
 
Liability Company
 
Operating Agreement
 
for
Daughters’ LLC.
 
Immediately
 
following the
 
execution
 
and delivery
 
of this
 
Agreement, Daughters’
 
LLC
and each of the Members
 
shall execute and deliver the Amended and Restated
 
Limited Liability Company
Operating Agreement for Daughters’
 
LLC substantially in the form attached to this
 
Agreement as Exhibit E
(the
 
“Daughters’
 
LLC
 
Amendment”).
 
Daughters’
 
LLC
 
and
 
the
 
Members
 
agree
 
that,
 
following
 
the
effectiveness
 
of
 
the
 
Daughters’ LLC Amendment,
 
the
 
Daughters’ LLC Agreement
 
shall
 
not
 
be
 
revoked,
terminated, amended,
 
modified or
 
supplemented without
 
the prior
 
written consent
 
of the
 
Special Committee.
2.3
Takedowns of Subject Shares from Resale Shelf Registration Statement.
(a)
 
The term “Subject Shares” means, for each Member:
(i)
 
the
 
Common
 
Shares
 
listed
 
opposite
 
such
 
Member’s
 
name
 
in
 
Table I
 
of
Schedule 2
 
under
 
the
 
heading
 
titled
 
“Total
 
Economic
 
Beneficial
 
Ownership
 
of
 
Common
Shares”; and
 
 
 
 
 
 
 
 
 
 
 
 
(ii)
 
the
 
Common
 
Shares
 
listed
 
opposite
 
such
 
Member’s
 
name
 
in
 
Table II
 
of
Schedule 2 under the heading titled “Common Shares.”
(b)
 
During the Term (as
 
defined below), each Member
 
shall be entitled to
 
offer and sell
Subject Shares held by such Member
 
pursuant to a Takedown under a Resale
 
Shelf Registration Statement
(as
 
such
 
terms
 
are
 
defined
 
in
 
Exhibit A),
 
to
 
the
 
extent
 
provided
 
by
 
the
 
registration
 
rights
 
and
 
related
provisions set forth on
 
Exhibit A, which provisions are
 
incorporated herein as if
 
set forth in this
 
Agreement.
 
The
 
“Term”
 
shall
 
mean
 
the
 
period
 
beginning
 
on
 
the
 
Class A Conversion
 
Date
 
and
 
ending
 
on
 
(i) the
 
12-
month anniversary of the Class A Conversion Date or (ii) December 31, 2026, whichever is earlier.
2.4
Potential Repurchase
 
of Common
 
Shares by
 
the Company.
 
The parties
 
acknowledge that,
from time to time,
 
the Company or the
 
Members may propose that
 
the Company repurchase a
 
portion of the
Subject Shares;
 
provided, however, that
 
the terms
 
of any
 
such repurchase
 
must be approved
 
by each
 
such
selling
 
Member
 
and
 
the
 
Special
 
Committee
 
and
 
that
 
no
 
party
 
shall
 
be
 
obligated
 
to
 
enter
 
into
 
any
 
such
repurchase transaction.
ARTICLE III
VOTING OF COMMON SHARES AND CLASS A SHARES
3.1
Voting on
 
the Election
 
of Directors.
 
Prior to
 
the expiration
 
of the Term,
 
at any
 
meeting of
the stockholders
 
of the
 
Company, each
 
Stockholder Party
 
agrees (i) to
 
cause all
 
Common Shares
 
and Class A
Common Shares
 
held by
 
such Stockholder
 
Party, or
 
over which
 
such Stockholder
 
Party has
 
voting discretion
or control as
 
of the applicable
 
record date, to
 
be present either in
 
person or by proxy
 
for quorum purposes
at any stockholders meeting
 
at which directors of
 
the Company are elected,
 
and (ii) to vote, or
 
cause to be
voted, such Common Shares and Class A
 
Common Shares held by it, or over
 
which such Stockholder Party
has voting discretion or control, in favor of not less
 
than three Independent Directors.
 
For purposes of this
Agreement, the
 
term “Independent
 
Director” shall
 
mean a
 
member of
 
the Board
 
of Directors
 
of the
 
Company
(or
 
a
 
nominee
 
for
 
such
 
position)
 
who
 
is
 
(1) not
 
a
 
managing
 
member,
 
manager,
 
officer,
 
employee
 
or
consultant of,
 
or advisor
 
to, the
 
Company or
 
any Stockholder
 
Party, or
 
a person
 
who shall
 
have served
 
in
such capacity within three years immediately preceding the date of such determination, (2) independent of,
and
 
not
 
affiliated
 
with,
 
any
 
Stockholder
 
Party,
 
as
 
determined
 
in
 
good
 
faith
 
by
 
the
 
Board’s
 
Nominating
Committee,
 
and
 
(3) otherwise
 
independent
 
within
 
the
 
meaning
 
of
 
the
 
rules
 
and
 
regulations
 
of
 
the
 
U.S.
Securities and Exchange Commission (the “SEC”) and the NASDAQ listing standards.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
As an
 
inducement to
 
enter into
 
this Agreement
 
and to
 
consummate the
 
transactions contemplated
hereby, the Company represents and warrants to the Stockholder Parties, as of the date hereof, as follows:
4.1
Power and Authority.
 
The Company is a corporation duly organized, validly existing and in
good standing
 
under the
 
laws of
 
the State
 
of Delaware
 
and has
 
all corporate
 
right, power
 
and authority
 
to
enter
 
into
 
and
 
deliver
 
this
 
Agreement,
 
to
 
perform
 
its
 
obligations
 
hereunder
 
and
 
to
 
consummate
 
the
transactions contemplated by this Agreement.
 
The execution, delivery and performance of this Agreement
by the
 
Company has
 
been duly
 
and validly
 
authorized by
 
all necessary
 
corporate action.
 
This Agreement
has
 
been
 
duly
 
executed
 
and
 
delivered
 
by
 
the
 
Company
 
and
 
(assuming
 
due
 
authorization,
 
execution
 
and
delivery
 
by
 
the
 
Stockholder
 
Parties),
 
constitutes
 
the
 
legal,
 
valid
 
and
 
binding
 
obligation
 
of
 
the
 
Company,
enforceable
 
against
 
it
 
in
 
accordance
 
with
 
its
 
terms,
 
subject
 
to
 
(a) applicable
 
bankruptcy,
 
insolvency,
fraudulent
 
conveyance
 
and
 
other
 
similar
 
laws
 
and
 
(b) general
 
principles
 
of
 
equity,
 
including
 
equitable
defenses and limits as to the availability of equitable remedies,
 
whether such principles are considered in a
proceeding at law or in equity.
 
 
 
 
 
 
4.2
Conflicts; Consents
 
and Approvals.
 
The execution
 
and delivery
 
of this Agreement and
 
the
consummation
 
of
 
the
 
transactions
 
contemplated
 
by
 
this Agreement
 
by
 
the
 
Company
 
do
 
not
 
and
 
will
 
not
(a) violate,
 
conflict
 
with,
 
or
 
result
 
in
 
a
 
breach
 
of
 
any
 
provision
 
of,
 
or
 
constitute
 
a
 
default
 
under,
 
(i) the
Current
 
Charter
 
or
 
the
 
Bylaws,
 
or
 
(ii) subject
 
to
 
obtaining
 
the
 
Credit
 
Agreement
 
Amendment,
 
any
agreement,
 
indenture,
 
mortgage,
 
or
 
other
 
instrument
 
to
 
which
 
the
 
Company
 
is
 
a
 
party
 
or
 
by
 
which
 
the
Company is or
 
may be bound
 
or to which
 
any of the
 
Company’s property or
 
assets is subject;
 
(b) violate any
order, writ,
 
injunction, decree,
 
statute, rule
 
or regulation
 
applicable to
 
the Company;
 
or (c) require
 
any action
or
 
consent
 
or
 
approval
 
of,
 
or
 
review
 
by,
 
or
 
registration
 
or
 
material
 
filing
 
by
 
it
 
with
 
any
 
governmental
authority,
 
other
 
than
 
the
 
filing
 
of
 
the
 
Information
 
Statement
 
and
 
other
 
disclosures
 
with
 
the
 
SEC
 
in
compliance
 
with
 
the
 
Exchange Act
 
and
 
as
 
otherwise
 
contemplated
 
in
 
Exhibit A
 
in
 
connection
 
with
 
the
registration of the Subject Shares pursuant to a Resale Shelf Registration Statement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF EACH STOC
K
HOLDER PARTY
As an
 
inducement to
 
enter into
 
this Agreement
 
and to
 
consummate the
 
transactions contemplated
hereby, each Stockholder Party represents and warrants to the Company as follows:
5.1
Power and
 
Authority.
 
Each Stockholder Party has full
 
capacity and all requisite
 
right, power
and authority to enter into and deliver this
 
Agreement, to perform such party’s obligations hereunder and to
consummate the transactions
 
contemplated by this
 
Agreement.
 
This Agreement
 
has been duly
 
executed and
delivered
 
by
 
such
 
Stockholder
 
Party
 
and
 
(assuming
 
due
 
authorization,
 
execution
 
and
 
delivery
 
by
 
the
Company), constitutes the
 
legal, valid and
 
binding obligation of
 
such Stockholder Party,
 
enforceable against
such
 
party
 
in
 
accordance
 
with
 
its
 
terms,
 
subject
 
to
 
(a) applicable
 
bankruptcy,
 
insolvency,
 
fraudulent
conveyance and
 
other
 
similar laws
 
and (b)
 
general principles
 
of
 
equity, including
 
equitable
 
defenses and
limits as to the availability of equitable remedies, whether such
 
principles are considered in a proceeding at
law or in equity.
5.2
Conflicts; Consents
 
and Approvals.
 
The execution
 
and delivery
 
of this Agreement and
 
the
consummation of
 
the transactions
 
contemplated by
 
this Agreement by
 
such Stockholder
 
Party do
 
not and
will not (a) violate, conflict with, or result in
 
a breach of any provision of, or constitute
 
a default under, any
agreement, indenture, mortgage, or other
 
instrument to which such Stockholder
 
Party is a party or
 
by which
such Stockholder Party is
 
or may be bound
 
or to which any
 
of such Stockholder Party’s
 
property or assets
is
 
subject;
 
(b) violate
 
any
 
order,
 
writ,
 
injunction,
 
decree,
 
statute,
 
rule
 
or
 
regulation
 
applicable
 
to
 
such
Stockholder Party or
 
the applicable Subject
 
Shares; or (c) require
 
any action or
 
consent or approval
 
of, or
review by,
 
or registration or
 
material filing
 
by it
 
with any
 
governmental authority,
 
other than
 
one or
 
more
amendments to the Schedule 13D, as amended, filed by
 
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and others with the SEC and as
otherwise contemplated in Exhibit A in connection with the registration of the Subject Shares pursuant to a
Resale Shelf Registration Statement.
5.3
Securities Laws.
 
As of
 
the date
 
hereof, each
 
Stockholder Party
 
represents and
 
warrants to
and agrees with the Company as follows with respect to securities laws:
(a)
 
Such
 
Stockholder
 
Party
 
is
 
an
 
“accredited
 
investor”
 
(as
 
that
 
term
 
is
 
defined
 
in
Rule 501 of Regulation D under the Securities Act).
(b)
 
Such Stockholder
 
Party, together
 
with such
 
party’s legal,
 
financial and
 
other advisors,
has such knowledge
 
and experience in
 
financial and business
 
matters and is
 
capable of evaluating
 
the merits
and
 
risks
 
of
 
the
 
transactions
 
contemplated
 
by
 
this Agreement
 
so
 
as
 
to
 
make
 
an
 
informed
 
decision
 
with
respect thereto.
 
 
 
 
 
 
 
 
 
 
 
(c)
 
Such
 
Stockholder
 
Party
 
(i) has
 
received
 
all
 
information
 
that
 
such
 
party
 
and
 
such
party’s advisors deem
 
necessary to make
 
an informed decision
 
with respect to
 
the transactions contemplated
by this Agreement; (ii) has
 
had the unrestricted opportunity to make such investigation
 
as such Stockholder
Party and such
 
advisors desire pertaining
 
to the Company and
 
its capital stock
 
and to verify any
 
information
with
 
respect
 
to
 
the
 
Company
 
and
 
its
 
capital
 
stock;
 
and
 
(iii) has
 
had
 
the
 
opportunity
 
to
 
ask
 
questions
 
of
representatives of the Company concerning the Company and its capital stock.
ARTICLE VI
MISCELLANEOUS
6.1
Survival.
 
All representations, warranties
 
and obligations contained
 
in this Agreement shall
survive the consummation of the transactions contemplated by this Agreement.
6.2
Counterparts.
 
This
 
Agreement
 
may
 
be
 
executed
 
in
 
any
 
number
 
of
 
counterparts,
 
which
together shall constitute one and the same Agreement.
 
The parties may execute more than one copy
 
of the
Agreement, each of which shall constitute an original.
6.3
Entire
 
Agreement.
 
This
 
Agreement (including
 
the Schedules
 
and Exhibits
 
hereto) constitutes
the entire agreement between
 
the parties and supersedes
 
all prior agreements,
 
understandings, arrangements
or
 
representations
 
by
 
or
 
between
 
the
 
parties,
 
written
 
and
 
oral,
 
with
 
respect
 
to
 
the
 
subject
 
matter
 
hereof.
 
Consistent with the
 
foregoing and for
 
the avoidance of
 
doubt, that certain Agreement Regarding Common
Stock dated as
 
of July 20, 2018 by
 
and among the
 
Company and the
 
Members, among others,
 
will terminate
upon execution and delivery of this Agreement.
6.4
Third Party
 
Beneficiaries.
 
Nothing in
 
this
 
Agreement, express
 
or implied,
 
is intended
 
or shall
be construed to create any third party beneficiaries.
6.5
Governing Law; Jurisdiction.
 
This Agreement shall be governed by the laws of the State of
Delaware, without giving effect to the conflict of laws principles thereof.
6.6
Amendment; Waiver.
 
This Agreement may
 
not be altered, amended or supplemented
 
except
by an agreement in writing signed by each
 
of the parties hereto.
 
Any provision of this Agreement may not
be waived without a written instrument from the waiving party with respect to each such waiver.
6.7
Specific Performance.
 
The parties
 
acknowledge and
 
agree that
 
any breach
 
of the
 
terms of
this Agreement would
 
give rise
 
to irreparable
 
harm for
 
which money
 
damages would
 
not be
 
an adequate
remedy and accordingly the parties hereto agree that, in addition to any
 
other remedies, each party shall be
entitled to enforce the terms of this
 
Agreement by a decree of specific performance
 
without the necessity of
proving the inadequacy of money damages as a remedy.
6.8
Notices.
 
All notices, requests,
 
claims, demands
 
and other
 
communications hereunder shall
be in
 
writing and
 
shall be
 
given or
 
made (and
 
shall be
 
deemed to
 
have been
 
duly given
 
or made
 
upon receipt)
by delivery
 
in person,
 
by courier
 
service or
 
by registered
 
or certified
 
mail to
 
the respective
 
parties at
 
the
addresses set forth on Schedule 1 (or at such other address for
 
a party as shall be specified in a notice given
in accordance with this Section),
 
with a copy (which shall
 
not constitute notice) to
 
the counsel of such
 
party
as set forth on Schedule 1.
6.9
Severability.
 
If any term or other provision of this
 
Agreement is invalid, illegal or incapable
of being enforced by any rule
 
of law, or public policy, all
 
other conditions and provisions of this
 
Agreement
shall
 
nevertheless
 
remain
 
in
 
full
 
force
 
and
 
effect
 
so
 
long
 
as
 
the
 
economic
 
or
 
legal
 
substance
 
of
 
the
transactions contemplated herein are not affected in any manner materially adverse to any party hereto.
 
 
 
 
 
 
 
 
 
 
6.10
Assignment.
 
Neither this
 
Agreement nor any of
 
the rights, interests or
 
obligations hereunder
shall be assigned by any of the parties (whether by operation of law or otherwise)
 
without the prior written
consent of the other parties.
 
Subject to the preceding sentence, this
 
Agreement shall be binding upon, inure
to
 
the
 
benefit
 
of
 
and
 
be
 
enforceable
 
by
 
the
 
parties
 
and
 
their
 
respective
 
successors
 
and
 
assigns.
 
Not
 
in
limitation of
 
the generality
 
of the
 
foregoing, this Agreement shall
 
be binding
 
upon, inure
 
to the benefit
 
of
and be
 
enforceable by
 
the estate
 
and heirs
 
of any
 
individual Stockholder
 
Party after
 
such Stockholder
 
Party’s
death.
 
Notwithstanding
 
anything
 
in
 
this
 
Agreement
 
(including
 
Exhibit A
 
hereto)
 
to
 
the
 
contrary,
 
the
registration rights provided hereunder are personal to each Member and may not be transferred or assigned
without the prior written consent of the Special Committee.
6.11
Fees
 
and
 
Expenses.
 
Except
 
as
 
otherwise
 
may
 
be
 
provided
 
in
 
this Agreement
 
(including
Exhibit A hereto), all
 
costs and
 
expenses incurred
 
in connection
 
with this Agreement
 
and the
 
transactions
contemplated by this Agreement,
 
including, to the
 
extent applicable, any
 
stock transfer
 
or similar taxes
 
or
brokerage or similar fees, shall be the responsibility of and shall be paid by the party incurring such fees or
expenses, regardless
 
of whether
 
the transactions
 
contemplated by
 
this Agreement are
 
consummated.
 
The
obligations
 
of
 
the
 
parties
 
with
 
respect
 
to
 
expenses
 
related
 
to
 
a
 
Resale
 
Shelf
 
Registration
 
Statement
 
and
Takedown are set forth on Exhibit A hereto and are incorporated herein by reference.
6.12
Further Assurances.
 
Each of the parties hereto shall use such party’s reasonable best efforts
to take, or cause to be taken, all appropriate action, to do or cause to be done all things necessary, proper or
advisable
 
under
 
applicable
 
law,
 
and
 
to
 
execute
 
and
 
deliver
 
such
 
documents
 
and
 
other
 
papers,
 
as
 
may
 
be
required
 
to
 
carry
 
out
 
the
 
provisions
 
of
 
this
 
Agreement
 
and
 
to
 
consummate
 
and
 
make
 
effective
 
the
transactions contemplated by this Agreement.
6.13
LEGAL
 
REPRESENTATION.
 
EACH
 
STOCKHOLDER
 
PARTY
 
HEREBY
ACKNOWLEDGES
 
THAT
 
SUCH
 
STOCKHOLDER
 
PARTY
 
HAS
 
BEEN ADVISED
 
TO
 
SEEK, AND
HAS HAD
 
THE OPPORTUNITY
 
TO
 
SEEK, INDEPENDENT
 
LEGAL COUNSEL TO
 
REVIEW THIS
AGREEMENT
 
ON
 
SUCH
 
STOCKHOLDER
 
PARTY’S
 
BEHALF.
 
EACH
 
STOCKHOLDER
 
PARTY
FURTHER
 
ACKNOWLEDGES
 
AND
 
AGREES
 
THAT
 
▇▇▇
 
▇▇▇▇▇▇▇▇
 
(THE
 
COMPANY’S
GENERAL COUNSEL), ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ AND ▇▇▇▇▇
 
▇▇▇▇▇▇ LLP ARE LEGAL COUNSEL
SOLELY TO THE COMPANY AND DO NOT REPRESENT ANY
 
OF THE STOCKHOLDER PARTIES
WITH
 
RESPECT TO
 
THIS AGREEMENT
 
OR ANY
 
OF
 
THE
 
OTHER
 
DOCUMENTS
 
OR ACTIONS
TAKEN IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT
 
LIMITATION, THE
REGISTRATION RIGHTS PROVISIONS CONTAINED IN EXHIBIT A
 
AND THE DAUGHTERS’
 
LLC
AMENDMENT.
6.14
WAIVER
 
OF
 
JURY
 
TRIAL.
 
EACH
 
OF
 
THE
 
PARTIES
 
HERETO
 
HEREBY
IRREVOCABLY WAIVES
 
ALL
 
RIGHT TO
 
TRIAL
 
BY JURY
 
IN ANY ACTION,
 
PROCEEDING
 
OR
COUNTERCLAIM
 
(WHETHER
 
BASED
 
ON
 
CONTRACT, TORT,
 
OR
 
OTHERWISE) ARISING
 
OUT
OF
 
OR
 
RELATING
 
TO
 
THIS
 
AGREEMENT
 
OR
 
THE
 
ACTIONS
 
OF
 
ANY
 
PARTY
 
HERETO
 
IN
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
6.15
EXCLUSIVE
 
FORUM.
 
EACH
 
PARTY
 
TO
 
THIS
 
AGREEMENT
 
HEREBY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURT OF CHANCERY
OF
 
THE
 
STATE
 
OF
 
DELAWARE
 
(OR
 
IF
 
SUCH
 
COURT
 
DOES
 
NOT
 
HAVE
 
SUBJECT
 
MATTER
JURISDICTION, ANY OTHER STATE COURT
 
OF THE STATE
 
OF DELAWARE OR
 
THE FEDERAL
COURTS
 
LOCATED
 
IN
 
THE
 
STATE
 
OF
 
DELAWARE)
 
IN ANY ACTION,
 
SUIT
 
OR
 
PROCEEDING
ARISING IN CONNECTION WITH THIS AGREEMENT, AND
 
AGREES THAT ANY
 
SUCH ACTION,
SUIT OR PROCEEDING SHALL BE BROUGHT ONLY IN THE COURT OF
 
CHANCERY (OR SUCH
OTHER
 
COURTS
 
IDENTIFIED
 
HEREIN
 
IF
 
THE
 
COURT
 
OF
 
CHANCERY
 
DOES
 
NOT
 
HAVE
SUBJECT
 
MATTER
 
JURISDICTION) AND
 
WAIVES ANY
 
OBJECTION
 
BASED
 
ON
 
FORUM
 
NON
 
 
 
CONVENIENS
 
OR
 
ANY
 
OTHER
 
OBJECTION
 
TO
 
VENUE
 
THEREIN;
 
PROVIDED,
 
HOWEVER,
THAT
 
SUCH
 
CONSENT
 
TO
 
JURISDICTION
 
IS
 
SOLELY
 
FOR
 
THE
 
PURPOSE
 
REFERRED
 
TO
 
IN
THIS
 
PARAGRAPH AND
 
SHALL NOT
 
BE
 
DEEMED
 
TO
 
BE A
 
GENERAL SUBMISSION
 
TO
 
THE
JURISDICTION OF SUCH COURTS OR IN THE
 
STATE OF DELAWARE OTHER THAN FOR SUCH
PURPOSE.
 
SERVICE OF PROCESS ON
 
A PARTY
 
TO ANY
 
SUCH ACTION, SUIT
 
OR PROCEEDING
SHALL BE EFFECTIVE IF DELIVERED TO SUCH PARTY
 
IN ACCORDANCE WITH SECTION 6.8.
[Signature Page Follows; Remainder of Page Intentionally Left Blank]
 
 
 
 
 
 
 
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly
 
executed
as of the date first set forth above.
COMPANY:
CAL-MAINE FOODS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
 
▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Chief Financial Officer
STOCKHOLDER PARTIES:
DLNL, LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Member
 
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
 
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
 
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
 
▇▇▇▇▇▇ ▇▇▇▇▇
 
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
 
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
 
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
 
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
 
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
COMPANY
Address:
 
Cal-Maine Foods, Inc.
 
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
 
Suite 200
 
Ridgeland, MS
 
39157
Telephone:
 
▇▇▇-▇▇▇-▇▇▇▇
Fax:
 
▇▇▇-▇▇▇-▇▇▇▇
Email:
 
With a copy to counsel:
 
▇▇▇ ▇▇▇▇▇▇▇▇
 
Vice President and General Counsel
 
Cal-Maine Foods, Inc.
 
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
 
Suite 200
 
Ridgeland, MS
 
39157
Telephone:
 
▇▇▇-▇▇▇-▇▇▇▇
Fax:
 
▇▇▇-▇▇▇-▇▇▇▇
Email:
 
DAUGHTERS’ LLC
Address:
 
DLNL, LLC c/o ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
Cal-Maine Foods, Inc.
 
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
 
Suite 200
 
Ridgeland, MS
 
39157
Telephone:
 
▇▇▇-▇▇▇-▇▇▇▇
Fax:
 
▇▇▇-▇▇▇-▇▇▇▇
Email:
 
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇:
Address:
 
c/o ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
Cal-Maine Foods, Inc.
 
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
 
Suite 200
 
Ridgeland, MS
 
39157
Telephone:
 
▇▇▇-▇▇▇-▇▇▇▇
Fax:
 
▇▇▇-▇▇▇-▇▇▇▇
Email:
 
 
▇▇▇▇▇▇ ▇▇▇▇▇:
Address:
 
c/o ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
Cal-Maine Foods, Inc.
 
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
 
Suite 200
 
Ridgeland, MS
 
39157
Telephone:
 
▇▇▇-▇▇▇-▇▇▇▇
Fax:
 
▇▇▇-▇▇▇-▇▇▇▇
Email:
 
▇▇▇▇▇
 
▇▇▇▇▇ ▇▇▇▇▇▇:
Address:
 
c/o ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
Cal-Maine Foods, Inc.
 
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
 
Suite 200
 
Ridgeland, MS
 
39157
Telephone:
 
▇▇▇-▇▇▇-▇▇▇▇
Fax:
 
▇▇▇-▇▇▇-▇▇▇▇
Email:
 
▇▇▇▇▇▇
 
▇▇▇▇▇ ▇▇▇▇▇▇:
Address:
 
c/o ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
Cal-Maine Foods, Inc.
 
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
 
Suite 200
 
Ridgeland, MS
 
39157
Telephone:
 
▇▇▇-▇▇▇-▇▇▇▇
Fax:
 
▇▇▇-▇▇▇-▇▇▇▇
Email:
 
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇:
Address:
 
c/o Cal-Maine Foods, Inc.
 
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
 
Suite 200
 
Ridgeland, MS
 
39157
Telephone:
 
601–948–6813
Fax:
 
601–969–0905
Email:
 
With a copy to counsel:
Name of Attorney:
 
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Name of Firm:
 
Brunini Law
Address:
 
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Address (continued):
 
Jackson, MS 39201
Telephone:
 
Fax:
 
Email:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
SUBJECT SHARES
TABLE I:
MEMBERS’ ECONOMIC BENEFICIAL
 
OWNERSHIP OF
COMMON SHARES AND CLASS A
 
SHARES
THROUGH DAUGHTERS’ LLC
Member
Daughters’
LLC
Common
Units
Common
Shares
Underlying
Daughters’
LLC
Common
Units
Daughters’
LLC
Class A
Units
Class A
Shares
Underlying
Daughters’
LLC Class A
Units
Common
Shares
Underlying
Class A
Shares
Total
Economic
Beneficial
Ownership
of Common
Shares
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
0
0
1,309,245
1,309,245
1,309,245
1,309,245
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
56,595
56,595
1,090,755
1,090,755
1,090,755
1,147,350
▇▇▇▇▇▇ ▇▇▇▇▇
343,787
343,787
800,000
800,000
800,000
1,143,787
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
343,787
343,787
800,000
800,000
800,000
1,143,787
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
343,787
343,787
800,000
800,000
800,000
1,143,787
Total
1,087,956
1,087,956
4,800,000
4,800,000
4,800,000
5,887,956
TABLE II:
MEMBERS’ ECONOMIC BENEFICIAL
 
OWNERSHIP OF
COMMON SHARES NOT OWNED BY DAUGHTERS’
 
LLC,
BUT COVERED BY EXHIBIT A
 
REGISTRATION RIGHTS
Member
Common
Shares
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
145,266
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
230,570
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, joint tenants
46
▇▇▇▇▇▇ ▇▇▇▇▇
738
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
57,007
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
887
Total
434,514
 
 
 
 
 
 
 
 
 
 
 
 
REGISTRATION RIGHTS
This Exhibit A
 
to the
 
Agreement Regarding
 
Conversion (the
 
“Agreement”) describes
 
the agreements
of the
 
parties thereto
 
relating to
 
Resale Shelf
 
Registration Statements
 
and Takedowns.
 
Capitalized terms
used but not defined herein shall have the respective meanings set forth in the Agreement.
ARTICLE I
DEMAND RESALE SHELF REGISTRATION
1.1
 
General
(a)
 
Subject to
 
the terms
 
and conditions
 
of this
 
Exhibit A, the
 
Company shall,
 
promptly
after the
 
Class A Conversion Date, file
 
a shelf registration
 
statement with the
 
SEC in accordance
 
with the
Securities Act for
 
an offering
 
on a
 
delayed or
 
continuous basis
 
pursuant to
 
Rule 415 under
 
the Securities
Act (a “Resale Shelf Registration Statement”).
 
Subject to the terms of
 
the Agreement, the Company (with
the
 
cooperation
 
of
 
the
 
applicable
 
Members)
 
shall
 
cause
 
there
 
to
 
be
 
filed
 
with
 
the
 
SEC
 
a
 
Resale
 
Shelf
Registration Statement meeting
 
the requirements of
 
the Securities Act and such
 
Members shall be
 
entitled
to have
 
included therein
 
all of
 
the Subject
 
Shares.
 
If the
 
Company qualifies
 
as a
 
Well Known
 
Seasoned
Issuer (as defined in Rule 405 under the Securities Act), then, promptly after the Class A Conversion Date,
the
 
Company
 
will
 
file
 
an
 
Automatic
 
Shelf
 
Registration
 
Statement
 
(as
 
defined
 
in
 
Rule 405
 
under
 
the
Securities Act) on Form
 
S-3 (“Form
 
S-3ASR”), which will
 
become automatically effective.
 
As permitted
for a
 
Form S-3ASR,
 
such registration
 
statement will
 
not specify
 
which Members
 
may be
 
selling stockholders
or the number of shares to
 
be sold, and instead will register an
 
indeterminate amount of Subject Shares for
resale without identifying the selling stockholders.
 
Instead, the Members who will be
 
selling stockholders
and the Subject Shares to be sold will be disclosed
 
in a subsequent Resale Shelf Prospectus Supplement for
a Takedown (as such terms are defined
 
below).
 
Also, as permitted by Rule 456(b) under the Securities
 
Act,
the SEC registration fees shall not be paid at
 
the time of filing of such Form S-3ASR and,
 
instead, shall be
deferred and paid at the time of filing of such Resale Shelf Prospectus Supplement for a Takedown.
(b)
 
Following the effectiveness of a
 
Resale Shelf Registration Statement, the
 
applicable
Members shall be entitled to request the Company to file a prospectus or prospectus supplement (a “Resale
Shelf Prospectus Supplement”) with respect
 
thereto to effect a takedown
 
for an offering of Common
 
Shares
registered thereby (“Takedown”).
 
Any request made pursuant to this Section 1.1(b) shall be
 
made pursuant
to Section 2.3 of the Agreement, and shall specify the number of Subject Shares to be offered, the intended
methods
 
of
 
disposition
 
thereof
 
and
 
that
 
the
 
request
 
is
 
for
 
a
 
Resale
 
Shelf
 
Prospectus
 
Supplement.
 
Upon
receipt
 
of
 
a
 
request
 
from
 
a
 
Member,
 
the
 
Company
 
shall
 
provide
 
notice
 
to
 
all
 
other
 
Members
 
that
 
it
 
has
received a request to
 
file a Resale Shelf
 
Prospectus for a
 
Takedown to permit other
 
Members to permit them
to request to include their Subject Shares therein at the same time.
(c)
 
The
 
Special
 
Committee
 
shall
 
have
 
the
 
authority
 
to
 
approve
 
any
 
demands
 
for
Takedowns,
 
including
 
the minimum
 
number
 
of shares
 
to be
 
included,
 
the
 
timing
 
of
 
any Takedown,
 
how
frequently
 
Takedowns
 
may
 
be
 
permitted,
 
and
 
whether
 
to
 
require
 
standstill
 
agreements
 
from
 
the
 
selling
shareholders beyond what is required from the underwriters and, if so, the terms thereof.
1.2
 
Filing of Resale Shelf Registration Statement.
 
Following the Class A Conversion, the
Company shall:
(a)
 
File the Resale
 
Shelf Registration
 
Statement with
 
the SEC as
 
promptly as
 
practicable,
and
 
shall
 
use
 
the
 
Company’s
 
commercially
 
reasonable
 
efforts
 
to
 
have
 
the
 
registration
 
declared
 
effective
under the Securities Act as soon as reasonably practicable.
 
 
 
 
 
 
 
(b)
 
Continue
 
to
 
maintain
 
and
 
renew
 
the
 
Resale
 
Shelf
 
Registration
 
Statement
 
for
 
such
periods as approved by the Special Committee.
1.3
The Special
 
Committee shall
 
continue to
 
consider requests
 
for Takedowns
 
for
 
the Subject
Shares from a Member until the expiration of the Term.
1.4
A Resale Shelf Registration Statement shall be on
 
Form S-3 or any successor form provided
that the Company qualified for such form at the time.
1.5
If any Takedown
 
will involve
 
an underwritten offering
 
(whether on a
 
“firm,” “best efforts”
or “all reasonable
 
efforts” basis or
 
otherwise), or an agented
 
offering, the Company shall
 
have the right to
select one or more underwriters
 
and underwriters’ representatives to administer such underwritten offering
or the agents for such agented offering, subject to the consent of the applicable Members and their counsel,
which consent shall not be unreasonably withheld.
ARTICLE II
TA
K
EDOWN PROCEDURES
2.1
Subject to approval
 
by the Special
 
Committee under Article I of this Exhibit A to effect
 
the
Takedown
 
of
 
any
 
Common
 
Shares
 
and
 
subject
 
to
 
Section 2.2
 
of
 
this
 
Exhibit A,
 
the
 
Company
 
shall,
 
as
expeditiously as practicable:
(a)
 
Prepare and file with the
 
SEC such amendments and supplements
 
to the Resale Shelf
Registration Statement
 
and the
 
prospectus used
 
in connection
 
with such
 
registration statement
 
as may
 
be
necessary to comply
 
with the provisions
 
of the Securities Act, the
 
Exchange Act and rules and regulations
thereunder
 
with
 
respect
 
to
 
the
 
disposition
 
of
 
all
 
securities
 
covered
 
by
 
such
 
registration
 
statement
 
in
accordance with the method of disposition set
 
forth in such registration statement.
 
If the registration is for
an underwritten offering, the Company
 
shall amend the registration statement or
 
supplement the prospectus
whenever reasonably required
 
by the terms
 
of the underwriting
 
agreement.
 
Subject to Rule 415
 
under the
Securities Act, the Company shall amend the registration
 
statement or supplement the prospectus so
 
that it
will remain current
 
and in compliance
 
with the requirements
 
of the Securities Act
 
for such period
 
as shall
be approved
 
by the
 
Special Committee.
 
If any
 
event or
 
development occurs
 
as a
 
result of
 
which a
 
registration
statement or prospectus contains a misstatement
 
of a material fact or omits to
 
state a material fact required
to be stated
 
therein or necessary
 
to make the
 
statements therein not
 
misleading, the Company
 
shall promptly
notify
 
the
 
applicable
 
Members
 
and
 
their
 
counsel,
 
amend
 
the
 
registration
 
statement
 
or
 
supplement
 
the
prospectus so that
 
each will thereafter
 
comply with the
 
Securities
 
Act and furnish
 
to such Members
 
and their
counsel such amended or supplemented prospectus
 
for use in the offer and sale
 
of Common Shares covered
by such registration statement.
 
Pending such amendment or
 
supplement, such Members shall
 
cease making
offers and sales of Common Shares pursuant to the prior prospectus.
 
In the event that any Common Shares
included
 
in
 
a
 
registration
 
statement
 
remain
 
unsold
 
following
 
all
 
Takedowns
 
approved
 
by
 
the
 
Special
Committee, the Company may file a post-effective amendment to the
 
registration statement for the purpose
of removing such securities from registered status.
(b)
 
Furnish to the
 
applicable Members and
 
their counsel such
 
numbers of copies
 
of the
registration statement,
 
any pre-effective
 
or post-effective
 
amendment thereto,
 
the prospectus,
 
including each
preliminary prospectus
 
and any
 
amendments or
 
supplements thereto,
 
in each
 
case in
 
conformity with
 
the
requirements
 
of
 
the
 
Securities Act
 
and
 
the
 
rules
 
thereunder,
 
and
 
such
 
other
 
related
 
documents
 
as
 
such
Members and their counsel may reasonably request in order to facilitate the disposition of Common Shares
owned by such Members.
(c)
 
To
 
the
 
extent
 
necessary,
 
use
 
the
 
Company’s
 
commercially
 
reasonable
 
efforts
 
(i) to
register and qualify the Common Shares covered by such registration statement under such other securities
 
or Blue Sky
 
laws of such
 
states or U.S.
 
jurisdictions as shall
 
be reasonably requested
 
by the underwriters’
representative or agent (as applicable,
 
or if inapplicable, the applicable
 
Members and their counsel), (ii) to
keep such registration or qualification in
 
effect for so long as such registration
 
statement remains in effect,
and (iii) to
 
obtain the
 
withdrawal of
 
any order
 
suspending the
 
effectiveness of
 
a registration
 
statement, or
the lifting of
 
any suspension of
 
the qualification (or
 
exemption from qualification)
 
of the offer
 
and sale of
any of
 
such Common
 
Shares in
 
any jurisdiction,
 
at the
 
earliest possible
 
moment; provided,
 
however, that
the Company shall
 
not be required
 
in connection therewith
 
or as a
 
condition thereto to
 
qualify to do
 
business
or to file a general consent to service of process in any such states or jurisdictions.
(d)
 
In
 
the
 
event
 
of
 
any
 
underwritten
 
or
 
agented
 
offering,
 
enter
 
into
 
and
 
perform
 
the
Company’s
 
obligations
 
under
 
an
 
underwriting
 
or
 
agency
 
agreement
 
(including
 
indemnification
 
and
contribution
 
obligations
 
of
 
underwriters
 
or
 
agents),
 
in
 
usual
 
and
 
customary
 
form,
 
with
 
the
 
managing
underwriter or underwriters of or
 
agents for such offering, and
 
(i) make such representations and warranties
to the underwriters’
 
representative or agent
 
with respect to
 
the business of
 
the Company and
 
its subsidiaries,
the registration statement or prospectus,
 
in each case, in form,
 
substance and scope as are
 
customarily made
by
 
issuers
 
to
 
underwriters
 
in
 
underwritten
 
offerings
 
and
 
confirm
 
the
 
same
 
if
 
and
 
when
 
requested
 
and
(ii) deliver
 
such
 
documents
 
and
 
certificates
 
as
 
may
 
be
 
reasonably
 
requested
 
by
 
the
 
applicable
 
Members,
their
 
counsel,
 
the
 
underwriters’ representative
 
or
 
agent,
 
if
 
any,
 
to
 
evidence
 
the
 
continued
 
validity
 
of
 
the
representations and
 
warranties of
 
the Company
 
and its
 
subsidiaries made
 
pursuant to
 
clause (i) above
 
and
to evidence compliance with any customary
 
conditions contained in the underwriting agreement
 
or similar
agreement
 
entered
 
into
 
by
 
the
 
Company.
 
The
 
foregoing
 
actions
 
shall
 
be
 
taken
 
in
 
connection
 
with
 
each
closing
 
under
 
such
 
underwriting
 
or
 
similar
 
agreement
 
as
 
and
 
to
 
the
 
extent
 
required
 
thereunder.
 
The
Company
 
shall
 
also
 
cooperate
 
with
 
the
 
applicable
 
Members
 
and
 
their
 
counsel
 
and
 
the
 
underwriters’
representative
 
or
 
agent
 
for
 
such
 
offering
 
in
 
the
 
marketing
 
of
 
the
 
Common
 
Shares,
 
including
 
making
available,
 
on
 
a
 
commercially
 
reasonable
 
basis,
 
the
 
Company’s
 
officers,
 
accountants,
 
counsel,
 
premises,
books and
 
records for
 
such purpose,
 
but the
 
Company shall
 
not be
 
required to
 
incur any
 
material out-of-
pocket expense pursuant to this sentence.
(e)
 
In the event
 
of any underwritten
 
or agented offering,
 
the Company and
 
members of
its management
 
(which shall
 
include the
 
Chief Executive
 
Officer and
 
the Chief
 
Financial Officer
 
or such
other
 
members
 
of
 
its
 
management
 
acceptable
 
to
 
the
 
underwriters’ representative
 
or
 
agent,
 
if
 
any)
 
shall
participate in roadshows and other
 
similar selling efforts as the
 
underwriters’
 
representative or agent, if any,
shall reasonably deem
 
to be necessary;
 
provided, however, the
 
Company and members
 
of its management
shall not
 
be obligated
 
to participate
 
in more
 
than a
 
total of
 
two roadshows
 
or other
 
similar selling
 
efforts
with respect to the Subject Shares.
(f)
 
Promptly notify
 
the applicable
 
Members and
 
their counsel
 
of any
 
stop order
 
issued
or threatened
 
to be
 
issued by
 
the SEC
 
in connection
 
therewith (and
 
take commercially
 
reasonable actions
required to prevent the entry of such stop order or to remove it if entered).
(g)
 
Make
 
generally
 
available
 
to
 
the
 
Company’s
 
security
 
holders
 
copies
 
of
 
all
 
periodic
reports, proxy statements, and other
 
information referred to in Section 6.1
 
below, and an earnings statement
satisfying the provisions
 
of Section 11(a) of
 
the Securities
 
Act no later
 
than 90 days following
 
the end of
 
the
12-month period beginning with the first month of the Company’s first fiscal quarter commencing after the
effective date of each registration statement filed pursuant to this Agreement.
(h)
 
Make
 
available
 
for
 
inspection
 
by
 
the
 
applicable
 
Members
 
and
 
their
 
counsel,
 
any
underwriter participating in such
 
offering and the representatives
 
of such Members and
 
the underwriter (but
not
 
more
 
than
 
one
 
firm
 
of
 
counsel
 
to
 
each),
 
all
 
financial
 
and
 
other
 
information
 
as
 
shall
 
be
 
reasonably
requested
 
by
 
them,
 
and
 
provide
 
such
 
Members
 
and
 
their
 
counsel,
 
any
 
underwriter
 
participating
 
in
 
such
offering and the representatives thereof the opportunity, on a commercially
 
reasonable basis, to discuss the
 
 
 
business
 
affairs
 
of the
 
Company
 
with
 
appropriate
 
officers and
 
independent
 
public accountants
 
who have
certified
 
the
 
audited
 
financial
 
statements
 
included
 
in
 
such
 
registration
 
statement,
 
in
 
each
 
case
 
all
 
as
necessary to
 
enable them
 
to exercise
 
their due
 
diligence responsibility
 
under the
 
Securities Act; provided,
however, that any records, information or documents that are designated by the
 
Company as confidential at
the time
 
of delivery
 
of such
 
records, information
 
or documents
 
shall be
 
kept confidential by
 
such persons
unless (i) such records, information
 
or documents are in
 
the public domain or
 
otherwise publicly available
(other than by
 
reason of breach
 
of this confidentiality
 
provision), (ii) disclosure of
 
such records, information
or documents
 
is required
 
by court
 
or administrative
 
order or
 
is necessary
 
to respond
 
to inquiries
 
of regulatory
authorities,
 
or
 
(iii) disclosure
 
of
 
such
 
records,
 
information
 
or
 
documents,
 
in
 
the
 
reasonable
 
opinion
 
of
counsel to such
 
person, is otherwise
 
required by law
 
or regulation (including,
 
without limitation, pursuant
to the requirements of
 
the Securities
 
Act or regulations promulgated
 
thereunder); provided, however, that
 
in
the case of
 
clauses (ii) and (iii) of
 
this Section 2.1(h), prior
 
to making such
 
disclosure, such Members
 
and
their
 
counsel
 
shall
 
consult
 
with
 
the
 
Company
 
and
 
its
 
counsel
 
as
 
to
 
the
 
necessity
 
of
 
such
 
disclosure,
 
the
timing
 
and
 
content
 
of
 
such
 
disclosure
 
and
 
the
 
nature
 
and
 
wording
 
of
 
such
 
disclosure
 
and
 
shall
 
use
 
its
reasonable
 
best
 
efforts
 
to
 
obtain,
 
at
 
the
 
Company’s
 
expense,
 
confidential
 
treatment
 
of
 
such
 
records,
information or documents,
 
or portions thereof.
 
Also, to the
 
extent possible, the
 
Company shall be
 
given a
reasonable opportunity
 
to intervene
 
with the
 
appropriate authorities
 
in order
 
to prevent
 
disclosure of
 
such
records, information or documents, or portions thereof.
(i)
 
Use the
 
Company’s commercially
 
reasonable efforts
 
to obtain
 
a so-called
 
“comfort
letter” from its independent public accountants, and legal opinions of counsel to the Company addressed to
the applicable Members, or the underwriters’ representative or agent, as applicable, in customary form and
covering such matters of
 
the type customarily covered
 
by such letters, and
 
in a form that
 
shall be reasonably
satisfactory to such
 
Members and their
 
counsel or the
 
underwriters’ representative or agent, as
 
applicable.
 
The Company
 
shall furnish
 
to such
 
Members and
 
their counsel
 
a signed
 
counterpart of
 
any such
 
comfort
letter
 
or
 
legal
 
opinion.
 
Delivery
 
of
 
any
 
such
 
opinion
 
or
 
comfort
 
letter
 
shall
 
be
 
subject
 
to
 
the
 
recipient
furnishing
 
such
 
written
 
representations
 
or
 
acknowledgements
 
as
 
are
 
customarily
 
provided
 
by
 
sellers
 
of
securities who receive such comfort letters or opinions.
(j)
 
Take such other actions as are commercially
 
reasonably required in order to expedite
or facilitate the effectiveness of the Takedown of the Subject Shares approved by the Special Committee.
2.2
 
Grace Periods
(a)
 
Notwithstanding
 
anything
 
to
 
the
 
contrary
 
in
 
the
 
Agreement
 
(including
 
in
 
this
Exhibit A):
(i)
 
the Company shall be entitled to postpone the
 
filing or effectiveness of, or, at
any time after a
 
Resale Shelf Registration Statement has
 
been declared effective by the
 
SEC,
suspend
 
the
 
use
 
of,
 
a
 
Resale
 
Shelf
 
Registration
 
Statement
 
(including
 
the
 
Resale
 
Shelf
Prospectus
 
Supplement
 
included
 
therein)
 
if
 
in
 
the
 
good
 
faith
 
judgment
 
of
 
the
 
Special
Committee,
 
such
 
registration,
 
offering
 
or
 
use
 
could
 
reasonably
 
be
 
expected
 
to
 
materially
affect
 
the
 
Company
 
in
 
an
 
adverse
 
manner,
 
or
 
materially
 
interfere
 
with
 
any
 
significant
transaction
 
under
 
consideration
 
by
 
the
 
Company,
 
or
 
would
 
require
 
the
 
disclosure
 
of
information that has
 
not been, and
 
is not otherwise
 
required to be,
 
disclosed to the
 
public and
the
 
premature
 
disclosure
 
of
 
which
 
could
 
reasonably
 
be
 
expected
 
to
 
materially
 
affect
 
the
Company in an adverse manner; and
(ii)
 
at
 
any
 
time
 
after
 
a
 
Resale
 
Shelf
 
Registration
 
Statement
 
has
 
been
 
declared
effective
 
by
 
the
 
SEC,
 
the
 
Company
 
may
 
delay
 
the
 
disclosure
 
of
 
material
 
non-public
information concerning the
 
Company if the
 
disclosure of such
 
information at the
 
time would,
 
 
 
 
 
 
 
 
 
 
 
 
 
in
 
the
 
good
 
faith
 
judgment
 
of
 
the
 
Special
 
Committee,
 
adversely
 
affect
 
the
 
Company
 
(the
period of
 
a postponement
 
or suspension
 
as described
 
in Section 2.2(a)(i)
 
of this
 
Exhibit A
and/or a delay described
 
in this Section 2.2(a)(ii), a
 
“Grace Period”), but
 
only if neither the
Company nor any
 
Member has a
 
duty to disclose
 
such material
 
non-public information
 
under
applicable law.
(b)
 
The Company
 
shall promptly
 
(i) notify the
 
Members in
 
writing of
 
the existence
 
of
circumstances giving
 
rise to
 
a Grace
 
Period (provided,
 
however, that
 
the Company
 
shall not
 
disclose the
substance of
 
such circumstances,
 
including any
 
related material
 
non-public information,
 
to any
 
Member,
without the
 
express consent
 
of such
 
Member) or
 
the need
 
to file
 
a post-effective
 
amendment or
 
amended
Resale Shelf
 
Prospectus Supplement,
 
as applicable,
 
and the
 
date on
 
which such
 
Grace Period
 
will begin,
(ii) use
 
commercially
 
reasonable
 
efforts
 
to
 
terminate
 
a
 
Grace
 
Period
 
as
 
promptly
 
as
 
practicable
 
and
(iii) notify the Members in writing of the date on which the Grace Period ends.
(c)
 
The duration of any single Grace Period shall not exceed
 
90 days, and the aggregate
duration of all Grace Periods in total shall
 
not exceed 120 days.
 
For purposes of determining the length of
a Grace Period, the Grace Period shall be
 
deemed to begin on and include the date
 
the Members receive the
notice referred to
 
in clause (i)
 
of Section 2.2(b)
 
of this
 
Exhibit A and shall end
 
on and
 
include the
 
later of
(i) the date the Members receive the notice referred to in clause (iii) of Section 2.2(b) of this Exhibit A and
(ii) the date referred to in such notice.
ARTICLE III
MEM
B
ERS’ O
B
LIGATIONS
3.1
It shall
 
be a
 
condition precedent
 
to the
 
obligations of
 
the Company
 
to take
 
any action
 
pursuant
to this Agreement with respect to the Subject Shares of a Member that such Member shall:
(a)
 
Furnish
 
to
 
the
 
Company
 
such
 
information
 
regarding
 
such
 
Member,
 
the
 
number
 
of
Common
 
Shares
 
beneficially
 
owned
 
by
 
such
 
Member
 
(within
 
the
 
meaning
 
of
 
the
 
Rule 13d-3
 
under
 
the
Exchange
 
Act), and
 
the intended
 
method of
 
disposition of
 
such Member’s
 
Subject Shares
 
as shall
 
be required
to effect the registration and Takedown of his or her Subject Shares, and to cooperate with the Company in
preparing such registration and Takedown; and
(b)
 
Agree
 
to
 
sell
 
Common
 
Shares
 
to
 
the
 
underwriters
 
at
 
the
 
price
 
and
 
on
 
terms
 
and
conditions, including the payment
 
of commissions, fees, costs
 
and expenses, set forth
 
in, and to execute,
 
the
underwriting agreement agreed to by such Member and the Company.
(c)
 
The
 
Members
 
shall
 
agree
 
to
 
a
 
standstill
 
agreement
 
to
 
the
 
extent
 
requested
 
by
 
the
Special Committee in connection with any Takedown.
ARTICLE IV
EXPENSES OF REGISTRATION
4.1
The Members participating in a Takedown, on the one hand, and
 
the Company, on the other
hand, shall
 
each bear
 
and pay
 
50% of
 
all expenses
 
incurred in
 
connection with
 
any registration,
 
filing, or
qualification of
 
Common Shares
 
with respect
 
to any
 
Resale Shelf
 
Registration Statement
 
(excluding any
underwriting
 
discounts
 
and
 
selling
 
commissions
 
and
 
all
 
legal
 
fees
 
and
 
expenses
 
of
 
legal
 
counsel
 
for
 
the
applicable Members), including
 
all registration, filing
 
and National Association of Securities
 
Dealers, Inc.
fees, all rating agency fees,
 
stock exchange listing fees, all
 
fees and expenses of complying
 
with securities
or blue
 
sky laws
 
(including fees
 
and expenses
 
of underwriters
 
counsel), all
 
word processing,
 
duplicating
and
 
printing
 
expenses,
 
messenger
 
and
 
delivery
 
expenses,
 
the
 
fees
 
and
 
disbursements
 
of
 
counsel
 
for
 
the
Company, and of
 
the Company’s independent
 
registered public accountants,
 
including the
 
expenses of “cold
 
 
 
 
 
 
 
 
 
 
 
comfort” letters required
 
by or incident
 
to such performance and
 
compliance (the “Registration Expenses”);
provided, however, that
 
if the Company
 
participates as an
 
issuer or seller
 
in any
 
Takedown, it will
 
pay 100%
of such costs
 
(excluding any underwriting
 
discounts and selling
 
commissions or any
 
legal fees and
 
expenses
of legal counsel for the applicable Members) and will pay its respective underwriting discounts and selling
commissions.
 
The Members participating in the Takedown will pay the fees to be paid by the Members on
a pro rata basis based on the number of shares being sold.
ARTICLE V
INDEMNIFICATION; CONTRI
B
UTION
5.1
If any Common Shares are included in a registration statement under this Exhibit A:
(a)
 
To
 
the
 
extent
 
permitted
 
by
 
applicable
 
law,
 
the
 
Company
 
shall
 
indemnify
 
and
 
hold
harmless each Member, such party’s heirs
 
(if applicable), successors and permitted assigns,
 
against any and
all
 
losses,
 
claims,
 
damages,
 
liabilities
 
and
 
reasonable
 
expenses
 
(joint
 
or
 
several),
 
including
 
reasonable
attorneys’ fees
 
and
 
disbursements
 
and
 
expenses
 
of
 
investigation,
 
incurred
 
by
 
such
 
party
 
pursuant
 
to
 
any
actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing persons may
become subject
 
under the
 
Securities Act, the
 
Exchange Act or
 
other federal
 
or state
 
laws, insofar
 
as such
losses,
 
claims,
 
damages,
 
liabilities
 
and
 
reasonable
 
expenses
 
arise
 
out
 
of
 
or
 
are
 
based
 
upon
 
any
 
of
 
the
following statements, omissions or violations (collectively a “Violation”):
(i)
 
Any untrue statement or alleged untrue
 
statement of a material fact contained
in
 
such
 
registration
 
statement,
 
including
 
any
 
preliminary
 
prospectus
 
or
 
final
 
prospectus
contained therein, or any amendments or supplements thereto;
(ii)
 
The omission
 
or alleged
 
omission to
 
state therein
 
a material
 
fact required
 
to
be stated therein, or necessary to make the statements therein not misleading; or
(iii)
 
Any violation or alleged violation by
 
the Company of the Securities Act,
 
the
Exchange Act,
 
any applicable
 
state securities
 
law or
 
any rule
 
or regulation
 
promulgated under
the Securities Act, the Exchange Act or any applicable state securities law;
provided, however, that the indemnification required by this
 
Section 5.1 shall not apply to amounts paid in
settlement of
 
any such
 
loss, claim,
 
damage, liability
 
or expense
 
if such
 
settlement is
 
effected without
 
the
consent of the
 
Company, nor shall the
 
Company be liable in
 
any such case
 
for any such
 
loss, claim, damage,
liability or expense to
 
the extent that
 
it arises out of
 
or is based upon
 
a Violation that occurs
 
in reliance upon
and in
 
conformity with
 
written information
 
furnished to
 
the Company
 
by the
 
indemnified party
 
expressly
for use in connection
 
with such registration;
 
provided further that
 
the indemnity agreement
 
contained in this
Section 5.1 shall not apply to any underwriter to the extent that
 
any such loss is based on or arises out of an
untrue statement or alleged
 
untrue statement of a
 
material fact, or an
 
omission or alleged omission to
 
state
a material fact, contained in or omitted
 
from any preliminary prospectus if the final
 
prospectus shall correct
such untrue statement or alleged untrue statement, or
 
such omission or alleged omission, and a copy of
 
the
final prospectus
 
has not
 
been sent
 
or given
 
to such
 
person at
 
or prior
 
to the
 
confirmation of
 
sale to
 
such
person if such underwriter was under
 
an obligation to deliver such final
 
prospectus and failed to do so.
 
The
Company shall also
 
indemnify underwriters,
 
selling brokers,
 
dealer managers
 
and similar
 
securities industry
professionals participating
 
in the
 
distribution, their
 
officers, directors,
 
agents and
 
employees and
 
each person
who
 
controls
 
such
 
persons
 
(within
 
the
 
meaning
 
of
 
Section 15
 
of
 
the
 
Securities Act
 
or
 
Section 20
 
of
 
the
Exchange Act) to the same extent as provided above with respect to the indemnification of the Members.
(b)
 
To
 
the
 
extent
 
permitted by
 
applicable
 
law,
 
each
 
Member
 
shall indemnify
 
and
 
hold
harmless
 
the
 
Company,
 
each
 
of
 
its
 
directors,
 
each
 
of
 
its
 
officers
 
who
 
shall
 
have
 
signed
 
the
 
registration
statement, each person, if any, who controls the Company within the meaning of the Securities
 
Act, against
 
 
 
 
 
 
 
 
 
 
 
any
 
and
 
all
 
losses,
 
claims,
 
damages,
 
liabilities
 
and
 
reasonable
 
expenses
 
(joint
 
and
 
several),
 
including
reasonable attorneys’
 
fees and disbursements
 
and expenses of
 
investigation, incurred by
 
such party pursuant
to any actual
 
or threatened action,
 
suit, proceeding or
 
investigation, or to
 
which any of
 
the foregoing
 
persons
may otherwise
 
become subject
 
under the
 
Securities Act, the
 
Exchange Act or
 
other federal
 
or state
 
laws,
insofar as
 
such losses,
 
claims, damages, liabilities
 
and reasonable
 
expenses arise
 
out of or
 
are based upon
any Violation by such Member,
 
in each case to the
 
extent (and only to the
 
extent) that such Violation
 
occurs
in
 
reliance
 
upon
 
and
 
in
 
conformity
 
with
 
written
 
information
 
furnished
 
by
 
such
 
Member
 
or
 
such
 
party’s
counsel expressly for use in connection with such registration; provided, however, that the indemnification
required by
 
this Section 5.1(b)
 
shall not
 
apply to
 
amounts paid
 
in settlement
 
of any
 
such loss,
 
claim, damage,
liability or expense if settlement is effected without the consent of the such Member.
(c)
 
Promptly after receipt by an indemnified party under
 
this Section 5.1 of notice of the
commencement of
 
any action,
 
suit, proceeding,
 
investigation or
 
threat thereof
 
made in
 
writing for
 
which
such indemnified party may
 
make a claim under
 
this Section 5.1, such indemnified
 
party shall deliver to
 
the
indemnifying party a
 
written notice of
 
the commencement thereof
 
and the indemnifying
 
party shall have
 
the
right
 
to
 
participate
 
in,
 
and,
 
to
 
the
 
extent
 
the
 
indemnifying
 
party
 
so
 
desires,
 
jointly
 
with
 
any
 
other
indemnifying party
 
similarly noticed,
 
to assume
 
the defense
 
thereof with
 
counsel mutually
 
satisfactory to
the parties; provided, however, that an indemnified party shall have the
 
right to retain its own counsel, with
the
 
fees
 
and
 
disbursements
 
and
 
expenses
 
to
 
be
 
paid
 
by
 
the
 
indemnifying
 
party,
 
if
 
representation
 
of
 
such
indemnified party by
 
the counsel retained
 
by the indemnifying
 
party would be
 
inappropriate due to
 
actual
or
 
potential
 
differing
 
interests
 
between
 
such
 
indemnified
 
party
 
and
 
any
 
other
 
party
 
represented
 
by
 
such
counsel
 
in
 
such
 
proceeding.
 
The
 
failure
 
to
 
deliver
 
written
 
notice
 
to
 
the
 
indemnifying
 
party
 
within
 
a
reasonable time following the commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 5.1
but
 
shall
 
not
 
relieve
 
the
 
indemnifying
 
party
 
of
 
any
 
liability
 
that
 
it
 
may
 
have
 
to
 
any
 
indemnified
 
party
otherwise
 
than
 
pursuant
 
to
 
this
 
Section 5.1.
 
Any
 
fees
 
and
 
expenses
 
incurred
 
by
 
the
 
indemnified
 
party
(including
 
any
 
fees
 
and
 
expenses
 
incurred
 
in
 
connection
 
with
 
investigating
 
or
 
preparing
 
to
 
defend
 
such
action or
 
proceeding) shall
 
be paid
 
to the
 
indemnified party,
 
as incurred,
 
within 30 days
 
of written
 
notice
thereof to
 
the indemnifying
 
party; provided,
 
however, that
 
such notice
 
is accompanied
 
by an
 
appropriate
undertaking to reimburse the
 
indemnifying party if it
 
is ultimately determined that
 
an indemnified party is
not
 
entitled
 
to
 
indemnification
 
hereunder.
 
Any
 
such
 
indemnified
 
party
 
shall
 
have
 
the
 
right
 
to
 
employ
separate counsel
 
in any
 
such action,
 
claim or
 
proceeding and
 
to participate
 
in the
 
defense thereof,
 
but the
fees
 
and
 
expenses
 
of
 
such
 
counsel
 
shall
 
be
 
the
 
expenses
 
of
 
such
 
indemnified
 
party
 
unless
 
(i) the
indemnifying party has agreed
 
to pay such fees
 
and expenses or (ii) the
 
indemnifying party shall have
 
failed
to promptly
 
assume the
 
defense of
 
such action,
 
claim or
 
proceeding or
 
(iii) the named
 
parties to
 
any such
action, claim or proceeding (including
 
any impleaded parties) include both
 
such indemnified party and the
indemnifying party, and
 
such indemnified party
 
shall have been
 
advised by counsel
 
that there may
 
be one
or
 
more
 
legal
 
defenses
 
available
 
to
 
it
 
that
 
are
 
different
 
from
 
or
 
in
 
addition
 
to
 
those
 
available
 
to
 
the
indemnifying
 
party
 
and
 
that
 
the
 
assertion
 
of
 
such
 
defenses
 
would
 
create
 
a
 
conflict
 
of
 
interest
 
such
 
that
counsel employed by the indemnifying party could not faithfully represent the indemnified party (in which
case, if
 
such indemnified
 
party notifies
 
the indemnifying
 
party in
 
writing that
 
it elects
 
to employ
 
separate
counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume
the defense
 
of such
 
action, claim
 
or proceeding
 
on behalf
 
of such
 
indemnified party,
 
it being
 
understood,
however, that the indemnifying party
 
shall not, in connection
 
with any one such action,
 
claim or proceeding
or separate but
 
substantially similar or
 
related actions, claims
 
or proceedings in
 
the same jurisdiction
 
arising
out of the same general allegations
 
or circumstances, be liable for
 
the reasonable fees and expenses
 
of more
than
 
one
 
separate
 
firm
 
of
 
attorneys
 
(together
 
with
 
appropriate
 
local
 
counsel)
 
at
 
any
 
time
 
for
 
all
 
such
indemnified parties, unless in the reasonable judgment of such
 
indemnified party a conflict of interest may
exist between such indemnified party and
 
any other of such indemnified parties with
 
respect to such action,
claim or proceeding, in which event the indemnifying party shall be obligated to pay the fees and expenses
of such additional counsel
 
or counsels).
 
No indemnifying party shall
 
be liable to an
 
indemnified party for
 
 
 
 
 
 
 
 
 
any settlement
 
of any
 
action, proceeding
 
or claim
 
without the
 
written consent
 
of the
 
indemnifying party,
which consent shall not be unreasonably withheld.
(d)
 
If
 
the
 
indemnification
 
required
 
by
 
this
 
Section 5.1
 
from
 
the
 
indemnifying
 
party
 
is
unavailable
 
to
 
an
 
indemnified
 
party
 
hereunder
 
in
 
respect
 
of
 
any
 
losses,
 
claims,
 
damages,
 
liabilities
 
or
expenses referred to in this Section 5.1:
(i)
 
The indemnifying party, in lieu
 
of indemnifying such
 
indemnified party, shall
contribute to the
 
amount paid or
 
payable by such
 
indemnified party as
 
a result of
 
such losses,
claims,
 
damages,
 
liabilities
 
or
 
expenses
 
in
 
such
 
proportion
 
as
 
is
 
appropriate
 
to
 
reflect
 
the
relative fault
 
of the
 
indemnifying party
 
and indemnified
 
parties in
 
connection with
 
the actions
that
 
resulted
 
in
 
such
 
losses,
 
claims,
 
damages,
 
liabilities
 
or
 
expenses,
 
as
 
well
 
as
 
any
 
other
relevant
 
equitable
 
considerations.
 
The
 
relative
 
fault
 
of
 
such
 
indemnifying
 
party
 
and
indemnified parties
 
shall
 
be
 
determined
 
by
 
reference
 
to,
 
among other
 
things,
 
whether
 
any
Violation
 
has been committed
 
by,
 
or relates to
 
information supplied by,
 
such indemnifying
party
 
or
 
indemnified
 
parties,
 
and
 
the
 
parties’
 
relative
 
intent,
 
knowledge,
 
access
 
to
information
 
and
 
opportunity
 
to
 
correct
 
or
 
prevent
 
such
 
Violation.
 
The
 
amount
 
paid
 
or
payable by a party
 
as a result of
 
the losses, claims, damages,
 
liabilities and expenses referred
to above
 
shall be
 
deemed to
 
include, subject
 
to the
 
limitations set
 
forth in
 
this Section 5.1,
any legal or other fees
 
or expenses reasonably incurred by
 
such party in connection with
 
any
investigation or proceeding.
(ii)
 
The parties hereto agree that it
 
would not be just and
 
equitable if contribution
pursuant to this
 
Section 5.1 were determined
 
by pro rata
 
allocation or
 
by any other
 
method
of allocation
 
that does
 
not take
 
into account
 
the equitable
 
considerations referred
 
to in
 
this
Section 5.1.
 
No
 
person
 
guilty
 
of
 
fraudulent
 
misrepresentation
 
(within
 
the
 
meaning
 
of
Section 11(f) of the
 
Securities Act)
 
shall be
 
entitled to
 
contribution from any
 
person who
 
was
not guilty of such fraudulent misrepresentation.
(e)
 
If indemnification is
 
available under this
 
Section 5.1, the indemnifying
 
parties shall
indemnify each
 
indemnified party
 
to the
 
full extent
 
provided in
 
this Section 5.1
 
without regard
 
to the
 
relative
fault of such
 
indemnifying party or indemnified
 
party or any
 
other equitable consideration
 
referred to in
 
this
Section 5.1.
(f)
 
The obligations
 
of the
 
Company and
 
the Members
 
under this
 
Section 5.1 shall
 
survive
the completion
 
of any
 
offering of
 
Common Shares
 
pursuant to
 
a registration
 
statement under
 
this
 
Agreement,
and otherwise.
ARTICLE VI
OTHER COVENANTS OF THE COMPANY
6.1
The Company hereby agrees and covenants as follows:
(a)
 
The Company
 
shall file as
 
and when
 
applicable, on a
 
timely basis, all
 
reports required
to be filed by it under the Exchange Act.
(b)
 
The Company shall
 
not, directly or
 
indirectly, (i) enter into
 
any merger, consolidation
or reorganization in which the Company shall
 
not be the surviving corporation or (ii) sell
 
or agree to sell all
or substantially all the Company’s
 
assets, unless prior to such
 
merger, consolidation, reorganization or asset
sale,
 
the
 
surviving
 
corporation or
 
the transferee,
 
respectively,
 
shall
 
have agreed
 
in
 
writing
 
to
 
assume the
obligations of
 
the Company
 
under this Agreement, with
 
respect to
 
any securities
 
that the
 
Members would
be
 
entitled
 
to
 
receive
 
in
 
exchange
 
for
 
Common
 
Shares
 
pursuant
 
to
 
any
 
such
 
merger,
 
consolidation
 
or
reorganization.
[Remainder of Page Intentionally Left Blank]
FORM OF
RESTATED CHARTER
(Please see Exhibit 99.2 to Cal-Maine Foods, Inc.’s Current Report on Form 8-K filed on February 25,
2025)
OMITTED
FORM OF
RESTATED BYLAWS
(Please see Exhibit 99.3 to Cal-Maine Foods, Inc.’s Current Report on Form 8-K filed on February 25,
2025)
FORM OF
DAUGHTERS’ LLC
 
AMENDMENT
 
(See attached.)
 
DLNL, LLC
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY
OPERATING AGREEMENT
Dated as of February 25, 2025
TABLE OF CONTENTS
Recitals .......................................................................................................................................
 
1
Article I Defined Terms ............................................................................................................
 
2
1.1
 
Defined Terms .....................................................................................................
 
2
1.2
 
Interpretation .......................................................................................................
 
5
Article II Organization .............................................................................................................
 
5
2.1
 
Formation ............................................................................................................
 
5
2.2
 
Name ...................................................................................................................
 
6
2.3
 
Principal Office ...................................................................................................
 
6
2.4
 
Registered Office; Registered Agent
 
...................................................................
 
6
2.5
 
Purpose; Powers ..................................................................................................
 
6
2.6
 
Term ....................................................................................................................
 
6
2.7
 
Tax Status of the LLC .........................................................................................
 
7
2.8
 
No State Law Partnership
 
....................................................................................
 
7
Article III Units .........................................................................................................................
 
7
3.1
 
Units Generally
 
....................................................................................................
 
7
3.2
 
Authorization and Issuance of Class A Units
 
......................................................
 
8
3.3
 
Authorization and Issuance of Common Units ...................................................
 
8
3.4
 
Certificates Representing Units
 
...........................................................................
 
8
Article IV Members
 
...................................................................................................................
 
8
4.1
 
Admission of New Members
 
...............................................................................
 
8
4.2
 
No Personal Liability
 
...........................................................................................
 
8
4.3
 
No Withdrawal ....................................................................................................
 
9
4.4
 
Death ...................................................................................................................
 
9
4.5
 
Voting ..................................................................................................................
 
9
Article V Contribution of Company Shares ...........................................................................
 
9
5.1
 
Shares to be Contributed to LLC
 
.........................................................................
 
9
5.2
 
Contribution of Shares
 
.........................................................................................
 
10
5.3
 
Inspection, Disclosure and Public Filing of the Agreement
 
................................
 
10
Article VI Membership Certificates ........................................................................................
 
11
6.1
 
Issuance of Membership Certificates ..................................................................
 
11
6.2
 
Form of Certificates
 
.............................................................................................
 
11
6.3
 
Replacement of Certificates ................................................................................
 
11
6.4
 
Membership Interest Register .............................................................................
 
11
6.5
 
Record Date
 
.........................................................................................................
 
11
Article VII Redemption or Conversion of Shares ..................................................................
 
11
7.1
 
No Redemption of Class A Shares
 
......................................................................
 
11
7.2
 
Conversion
 
...........................................................................................................
 
12
7.3
 
Redemption of Common Shares
 
..........................................................................
 
12
7.4
 
Transfers of Shares
 
..............................................................................................
 
13
Article VIII Transfers of Membership Interests ....................................................................
 
13
8.1
 
Permissible Transfers; Restrictions on Transfer ................................................. 13
8.2
 
Transfers
 
..............................................................................................................
 
13
8.3
 
Transferees Bound by Agreement
 
.......................................................................
 
13
8.4
 
Other Requirements for Transfers
 
.......................................................................
 
14
Article IX Dividends and Certain Changes to Stock
 
..............................................................
 
14
9.1
 
LLC to Distribute Cash Dividends
 
......................................................................
 
14
9.2
 
Distributions other than Cash
 
..............................................................................
 
14
9.3
 
No Distributions in Violation of Law
 
..................................................................
 
15
9.4
 
Certain Changes to Class A Shares or Common Shares .....................................
 
15
Article X Capital Contributions; Capital Accounts
 
...............................................................
 
15
10.1
 
Initial Capital Contributions
 
................................................................................
 
15
10.2
 
Additional Capital Contributions ........................................................................
 
16
10.3
 
Maintenance of Capital Accounts .......................................................................
 
16
10.4
 
Succession Upon Transfer
 
...................................................................................
 
16
10.5
 
Treasury Regulations
 
...........................................................................................
 
16
Article XI Allocations
 
................................................................................................................
 
16
11.1
 
Allocation of Net Income and Net Loss
 
..............................................................
 
16
11.2
 
Tax Allocations ...................................................................................................
 
16
Article XII Management of LLC; Voting
 
and Other Rights and Powers of Members
 
......
 
17
12.1
 
Management of the LLC .....................................................................................
 
17
12.2
 
Managing Member Rights and Powers ...............................................................
 
17
12.3
 
Contributed Shares to be Voted
 
as a Unit ...........................................................
 
17
12.4
 
Failure to Achieve a Majority if there is more than one Managing Member
 
......
 
18
12.5
 
Certain Transactions Require Joint Consent of Managing Member and Non-Managing
Members
 
..............................................................................................................
 
18
12.6
 
Powers of LLC ....................................................................................................
 
19
12.7
 
Sale or Conversion of Contributed Shares by Managing Member .....................
 
20
12.8
 
Meetings and Procedures
 
.....................................................................................
 
20
12.9
 
Voting
 
by Managing Members if there are more than one Managing Member
 
..
 
20
12.10
 
Status of Managing Members
 
..............................................................................
 
20
12.11
 
Removal of Managing Member ..........................................................................
 
21
12.12
 
Resignation of Managing Members ....................................................................
 
21
12.13
 
Costs and Expenses .............................................................................................
 
21
12.14
 
Other Relationships Between Managing Member and Company
 
.......................
 
21
12.15
 
Compensation of Managing Member
 
..................................................................
 
21
12.16
 
Responsibility of Managing Member
 
..................................................................
 
21
12.17
 
Reliance by Managing Member ..........................................................................
 
22
12.18
 
Legal Compliance by Managing Member
 
...........................................................
 
22
Article XIII Exculpation and Indemnification .......................................................................
 
22
13.1
 
Exculpation; Indemnification of Members
 
..........................................................
 
22
Article XIV Records, Accounting and Tax
 
Matters
 
...............................................................
 
24
14.1
 
Records Required by the Delaware Act ..............................................................
 
24
14.2
 
Book and Records ...............................................................................................
 
24
14.3
 
Accounting Methods; Fiscal Year .......................................................................
 
24
14.4
 
LLC Funds
 
...........................................................................................................
 
24
14.5
 
Tax Matters Member ...........................................................................................
 
24
Article XV Dissolution and Liquidation
 
..................................................................................
 
25
15.1
 
Events of Dissolution ..........................................................................................
 
25
15.2
 
Effectiveness of Dissolution
 
................................................................................
 
25
15.3
 
Liquidation ..........................................................................................................
 
25
15.4
 
Cancellation of Certificate of Formation
 
.............................................................
 
26
Article XVI Representations and Warranties of Members
 
...................................................
 
26
16.1
 
Representations and Warranties ..........................................................................
 
26
Article XVII Covenants ............................................................................................................
 
27
17.1
 
Confidentiality
 
.....................................................................................................
 
27
Article XVIII General Provisions ............................................................................................
 
27
18.1
 
Successors and Assigns
 
.......................................................................................
 
27
18.2
 
Notices
 
.................................................................................................................
 
27
18.3
 
Amendment of Agreement
 
..................................................................................
 
28
18.4
 
Costs and Expenses .............................................................................................
 
28
18.5
 
Severability of Provisions ...................................................................................
 
28
18.6
 
Controlling Law; Submission to Jurisdiction; Specific Performance .................
 
28
18.7
 
Construction of Agreement .................................................................................
 
29
18.8
 
Multiple Counterparts
 
..........................................................................................
 
29
18.9
 
Entire Agreement ................................................................................................
 
29
18.10
 
No Third-party Beneficiaries
 
...............................................................................
 
29
 
 
 
 
 
 
 
 
 
 
 
 
Amended and Restated
Limited Liability Company Operating Agreement
 
dated as of February 25, 2025
This
 
AMENDED
 
AND
 
RESTATED
 
LIMITED
 
LIABILITY
 
COMPANY
 
OPERATING
AGREEMENT (the
 
“Agreement”) is
 
made as
 
of February 25, 2025
 
(the “Restatement
 
Date”), by
 
and among
DLNL, LLC (the
 
“LLC”), ▇▇▇▇▇▇▇▇ ▇.
 
▇▇▇▇▇, as the initial Managing
 
Member (“Managing Member”),
 
and
the Non-Managing
 
Members (“Non-Managing
 
Members”) identified
 
on the
 
signature pages
 
hereto (such
persons, together with
 
any Persons who become
 
members of the
 
LLC in accordance
 
with this Agreement,
the “Members”).
RECITALS
WHEREAS,
 
the
 
LLC
 
has
 
been
 
formed
 
to
 
invest
 
in
 
shares
 
of
 
Class A
 
Common
 
Stock,
 
par
 
value
$0.01 per
 
share (“Class A
 
Shares”), and
 
shares of
 
Common Stock,
 
par value
 
$0.01 per
 
share (“Common
Shares”), of Cal-Maine Foods, Inc., a Delaware corporation (the “Company”);
WHEREAS, effective
 
as of
 
July 20, 2018, the
 
initial owners
 
of Membership
 
Interests entered
 
into
the Limited Liability Company Operating Agreement for the LLC (the “Existing Operating Agreement”);
WHEREAS, the
 
Company’s capital stock
 
consists of:
 
(i) Common Shares,
 
which are
 
publicly traded
on
 
the
 
NASDAQ
 
under
 
the
 
symbol
 
“CALM,”
 
and
 
(ii) Class A
 
Shares,
 
which
 
are
 
privately
 
held
 
and
 
not
publicly traded, but are
 
convertible on a share-for-share basis
 
into Common Shares at
 
any time at the
 
option
of the holder thereof;
WHEREAS, the
 
Common Shares
 
have one
 
vote per
 
share and
 
Class A Shares
 
have ten
 
votes per
share on
 
all matters
 
on which
 
such shares
 
are entitled
 
to vote
 
and certain
 
other differences,
 
but otherwise
have substantially similar rights, powers and privileges;
WHEREAS, each of the Members, including
 
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, is
 
an Immediate Family Member
or
 
Permitted
 
Transferee
 
(in
 
each
 
case,
 
as
 
defined
 
in
 
the
 
Company’s
 
Second
 
Amended
 
and
 
Restated
Certificate of Incorporation, as amended from time to time (the “Restated Charter”));
WHEREAS, the LLC is also a Permitted Transferee;
WHEREAS, the LLC currently owns Common Shares, as well
 
as 100% of the outstanding Class
A
Shares;
WHEREAS,
 
the
 
Class A
 
Shares
 
currently
 
represent
 
over
 
50%
 
of
 
the
 
total
 
voting
 
power
 
of
 
the
outstanding
 
shares
 
of
 
the
 
Company
 
in
 
the
 
election
 
of
 
directors
 
and
 
matters
 
other
 
than
 
the
 
election
 
of
directors;
WHEREAS,
 
the
 
Members
 
(and/or
 
their
 
respective
 
predecessors-in-interest)
 
formed
 
the
 
LLC
 
and
entered into the Existing
 
Operating Agreement to permit
 
the Immediate Family and
 
Permitted Transferees
to continue to own and retain, directly or indirectly, Class A Shares to maintain control of the Company,
 
in
order to provide for the long-term, stable and consistent ownership and governance of the Company;
WHEREAS, in furtherance of such
 
purpose, the Existing Operating Agreement
 
conferred upon the
Managing Member the right to vote and to act with respect to the Class A Shares and Common Shares that
they (and/or their respective predecessors-in-interest) have contributed to the
 
LLC, subject to the terms and
conditions of this Agreement;
 
 
 
 
 
 
 
 
 
 
 
 
 
WHEREAS, contemporaneously with the execution of
 
this Agreement, the LLC, the Members
 
and
the Company have entered
 
into that certain Agreement
 
Regarding Conversion dated as
 
of the Restatement
Date, pursuant
 
to which
 
the Company
 
has agreed
 
to take
 
certain corporate
 
actions to
 
address the
 
fact that
the LLC and the Members have expressed
 
a potential interest in monetizing all or
 
a portion of the Common
Shares owned
 
by the
 
LLC and
 
the Common
 
Shares underlying
 
the Class A
 
Shares owned
 
by the
 
LLC, which
corporate actions
 
include (a) amending
 
and restating
 
the Restated
 
Charter,
 
(b) amending and
 
restating the
Company’s Bylaws,
 
and (c) effective upon the conversion
 
by the LLC of all Class A Shares
 
into Common
Shares, granting
 
the LLC
 
and the
 
Members certain
 
rights to
 
cause the
 
sale or
 
transfer of
 
Common Shares
owned by
 
the LLC
 
or such
 
Members to
 
be registered
 
under the
 
Securities Act,
 
in each
 
case, on
 
the terms
and subject
 
to the
 
conditions set
 
forth therein
 
(as amended
 
from time
 
to time,
 
the “Agreement
 
Regarding
Conversion”);
WHEREAS, the Board of
 
Directors of the Company
 
(taking into account the
 
recommendation of a
Special Committee of the Board
 
of Directors, consisting solely of
 
independent directors) has approved the
Company’s
 
execution and performance
 
by the Company
 
of the Agreement
 
Regarding Conversion and
 
the
actions and transactions contemplated thereby; and
WHEREAS, in
 
consideration of
 
the foregoing
 
and in
 
order to
 
facilitate the
 
conversion of
 
Class
A
Shares contemplated
 
by the
 
Agreement Regarding
 
Conversion, the
 
LLC and
 
the Members
 
hereby amend
and restate the
 
Existing Operating Agreement,
 
in accordance with
 
the Delaware Limited
 
Liability Company
Act, as follows:
ARTICLE I
DEFINED TERMS
1.1
 
Defined Terms.
“Agreement Regarding Conversion” has the meaning set forth in the Recitals.
“Applicable
 
Law”
 
means
 
all
 
applicable
 
provisions
 
of
 
(a) constitutions,
 
treaties,
 
statutes,
 
laws
(including the common
 
law), rules, regulations,
 
decrees, ordinances, codes,
 
proclamations, declarations or
orders of any Governmental Authority; (b) any
 
consents or approvals of any Governmental
 
Authority; and
(c) any orders, decisions, advisory or interpretative
 
opinions, injunctions, judgments, awards, decrees of,
 
or
agreements with, any Governmental Authority.
“Business” has the meaning set forth in Section 2.5(a).
“Capital Account” has the meaning set forth in Section 10.3.
“Capital Contribution” means,
 
for any Member,
 
the total amount
 
of cash and
 
cash equivalents and
the value of any property contributed to the LLC by such Member.
“Class A Shares” means Class A Common Stock, par value $0.01 per share, of the Company.
“Class A Unit”
 
means a
 
Unit representing
 
a fractional
 
part of
 
the Membership
 
Interests issued
 
by
the LLC in exchange for one Class A Share.
“Code” means the Internal Revenue Code of 1986, as amended.
“Common Shares” means Common Stock, par value $0.01 per share, of the Company.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
“Common Unit” means a
 
Unit representing a fractional
 
part of the Membership
 
Interests issued by
the LLC
 
in exchange
 
for one
 
Common Share
 
or in
 
connection with
 
the conversion
 
of Class
 
A Shares
 
in
accordance with Section 7.2.
“Company” means Cal-Maine Foods, Inc., a Delaware corporation.
“Contributed Shares” has the meaning set forth in Section 5.1.
“Daughters’
 
Revocable
 
Trust”
 
means
 
the
 
▇▇▇▇
 
▇.
 
▇▇▇▇▇,
 
▇▇.
 
Daughters’
 
Trust
 
formed
 
under
agreement dated July 20, 2018, of which
 
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇
 
▇▇▇▇ ▇▇▇▇▇ serve as co-trustees
 
and
▇▇▇▇
 
▇.
 
▇▇▇▇▇,
 
▇▇.
 
is
 
the
 
lifetime
 
beneficiary,
 
and
 
of
 
which
 
his
 
four
 
daughters
 
are
 
remainderman
beneficiaries.
“Delaware Act”
 
means the
 
Delaware Limited
 
Liability
 
Company Act,
 
Title 6,
 
Chapter 18,
 
§§ 18-
101,
 
et seq.
, and any successor statute, as it may be amended from time to time.
“Effective Date” has the meaning set forth in Section 5.2(a).
“Existing Operating Agreement” has the meaning set forth in the Recitals.
“Governmental
 
Authority”
 
means
 
any
 
federal,
 
state,
 
local
 
or
 
foreign
 
government
 
or
 
political
subdivision thereof,
 
or any
 
agency or
 
instrumentality of
 
such government
 
or political
 
subdivision, or
 
any
self-regulated organization or
 
other non-governmental regulatory
 
authority or quasi-governmental
 
authority
(to the extent
 
that the rules,
 
regulations or orders
 
of such organization
 
or authority have
 
the force of
 
law),
or any arbitrator, court or tribunal of competent jurisdiction.
“Immediate Family Member” has the meaning set forth in the Recitals.
“Initial Dissolution Date” has the meaning set forth in Section 2.6(a).
“Joinder” means the Joinder agreement in form and substance attached hereto as Exhibit C.
“Joinder
 
of Managing
 
Member”
 
means the
 
Joinder of
 
Managing Member
 
agreement in
 
form
 
and
substance attached hereto as Exhibit D.
“Managing
 
Member”
 
means,
 
initially,
 
▇▇▇▇▇▇▇▇
 
▇.
 
▇▇▇▇▇,
 
or
 
such
 
other
 
Member
 
as
 
may
 
be
designated or become a Managing Member pursuant to the terms of this Agreement.
“Member” means (a) each
 
Person identified on
 
Exhibit B as of
 
the date hereof
 
as a Member
 
and who
has executed this Agreement or a counterpart thereof; and (b) and each Person who is hereafter
 
admitted as
a Member
 
in accordance
 
with the
 
terms of
 
this Agreement
 
and the
 
Delaware Act,
 
in each
 
case so
 
long as
such Person is shown
 
on the LLC’s books and records as
 
the owner of one
 
or more Units or
 
has entered into
an agreement
 
or commitment
 
to contribute
 
Class A Shares
 
and/or Common
 
Shares in
 
exchange or
 
one or
more Units.
 
The Members shall constitute the
 
“members” (as that term is
 
defined in the Delaware Act)
 
of
the LLC.
“Members Schedule” has the meaning set forth in Section 3.1.
“Membership
 
Certificate”
 
means
 
a
 
certificate
 
issued
 
by
 
the
 
LLC
 
to
 
a
 
Member
 
evidencing
 
Units
owned by such Member in accordance with Article VI of this Agreement.
“Membership Interest” means
 
an interest in
 
the LLC owned
 
by a Member, including
 
such Member’s
right (based on the type and
 
class of Unit or Units held
 
by such Member), as applicable, (a) to
 
a distributive
 
 
 
 
 
 
 
 
 
 
 
 
 
 
share
 
of net
 
income,
 
net losses
 
and other
 
items of
 
income, gain,
 
loss
 
and deduction
 
of the
 
LLC;
 
(b) to
 
a
distributive share of the
 
assets of the LLC;
 
(c) to vote on, consent
 
to or otherwise participate
 
in any decision
of the Members as provided in this Agreement; and (d) to any and all other benefits to
 
which such Member
may
 
be
 
entitled
 
as
 
provided
 
in
 
this
 
Agreement
 
or
 
the
 
Delaware
 
Act.
 
The
 
Membership
 
Interest
 
of
 
each
Member shall be expressed as a
 
number of Class A Units or Common Units,
 
which Units shall be equal to
the number of Class A
 
Shares or Common Shares,
 
as applicable, that such
 
Member contributed in
 
exchange
for such Units,
 
taking into account
 
permitted conversions and
 
redemptions.
 
Exhibit F sets forth,
 
as of the
Restatement Date,
 
the number
 
of Class A
 
Units and
 
Common Units
 
held by
 
each Member,
 
together with
the number Class A Shares or Common Shares, as applicable, contributed by or on behalf of such Member
in exchange for such Units.
“Non-Managing Member” means at any time each Member that is not the Managing Member.
“Permitted Transferee”
 
has the meaning set forth in the Recitals.
“Person”
 
means
 
an
 
individual,
 
corporation,
 
partnership,
 
joint
 
venture,
 
limited
 
liability
 
company,
Governmental Authority, unincorporated organization,
 
trust, association or other entity.
“Restated Charter” has the meaning set forth in the Recitals.
“Revocable
 
Trust”
 
means
 
the
 
Daughters’
 
Revocable
 
Trust
 
and
 
any
 
successor
 
to
 
the
 
Daughters’
Revocable Trust.
“Restatement Date” has the meaning set forth in the Preamble.
“
Securities Act
”
 
means the Securities
 
Act of 1933,
 
as amended, or
 
any successor federal
 
statute, and
the rules and regulations thereunder, which shall be in effect at the time.
“Tax Matters Member” has the meaning set forth in Section 14.6(a).
“Treasury
 
Regulations”
 
means
 
the
 
final
 
or
 
temporary
 
regulations
 
issued
 
by
 
the
 
United
 
States
Department of Treasury pursuant to its authority under the Code, and any successor regulations.
“Unit” means a unit representing a
 
fractional part of the Membership Interests
 
of the Members and
shall include all types
 
and classes of Units,
 
including the Class A Units
 
and the Common Units;
 
provided,
however, that
 
any type or
 
class of Unit
 
shall have the
 
privileges, preference, duties,
 
liabilities, obligations
and rights
 
set forth
 
in this
 
Agreement and
 
the Membership
 
Interests represented
 
by such
 
type or
 
class of
Unit shall be determined
 
in accordance with such
 
privileges, preference, duties,
 
liabilities, obligations and
rights.
1.2
 
Interpretation.
 
For
 
purposes
 
of
 
this
 
Agreement,
 
(a) the
 
words
 
“include,”
 
“includes”
 
and
“including”
 
shall
 
be
 
deemed
 
to
 
be
 
followed
 
by
 
the
 
words
 
“without
 
limitation”;
 
(b) the
 
word
 
“or”
 
is
 
not
exclusive; and (c) the
 
words “herein,” “hereof,”
 
“hereby,”
 
“hereto” and “hereunder”
 
refer to this
 
Agreement
as a whole.
 
The definitions given
 
for any defined
 
terms in this
 
Agreement shall apply
 
equally to both
 
the
singular and
 
plural forms
 
of the
 
terms defined.
 
Whenever the
 
context may
 
require, any
 
pronoun shall
 
include
the corresponding
 
masculine, feminine
 
and neuter
 
forms.
 
The headings
 
used herein
 
are for
 
convenience
only, are not
 
part of
 
the article,
 
section or
 
subsection to
 
which they
 
relate, and
 
are not
 
to be
 
used in
 
construing
the legal intent of this instrument.
 
Unless the context otherwise requires,
 
references herein:
 
(x) to Articles,
Sections, and Exhibits
 
mean the
 
Articles and Sections
 
of, and Exhibits
 
attached to, this
 
Agreement; (y) to
an
 
agreement,
 
instrument
 
or
 
other
 
document
 
means
 
such
 
agreement,
 
instrument
 
or
 
other
 
document
 
as
amended, supplemented
 
and modified
 
from time
 
to time
 
to the
 
extent permitted
 
by the
 
provisions thereof
and (z) to a statute means such statute as amended from time to time and includes any successor legislation
 
 
 
 
 
thereto and any regulations promulgated
 
thereunder.
 
This Agreement shall be construed without
 
regard to
any presumption or rule requiring
 
construction or interpretation against the
 
party drafting an instrument or
causing any
 
instrument to
 
be drafted.
 
The Exhibits
 
referred to
 
herein shall
 
be construed
 
with, and
 
as an
integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
ARTICLE II
ORGANI
Z
ATION
2.1
 
Formation.
(a)
 
The LLC was
 
formed on or
 
prior to July 20, 2018,
 
pursuant to the
 
provisions of the
Delaware Act, upon the filing of the Certificate of Formation
 
of the LLC with the Secretary
 
of State of the
State of Delaware.
(b)
 
This Agreement
 
shall constitute
 
the “limited
 
liability company
 
agreement” (as
 
that
term is used in
 
the Delaware Act) of the LLC.
 
The rights, powers, duties,
 
obligations and liabilities of
 
the
Members
 
shall
 
be
 
determined
 
pursuant
 
to
 
the
 
Delaware Act
 
and
 
this Agreement.
 
To
 
the
 
extent
 
that
 
the
rights, powers, duties, obligations and liabilities of any Member are different by reason of any provision of
this Agreement
 
than they would
 
be under the
 
Delaware
 
Act in the
 
absence of such
 
provision, this
 
Agreement
shall, to the extent permitted by the Delaware Act, control.
2.2
 
Name.
 
The name
 
of the
 
LLC is
 
“DLNL, LLC”
 
or such
 
other name
 
or names
 
as the
 
Managing
Member may from time
 
to time designate; provided,
 
however, that the name shall always
 
contain the words
“Limited
 
Liability
 
Company”
 
or
 
the
 
abbreviation
 
“L.L.C.”
 
or
 
the
 
designation
 
“LLC.”
 
The
 
Managing
Member shall give prompt notice to each of the Members of any change to the name of the LLC.
2.3
 
Principal
 
Office.
 
The
 
principal
 
office
 
of
 
the
 
LLC
 
is
 
located
 
at
 
c/o
 
Cal-Maine
 
Foods,
Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
 
▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other place as may from time
to time be determined
 
by the Managing Member.
 
The Managing Member shall
 
give prompt notice of any
such change to each of the Members.
2.4
 
Registered Office; Registered Agent.
(a)
 
The
 
registered
 
office
 
of
 
the
 
LLC
 
shall
 
be
 
251 Little
 
Falls
 
Drive,
 
Wilmington,
 
DE
19808 or
 
such other
 
office (which
 
need not
 
be a
 
place of
 
business of
 
the LLC)
 
as the
 
Managing Member
may designate from time to time in the manner provided by the Delaware Act and
 
Applicable Law.
(b)
 
The registered agent for service of process on the
 
LLC in the State of Delaware shall
be Corporation Service Company or such other Person or Persons as the Managing Member may designate
from time to time in the manner provided by the Delaware Act and
 
Applicable Law.
2.5
 
Purpose; Powers.
(a)
 
The
 
purpose
 
of
 
the
 
LLC
 
is
 
to
 
acquire,
 
vote
 
and
 
hold,
 
either
 
alone
 
or
 
with
 
other
Persons,
 
securities
 
of
 
the
 
Company,
 
to
 
convert
 
Class A
 
Shares
 
in
 
accordance
 
with
 
Section 7.2,
 
transfer
Common Shares in redemption of Common Units in accordance with Section 7.3 and to engage in any and
all
 
activities
 
necessary
 
or
 
incidental
 
thereto
 
(the
 
“Business”).
 
The
 
LLC
 
shall
 
not
 
engage
 
in
 
any
 
other
operating or investment activities.
(b)
 
The LLC shall have all the powers necessary or convenient to carry out the purposes
for which it is formed, including the powers granted by the Delaware Act.
 
 
 
 
 
 
 
 
 
2.6
 
Term
 
.
(a)
 
Initial Dissolution Date.
 
The term of the LLC commenced on the date the
Certificate of Formation of the LLC was filed with the Secretary of State of the State of Delaware.
 
The
LLC shall continue until the tenth anniversary after the death of ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. (the “Initial
Dissolution Date”), unless renewed or sooner dissolved and terminated as herein provided.
(b)
 
Extension.
 
Prior to the Initial Dissolution Date, subject to the consent of Members
holding no less than a majority of the voting power of the Units at the time, the Managing Member may
elect to extend the term of the LLC and this Agreement for an extended term of up to ten years after the
Initial Dissolution Date.
 
In such event, not later than thirty days prior to the Initial Dissolution Date, the
Managing Member shall notify all other Members that the initial term of the LLC will be extended and the
date, not later than ten years after the Initial Dissolution Date, of the extended dissolution date (the
“Extended Dissolution Date”).
(c)
 
Additional Extensions.
 
Prior to the Extended Dissolution Date, subject to the
consent of Members holding no less than a majority of the voting power of the Units at the time, the
Managing Member may elect to extend the term of the LLC and this Agreement for an additional
extended term of up to ten years after the Extended Dissolution Date, and may further elect to
successively extend the term of the LLC and this Agreement for additional extended terms of up to ten
years each after the last applicable subsequent extended dissolution date (“Subsequent Extended
Dissolution Date”).
 
In such event, not later than thirty days prior to the applicable Subsequent Extended
Dissolution Date, the Managing Member shall notify all other Members that the term of the LLC will be
extended and the date, not later than ten years after the last Subsequent Extended Dissolution Date, of the
new Subsequent Extended Dissolution Date.
(d)
 
Notwithstanding the foregoing,
 
the LLC may be
 
earlier dissolved and
 
terminated as
provided in Article XV.
2.7
 
Tax
 
Status of the LLC.
 
At all times that the LLC
 
has only one Member,
 
the LLC shall be
disregarded for
 
federal and,
 
if applicable,
 
state and
 
local income
 
tax purposes.
 
At all
 
times that
 
the LLC
has more than
 
one Member,
 
the Members intend
 
that the LLC
 
shall be treated
 
as a partnership
 
for federal
and, if applicable, state and local
 
income tax purposes, and, to the
 
extent permissible, the LLC shall elect
 
to
be
 
treated
 
as
 
a
 
partnership
 
for
 
such
 
purposes.
 
The
 
Managing
 
Member
 
shall
 
cause
 
to
 
be
 
prepared
 
and
provided to
 
each Member
 
all necessary
 
or appropriate
 
income tax
 
information, including,
 
if requested
 
by
such Member, a copy of the federal, state and local income tax or information returns for each taxable year
of the
 
LLC.
 
The LLC
 
and each
 
Member shall
 
file all
 
tax returns
 
and shall
 
otherwise take
 
all tax
 
and financial
reporting
 
positions
 
in
 
a
 
manner
 
consistent
 
with
 
such
 
treatment
 
and
 
no
 
Member
 
shall
 
take
 
any
 
action
inconsistent with such treatment.
2.8
 
No State Law Partnership.
 
No provisions of this Agreement shall be deemed
 
or construed
to
 
constitute
 
the
 
LLC
 
a
 
partnership
 
(including
 
a
 
limited
 
partnership)
 
or
 
joint
 
venture,
 
or
 
any
 
Member
 
a
partner or joint
 
venturer of or
 
with any other
 
Member, for
 
any purposes other
 
than federal, state
 
and local
tax purposes.
ARTICLE III
UNITS
3.1
 
Units Generally.
 
The Membership Interests of the Members shall be represented by issued
and outstanding Units, which may be divided into
 
one or more types or classes.
 
Each type or class of Units
shall have the
 
privileges, preferences, duties,
 
liabilities, obligations and
 
rights, including voting
 
rights, set
forth in this
 
Agreement with respect
 
to such type
 
or class.
 
The Managing Member
 
shall maintain a
 
schedule
 
 
 
 
 
 
 
 
 
 
of all Members, their respective
 
mailing addresses and the amount
 
and type and class of
 
Units held by them
(the
 
“Members
 
Schedule”).
 
Such
 
Schedule
 
shall
 
be
 
used
 
to
 
establish
 
the
 
initial
 
Membership
 
Interest
Register as provided in Section 6.4,
 
and such Schedule shall be
 
deemed to be automatically updated
 
for any
subsequent changes
 
reflected in
 
the Membership
 
Interest
 
Register.
 
Such information
 
with respect
 
to the
Members as of
 
the Restatement Date
 
is attached hereto
 
as Exhibit F.
 
The only Units
 
that may initially
 
be
issued are
 
(a) one Class A Unit
 
for each
 
Class A Share
 
contributed to the
 
LLC, (b) one Common
 
Unit for
each
 
Common
 
Share
 
contributed
 
to
 
the
 
LLC
 
and
 
(c) the
 
issuance
 
of
 
Common
 
Units
 
upon
 
conversion
 
of
Class A Units in accordance with Section 7.2(b).
 
Each Class A Share contributed to the
 
LLC in the future
will entitle the Member making
 
the contribution to one Class A Unit
 
and each Common Share contributed
to the LLC in the future will entitle the Member making the contribution to one Common Unit.
3.2
 
Authorization and Issuance
 
of Class A Units.
 
Subject to compliance
 
with the terms
 
of this
Agreement, the LLC
 
is hereby authorized
 
to issue a
 
class of Units
 
designated as Class A
 
Units.
 
As of the
Restatement Date, there are
 
4,800,000 Class A Units issued
 
and outstanding to the
 
Members in the amounts
set forth on Exhibit F hereto.
3.3
 
Authorization and Issuance
 
of Common Units.
 
Subject to compliance
 
with the terms
 
of
this Agreement, the LLC is hereby authorized to
 
issue a class of Units designated as Common
 
Units.
 
As of
the Restatement
 
Date, there
 
are 1,087,956
 
Common Units
 
issued and
 
outstanding to
 
the Members
 
in the
amounts
 
set forth
 
on Exhibit
 
F hereto.
 
The LLC
 
will
 
issue additional
 
Common Units
 
for
 
any additional
Common Shares contributed and, upon conversion of Class A Shares, as provided in Section 7.2.
3.4
 
Certificates
 
Representing
 
Units.
 
The
 
Managing
 
Member
 
shall
 
issue
 
Membership
Certificates
 
to
 
the
 
Members
 
representing
 
the
 
Units
 
held
 
by
 
such
 
Member
 
in
 
the
 
form
 
attached
 
hereto
 
as
Exhibit A, including the legend set forth thereon.
ARTICLE IV
MEM
B
ERS
4.1
 
Admission of New Members.
(a)
 
New Members may be admitted from time to time (i) in connection with an issuance
of Units
 
by the
 
LLC, subject
 
to compliance
 
with the
 
applicable provisions
 
of this
 
Agreement, and
 
(ii) in
connection
 
with
 
a
 
transfer
 
of
 
Units,
 
subject
 
to
 
compliance
 
with
 
the
 
provisions
 
of
 
this
 
Agreement.
 
Notwithstanding any provision herein to the contrary, no Person shall be admitted as a Member of the LLC
unless such Person is an Immediate Family Member or a Permitted Transferee.
(b)
 
In order
 
for any
 
Person not
 
already a
 
Member of
 
the LLC
 
to be
 
admitted as
 
a Member,
whether pursuant to
 
an issuance or
 
transfer of Units,
 
such Person shall
 
have executed and
 
delivered to the
LLC a written
 
undertaking substantially in
 
the form of
 
the Joinder
 
attached hereto as
 
Exhibit C. Upon the
amendment of the
 
Members Schedule by
 
the Managing Member
 
and the satisfaction
 
of any other
 
applicable
conditions, including, if
 
a condition, the
 
receipt by the
 
LLC of additional
 
Class A
 
Shares or Common
 
Shares
in exchange for
 
the issuance of
 
the applicable
 
Units, such
 
Person shall
 
be admitted
 
as a
 
Member and deemed
listed as such on the books and
 
records of the LLC and thereupon shall
 
be issued his, her or its Units.
 
The
Managing Member shall also adjust the
 
Capital Accounts of the Members as necessary in accordance
 
with
Article X.
4.2
 
No Personal
 
Liability.
 
Except as
 
otherwise provided
 
in the
 
Delaware Act,
 
by Applicable
Law or
 
expressly in
 
this Agreement,
 
no Member
 
will be
 
obligated personally
 
for any
 
debt, obligation
 
or
liability of
 
the LLC
 
or other
 
Members, whether
 
arising in
 
contract, tort
 
or otherwise,
 
solely by
 
reason of
being a Member.
 
 
 
 
 
 
4.3
 
No Withdrawal.
 
A Member shall not cease to
 
be a Member as a result
 
of the bankruptcy of
such Member
 
or as
 
a result
 
of any
 
other events
 
specified in
 
§18-304
 
of the
 
Delaware Act.
 
So long
 
as a
Member continues
 
to hold
 
any Units,
 
such Member
 
shall not
 
have the
 
ability
 
to withdraw
 
or resign
 
as a
Member
 
prior
 
to
 
the
 
dissolution
 
and
 
winding
 
up
 
of
 
the
 
LLC
 
and
 
any
 
such
 
withdrawal
 
or
 
resignation
 
or
attempted withdrawal
 
or resignation by
 
a Member
 
prior to the
 
dissolution or winding
 
up of the
 
LLC shall
be null and
 
void.
 
As soon as
 
any Person who
 
is a Member
 
ceases to hold
 
any Units, such
 
Person shall no
longer be a Member.
4.4
 
Death.
 
The death of
 
any Member shall
 
not cause the
 
dissolution of the
 
LLC, and the
 
LLC
and its business shall be continued
 
by the remaining Member or Members.
 
In such event the Units
 
owned
by the deceased
 
Member shall automatically
 
be transferred to
 
such Member’s heirs; provided,
 
however, that
such heirs shall not be admitted as Members
 
of the LLC unless such heirs are Immediate Family
 
Members
or
 
Permitted Transferees
 
and
 
such
 
Members
 
shall
 
not
 
be
 
entitled
 
to
 
receive
 
a
 
Membership
 
Certificate
 
in
their names or receive any distributions from the LLC until they sign a written undertaking substantially in
the form of the Joinder attached hereto as Exhibit C.
4.5
 
Voting
 
.
(a)
 
Except
 
as
 
otherwise
 
provided
 
by
 
this Agreement
 
or
 
as
 
otherwise
 
required
 
by
 
the
Delaware Act or
 
Applicable Law:
(i)
 
each
 
Member
 
shall
 
be
 
entitled
 
to
 
ten
 
votes
 
per
 
Class A
 
Unit
 
on
 
all
 
matters
upon which the Members have the right to vote under this Agreement; and
(ii)
 
each Member
 
shall be
 
entitled to
 
one vote
 
per Common
 
Unit on
 
all matters
upon which the Members have the right to vote under this Agreement.
(b)
 
To
 
the
 
full
 
extent
 
permitted
 
by
 
law,
 
Members
 
shall
 
have
 
no
 
right
 
to
 
vote
 
on
 
any
matters
 
under
 
this
 
Agreement,
 
the
 
Delaware
 
Act
 
or
 
otherwise
 
except
 
as
 
expressly
 
provided
 
in
 
this
Agreement.
ARTICLE V
CONTRI
B
UTION OF COMPANY SHARES
5.1
 
Shares to
 
be Contributed
 
to LLC.
 
All outstanding
 
Class A Shares
 
held or
 
owned at
 
any
time by any Member (including any Class A Shares acquired by
 
any Member after the date of the Existing
Operating
 
Agreement
 
and
 
before
 
the
 
dissolution
 
of
 
the
 
LLC),
 
and
 
the
 
Common
 
Shares
 
held
 
by
 
the
Revocable Trust, shall be contributed hereunder
 
and accepted by,
 
and transferred to, the LLC, in exchange
for Units.
 
Except as provided in this Section 5.1, each Member shall have the right, but not the obligation,
to contribute Common Shares to the LLC from time to time in exchange for Units with
 
the prior consent of
the Managing
 
Member.
 
Any and
 
all shares
 
contributed to
 
the LLC
 
(including shares
 
issued upon
 
conversion
of Class
A
▇▇▇▇▇▇ contributed
 
to the
 
LLC), less
 
shares exchanged
 
by the
 
LLC upon
 
redemptions of
 
Common
Units, are referred to herein as “Contributed Shares.”
5.2
 
Contribution of Shares.
(a)
 
Following the date that
 
the Restated Charter is
 
filed with the Secretary of
 
State of the
State
 
of Delaware
 
and becomes
 
effective (the
 
“Effective Date”),
 
each Member
 
shall promptly
 
contribute
and transfer to
 
the LLC all
 
stock certificates representing
 
Class A Shares owned or
 
later acquired by
 
such
Member, duly
 
endorsed in
 
blank, or
 
accompanied by
 
proper instruments
 
of assignment
 
and transfer
 
duly
executed in
 
blank or
 
(and accompanied
 
by any
 
revenue stamps
 
required for
 
the transfer),
 
in exchange
 
for
Membership
 
Certificates
 
issued
 
hereunder
 
in
 
the
 
form
 
herein
 
provided.
 
Any
 
Member
 
who
 
acquires
 
 
 
 
ownership of
 
any Class A Shares
 
after the
 
date of
 
the Existing
 
Operating Agreement shall
 
contribute and
transfer such shares to the LLC no later than thirty (30) days after acquiring such shares.
(b)
 
Following the
 
receipt of
 
Common Shares
 
by the
 
Revocable Trust,
 
but no
 
later than
the time that
 
Class A Shares are contributed to
 
the LLC following the
 
Effective Date, the
 
Revocable Trust
shall contribute
 
and transfer
 
to the
 
LLC all
 
stock certificates
 
representing Common
 
Shares listed
 
with respect
to the
 
Revocable Trust, duly
 
endorsed in
 
blank, or
 
accompanied by
 
proper instruments
 
of assignment
 
and
transfer duly
 
executed in
 
blank or
 
(and accompanied
 
by any
 
revenue stamps
 
required for
 
the transfer),
 
in
exchange for Membership Certificates issued hereunder in the form herein provided.
(c)
 
The LLC shall accept such contributions and hold
 
all shares so contributed under the
terms and conditions of this Agreement.
 
Such contribution of Class A Shares and Common Shares and the
acceptance
 
of
 
Membership
 
Certificates
 
by
 
a
 
Person,
 
subject
 
to
 
the
 
provisions
 
of
 
Section 4.1,
 
shall
 
cause
such Person to become a Member hereunder subject to all the terms and conditions of this Agreement.
(d)
 
The contribution of Class A Shares and Common Shares to the LLC hereunder shall
constitute an assignment and transfer to the LLC of full legal title to
 
such shares, and shall vest in the LLC
all rights and powers of every
 
nature incident to ownership of such
 
shares, including the right to vote
 
such
shares,
 
subject
 
only
 
to
 
the
 
limitations
 
specifically
 
set
 
forth
 
herein,
 
including
 
the
 
prohibition
 
of
 
sales,
dispositions or transfers of such shares by the LLC except as permitted in Sections 7.2 and 7.3.
(e)
 
Promptly
 
upon
 
receipt
 
from
 
time
 
to
 
time
 
of
 
stock
 
certificates
 
representing
Contributed Shares,
 
the LLC
 
shall cause
 
the certificates
 
to be
 
surrendered to
 
the Company
 
and cancelled
and new certificates issued therefor to, and in the name of, the LLC, and shall cause the LLC ownership
 
of
legal title pursuant to this Agreement to be
 
entered in the stock transfer
 
records of the Company and
 
noted
on the newly issued certificates.
5.3
 
Inspection, Disclosure and Public Filing of
 
the Agreement.
 
The Managing Member shall
cause a copy of this Agreement to be delivered to the principal place of business of the Company and shall
request that the Company
 
make a copy of
 
this Agreement open to
 
the inspection of any
 
stockholder of the
Company
 
or Member
 
at the
 
principal place
 
of
 
business
 
of the
 
Company
 
during
 
ordinary business
 
hours.
 
The
 
parties
 
hereto
 
recognize
 
and
 
understand
 
that
 
a
 
copy
 
of
 
this
 
Agreement
 
may
 
also
 
be
 
disclosed
 
and
publicly filed with the Securities and Exchange Commission.
ARTICLE VI
MEM
B
ERSHIP CERTIFICATES
6.1
 
Issuance of Membership Certificates.
 
All Contributed Shares at any time delivered to the
LLC hereunder or acquired by
 
the LLC as provided in
 
this Agreement shall be held
 
by the LLC and voted
by the Managing Member under and pursuant to the terms
 
and conditions of this Agreement.
 
The LLC, in
exchange for the shares so contributed or
 
otherwise held hereunder, shall
 
cause to be issued and delivered,
Membership Certificates to
 
Members for the
 
appropriate number of
 
Class A Shares or
 
Common Shares held
hereunder.
6.2
 
Form of Certificates.
 
The Membership Certificates
 
issued pursuant to
 
this Agreement shall
be substantially
 
in the
 
form set
 
forth in
 
Exhibit A attached
 
hereto (or
 
in such
 
other form
 
as the
 
Managing
Member determines).
6.3
 
Replacement of
 
Certificates.
 
The LLC,
 
in such
 
manner as
 
the Managing
 
Member in
 
his
sole
 
discretion
 
may
 
prescribe
 
with
 
respect
 
to
 
indemnity
 
or
 
otherwise,
 
shall
 
provide
 
for
 
the
 
issuance
 
and
delivery of new Membership
 
Certificates in lieu of
 
lost, stolen or destroyed
 
Membership Certificates or in
exchange for mutilated Membership Certificates.
 
 
 
 
 
 
6.4
 
Membership
 
Interest
 
Register.
 
The
 
Managing
 
Member
 
shall
 
maintain
 
a
 
registration
 
of
Membership Interests in
 
the books
 
and records of
 
the LLC of
 
the holders of
 
Membership Certificates and
shall make
 
such register
 
available to
 
the Members
 
upon written
 
request.
 
Such books
 
and records
 
shall record
the
 
issuance
 
and
 
any
 
transfer
 
of
 
Membership
 
Certificates
 
and
 
shall
 
contain
 
the
 
names
 
and
 
addresses
 
of
Members and
 
the number
 
of Units
 
represented by
 
the Membership
 
Certificates, and
 
the dates
 
when they
became the owners
 
thereof.
 
Such register shall
 
be kept at
 
the principal office
 
of the LLC
 
or at such
 
other
place as the Managing Member shall determine and set forth in a written notice given to all Members.
6.5
 
Record
 
Date.
 
Whenever
 
the
 
stock
 
transfer
 
books
 
of
 
the
 
Company
 
are
 
closed
 
for
 
any
purpose, the Managing Member shall also close the books and
 
records of Membership Certificates for such
period, and
 
whenever a
 
record date
 
is properly
 
fixed as
 
a record
 
date of
 
the Company, the
 
Managing Member
shall use the same record date for any rights consequent thereon.
The
 
Managing
 
Member,
 
in
 
his
 
discretion,
 
may
 
also
 
fix
 
a
 
record
 
date
 
as
 
of
 
which
 
the
 
Members
entitled to take any action may be determined.
The Managing Member shall send or
 
cause to be sent to all Members,
 
as registered in the books and
records
 
of
 
the
 
LLC,
 
copies
 
of
 
all
 
requests,
 
notices,
 
proxy
 
statements
 
and
 
other
 
documents
 
sent
 
by
 
the
Company to its shareholders, promptly upon their becoming available
.
ARTICLE VII
REDEMPTION OR CONVERSION OF SHARES
7.1
 
No Redemption
 
of Class A Shares.
 
A Member
 
shall not
 
be permitted
 
to redeem,
 
and the
LLC and Managing Member shall have no power or right to redeem from any Member, Class A Units, and
no Member shall have any right to receive from the LLC Class A Shares, in each case, until the dissolution
and liquidation of the LLC.
 
Any purported redemption of Class A Units or receipt of Class A Shares from
the LLC before the dissolution and liquidation of the LLC shall be void.
7.2
 
Conversion.
 
Except as
 
otherwise permitted
 
by Section 12.5(a)(vii)
 
or Section 12.7,
 
the LLC
shall
 
not
 
convert
 
any
 
Class A
 
Shares
 
held
 
by
 
the
 
LLC
 
into
 
Common
 
Shares
 
during
 
the
 
term
 
of
 
this
Agreement.
 
If
 
the
 
Managing
 
Member
 
converts
 
any
 
or
 
all
 
of
 
the
 
Class A
 
Shares
 
held
 
by
 
the
 
LLC
 
in
accordance with either Section 12.5(a)(vii) or Section 12.7, then:
(a)
 
the Common Shares received by the LLC upon such
 
conversion shall be held, voted
and/or transferred by the LLC in accordance with the provisions of this Agreement;
(b)
 
each
 
Member’s
 
Class A
 
Units
 
shall
 
automatically
 
convert
 
into
 
the
 
number
 
of
Common Units equal to the number of Common Shares
 
issued upon conversion with respect to the Class A
Shares underlying such Member’s Class A Units; and
(c)
 
in
 
order
 
to
 
evidence
 
that
 
such
 
conversion
 
of
 
Class A
 
Units
 
has
 
occurred,
 
each
Member shall promptly exchange his
 
or her Membership Certificate(s)
 
formerly representing Class A
 
Units
for
 
a
 
Membership
 
Certificate
 
representing
 
Common
 
Units,
 
which
 
exchange
 
will
 
be
 
made
 
in
 
compliance
with Article VI.
7.3
 
Redemption of Common Shares.
 
A Member shall be permitted to redeem Common Units
in exchange for an
 
equivalent number of Common Shares
 
prior to the dissolution
 
of the LLC from time
 
to
time, upon the surrender of the corresponding Membership Certificate or Certificates, as follows:
(a)
 
Redemption to Facilitate a Transfer or Sale of Underlying Common Shares.
 
A
Member may request to redeem Common Units in exchange for an equivalent number of Common Shares
 
 
 
 
 
 
 
 
 
 
to effect a transfer or sale of underlying Common Shares, but only if such transfer or sale is in compliance
with the Agreement Regarding Conversion and applicable federal and state securities laws.
(b)
 
Redemption to Facilitate a Transfer to a Charitable Donor Advised Fund.
 
A
Member may request to redeem Common Units in exchange for an equivalent number of Common Shares
to effect a transfer to a charitable donor advised fund.
(c)
 
Other Redemptions of Common Units.
 
In addition, a Member may request to
redeem Common Units in exchange for an equivalent number of Common Shares, which the Managing
Member from time to time may approve.
(d)
 
Redemption Request.
 
The Member requesting a redemption shall submit a written
redemption request to the Managing Member substantially in the form prescribed in Exhibit E attached
hereto.
(e)
 
Manner of Redemption.
 
Upon approval of the form and substance of any such
redemption request by the Managing Member and the surrender for cancellation of such Members’
Membership Certificate representing Common Units, the Managing Member shall (i) cause a certificate
representing Common Shares to be transferred to and registered in the name of such Member equal to the
number of Common Units being redeemed, and (ii) issue a new Membership Certificate to the Member
representing the number of Common Units that are not being redeemed and that will continue to be owned
by such Member after the redemption, if any.
7.4
 
Transfers
 
of Shares.
 
The LLC shall not
 
sell, dispose of or
 
otherwise transfer any
 
Class
A
Shares or Common Shares
 
during the term of this
 
Agreement, except as permitted
 
in Sections 7.2 and 7.3.
 
In the
 
event there
 
is a
 
desire to
 
sell, dispose
 
of or
 
transfer Common
 
Shares held
 
by the
 
LLC, such
 
shares
first
 
be
 
delivered
 
to
 
the
 
Member
 
in
 
redemption
 
of
 
such
 
Member’s
 
Membership
 
Certificate
 
pursuant
 
to
Section 7.3, and any such sale, disposition or transfer shall be effected by the Member.
ARTICLE VIII
TRANSFERS OF MEM
B
ERSHIP INTERESTS
8.1
 
Permissible
 
Transfers;
 
Restrictions
 
on
 
Transfer.
 
No
 
person
 
other
 
than
 
an
 
Immediate
Family Member or Permitted Transferee may be a Member hereunder.
The Members hereby agree that none of the Membership
 
Interests, the Membership Certificates nor
any interest in
 
any of the
 
foregoing may be
 
transferred (whether directly
 
or indirectly, and including by
 
sale,
lease,
 
assignment,
 
pledge,
 
encumbrance,
 
hypothecation,
 
gift,
 
bequest,
 
appointment,
 
operation
 
of
 
law
 
or
otherwise)
 
to
 
any
 
Person
 
except
 
(i) an
 
Immediate
 
Family
 
Member
 
or
 
Permitted
 
Transferee
 
may
 
transfer
Membership
 
Interests
 
and
 
related
 
Membership
 
Certificates
 
to
 
another
 
Immediate
 
Family
 
Member
 
or
Permitted Transferee,
 
provided that such
 
permitted transferee
 
shall not
 
be admitted as
 
a Member
 
until he,
she or
 
it executes
 
a form
 
of joinder
 
substantially in
 
the form
 
set forth
 
in Exhibit C
 
attached hereto
 
(or in
such other form as
 
the Managing Member determines)
 
or (ii) a transfer by
 
the Managing Member permitted
by
 
Section 12.7.
 
The
 
Managing
 
Member
 
shall
 
not
 
register
 
any
 
transfer
 
except
 
in
 
compliance
 
with
 
this
Agreement.
 
Any
 
purported
 
transfer
 
of
 
Membership
 
Interests
 
or
 
Membership
 
Certificates
 
other
 
than
 
in
accordance
 
with
 
the
 
terms
 
of
 
this
 
Agreement
 
shall
 
be
 
void.
 
Not
 
in
 
limitation
 
of
 
the
 
generality
 
of
 
the
foregoing, Membership
 
Interests, including
 
any rights
 
to profits,
 
losses or
 
distributions associated
 
therewith,
transferred on death to
 
any person who is
 
not an Immediate Family
 
Member or Permitted Transferee
 
shall
be void.
8.2
 
Transfers.
 
Subject to the
 
foregoing, the Membership
 
Certificates and Membership
 
Interests
represented thereby shall be transferable
 
on the books of the
 
LLC by the holders of
 
record thereof, subject
to such procedures as may be required by the Managing Member for that purpose.
 
Until so transferred, the
Managing
 
Member
 
may
 
treat
 
the
 
existing
 
Member
 
as
 
the
 
owner
 
of
 
the
 
Membership
 
Certificates
 
for
 
all
purposes.
 
As a condition of making or permitting
 
any transfer or delivery of Membership Certificates,
 
the
Managing Member may require
 
the payment of a
 
sum sufficient to pay or
 
reimburse the Managing Member
or the
 
LLC for
 
any stamp
 
tax or
 
other governmental
 
charge
 
in
 
connection therewith
 
or any
 
other charge
applicable to such transfer or delivery.
The Managing Member shall have
 
the sole discretion to determine
 
whether a person is eligible
 
to be
a Member pursuant to this Agreement.
8.3
 
Transferees
 
Bound
 
by
 
Agreement.
 
Every
 
Immediate
 
Family
 
Member
 
and
 
Permitted
Transferee
 
who
 
acquires
 
Membership
 
Certificates
 
and
 
is
 
admitted
 
as
 
a
 
Member
 
in
 
accordance
 
with
 
this
Agreement shall, with respect thereto and
 
by the acceptance thereof, become a party
 
hereto with like force
and
 
effect
 
as
 
though
 
an
 
original
 
party
 
hereto
 
and
 
shall
 
be
 
embraced
 
within
 
the
 
meaning
 
of
 
the
 
term
“Member” wherever used herein.
8.4
 
Other
 
Requirements
 
for Transfers.
 
In addition
 
to the
 
other restrictions
 
set
 
forth in
 
this
Agreement, and
 
notwithstanding any
 
other provision
 
of this
 
Agreement, each
 
Member agrees
 
that it
 
will
not, directly or indirectly, transfer any of its Units, and the LLC agrees that it shall not issue any Units:
(a)
 
except
 
as
 
permitted
 
under
 
the
 
Securities Act
 
and
 
other
 
applicable
 
federal
 
or
 
state
securities
 
or
 
blue
 
sky
 
laws,
 
and
 
then,
 
with
 
respect
 
to
 
a
 
transfer
 
of
 
Units,
 
if
 
requested
 
by
 
the
 
Managing
Member, only upon delivery to
 
the LLC of an opinion
 
of counsel in form and
 
substance satisfactory to the
Managing Member to the effect that such transfer may be effected without registration under the Securities
Act;
(b)
 
if
 
such
 
transfer
 
or
 
issuance
 
would
 
affect
 
the
 
LLC’s
 
existence
 
or
 
qualification
 
as
 
a
limited liability company under the Delaware Act;
(c)
 
if such transfer or
 
issuance would cause the
 
LLC to lose its
 
status as a partnership
 
for
federal income tax purposes; or
(d)
 
if such transfer or issuance would cause a termination of the LLC for federal income
tax purposes.
ARTICLE IX
DIVIDENDS AND CERTAIN CHANGES TO STOC
K
9.1
 
LLC to Distribute Cash Dividends.
 
Each Member shall be entitled during the term of this
LLC,
 
except
 
as
 
may
 
be
 
otherwise
 
provided
 
herein,
 
to
 
receive
 
from
 
time
 
to
 
time
 
payments
 
equal
 
to
 
the
dividends payable
 
in cash, received
 
by the LLC
 
with respect to
 
his, her or
 
its Contributed Shares,
 
and the
Managing Member
 
shall distribute
 
such cash
 
to the
 
Members on
 
a pro
 
rata basis,
 
provided that
 
the Managing
Member may first deduct any charges and
 
expenses or taxes incurred by the
 
LLC or the Managing Member
in connection with the administration of the LLC.
9.2
 
Distributions other than Cash.
(a)
 
In the
 
event the
 
LLC shall
 
receive any
 
dividend or
 
distribution other
 
than cash
 
as a
result of a dividend or
 
other distribution in respect of
 
any Contributed Shares, the Managing
 
Member may
determine
 
to
 
hold
 
such
 
distribution
 
subject
 
to
 
this Agreement
 
in
 
his
 
sole
 
discretion,
 
provided
 
that
 
if
 
the
distribution
 
consists
 
of
 
Class A Shares
 
or
 
any
 
security
 
that
 
has
 
greater
 
voting
 
power
 
than
 
the
 
Common
Shares, the Managing Member shall hold such distribution subject to this Agreement.
 
 
 
(b)
 
If the
 
distribution consists
 
of Class A Shares
 
or any
 
security that
 
has greater
 
voting
power than
 
the Common
 
Shares, additional
 
Membership Certificates
 
shall be
 
issued to the
 
Members entitled
to such distribution as shown in the books and records of the LLC.
(c)
 
For distributions other than
 
cash and Class A Shares or any
 
security that has greater
voting power than the Common Shares:
(i)
 
if the Managing Member
 
determines to hold such
 
distribution subject to this
Agreement,
 
if
 
appropriate,
 
additional
 
Membership
 
Certificates
 
shall
 
be
 
issued
 
to
 
the
Members entitled to such distribution as shown in the books and records of the LLC; and
(ii)
 
if
 
the
 
Managing
 
Member
 
determines
 
not
 
to
 
hold
 
such
 
distribution,
 
the
Managing Member shall pass through the distribution to the
 
Members in proportion to their
respective Membership Interests.
(d)
 
If rights to subscribe
 
to purchase or acquire
 
any shares of capital
 
stock or other assets
of
 
the
 
Company
 
should
 
inure
 
to
 
the
 
LLC
 
in
 
respect
 
of
 
Contributed
 
Shares,
 
the
 
Managing
 
Member
 
shall
notify
 
the
 
Members.
 
Upon
 
the
 
written
 
direction
 
of
 
the
 
Member
 
relating
 
to
 
the
 
Membership
 
Certificates
issued with respect to
 
such Contributed Shares, accompanied
 
by a capital contribution
 
of the funds from
 
the
Member required
 
for such
 
purpose, the
 
Managing Member
 
shall cause
 
the LLC
 
to exercise
 
such rights
 
to
subscribe
 
for,
 
purchase
 
or
 
acquire
 
such
 
shares
 
of
 
stock
 
or
 
other
 
assets
 
with
 
respect
 
to
 
such
 
Contributed
Shares.
 
In the
 
event that
 
any additional
 
shares of
 
stock of
 
the Company
 
so acquired
 
by the
 
LLC shall
 
be
Class A
 
Shares, or
 
other securities
 
that the
 
Managing Member
 
determines not
 
to distribute
 
to Members,
 
such
shares
 
shall
 
thereupon
 
be
 
subject
 
to
 
all
 
the
 
terms
 
and
 
conditions
 
of
 
this Agreement
 
and,
 
if
 
appropriate,
additional Membership Certificates shall be issued to such Members.
9.3
 
No
 
Distributions
 
in
 
Violation
 
of
 
Law.
 
Notwithstanding
 
any
 
provision
 
to
 
the
 
contrary
contained in
 
this Agreement, the
 
LLC shall not
 
make any distribution
 
to Members if
 
such distribution
 
would
violate § 18-607 of the Delaware Act or other Applicable Law.
9.4
 
Certain
 
Changes
 
to
 
Class A
 
Shares
 
or
 
Common
 
Shares.
 
In
 
the
 
event
 
of
 
any
(i) subdivision, combination,
 
reclassification, recapitalization
 
or other
 
change of
 
Class A Shares
 
or Common
Shares, or (ii) any merger to
 
which the Company is
 
a constituent entity, in each case as
 
a result of which the
Class A Shares and Common Shares are converted into or exchanged
 
for capital stock or other securities of
the Company or
 
successor company, then, unless the
 
Managing Member determines
 
to distribute such
 
stock
or other securities to the Members:
 
(i) such stock and other securities shall be retained by the LLC subject
to all the terms and conditions of
 
this Agreement, (ii) if appropriate, additional or
 
replacement Membership
Certificates shall be issued
 
to such Members and
 
(iii) unless the Managing Member
 
determines otherwise,
all references in
 
this Agreement to
 
Contributed Shares shall
 
be deemed to
 
include reference
 
to such stock
and other securities.
ARTICLE X
CAPITAL CONTRI
B
UTIONS; CAPITAL ACCOUNTS
10.1
 
Initial
 
Capital
 
Contributions.
 
Contemporaneously
 
with
 
the
 
execution
 
of
 
the
 
Existing
Operating
 
Agreement
 
and
 
as
 
set
 
forth
 
on
 
Exhibit B
 
to
 
the
 
Existing
 
Operating
 
Agreement,
 
each
 
initial
Member owning
 
Class A Units
 
has contributed
 
an equivalent
 
number of
 
Class A Shares,
 
and each
 
initial
Member owning Common
 
Units has contributed
 
an equivalent number
 
of Common Shares,
 
which represent
each such
 
Member’s initial
 
Capital Contribution
 
giving rise
 
to such
 
initial Member’s
 
initial Capital
 
Account.
10.2
 
Additional Capital
 
Contributions.
 
Except as
 
provided herein,
 
including Section 5.1
 
and
Section
12.13, no Member shall be required to
 
make any additional Capital Contributions to the LLC.
 
Any
 
 
 
 
future Capital
 
Contributions made
 
by any
 
Member shall
 
be made
 
only with
 
the consent
 
of the
 
Managing
Member and
 
the contributing
 
Member in
 
compliance with
 
this Agreement;
 
provided, however,
 
that each
Member and
 
the Managing
 
Member hereby
 
consent to
 
the requirement
 
of each
 
Member to
 
contribute all
Class A Shares that it owns during the term of the LLC to the LLC as provided in Section 5.1.
10.3
 
Maintenance of
 
Capital Accounts.
 
The LLC
 
shall establish,
 
and the
 
Managing Member
shall maintain for
 
each Member, a separate capital
 
account (a “
Capital Account
”) on its
 
books and records.
 
Unless otherwise
 
determined by
 
the Managing
 
Member,
 
the Capital
 
Account of
 
each such
 
Member shall
consist
 
of such
 
Member’s
 
capital contribution,
 
increased
 
by each
 
such Member’s
 
respective share
 
of net
income (including exempt income) and additional capital contributions, if any, and decreased by each such
Member’s
 
respective
 
share
 
of
 
net losses
 
(including
 
nondeductible
 
losses and
 
expenses)
 
and
 
distributions
from the LLC.
10.4
 
Succession
 
Upon
 
Transfer.
 
In
 
the
 
event
 
that
 
any
 
Units
 
are
 
transferred
 
to
 
an
 
Immediate
Family Member or a
 
Permitted Transferee
 
in accordance with the
 
terms of this Agreement,
 
the Immediate
Family Member
 
or Permitted
 
Transferee, as
 
applicable, shall
 
succeed to
 
the Capital
 
Account of
 
the transferor
to the extent it relates to
 
the transferred Units and shall receive
 
allocations and distributions pursuant to this
Agreement in respect of such Units.
10.5
 
Treasury
 
Regulations.
 
The
 
provisions
 
of
 
this
 
Agreement
 
relating
 
to
 
the
 
maintenance
 
of
Capital
 
Accounts
 
are
 
intended
 
to
 
comply
 
with
 
Section
 
704
 
of
 
the
 
Code
 
and
 
Section
 
1.704-1(b)
 
of
 
the
Treasury
 
Regulations
 
and
 
shall
 
be
 
interpreted
 
and
 
applied
 
in
 
a
 
manner
 
consistent
 
with
 
such
 
Treasury
Regulations.
ARTICLE XI
ALLOCATIONS
11.1
 
Allocation of Net
 
Income and Net
 
Loss.
 
For each
 
fiscal year
 
(or portion thereof),
 
except
as otherwise provided
 
in this Agreement,
 
net income and
 
net loss (and,
 
to the extent
 
necessary,
 
individual
items of income, gain, loss
 
or deduction) of the LLC
 
shall be allocated among the
 
Members in accordance
with their respective Membership Interests.
11.2
 
Tax Allocations.
 
All income, gains,
 
losses and deductions
 
of the LLC
 
shall be allocated,
 
for
federal, state and local income tax purposes, among the Members in accordance with the allocation of such
income, gains, losses
 
and deductions among
 
the Members for
 
computing their Capital
 
Accounts, except that
if any
 
such allocation
 
for tax
 
purposes is
 
not permitted
 
by the
 
Code or
 
other Applicable
 
Law,
 
the LLC’s
subsequent income, gains, losses and
 
deductions shall be allocated among
 
the Members for tax purposes,
 
to
the
 
extent
 
permitted
 
by
 
the
 
Code
 
and
 
other
 
Applicable
 
Law,
 
so
 
as
 
to
 
reflect
 
as
 
nearly
 
as
 
possible
 
the
allocation set forth herein in computing their Capital Accounts.
ARTICLE XII
MANAGEMENT OF LLC; VOTING AND OTHER RIGHTS AND POWERS OF MEM
B
ERS
12.1
 
Management of
 
the LLC.
 
The business
 
and affairs
 
of the
 
LLC shall
 
be managed
 
by the
Managing Member.
 
Subject to the provisions
 
of this Agreement, the
 
Managing Member shall have
 
full and
complete
 
discretion
 
to
 
manage
 
and
 
control
 
the
 
business
 
and
 
affairs
 
of
 
the
 
LLC,
 
to
 
make
 
all
 
decisions
affecting the business
 
and affairs of
 
the LLC and
 
to take all
 
such actions as
 
the Managing Member
 
deems
necessary or
 
appropriate to
 
accomplish the
 
purposes of
 
the LLC.
 
The actions
 
of the
 
Managing Member
taken in
 
accordance with
 
the provisions
 
of this
 
Agreement shall
 
bind the
 
LLC.
 
No other
 
Member of
 
the
LLC shall have any authority or right to act on behalf of or bind
 
the LLC, unless otherwise provided herein
or unless specifically authorized by the Managing Member.
 
 
 
 
 
 
 
 
 
 
 
 
 
Notwithstanding the foregoing,
 
the Managing Member
 
shall provide regular
 
reports and information
about the
 
LLC to
 
the other
 
Members and
 
keep them
 
informed and
 
up to
 
date on
 
the activities
 
of the
 
LLC
and of the Managing Member.
12.2
 
Managing
 
Member
 
Rights
 
and
 
Powers
.
 
Subject
 
to
 
Section 12.4
 
and
 
Section 12.5,
 
the
Managing Member, acting on behalf of the LLC,
 
shall possess and shall be entitled
 
to exercise all the rights
and
 
powers
 
of
 
owners
 
of
 
all
 
of
 
the
 
Contributed
 
Shares
 
held
 
hereunder
 
to
 
vote
 
for
 
every
 
purpose
 
and
 
to
consent
 
to
 
any
 
and
 
all
 
corporate
 
acts
 
of
 
the
 
Company.
 
Without
 
limiting
 
the
 
foregoing,
 
but
 
subject
 
to
Section 12.4 and Section 12.5,
 
the Managing Member,
 
acting on
 
behalf of the
 
LLC, shall have
 
the following
authority
 
with respect
 
to the
 
Contributed Shares:
 
(i) to
 
nominate candidates
 
for election
 
or reelection
 
as
directors of
 
the Company;
 
(ii) to take
 
any of
 
the actions
 
contemplated by
 
Section 12.5(b); (iii) to
 
propose
business
 
(including
 
amendments
 
to
 
the
 
Bylaws
 
of
 
the
 
Company)
 
for
 
action
 
by
 
the
 
stockholders
 
of
 
the
Company; and (iv) to cause the
 
calling of a special meeting
 
of stockholders (to the extent
 
stockholders are
permitted to call special meetings of stockholders in
 
accordance with the Restated Charter or the Bylaws
 
of
the Company).
 
Such rights and powers shall
 
cease upon the actual delivery
 
to the Member of a
 
certificate
issued
 
by the
 
Company representing
 
any Company
 
shares held
 
hereunder in
 
exchange for
 
the Member’s
Membership Certificates
 
upon a
 
permitted redemption/withdrawal
 
or dissolution
 
and liquidation
 
of the
 
LLC,
as provided in this Agreement.
It is expressly stipulated that no right to
 
vote or to consent or to be consulted
 
in respect to any such
shares is created
 
in or passes
 
to any Member
 
by or under
 
any Membership Certificate,
 
or by or
 
under this
Agreement, or by or under any other agreement, express or
 
implied, except as provided in Section 12.4 and
Section 12.5.
12.3
 
Contributed
 
Shares
 
to
 
be
 
Voted
 
as
 
a
 
Unit.
 
The
 
Managing
 
Member
 
shall
 
vote
 
the
Contributed
 
Shares
 
or
 
take
 
any
 
other
 
action
 
with respect
 
to
 
such
 
shares
 
as
 
a
 
unit
 
in
 
accordance
 
with
 
his
determination
 
or,
 
if
 
applicable,
 
as
 
provided
 
in
 
Section 12.4
 
and
 
Section 12.5.
 
Notwithstanding
 
the
foregoing, the Managing Member
 
may cumulate votes for
 
the election of directors
 
of the Company in
 
any
manner the
 
Managing Member
 
may determine,
 
if cumulative
 
voting is
 
permitted by
 
the Company’s
 
then-
current certificate of incorporation.
12.4
 
Failure to Achieve a
 
Majority if there
 
is more than
 
one Managing Member.
 
In the event
there
 
is
 
at
 
any
 
time
 
more
 
than
 
one
 
Managing
 
Member,
 
and
 
in
 
the
 
event
 
of
 
the
 
failure
 
of
 
the
 
Managing
Members to achieve a majority vote with respect to the exercise of the right to
 
vote the Contributed Shares
with respect to any proposal submitted to a shareholder vote, the Managing Members shall promptly notify
all
 
Members
 
of
 
the
 
proposal.
 
The
 
Managing
 
Members
 
shall
 
thereupon
 
vote
 
all
 
Contributed
 
Shares
 
held
hereunder
 
with
 
respect
 
to
 
each
 
such
 
proposal
 
as
 
directed
 
by
 
the
 
affirmative
 
vote
 
of
 
Members
 
holding
Membership Certificates representing no less than a majority of the voting power of the Units at the time.
12.5
 
Certain Transactions Require Joint Consent
 
of Managing Member
 
and Non-Managing
Members.
(a)
 
Joint Consent Required for LLC Actions.
 
Joint consent of the Managing Member,
and of Members holding no less than a majority of the voting power of the Units at the time, shall be
required for any of the following actions relating to this Agreement and/or the LLC:
(i)
 
Subject to
 
Section 18.3, the
 
material amendment,
 
modification or
 
waiver of
the
 
Certificate
 
of
 
Formation
 
of
 
the
 
LLC
 
or
 
this
 
Agreement
 
or
 
a
 
merger
 
of
 
the
 
LLC
 
with
another entity or the conversion
 
of the LLC into another
 
entity; provided, however,
 
that the
Managing
 
Member
 
may,
 
without
 
the
 
consent
 
of
 
any
 
other
 
Member,
 
amend
 
the
 
Member
Schedule
 
following
 
any
 
new
 
issuance,
 
redemption,
 
repurchase
 
or
 
transfer
 
of
 
Membership
Interests in accordance with this Agreement even if material;
 
 
 
(ii)
 
the making of any
 
material change to the
 
nature of the Business
 
conducted by
the LLC or enter into any business other than the Business;
(iii)
 
the
 
issuance
 
of
 
additional
 
Membership
 
Interests
 
or
 
admission
 
of
 
additional
Members to the LLC except as permitted by this Agreement;
(iv)
 
the
 
incurrence
 
of
 
any
 
indebtedness
 
or
 
obligations
 
by
 
the
 
LLC
 
in
 
excess
 
of
amounts required by the Managing Member to pay the
 
ordinary taxes, costs and expenses of
the LLC (the repayment of
 
any such obligations to be
 
financed by the Managing Member
 
by
retaining a portion of the dividends paid on the Class A Shares and Common Shares);
(v)
 
the
 
making
 
of
 
any
 
material
 
loan,
 
advance
 
or
 
capital
 
contribution
 
to
 
any
Person;
(vi)
 
entering
 
into or
 
effecting
 
any material
 
transaction not
 
contemplated by
 
this
Agreement; or
(vii)
 
converting any Class A Shares into Common Shares.
(b)
 
Joint Consent Required for Company Action.
 
Joint consent of the Managing
Member, and of Members holding no less than a majority of the voting power of the Units at the time,
shall be required for any proposal submitted for shareholder approval by the Company for:
(i)
 
a merger
 
or consolidation
 
transaction which
 
requires the
 
vote of
 
the holders
of
 
the
 
Company’s
 
Class A
 
Shares
 
and/or
 
Common
 
Shares
 
under
 
the
 
Delaware
 
General
Corporation Law as then in effect;
(ii)
 
a sale, lease or exchange of all, or substantially all, the property and assets of
the Company which
 
requires the vote
 
of the holders
 
of the Company’s Class A
 
Shares and/or
Common Shares under the Delaware General Corporation Law as then in effect;
(iii)
 
a dissolution, winding
 
up or liquidation
 
of the Company or
 
its business which
requires the
 
vote of
 
the holders
 
of the
 
Company’s
 
Class A Shares
 
and/or Common
 
Shares
under the Delaware General Corporation Law as then in effect;
(iv)
 
an amendment of the Company’s Restated Charter which requires the
 
vote of
the holders
 
of the
 
Company’s
 
Class A Shares
 
and/or Common
 
Shares under
 
the Delaware
General Corporation Law as then in effect;
(v)
 
the
 
authorization
 
or
 
issuance
 
of
 
Class A
 
Shares
 
or
 
any
 
securities
 
by
 
the
Company having voting rights superior to the Class A Shares; or
(vi)
 
any other
 
transaction not
 
previously described
 
in this
 
Section 12.5(b) which
would require the filing of a
 
Current Report on Form 8-K to disclose
 
a change of control of
the Company under the rules and regulations of the Securities and Exchange Commission.
(c)
 
In
 
the
 
event
 
that
 
joint
 
consent
 
under
 
Section 12.5(b)
 
is
 
required,
 
the
 
Managing
Member shall
 
promptly notify
 
all other
 
Members and
 
the Managing
 
Member shall
 
not approve
 
or implement
any
 
such
 
action
 
and
 
shall
 
not
 
vote
 
any
 
Contributed
 
Shares,
 
as
 
applicable,
 
in
 
favor
 
of
 
any
 
such
 
proposal
unless the Managing Member receives the
 
affirmative vote from Members holding
 
at least a majority of
 
the
voting
 
power
 
of
 
the
 
Units,
 
as
 
well
 
as
 
approval
 
by
 
the
 
Managing
 
Member.
 
In
 
the
 
absence
 
of
 
both
 
such
conditions being satisfied, the
 
Managing Member shall vote
 
Contributed Shares against any
 
proposal which
 
 
 
 
 
 
 
would have
 
the effect
 
of approving
 
any transaction
 
described in
 
Section 12.5(b) and
 
take action
 
to assert
dissenter’s appraisal
 
rights, if
 
available, upon
 
instructions from
 
a Member
 
to assert
 
such dissenter’s
 
appraisal
rights.
12.6
 
Powers of LLC.
 
The LLC, with respect to the Contributed
 
▇▇▇▇▇▇ held hereunder, is vested
as owner of
 
such shares
 
(without limitation
 
except as herein
 
otherwise expressly
 
provided) with all
 
of the
rights, powers
 
and privileges
 
of every kind
 
and character of
 
an owner
 
thereof, including, without
 
limiting
the generality
 
of the
 
foregoing:
 
(a) subject to
 
Sections 12.5 and
 
12.7, the
 
right to
 
vote the
 
same, either
 
in
person or
 
by proxy,
 
for every
 
purpose; (b) the
 
right to
 
become parties
 
to or
 
prosecute or
 
intervene in
 
any
suits or other legal or administrative proceedings; (c) the right to incur costs and
 
expenses and to borrow or
to arrange for borrowing for such purposes; and (f) the right to engage
 
counsel and other advisors or agents
for
 
such
 
purposes.
 
In
 
connection
 
with
 
the
 
foregoing,
 
the
 
Managing
 
Member
 
may
 
exercise
 
such
 
rights,
powers and privileges on behalf of the LLC, except as otherwise provided in Sections 12.5 and 12.7.
12.7
 
Sale or Conversion
 
of Contributed Shares
 
by Managing Member.
 
Except as otherwise
expressly permitted herein, the
 
Managing Member shall not
 
cause or permit the
 
LLC to sell, lease,
 
assign,
transfer, alienate,
 
pledge, encumber or hypothecate
 
the Contributed Shares, or
 
convert any Class A Shares
into Common
 
Shares, provided
 
that, the
 
Managing Member
 
may take
 
such action
 
to the
 
extent the
 
Managing
Member determines is necessary
 
with respect to estate
 
taxes and related interest
 
expense and other related
costs, if
 
approved by
 
Members holding
 
a majority
 
of the
 
voting power
 
of all
 
of the
 
Units held
 
hereunder.
 
Any purported
 
transfer of
 
Contributed Shares
 
other than
 
in accordance
 
with the
 
terms of
 
this Agreement
shall be void.
12.8
 
Meetings and Procedures.
 
The Managing Member may establish procedures for meetings
and votes
 
of the
 
Members.
 
Also, in
 
the event
 
there is
 
at any
 
time more
 
than one
 
Managing Member,
 
the
Managing
 
Members
 
may
 
establish
 
procedures
 
for
 
meetings,
 
consents
 
and
 
other
 
matters
 
relating
 
to
 
the
Managing Members.
12.9
 
Voting
 
by Managing Members if there are more
 
than one Managing Member.
 
If there
is at any time more
 
than one Managing Member,
 
each Managing Member acting hereunder
 
shall have one
vote
 
in
 
connection
 
with
 
actions
 
of
 
the
 
Managing
 
Member
 
and
 
approval
 
of
 
any
 
action
 
by
 
the
 
Managing
Members shall require the affirmative
 
vote by a majority in number
 
of the Managing Members.
 
Except to
the extent
 
provided herein,
 
the number
 
of Managing
 
Members serving
 
from time
 
to time
 
shall be
 
determined
exclusively by (and newly
 
created Managing Member positions
 
shall be filled exclusively
 
by) (i) a majority
of
 
the
 
persons
 
who
 
are
 
then
 
Managing
 
Members,
 
(ii) the
 
sole
 
Managing
 
Member,
 
if
 
there
 
is
 
only
 
one
Managing
 
Member
 
or
 
(iii) if
 
there
 
are
 
no
 
Managing
 
Members
 
then
 
in
 
office,
 
by
 
Members
 
having
 
a
majority in voting
 
power of
 
the Units.
 
For the
 
avoidance of
 
doubt, whenever
 
this Agreement
 
refers to
 
an
action or determination by “the Managing Member” and
 
at the time of such action or determination
 
there is
more than one
 
Managing Member, the approval of
 
such action or
 
determination shall require, and
 
shall only
require, the affirmative vote by a
 
majority in number of the
 
Managing Members.
 
In the event of a
 
deadlock
among Managing
 
Members with
 
respect to
 
any action
 
or determination,
 
the decision
 
with respect
 
to such
action or determination shall be resolved by the
 
vote of Members having a majority in voting
 
power of the
Units.
12.10
 
Status of Managing Members.
(a)
 
Terms of Office
 
.
 
Any Managing Member named hereunder shall serve as
Managing Member until his resignation, removal, disability, death or failure to act.
 
In the event of the
initial Managing Member’s resignation, removal, disability,
 
death or failure to act, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇ shall become successor co-Managing Members, provided that they are Members at such
time and execute and deliver the joinder described below in Section 12.10(b).
 
In the event of the
 
 
 
 
 
resignation of any such or other successor Managing Members, the resigning Managing Member shall
designate a successor Managing Member or Managing Members before such resignation is effective.
 
In
the event of the removal, disability, death, or failure to act of any successor Managing Member,
 
or in the
event of the failure of any resigning successor Managing Member to designate a successor, the successor
Managing Member or Managing Members (if any) shall be determined by Members having a majority of
the voting power of the Units.
(b)
 
Additional and Successor Managing Member.
 
Each additional or successor
Managing Member appointed hereunder shall be a natural person who is an Immediate Family Member
and Member and shall execute a joinder substantially in the form set forth in Exhibit D attached hereto (or
in such other form as the predecessor Managing Member or Managing Members shall determine).
12.11
 
Removal
 
of Managing
 
Member.
 
Any Managing
 
Member
 
may
 
be
 
removed at
 
any time,
with or without cause, by an instrument signed by seventy-five percent (75%) in voting power of
 
the Units
at the time such instrument is delivered to the Managing
 
Member (s), such removal to occur upon delivery
or other date and time specified in such instrument.
12.12
 
Resignation of Managing
 
Members.
 
Subject to Section 12.11, the
 
Managing Member may
at
 
any
 
time
 
resign
 
as
 
the
 
Managing
 
Member
 
effective
 
immediately
 
or
 
at
 
any
 
future
 
time
 
or
 
upon
 
the
happening
 
of
 
any
 
future
 
event
 
specified
 
in
 
the
 
resignation.
 
In
 
such
 
event,
 
the
 
Managing
 
Member
 
shall
become a Non-Managing Member, if otherwise eligible to be a Member.
12.13
 
Costs and Expenses.
 
The LLC may employ
 
counsel or other agents
 
or services, and incur
indebtedness or expenses deemed necessary by
 
the Managing Member in connection with
 
the operation of
the LLC
 
pursuant
 
to the
 
terms of
 
this Agreement.
 
In the
 
discretion
 
of the
 
Managing Member,
 
any such
expenses or
 
discharge of
 
indebtedness may
 
be deducted
 
from the
 
dividends received
 
by the
 
LLC with
 
respect
to
 
the
 
Contributed
 
Shares
 
before
 
distributing
 
such
 
dividends
 
to
 
the
 
Members,
 
or
 
funded
 
by
 
a
 
capital
contribution of
 
cash by
 
each Member,
 
to be
 
paid by
 
such Member
 
in proportion
 
to their
 
respective Units.
 
In the event that a Member fails to make any such capital contribution, the Managing Member shall deduct
such
 
amount
 
from
 
the
 
dividends
 
received
 
by
 
the
 
LLC
 
with
 
respect
 
to
 
the
 
Contributed
 
Shares
 
before
distributing such dividends such Member.
 
The Managing Member may establish reserves to pay expenses
before making distributions of cash from dividends.
12.14
 
Other
 
Relationships
 
Between
 
Managing
 
Member
 
and
 
Company.
 
Any
 
Managing
Member shall
 
be permitted
 
to be,
 
at the
 
same time,
 
an officer,
 
director,
 
consultant, agent,
 
or employee
 
of
the Company or of
 
any affiliate of
 
the Company,
 
and shall be permitted
 
to have a pecuniary
 
interest in his
personal capacity,
 
either directly
 
or indirectly,
 
in any
 
matter or
 
transaction to
 
which the
 
Company or
 
any
affiliate may
 
be a party
 
or in
 
which the
 
Company or any
 
affiliate may
 
be concerned to
 
the same
 
extent as
though he were not a Managing Member.
Any such Managing Member shall be permitted to
 
receive compensation, of whatever character,
 
as
provided by existing contracts or
 
to enter into new contracts
 
with the Company or its
 
affiliates, for acting in
such other capacity, without being disqualified to act as Managing Member hereunder.
12.15
 
Compensation
 
of
 
Managing
 
Member.
 
The
 
Managing
 
Member
 
shall
 
not
 
be
 
entitled
 
to
compensation for his services as Managing
 
Member hereunder, but shall be entitled to reimbursement
 
from
the LLC of all costs and expenses and taxes incurred by the Managing Member hereunder.
12.16
 
Responsibility
 
of
 
Managing
 
Member.
 
In
 
voting
 
or
 
giving
 
directions
 
for
 
voting
 
the
Contributed Shares or in exercising any consent with respect thereto,
 
the Managing Member shall exercise
his best judgment,
 
from time to
 
time, to select
 
suitable directors and
 
in voting or
 
giving directions for
 
voting
and
 
acting
 
on
 
other
 
matters
 
for
 
shareholders’
 
action;
 
provided,
 
however,
 
that
 
the
 
Managing
 
Member
 
 
 
assumes no responsibility in respect
 
of any such action or other
 
action taken by the Managing
 
Member, and
the Managing
 
Member shall
 
not incur
 
or be
 
under any
 
liability in
 
the capacity
 
as Managing
 
Member,
 
by
reason of any error of law or any error in the construction of this Agreement or of any matter or thing done
or suggested or omitted
 
to be done pursuant
 
to this Agreement.
 
No bond shall be
 
required of any Managing
Member for the performance of the services of Managing Member.
12.17
 
Reliance by Managing Member.
 
The Managing Member shall be conclusively entitled to
rely upon any notice or statement received by him from the Company,
 
the LLC, any officer or agent of the
LLC,
 
any
 
counsel
 
or
 
other
 
advisor
 
to
 
the
 
LLC
 
or
 
to
 
Managing
 
Member,
 
or
 
the
 
holders
 
of
 
record
 
of
Membership Certificates,
 
and believed
 
by him
 
in good
 
faith to
 
be genuine
 
and shall
 
act and
 
shall be fully
protected in acting in accordance therewith.
12.18
 
Legal Compliance by Managing
 
Member
.
 
The Managing Member shall
 
comply with all
legal requirements of the
 
LLC created hereby,
 
including making all regulatory
 
filings, such as filings
 
with
the Securities and Exchange Commission
 
(“SEC”), including Schedule 13D and
 
filings under Section 16 of
the Securities Exchange Act of 1934, as amended.
ARTICLE XIII
EXCULPATION AND INDEMNIFICATION
13.1
 
Exculpation; Indemnification
 
of Members.
 
References to
 
a Member
 
in this
 
Article XIII
includes reference to a Managing Member.
(a)
 
Each member shall have all of the
 
fiduciary and other duties imposed by Applicable
Law.
(b)
 
To the fullest
 
extent permitted
 
by the Delaware Act,
 
as the
 
same now exists
 
or may
hereafter be amended, no Member shall be liable to any holder of a Membership Certificate or to any other
Person, under this
 
Agreement or
 
Applicable Law, by reason of
 
any matter arising out of
 
or in relation to this
Agreement
 
(including,
 
without
 
limitation,
 
any
 
action
 
taken,
 
or
 
omitted
 
to
 
be
 
taken
 
by
 
him,
 
her
 
or
 
it
 
in
reliance upon and in
 
conformity with, the advice
 
of counsel, or
 
other professional advisor,
 
or by reason
 
of
any error of
 
judgment or mistake
 
of law or
 
other mistake, or
 
any act or
 
omission of any
 
agent or attorney,
or any misconstruction of this
 
Agreement, or any action of any sort taken or omitted thereunder
 
or believed
by such
 
Member to
 
be in
 
accordance with
 
the provisions
 
and intents
 
hereof or
 
otherwise), provided,
 
that
(x) such Member acted in good faith and in a manner believed by such Member to be
 
in, or not opposed to,
the best
 
interests of
 
the LLC
 
and, with
 
respect to
 
any criminal
 
proceeding, had
 
no reasonable
 
cause to
 
believe
his conduct was
 
unlawful, and (y) such
 
Member’s conduct did
 
not constitute fraud,
 
gross negligence, willful
misconduct or
 
a material
 
breach of
 
this
 
Agreement by
 
such Member
 
or a
 
knowing violation
 
of the
 
provisions
of this Agreement.
(c)
 
EACH
 
HOLDER
 
OF
 
MEMBERSHIP
 
CERTIFICATES,
 
BY
 
ENTERING
 
INTO
THIS
 
AGREEMENT,
 
HEREBY
 
WAIVES
 
ANY
 
RIGHT
 
TO
 
BRING
 
OR
 
PURSUE
 
ANY
 
ACTION,
DIRECTLY OR
 
DERIVATIVELY,
 
ON
 
HIS,
 
HER
 
OR
 
ITS
 
OWN
 
BEHALF
 
OR
 
ON
 
BEHALF
 
OF THE
LLC,
 
AGAINST
 
ANY
 
OTHER
 
MEMBER,
 
EXCEPT
 
FOR
 
TO
 
THE
 
EXTENT
 
PROVIDED
 
IN
 
THE
PROVISO
 
OF
 
THE
 
PRECEDING
 
PARAGRAPH,
 
OR
 
TO
 
ENFORCE
 
THE
 
UNDERTAKING
CONTEMPLATED BY THE NEXT PARAGRAPH.
(d)
 
To the fullest
 
extent permitted
 
by the Delaware Act,
 
as the
 
same now exists
 
or may
hereafter be amended, each current
 
or former Member shall be
 
indemnified and held harmless by
 
the LLC
from
 
and
 
against
 
any
 
and
 
all
 
of
 
such
 
current
 
or
 
former
 
Member’s
 
actions
 
pursuant
 
to
 
this Agreement,
including
 
any
 
expenses
 
incurred
 
by
 
a
 
current
 
or
 
former
 
Member
 
in
 
defending
 
any
 
proceeding
 
or
 
action
brought against
 
such Member
 
for actions
 
taken in
 
his, her
 
or its
 
capacity as
 
a Member,
 
provided, that
 
(x) such
 
 
 
 
Member acted in good faith and in a manner believed by such Member to be in, or not opposed to, the best
interests of
 
the LLC
 
and, with
 
respect to
 
any criminal
 
proceeding, had
 
no reasonable
 
cause to
 
believe his
conduct was
 
unlawful, and
 
(y) such Member’s
 
conduct did
 
not constitute
 
fraud, gross
 
negligence, willful
misconduct or
 
a material
 
breach of
 
this
 
Agreement by
 
such Member
 
or a
 
knowing violation
 
of the
 
provisions
of this Agreement.
(e)
 
Each
 
current
 
or
 
former
 
Managing
 
Member
 
shall
 
be
 
entitled
 
to
 
receive
 
prompt
payments for expenses
 
and costs reasonably
 
incurred in connection
 
with the defense
 
of any such
 
proceeding
or
 
action
 
in
 
advance
 
of
 
the
 
final
 
adjudication
 
of
 
any
 
disputes
 
relating
 
thereto,
 
but
 
only
 
if
 
the
 
current
 
or
former
 
Managing
 
Member
 
undertakes
 
in
 
writing
 
to
 
repay
 
the
 
LLC
 
such
 
advances
 
if,
 
following
 
the
conclusion of such
 
proceeding or action,
 
it is ultimately
 
determined by a
 
court of competent
 
jurisdiction that
the
 
current
 
or
 
former
 
Managing
 
Member
 
is
 
not
 
entitled
 
to
 
indemnification
 
pursuant
 
to
 
this
 
paragraph.
 
Subject to the approval of the Managing Member in his sole discretion, a current or former Non-Managing
Member may receive
 
prompt payments for
 
expenses and costs
 
reasonably incurred in
 
connection with the
defense of
 
any such
 
proceeding or
 
action in
 
advance of
 
the final
 
adjudication of
 
any disputes
 
relating thereto,
but
 
only
 
if
 
the
 
current
 
or
 
former
 
Non-Managing
 
Member
 
undertakes
 
in
 
writing
 
to
 
repay
 
the
 
LLC
 
such
advances if, following the conclusion of such proceeding
 
or action, it is ultimately determined by
 
a court of
competent jurisdiction that the current or former Non-Managing Member is
 
not entitled to indemnification
pursuant to this paragraph.
(f)
 
A current
 
or former
 
Member shall
 
also be
 
indemnified for
 
any expenses
 
and other
costs incurred
 
to enforce
 
such Member’s
 
rights pursuant
 
to this
 
Section 13.1 or
 
incurred to
 
defend any
 
action
brought by or on behalf of the
 
LLC to recover advances pursuant to an
 
undertaking, but in each case only if
the Member is successful in such enforcement or defense action.
(g)
 
The
 
rights
 
to
 
indemnification
 
and
 
advancement
 
of
 
expenses
 
set
 
forth
 
in
 
this
Section 13.1 shall not be deemed exclusive and shall be in addition to any such rights a Member
 
may have,
including but not
 
limited to rights
 
of such Member,
 
in his or
 
her capacity as
 
an officer, director,
 
employee
or agent of the Company.
(h)
 
The
 
Managing
 
Member
 
may
 
obtain
 
and
 
maintain
 
insurance,
 
at
 
the
 
expense
 
of
 
the
LLC created hereby, to protect any current or former Member or fiduciary or agent of
 
the LLC, against any
expense, liability or loss.
ARTICLE XIV
RECORDS, ACCOUNTING AND TAX MATTERS
14.1
 
Records Required by
 
the Delaware Act.
 
During the term of
 
the LLC’s
 
existence and for
a
 
period
 
of
 
four
 
years
 
thereafter,
 
the
 
Managing
 
Member
 
shall
 
maintain
 
at
 
the
 
LLC’s
 
principal
 
office
 
all
records required to be kept pursuant to the Delaware Act.
14.2
 
Book and Records.
 
The Managing Member shall
 
maintain adequate books
 
and records of
account for the LLC on a
 
basis consistent with appropriate provisions of
 
the Code, containing, among other
entries, a Capital Account for each Member.
 
Such books and records shall be
 
kept at the principal office of
the LLC
 
or at
 
such other
 
place as
 
the Managing
 
Member shall
 
determine and
 
set forth
 
in a
 
written notice
given to all Members, and shall be available to the Members upon written request.
14.3
 
Accounting
 
Methods;
 
Fiscal
 
Year.
 
The
 
Managing
 
Member
 
shall
 
select
 
the
 
accounting
methods and fiscal year for the LLC.
14.4
 
LLC Funds.
 
All funds of
 
the LLC shall
 
be deposited in
 
its name, or
 
in such name
 
as may
be designated by the Managing Member, in such checking, savings or
 
other accounts, or held in its name
 
in
 
 
 
 
 
 
 
the form of such other investments as
 
shall be designated by the Managing Member.
 
The funds of the LLC
shall not
 
be commingled
 
with the
 
funds of
 
any other
 
Person.
 
All withdrawals
 
of such
 
deposits or
 
liquidations
of such investments
 
by the LLC
 
shall be made exclusively
 
upon the signature
 
or signatures of
 
the Managing
Member.
14.5
 
Tax
 
Matters Member
.
(a)
 
Appointment.
 
The
 
Members
 
hereby
 
appoint
 
the
 
Managing
 
Member
 
as
 
the
 
“tax
matters partner” (as
 
defined in Code Section
 
6231 prior to its
 
amendment by the Bipartisan
 
Budget Act of
2015 and, for tax years beginning
 
on or after January 1, 2018, the “partnership
 
representative” as provided
in Code Section 6223(a) (as amended
 
by the Bipartisan Budget Act of 2015) (the “Tax
 
Matters Member”).
 
In connection therewith, the Tax Matters Member, in his sole discretion, shall cause to be prepared and file
all tax returns, make all tax determinations and tax elections,
 
and represent the LLC (at the LLC’s expense)
in
 
connection
 
with
 
all
 
examinations
 
of
 
the
 
LLC’s
 
affairs
 
by
 
taxing
 
authorities,
 
including
 
resulting
administrative
 
and
 
judicial
 
proceedings,
 
and
 
may
 
expend
 
LLC
 
funds
 
for
 
professional
 
services
 
and
 
costs
associated therewith.
(b)
 
Notwithstanding the foregoing,
 
the Managing Member
 
may make an
 
election under
Section 754 of the Code to
 
adjust the basis of partnership property
 
under Sections 734 and 743
 
of the Code.
(c)
 
As
 
soon
 
as
 
reasonably
 
possible
 
after
 
the
 
end
 
of
 
each
 
fiscal
 
year,
 
the
 
Managing
Member will cause to
 
be delivered to each
 
Person who was a
 
Member at any time
 
during such fiscal year,
IRS Schedule K-1
 
to Form 1065
 
and such other
 
information with respect
 
to the LLC
 
as may be
 
necessary
for the preparation of such Person’s federal, state and local income tax returns for such fiscal year.
ARTICLE XV
DISSOLUTION AND LI
Q
UIDATION
15.1
 
Events of Dissolution.
 
The LLC shall be dissolved
 
and its affairs wound
 
up only upon the
occurrence of any of the following events:
(a)
 
Upon the expiration of the term of the LLC as provided in Section 2.6;
(b)
 
The determination of the Managing Member to dissolve the LLC;
(c)
 
A joint election to dissolve the LLC made by the
 
Managing Member and by holders
of a majority of the voting power of the Units;
(d)
 
The sale, exchange,
 
or other disposition
 
or transfer of
 
all or substantially
 
all the
 
assets
of the LLC;
(e)
 
The entry of a decree of judicial dissolution under §18-802 of the Delaware Act; or
(f)
 
Any other event causing a dissolution
 
of the LLC under the Delaware
 
Act, unless the
LLC is continued as permitted under the Delaware Act.
15.2
 
Effectiveness of Dissolution.
 
Dissolution of the
 
LLC shall be effective
 
on the day on
 
which
the event described in Section 15.1 occurs, but the
 
LLC shall not terminate until the winding
 
up of the LLC
has
 
been
 
completed,
 
the
 
assets
 
of
 
the
 
LLC
 
have
 
been
 
distributed
 
as
 
provided
 
in
 
Section 15.3
 
and
 
the
Certificate of Formation shall have been cancelled as provided in Section 15.4.
15.3
 
Liquidation.
 
If the LLC is
 
dissolved pursuant to Section 15.1,
 
the LLC shall be
 
liquidated
and its business and affairs wound up in accordance with the Delaware Act and the following provisions:
 
 
 
 
 
(a)
 
Liquidation.
 
The Managing Member shall wind up and liquidate the affairs of the
LLC in an orderly and business-like manner, provided that the Managing Member shall not liquidate any
Class A Shares or Common Shares and shall distribute these in kind as provided in Section 15.3(c).
(b)
 
Accounting.
 
As promptly as possible after dissolution and again after final
liquidation, the Managing Member shall cause a proper accounting to be made of the LLC’s assets,
liabilities and operations through the last day of the calendar month in which the dissolution occurs or the
final liquidation is completed, as applicable.
(c)
 
Distribution of Assets.
 
Subject to the payment of all of the LLC’s debts and
liabilities to its creditors and the expenses of dissolution and liquidation, and subject to Section 18-804 of
the Delaware Act, the Managing Member shall distribute the Class A Shares and any Common Shares to
the holders of the Class A Units and Common Units, and any proceeds of liquidation, as follows:
 
Subject
to the surrender for cancellation of the Membership Certificates, the Managing Member shall cause the
Class A Shares to be transferred to and registered in the name of the Member identified as the owner on
such Membership Certificates in liquidation of such Member’s Class A Units and, if there are any
Common Units outstanding at such time, the Managing Member shall cause Common Shares to be
transferred to and registered in the name of the Member identified as the owner on such Membership
Certificates in liquidation of such Member’s Common Units.
 
In such liquidation, Members shall receive
one Class A Share for each Class A Unit, and one Common Share for each Common Unit.
 
The Managing
Member shall also distribute any proceeds of liquidation in proportion to such Units.
15.4
 
Cancellation of
 
Certificate of
 
Formation
.
 
Upon completion
 
of the
 
distribution of
 
the assets
of the LLC
 
as provided in
 
Section 15.3 hereof, the
 
LLC shall be
 
terminated and the
 
Managing Member shall
cause the
 
cancellation of
 
the Certificate
 
of Formation
 
in the
 
State of
 
Delaware and
 
any qualifications
 
and
registrations
 
of
 
the
 
LLC
 
as
 
a
 
foreign
 
limited
 
liability
 
company
 
in
 
jurisdictions
 
other
 
than
 
the
 
State
 
of
Delaware and shall take such other actions as may be necessary to terminate the LLC.
ARTICLE XVI
REPRESENTATIONS AND WARRANTIES OF MEM
B
ERS
16.1
 
Representations and Warranties.
 
Each Member represents and warrants as follows:
(a)
 
Such Member will be
 
acquiring the Units represented
 
by Membership Certificate(s)
for his, her or
 
its own account for
 
investment and not with
 
a view to the
 
distribution or resale thereof;
 
that
he, she or it is aware that the such certificates have not been registered pursuant to the Securities Act or the
securities
 
laws of
 
any state;
 
and that
 
the LLC
 
is relying
 
in part
 
upon these
 
investment representations
 
to
establish exemptions
 
from securities
 
registration under
 
applicable federal
 
and state
 
securities laws.
 
Each
Member
 
understands and
 
agrees
 
that the
 
LLC will
 
place a
 
legend on
 
the Membership
 
Certificates to
 
the
effect that they have not
 
been registered under either federal
 
or state law; that they
 
may not be offered, sold,
transferred or
 
encumbered by
 
the Member
 
unless they
 
have been
 
first duly
 
registered or
 
unless an
 
exemption
from registration
 
is available.
 
The Member
 
acknowledges that
 
he, she
 
or it
 
understands that
 
unregistered
securities,
 
such
 
as
 
the
 
Membership
 
Certificates,
 
must
 
be
 
held
 
indefinitely
 
unless
 
they
 
are
 
subsequently
registered or
 
unless an
 
exemption from
 
registration is
 
available with
 
respect to
 
a proposed
 
offer, sale,
 
transfer
or encumbrance;
(b)
 
Such
 
Member
 
is
 
an
 
“accredited
 
investor”
 
within
 
the
 
meaning
 
of
 
Rule 501
promulgated under the Securities Act, and agrees that it will not take any action that could have an adverse
effect on the availability
 
of the exemption from
 
registration provided by such
 
Rule 501 with respect to
 
the
offer and sale of the Units;
 
 
 
 
(c)
 
Such Member, together
 
with such Member’s
 
legal, financial and
 
other advisors, has
such knowledge
 
and experience
 
in financial
 
and business
 
matters and
 
is capable
 
of evaluating
 
the merits
and risks of an investment in the LLC so as to make an informed decision with respect thereto;
(d)
 
Such Member is able to bear the economic and financial risk of an investment in the
LLC for an indefinite period of time;
(e)
 
Such Member (i) has received all information that such Member deems necessary to
make an informed
 
investment decision with
 
respect to an
 
investment in the
 
LLC;(ii) has had
 
the unrestricted
opportunity to
 
make such
 
investigation as
 
such Member
 
desires pertaining
 
to the
 
LLC and
 
an investment
therein and
 
to verify
 
any information
 
furnished to
 
such Member;
 
and (iii) has
 
had the
 
opportunity to
 
ask
questions of representatives of the LLC concerning the LLC and such Member’s investment;
(f)
 
The
 
execution,
 
delivery
 
and
 
performance
 
of
 
this
 
Agreement
 
have
 
been
 
duly
authorized by such Member and do not require such
 
Member to obtain any consent or approval that has
 
not
been obtained
 
and do
 
not contravene
 
or result
 
in a
 
default in
 
any material
 
respect under
 
any provision
 
of
any
 
law
 
or
 
regulation
 
applicable
 
to
 
such
 
Member
 
or
 
other
 
governing
 
documents
 
or
 
any
 
agreement
 
or
instrument to which such Member is a party or by which such Member is bound; and
(g)
 
This
 
Agreement is
 
valid, binding
 
and enforceable
 
against such
 
Member in
 
accordance
with its terms,
 
except as may
 
be limited by
 
bankruptcy, insolvency, reorganization,
 
moratorium, and other
similar
 
laws
 
of
 
general
 
applicability
 
relating
 
to
 
or
 
affecting
 
creditors’ rights
 
or
 
general
 
equity
 
principles
(regardless of whether considered at law or in equity).
ARTICLE XVII
COVENANTS
17.1
 
Confidentiality
.
 
Each Non-Managing Member
 
agrees not to
 
divulge, communicate or
 
use
to the
 
detriment of
 
the Company or
 
the LLC, or
 
misuse in
 
any way,
 
any confidential
 
information or
 
trade
secrets
 
of
 
the
 
Company
 
or
 
the
 
LLC,
 
except
 
as
 
may
 
be
 
required
 
by
 
law;
 
provided,
 
however,
 
that
 
this
prohibition shall not apply to any information that has been publicly disclosed.
ARTICLE XVIII
GENERAL PROVISIONS
18.1
 
Successors and Assigns.
 
This Agreement and all covenants herein contained shall inure to
the benefit of and
 
be binding upon the
 
parties hereto, their heirs,
 
executors, administrators, successors and
assigns.
 
Without
 
limiting
 
the
 
foregoing,
 
the
 
parties
 
intend
 
for
 
the
 
rights
 
and
 
obligations
 
under
 
this
Agreement
 
to
 
survive
 
the
 
death
 
of
 
any
 
party
 
or
 
other
 
person,
 
including
 
any
 
Member
 
and
 
the
 
related
Contributed
 
Shares,
 
and
 
to
 
be
 
specifically
 
enforceable
 
against
 
any
 
deceased
 
party’s
 
heirs,
 
executors,
administrators, representatives, successors or assigns to the fullest extent permitted by law.
18.2
 
Notices.
 
Any notice
 
required to
 
be given
 
under this
 
Agreement shall
 
be deemed
 
to have
 
been
given and received if actually
 
received, such as by telephone,
 
telecopier, electronic mail,
 
hand delivery,
 
or
other means, and the giver has
 
reasonable evidence or acknowledgment of its
 
receipt.
 
Notice shall also be
deemed to have been given if deposited in the United States mail, postage prepaid, in which case it shall
 
be
deemed to have been
 
received on the third
 
business day after the
 
date of such deposit,
 
or if deposited with
a
 
commercial
 
or
 
government
 
overnight
 
carrier,
 
in
 
which
 
case
 
it
 
shall
 
be
 
deemed
 
to
 
be
 
received
 
the
 
first
business day after the date of such deposit.
(a)
 
Address of Member.
 
In the case of a Participant or Certificate Holder, such notice
shall be addressed to such party, as set forth on Exhibit B attached hereto.
 
 
 
 
 
 
(b)
 
Addresses of Managing Member(s).
 
In the case of a notice to the Managing
Member by a Non-Managing Member, such notice shall be given to the Managing Member at the
principal office of the LLC, located at the principal business office of the Company,
 
as set forth on
Exhibit B attached hereto, or as it may be changed from time to time by the Managing Member by written
notice to all such holders.
18.3
 
Amendment
 
of
 
Agreement.
 
This
 
Agreement
 
and
 
the
 
Membership
 
Certificates
 
issued
hereunder
 
may
 
be
 
amended
 
upon
 
the
 
consent
 
in
 
writing
 
of
 
the
 
Managing
 
Member
 
and
 
by
 
all
 
Members
holding Membership Certificates
 
representing no less
 
than a majority of
 
the voting power
 
of the Units
 
at the
time;
 
provided,
 
however,
 
that
 
an
 
amendment
 
or
 
modification
 
modifying
 
the
 
rights
 
or
 
obligations
 
of
 
any
Member in
 
a manner
 
that is
 
disproportionately adverse
 
to (i) such
 
Member relative
 
to the
 
rights of
 
other
Members in respect
 
of Units of the
 
same class or
 
(ii) a class of
 
Units relative to the
 
rights of another
 
class
of Units,
 
shall in
 
each case
 
be effective
 
only with
 
that Member’s
 
consent or
 
the consent
 
of the
 
Members
holding a
 
majority of
 
the Units
 
in that
 
class.
 
Notwithstanding the
 
foregoing, the
 
Managing Member
 
may
amend this Agreement without the consent of the
 
Members to (i) reflect the admission of new Members
 
in
accordance
 
with
 
this
 
Agreement
 
so
 
long
 
as
 
such
 
Members
 
have
 
executed
 
the
 
applicable
 
joinder
contemplated hereby and
 
(ii) update any exhibit
 
hereto to reflect
 
any changes in
 
any Managing Member’s
or
 
Non-Managing
 
Member’s
 
name,
 
address
 
or
 
number
 
of
 
LLC
 
Units,
 
including
 
the
 
Members
 
Schedule.
 
Executed counterparts of all amendments
 
to this Agreement (including all
 
joinders and amended exhibits to
this Agreement) shall be filed at the principal business office of the Company.
18.4
 
Costs and Expenses.
 
Except as otherwise provided herein, each party hereto, including the
LLC and each
 
Member, shall
 
pay its, his
 
or her own expenses
 
incurred in connection
 
with the preparation
and execution of this Agreement, or any amendment hereof, this Agreement.
18.5
 
Severability of Provisions.
 
The invalidity
 
or unenforceability of
 
any term
 
or provision of
this Agreement shall not affect the validity of the remainder hereof.
18.6
 
Controlling Law;
 
Submission to
 
Jurisdiction; Specific
 
Performance.
 
The LLC
 
created
hereunder
 
is
 
a
 
limited
 
liability
 
company
 
created
 
under
 
the
 
Delaware
 
Act.
 
All
 
questions
 
concerning
 
this
Agreement
 
and
 
the
 
LLC
 
created
 
▇▇▇▇▇▇▇▇▇,
 
including
 
the
 
validity,
 
construction,
 
effect,
 
assignment
 
and
administration
 
of
 
this
 
Agreement
 
and
 
the
 
LLC
 
created
 
▇▇▇▇▇▇▇▇▇,
 
shall
 
always,
 
and
 
in
 
all
 
events,
 
be
determined under the law of the
 
State of Delaware without regard
 
to conflict of law principles
 
(whether of
the State of Delaware or any other jurisdiction).
EACH
 
PARTY
 
TO
 
THIS
 
AGREEMENT
 
HEREBY
 
IRREVOCABLY
 
SUBMITS
 
TO
 
THE
EXCLUSIVE
 
JURISDICTION
 
OF
 
THE
 
COURT
 
OF
 
CHANCERY
 
OF
 
THE
 
STATE
 
OF
 
DELAWARE
(OR IF SUCH
 
COURT DOES NOT HAVE SUBJECT MATTER
 
JURISDICTION, ANY OTHER STATE
COURT OF
 
THE STATE
 
OF DELAWARE
 
OR THE FEDERAL
 
COURTS
 
LOCATED
 
IN THE STATE
OF
 
DELAWARE)
 
IN
 
ANY
 
ACTION,
 
SUIT
 
OR
 
PROCEEDING
 
ARISING
 
IN
 
CONNECTION
 
WITH
THIS AGREEMENT,
 
AND AGREES
 
THAT
 
ANY SUCH
 
ACTION, SUIT
 
OR PROCEEDING
 
SHALL
BE BROUGHT ONLY
 
IN THE COURT
 
OF CHANCERY
 
(OR SUCH OTHER
 
COURTS
 
IDENTIFIED
HEREIN IF THE
 
COURT
 
OF CHANCERY
 
DOES NOT HAVE
 
SUBJECT MATTER
 
JURISDICTION)
AND
 
WAIVES
 
ANY
 
OBJECTION
 
BASED
 
ON
 
FORUM
 
NON
 
CONVENIENS
 
OR
 
ANY
 
OTHER
OBJECTION
 
TO
 
VENUE
 
THEREIN;
 
PROVIDED,
 
HOWEVER,
 
THAT
 
SUCH
 
CONSENT
 
TO
JURISDICTION
 
IS
 
SOLELY
 
FOR
 
THE
 
PURPOSE
 
REFERRED
 
TO
 
IN
 
THIS
 
PARAGRAPH
 
AND
SHALL NOT
 
BE DEEMED
 
TO BE
 
A GENERAL
 
SUBMISSION TO
 
THE JURISDICTION
 
OF SUCH
COURTS OR IN THE STATE
 
OF DELAWARE
 
OTHER THAN FOR
 
SUCH PURPOSE.
 
THE PARTIES
HERETO
 
HEREBY
 
WAIVE
 
ANY
 
RIGHT
 
TO
 
A
 
TRIAL
 
BY
 
JURY
 
IN
 
CONNECTION
 
WITH
 
ANY
SUCH ACTION, SUIT OR PROCEEDING.
 
Service
 
of
 
process
 
on
 
a
 
party
 
in
 
any
 
action
 
arising
 
out
 
of
 
or
 
relating
 
to
 
this
 
Agreement
 
shall
 
be
effective if delivered to such party in accordance with Section 18.2.
The parties
 
hereto hereby
 
agree that
 
it is
 
impossible to
 
measure in
 
money the
 
damages which
 
will
accrue to a party hereto or to its heirs, personal representatives, or assigns by reason of a failure to perform
any
 
obligations
 
under
 
this
 
Agreement
 
and
 
agree
 
that
 
the
 
terms
 
of
 
this
 
Agreement
 
shall
 
be
 
specifically
enforceable.
 
If
 
any
 
party
 
hereto
 
or
 
its
 
heirs,
 
personal
 
representatives,
 
or
 
assigns
 
institutes
 
any
 
action
 
or
proceeding to
 
specifically enforce
 
the provisions
 
hereof, any
 
person against
 
whom such
 
action or
 
proceeding
is brought (i) hereby waives the claim or
 
defense therein that such party or such
 
personal representative has
an adequate remedy at law,
 
(ii) hereby waives any bond, surety,
 
or other security that might be
 
required of
any other party
 
with respect thereto,
 
and (iii) shall
 
not offer
 
in any such
 
action or proceeding
 
the claim or
defense that an adequate remedy at law exists.
18.7
 
Construction of Agreement.
 
All questions concerning the interpretation or construction of
this Agreement shall be
 
determined by the Managing
 
Member, whose decision shall be
 
final and binding on
all parties.
18.8
 
Multiple Counterparts.
 
This Agreement may be
 
executed by the parties
 
herein, or any of
them, in
 
any number
 
of counterparts,
 
with the
 
same force
 
and effect
 
as if
 
they had
 
all executed
 
the same
instrument.
18.9
 
Entire
 
Agreement.
 
This Agreement
 
(including the
 
exhibits attached
 
hereto)
 
contains the
entire
 
understanding
 
among
 
the
 
parties
 
hereto
 
with
 
respect
 
to
 
the
 
subject
 
matter
 
hereof,
 
and
 
no
representation, warranty,
 
covenant or
 
condition other
 
than those
 
expressly set
 
forth herein
 
shall be
 
of any
force or effect.
18.10
 
No Third-party Beneficiaries.
 
Except as expressly provided herein,
 
this Agreement is for
the sole
 
benefit of
 
the parties
 
hereto (and
 
their respective
 
heirs, executors,
 
administrators, successors
 
and
assigns)
 
and
 
nothing
 
herein,
 
express
 
or
 
implied,
 
is
 
intended
 
to
 
or
 
shall
 
confer
 
upon
 
any
 
other
 
Person,
including any creditor of the LLC, any legal or equitable right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
* * * * *
 
 
 
 
 
 
IN WITNESS WHEREOF, the LLC,
 
the Managing Member
 
and each other
 
Member has caused
 
this
Agreement to be duly executed as of the date first specified above.
DLNL, LLC
By:
 
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Member
Managing Member:
 
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
 
Managing Member
Non-Managing Members:
 
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
 
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
 
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
 
▇▇▇▇▇▇ ▇▇▇▇▇
 
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
 
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
 
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
 
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
 
 
 
 
EXHIBIT A
FORM OF MEMBERSHIP CERTIFICATE
No.
 
 
Number of
 
[Class A Units]
[Common Units]
DLNL, LLC
Formed under the Laws of the State of Delaware
THIS IS TO CERTIFY that __________________________ is
 
the registered owner of
 
__________
[Class A Units] [Common Units] of
 
DLNL, LLC, a Delaware limited
 
liability company (the “LLC”), under
the Amended and
 
Restated Limited Liability
 
Company Operating Agreement
 
dated as of
 
February 25, 2025
(the
 
“Agreement”),
 
by
 
and
 
among
 
the
 
LLC,
 
▇▇▇▇▇▇▇▇
 
▇.
 
▇▇▇▇▇,
 
as
 
Managing
 
Member,
 
and
 
the
 
other
Members and holders of Membership Certificates.
A copy of the
 
Agreement is on file
 
with the Company,
 
and with the
 
Managing Member,
 
▇▇▇▇▇▇▇▇
▇.
 
▇▇▇▇▇,
 
at
 
the
 
principal
 
place
 
of
 
business
 
of
 
the
 
Company.
 
Each
 
holder
 
of
 
this
 
Certificate
 
by
 
the
acceptance hereof assents and agrees to be bound by all the provisions of the Agreement.
NEITHER
 
THIS
 
CERTIFICATE
 
NOR
 
THE
 
UNITS
 
REPRESENTED
 
HEREBY
 
IS
TRANSFERABLE,
 
WHETHER
 
BY
 
SALE,
 
ASSIGNMENT,
 
GIFT,
 
BEQUEST,
 
APPOINTMENT
 
OR
OTHERWISE,
 
BY THE HOLDER OF
 
RECORD HEREOF EXCEPT TO THE
 
EXTENT PROVIDED BY
THE
 
AGREEMENT
 
AND
 
SUBJECT
 
TO
 
SUCH
 
PROCEDURES
 
AS
 
MAY
 
BE
 
REQUIRED
 
BY
 
THE
MANAGING
 
MEMBER.
 
THIS
 
CERTIFICATE
 
AND
 
THE
 
UNITS
 
REPRESENTED
 
HEREBY
 
ARE
SUBJECT
 
TO
 
ADDITIONAL
 
TRANSFER
 
AND
 
VOTING
 
RESTRICTIONS
 
SET
 
FORTH
 
IN
 
THE
AGREEMENT.
 
THE
 
MANAGING
 
MEMBER
 
MAY
 
TREAT
 
THE
 
HOLDER
 
OF
 
RECORD
 
HEREOF
AS THE
 
OWNER OF
 
THIS CERTIFICATE
 
FOR ALL
 
PURPOSES.
 
ANY ATTEMPTED
 
TRANSFER
OF THIS
 
CERTIFICATE
 
OR
 
THE
 
UNITS REPRESENTED
 
HEREBY
 
WHICH IS
 
NOT PERMITTED
PURSUANT
 
TO
 
THE
 
AGREEMENT
 
SHALL
 
BE
 
VOID.
 
IN
 
THE
 
EVENT
 
OF
 
A
 
TRANSFER
PERMITTED BY
 
THE AGREEMENT,
 
EVERY
 
TRANSFEREE OF
 
THIS CERTIFICATE
 
SHALL BY
THE ACCEPTANCE HEREOF BECOME SUBJECT TO
 
THE PROVISIONS OF THE AGREEMENT.
THE
 
SALE,
 
ASSIGNMENT,
 
GIFT,
 
PLEDGE
 
OR
 
OTHER
 
ENCUMBRANCE,
 
OR
 
OTHER
TRANSFER
 
OF
 
THIS
 
MEMBERSHIP
 
CERTIFICATE
 
OR
 
THE
 
UNITS
 
(OR
 
ANY
 
INTEREST
THEREIN)
 
REPRESENTED
 
HEREBY
 
IS
 
SUBJECT
 
TO
 
THE
 
RESTRICTIONS,
 
TERMS
 
AND
CONDITIONS SET
 
FORTH IN THE
 
COMPANY
 
’S RESTATED CERTIFICATE
 
OF INCORPORATION
AND
 
IN
 
THE
 
AGREEMENT
 
DESCRIBED
 
IN
 
THIS
 
CERTIFICATE
 
AND
 
PURSUANT
 
TO
 
WHICH
THIS CERTIFICATE
 
IS ISSUED.
 
A COPY OF THE AGREEMENT IS ON FILE AT
 
THE PRINCIPAL
PLACE OF
 
BUSINESS
 
OF THE
 
COMPANY
 
.
 
NO SUCH
 
TRANSFER OF
 
THIS
 
CERTIFICATE,
 
OR
THE SHARES
 
REPRESENTED BY
 
THIS CERTIFICATE, MAY
 
BE EFFECTED,
 
EXCEPT PURSUANT
TO
 
THE
 
TERMS
 
OF
 
SUCH
 
RESTATED
 
CERTIFICATE
 
OF
 
INCORPORATION
 
AND
 
THE
AGREEMENT.
THE
 
SECURITIES
 
REPRESENTED
 
BY
 
THIS
 
CERTIFICATE
 
HAVE
 
NOT
 
BEEN
REGISTERED
 
UNDER
 
THE
 
SECURITIES
 
ACT
 
OF
 
1933,
 
AS
 
AMENDED,
 
OR
 
THE
 
APPLICABLE
SECURITIES
 
LAWS
 
OF
 
ANY
 
STATE
 
BUT
 
HAVE
 
BEEN
 
ISSUED
 
IN
 
RELIANCE
 
UPON
EXEMPTIONS FROM REGISTRATION
 
CONTAINED IN SAID LAWS
 
.
 
NO SALE, OFFER TO SELL
OR OTHER
 
TRANSFER OF
 
THE SECURITIES
 
REPRESENTED BY
 
THIS CERTIFICATE
 
MAY
 
BE
MADE
 
UNLESS
 
A
 
REGISTRATION
 
STATEMENT
 
UNDER
 
SAID
 
LAWS
 
IS
 
IN
 
EFFECT
 
WITH
RESPECT TO THE SECURITIES,
 
OR AN EXEMPTION FROM THE
 
REGISTRATION
 
PROVISIONS
OF SUCH LAWS IS THEN APPLICABLE.
 
 
 
 
IN
 
WITNESS
 
WHEREOF,
 
the
 
Managing
 
Member
 
has
 
executed
 
this
 
Certificate
 
on
 
behalf
 
of
 
the
LLC by affixing his hand this
 
day of
 
, 20
 
.
DLNL, LLC
By:
 
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Member
 
(FORM OF ASSIGNMENT FOR REVERSE SIDE OF
MEMBERSHIP CERTIFICATE)
FOR VALUE RECEIVED, ______________________________ hereby sells,
 
assigns and transfers
unto
 
______________________________
 
the
 
within
 
Certificate
 
and
 
all
 
rights
 
and
 
interests
 
thereby
 
and
does
 
hereby
 
irrevocably
 
constitute
 
and
 
appoint
 
______________________________
 
attorney
 
to
 
transfer
such
 
certificate
 
on
 
the
 
books
 
of
 
the
 
LLC
 
under
 
the
 
Agreement
 
within
 
referred
 
to,
 
with
 
full
 
power
 
of
substitution in the premises.
Dated:
 
___________
 
Name:
In the presence of:
________________________________
 
 
INFORMATION RELATING
 
TO MANAGING MEMBER
AND NON-MANAGING MEMBERS
MANAGING MEMBER:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇:
Address:
 
c/o Cal-Maine Foods, Inc.
 
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
 
Suite 200
 
Ridgeland, MS
 
39157
Telephone:
 
601–948–6813
Fax:
 
601–969–0905
Email:
 
NON-MANAGING MEMBERS:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇:
Address:
 
c/o ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
Cal-Maine Foods, Inc.
 
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
 
Suite 200
 
Ridgeland, MS
 
39157
Telephone:
 
▇▇▇-▇▇▇-▇▇▇▇
Fax:
 
▇▇▇-▇▇▇-▇▇▇▇
Email:
 
▇▇▇▇▇▇ ▇▇▇▇▇:
Address:
 
c/o ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
Cal-Maine Foods, Inc.
 
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
 
Suite 200
 
Ridgeland, MS
 
39157
Telephone:
 
▇▇▇-▇▇▇-▇▇▇▇
Fax:
 
▇▇▇-▇▇▇-▇▇▇▇
Email:
 
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇:
Address:
 
c/o ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
Cal-Maine Foods, Inc.
 
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
 
Suite 200
 
Ridgeland, MS
 
39157
Telephone:
 
▇▇▇-▇▇▇-▇▇▇▇
Fax:
 
▇▇▇-▇▇▇-▇▇▇▇
Email:
 
 
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇:
Address:
 
c/o ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
Cal-Maine Foods, Inc.
 
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
 
Suite 200
 
Ridgeland, MS
 
39157
Telephone:
 
▇▇▇-▇▇▇-▇▇▇▇
Fax:
 
▇▇▇-▇▇▇-▇▇▇▇
Email:
 
With a copy to counsel:
Name of Attorney:
 
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Name of Firm:
 
Brunini Law
Address:
 
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Address (continued):
 
Jackson, MS 39201
Telephone:
 
Fax:
 
Email:
 
 
 
 
JOINDER
This
 
Joinder
 
is
 
made
 
as
 
of
 
the
 
date
 
written
 
below
 
by
 
the
 
undersigned
 
(the
 
“Joining
 
Party”)
 
in
accordance with the
 
Amended and Restated
 
Limited Liability Company
 
Operating Agreement dated
 
as of
February 25, 2025 by and
 
among DLNL, LLC
 
(the “LLC”), ▇▇▇▇▇▇▇▇ ▇.
 
▇▇▇▇▇, as Managing Member, and
the other
 
Members of
 
the LLC
 
under such
 
Agreement (the
 
“LLC Operating
 
Agreement”).
 
Capitalized terms
used, but
 
not defined,
 
herein shall
 
have the
 
respective meanings
 
ascribed to
 
such terms
 
in the
 
LLC Operating
Agreement.
The Joining Party hereby
 
represents and warrants to
 
the LLC that the
 
undersigned is an Immediate
Family
 
Member
 
or
 
Permitted
 
Transferee.
 
The
 
Joining
 
Party
 
hereby
 
acknowledges,
 
agrees
 
and
 
confirms
that, by its execution of
 
this Joinder, the
 
Joining Party shall be deemed
 
to be a party to
 
the LLC Operating
Agreement as of the date hereof and shall have
 
all of the rights and obligations of a “Member”
 
thereunder,
as if it had
 
executed the LLC
 
Operating Agreement.
 
The Joining Party hereby
 
ratifies, as of the
 
date hereof,
and
 
agrees
 
to
 
be
 
bound
 
by,
 
all
 
of
 
the
 
terms,
 
provisions
 
and
 
conditions
 
contained
 
in
 
the
 
LLC
 
Operating
Agreement.
IN WITNESS WHEREOF, the undersigned
 
has executed this ▇▇▇▇▇▇▇ as of the date written below.
Date:
 
_____________ ____, 20__
If an entity:
[Name of Joining Party]
By:
 
_____________________
 
Name:
 
Title:
If a natural person
_____________________
Name:
 
 
 
▇▇▇▇▇▇▇ OF MANAGING MEMBER
This
 
Joinder
 
of
 
Managing
 
Member
 
is
 
made
 
as
 
of
 
the
 
date
 
written
 
below
 
by
 
the
 
undersigned
 
(the
“Joining
 
Party”)
 
in
 
accordance
 
with
 
the
 
Amended
 
and
 
Restated
 
Limited
 
Liability
 
Company
 
Operating
Agreement dated as of February 25, 2025 by and
 
among DLNL, LLC (the “LLC”), ▇▇▇▇▇▇▇▇
 
▇. ▇▇▇▇▇, as
Managing
 
Member,
 
and the
 
other
 
Members
 
of the
 
LLC
 
(the
 
“LLC Operating
 
Agreement”).
 
Capitalized
terms used,
 
but not
 
defined, herein
 
shall have
 
the respective
 
meanings ascribed
 
to such
 
terms in
 
the LLC
Operating Agreement.
The Joining Party hereby
 
represents and warrants to
 
the LLC that the
 
undersigned is an Immediate
Family Member.
 
The Joining Party hereby
 
acknowledges, agrees and confirms
 
that, by its execution
 
of this
▇▇▇▇▇▇▇,
 
the Joining
 
Party shall
 
be deemed
 
to be
 
a party
 
to the
 
LLC Operating
 
Agreement as
 
of the
 
date
hereof
 
and
 
shall
 
have
 
all
 
of
 
the
 
rights
 
and
 
obligations
 
of
 
a
 
“Managing
 
Member”
 
thereunder,
 
as
 
if
 
it
 
had
executed the LLC
 
Operating Agreement.
 
The Joining Party
 
hereby ratifies, as
 
of the date
 
hereof, and agrees
to be bound by, all of the terms, provisions and conditions contained in the LLC Operating Agreement.
IN WITNESS
 
WHEREOF,
 
the undersigned
 
has executed
 
this Joinder
 
of Managing
 
Member as
 
of
the date written below.
Date:
 
_____________ ____, 20__
_____________________
Name:
 
 
 
 
 
 
 
 
 
REDEMPTION REQUEST
Dated:
 
________________, 20_____
To the Managing Member of DLNL, LLC (the “LLC”)
The
 
undersigned
 
hereby
 
requests
 
the
 
redemption
 
of
 
Common
 
Units
 
of
 
the
 
LLC
 
pursuant
 
to
Section 7.3
 
of
 
the
 
Amended
 
and
 
Restated
 
Limited
 
Liability
 
Company
 
Operating
 
Agreement
 
dated
 
as
 
of
February 25, 2025 by and
 
among DLNL, LLC
 
(the “LLC”), ▇▇▇▇▇▇▇▇ ▇.
 
▇▇▇▇▇, as Managing Member, and
the other Members of the LLC
 
(the “LLC Operating Agreement”).
 
Capitalized terms used, but not
 
defined,
herein shall have the respective meanings ascribed to such terms in the LLC Operating Agreement.
The undersigned hereby requests the redemption of __________ Common Units in
 
exchange for an
equivalent number of Common Shares of Cal-Maine Foods, Inc. (the “Company”).
[Such
 
redemption
 
is
 
being
 
requested
 
pursuant
 
to
 
Section 7.3(a)
 
to
 
effect
 
a
 
transfer
 
or
 
sale
 
of
underlying
 
Common
 
Shares,
 
which
 
sale
 
or
 
transfer
 
is
 
in
 
compliance
 
with
 
the
 
Agreement
 
Regarding
Conversion and applicable federal and state securities laws.]
[Such redemption
 
is being
 
requested pursuant
 
to Section 7.3(b)
 
to effect
 
a transfer
 
to a
 
charitable
donor advised fund.]
[Such
 
redemption
 
is
 
being
 
requested
 
pursuant
 
to
 
Section 7.3(c)
 
for
 
the
 
following
 
purposes:
 
_________________________________________________________.
 
Delivered
 
with
 
this
 
notice
 
is
documentation supporting the number of Common Units requested to be redeemed for such purposes.]
Delivered with this request is
 
Membership Certificate(s) No(s).
 
________ registered in the name
 
of
the undersigned Member.
 
To the extent this request is approved by
 
the Managing Member, please (i) cause
a certificate representing
 
___________ Common Shares
 
to be transferred
 
to and registered
 
in the name
 
of
the undersigned
 
Member,
 
equal to
 
the __________
 
Common Units
 
being redeemed,
 
and (ii) issue
 
a new
Membership Certificate to the Member
 
for ________ Common Units, representing
 
the number of Common
Units that are not being redeemed and that will continue to be owned by the undersigned Member
 
after the
redemption.
 
Member
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
UNIT OWNERSHIP
AS OF THE RESTATEMENT
 
DATE
Member
Common
Units
Common
Shares
Contributed in
Exchange for
Such Common
Units
Class A
Units
Class A
Shares
Contributed
in Exchange
for Such
Class
A
Units
Total
 
Units
Total
 
Votes
▇▇▇▇▇ ▇▇▇▇▇
0
0
1,309,245
1,309,245
1,309,245
13,092,450
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
56,595
56,595
1,090,755
1,090,755
1,147,350
10,964,145
▇▇▇▇▇▇ ▇▇▇▇▇
343,787
343,787
800,000
800,000
1,143,787
8,343,787
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
343,787
343,787
800,000
800,000
1,143,787
8,343,787
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
343,787
343,787
800,000
800,000
1,143,787
8,343,787
Total
1,087,956
1,087,956
4,800,000
4,800,000
5,887,956
49,087,956

Document Metadata

Filed: February 25th, 2025