As filed with the Securities and Exchange Commission on January 22, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
CAL-MAINE FOODS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 64-0500378
(State or other jurisdiction of (IRS Employer Identification
incorporation or organization) Number)
3320 WOODROW WILSON DRIVE, JACKSON, MS 39209
(Address of Principal Executive Offices including Zip Code)
CAL-MAINE FOODS, INC. 1993 STOCK OPTION PLAN
(Full title of plan)
FRED R. ADAMS, JR.
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
CAL-MAINE FOODS, INC.
3320 WOODROW WILSON DRIVE
JACKSON, MS 39209
(601) 948-6813
(Name, address and telephone number of agent for services)
Copies to:
Arthur H. Bill, Esq.
Freedman, Levy, Kroll & Simonds
1050 Connecticut Avenue, N.W. (Suite 825)
Washington, D.C. 20036
Telephone: (202)457-5103
Fax: (202)457-5151
CALCULATION OF REGISTRATION FEE
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TITLE OF AMOUNT PROPOSED MAXIMUM
SECURITIES TO BE PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED OFFERING PRICE OFFERING PRICE REGISTRATION
REGISTERED (1) PER SHARE (2) (2) FEE
<S> <C> <C> <C> <C>
Common Stock, 800,000 $7.875 $6,300,000 $1,909.09
$.01 par value shares
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(1) Includes an indeterminate number of shares of Common Stock that may be
issuable by reason of stock splits, stock dividends or similar transactions in
accordance with Rule 416 under the Securities Act of 1933.
(2) The amounts are based upon the average of the high and low sale prices
for the Common Stock as reported on the NASDAQ National Market on January 16,
1997 and are used solely for the purpose of calculating the registration fee
pursuant to paragraphs (c) and (h)(1) of Rule 457 under the Securities Act of
1933.
<PAGE>
PART I
INFORMATION REQUIRED IN PROSPECTUS
The information called for in Part I of Form S-8 is not being filed with
or included in this Form S-8 (by incorporation by reference or otherwise) in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "SEC").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by Cal-Maine Foods, Inc. (the
"Company") with the SEC are incorporated in this Registration Statement by
reference and deemed to be a part hereof:
1. The Company's Prospectus, dated December 11, 1996, filed pursuant to
Rule 424(b) under the Securities Act of 1933 (the "Securities Act") and
included in the Company's Registration Statement on Form S-1 (File No.
333-14809).
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
November 30, 1996, filed pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act").
3. The description of the Company's Common Stock, par value $.01 per
share (the "Common Stock"), contained in the Company's Registration Statement
on Form 8-A, as filed on October 28, 1996 under Section 12(g) of the Exchange
Act.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated in this Registration Statement by reference and to be a part
hereof from the date of filing of such documents; PROVIDED, HOWEVER, that the
documents enumerated above or subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act in each year during
which the offering made by this Registration Statement is in effect prior to
the filing with the SEC of the Company's Annual Report on Form 10-K covering
such year shall not be deemed incorporated by reference in this Registration
Statement and shall not be a part hereof from and after the filing of such
Annual Report on Form 10-K.
2
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Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded, to constitute a part
of this Registration Statement.
The Company hereby undertakes to provide without charge to each person
who has received a copy of the prospectus to which this Registration Statement
relates, upon the written or oral request of any such person, a copy of any or
all the documents that have been or may be incorporated by reference into this
Registration Statement, other than exhibits to such documents (unless such
exhibits are incorporated therein by reference).
Item 4. DESCRIPTION OF SECURITIES.
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company may indemnify its directors, officers and certain other
persons to the fullest extent permitted by Section 145 of the Delaware General
Corporation Law, as amended from time-to-time. In that connection, Article VII
of the Company's By-laws contains indemnification and advancement of expenses
provisions generally providing that the Company will indemnify its directors,
officers, employees and agents to the fullest extent permitted under Section
145 of the Delaware General Corporation Law in connection with any threatened,
pending or completed action, suit or proceeding against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by them in connection with such action, suit or proceeding
if they acted in good faith and in a manner they reasonably believed to be in
or not opposed to the best interest of the Company, and, with respect to any
criminal proceeding, have no reasonable cause to believe their conduct was
unlawful.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
Item 8. EXHIBITS.
3
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
4(a) Cal-Maine Foods, Inc. 1993 Stock Option Plan, as amended.
5 Legal opinion, dated January 20, 1997, of Young, Williams, Henderson
& Fuselier, P.A. as to the legality of shares offered.
23(a) Consent of Ernst & Young LLP.
23(b) Consent of Young, Williams, Henderson & Fuselier, P.A. (Included
in Exhibit 5 hereto.)
23(c) Consent of Freedman, Levy, Kroll & Simonds.
25 Power of Attorney. (Included on signature page of this Registration
Statement.)
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Item 9. UNDERTAKINGS.
1. The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which,
individually, or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
4
<PAGE>
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
2. The Company hereby undertakes that, for the purpose of
determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that it incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors and officers of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been
informed that in the opinion of the SEC such indemnification is against public
policy as expressed in the Act and is therefore unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Company will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Jackson, State of Mississippi, on
this 17th day of January, 1997.
CAL-MAINE FOODS, INC.
By: /s/FRED R. ADAMS, JR.
----------------------------
Fred R. Adams, Jr.
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Fred R. Adams, Jr. and/or Bobby J. Raines his
true and lawful attorneys-in-fact and agents, each acting alone, with full
powers of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with
exhibits thereto, and other documents in connection therewith, with the SEC,
granting unto said attorneys-in-fact and agents, each acting alone, full power
and authority to do and perform to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed below by the
following persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/FRED R. ADAMS, JR. Chairman of the Board, January 17, 1997
-------------------- Chief Executive Officer
Fred R. Adams, Jr. and Director
(Principal Executive
Officer)
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/BOBBY J. RAINES Vice President, Chief January 17, 1997
--------------------- Financial Officer,
Bobby J. Raines Treasurer, Secretary
and Director
(Principal Financial
Officer)
/s/CHARLES F. COLLINS Vice President, January 17, 1997
--------------------- Controller and
Charles F. Collins Director
(Principal
Accounting Officer)
/s/RICHARD K. LOOPER Director January 17, 1997
---------------------
Richard K. Looper
/s/ADOLPHUS B. BAKER Director January 17, 1997
---------------------
Adolphus B. Baker
/s/JACK B. SELF Director January 17, 1997
---------------------
Jack B. Self
/S/JOE M. WYATT Director January 17,1997
---------------------
Joe M. Wyatt
/s/W.D. COX Director January 17, 1997
---------------------
W.D. Cox
/s/R. FASER TRIPLETT Director January 17, 1997
---------------------
R. Faser Triplett
</TABLE>
7
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EXHIBIT 4(a)
CAL-MAINE FOODS, INC.
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
1. PURPOSES OF THE PLAN: The purposes of this Plan are:
* to attract and retain competent executives with outstanding ability
for positions of substantial responsibility;
* to provide additional incentive to corporate officers, key
employees, and members of the corporate Board of Directors, and;
* to promote the success of the Corporation's business.
Options granted under the Plan may be Incentive Stock Options or
Nonstatutory Stock Options, as determined by the Board at the time of grant.
2. DEFINITIONS: As used herein, the following definitions shall apply:
(a) "Administrator" means the Board in accordance with Section 4 of the
Plan.
(b) "Applicable Laws" means the requirements relating to the
administration of stock option plans under U.S. state corporate laws. U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws
of any foreign country or jurisdiction where options are, or will be, granted
under the Plan.
(c) "Board" means the Board of Directors of the Corporation.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Common Stock" means the Common Stock of the Corporation.
(f) "Corporation" means CAL-MAINE FOODS, INC.
(g) "Director" means a member of the Board.
(h) "Employee" means any key employee, including, without limitation,
Officers employed by the Corporation or any Parent or
<PAGE>
Subsidiary of the Corporation. A Service Provider shall not cease to be an
Employee in the case of (i) any leave of absence approved by the Corporation
or (ii) transfers between locations of the Corporation or between the
Corporation, its Parent, any Subsidiary, or any successor. For purposes of
Incentive Stock Options, no such leave may exceed ninety (90) days, unless
reemployment upon expiration of such leave is guaranteed by statute or
contract. If reemployment upon expiration of a leave of absence approved by
the Corporation is not so guaranteed, on the 181st day of such leave, any
Incentive Stock Option held by the Optionee shall cease to be treated as an
Incentive Stock Option and shall be treated for tax purposes as a Nonstatutory
Stock Option. Neither service as a Director nor payment of the director's fee
by the Corporation shall be sufficient to constitute "employment" by the
Corporation. An employee may serve as a Director of the Company and maintain
his status as an employee.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(k) "Fair Market Value" means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market or The Nasdaq Stock Market, its
Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system
for the last market trading day prior to the time of determination, as
reported in The Wall Street Journal or such other source as the Administrator
deems reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market Value
of a Share of Common Stock shall be the mean between the high bid and low
asked prices for the Common Stock on the last market trading day prior to the
day of determination, as reported in The Wall Street Journal or such other
source as the Administrator deems reliable;
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value shall be determined in good faith by the
Administrator.
(l) "Incentive Stock Option" means an Option intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code and
the regulations promulgated thereunder.
(m) "Nonstatutory Stock Option" means an Option not intended to
qualify as an Incentive Stock Option.
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<PAGE>
(n) "Notice of Grant" means a written or electronic notice evidencing
certain terms and conditions of an individual Option grant. The Notice of
Grant is part of the Option Agreement.
(o) "Officer" means a person who is an officer of the Corporation within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(p) "Option" means a stock option granted pursuant to the Plan.
(q) "Option Agreement" means an agreement between the Corporation and an
Optionee evidencing the terms and conditions of an individual option grant.
The Option Agreement is subject to the terms and conditions of the Plan.
(r) "Optioned Stock" means the Common Stock subject to an Option.
(s) "Optionee" means the holder of an outstanding Option granted under
the Plan.
(t) "Parent" means a "parent corporation", whether now or hereinafter
existing, as defined in Section 424(e) of the Code.
(u) "Plan" means this 1993 Stock Option Plan, as amended.
(v) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any successor
to Rule 16b-3, as in effect when discretion is being exercised with respect to
the Plan.
(w) "Service Provider" means an Officer, Key Employee or non-employee
member of the Board.
(x) "Share" means a share of the Common Stock, as adjusted in accordance
with Section 12 of the Plan.
(y) "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN: Subject to the provisions of Section 12 of
the Plan, the maximum aggregate number of shares which may be optioned and
sold under the Plan is 800,000 Shares. The Shares may be authorized, but
unissued, or reacquired Common Stock.
If an Option expires or becomes unexercisable without having been
exercised in full, or is surrendered pursuant to a method of payment under
Section 9(c), the unpurchased Shares which were subject thereto shall become
available for future grant or sale under the Plan (unless the Plan has
terminated); provided, however, that Shares that have actually been issued
under the Plan
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shall not be returned to the Plan and shall not become available for future
distribution under the Plan.
4. ADMINISTRATION OF THE PLAN:
(a) PROCEDURE:
(i) RULE 16b-3. To the extent desirable to qualify transactions
hereunder as exempt under Rule 16b-3, the transactions contemplated hereunder
shall be structured to satisfy the requirements for exemption under Rule
16b-3.
(ii) ADMINISTRATION: The Plan shall be administered by the Board.
(b) POWERS OF THE ADMINISTRATOR: Subject to the provisions of the Plan
the Administrator shall have the authority, in its discretion:
(i) to determine the Fair Market Value;
(ii) to select the Service Providers to whom Options may be
granted hereunder;
(iii) to determine the number of shares of Common Stock to be
covered by each Option granted hereunder;
(iv) to approve forms of Option Agreement for use under the Plan;
(v) to determine the terms and conditions, not inconsistent with
the terms of the Plan, of any Option granted hereunder. Such terms and
conditions include, but are not limited to, the exercise price, the time or
times when Options may be exercised (which may be based on performance
criteria), any vesting acceleration or waiver of forfeiture restrictions, and
any restriction or limitation regarding any Option or the shares of Common
Stock relating thereto, based in each case on such factors as the
Administrator, in its sole discretion, shall determine;
(vi) to construe and interpret the terms of the Plan and Options
granted pursuant to the Plan;
(vii) to prescribe, amend and rescind rules and regulations
relating to the Plan, including rules and regulations relating to sub-plans
established for the purpose of qualifying for preferred tax treatment under
foreign tax laws;
(viii) to modify or amend each Option (subject to Section 14(c) of
the Plan), including the discretionary authority to extend the post
termination exercisability period of Options longer than is otherwise provided
for in the Plan;
4
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(ix) to allow Optionees to satisfy withholding tax obligations by
electing to have the Corporation withhold from the Shares to be issued upon
exercise of an Option that number of Shares having a Fair Market Value equal
to the amount required to be withheld. The Fair Market Value of the Shares to
be withheld shall be determined on the date that the amount of tax to be
withheld is to be determined. All elections by an Optionee to have Shares
withheld for this purpose shall be made in such form and under such conditions
as the Administrator may deem necessary or advisable;
(x) to authorize any person to execute on behalf of the
Corporation any instrument required to effect the grant of an Option
previously granted by the Administrator;
(xi) to make all other determinations deemed necessary or
advisable for administering the Plan.
(c) EFFECT OF ADMINISTRATOR'S DECISION: The Administrator's decisions,
determinations and interpretations shall be final and binding on all Optionees
and any other holders of Options.
5. ELIGIBILITY: Nonstatutory Stock Options may be granted to Service
Providers. Incentive Stock Options may be granted only to Service Providers
who are Employees.
6. LIMITATIONS:
(a) Each Option shall be designated in the attended Option Agreement as
either an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair Market
Value of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under
all plans of the Corporation and any Parent or Subsidiary) exceeds $100,000,
such Options shall be treated as Nonstatutory Stock Options. For purposes of
this Section 6(a), Incentive Stock Options shall be taken into account in the
order in which they were granted. The Fair Market Value of the Shares shall be
determined as of the time the option with respect to such shares is granted.
(b) Neither the Plan nor any Option shall confer upon an Optionee any
right with respect to continuing the Optionee's relationship as an Officer, an
Employee or a Director of the Corporation, nor shall they interfere in any way
with the Optionee's right or the Corporation's right to terminate such
relationship at any time, with or without cause.
5
<PAGE>
7. TERM OF PLAN: Subject to Section 18 of the Plan, the Plan became
effective on May 25, 1993. It shall continue in effect for a term of ten (10)
years from such date, unless terminated earlier under Section 14 of the Plan.
8. TERM OF OPTION: The term of each Option shall be stated in the
Option Agreement. In the case of an Incentive Stock Option, the term shall be
ten (10) years from the date of grant or such shorter term as may be provided
in the Option Agreement. Moreover, in the case of an Incentive Stock Option
granted to an Optionee who, at the time the Incentive Stock Option is granted,
owns Stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Corporation or any Parent or Subsidiary, the term of
the Incentive Stock Option shall be five (5) years from the date of grant or
such shorter term as may be provided in the Option Agreement.
9. OPTION EXERCISE PRICE AND CONSIDERATION:
(a) EXERCISE PRICE: The per share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be determined by the
Administrator, subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time the Incentive
Stock Option is granted, owns stock representing more than ten percent (10%)
of the voting power of all classes of stock of the Corporation or any Parent
or Subsidiary, the per Share exercise price shall be no less than 110% of the
Fair Market Value per Share on the date of grant.
(B) granted to any Employee other than an Employee described
in paragraph (A) immediately above, the per Share exercise price shall be no
less than 100% of the Fair Market Value per Share on the date of grant.
(ii) In the case of a Nonstatutory Stock Option, the per Share
exercise price shall be determined by the Administrator, but shall be no less
than 100% of the Fair Market Value per Share on the date of grant.
(b) WAITING PERIOD AND EXERCISE DATES: At the time an Option is granted,
the Administrator shall fix the period within which the Option may be
exercised and shall determine any conditions which must be satisfied before
the Option may be exercised.
(c) FORM OF CONSIDERATION: The Administrator shall determine the
acceptable form of consideration for exercising an Option, including the
method of payment. In the case of an
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Incentive Stock Option, the Administrator shall determine the acceptable form
of consideration at the time of grant. Such consideration may consist entirely
of:
(i) cash;
(ii) check;
(iii) previously acquired Shares having an aggregate fair market
value on the date of exercise (determined in accordance with Section 2(m)
equal to the aggregate exercise price of all options being exercised;
(iv) in the case of nonstatutory stock option, other Shares which
(A) in the case of Shares acquired upon exercise of an option, have been owned
by the Optionee for more than six months on the date of surrender, and (B)
have a Fair Market Value on the date of surrender equal to the aggregate
exercise price of the Shares as to which said Option shall be exercised;
(v) Shares as to which this Option is then being exercised, in
which case the Corporation is to retain so many shares that would otherwise
have been delivered by the Corporation upon that exercise of this Option as
equals the number of shares that would have been surrendered to the
Corporation if the purchase price had been paid with previously issued stock;
or
(vi) any combination of the foregoing methods of payment; or
(vii) such other consideration and method of payment for the
issuance of Shares to the extent permitted by Applicable Laws.
10. EXERCISE OF OPTION:
(a) PROCEDURE FOR EXERCISE; Rights as a Shareholder. Any Option
granted hereunder shall be exercisable according to the terms of the Plan and
at such times and under such conditions as determined by the Administrator and
set forth in the Option Agreement. Unless the Administrator provides
otherwise, vesting of Options granted hereunder shall be tolled during any
unpaid leave of absence. An Option may not be exercised for a fraction of a
Share.
An Option shall be deemed exercised when the Corporation has received:
(i) written or electronic notice of exercise (in accordance with the Option
Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment authorized by
the Administrator and permitted by the Option Agreement and the Plan. Shares
issued upon exercise of an Option shall be issued in the name of the Optionee
or, if requested by the Optionee, in the
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name of the Optionee and his or her spouse. Until the Shares are issued (as
evidenced by the appropriate entry on the books of the Corporation or of a
duly authorized transfer agent of the Corporation), no right to vote or
receive dividends or any other rights as a shareholder shall exist with
respect to the Optioned Stock, notwithstanding the exercise of the Option. The
Corporation shall issue (or cause to be issued) such Shares promptly after the
Option is exercised. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the Shares are issued, except
as provided in Section 12 of the Plan.
Exercising an Option in any manner shall decrease the number of Shares
thereafter available, both for purposes of the Plan and for exercise under the
Option, meaning by the number of Shares as to which the Option is exercised.
(b) TERMINATION OF RELATIONSHIP AS A SERVICE PROVIDER: If an Optionee
ceases to be a Service Provider, other than upon the Optionee's death, the
Optionee may exercise his or her Option within such period of time as is
specified in the Option Agreement to the extent that the Option is vested on
the date of termination (but in no event later than the expiration of the term
of such Option as set forth in the Option Agreement). In the absence of a
specified time in the Option Agreement, the Option shall remain exercisable
for ninety (90) days following the Optionee's termination. If, on the date of
termination, the Optionee is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall revert to the Plan.
If, after termination, the Optionee does not exercise his or her Option within
the time specified by the Administrator, the Option shall terminate, and the
Shares covered by such Option shall revert to the Plan.
(c) DEATH OF OPTIONEE: If an Optionee dies while a Service Provider or
within ninety (90) days of ceasing to be a Service Provider, the Option may be
exercised within six (6) months after the death of Optionee, by the Optionee's
estate or by a person who acquired the right to exercise the Option by bequest
or inheritance, but only to the extent that the Option is vested on the date
Optionee ceased to be a Service Provider. If, at the time Optionee ceased to
be a Service Provider, the Optionee is not vested as to his or her entire
Option, the shares covered by the unvested portion of the Option shall
immediately revert to the Plan. The Option may be exercised by the executor or
administrator of the Optionee's estate or, if none, by the person(s) entitled
to exercise the Option under the Optionee's will or laws of descent or
distribution. If the Option is not so exercised within the time specified
herein, the Option shall terminate, and the Shares covered by such Option
shall revert to the Plan.
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(d) BUYOUT PROVISIONS: The Administrator may at any time offer to buy out
for a payment in cash or Shares, an Option previously granted based on such
terms and conditions as the Administrator shall establish and communicate to
the Optionee at the time that such offer is made.
11. NON-TRANSFERABILITY OF OPTIONS: Unless determined otherwise by the
Administrator, an Option may not be sold, pledged, assigned, hypothecated,
transferred, or disposed or in any manner other than by will or by the laws of
descent or distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee. If the Administrator makes an Option
transferable, such Option shall contain such additional terms and conditions
as the Administrator deems appropriate.
12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER OR
ASSET SALE:
(a) CHANGES IN CAPITALIZATION: Subject to any required action by the
shareholders of the Corporation, the number of shares of Common Stock covered
by each outstanding Option, and the number of shares of Common Stock which
have been authorized for issuance under the Plan but as to which no Options
have yet been granted or which have been returned to the Plan upon
cancellation or expiration of an Option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without
receipt of consideration by the Corporation; provided, however, that
conversion of any convertible securities of the Corporation shall not be
deemed to have been "effected without receipt of consideration". Such
adjustment shall be made by the Board, whose determination in that respect
shall be final, binding and conclusive. Except as expressly provided herein,
no issuance by the Corporation of Shares of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares
of Common Stock subject to an Option.
(b) DISSOLUTION OR LIQUIDATION: In the event of the proposed dissolution
or liquidation of the Corporation, the Administrator shall notify each
Optionee as soon as practicable prior to the effective date of such proposed
transaction. The Administrator in its discretion may provide for an Optionee
to have the right to exercise his or her Option until ten (10) days prior to
such transaction as to all of the Optioned Stock covered thereby, including
Shares as to which the Option would not otherwise be exercisable. To the
extent it has not been previously exercised, an Option will terminate
immediately prior to the consummation of such proposed action.
9
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(c) MERGER OR ASSET SALE: In the event of a merger of the Corporation
with or into another corporation, or the sale of substantially all of the
assets of the Corporation, each outstanding Option shall be assumed or an
equivalent option or right substituted by the successor corporation or a
Parent or Subsidiary of the successor corporation. In the event that the
successor corporation refuses to assume or substitute for the Option, the
Optionee shall fully vest in and have the right to exercise the Option as to
all of the Optioned Stock, including Shares as to which it would not otherwise
be vested or exercisable. If an Option becomes fully vested and exercisable in
lieu of assumption or substitution in the event of a merger or sale of assets,
the Administrator shall notify the Optionee in writing or electronically that
the Option shall be fully vested and exercisable for a period of fifteen (15)
days from the date of such notice, and the Option shall terminate upon the
expiration of such period. For the purposes of this paragraph, the Option
shall be considered assumed if, following the merger or sale of assets, the
option or right confers the right to purchase or receive, for each Share of
Optioned Stock subject to the Option immediately prior to the merger or sale
of assets, the consideration (whether stock, cash, or other securities or
property) received in the merger or sale of assets by holders of Common Stock
for each Share held on the effective date of the transaction (and if holders
were offered a choice of consideration, the type of consideration chosen by
the holders of a majority of the outstanding Shares); provided, however, that
if such consideration received in the merger or sale of assets is not solely
common stock of the successor corporation or its Parent, the Administrator
may, with the consent of the successor corporation, provide for the
consideration to be received upon the exercise of the Option, for each Share
of Optioned Stock subject to the Option, to be solely common stock of the
successor corporation or its Parent equal in fair market value to the per
share consideration received by holders of Common Stock in the merger or sale
of assets.
13. DATE OF GRANT: The date of grant of an Option shall be, for all
purposes, the date of which the Administrator make the determination granting
such Option, or such other later date as is determined by the Administrator.
Notice of the determination shall be provided to each Optionee within a
reasonable time after the date of such grant.
14. AMENDMENT AND TERMINATION OF THE PLAN:
(a) AMENDMENT AND TERMINATION: The Board may at any time amend, alter,
suspend or terminate the Plan.
(b) SHAREHOLDER APPROVAL: The Corporation shall obtain shareholder
approval of any Plan amendment to the extent necessary and desirable to comply
with Applicable Laws.
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(c) EFFECT OF AMENDMENT OR TERMINATION: No amendment, alteration,
suspension or termination of the Plan shall impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the Optionee and the
Corporation. Termination of the Plan shall not affect the Administrator's
ability to exercise the powers granted to it hereunder with respect to options
granted under the Plan prior to the date of such termination.
15. CONDITIONS UPON ISSUANCE OF SHARES:
(a) LEGAL COMPLIANCE: Shares shall not be issued pursuant to the
exercise of an Option unless the exercise of such Option and the issuance and
delivery of such Shares shall comply with Applicable Laws and shall be further
subject to the approval of counsel for the Corporation with respect to such
compliance.
(b) INVESTMENT REPRESENTATIONS: As a condition to the exercise of an
Option, the Corporation may require the person exercising such Option to
represent and warrant at the time of any such exercise that the Shares are
being purchased only for investment and without any present intention to sell
or distribute such Shares if, in the opinion of counsel for the Corporation,
such a representation is required.
16. INABILITY TO OBTAIN AUTHORITY: The inability of the Corporation to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Corporation's counsel to be necessary to the lawful issuance
and sale of any Shares hereunder, shall relieve the Corporation of any
liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
17. RESERVATION OF SHARES: The Corporation, during the term of this
Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan.
18. SHAREHOLDER APPROVAL: This Amended and Restated Plan shall be
subject to approval by the shareholders of the Corporation within twelve (12)
months after the date of the adoption of this Amendment. Such shareholder
approval shall be obtained in the manner and to the degree required under
Applicable Laws.
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EXHIBIT 5
YOUNG, WILLIAMS, HENDERSON & FUSELIER, P.A.
2000 Deposit Guaranty Plaza
P.O. Box 23059
Jackson, MS 39225
January 20, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: CAL-MAINE FOODS, INC.
REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We are counsel to Cal-Maine Foods, Inc. (the "Company") and have
represented the Company in connection with the Registration Statement on Form
S-8 being filed today with the Commission (together with all exhibits thereto,
the "Registration Statement"). The Registration Statement relates to an
offering by the Company of up to 800,000 shares of the Company's common stock,
par value of $.01 per share, (the "Shares") upon the exercise of options under
the Company's 1993 Stock Option Plan (the "Plan").
This opinion is being delivered to the Commission as Exhibit 5 to the
Registration Statement.
We have examined (1) the Certificate of Incorporation, and all amendments
thereto, certified by the Secretary of State of the State of Delaware, (2) the
By-Laws of the Company, certified by the Secretary of the Company as being
those currently in effect, (3) the Registration Statement, (4) the Plan and
(5) such other corporate records, certificates, documents and other
instruments as in our opinion are necessary or appropriate in connection with
expressing the opinions set forth below.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and existing under the laws
of the State of Delaware.
<PAGE>
2. When the following events shall have occurred:
(a) the Registration Statement is filed, at which time it will become
effective under the Securities Act of 1933, pursuant to General Instruction D
to Form S-8, and
(b) the Shares shall have been paid for and issued in accordance with
the terms of the Plan as provided in the Registration Statement,
the Shares thus sold will be legally issued, fully paid and non-assessable.
This firm hereby consents to the reference to it in the Prospectus called
for by Part I of the Registration Statement and the filing of this opinion as
Exhibit 5 thereto.
Sincerely,
YOUNG, WILLIAMS, HENDERSON & FUSELIER, P.A.
EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the Cal-Maine Foods, Inc. 1993
Stock Option Plan and related Prospectus and to the incorporation by reference
therein of our report dated July 22, 1996 (except for Note 13 as to which the
date is October 3, 1996), with respect to the consolidated financial
statements and schedule of Cal-Maine Foods, Inc. included in its Registration
Statement on Form S-1 (File No. 333-14809), filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Jackson, Mississippi
January 17, 1997
EXHIBIT 23(b)
(Exhibit 23(b), "Consent of Young, Williams, Henderson & Fuselier, P.A.,
included in Exhibit 5 of this Registration Statement.)
EXHIBIT 23(c)
CONSENT OF SPECIAL COUNSEL
This firm hereby consents to the reference to it in the Prospectus called
for by Part I of this Registration Statement on Form S-8 relating to the
Cal-Maine Foods, Inc. 1993 Stock Option Plan, as amended.
FREEDMAN, LEVY, KROLL & SIMONDS
Washington, D.C.
January 20, 1997
EXHIBIT 25
(Exhibit 25, Power of Attorney," included on signature page of this
Registration Statement.)
