RESTATED
CERTIFICATE OF INCORPORATION
OF
TYSON FOODS, INC.
Tyson Foods, Inc., a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is Tyson Foods, Inc. The Corporation
was originally incorporated under the same name, and the original
Certificate of Incorporation of the corporation was filed with the Secretary
of State of the State of Delaware on January 31, 1986, as amended on March
5, 1987, and further amended on March 1, 1991.
2. Pursuant to Section 245 of the General Corporation Law of the State
of Delaware ("Section 245"), this Restated Certificate of Incorporation
restates and integrates the provisions of the Certificate of Incorporation
of the Corporation and does not further amend the provisions of the
Corporation's Certificate of Incorporation as heretofore amended or
supplemented and there is no discrepancy between those provisions and the
provisions of the Restated Certificate of Incorporation (except for
omissions allowed by Section 245).
3. The Restated Certificate of Incorporation has been duly adopted by
the Board of Directors of the Corporation in accordance with Section 245 at
a duly held meeting thereof on November 20, 1998.
4. The text of the Restated Certificate of Incorporation as heretofore
amended or supplemented is hereby restated without further amendment to read
in its entirety as follows:
FIRST: The name of the Corporation is Tyson Foods, Inc.
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1209 Orange Street, in the City Wilmington, County
of New Castle. The name of its registered agent at that address is the
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the General
Corporation Law of Delaware as set forth in Title 8 of the Delaware Code
(the "GCL").
FOURTH: The aggregate number of shares of capital stock which the
Corporation shall have authority to issue is 1,800,000,000 shares,
consisting of 900,000,000 shares of Class A Common Stock, par value $.10 per
share (the "Class A Stock"), and 900,000,000 shares of Class B Common Stock,
par value $.10 per share (the "Class B Stock").
The relative rights, preferences and limitations of each class of
Common Stock are as follows:
34
I. Class A Stock and Class B Stock
A. Dividends. Subject to any other provisions of the Certificate
of Incorporation, as it may be amended from time to time, holders of Class A
Stock and Class B Stock shall be entitled to receive such dividends and
other distributions in cash, stock or property of the Corporation as may be
declared thereon by the Board of Directors from time to time out of assets
or funds of the Corporation legally available therefor, provided that no
cash dividend shall be declared and paid on the Class B Stock unless (i) a
cash dividend is simultaneously declared and paid on the Class A Stock and
(ii) the per share amount of such dividend declared and paid on the Class B
Stock does not exceed 90% of the per share amount of the dividend declared
and paid on the Class A Stock. In the case of dividends or other
distributions payable in stock of the Corporation, including distributions
pursuant to stock splits or divisions of stock of the Corporation which
occur after the initial issuance of shares of Class B Stock by the
Corporation, such distributions or divisions shall be in the same proportion
with respect to each class of stock, but only shares of Class A Stock shall
be distributed with respect to Class A Stock and only shares of Class B
Stock shall be distributed with respect to Class B Stock. In the case of
any combination or reclassification of Class A Stock, the shares of Class B
Stock shall also be combined or reclassified so that the relationship
between the number of shares of Class B Stock and Class A Stock outstanding
immediately following such combination or reclassification shall be the same
as the relationship between the Class B Stock and the Class A Stock
immediately prior to such combination or reclassification.
B. Voting.
(1) At every meeting of the shareholders, every holder of Class A
Stock shall be entitled to one (1) vote in person or by proxy for each share
of Class A Stock standing in his name on the transfer books of the
Corporation, and every holder of Class B Stock shall be entitled to ten (10)
votes in person or by proxy for each share of Class B Stock standing in his
name on the transfer books of the Corporation.
(2) Following the initial issuance of shares of Class B Stock,
the Corporation may not effect the issuance of any additional shares of
Class B Stock (except in connection with stock splits and stock dividends)
unless and until such issuance is authorized by the holders of a majority of
the voting power of the shares of Class A Stock and of Class B Stock
entitled to vote, each voting separately as a class.
(3) No shareholder shall have the right to cumulate votes in the
election of directors.
(4) Except as may be otherwise required by law or this
Certificate of Incorporation, the holders of Class A Stock and Class B Stock
shall vote together as a single class.
C. Transfer.
(1) No person holding shares of Class B Stock of record
(hereinafter called a "Class B Holder") may transfer, and the Corporation
shall not register the transfer of, such shares of Class B Stock, whether by
sale, assignment, gift, bequest, appointment or otherwise, except to a
Permitted Transferee. A Permitted Transferee shall mean:
35
(a) With respect to a Class B Holder who is a natural
person,
(i) The spouse of such Class B Holder, any lineal
descendant of an ancestor of such Class B Holder which
ancestor was born on or after January 1, 1905, and any spouse
of such a lineal descendant;
(ii) The trustee of a trust (including a voting trust)
principally for the benefit of such Class B holder and/or one
or more of his or her Permitted Transferees described in this
clause C.(1)(a);
(iii) Any organization described in Section 170(c)
of the Internal Revenue Code, as it may from time to time be
amended (the "Code") or any split-interest trust described in
Section 4947 of the Code (hereinafter called a "Charitable
Organization");
(iv) A corporation, a majority of the beneficial
ownership of outstanding capital stock of which entitled to
vote for the election of directors is owned by, or a
partnership a majority of the beneficial ownership of the
partnership interests of which entitled to participate in the
management of the partnership are held by, such Class B
holder or his or her Permitted Transferees determined under
this clause C.(1)(a), provided that if by reason of any
change in the ownership of such stock or partnership
interests, such corporation or partnership would no longer
qualify as a Permitted Transferee, all shares of Class B
Stock then held by such corporation or partnership shall,
upon the election of the Corporation given by written notice
to such corporation or partnership, without further act on
anyone's part, be converted into shares of Class A Stock
effective upon the date of the giving of such notice, and
stock certificates formerly representing such shares of Class
B Stock shall thereupon and thereafter be deemed to represent
a like number of shares of Class A Stock; and
(v) The executor, administrator or personal
representative of the estate of such Class B Holder or the
Guardian of the estate of such Class B Holder.
(b) In the case of a Class B Holder holding shares of Class
B Stock as trustee pursuant to a trust (other than a Charitable
Organization or a trust described in clause (c) below), "Permitted
Transferee" means (i) any person transferring Class B Stock to
such trust and (ii) any Permitted Transferee of any such
transferor determined pursuant to clause C.(1)(a) above.
(c) In the case of a Class B Holder holding shares of Class
B Stock as trustee pursuant to a trust (other than a Charitable
Organization) which was irrevocable on the record date for
determining the persons to whom such shares of Class B Stock are
first issued by the Corporation, "Permitted Transferee" means (i)
any
36
person to whom or for whose benefit principal may be distributed
either during or at the end of the term of such trust whether by
power of appointment or otherwise and (ii) any Permitted
Transferee of any such person determined pursuant to clause
C.(1)(a) above.
(d) In the case of a Class B Holder that is a Charitable
Organization holding record and beneficial ownership of the amount
of shares of Class B Stock in question, "Permitted Transferee"
means (i) any person transferring such amount of shares of Class B
Stock to such Charitable Organization and (ii) any Permitted
Transferee of such transferor as determined under clause C.(1)(a)
above.
(e) In the case of a Class B Holder that is a trustee of a
thrift or profit sharing plan acquiring record ownership of shares
of Class B Stock for the benefit of participants in such thrift or
profit sharing plan upon its initial issuance by the Corporation,
"Permitted Transferee" means (i) the employee for whose account
such shares of Class B Stock are held by such trustee and (ii) any
"Permitted Transferee" of such employee as determined under clause
C.(1)(a) above.
(f) In the case of a Class B Holder that is a corporation or
partnership (other than a Charitable Organization) acquiring
record and beneficial ownership of shares of Class B Stock upon
its initial issuance by the Corporation, "Permitted Transferee"
means (i) any partner of such partnership, or shareholder of such
corporation, on the record date for determining the persons to
whom such shares of Class B Stock are first issued by the
Corporation, (ii) any person transferring shares of Class B Stock
to such corporation or partnership, and (iii) any Permitted
Transferee of any such person, partner, or shareholder referred to
in subclauses (i) and (ii) of this clause (f), as determined under
clause C.(1)(a) above.
(g) In the case of a Class B Holder that is a corporation or
partnership (other than a Charitable Organization or a corporation
or partnership described in clause (f) above) holding record and
beneficial ownership of shares of Class B Stock, "Permitted
Transferee" means (i) any person transferring shares of Class B
Stock to such corporation or partnership and (ii) any Permitted
Transferee of any such transferor as determined under clause
C.(1)(a) above.
(h) In the case of a Class B Holder that is the executor,
administrator, personal representative or guardian of the estate
of a deceased Class B Holder, or that is the trustee or receiver
of the estate of a bankrupt or insolvent Class B Holder, which
holds record or beneficial ownership of the shares of Class B
Stock, "Permitted Transferee" means a Permitted Transferee of such
deceased, bankrupt or insolvent Class B Holder as determined
pursuant to clause (a), (b), (c), (d), (e), (f) or (g) above, as
the case may be.
37
(2) Notwithstanding anything to the contrary set forth herein, any
Class B Holder may pledge such holder's shares of Class B Stock to a pledgee
pursuant to a bona fide pledge of such shares as collateral security for
indebtedness due to the pledgee, provided that such shares shall not be
transferred to or registered in the name of the pledgee and shall remain
subject to the provisions of this Section C. In the event of foreclosure or
other similar action by the pledgee, such pledged shares of Class B Stock
may only be transferred to a Permitted Transferee of the pledgor or
converted into shares of Class A Stock, as the pledgee may elect.
(3) For purposes of this Section C.:
(a) The relationship of any person that is derived by or
through legal adoption shall be considered a natural one.
(b) Each joint owner of shares of Class B Stock shall be
considered a "Class B Holder" of such shares.
(c) A minor for whom shares of Class B Stock are held
pursuant to a Uniform Gifts to Minors Act or similar law shall be
considered a Class B Holder of such shares.
(d) Unless otherwise specified, the term "person" means both
natural persons and legal entities.
(e) Without derogating from the election conferred upon the
Corporation pursuant to subclause (iv) of clause C.(1)(a) above,
each reference to a corporation shall include any successor
corporation resulting from merger or consolidation; each reference
to a partnership shall include any successor partnership resulting
from the death or withdrawal of a partner; and each reference to a
trustee shall include any successor trustee.
(4) Any transfer of shares of Class B Stock not permitted hereunder
shall result in the conversion of the transferee's shares of Class B Stock
into shares of Class A Stock, effective the date on which certificates
representing such shares are presented for transfer on the books of the
Corporation. The Corporation may, in connection with preparing a list of
shareholders entitled to vote at any meeting of shareholders, or as a
condition to the transfer or the registration of shares of Class B Stock on
the Corporation's books, require the furnishing of such affidavits or other
proof as it deems necessary to establish that any person is the beneficial
owner of shares of Class B Stock or is a Permitted Transferee.
(5) Except as provided above, shares of Class B Stock shall be
registered in the names of the beneficial owners thereof and not in "street"
or "nominee" name. For this purpose, a "beneficial owner" of any shares of
Class B Stock shall mean a person who, or an entity which, possesses the
power, either singly or jointly, to direct the voting or disposition of such
shares. The Corporation shall note on the certificates for shares of Class
B Stock the restrictions on transfer and registration of transfer imposed by
this Section C.
38
D. Conversion Rights.
(1) Subject to the terms and conditions of this Section D, each share
of Class B Stock shall be convertible at any time or from time to time at
the option of the respective holders thereof, at the office of any transfer
agent for Class B Stock, and at such other place or places, if any, as the
Board of Directors may designate, or, if the Board of Directors shall fail
so to designate, at the principal office of the Corporation (attention of
the Secretary of the Corporation), into one (1) fully paid and nonassessable
share of Class A Stock. Upon conversion the Corporation shall make no
payment or adjustment on account of dividends accrued or in arrears on Class
B Stock surrendered for conversion or on account of any dividends on the
Class A Stock issuable on such conversion. Before any holder of Class B
Stock shall be entitled to convert the same into Class A Stock, he shall
surrender the certificate or certificates for such Class B Stock at the
office of said transfer agent (or other place as provided above) which
certificate or certificates, if the Corporation shall so request, shall be
duly endorsed to the Corporation or in blank or accompanied by proper
instruments of transfer to the Corporation (such endorsements or instruments
of transfer to be in form satisfactory to the Corporation), and shall give
written notice to the Corporation at said office that he elects so to
convert said Class B Stock in accordance with the terms of this Section D,
and shall state in writing therein the name or names in which he wishes the
certificate or certificates for Class A Stock to be issued. Every such
notice of election to convert shall constitute a contract between the holder
of such Class B Stock and the Corporation, whereby the holder of such Class
B Stock shall be deemed to subscribe for the amount of Class A Stock which
he shall be entitled to receive upon such conversion, and, in satisfaction
of such subscription, to deposit the Class B Stock to be converted and to
release the Corporation from all liability thereunder, and thereby the
Corporation shall be deemed to agree that the surrender of the certificate
or certificates therefor and the extinguishment of liability thereon shall
constitute full payment of such subscription for Common Stock to be issued
upon such conversion. The Corporation will as soon as practicable after
such deposit of a certificate or certificates for Class B Stock, accompanied
by the written notice and the statement above prescribed, issue and deliver
at the office of said transfer agent (or other place as provided above) to
the person for whose account such Class B Stock was so surrendered, or to
his nominee or nominees, a certificate or certificates for the number of
full shares of Class A Stock to which he shall be entitled as aforesaid.
Subject to the provision of subsection (3) of this Section D, such
conversion shall be deemed to have been made as of the date of such
surrender of the Class B Stock to be converted; and the person or persons
entitled to receive the Class A Stock issuable upon conversion of such Class
B Stock shall be treated for all purposes as the record holder or holders of
such Class A Stock on such date.
(2) The issuance of certificates for shares of Class A Stock upon
conversion of shares of Class B Stock shall be made without charge for any
stamp or other similar tax in respect of such issuance. However, if any
such certificate is to be issued in a name other than that of the holder of
the share or shares of Class B Stock converted, the person or persons
requesting the issuance thereof shall pay to the Corporation the amount of
any tax which may be payable in respect of any transfer involved in such
issuance or shall establish to the satisfaction of the Corporation that such
tax has been paid.
39
(3) The Corporation shall not be required to convert Class B
Stock, and no surrender of Class B Stock shall be effective for that
purpose, while the stock transfer books of the Corporation are closed for
any purpose; but the surrender of Class B Stock for conversion during any
period while such books are so closed shall become effective for conversion
immediately upon the reopening of such books, as if the conversion had been
made on the date such Class B Stock was surrendered.
(4) The Corporation covenants that it will at all times reserve
and keep available, solely for the purpose of issue upon conversion of the
outstanding shares of Class B Stock, such number of shares of Class A Stock
as shall be issuable upon the conversion of all such outstanding shares,
provided that nothing contained herein shall be construed to preclude the
Corporation from satisfying its obligations in respect of the conversion of
the outstanding shares of Class B Stock by delivery of shares of Class A
Stock which are held in the treasury of the Corporation. The Corporation
covenants that all shares of Class A Stock which shall be issued upon
conversion of the shares of Class B Stock, will, upon issue, be fully paid
and nonassessable and not entitled to any preemptive rights. All shares of
Class A Stock acquired in exchange for shares of Class B Stock and all
shares of Class B Stock converted into Class A Stock shall be cancelled and
restored to the status of authorized but unissued shares of Class A Stock or
Class B Stock, as the case may be.
(5) At any time when the Board of Directors and the holders of a
majority of the outstanding shares of Class B Stock approve the conversion
of all of the Class B Stock into Class A Stock, then the outstanding shares
of Class B Stock shall be converted into shares of Class A Stock. In the
event of such a conversion, certificates formerly representing outstanding
shares of Class B Stock shall thereupon and thereafter be deemed to
represent the like number of shares of Class A Stock.
E. Liquidation Rights.
In the event of any dissolution, liquidation or winding up of the
affairs of the Corporation, whether voluntary or involuntary, after payment
or provision for payment of the debts and other liabilities of the
Corporation, the remaining assets and funds of the Corporation, if any,
shall be divided among and paid ratably to the holders of Class A Stock and
the holders of Class B Stock. A merger or consolidation of the Corporation
with or into any other corporation or a sale or conveyance of all or any
part of the assets of the Corporation (which shall not in fact result in the
liquidation of the Corporation and the distribution of assets to
shareholders) shall not be deemed to be a voluntary or involuntary
liquidation or dissolution or winding up of the Corporation within the
meaning of this Section E.
40
F. Preemptive Rights.
Subject to any conversion rights of the holders of Class B Stock, no
holder of either Class A Stock or Class B Stock of the Corporation shall be
entitled as of right to subscribe for or receive any part of the authorized
stock of the Corporation or any part of any new, additional or increased
issues of stock of any class or of any obligations convertible into any
class or classes of stock, but the Board of Directors may, without offering
any such shares of stock or obligations convertible into stock to
shareholders of any class, issue and sell or dispose of the sale to such
persons and for such considerations permitted by law as it may from time to
time in its absolute discretion determine.
FIFTH: I. All corporate powers of the Corporation shall be
exercised by or under the direction of the Board of Directors except as
otherwise provided herein or by law.
In furtherance and not in limitation of the powers conferred by law,
the Board of Directors is expressly authorized:
(i) to fix, abolish, determine and vary from time to time the
amount or amounts to be set apart as reserves,
(ii) to adopt, amend and repeal Bylaws of the Corporation;
(iii) to authorize and cause to be executed mortgages and
liens, with or without limit as to amount, upon the real or personal
property of the Corporation;
(iv) from time to time to determine whether and to what
extent, at what time and place, and under what conditions and
regulations the accounts and books of the Corporation, or any of them,
shall be open to the inspection of any shareholder; and no shareholder
shall have any right to inspect any account or book or document of the
Corporation except as conferred by statute or bylaw or as authorized by
resolution of the shareholders or Board of Directors;
(v) to authorize the payment of compensation to the directors for
services to the Corporation, including fees for attendance at meetings
of the Board of Directors or of any committee thereof and/or salaries
for serving as such directors or committee members, and to determine
the amount of such compensation;
(vi) from time to time to formulate, establish, promote, and carry
out, and to amend, alter, change, revise, recall, repeal or abolish, a
plan or plans for the participation by all or any of the employees,
including directors and officers, of the Corporation, or of any
corporation, company, association, trust or organization in which or in
the welfare of which the Corporation has any interest, and those
actively engaged in the conduct of the Corporation's business, in the
profits, gains, or business of the Corporation or any branch or
division thereof, as part of the Corporation's legitimate expenses,
and/or for the furnishing to such employees, directors, officers or
persons, or any of them, at the Corporation's expense, of medical
services, insurance against accident, sickness, or death, pensions
during old age, disability
41
or unemployment, education, housing, social services, recreation, or
other similar aids for their relief or general welfare, in such manner
and upon such terms and conditions as the Board of Directors shall
determine; and
(vii) to authorize the guaranty by the Corporation of
securities, evidences of indebtedness, and obligations of other
persons, firms, associations and corporations.
II. Except to the extent prohibited by law, the Board of Directors
shall have the right (which, to the extent exercised, shall be exclusive) to
establish the rights, powers, duties, rules and procedures that from time to
time shall govern the Board of Directors and each of its members, including,
without limitation, the vote required for any such action by the Board of
Directors, and that from time to time shall affect the directors' power to
manage the business and affairs of the Corporation; and no Bylaw shall be
adopted by shareholders which shall impair or impede the implementation of
the foregoing.
SIXTH: To the fullest extent permitted by Delaware General
Corporation Law as the same exists or may hereafter be amended, a director
of this Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as director.
SEVENTH: Meetings of shareholders may be held within or without the
State of Delaware, as the Corporation's Bylaws may provide. The books of
the Corporation may be kept (subject to any provision contained in the
statutes) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the Bylaws of
the Corporation.
EIGHTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its shareholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application
in a summary way of this Corporation or of any creditor or shareholder
thereof or on the application of any receiver or receivers appointed for
this Corporation under the provisions of Section 291 of the GCL or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of the
GCL, order a meeting of the creditors or class of creditors, and/or of the
shareholders or class of shareholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority
in number representing three-fourths in value of the creditors or class of
creditors, and/or of the shareholders or class of shareholders of this
Corporation, as the case may be, agree to any compromise or arrangement and
to any reorganization of this Corporation as a consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the shareholders or class of shareholders, of this
Corporation, as the case may be, and also on this Corporation.
42
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
shareholders herein are granted subject to this reservation.
TENTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, repeal,
alter, amend and rescind the Bylaws of the Corporation.
ELEVENTH: Elections of directors at an annual or special meeting of the
shareholders shall be by written ballot unless the Bylaws of the Corporation
shall otherwise provide.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been
signed by R. Read Hudson, its authorized officer this 14th day of December,
1998.
TYSON FOODS, INC.
__________________________
By: R. Read Hudson
Title: Secretary
43