EXHIBIT 4.3
AMENDMENTS TO THE
ARTICLES OF INCORPORATION
OF
SANDERSON FARMS, INC.
Pursuant to the provisions of Section 10.06 of the Mississippi Business
Corporation Act, the undersigned corporation hereby amends its Articles of
Incorporation as follows:
1. Present Article SECOND is hereby deleted in its entirety
and new Article
SECOND is inserted to read:
"SECOND: The period of its duration is perpetual."
2. Present Article FOURTH is hereby deleted in its entirety
and new Article FOURTH is inserted to read:
"FOURTH:
"Section 1. The aggregate number of shares which the
corporation is authorized to issue is one hundred five million
(105,000,000), divided into two classes. The designation of each class,
the number of shares of each class and the par value, if any, of the
shares of each class, or a statement that the shares of any class are
without par value, are as follows:
<Table>
<Caption>
PAR VALUE PER
SHARE OR STATEMENT
NUMBER OF SERIES THAT SHARES ARE
SHARES CLASS (IF ANY) WITHOUT PAR VALUE
- ---------- ----- -------- ------------------
100,000,000 Common None $1.00
5,000,000 Preferred To be determined To be determined
by the Board of by the Board of
Directors before Directors before
issuance issuance
</Table>
"Section 2. The Board of Directors of the corporation shall
have the authority to establish one or more series of the Preferred
Stock authorized by these Articles of Incorporation and to determine,
in whole or in part, the preferences, limitations and relative rights
(within the limits set forth in Section 79-4-6.01, Mississippi Code
1972, as amended) of (a) the Preferred Stock before the issuance
thereof, or (b) one or more series of the Preferred Stock before the
issuance of any shares of that series.
"Section 3. No amendment to the Articles of Incorporation of
the corporation that would have the effect of reducing the number of
authorized shares of Common Stock or Preferred Stock or would reduce
the authority of the Board of Directors to fix terms or conditions
relating to any series of Preferred Stock, or would have the effect of
modifying the terms or conditions relating to any series of Preferred
Stock, once established by the Board of Directors, shall be adopted
unless such amendment shall receive the affirmative vote of at least
75% of the total number of shares of Common Stock outstanding (in
addition to and not in lieu of, any other vote required under the
Mississippi Business Corporation Act); provided that this Section 3
shall not apply to, and such 75% vote shall not be required for, any
such amendment recommended to the stockholders in advance of adoption
by the vote of at least two-thirds of the full Board of Directors of
the corporation at a time when no person, corporation or other entity
beneficially owns (for which purpose the definition of 'beneficial
ownership' set forth in Article NINTH on the date on which this Article
FOURTH becomes effective (without regard to any amendments to Article
NINTH, unless specifically incorporated into this Article FOURTH) shall
apply, but without regard to Paragraph 4 of Section 'B' thereof) 20% or
more of the outstanding shares of Common Stock of the corporation or
20% or more of the total voting power of the corporation entitled to
vote with respect to such amendment."
3. Present Articles SEVENTH is hereby deleted in its entirety and new
Article SEVENTH is inserted to read:
"SEVENTH:
"Section 1. The number of directors constituting the Board of
Directors shall be fixed by the Board of Directors in the By-laws and
may be changed by it from time to time.
"Section 2. The terms of directors of the corporation shall be
staggered by dividing the total number of directors into three classes,
with each class containing one-third, or as close to one-third as
possible, of the total. With respect to directors who are elected at
the first annual stockholders' meeting where a classified Board of
Directors is elected, the terms of directors in the first class shall
expire at the first annual
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stockholders' meeting after their election, the terms of the second
class shall expire at the second annual stockholders' meeting after
their election, and the terms of the third class shall expire at the
third annual stockholders' meeting after their election. At each annual
stockholders' meeting held after such first meeting, directors shall be
chosen for a term of three years to succeed those whose terms expire.
"Section 3. Directors shall be elected at each annual meeting
or at any special meeting of stockholders called for that purpose by
the affirmative vote of a majority, and not a plurality, of the shares
entitled to vote and represented, in person or by proxy, at such
meeting at which a quorum is present. There shall be no cumulative
voting.
"Section 4. No amendment to this Article SEVENTH shall have
the effect of shortening any term of office that commenced prior to the
adoption of such amendment, unless such amendment specifically provides
that it has that effect and is recommended to the stockholders in
advance of adoption by the vote of at least two-thirds of the full
Board of Directors of the corporation at a time when no person,
corporation or other entity beneficially owns (for which purpose the
definition of 'beneficial ownership' set forth in Article NINTH on the
date on which this Article SEVENTH becomes effective (without regard to
any amendments to Article NINTH, unless specifically incorporated into
this Article SEVENTH) shall apply, but without regard to paragraph 4 of
Section 'B' thereof) 20% or more of the outstanding shares of Common
Stock of the corporation or 20% or more of the total voting power of
the corporation entitled to vote with respect to such amendment."
4. New Article NINTH is hereby added to read:
"NINTH: The provisions of the Mississippi Shareholder
Protection Act, Sections 79-25-1 through 79-25-9, Mississippi Code 1972
Annotated (the 'Act'), without regard to any future amendments thereto
but with the modifications set forth below, shall apply to this
corporation as if the corporation was a 'Corporation' as defined in the
Act. The following modifications shall apply:
"A. The 80% vote required by Section 79-25-5(a) of the Act
shall not apply, and the only vote required by this Article NINTH shall
be the two-thirds vote required by Section 79-25-5(b).
"B. The term 'Beneficial Owner' is defined as follows for all
purposes of this Article NINTH rather than as it is defined in Section
79-25-3(d) of the Act.
"1. 'Beneficial Owner', when used with respect to any
voting stock, means any person (i) that, individually or with
any of its affiliates or associates, beneficially owns voting
stock, directly or indirectly; or (ii) that, individually or
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with any of its affiliates or associates, has: (A) the right
to acquire voting stock (whether such right is exercisable
immediately or only after the passage of time), pursuant to
any agreement, arrangement or understanding, or upon the
exercise of conversion rights, exchange rights, warrants or
options, or otherwise; provided, however, that a person shall
not be deemed the Beneficial Owner of, or to beneficially own,
voting stock tendered pursuant to a tender or exchange offer
made by or on behalf of such person or any of such person's
Affiliates or Associates until such tendered voting stock is
accepted for purchase or exchange; or (B) the right to vote
voting stock pursuant to any agreement, arrangement or
understanding; provided, however, that a person shall not be
deemed the Beneficial Owner of, or to beneficially own, any
voting stock if the agreement, arrangement or understanding to
vote such stock (1) arises solely from a revocable proxy or
consent given to such person in response to a public proxy or
consent solicitation made pursuant to, and in accordance with,
the applicable rules and regulations promulgated under the
Securities Exchange Act of 1934, as amended, and (2) is not
also then reportable on Schedule 13D under that Act (or any
comparable or successor report); or (iii) that has any
agreement, arrangement or understanding for the purpose of
acquiring, holding, voting, exercising investment power over,
or disposing of voting stock with any other person that
beneficially owns, or whose affiliates or associates
beneficially own, directly or indirectly, such shares of
voting stock.
"2. Notwithstanding anything in this definition of
beneficial ownership to the contrary, the phrase 'then
outstanding,' when used with reference to a person's
beneficial ownership of voting stock of the corporation, shall
mean the number of such voting stock not then actually issued
and outstanding which such person would be deemed to own
beneficially hereunder.
"3. Further notwithstanding the foregoing, in
determining as of any particular time whether any member of
the Sanderson Family (as such term is defined in paragraph 5
hereof) beneficially owns voting stock of the corporation,
such member shall not be considered to be the beneficial owner
of any share that constitutes a Family Share (as herein
defined) at that time, even if such share would, in the
absence of this paragraph, be deemed to be beneficially owned
by such member. A 'Family Share' is a share that meets the
description set forth in any of clauses (i) through (iv) below
and that, at the time as of which a determination of
beneficial ownership is to be made, continues to be a Family
Share pursuant to the provisions that follow those clauses. A
share is initially a 'Family Share' if: (i) on the date this
Article NINTH becomes effective ('Effective Date'), all or
substantially all of the economic benefit of owning such share
is enjoyed by one or more members of the Sanderson Family; or
(ii) such share is distributed after the Effective Date with
respect to a share that is a Family
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Share on the date of such distribution, in connection with any
stock dividend, stock split, recapitalization or similar
transaction affecting all shares of the same class or series
as the share with respect to which such distributed share is
distributed; or (iii) such share is issued after the Effective
Date upon exercise of any warrant, right or option that is
distributed with respect to a share that is a Family Share on
the date of such distribution, provided that such distribution
is made to all holders of shares of the same class or series
as the share with respect to which such warrant, right or
option is distributed, and further provided that at all times
after such distribution of such warrant, right or option
through the date of issuance of the share all or substantially
all of the economic benefit of ownership of such warrant,
right or option continues to be enjoyed, without interruption,
by any one or more members of the Sanderson Family (regardless
of any transfer of economic enjoyment from any such member to
any other such member); or (iv) all or substantially all of
the economic benefit of ownership of such share is acquired at
any time by a member of the Sanderson Family pursuant to the
Employee Stock Ownership Plan and Trust Agreement of Sanderson
Farms, Inc. and Affiliates (the 'ESOP') or pursuant to any
employee benefit plan of the Company approved by the Board of
Directors, and which is available without discrimination
either to all employees or all key employees of the
corporation. A share that is a 'Family Share' initially, in
accordance with the preceding sentence, continues to be a
'Family Share' thereafter only for so long as all or
substantially all of the economic benefit of ownership
continues, without interruption, to be enjoyed by any one or
more members of the Sanderson Family (regardless of any
transfer of economic benefit from any such member to any other
such member). A share ceases to be a 'Family Share' if all or
substantially all of the economic benefit of ownership is
transferred to, or becomes held by, a person who or which is
not a member of the Sanderson Family. Once a share ceases to
be a 'Family Share' it does not thereafter become a 'Family
Share' even if the economic benefit of its ownership is
reacquired by a member of the Sanderson Family, unless such
reacquisition is pursuant to a distribution or exercise of the
type described in clause (ii) or (iii) above, or is from the
ESOP or any employee benefit plan of the type described in
clause (iv) above. For all purposes of determining whether a
share is or remains a Family Share, shares shall not be
considered to be fungible. The economic benefit of ownership
of a share is deemed to be enjoyed by the person or persons
who are the principal beneficiaries of dividends and other
distributions made with respect to such share and of the
proceeds of any sale of such share. The beneficiary of a
trust, and not the trustee, enjoys the economic benefit of a
share owned by the trust. Similarly, the participant in any
employee benefit plan that owns a share allocated to that
participant, and not the trustee or plan administrator, enjoys
the economic benefit of ownership of that share. The economic
benefit of a share held by a corporation is enjoyed by that
corporation and not by its shareholders.
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"4. Solely for the purposes of this Article NINTH,
notwithstanding the foregoing, all shares which would, but for
the special provisions set forth in paragraph 3 hereof, be
deemed to be beneficially owned by such member of the
Sanderson Family (without regard to manner or time of
acquisition) shall be deemed beneficially owned by such member
(i) for purposes of receiving payment for shares held by such
member from an Interested Shareholder in a business
combination pursuant to the terms of the Act; or (ii) after
such time as such member is, in accordance with the above
rules for determining beneficial ownership, deemed to be an
Interested Shareholder pursuant to the Act and this Article
NINTH.
"5. Voting stock that, pursuant to the foregoing, is
not deemed beneficially owned by a member of the Sanderson
Family shall nevertheless be considered to be outstanding
shares for purposes of calculating beneficial ownership
percentages by such member of shares that are deemed
beneficially owned by such member, and for purposes of
calculating beneficial ownership of other persons. For
purposes of this Article NINTH, 'Sanderson Family' shall mean
the children and grandchildren of D. R. Sanderson and Wilma W.
Sanderson and the spouses of such children, but not the
spouses of such grandchildren and shall also mean the estate
of any of the foregoing persons.
"C. The supermajority vote required by the Act shall not apply
to a business combination which has been approved by at least
two-thirds of the Continuing Directors, and not by 80% of the
Continuing Directors as provided in Section 79-25-7(c) of the Act.
"D. No amendment to this Article NINTH shall apply to any
Business Combination with an Interested Shareholder who was an
Interested Shareholder either on the date on which such amendment is
proposed by the Board of Directors, or on the date on which such
amendment is approved by the stockholders, unless such amendment (i)
shall have been recommended to the stockholders in advance of adoption
by the vote of at least two-thirds of the full Board of Directors of
the corporation at a time when no person, corporation or other entity
beneficially owns 20% or more of the outstanding shares of Common Stock
of the corporation or 20% or more of the total voting power of the
corporation entitled to vote with respect to such amendment, or (ii) is
approved by at least two-thirds of the Continuing Directors."
5. New Article TENTH is hereby added to read:
"TENTH: Any amendment to Articles SEVENTH, NINTH, TENTH,
TWELFTH or THIRTEENTH of these Articles of Incorporation shall require
the affirmative vote of at least two-thirds of the total number of
shares of Common Stock
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outstanding (in addition to, and not in lieu of, any other vote
required under the Mississippi Business Corporation Act); provided that
such two-thirds vote shall not be required for any such amendment which
is recommended to the stockholders in advance of adoption by the vote
of at least two-thirds of the full Board of Directors of the
corporation at a time when no person, corporation or other entity
beneficially owns (for which purpose the definition of 'beneficial
ownership' set forth in Article NINTH on the date on which this Article
TENTH becomes effective (without regard to any amendments to Article
NINTH, unless specifically incorporated into this Article TENTH) shall
apply, but without regard to paragraph 4 of Section 'B' thereof) 20%
or more of the outstanding shares of Common Stock of the corporation or
20% or more of the total voting power of the corporation entitled to
vote with respect to such amendment."
6. New Article ELEVENTH is hereby added to read:
"ELEVENTH: The Board of Directors is authorized to adopt, and
amend from time to time, a By-law that increases, over the percentage
otherwise required by the Mississippi Business Corporation Act, the
percentage ownership of all of the votes entitled to be cast on the
issue to be considered at a special meeting that is necessary to call a
special meeting of stockholders, and the percentage set forth in such
By-law shall be deemed to be set forth herein."
7. New Article TWELFTH is hereby added to read:
"TWELFTH: Any merger, consolidation, share exchange,
combination of shares, sale of substantially all of the corporation's
assets other than in the regular course of business or adoption of a
plan of dissolution of the corporation shall require the affirmative
vote of at least two-thirds of the total Common Stock outstanding and
the affirmative vote of at least two-thirds of all of the votes
entitled to be cast on such transaction by each voting group entitled
to vote separately thereon."
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8. New Article THIRTEENTH is hereby added to read:
"THIRTEENTH: Any director of the corporation elected or
appointed by the stockholders of the corporation or by its Board of
Directors may be removed only by the vote of not less than two-thirds
of the total outstanding Common Stock. Any vacancy on the Board of
Directors resulting from the removal of a director as provided in this
Article THIRTEENTH shall be filled by the stockholders; provided that,
if the stockholders fail to fill any such vacancy within 90 days of the
date that the director was removed, then the Board of Directors may
fill such vacancy. No amendment hereto shall apply during any term of
office that commenced prior to such amendment, unless such amendment
specifically provides that it shall apply during any such term of
office and is recommended to the stockholders in advance of adoption by
the vote of at least two-thirds of the full Board of Directors of the
corporation at a time when no person, corporation or other entity
beneficially owns (for which purpose the definition of 'beneficial
ownership' set forth in Article NINTH on the date on which this Article
THIRTEENTH becomes effective (without regard to any amendments to
Article NINTH, unless specifically incorporated into this Article
THIRTEENTH) shall apply, but without regard to paragraph 4 of Section
'B' thereof) 20% or more of the outstanding shares of Common Stock of
the corporation or 20% or more of the total voting power of the
corporation entitled to vote with respect to such amendment.
Notwithstanding the foregoing, this Article THIRTEENTH shall not apply
to any Director elected by any class (other than Common Stock) or
series which may be or become entitled to elect a director voting as a
separate class or series, and the removal of such a director shall be
governed by the provisions relating to that class or series."
Dated: April 21, 1989.
SANDERSON FARMS, INC.
BY: /s/ Joe Frank Sanderson
--------------------------------------
CHAIRMAN
BY: /s/ Wyatt J. Davis, Jr.
--------------------------------------
SECRETARY
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