<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
Amendment No. 1
LANCE, INC.
--------------------------------------------
(Name of Issuer)
$.83-1/3 PAR VALUE COMMON STOCK
--------------------------------------------
(Title of Class of Securities)
514606 10 2
--------------------------------------------
(CUSIP Number)
A. ZACHARY SMITH III
100 N. TRYON STREET, SUITE 4200
CHARLOTTE, NORTH CAROLINA 28202 (704) 331-7400
--------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
DECEMBER 12, 1996
--------------------------------------------
(Date of Event Which Requires Filing
of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box: [ ].
NOTE: This Amendment No. 1 amends and restates the Schedule 13D of Nan Davis
Van Every dated August 10, 1990 pursuant to rule 13d-2(c).
(Page 1 of 7)
<PAGE> 2
<TABLE>
<CAPTION>
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CUSIP No. 514606 10 2 13D Page 2 of 7 Pages
- ---------------------------------- -----------------------------
<S> <C> <C>
===================================================================================================================================
1 NAME OF REPORTING PERSON Nan Davis Van Every
S.S. or I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
- -----------------------------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS* OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
[ ]
- -----------------------------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES OF AMERICA
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7 SOLE VOTING POWER
NUMBER OF
SHARES 111,840
BENEFICIALLY -------------------------------------------------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 0
PERSON -------------------------------------------------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
111,840
-------------------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,535,552
- -----------------------------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,647,392
- -----------------------------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
- -----------------------------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5%
- -----------------------------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
====================================================================================================================================
</TABLE>
* SEE INSTRUCTIONS BEFORE FILLING OUT!
(Page 2 of 7)
<PAGE> 3
ITEM 1. SECURITY AND ISSUER.
This statement relates to the Common Stock, par value $.83-1/3
per share (the "Common Stock"), of Lance, Inc. (the "Issuer"). The principal
executive offices of the Issuer are located at 8600 South Boulevard, Charlotte,
North Carolina 28232.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(c) The name of the reporting person is Nan Davis Van
Every. The residence address of Mrs. Van Every is 6001 Pelican Bay Boulevard,
Naples, Florida 33963. Mrs. Van Every is not currently employed.
(d) During the past five years, Mrs. Van Every has not been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the past five years, Mrs. Van Every has not been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
(f) Mrs. Van Every is a citizen of the United States of
America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Mrs. Van Every acquired 1,297,920 shares of the Common Stock
(the "Acquired Shares") under the Will dated April 7, 1987 (the "Will") of her
husband, Salem A. Van Every, Jr. who died on May 27, 1990 (the "Decedent") as
the sole trustee under the marital trust (the "Marital Trust") created under the
Will. Since Mrs. Van Every became the beneficial owner on June 29, 1990, upon
her qualification as trustee of the Marital Trust, no funds or other
consideration were used in the acquisition of the Acquired Shares.
In addition, Mrs. Van Every also beneficially owns 353,772 shares of
Common Stock (the "Other Shares"), of which 21,142 shares, taking into account
stock splits and stock dividends, were given to her by the Decedent, with the
balance purchased by her through the Issuer's dividend reinvestment plan,
privately negotiated transactions or through brokers. Mrs. Van Every has used
her personal funds in making such purchases. Mrs. Van Every beneficially owns
32,474 of these Other Shares in her capacity as trustee of several trusts (the
"Family Trusts") established for the benefit of her children.
On December 12, 1996, Mrs. Van Every transferred an aggregate of
1,535,552 shares of Common Stock (the "Trust Shares"), including all of the
Acquired Shares and 237,632 of the Other Shares, to two separate irrevocable
trusts (the "Irrevocable Trusts") with substantially the same terms except with
different trustees.
At this time, the source and amount of funds that Mrs. Van
Every may use to fund future purchases of Common Stock, if any, is undetermined,
although the funds for such future
(Page 3 of 7)
<PAGE> 4
purchases, if any, are likely to be the personal funds of Mrs. Van Every. Future
purchases, if any, Mrs. Van Every may make under the Issuer's dividend
reinvestment plan will be funded through the reinvestment of dividends or
through personal funds of Mrs. Van Every.
ITEM 4. PURPOSE OF TRANSACTION.
Since Mrs. Van Every is the beneficial owner of the Acquired
Shares not by purchase but by operation of law, she became such a beneficial
owner without motive or purpose. Mrs. Van Every acquired beneficial ownership of
the Other Shares either by gift without purpose or by purchase for investment.
Mrs. Van Every intends to hold the Common Stock reported herein for investment,
subject to the terms of the Irrevocable Trusts and the Family Trusts as
described herein.
Mrs. Van Every intends to evaluate the business and prospects
of the Issuer and depending on her evaluation, other investment opportunities,
market conditions and other factors as she may deem material, Mrs. Van Every may
seek to acquire additional shares of the Common Stock in the open market or
through the Issuer's dividend reinvestment plan, in private transactions or
otherwise, or she may dispose of all or a portion of the shares of the Common
Stock presently held or hereafter acquired.
As the grantor of the Irrevocable Trusts, Mrs. Van Every
retained a limited power of appointment under each Irrevocable Trust that grants
her shared investment power to dispose or direct the disposition of the Trust
Shares. She shares this dispositive power with the trustee of each Irrevocable
Trust with respect to the Trust Shares held therein. Salem Lance Every, Mrs.
Van Every's stepson, serves as trustee of one Irrevocable Trust which holds
1,297,920 of the Trust Shares. James D. Tomlinson, Mrs. Van Every's son, serves
as trustee of the second Irrevocable Trust which holds 237,632 of the Trust
Shares.
Under the terms of each Irrevocable Trust the beneficial
ownership of the Trust Shares may be transferred upon their respective dates of
termination. Upon the death of Mrs. Van Every, the Irrevocable Trusts will
terminate and their assets will be transferred to the 1992 Nan Davis Van Every
Revocable Trust or, if such trust is not existing, to the estate of Mrs. Van
Every. In addition, each Irrevocable Trust will terminate with respect to its
respective assets, including the Trust Shares, after such assets have been held
in the respective Irrevocable Trust for four months. Such assets will be
transferred to the 1992 Nan Davis Van Every Revocable Trust or, if such trust is
not existing, to Mrs. Van Every.
Mrs. Van Every beneficially owns 31,000 shares of Common Stock
subject to an option held by Salem Lance Van Every to acquire such shares. The
option becomes exercisable on January 31, 1997.
Except as set forth in this Item 4, Mrs. Van Every has no
present plans or proposals that relate to or that would result in any of the
actions specified in clauses (a) through (j) of Item 4 to Schedule 13D.
(Page 4 of 7)
<PAGE> 5
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) The aggregate number of shares of the Common Stock
beneficially owned by Mrs. Van Every pursuant to Rule 13d-3 of the Securities
and Exchange Act of 1934 is 1,647,392, which constitutes approximately 5.5% of
the outstanding shares of the Common Stock.
(b) The 1,647,392 shares of Common Stock reported herein are
beneficially owned by Mrs. Van Every as follows:
(i) 111,840 shares of Common Stock are held either
directly by Mrs. Van Every or in her capacity as trustee under the Family
Trusts. Mrs. Van Every has the sole investment power to dispose or direct the
disposition of these shares and she has the sole voting power to vote or direct
the voting of these shares.
(ii) 1,535,552 shares of Common Stock (the Trust
Shares) are held in the Irrevocable Trusts. Under the terms of the Irrevocable
Trusts, Mrs. Van Every has the shared investment power to dispose or direct the
disposition of these shares.
(c) Mrs. Van Every disposed of 4,300 shares of Common Stock by
gift on December 9, 1996. In addition, she purchased 125 shares of the Common
Stock on November 15, 1996 through the Issuer's dividend reinvestment plan for
$18.09 per share.
(d) No person other than Mrs. Van Every has the right to
receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of, the shares of Common Stock beneficially owned by Mrs. Van
Every, except as follows:
(i) the trustee of each respective Irrevocable Trust
has certain discretion to distribute for the benefit of Mrs. Van Every, during
her lifetime, the net income and principal thereof, including dividends and
proceeds from the sale of the Trust Shares, described in Item 5(b)(ii), under
the terms of the Irrevocable Trusts.
(ii) the beneficiaries under the Family Trusts have
certain rights to receive dividends from, or the proceeds from the sale of, the
shares of the Common Stock, described in Item 5(b)(i), held by such Family
Trusts.
(iii) Mrs. Van Every has pledged 48,366 shares of the
Common Stock, described in Item 5(b)(i), to a bank as collateral for various
loan obligations unrelated to any purchase of shares of the Common Stock. Mrs.
Van Every has the power to direct the pledgee to sell such shares and use the
proceeds to reduce the outstanding loan obligations.
(e) This item is inapplicable and has been omitted.
(Page 5 of 7)
<PAGE> 6
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
See Item 4 regarding (i) Mrs. Van Every's limited power of
appointment to direct the disposition of the Trust Shares, (ii) the transfer of
the Trust Shares upon termination of each Irrevocable Trust and (iii) certain
shares held subject to an option agreement.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit A. Nan Davis Van Every Florida Intangible Tax Trust
dated December 9, 1996.
Exhibit B. Nan Davis Van Every Intangible Tax Trust dated
December 6, 1996.
Exhibit C. Letter Agreement dated July 22, 1996 between Nan
D. Van Every and S. Lance Van Every.
(Page 6 of 7)
<PAGE> 7
After reasonable inquiry and to the best of the undersigned's knowledge
and belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
/s/ Nan Davis Van Every December 20, 1996
- -----------------------
Nan Davis Van Every
(Page 7 of 7)
<PAGE> 1
EXHIBIT A
NAN DAVIS VAN EVERY FLORIDA INTANGIBLE TAX TRUST
THIS AGREEMENT, dated December 9, 1996 between NAN DAVIS VAN EVERY, of
Naples, Florida (hereinafter called the "Grantor"), and SALEM LANCE VAN EVERY,
of Charlotte, North Carolina (hereinafter called the "Trustee"),
W I T N E S S E T H:
The Grantor hereby delivers and assigns to the Trustee the property
specified in Schedule A hereto annexed, the receipt of which is hereby
acknowledged by the Trustee, which agrees to hold the same, in trust, together
with any property added to the trust estate, as follows:
Article I:Distribution of Trust Funds During the Grantor's Lifetime.
A. Income and Principal Distributions. The Trustee shall pay or apply
all or any part of the net income and principal of this trust to or for the
benefit of the Grantor, during the Grantor's lifetime, that the Trustee
considers advisable for the Grantor's maintenance in health and reasonable
comfort, or support in the Grantor's accustomed manner of living. Any
undistributed income shall be added to principal. The Trustee shall allocate all
capital gains and/or losses to income.
B. Trustee Power of Appointment. The Trustee may at any time, during
the Grantor's lifetime, distribute all or any part of the trust principal to, or
in trust for the benefit of the Grantor, upon such estates or conditions, in
such manner, and at such time or times as the Trustee shall direct and appoint
in writing specifically referring to and exercising this power; provided,
however, that this power shall not be exercisable to any extent for the benefit
of the Trustee, the Trustee's estate, the Trustee's creditors or the creditors
of the Trustee's estate.
C. Grantor's Limited Power of Appointment. The Grantor may at any time
direct the distribution of all or any part of the trust principal to, or in
trust for the benefit of, such person or persons, upon such estates or
conditions, in such manner, and at such time or times as the Grantor shall
direct and appoint, in writing, during the Grantor's lifetime or at the
Grantor's death, specifically referring to and exercising this power; provided,
however, that this power shall not be exercisable to any extent for the benefit
of the Grantor, the Grantor's estate, the Grantor's creditors or the creditors
of the Grantor's estate.
Article II: Partial and Full Termination of Trust. Upon the
first to occur of the following events, the Trustee shall (using
the actual date of the receipt by the Trustee of each particular
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asset as the controlling date with respect to each such particular assets in the
case of a partial termination) distribute the particular asset received by the
Trustee as hereinafter provided:
A. Upon the death of the Grantor, the Trustee shall distribute any and
all trust principal not effectively appointed pursuant to section C of Article I
to the then acting Trustee of the Nan Davis Van Every Revocable Trust dated
4/1/92, as amended, to be added to the principal of such trust, or, if such
trust is not then in existence, to the Personal Representative of the Grantor's
estate, to be disposed of as part of the Grantor's estate.
B. Upon the day occurring four (4) months after the actual date of the
receipt of each particular asset received by the Trustee, the Trustee shall
distribute each particular asset, which is then a part of the trust estate, to
the then acting Trustee of the Nan Davis Van Every Revocable Trust dated 4/1/92,
as amended, to be added to the principal of such trust, or, if such trust is not
then in existence, to the Grantor.
C. Notwithstanding the foregoing provisions of this Article, the
Trustee shall retain the amount of assets initially listed on Schedule A
attached hereto until the date of the Grantor's death.
Article III: Appointment of Trustees. If the Grantor's son, SALEM LANCE
VAN EVERY, ceases to act as Trustee, the Grantor's son, JAMES DAVIS TOMLINSON,
currently of Raleigh, North Carolina, is appointed as Trustee, to act together
with any other then acting Trustee.
Any individual Trustee shall be considered removed at such time as such
Trustee is unable to manage the Trustee's affairs.
For purposes of this Agreement, an individual Trustee shall be
considered to be unable to manage the Trustee's affairs if such individual is
under a legal disability or by reason of mental illness or physical disability
is unable to give prompt and intelligent consideration to financial matters. The
determination as to the inability shall be made in writing by a physician who
has examined such individual, and the Trustee may rely upon such written
determination.
Any individual Trustee may at any time appoint such Trustee's successor
as Trustee, unless the foregoing provisions of this Agreement effectively
provide for such Trustee's successor.
Notwithstanding any provisions in this Agreement to the contrary, no
individual who is a resident of the State of Florida, and no corporation doing
business in, or qualified to do business in, the State of Florida may serve as
Trustee of this Trust.
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<PAGE> 3
Any individual Trustee who is or becomes a resident of the State of
Florida, or any corporate Trustee which does business in the State of Florida or
becomes qualified to do business in the State of Florida, shall cease to act as
a Trustee at such time.
If at any time there is no Trustee and the foregoing provisions of this
Agreement do not effectively provide for a successor Trustee, the Grantor may
appoint one or more successor Trustees.
The Grantor may not serve as Trustee.
Any fiduciary is authorized to resign at any time without court
approval.
The resignation, appointment, or revocation of appointment may be made
by the person authorized to take such action by delivery of an acknowledged
instrument to the Trustee then acting and any Trustee to be appointed, or, if
none, to a court having jurisdiction over the trust.
Any appointment of a Trustee may be conditioned to commence or cease
upon a future event and may be revoked or modified at any time before such
future event has occurred.
Unless otherwise expressly provided, any power to appoint a Trustee
shall permit appointment of an individual, bank or trust company as such
fiduciary, and shall be exercised by the parent (or, if none, the legal
representative) of any minor and the legal representative of any incompetent
person holding such power.
Article IV: Administrative and Tax Provisions.
A. Irrevocable Trust. This Agreement and any trust created
hereunder shall be irrevocable and shall not be subject to alteration or
amendment in any respect.
B. Additions to Trust. Any person may add property to the
trust estate by lifetime gift or by transfer taking effect at death, provided
such property is acceptable to the Trustee.
C. Situs of Trust Property. No Trustee shall invest in real
property having a situs in the State of Florida.
D. Requirement of Survival. No beneficiary shall be considered
to have survived the event terminating any trust and be entitled to any trust
funds on that event unless such beneficiary survives for at least thirty (30)
days after that event.
E. Distributions to Minors. If the Trustee is authorized or
required to distribute trust funds to a beneficiary who is then a minor, and the
Trustee does not believe that an immediate
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distribution is in the beneficiary's best interests, it may instead distribute
such property to any adult caring for the beneficiary or to the beneficiary's
Guardian or Custodian under a Uniform Gifts to Minors Act or Uniform Transfers
to Minors Act. In the alternative, the Trustee may hold and invest such property
as a separate fund for such beneficiary, and accumulate income or pay or apply
any part of the fund to or for the beneficiary's benefit from time to time, as
it considers advisable. Any accumulated income shall be added to principal
annually. When the beneficiary becomes an adult, the Trustee shall distribute
the fund to the beneficiary. If the beneficiary dies before becoming an adult,
the Trustee shall distribute the fund to the beneficiary's legal representative.
F. Permissible Use of Trust Funds. Upon the death of the Grantor, the
Trustee may in its discretion purchase property from the Grantor's estate, make
loans to the Grantor's estate, and guarantee the obligations of the Grantor's
estate and pledge trust property as security therefor upon whatever terms and in
whatever manner and with whatever security the Trustee considers advisable. This
provision shall not give either the Grantor or the Grantor's estate any right or
authority over trust property.
G. Governing Law. The validity, construction and administration of this
Agreement and any trust hereunder shall be governed by the laws of Florida.
H. Consideration of Other Resources of Beneficiaries. In exercising
discretion to distribute trust funds to any beneficiary, the Trustee may (but
shall not be required to) take into consideration any other resources reasonably
available to such beneficiary.
I. Informal Accountings. The Trustee may provide to the Grantor, or,
after the Grantor's death, to each legally competent eligible income beneficiary
and presumptive remainderman (or the parent or Guardian of the estate of any
such minor or incompetent person), statements of trust transactions at such time
and in such form as it considers advisable. If all such persons give written
approval of the statement, it shall be final, binding and conclusive on all
persons interested in the trust.
J. Investment Counsel. The Trustee may employ investment counsel;
consult with such counsel on any matters relating to the retention, sale,
purchase, investment, or reinvestment of securities or other property; and pay
such investment counsel reasonable compensation for its services in addition to
the regular compensation of the Trustee. The Trustee may act upon or refrain
from acting upon the advice of such investment counsel in whole or in part, and
to the extent the Trustee follows the advice of such counsel the Trustee shall
not be liable for any action taken, except in the case of willful misconduct.
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Notwithstanding the foregoing provisions of this section J, no
investment counsel which is a resident of the State of Florida, doing business
in the State of Florida, or qualified to do business in the State of Florida,
shall have the discretionary authority to make decisions relating to the
retention, sale, purchase, investment or reinvestment of securities or other
property.
K. Trustee Relieved From Liability. No individual Trustee
shall be liable for any mistake or error of judgment, or for any action taken or
omitted, either by the Trustee or by any agent or attorney employed by the
Trustee, or for any loss or depreciation in the value of the trust, except in
the case of willful misconduct.
L. Successor Trustee. No Trustee has a duty to examine the
transactions of any prior Trustee. Each Trustee is responsible only for those
assets which are actually delivered to it.
M. Delegation. Any Trustee may delegate to the other Trustees
the right to exercise any power (discretionary, administrative or otherwise),
and may revoke the delegation at any time, by delivery of an acknowledged
instrument to such other Trustees.
N. Powers of Appointment. Any power of appointment created under
this Agreement may be exercised only by an express reference to the power which
includes the name of the Grantor. A person exercising a power of appointment may
appoint trust funds outright or in trust. The choice of terms, Trustees and
jurisdiction of any trust shall be entirely within the discretion of the person
having the power of appointment, except to the extent otherwise expressly
provided in this Agreement. No power of appointment shall be exercisable by a
beneficiary over any property or its proceeds added to a trust by means of a
disclaimer by such beneficiary.
O. Management Powers of Trustee. Without limitation of the
powers conferred upon it by law but subject to the foregoing terms
of this Agreement, the Trustee is authorized:
1. To retain, acquire, or sell any property (including any
discretionary common trust fund of any corporate fiduciary acting under
this Agreement, covered and uncovered stock options, and investments in
foreign securities), without regard to diversification and without
being limited to the investments authorized for trust funds; (2) to
exercise stock options; (3) to enter into agreements for the sale,
merger, reorganization, dissolution or consolidation of any corporation
or properties; (4) to manage, improve, repair, sell, mortgage, lease
(including the power to lease for oil and gas), pledge, convey, option
or exchange any property and take back purchase money mortgages
thereon, without court order; (5) to make distributions in cash or in
kind, or partly
5
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in each, and, in the discretion of such fiduciaries, to allocate
particular assets or portions thereof to any one or more beneficiaries,
provided that such property shall be valued for purposes of
distribution at its value on the date of distribution; (6) to maintain
custody or brokerage accounts (including margin accounts) and to
register securities in the name of a nominee; (7) to compromise and
settle claims (including those relating to taxes) without court order;
(8) to borrow funds from any person or corporation (including a
Trustee) and pledge or mortgage trust assets to secure such loans; (9)
to extend, renew or renegotiate the Grantor's loans or guarantees; (10)
to employ attorneys, accountants, investment counsel, custodians and
brokers to assist in the administration of trust property; (11) to vote
and give proxies to vote shares of stock; (12) to make joint
investments in property, real or personal; (13) to divide any trust
into separate trusts; and (14) if there is more than one trust
established under this Agreement, to administer such trusts as a single
fund.
Article V: Identification of Trust. This Trust Agreement may
be referred to as the "Nan Davis Van Every Florida Intangible Tax Trust dated
12/9/96."
IN WITNESS WHEREOF, NAN DAVIS VAN EVERY, the Grantor, has hereunto set
the Grantor's hand and seal as of the 9th day of December, 1996.
s/Nan Davis Van Every
-----------------------
NAN DAVIS VAN EVERY
Grantor
SIGNED, SEALED, PUBLISHED and DECLARED by NAN DAVIS VAN EVERY, the
Grantor, as and for the Nan Davis Van Every Florida Intangible Tax Trust dated
12/9/96, in the presence of us and each of us, who, at the Grantor's request, in
the Grantor's presence and in the presence of each other, have hereunto
subscribed our names as witnesses on the day and in the year first above
written.
s/Physis S. Johnson of 6501 Morrison Blvd.
- ----------------------------- -------------------------------
Signature of Witness #1 Charlotte, NC 28211
as to Granter -------------------------------
Address of Witness #1
s/Sandra K. Jarvis of 6501 Morrison Blvd.
- ----------------------------- -------------------------------
Signature of Witness #2 Charlotte, NC 28211
as to Grantor -------------------------------
Address of Witness #2
STATE OF NORTH CAROLINA )
) Ss:
COUNTY OF MECKLENBURG )
6
<PAGE> 7
The foregoing instrument was acknowledged before me this 9th day of
December, 1996 by NAN DAVIS VAN EVERY, who is personally known to me or who has
produced a driver's license as identification.
s/Cynthia McKennie
--------------------------------------
Notary Public
My commission expires: 8/5/2001
IN WITNESS WHEREOF, SALEM LANCE VAN EVERY the Trustee,has hereunto set
the Trustee's hand and seal as of the 9th day of December, 1996.
s/Salem Lance Van Every
--------------------------------------
SALEM LANCE VAN EVERY
Trustee
SIGNED AND SEALED by SALEM LANCE VAN EVERY as Trustee, as and for the
Nan Davis Van Every Florida Intangible Tax Trust dated 12/9/96 in the presence
of us and each of us, who, at the Trustee's request, in the Trustee's presence
and in the presence of each other, have hereunto subscribed our names as
witnesses on this 9
day of December, 1996.
s/Physis S. Johnson of 6501 Morrison Blvd.
- ------------------------------ -------------------------------
Signature of Witness #1 Charlotte, NC 28211
as to Granter -------------------------------
Address of Witness #1
s/Sandra K. Jarvis of 6501 Morrison Blvd.
- ------------------------------ -------------------------------
Signature of Witness #2 Charlotte, NC 28211
as to Grantor -------------------------------
Address of Witness #2
STATE OF NORTH CAROLINA )
) Ss:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 9 day of
December, 1996, by SALEM LANCE VAN EVERY who is personally known to me or who
has produced a driver's license as identification.
s/Cynthia McKennie
------------------------------------------
Notary Public
My commission expires: 8/5/2001
-------------
7
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SCHEDULE A
<TABLE>
<S> <C>
FIVE
DOLLARS..................................................................$5.00
</TABLE>
8
<PAGE> 1
EXHIBIT B
NAN DAVIS VAN EVERY INTANGIBLE TAX TRUST
THIS AGREEMENT, dated December 6, 1996 between NAN DAVIS VAN EVERY, of
Naples, Florida (hereinafter called the "Grantor"), and JAMES DAVIS TOMLINSON,
of Raleigh, North Carolina (hereinafter called the "Trustee"),
W I T N E S S E T H:
The Grantor hereby delivers and assigns to the Trustee the property
specified in Schedule A hereto annexed, the receipt of which is hereby
acknowledged by the Trustee, which agrees to hold the same, in trust, together
with any property added to the trust estate, as follows:
Article I:Distribution of Trust Funds During the Grantor's
Lifetime.
A. Income and Principal Distributions. The Trustee shall pay or apply
all or any part of the net income and principal of this trust to or for the
benefit of the Grantor, during the Grantor's lifetime, that the Trustee
considers advisable for the Grantor's maintenance in health and reasonable
comfort, or support in the Grantor's accustomed manner of living. Any
undistributed income shall be added to principal. The Trustee shall allocate all
capital gains and/or losses to income.
B. Trustee Power of Appointment. The Trustee may at any time, during
the Grantor's lifetime, distribute all or any part of the trust principal to, or
in trust for the benefit of the Grantor, upon such estates or conditions, in
such manner, and at such time or times as the Trustee shall direct and appoint
in writing specifically referring to and exercising this power; provided,
however, that this power shall not be exercisable to any extent for the benefit
of the Trustee, the Trustee's estate, the Trustee's creditors or the creditors
of the Trustee's estate.
C. Grantor's Limited Power of Appointment. The Grantor may at any time
direct the distribution of all or any part of the trust principal to, or in
trust for the benefit of, such person or persons, upon such estates or
conditions, in such manner, and at such time or times as the Grantor shall
direct and appoint, in writing, during the Grantor's lifetime or at the
Grantor's death, specifically referring to and exercising this power; provided,
however, that this power shall not be exercisable to any extent for the benefit
of the Grantor, the Grantor's estate, the Grantor's creditors or the creditors
of the Grantor's estate.
Article II: Partial and Full Termination of Trust. Upon the first to
occur of the following events, the Trustee shall (using the actual date of the
receipt by the Trustee of each particular
1
<PAGE> 2
asset as the controlling date with respect to each such particular assets in the
case of a partial termination) distribute the particular asset received by the
Trustee as hereinafter provided:
A. Upon the death of the Grantor, the Trustee shall distribute any and
all trust principal not effectively appointed pursuant to section C of Article I
to the then acting Trustee of the Nan Davis Van Every Revocable Trust dated
4/1/92, as amended, to be added to the principal of such trust, or, if such
trust is not then in existence, to the Personal Representative of the Grantor's
estate, to be disposed of as part of the Grantor's estate.
B. Upon the day occurring four (4) months after the actual date of the
receipt of each particular asset received by the Trustee, the Trustee shall
distribute each particular asset, which is then a part of the trust estate, to
the then acting Trustee of the Nan Davis Van Every Revocable Trust dated 4/1/92,
as amended, to be added to the principal of such trust, or, if such trust is not
then in existence, to the Grantor.
C. Notwithstanding the foregoing provisions of this Article, the
Trustee shall retain the amount of assets initially listed on Schedule A
attached hereto until the date of the Grantor's death.
Article III: Appointment of Trustees. If the Grantor's son, JAMES DAVIS
TOMLINSON, ceases to act as Trustee, the Grantor's son, WORTH EVAN TOMLINSON,
JR., currently of North Wilkesboro, North Carolina, is appointed as Trustee, to
act together with any other then acting Trustee.
Any individual Trustee shall be considered removed at such time as such
Trustee is unable to manage the Trustee's affairs.
For purposes of this Agreement, an individual Trustee shall be
considered to be unable to manage the Trustee's affairs if such individual is
under a legal disability or by reason of mental illness or physical disability
is unable to give prompt and intelligent consideration to financial matters. The
determination as to the inability shall be made in writing by a physician who
has examined such individual, and the Trustee may rely upon such written
determination.
Any individual Trustee may at any time appoint such Trustee's successor
as Trustee, unless the foregoing provisions of this Agreement effectively
provide for such Trustee's successor.
Notwithstanding any provisions in this Agreement to the contrary, no
individual who is a resident of the State of Florida, and no corporation doing
business in, or qualified to do business in, the State of Florida may serve as
Trustee of this Trust.
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<PAGE> 3
Any individual Trustee who is or becomes a resident of the State of
Florida, or any corporate Trustee which does business in the State of Florida or
becomes qualified to do business in the State of Florida, shall cease to act as
a Trustee at such time.
If at any time there is no Trustee and the foregoing provisions of this
Agreement do not effectively provide for a successor Trustee, the Grantor may
appoint one or more successor Trustees.
The Grantor may not serve as Trustee.
Any fiduciary is authorized to resign at any time without court
approval.
The resignation, appointment, or revocation of appointment may be made
by the person authorized to take such action by delivery of an acknowledged
instrument to the Trustee then acting and any Trustee to be appointed, or, if
none, to a court having jurisdiction over the trust.
Any appointment of a Trustee may be conditioned to commence or cease
upon a future event and may be revoked or modified at any time before such
future event has occurred.
Unless otherwise expressly provided, any power to appoint a Trustee
shall permit appointment of an individual, bank or trust company as such
fiduciary, and shall be exercised by the parent (or, if none, the legal
representative) of any minor and the legal representative of any incompetent
person holding such power.
Article IV: Administrative and Tax Provisions.
A. Irrevocable Trust. This Agreement and any trust created
hereunder shall be irrevocable and shall not be subject to alteration or
amendment in any respect.
B. Additions to Trust. Any person may add property to the
trust estate by lifetime gift or by transfer taking effect at death, provided
such property is acceptable to the Trustee.
C. Situs of Trust Property. No Trustee shall invest in real
property having a situs in the State of Florida.
D. Requirement of Survival. No beneficiary shall be
considered to have survived the event terminating any trust and be entitled to
any trust funds on that event unless such beneficiary survives for at least
thirty (30) days after that event.
E. Distributions to Minors. If the Trustee is authorized or
required to distribute trust funds to a beneficiary who is then a minor, and the
Trustee does not believe that an immediate
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distribution is in the beneficiary's best interests, it may instead distribute
such property to any adult caring for the beneficiary or to the beneficiary's
Guardian or Custodian under a Uniform Gifts to Minors Act or Uniform Transfers
to Minors Act. In the alternative, the Trustee may hold and invest such property
as a separate fund for such beneficiary, and accumulate income or pay or apply
any part of the fund to or for the beneficiary's benefit from time to time, as
it considers advisable. Any accumulated income shall be added to principal
annually. When the beneficiary becomes an adult, the Trustee shall distribute
the fund to the beneficiary. If the beneficiary dies before becoming an adult,
the Trustee shall distribute the fund to the beneficiary's legal representative.
F. Permissible Use of Trust Funds. Upon the death of the Grantor, the
Trustee may in its discretion purchase property from the Grantor's estate, make
loans to the Grantor's estate, and guarantee the obligations of the Grantor's
estate and pledge trust property as security therefor upon whatever terms and in
whatever manner and with whatever security the Trustee considers advisable. This
provision shall not give either the Grantor or the Grantor's estate any right or
authority over trust property.
G. Governing Law. The validity, construction and administration of this
Agreement and any trust hereunder shall be governed by the laws of Florida.
H. Consideration of Other Resources of Beneficiaries. In exercising
discretion to distribute trust funds to any beneficiary, the Trustee may (but
shall not be required to) take into consideration any other resources reasonably
available to such beneficiary.
I. Informal Accountings. The Trustee may provide to the Grantor, or,
after the Grantor's death, to each legally competent eligible income beneficiary
and presumptive remainderman (or the parent or Guardian of the estate of any
such minor or incompetent person), statements of trust transactions at such time
and in such form as it considers advisable. If all such persons give written
approval of the statement, it shall be final, binding and conclusive on all
persons interested in the trust.
J. Investment Counsel. The Trustee may employ investment counsel;
consult with such counsel on any matters relating to the retention, sale,
purchase, investment, or reinvestment of securities or other property; and pay
such investment counsel reasonable compensation for its services in addition to
the regular compensation of the Trustee. The Trustee may act upon or refrain
from acting upon the advice of such investment counsel in whole or in part, and
to the extent the Trustee follows the advice of such counsel the Trustee shall
not be liable for any action taken, except in the case of willful misconduct.
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<PAGE> 5
Notwithstanding the foregoing provisions of this section J, no
investment counsel which is a resident of the State of Florida, doing business
in the State of Florida, or qualified to do business in the State of Florida,
shall have the discretionary authority to make decisions relating to the
retention, sale, purchase, investment or reinvestment of securities or other
property.
K. Trustee Relieved From Liability. No individual Trustee shall be
liable for any mistake or error of judgment, or for any action taken or omitted,
either by the Trustee or by any agent or attorney employed by the Trustee, or
for any loss or depreciation in the value of the trust, except in the case of
willful misconduct.
L. Successor Trustee. No Trustee has a duty to examine the transactions
of any prior Trustee. Each Trustee is responsible only for those assets which
are actually delivered to it.
M. Delegation. Any Trustee may delegate to the other Trustees the right
to exercise any power (discretionary, administrative or otherwise), and may
revoke the delegation at any time, by delivery of an acknowledged instrument to
such other Trustees.
N. Powers of Appointment. Any power of appointment created under this
Agreement may be exercised only by an express reference to the power which
includes the name of the Grantor. A person exercising a power of appointment may
appoint trust funds outright or in trust. The choice of terms, Trustees and
jurisdiction of any trust shall be entirely within the discretion of the person
having the power of appointment, except to the extent otherwise expressly
provided in this Agreement. No power of appointment shall be exercisable by a
beneficiary over any property or its proceeds added to a trust by means of a
disclaimer by such beneficiary.
O. Management Powers of Trustee. Without limitation of the powers
conferred upon it by law but subject to the foregoing terms of this Agreement,
the Trustee is authorized:
1. To retain, acquire, or sell any property (including any
discretionary common trust fund of any corporate fiduciary acting under
this Agreement, covered and uncovered stock options, and investments in
foreign securities), without regard to diversification and without
being limited to the investments authorized for trust funds; (2) to
exercise stock options; (3) to enter into agreements for the sale,
merger, reorganization, dissolution or consolidation of any corporation
or properties; (4) to manage, improve, repair, sell, mortgage, lease
(including the power to lease for oil and gas), pledge, convey, option
or exchange any property and take back purchase money mortgages
thereon, without court order; (5) to make distributions in cash or in
kind, or partly
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in each, and, in the discretion of such fiduciaries, to allocate
particular assets or portions thereof to any one or more beneficiaries,
provided that such property shall be valued for purposes of
distribution at its value on the date of distribution; (6) to maintain
custody or brokerage accounts (including margin accounts) and to
register securities in the name of a nominee; (7) to compromise and
settle claims (including those relating to taxes) without court order;
(8) to borrow funds from any person or corporation (including a
Trustee) and pledge or mortgage trust assets to secure such loans; (9)
to extend, renew or renegotiate the Grantor's loans or guarantees; (10)
to employ attorneys, accountants, investment counsel, custodians and
brokers to assist in the administration of trust property; (11) to vote
and give proxies to vote shares of stock; (12) to make joint
investments in property, real or personal; (13) to divide any trust
into separate trusts; and (14) if there is more than one trust
established under this Agreement, to administer such trusts as a single
fund.
Article V: Identification of Trust. This Trust Agreement may
be referred to as the "Nan Davis Van Every Intangible Tax Trust dated 12/6/96."
IN WITNESS WHEREOF, NAN DAVIS VAN EVERY, the Grantor, has hereunto set
the Grantor's hand and seal as of the 6th day of December, 1996.
S/Nan Davis Van Every
----------------------------
NAN DAVIS VAN EVERY
Grantor
SIGNED, SEALED, PUBLISHED and DECLARED by NAN DAVIS VAN EVERY, the
Grantor, as and for the Nan Davis Van Every Intangible Tax Trust dated 12/6/96,
in the presence of us and each of us, who, at the Grantor's request, in the
Grantor's presence and in the presence of each other, have hereunto subscribed
our names as witnesses on the day and in the year first above written.
s/Kathryn K. Willis of 6501 Morrison Blvd.
- ------------------------------- ------------------------------
Signature of Witness #1 Charlotte, NC 28211
as to Granter ------------------------------
Address of Witness #1
s/Rolanda D. Rhodes of 6501 Morrison Blvd.
- ------------------------------- ------------------------------
Signature of Witness #2 Charlotte, NC 28211
as to Grantor ------------------------------
Address of Witness #2
STATE OF NORTH CAROLINA )
) Ss:
COUNTY OF MECKLENBURG )
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The foregoing instrument was acknowledged before me this 6th day of
December, 1996 by NAN DAVIS VAN EVERY, who is personally known to me or who has
produced a driver's license as identification.
s/Cynthia McKennie
------------------------------------
Notary Public
My commission expires: 8/5/2001
------------
IN WITNESS WHEREOF, JAMES DAVIS TOMLINSON, the Trustee,has hereunto set
the Trustee's hand and seal as of the 9th day of December, 1996.
s/James Davis Tomlinson
------------------------------------
JAMES DAVIS TOMLINSON
Trustee
SIGNED AND SEALED by JAMES DAVIS TOMLINSON, as Trustee, as and for the
Nan Davis Van Every Intangible Tax Trust dated 12/6/96 in the presence of us and
each of us, who, at the Trustee's request, in the Trustee's presence and in the
presence of each other, have hereunto subscribed our names as witnesses on this
9 day of December, 1996.
s/ Witness #1 of 321 Oberlin Rd., Raleigh, NC 27605
- ----------------------------- -----------------------------------
Signature of Witness #1 Address of Witness #1
as to Trustee
s/Carol Allred of 321 Oberlin Rd., Raleigh, NC 27605
- ----------------------------- -----------------------------------
Signature of Witness #2 Address of Witness #2
as to Grantor
STATE OF NORTH CAROLINA )
) Ss:
COUNTY OF WAKE )
The foregoing instrument was acknowledged before me this 9 day of
December, 1996, by JAMES DAVIS TOMLINSON, who is personally known to me or who
has produced a driver's license as identification.
s/ Notary Public
----------------------------------
Notary Public
Commission Expires: 4-13-97
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SCHEDULE A
<TABLE>
<S> <C>
FIVE
DOLLARS...................................................................$5.00
</TABLE>
8
<PAGE> 1
EXHIBIT C
July 22, 1996
Mr. S. Lance Van Every
8913 Winged Bourne
Charlotte, North Carolina 28210
Dear Lance:
I hereby agree to purchase from S. Lance Van Every (Lance) 31,000
shares of the $.83-1/3 par value Common Stock (the Shares) of Lance, Inc. (the
Company) at a purchase price per share equal to the lowest price at which the
Common Stock of the Company shall have sold, regular way, on the NASDAQ Stock
Market on the date hereof with the aggregate purchase price to be paid on July
24, 1996 against receipt of the Shares.
I understand that 1,000 of the Shares are shares received as gifts by
Lance in 1993 and 1994 and the remainder are shares received as a gift from
Lance's father.
I represent and covenant that the Shares to be purchased by me pursuant
hereto are being purchased for investment only and not with a view to the resale
or distribution thereof, and I agree to indemnify and hold harmless the Company
from any and all liability for any violation of the United States Securities Act
of 1933, as amended (the 1933 Act), which may be held or found by any court of
competent jurisdiction to be due, directly or indirectly, in whole or in part,
to any intent or design on my part to take any of the Shares with a view to the
distribution thereof.
I understand that the Shares being purchased by me constitute
"restricted securities" as defined in Rule 144 under the 1933 Act and I agree
that the Company will lodge with any stock transfer agent for the Company, or
note on its stock transfer records, a stop transfer order against the Shares and
that there shall be imprinted upon the certificate or certificates issued to me
evidencing the Shares a legend reflecting such restriction as follows:
These securities have not been registered under the Securities Act of
1933. They have been acquired for investment and may not be sold or
otherwise disposed of in the absence of an effective registration
statement under the Securities Act of 1933 or an opinion of counsel
satisfactory to the Company and presented to it prior to any proposed
sale or other disposition that registration is not required under said
Act.
<PAGE> 2
I understand that the Shares being purchased by me will not be
registered under the 1933 Act and must be held indefinitely unless subsequently
registered or an exemption from such registration is available, provided, that
the Shares may be sold by me in conjunction with the sale of all or
substantially all of the outstanding shares of Common Stock of the Company
without such registration. I further acknowledge that the Company has made and
makes no undertaking to either register the Shares or to take any action to
comply with any exemption from registration that might be available or to supply
any information to facilitate sales of the Shares.
I further agree, in consideration of Lance selling the Shares to me
rather than on the open market and the payment by him to me of $1,000, that
Lance may repurchase all but not less than all of the Shares from me for cash at
the purchase price per share provided above plus $1 per share at any time
between January 31, 1997 and July 21, 2006, with the purchase price and number
of shares subject to adjustment for stock dividends, stock splits and similar
recapitalizations of the Company.
The representations and understandings contained in the third, fourth
and fifth paragraphs are directed to and may be relied upon by the Company and
by Lance.
Very truly yours,
S/Nan D. Van Every
Nan D. Van Every
cc: Lance, Inc.
Post Office Box 32368
Charlotte, NC 28232
2
