<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(RULE 13d-101)
Under The Securities Exchange Act Of 1934
AMENDMENT NO. 3
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 9, 1997
------------------------------------
(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. 3 amends and restates the Schedule 13D of Nan Davis
Van Every dated August 10, 1990 pursuant to rule 13d-2(c).
(Page 1 of 6)
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CUSIP No. 514606 10 2 13D Page 2 of 6 Pages
- ------------------------ ------------------------
========== =====================================================================
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) [ ]
- ---------- ---------------------------------------------------------------------
3 SEC USE ONLY
- ---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS* OO
- ---------- ---------------------------------------------------------------------
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
- ---------------- -------- ------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 65,074
BENEFICIALLY -------- ------------------------------------------------------
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING 0
PERSON WITH -------- ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
65,074
-------- ------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- ---------- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
65,074
- ---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 1%
- ---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
========== =====================================================================
* SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 2 of 6
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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 34108. 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 initially acquired 1,297,920 shares of the
Common Stock (the "Inherited Shares") under the will dated April 7, 1987 of her
husband, Salem A. Van Every, Jr. who died on May 27, 1990 as the sole trustee
under the marital trust created under his 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 Inherited Shares. The Inherited Shares are no longer subject to the marital
trust and prior to December 9, 1997 were held in the Nan Davis Van Every
Revocable Trust, dated April 1, 1992 (the "Revocable Trust").
In addition, Mrs. Van Every also beneficially owns 347,947
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 9, 1997, Mrs. Van Every transferred from the
Revocable Trust an aggregate of 1,580,793 shares of Common Stock (the
"Transferred 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 purchases, if any, are likely to be the
personal funds of Mrs. Van Every. Future purchases, if any, Mrs. Van
Page 3 of 6
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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 Inherited
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 has
not retained any investment power to dispose or direct the disposition of the
Transferred Shares or to vote or direct the voting of the Transferred Shares.
All such dispositive and voting power is vested with the trustee of each
Irrevocable Trust with respect to the Transferred Shares held therein. Salem
Lance Every, Mrs. Van Every's stepson, serves as trustee of one Irrevocable
Trust which holds 1,294,295 of the Transferred Shares. James D. Tomlinson, Mrs.
Van Every's son, serves as trustee of the second Irrevocable Trust which holds
286,498 of the Transferred Shares.
Under the terms of each Irrevocable Trust the beneficial
ownership of the Transferred 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 Revocable Trust or,
if such trust is not existing, to the estate of Mrs. Van Every. In addition,
each Irrevocable Trust will terminate automatically with respect to any assets
held in it for a period of four months. Such automatic termination will occur
on April 9, 1998 with respect to any Transferred Shares then remaining in each
Irrevocable Trust. Upon such automatic termination, the assets will then be
transferred to the 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 became 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 6
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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 65,074, which constitutes less than 1% of the
outstanding shares of the Common Stock.
(b) The 65,074 shares of Common Stock reported herein are
beneficially owned by Mrs. Van Every 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.
(c) Mrs. Van Every disposed of 3,625 shares of Common Stock by
gift on December 9, 1997. In addition, she purchased 500 shares of other Common
Stock in a private transaction on November 11, 1997 for $25 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, and another beneficiary, the net income and principal thereof,
including dividends and proceeds from the sale of the Transferred 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.
(e) This item is inapplicable and has been omitted.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
See Item 4 regarding (i) the transfer of the Transferred
Shares upon termination of each Irrevocable Trust and (ii) 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, 1997.
Exhibit B. Nan Davis Van Every Intangible Tax Trust dated
December 9, 1997.
Exhibit C. Letter Agreement dated July 22, 1996 between
Nan D. Van Every and S. Lance Van Every
(Previously filed as Exhibit C to Amendment
No. 1 of this Schedule 13D and incorporated
herein by reference).
Page 5 of 6
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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 29, 1997
- -----------------------
Nan Davis Van Every
Page 6 of 6
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EXHIBIT A
NAN DAVIS VAN EVERY
FLORIDA INTANGIBLE TAX TRUST
THIS AGREEMENT, dated December 9, 1997, 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 Distributions. The Trustee shall pay or apply all or
any part of the net income of this trust to or for the benefit of the Grantor,
during the Grantor's lifetime, that the Trustee in its discretion considers
advisable. 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 and HEINEMAN MEDICAL RESEARCH
CENTER, of Charlotte, North Carolina, 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.
In exercising its discretion, the Trustee shall give first
consideration to the Grantor and then to HEINEMAN MEDICAL RESEARCH CENTER.
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ARTICLE II.: PARTIAL AND FULL TERMINATION OF TRUST. Upon the
first to occur of the following events, the Trustee shall distribute each
particular asset received by the Trustee (or the traceable proceeds of such
asset) as hereinafter provided:
A. Upon the day occurring four (4) months after the actual
date of receipt by the Trustee of each particular asset, the Trustee shall
distribute such asset (or the traceable proceeds of such asset), if not
previously effectively appointed pursuant to section B of Article I, to the then
acting Trustee of the Nan Davis Van Every Revocable Trust dated 4/1/92, as
amended to the date of the Grantor's death, to be added to the principal of such
trust, or, if such trust is not then in existence, to the Grantor.
B. Upon the death of the Grantor, the Trustee shall distribute
any and all undistributed income and principal of this trust not effectively
appointed pursuant to section B of Article I, to the then acting Trustee of the
Nan Davis Van Every Revocable Trust dated 4/1/92, as amended to the date of the
Grantor's death, 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.
C. Notwithstanding the foregoing provisions of this Article,
the Trustee shall retain the assets initially listed on Schedule A attached
hereto until the date of the Grantor's death.
ARTICLE III.: APPOINTMENT OF TRUSTEES. If SALEM LANCE VAN
EVERY ceases to act as Trustee, 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
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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.
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 legally
incapacitated person holding such power.
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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 ninety (90)
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 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
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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 Income 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 income
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.
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
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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 in
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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
12/9/97."
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, 1997.
/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 12/9/97, in the presence of us and each of us, who, at the Grantor's
request, in the Grantor's
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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/ Peggy B. Harrington of 329 Kimmswick Road, Charlotte, NC
- ------------------------ ------------------------------------
Signature of Witness #1 Address of Witness #1
/s/ Carolyn M. DeYoung of 9701 Markus Drive, Charlotte, NC
- ------------------------ ------------------------------------
Signature of Witness #2 Address of Witness #2
STATE OF NORTH CAROLINA )
) ss:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 9th
day of December, 1997, by NAN DAVIS VAN EVERY, who is personally known to me or
who has produced a driver's license as identification.
/s/ Beth B. Tatum
------------------------------------
Notary Public
My Commission Expires: 10-9-98
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, 1997.
/s/ Salem Lance Van Every
-----------------------------------
SALEM LANCE VAN EVERY
Trustee
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STATE OF NORTH CAROLINA )
) ss:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 9th
day of December, 1997, by SALEM LANCE VAN EVERY, who is personally known to me
or who has produced a driver's license as identification.
/s/ Beth B. Tatum
----------------------------------
Notary Public
My Commission Expires: 10-9-98
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SCHEDULE A
FIVE DOLLARS............................................................$5.00
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EXHIBIT B
NAN DAVIS VAN EVERY
INTANGIBLE TAX TRUST
THIS AGREEMENT, dated December 9, 1997, 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 Distributions. The Trustee shall pay or apply all or
any part of the net income of this trust to or for the benefit of the Grantor,
during the Grantor's lifetime, that the Trustee in its discretion considers
advisable. 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 and HEINEMAN MEDICAL RESEARCH
CENTER, of Charlotte, North Carolina, 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.
In exercising its discretion, the Trustee shall give first
consideration to the Grantor and then to HEINEMAN MEDICAL RESEARCH CENTER.
<PAGE> 18
ARTICLE II.: PARTIAL AND FULL TERMINATION OF TRUST. Upon the
first to occur of the following events, the Trustee shall distribute each
particular asset received by the Trustee (or the traceable proceeds of such
asset) as hereinafter provided:
A. Upon the day occurring four (4) months after the actual
date of receipt by the Trustee of each particular asset, the Trustee shall
distribute such asset (or the traceable proceeds of such asset), if not
previously effectively appointed pursuant to section B of Article I, to the then
acting Trustee of the Nan Davis Van Every Revocable Trust dated 4/1/92, as
amended to the date of the Grantor's death, to be added to the principal of such
trust, or, if such trust is not then in existence, to the Grantor.
B. Upon the death of the Grantor, the Trustee shall distribute
any and all undistributed income and principal of this trust not effectively
appointed pursuant to section B of Article I, to the then acting Trustee of the
Nan Davis Van Every Revocable Trust dated 4/1/92, as amended to the date of the
Grantor's death, 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.
C. Notwithstanding the foregoing provisions of this Article,
the Trustee shall retain the assets initially listed on Schedule A attached
hereto until the date of the Grantor's death.
ARTICLE III.: APPOINTMENT OF TRUSTEES. If JAMES DAVIS
TOMLINSON ceases to act as Trustee, 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
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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.
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.
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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 legally
incapacitated 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 ninety (90)
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 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
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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 Income 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 income
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
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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.
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.
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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 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.
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ARTICLE V.: IDENTIFICATION OF TRUST. This Trust Agreement may
be referred to as the "Nan Davis Van Every Intangible Tax Trust dated 12/9/97."
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, 1997.
/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
12/9/97, in the presence of us and each of us, who, at the Grantor's request, in
the Grantor's
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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/ Peggy Harrington of 329 Kimmswick Road, Charlotte, NC
- ----------------------- ------------------------------------
Signature of Witness #1 Address of Witness #1
/s/ Robert S. Carles of 2929 Shaker Dr., Charlotte, NC
- ----------------------- ------------------------------------
Signature of Witness #2 Address of Witness #2
STATE OF NORTH CAROLINA )
) ss:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 9th
day of December, 1997, by NAN DAVIS VAN EVERY, who is personally known to me or
who has produced a driver's license as identification.
/s/ Beth B. Tatum
-----------------------------------
Notary Public
My Commission Expires: 10-9-98
IN WITNESS WHEREOF, JAMES DAVIS TOMLINSON, the Trustee, has
hereunto set the Trustee's hand and seal as of the 11th day of December, 1997.
/s/ James D. Tomlinson
-----------------------------------
JAMES DAVIS TOMLINSON
Trustee
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STATE OF NORTH CAROLINA )
) ss:
COUNTY OF WAKE )
The foregoing instrument was acknowledged before me this 11th
day of December, 1997, by JAMES DAVIS TOMLINSON, who is personally known to me
or who has produced a driver's license as identification.
/s/ [illegible]
-------------------------------
Notary Public
My Commission Expires: 9-9-2008
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SCHEDULE A
FIVE DOLLARS...........................................................$5.00
11
