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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(RULE 13D-101)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 2
LANCE, INC.
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(NAME OF ISSUER)
$.83-1/3 PAR VALUE COMMON STOCK
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(TITLE OF CLASS OF SECURITIES)
514606 10 2
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(CUSIP NUMBER)
A. ZACHARY SMITH III
100 N. TRYON STREET, SUITE 4200
CHARLOTTE, NORTH CAROLINA 28202 (704) 331-7400
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
NOVEMBER 17, 1998
------------------------------------
(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: [ ].
Page 1 of 7
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<TABLE>
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CUSIP No. 514606 10 2 13D Page 2 of 7 Pages
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1 NAME OF REPORTING PERSON Salem Lance Van Every
S.S. or I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
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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*
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
[ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES OF AMERICA
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NUMBER OF 7 SOLE VOTING POWER
SHARES 2,090,505
BENEFICIALLY ------------------------------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 55,167
REPORTING ------------------------------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 2,090,505
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10 SHARED DISPOSITIVE POWER
55,167
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,145,672
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.16%
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14 TYPE OF REPORTING PERSON*
IN
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</TABLE>
* SEE INSTRUCTIONS BEFORE FILLING OUT!
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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 Salem Lance Van
Every. The residence address of Mr. Van Every is 4010 Seminole Court,
Charlotte, North Carolina 28210. Mr. Van Every's principal occupation is that
of a private investor.
(d) During the past five years, Mr. Van Every has not
been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors).
(e) During the past five years, Mr. 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) Mr. Van Every is a citizen of the United States of
America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Mr. Van Every acquired the sole voting power over 1,289,245
shares of the Common Stock reported herein (the "Trust Shares") upon transfer
of the Trust Shares by Nan Davis Van Every, Mr. Van Every's stepmother, on
November 17, 1998 to the Nan Davis Van Every Florida Intangible Trust, dated
November 17, 1998 (the "Irrevocable Trust") for which Mr. Van Every serves as
trustee. Mr. Van Every acquired sole dispositive power and sole voting power in
such capacity as trustee of the Irrevocable Trust over the Trust Shares upon
their transfer by Nan Davis Van Every to the Irrevocable Trust on the same
date. Mr. Van Every, in his capacity as co-trustee with NationsBank, N.A. of a
second trust (the "Second Trust"), beneficially owns 52,044 shares of the
Common Stock (the "Co-Trustee Shares") over which he has shared voting power
and shared dispositive power.
No funds or other consideration were used in the acquisition
of the Trust Shares or the Co-Trustee Shares. Mr. Van Every became the
beneficial owner of the Trust Shares and the Co-Trustee Shares not by purchase
but by operation of law in his capacity as trustee of the Second Trust and by
gift to the Irrevocable Trust, respectively.
In addition, Mr. Van Every also owns 804,383 shares of Common
Stock (the "Other Shares"), of which 767,671 shares are held directly
(including 62,500 shares subject to options currently exercisable or
exercisable within 60 days), 33,589 shares are held in custodian or trust
accounts for his daughters and grandchildren of which he serves as custodian or
trustee and 3,123
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shares are held by his daughters. The Other Shares were primarily acquired by
Mr. Van Every by inheritance and by gift in the years prior to this Schedule
13D.
At this time, the source and amount of funds that Mr. 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 Mr. Van Every. Future purchases, if any, Mr. Van
Every may make under the Issuer's dividend reinvestment plan will be funded
through the reinvestment of dividends.
ITEM 4. PURPOSE OF TRANSACTION.
Since Mr. Van Every is the beneficial owner of the Trust
Shares and the Co-Trustee Shares not by purchase but by operation of law and by
gift to the Irrevocable Trust, he became such a beneficial owner without motive
or purpose. The Trust Shares and the Co-Trustee Shares are held by the
Irrevocable Trust and the Second Trust, respectively. Mr. Van Every intends to
hold the Trust Shares and the Co-Trustee Shares in his capacity as trustee of
each trust for investment.
The Other Shares were primarily acquired by Mr. Van Every by
inheritance and by gift and in his capacity as trustee or custodian without
motive or purpose. Mr. Van Every has sole investment and dispositive power over
the Other Shares, except for the 3,123 shares of the Common Stock owned by his
daughters over which he has shared dispositive power and shared voting power.
Mr. Van Every intends to hold the Other Shares for investment.
Mr. Van Every intends to evaluate the business and prospects
of the Issuer and depending on his evaluation, other investment opportunities,
market conditions and other factors as he may deem material, Mr. Van Every may
seek to acquire additional shares of the Common Stock in the open market or
through the Issuer's dividend reinvestment plan. Alternatively, he may, upon
consultation with other persons with whom he shares dispositive power, as
applicable, dispose of all or a portion of the shares of the Common Stock
presently held or hereafter acquired.
Under the terms of the Irrevocable Trust, Mr. Van Every is
permitted to direct the disposition of its assets, including the Trust Shares,
during the lifetime of Mrs. Van Every for her benefit and the benefit of
certain designated charities. Upon the death of Mrs. Van Every, the Irrevocable
Trust will terminate and its 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, the Irrevocable Trust will partially terminate
automatically with respect to any assets held in it on April 30th of each
calendar year, including any Trust Shares then remaining in the Irrevocable
Trust. Upon such automatic termination, the assets will then be transferred to
the 1992 Nan Davis Van Every Revocable Trust, or, if such trust is not
existing, to Mrs. Van Every.
Mr. Van Every has served as a director of the Issuer since
1990. As a nonemployee director of the Issuer, Mr. Van Every is eligible to
receive grants of options to acquire shares of the Common Stock pursuant to the
Issuer's 1995 Nonqualified Stock Option Plan for Non-Employee Directors.
Currently, Mr. Van Every has options to acquire 11,500 shares of the Common
Stock of
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which options for 7,500 shares are currently exercisable and options for 4,000
shares will become exercisable on May 1, 1999.
Mr. Van Every also has options to purchase 31,000 and 24,000
shares of the Common Stock from Nan Davis Van Every, which became exercisable
on January 31, 1997 and November 30, 1998, respectively.
Except as set forth in this Item 4, Mr. 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.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) The aggregate number of shares of the Common Stock
that Mr. Van Every beneficially owns pursuant to Rule 13d-3 of the Securities
and Exchange Act of 1934 is 2,145,672 (including 62,500 shares subject to
options currently exercisable or exercisable within 60 days) which constitutes
approximately 7.16% of the outstanding shares of the Common Stock. Mr. Van
Every disclaims beneficial ownership with respect to all such shares described
in Item 5(b)(ii), (iii) and (iv).
(b) The 2,145,672 aggregate amount of shares of Common
Stock reported herein are beneficially owned as follows:
(i) 801,260 shares of Common Stock (the Other
Shares, except for 3,123 shares owned by Mr. Van Every's daughters) are
beneficially owned by Mr. Van Every, either directly or as trustee or custodian
for his children and grandchild. Mr. Van Every has the sole investment power to
dispose or direct the disposition of these shares and he has the sole voting
power to vote or direct the voting of these shares.
(ii) 1,289,245 shares of Common Stock (the Trust
Shares) are beneficially owned by Mr. Van Every as trustee of the Irrevocable
Trust. Mr. Van Every has the sole investment power to dispose or direct the
disposition of these shares and he has the sole voting power to vote or direct
the voting of these shares.
(iii) 52,044 shares of the Common Stock (the
Co-Trustee Shares) are beneficially owned by Mr. Van Every as co-trustee with
NationsBank, N.A. under the Second Trust. In such capacity, Mr. Van Every has
the shared investment power to dispose or direct the disposition of these
shares and he has the shared voting power to vote or direct the voting of these
shares.
(iv) 3,123 shares of the Common Stock are owned
by Mr. Van Every's daughters with whom he shares the investment power to
dispose or direct the disposition of these shares and with whom he shares the
voting power to vote or direct the voting of these shares.
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(c) During the past 60 days, Mr. Van Every has not
purchased or sold any shares of Common Stock. On November 17, 1998 Nan Davis
Van Every gifted 3,000 shares to his daughters and grandchildren which Mr. Van
Every holds as custodian or trustee on their behalf.
(d) No person other than Mr. 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 Common Stock reported herein except as follows:
(i) NationsBank, N.A. has the power to direct
the receipt of dividends from, or the proceeds from the sale of, the 52,044
shares of the Common Stock described in Section 5(b)(iii) as co-trustee of the
Second Trust.
(ii) Mr. Van Every's daughters have the right to
receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of, the 3,123 shares of the Common Stock described in Section
5(b)(iv).
(e) This paragraph is inapplicable and has been omitted.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
See Items 4 regarding (i) the transfer or disposition of the
Trust Shares and (ii) certain other shares of the Common Stock subject to
options currently exercisable or exercisable within 60 days.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
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Exhibit A. Nan Davis Van Every Florida Intangible
Trust dated November 17, 1998 (filed
herewith).
Exhibit B. Lance, Inc. 1995 Nonqualified Stock Option
Plan for Non-Employee Directors
(incorporated herein by reference to
Exhibit 10 to the Issuer's Registration
Statement on Form S-8, Registration No.
33-58839).
Exhibit C. Letter Agreement dated July 22, 1996
between S. Lance Van Every and Nan D. Van
Every (incorporated herein by reference to
the previously filed Exhibit C to this
Schedule 13D filed by Mr. Van Every on
December 30, 1997).
Exhibit D. Letter Agreement dated April 28, 1998
between S. Lance Van Every and Nan D. Van
Every (filed herewith).
</TABLE>
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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/ Salem Lance Van Every January 22, 1999
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Salem Lance Van Every
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EXHIBIT A
NAN DAVIS VAN EVERY
FLORIDA INTANGIBLE TRUST
THIS AGREEMENT, dated 11 - 17, 1998, between NAN DAVIS VAN
EVERY, of Naples, Florida, as "Grantor," and SALEM LANCE VAN EVERY, of
Charlotte, North Carolina (hereinafter called "my Trustees"),
W I T N E S S E T H:
In order to fund the trust, I deliver and assign to my
Trustees the property specified in Schedule A to this Agreement. My Trustees
acknowledge receipt of the property and agree to hold it in trust, together
with any property added to any trust, as follows:
ARTICLE I. DISPOSITION OF TRUST ESTATE DURING MY LIFETIME.
During my lifetime, my Trustees may pay or apply all or any part of the net
income or principal of this trust to or for the benefit of me and the HEINEMAN
MEDICAL RESEARCH CENTER, of Charlotte, North Carolina, in such proportions,
equal or unequal or all to one eligible beneficiary, that my Trustees consider
advisable, with no duty to equalize such payments or applications among
eligible beneficiaries. Any undistributed income shall be added to trust
principal.
In exercising its discretion, my Trustees shall give first
consideration to me, then to the HEINEMAN MEDICAL RESEARCH CENTER.
ARTICLE II. PARTIAL AND FULL TERMINATION OF TRUST. Upon the
first to occur of the following events, my Trustees shall dispose of the trust
estate as follows:
A. PARTIAL TERMINATION. Upon the April 30th of
each calendar year, my Trustees shall distribute the then remaining trust
estate to the then acting Trustees of the Nan Davis Van Every Revocable Trust
dated 4/1/92, as amended, to be added to the principal of such
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trust, or, if such trust is not then in existence, to me. Notwithstanding the
foregoing provisions of this section to the contrary, my Trustees shall retain
the property initially specified in Schedule A to this Agreement until my
death.
B. FULL TERMINATION. Upon my death, my
Trustees shall distribute the then remaining trust estate to or in trust for
the benefit of such persons or organizations, upon such conditions and terms,
as I shall direct and appoint in an inter vivos instrument filed with my
Trustees or by a Will (dated subsequent to all such inter vivos instruments)
expressly referring to and exercising this power; provided, however, that this
power shall not be exercisable to any extent for my benefit, for the benefit of
my estate, my creditors or the creditors of my estate. Any portion of the then
remaining trust estate not effectively so appointed shall be distributed to the
Trustee then acting under 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 my Personal Representatives, to be disposed of as
part of my estate.
ARTICLE III. APPOINTMENT OF FIDUCIARIES.
If SALEM LANCE VAN EVERY ceases to act as Trustee, I appoint
my son, JAMES DAVIS TOMLINSON, currently of Raleigh, North Carolina, as a
Trustee, to act together with any other then acting Trustees.
My Trustees may appoint one or more additional Trustees at
any time. Any individual Trustee may at any time appoint his or her successor
as Trustee, unless the foregoing provisions of this Agreement effectively
provide for his or her successor.
If a Trustee fails or ceases to act and the foregoing
provisions of this Agreement do not effectively provide for a successor, I may
appoint one or more successor Trustees.
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Notwithstanding any provisions in this Agreement to the
contrary, no individual (including me) 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 becomes a resident of the State of
Florida, or any corporate Trustee which becomes qualified to do (or does)
business in the State of Florida, shall cease to act as a Trustee at such time.
Any fiduciary is authorized to resign at any time without
court approval. The resignation, appointment or revocation of appointment of a
Trustee may be made by the person authorized to take such action by delivery of
an acknowledged instrument to my Trustees 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 incapacitated
person holding such power. A determination that any individual fiduciary acting
hereunder is incapacitated shall be deemed a resignation by that individual
fiduciary as of the date of the determination.
ARTICLE IV. ADMINISTRATIVE PROVISIONS.
A. IRREVOCABLE TRUST. This Agreement and any
trust created hereunder shall be irrevocable and, except as otherwise
specifically provided in this Agreement, shall not be subject to alteration or
amendment in any respect.
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B. ADDITIONS TO TRUST. Any person may add
property to any trust under this Agreement by lifetime gift or by transfer
taking effect at death, provided such property is acceptable to my Trustees.
C. SITUS OF TRUST PROPERTY. No Trustee shall
invest in real property having a situs in the State of Florida.
D. PERMISSIBLE USE OF TRUST FUNDS. Upon my
death, my Trustees may in their discretion purchase property from my estate,
make loans to my estate, and guarantee the obligations of my estate and pledge
trust property as security therefor upon whatever terms and in whatever manner
and with whatever security my Trustees consider advisable. This provision shall
not give either me or my estate any right or authority over trust property.
E. CONSIDERATION OF OTHER INCOME OF
BENEFICIARIES. In exercising their discretion to distribute trust funds to any
beneficiary, my fiduciaries may (but shall not be required to) take into
consideration any other income reasonably available to such beneficiary.
F. DISTRIBUTIONS TO MINORS. If my fiduciaries
are authorized or required to distribute property to a beneficiary who is then
a minor, and my fiduciaries do not believe that an immediate distribution is in
the beneficiary's best interests, they may instead distribute such property to
any adult caring for the beneficiary or to the beneficiary's Guardian or
Custodian under a Uniform Gifts or Transfers to Minors Act.
G. INFORMAL ACCOUNTINGS. My Trustees may
provide to each eligible income beneficiary who is not then incapacitated
statements of trust transactions at such time and in such form as they consider
advisable. If all such beneficiaries give written approval of the statement,
the statement shall be final, binding and conclusive on all persons interested
in the trust.
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H. OPTIONAL TRUSTS TO AGE TWENTY-ONE. If
property is distributable outright to a beneficiary who is then under the age
of twenty-one (21) years, my fiduciaries may hold such property in trust and
pay or apply all or any part of the net income and principal to or for the
benefit of such beneficiary, as they consider advisable. Undistributed income
shall be added to trust principal. Any remaining trust principal shall be paid
to such beneficiary when he or she attains the age of twenty-one (21) years or,
if such beneficiary dies prior to attaining such age, then to his or her
estate.
I. ELECTIONS. I authorize my fiduciaries, in
their sole discretion and without the order or approval of any court, to make
or not make any election, allocation or other discretionary decision permitted
under the provisions of any tax law in effect from time to time, and to make or
not make equitable adjustments of interests of beneficiaries in light of such
decisions. No beneficiary shall have any rights against my fiduciaries by
reason of any such decisions or adjustments. My fiduciaries may also allocate
property (or the right to receive property) which is subject to estate tax and
federal income tax as income in respect of a decedent to principal, to income,
or in part to each.
J. 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.
K. DEFINITION OF INCAPACITATED. An individual
shall be considered to be incapacitated if the individual is under a legal
disability or by reason of illness or mental or physical disability is unable
to give prompt and intelligent consideration to financial matters. The
determination as to whether an individual is incapacitated shall be made by my
Trustees other than the individual, or, if none, by the institution or
individual designated to succeed the individual as
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Trustee, who may rely conclusively upon (1) the written opinion of the
individual's primary physician, (2) the written opinion of any two physicians,
or (3) the written order of a court appointing a Conservator or Guardian of the
individual's person or property.
L. INVESTMENT COUNSEL. My fiduciaries 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; delegate to such investment counsel my fiduciaries' investment
authority; and pay such investment counsel reasonable compensation for its
services in addition to the regular compensation of my fiduciaries. My
fiduciaries may act upon or refrain from acting upon the advice of such
investment counsel in whole or in part, and to the extent my fiduciaries follow
the advice of such counsel or rely upon such investment counsel's exercise of
delegated investment authority, my fiduciaries shall not be liable for any
action taken or omitted, except in the case of willful misconduct.
M. DELEGATION. Except as otherwise provided
herein, any fiduciary may delegate to the other fiduciaries 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 fiduciaries.
N. TRUSTEE RELIEVED FROM LIABILITY. No
individual Trustee who is a descendant of mine shall be liable for any mistake
or error of judgment, or for any action taken or omitted, either by my Trustees
or by any agent or attorney employed by my Trustees, or for any loss or
depreciation in the value of the trust, except in the case of willful
misconduct.
O. 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.
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P. GOVERNING LAW. The validity, construction
and administration of this document and any trust hereunder shall be governed
by the laws of Florida.
Q. DEFINITION OF TRUSTEE. Except as otherwise
provided herein, any Trustee who acts under this Agreement may exercise all of
the rights, powers and discretions and shall be entitled to all of the
privileges and immunities granted to the named Trustee. In this Agreement, I
sometimes refer to my Trustees as "my fiduciaries." Any references in this
Agreement to my Trustees or my fiduciaries shall include (unless otherwise
expressly provided) all Trustees. No surety bond shall be required of any
Trustee.
R. LANCE, INC. STOCK. My fiduciaries are
authorized to retain and invest in, and to exercise options to purchase, any
securities, notes or other obligations of Lance, Inc. or any successor
corporation or other entity, or any corporation or other entity which is a
party to a reorganization of any such corporation or other entity, or any
corporation or other entity which is created for the purposes of holding such
securities, notes or other obligations, without regard to diversification. My
fiduciaries shall not be liable for any loss or depreciation in value resulting
from any such investment.
S. CLOSELY HELD BUSINESSES. This trust may be
funded with, or subsequently purchase or otherwise acquire, securities or other
financial interests in one or more closely held businesses (each of which is
hereinafter referred to as the "business"). I realize that the business may not
be the type of investment in which fiduciaries would normally invest estate or
trust funds. Nonetheless, my fiduciaries shall incur no liability for any loss
which may be sustained by reason of the retention, operation or sale of the
business or the exercise of any power conferred upon my fiduciaries with
respect to the business.
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My fiduciaries shall have the following powers with respect
to the business, in addition to any granted by law or elsewhere in this
document:
1. To retain and continue the business
or any interest therein for such time as they consider advisable;
2. To operate or participate in the
operation of the business in the form of a corporation, partnership or
proprietorship, or in any other form, whether or not in such form at my death;
3. To direct, control, supervise,
manage, operate or participate in the operation of the business; to serve as
officers and directors of the business; and to receive from the business
compensation for their services in addition to their compensation as
fiduciaries;
4. To delegate all or any part of
their power to supervise, manage or operate the business to such persons as
they may select, including any director, officer, or employee of the business;
5. To engage, compensate and
discharge such managers, employees, agents, attorneys, accountants, consultants
or other representatives as they consider advisable, including anyone who may
be a beneficiary or fiduciary;
6. To invest or employ in the
business, or to use as collateral for loans to the business, such other estate
or trust funds as they consider advisable;
7. To sell, liquidate or otherwise
dispose of all or any part of the business at such time or times, for such
prices and upon such terms and conditions as they consider advisable, and to
sell the business to anyone who is a beneficiary or fiduciary; and
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8. To exercise with respect to the
retention, continuance, and disposition of such business all the rights and
powers which I would have were I to make the decision at the time of such
exercise.
T. MANAGEMENT POWERS OF TRUSTEE. In addition
to any powers conferred upon them by law and without the order or approval of
any court, except as otherwise provided herein, I authorize and empower my
Trustees:
(1) To retain, acquire, or sell any variety of real or
personal property (including any discretionary common trust fund of any
corporate fiduciary acting under this document, mutual funds, covered and
uncovered stock options, insurance policies on my life 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, without any duty to distribute any asset pro rata among
beneficiaries, and to do so without regard to the income tax basis of specific
property allocated to any beneficiary, 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); (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 loans or
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guarantees; (10) to lend money to or for the benefit of any person beneficially
interested hereunder (including a guardian); (11) to employ attorneys,
accountants, investment counsel, custodians, brokers and other agents to assist
in the administration of estate or trust property and to delegate discretionary
powers (including the granting of a power of attorney and the power to be a
signer on any estate or trust financial accounts) to such persons; (12) to vote
and give proxies to vote shares of stock; (13) to make joint investments in
property, real or personal; to enter into and act as a general or limited
partner in general or limited partnerships; to establish corporations
(including limited liability companies) of any kind; and to transfer assets to
any such joint ventures, partnerships or corporations; (14) to divide any trust
into separate trusts based on the fair market value of the trust assets at the
time of the division; and (15) if there is more than one trust established
under this document, to administer such trusts as a single fund.
U. DISCRETIONARY POWERS HELD BY FIDUCIARIES,
AGENTS, ETC. Notwithstanding the foregoing provisions of this Agreement to the
contrary, no person who is a resident of the State of Florida (including me),
and no entity, other than a qualified bank or savings association, shall have
the power to manage or control assets constituting the trust estate. For
purposes of this Agreement, (1) the terms "manage" or "control" shall have the
meanings ascribed to them under Chapter 199, Florida Statutes, and shall
include the discretionary authority to make decisions relating to the
retention, sale, purchase, investment or reinvestment of securities or other
property constituting the trust estate; and (2) a qualified bank or savings
association is a bank or savings association (as defined in Section 220.62,
Florida Statutes) which may act as an agent or other fiduciary (other than as a
co-Trustee) of my Trustees and be granted the right to manage or control all or
any portion of the trust estate without thereby creating a Florida taxable
situs (within the meaning of Section 199.175, Florida Statutes) for the trust
estate. Furthermore, I
10
<PAGE> 18
retain no right to veto or rescind the actions of my Trustees with respect to
the assets of the trust estate.
V. EXECUTION AND IDENTIFICATION OF AGREEMENT.
This Agreement may be executed in any number of counterparts, each of which so
executed shall be deemed an original and may be referred to as the "Nan Davis
Van Every Florida Intangible Trust dated 11/17/98."
IN WITNESS WHEREOF, NAN DAVIS VAN EVERY, the Grantor, has
hereunto set her hand and seal as of the day and year first above written.
/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, in the presence of each of us, who at her request, in her presence and
in the presence of each other, have hereunto subscribed our names as witnesses
as of the day and year first above written.
/s/ Jo Parsons
-------------------------------------------
Witness 311 Cox Lake Road
Stanley, NC 28164
/s/ Carolyn M. DeYoung
-------------------------------------------
Witness 9701 Marker Drive
Charlotte, NC 28227
STATE OF NORTH CAROLINA )
) ss:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me on ,
1998, by NAN DAVIS VAN EVERY, who is personally known to me or who has produced
a driver's license as identification.
/s/ Robert S. Carles
-------------------------------------------
Notary Public
My commission expires 2-13-2000
11
<PAGE> 19
IN WITNESS WHEREOF, SALEM LANCE VAN EVERY, the Trustee, has
hereunto set his hand and seal as of the 17th day of November, 1998.
/s/ S. Lance Van Every
-------------------------------------------
SALEM LANCE VAN EVERY
Trustee
STATE OF NORTH CAROLINA )
) ss:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me on ,
1998, by SALEM LANCE VAN EVERY, who is personally known to me or who has
produced a driver's license as identification.
/s/ Robert S. Carles
-------------------------------------------
Notary Public
My Commission expires 2-13-2000
12
<PAGE> 20
SCHEDULE A
FIVE DOLLARS $ 5.00
<PAGE> 21
EXHIBIT D
April 28, 1998
Mr. S. Lance Van Every
4010 Seminole Court
Charlotte, North Carolina 28210
Dear Lance:
I hereby agree to purchase from S. Lance Van Every (SLVE) 24,000
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 April
29, 1998 against receipt of the Shares.
I understand that the Shares are shares received as a gift from SLVE'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.
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
<PAGE> 22
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 SLVE selling the Shares to me
rather than on the open market and the payment by him to me of $1,000, that
SLVE 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 November 30, 1998 and April 27, 2008, 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 SLVE.
Very truly yours,
/s/ Nan D. Van Every
-----------------------------------
Nan D. Van Every
cc: Lance, Inc.
Post Office Box 32368
Charlotte, NC 28232
2
