As filed with the Securities and Exchange Commission on May 10, 1996
Registration No. 333-2005
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMENDMENT NO. 1
__________________
SAVANNAH FOODS
& INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 58-1089367
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
P.O. Box 339
Savannah, Georgia 31402-0339
(912) 234-1261
(Address, including zip code, and telephone number
including area code, of registrant's executive offices)
___________________________
Gregory H. Smith
Senior Vice President,
Chief Financial Officer
and Treasurer
Savannah Foods & Industries, Inc.
P.O. Box 339
Savannah, Georgia 31402
(912) 234-1261
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
___________________________
With a copy to:
Daniel E. Stoller
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
(212) 735-3000
___________________________
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the registration statement becomes
effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box. ( )
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. (X)
______________________
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which specif-
ically states that this Registration Statement shall thereafter
become effective in accordance with Section 8(a) of the Securi-
ties Act of 1933 or until this Registration Statement shall
become effective on such date as the Commission, acting pursuant
to said Section 8(a), may determine.
PROSPECTUS
2,500,000 SHARES
SAVANNAH FOODS
& INDUSTRIES, INC.
COMMON STOCK
This Prospectus relates to up to 2,500,000 shares (the "Shares")
of the common stock, par value $0.25 per share (the "Common
Stock"), of Savannah Foods & Industries, Inc., a Delaware corpo-
ration (the "Company"), that may be sold from time to time by the
trustee of the Savannah Foods & Industries, Inc. Benefit Trust
(the "Benefit Trust").
The Common Stock offered hereby may be sold from time to time in
one or more of the following transactions: (a) to underwriters
who will acquire the shares for their own account and resell them
in one or more transactions, including negotiated transactions,
at a fixed price or at varying prices determined at the time of
sale; any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be
changed from time to time; (b) through brokers or dealers, acting
as principal or agent, in transactions (which may involve block
transactions) on the New York Stock Exchange, in special offer-
ings, exchange distributions pursuant to the rules of the appli-
cable exchanges or in the over-the-counter market, or otherwise,
at market prices prevailing at the time of sale, at prices
related to such prevailing market prices, at negotiated prices or
at fixed prices; or (c) directly through brokers or agents in
private sales at negotiated prices. Underwriters participating
in any offering may receive underwriting discounts and commis-
sions and discounts or concessions may be allowed or reallowed or
paid to dealers, and brokers or agents participating in such
transactions may receive brokerage or agent's commissions or
fees. To the extent required, the aggregate amount of Common
Stock being offered and the terms of the offering, the names of
any such agents, dealers or underwriters and any applicable
commission with respect to a particular offer will be set forth
in an accompanying Prospectus Supplement.
The aggregate proceeds to the Benefit Trust from the sale of the
Common Stock will be the selling price of the Common Stock. The
Company will pay all of the expenses of this offering, including
commissions and discounts of agents, dealers or underwriters.
Such expenses, excluding commissions and discounts, are estimated
to be approximately $51,767. None of the proceeds from the sale
of the Common Stock offered hereby will be received for the
benefit of, or retained by, the Company.
The Company, or one of its subsidiaries, as the case may be, has
agreed to indemnify the trustee of the Benefit Trust against
certain liabilities that may arise in connection with their
performance of duties pursuant to the Benefit Trust. See "Plan
of Distribution".
The trustee of the Benefit Trust, the Benefit Trust and any
agents, dealers or underwriters that participate in the distribu-
tion of the Common Stock offered hereby may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933,
as amended (the "Securities Act"), and any commissions received
by them and any profit on the resale of the Common Stock pur-
chased by them may be deemed underwriting commissions or dis-
counts under the Securities Act.
SEE "RISK FACTORS" FOR A DISCUSSION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON
STOCK OFFERED HEREBY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1996
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy state-
ments, and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements,
and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549; as
well as at the Regional Offices of the Commission at 7 World
Trade Center, New York, New York 10048; and 500 West Madison
Street, Chicago, Illinois 60661. Copies of such material can be
obtained (at prescribed rates) from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549. The Common Stock is listed on the New York Stock Ex-
change. Reports, proxy statements, and other information con-
cerning the Company can be inspected at the office of such
Exchange, located at 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of a Registration State-
ment filed by the Company with the Commission under the Securi-
ties Act. This Prospectus omits certain of the information
contained in the Registration Statement, and reference is hereby
made to the Registration Statement and related exhibits for
further information with respect to the Company and the Shares
offered hereby. Any statements contained herein concerning the
provisions of any document are not necessarily complete, and, in
each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in
its entirety by such reference.
The Company is incorporated under the laws of Delaware. Its
principal executive offices are located at 2 East Bryan Street,
Savannah, Georgia 31401 (telephone (912) 234-1261).
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission pursuant
to the Exchange Act are incorporated herein by reference and
shall be deemed to be a part hereof:
1. Annual Report on Form 10-K for the fiscal year ended
October 1, 1995.
2. Proxy Statement dated January 11, 1996, relating to the
Company's 1996 Annual Meeting of Stockholders.
3. Quarterly Report on Form 10-Q for the period ended
December 31, 1995.
All documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of this Prospectus and prior to the termination of the
offering of the Shares covered by this Prospectus are deemed to
be incorporated by reference herein and shall be a part hereof
from their respective dates of filing.
Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for
purposes of this Prospectus to the extent that a statement
contained in this Prospectus or in any other subsequently filed
document that also is incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or super-
seded, to constitute a part of this Prospectus.
The Company will provide, without charge, to each person,
including any beneficial owner, to whom a copy of this Prospectus
is delivered, upon written or oral request, a copy of any and all
of the information that has been incorporated by reference in
this Prospectus, but not including exhibits to such information
unless such exhibits are specifically incorporated by reference
into the information that this Prospectus incorporates. Requests
for copies of such information should be directed to Vice Presi-
dent -Administration, Savannah Foods & Industries, Inc., Post
Office Box 339, Savannah, Georgia 31402-0339.
THE COMPANY
The Company was incorporated in Delaware on February 19,
1969, as the successor to Savannah Sugar Refining Corporation,
which was originally incorporated in New York in 1916.
The Company and its subsidiaries collectively comprise one
business segment and are engaged in the production, marketing,
and distribution of food products, primarily refined sugar.
Effective October 2, 1995, the first day of fiscal 1996, the
Company reorganized the business structure of several of its
subsidiaries. This reorganization did not affect the overall
business of the Company, but was done primarily for internal
management purposes.
The Company and its wholly-owned subsidiaries, Savannah
Foods Industrial, Inc. and Dixie Crystals Brands, Inc., are
engaged in the refining and marketing of a complete line of bulk
and liquid sugars and sugar products, including edible molasses,
liquid animal feeds and corn syrup blends. They also produce and
market a complete line of packaged sugars and portion control
items consisting of sugar envelopes, artificial sweeteners, salt,
pepper, non-dairy creamer, and certain other products. Industri-
al and grocery products are marketed primarily in the southeast-
ern portion of the United States, Louisiana, and Texas, but are
also widely distributed into other states generally east of the
Mississippi and south of New England. Foodservice products are
marketed throughout the United States. Products are marketed
under the trade names Dixie Crystals(R), Colonial(R), Evercane(R), and
Savannah Gold(R), but are also sold under the Company's other
controlled labels and under customers' private label brands. The
Company's saccharin-based sweetener is marketed under the trade
name Sweet Thing(R) and its aspartame-based sweetener is marketed
under the trade name Sweet Thing II(R). These products are market-
ed both by means of direct sales and through brokers and are
primarily distributed directly to the customer by common carrier
truck or railcar.
Michigan Sugar Company, a wholly-owned subsidiary of the
Company, and its wholly-owned subsidiary, Great Lakes Sugar
Company, are engaged in the processing of sugar beets into
refined sugar and the production of beet pulp and molasses. The
refined sugar is marketed primarily in the states of Michigan and
Ohio, but is also distributed in the midwestern and eastern parts
of the United States. Packaged sugar is marketed under the trade
name PIONEER(R), but is also sold under customers' private label
brands. These products are marketed both by means of direct
sales and through brokers and are primarily distributed directly
to the customer by common carrier truck or railcar. Most of the
beet pulp is pelletized and sold for export. The balance is sold
in the domestic market. The majority of the molasses is sold to
the Company's beet molasses desugarization facility for further
processing to recover additional sugar.
King Packaging Company, Inc., a wholly-owned subsidiary of
Dixie Crystals(R) Brands, Inc., packs custom made meal kits for the
food service industry and provides complementary products to the
portion control products manufactured at the Company's other
locations. These products are marketed to the food service trade
throughout the United States both by means of direct sales and
through brokers and are primarily shipped directly to customers
by common carrier truck.
Raceland Sugars, Inc., a wholly-owned subsidiary of Savannah
Foods Industrial, Inc., operates a raw sugar mill and is engaged
in the business of producing raw sugar which is marketed in the
Louisiana area. Additionally, the by-products, molasses and
bagasse, are currently sold in the domestic market.
RISK FACTORS
The Company's business and results of operations are sub-
stantially affected by market factors, principally the domestic
prices for refined sugar and raw sugar cane. These market
factors are influenced by a variety of forces, including weather
conditions, competition, and United States farm and trade poli-
cies.
The principal legislation presently affecting the domestic
sugar industry is the Food, Agriculture, Conservation and Trade
Act (the "Act"), which became effective October 1, 1991, and
governs the sugar price support program for sugar cane and sugar
beets. The domestic marketplace demands approximately 9.5
million tons of refined sugar annually. To meet this demand,
sugar beets and sugar cane are grown domestically, which are
inadequate supplies to meet consumption demands. As a result, a
restriction is placed on the quantity of foreign raw sugar that
is imported into the country to balance the supply for the
marketplace. The imported raw sugar restriction is referred to
as the tariff-rate quota which was authorized under the General
Agreement on Tariff and Trade. To maintain a viable cane sugar
refining industry and to ensure minimum raw sugar market for the
traditional offshore suppliers of raw sugar to the United States,
the minimum tariff-rate quota is 1,250,000 short tons raw value
annually. The quota can be increased from the annual minimum
amount to compensate for domestic crop shortfalls. The quota can
also be utilized to maintain a certain level of domestic raw
sugar trading prices.
The administration of the sugar program described above is
primarily the responsibility of the United States Department of
Agriculture (the "USDA"). It is difficult to predict how the
USDA will administer the sugar program which, together with
market dynamics, could positively or negatively affect the
profitability of the Company.
The sugar program, together with all farm legislation, is
currently being reviewed for change, but changes in current
legislation cannot be predicted. Additionally, the effectiveness
of the future administration of the sugar program cannot be
predicted. Consequently, the Company is unable to predict the
outcome of future legislative changes and administration changes,
and the effect these factors may have on the result of operations
of the Company.
PLAN OF DISTRIBUTION
On March 14, 1996, the Company and Wachovia Bank of North
Carolina, N.A., as trustee of the Benefit Trust, entered into a
trust agreement creating the Benefit Trust. The Company sold
2,500,000 shares of Common Stock to the Benefit Trust in exchange
for a promissory note in the amount of $26,875,000 (the "Promis-
sory Note").
The Benefit Trust was created to prefund certain of the
Company's obligations under its employee benefit plans, including
deferred compensation plans, supplemental executive retirement
plans, employee stock ownership plans and defined benefit pension
plans (collectively, the "Benefit Plans"). Shares of Common Stock
will be held in the Benefit Trust and will constitute collateral
for the loan evidenced by the Promissory Note. On each date on
which a payment or prepayment is made of any principal amount of
the Promissory Note, the trustee of the Benefit Trust will
release from collateral a certain number of Shares and will apply
them, along with any other Benefit Trust assets to (i) the
payment of indebtedness to the Company, (ii) the satisfaction of
the Company's obligations under the Benefit Plans, (iii) the
reimbursement of payments made by the Company in satisfaction of
such obligations, or (iv) the acquisition of additional equity
securities of the Company.
This Prospectus relates to the shares of Common Stock owned
by the Benefit Trust. The number of shares of Common Stock that
will be sold from time to time in the market by the trustee of
the Benefit Trust will depend upon a number of factors, including
the number of participants, and the forms of benefits and level
of benefits to be provided under such Benefit Plans, the market
price of the Common Stock and the benefit payment cycles under
the various Benefit Plans.
The Company will pay all of the expenses incident to the
registration, offering and sale of the Common Stock to the
public, including commissions and discounts of agents, dealers or
underwriters. The Company or one of its subsidiaries, as the
case may be, has agreed to indemnify the trustee of the Benefit
Trust against certain liabilities that may arise in connection
with its performance of duties pursuant to the Benefit Trust.
The Common Stock offered hereby may be sold from time to
time in one or more of the following transactions: (a) to
underwriters who will acquire the shares for their own account
and resell them in one or more transactions, including negotiated
transactions, at a fixed price or at varying prices determined at
the time of sale; any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time; (b) through brokers or dealers,
acting as principal or agent, in transactions (which may involve
block transactions) on the New York Stock Exchange, in special
offerings, exchange distributions pursuant to the rules of the
applicable exchanges or in the over-the-counter market, or
otherwise, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices, at negotiated
prices or at fixed prices; or (c) directly or through brokers or
agents in private sales at negotiated prices. Underwriters
participating in any offering may receive underwriting discounts
and commissions and discounts or concessions may be allowed or
reallowed or paid to dealers, and brokers or agents participating
in such transactions may receive brokerage or agent's commissions
or fees. To the extent required, the aggregate amount of the
Common Stock being offered and the terms of the offering, the
names of any such agents, brokers, dealers or underwriters and
any applicable commission with respect to a particular offer will
be set forth in an accompanying Prospectus Supplement.
The underwriters, brokers, dealers or agents who participate
in the sale of the Shares may be deemed "underwriters" within the
meaning of Section 2(11) of the Securities Act and the commission
paid or discounts allowed to any of such underwriters, brokers,
dealers or agents in addition to any profits received on resale
of the Shares if any such underwriters, brokers, dealers or
agents should purchase any Shares as a principal may be deemed to
be underwriting discounts or commissions under the Securities Act
of 1933.
Certain of the underwriters, dealers, brokers or agents may
have other business relationships with the Company and its
affiliates in the ordinary course of business.
Under applicable rules and regulations of the Exchange Act,
any person engaged in the distribution of the Shares may not be
simultaneously engaged in market making activities with respect
to the Common Stock for a period of nine business days prior to
the later of the commencement of offers or sales of the Shares to
be distributed and the time such person becomes a participant in
the distribution. In addition to and without limiting the
generality of the foregoing, the Benefit Trust, the Company and
any other persons participating in such distribution will be
subject to applicable provisions of the Exchange Act and rules
and regulations thereunder, including without limitation Rules
10b-6 and 10b-7, which provisions may limit the timing of pur-
chases and sales of shares of Common Stock by the Benefit Trust,
the Company and any other such person. All of the foregoing may
limit the marketability of the Shares and the ability of any
underwriter, broker, dealer or agent to engage in market making
activities.
THE SELLING STOCKHOLDER
The 2,500,000 shares of Common Stock offered in this Pro-
spectus are owned by the Benefit Trust.
The trustee of the Benefit Trust is the beneficial owner of
2,500,000 shares or approximately 8.7% of the Common Stock. The
trustee of the Benefit Trust has sole voting and investment power
with respect to the Common Stock held in the Benefit Trust. The
Company may, pursuant to the terms of the trust agreement creat-
ing the Benefit Trust, direct the trustee to make distributions
from the assets of the Benefit Trust to the Benefit Plans main-
tained by the Company in satisfaction of the Company's obliga-
tions under those plans.
DESCRIPTION OF COMMON STOCK
The following summary is subject to the detailed provisions
of, and is qualified in its entirety by reference to, the
Company's Certificate of Incorporation and By-Laws, copies of
which have been incorporated by reference as exhibits to the
Registration Statement of which this Prospectus is a part. The
authorized capital stock of the Company consists of 64 million
shares of Common Stock, par value $.25 per share, and 1 million
shares of preferred stock, par value $.50 per share.
COMMON STOCK
The Company's authorized common stock consists of 64 million
shares of Common Stock, par value $.25 per share. As of December
31, 1995, there were 26,238,196 shares of Common Stock outstand-
ing.
Voting Rights
Each share of Common Stock entitles the holder thereof to
one vote in all matters submitted to a vote of stockholders. The
Common Stock does not have cumulative voting rights, which means
that holders of a majority of the outstanding Common Stock voting
for the election of directors can elect all directors then being
elected.
Dividends
Subject to the rights of any preferred stock which may be
issued by the Board of Directors, each share of Common Stock has
an equal and ratable right to receive dividends to be paid from
the Company's assets legally available therefor when, as and if
declared by the Board of Directors.
Liquidation
In the event of the dissolution, liquidation or winding up
of the Company, the holders of Common Stock are entitled to share
equally and ratably in the assets available for distribution
after payments are made to the Company's creditors and to the
holders of any preferred stock of the Company that may be out-
standing at the time.
Other
The holders of shares of Common Stock have no preemptive,
subscription, redemption or conversion rights and are not liable
for further call or assessment. All of the outstanding shares of
Common Stock are fully paid and nonassessable.
Registrar and Transfer Agent
Wachovia Bank of North Carolina, N.A. acts as Registrar and
Transfer Agent for the Common Stock.
PREFERRED STOCK
The Company's Certificate of Incorporation provides that the
Company may issue up to 1 million shares of preferred stock and
the Board of Directors of the Company is authorized, without
further stockholder action, to divide any or all shares of
authorized preferred stock into series and to fix the redemption
and liquidation value, dividend rate, voting rights, conversion
privilege, preferences, maturity dates and other qualifications,
limitations or restrictions. As of the date of this Prospectus,
the Board of Directors of the Company has not authorized any
series of preferred stock and there are no plans, agreements or
understandings for the issuance of any shares of preferred stock.
CERTIFICATE OF INCORPORATION AND BY-LAWS
Certain provisions of the Company's Certificate of Incorpo-
ration and By-Laws could make more difficult non-negotiated
acquisitions of the Company. The Board of Directors believes
that these provisions will help to assure the continuity and
stability of the Board of Directors and the business strategies
and policies of the Company as determined by the Board of Direc-
tors. These provisions could have the effect, however, of
discouraging a third party from making a tender offer or other-
wise attempting to obtain control of the Company even though such
an attempt might be beneficial to the Company and its stockhold-
ers.
Pursuant to the Company's By-Laws, the Board of Directors of
the Company is divided into three classes serving staggered
three-year terms. Directors can be removed from office with or
without cause by the affirmative vote of 75% of the holders of
the outstanding shares of capital stock entitled to vote gener-
ally in an election of directors. Alternatively, any director
may be removed for cause at any time by the affirmative vote of a
majority of the directors then in office. Vacancies on the Board
of Directors may be filled only by vote of the remaining direc-
tors and not by the stockholders.
The Certificate of Incorporation provides that any action
required or permitted to be taken by the stockholders of the
Company may be effected only at an annual or special meeting of
stockholders. The Company's By-Laws provide that special meet-
ings of stockholders may be called only by the chairman, the
president or by order of the Board of Directors.
The By-Laws establish an advance notice procedure for the
nomination, other than by or at the direction of the Board of
Directors, of candidates for election as directors at annual or
special meetings of stockholders, as well as for other stockhold-
er proposals to be considered at annual meetings of stockhold-
ers. In general, (a) notice of intent to nominate a director or
raise business at annual meetings must be received by the Company
not less than 60 nor more than 90 days prior to the anniversary
date of the previous year's annual meeting; provided, however,
that in the event that the annual meeting is called for a date
that is not within thirty days before or after such anniversary
date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth day
following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs; and (b) notice
of intent to nominate a director at special meetings must be
received by the Company not later than the close of business on
the tenth day following the day on which notice of the date of
the special meeting was mailed or public disclosure of the date
of the special meeting was made, whichever first occurs. All
notices must contain certain specified information concerning the
person to be nominated or the matters to be brought before the
meeting and concerning the stockholder submitting the proposal.
The foregoing summary is qualified in its entirety by the
provisions of the Company's Certificate of Incorporation and By-
Laws, copies of which have been incorporated by reference as
exhibits to the Registration Statement of which this Prospectus
constitutes a part.
LEGAL MATTERS
The validity of the issuance of the shares of Common Stock
offered hereby has been passed upon for the Company by Skadden,
Arps, Slate, Meagher & Flom.
EXPERTS
The financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K for the year ended
October 1, 1995, have been so incorporated in reliance on the
report of Price Waterhouse LLP, independent accountants, given on
the authority of said firm as experts in auditing and accounting.
No person has been authorized to
give any information or to make
any representation not contained
in this Prospectus and, if given
or made, such information or rep-
resentation must not be relied
upon as having been authorized by
the Company. This Prospectus does
not constitute an offer to sell or
a solicitation of an offer to buy
any of the securities offered
hereby in any jurisdic tion to any SAVANNAH FOODS &
person to whom it is unlawful to INDUSTRIES, INC.
make such offer in such jurisdic-
tion. Neither the delivery of 2,500,000 SHARES
this Prospectus nor any sale made
hereunder shall, under any circum- Common Stock
stances, create any implication
that the information herein is
correct as of any time subsequent
to the date hereof or that there
has been no change in the affairs
of the Company since such date.
_____________________ PROSPECTUS
TABLE OF CONTENTS PAGE
AVAILABLE INFORMATION....... 5
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE .... 5
THE COMPANY ................ 6
, 1996
RISK FACTORS ............... 7
PLAN OF DISTRIBUTION........ 8
THE SELLING STOCKHOLDER...... 9
DESCRIPTION OF COMMON STOCK.. 9
LEGAL MATTERS ............... 11
EXPERTS .................... 12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission filing fee . . . $ 9,267
Accounting fees and expenses . . . . . . . . . . . . . 7,500*
Legal fees and expenses . . . . . . . . . . . . . . . . 30,000*
Miscellaneous . . . . . . . . . . . . . . . . . . . . . 5,000*
Total . . . . . . . . . . . . . . . . . . . . . . . . 51,767*
___________
*Estimated
Item 15. Indemnification of Directors and Officers
Subsection (b)(7) of Section 102 of the General Corporation
Law of the State of Delaware (the "GCL") empowers a corporation
in its original certificate of incorporation or an amendment
thereto validly approved by stockholders to eliminate or limit
the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as
a director, provided that such provision cannot eliminate or
limit the liability of a director for (i) breach of his duty of
loyalty, (ii) acts or omissions not in good faith or which
involve intentional misconduct or knowing violation of law, (iii)
payment of a stock dividend or approval of a stock repurchase
which was illegal under Section 174 of the GCL or (iv) any
transaction from which he derived an improper personal benefit.
Reference is made to Section 145 of the GCL relating to the
indemnification of directors and officers of a Delaware corpora-
tion.
Article Ninth of the Company's Amended Certificate of
Incorporation provides for limitation of liability of directors,
and indemnification of directors, officers and others as follows:
NINTH: No Director shall be personally liable to
the Corporation or any stockholder for monetary damages
for breach of fiduciary duty as a Director, except for
any matter in respect of which such Director shall be
liable under Section 174 of Title 8 of the Delaware
Code (relating to the Delaware General Corporation Law)
or any amendment thereto or successor provision thereto
or shall be liable by reason that, in addition to any
and all other requirements for such liability, he (i)
shall have breached his duty of loyalty to the Corpora-
tion or its stockholders, (ii) shall not have acted in
good faith or, in failing to act, shall not have acted
in good faith, (iii) shall have acted in a manner
involving intentional misconduct or a knowing violation
of law or, in failing to act, shall have acted in a
manner involving intentional misconduct or a knowing
violation of law, or (iv) shall have derived an improp-
er personal benefit. Neither the amendment nor repeal
of this Article Ninth, nor the adoption of any provi-
sion of the Certificate of Incorporation inconsistent
with this Article Ninth shall eliminate or reduce the
effect of this Article Ninth in respect of any matter
occurring, or any cause of action, suit, or claim that,
but for this Article Ninth would accrue or arise, prior
to such amendment.
Article VI of the Company's By-Laws provides that the
Corporation shall, to the fullest extent permitted by Section 145
of the GCL, indemnify any and all persons whom it shall have
power to indemnify under said Section from and against any and
all of the expenses, liabilities or other matters referred to in,
or covered by said Section.
Item 16. Exhibits
The following exhibits are filed as part of this Registra-
tion Statement:
Exhibit No. Description
3(i)* Certificate of Incorporation of the Company with
Amendments adopted through May 24, 1990.
3(ii)* By-Laws of the Company.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom
(included in Exhibit 5.1).
99.1 Benefit Trust Agreement.
* Previously filed.
Item 17. Undertakings
(a) The Company hereby undertakes:
1. To file, during any period in which offers or
sales are being made, a post-effective amendment to this regis-
tration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most re-
cent post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set
forth in the registration statement. Notwith-
standing the foregoing, any increase or de-
crease in volume of securities offered (if
the total dollar value of securities offered
would not exceed that which was registered)
and any deviation from the low or high and of
the estimated maximum offering range may be
reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume
and price represent no more than 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of Regis-
tration Fee" table in the effective registra-
tion statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration state-
ment;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the Company pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
2. That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securi-
ties at that time shall be deemed to be the initial bona fide
offering thereof.
3. To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing
of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Company pursuant to the provisions
described under Item 15 above, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnifica-
tion is against public policy as expressed in the Securities Act,
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this amendment to its registration
statement to be signed on its behalf by the undersigned, thereun-
to duly authorized, in Savannah, Georgia on this 9th day of
May, 1996.
SAVANNAH FOODS & INDUSTRIES, INC.
By /s/ WILLIAM W. SPRAGUE
---------------------------
William W. Sprague
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of
1933, this amendment has been signed below by the following persons
in the capacities indicated on the 9th day of May, 1996.
Signature Title
/s/ WILLIAM W. SPRAGUE, III
_______________________________
William W. Sprague, III President and Chief
Executive Officer
/s/ C. RICHARD DONNELLY
_______________________________
C. Richard Donnelly Senior Vice President
President - Savannah
Foods Industrial, Inc.
/s/ GREGORY H. SMITH
_______________________________
Gregory H. Smith Senior Vice President
Chief Financial Officer
and Treasurer
/s/ F. SPRAGUE EXLEY
________________________________
F. Sprague Exley Senior Vice President Human
Resources and Administration
and Assistant Secretary
/s/ JAMES M. KELLY
________________________________
James M. Kelley Senior Vice President
President - Dixie Crys-
tals(R) Brands, Inc.
/s/ DAVID H. ROUCHE
_________________________________
David H. Roche Senior Vice President
President and Chief Oper-
ating Officer -Michigan
Sugar Company
/s/ BENJAMIN A. OXNARD, JR.
________________________________
Benjamin A. Oxnard, Jr. Senior Vice President - Raw
Sugar
/s/ J. ERIC STORY Corporate Controller
_________________________________
J. Eric Story
/s/ DALE C. CRITZ
__________________________________
Dale C. Critz Director
/s/ ARTHUR M. GIGNILLIAT, JR.
__________________________________
Arthur M. Gignilliat, Jr. Director
/s/ ROBERT S. JEPSON, JR.
__________________________________
Robert S. Jepson, Jr. Director
/s/ ARNOLD TENENBAUM
__________________________________
Arnold Tenenbaum Director
/s/ W. WALDO BRADLEY
___________________________________
W. Waldo Bradley Director
/s/ JOHN D. CARSWELL
___________________________________
John D. Carswell Director
___________________________________
Hugh M. Tarbutton Director
/s/ R. EUGENE CARTLEDGE
____________________________________
R. Eugene Cartledge Director
____________________________________
Lee B. Durham, Jr. Director
/s/ ROBERT L. HARRISON
____________________________________
Robert L. Harrison Director
EXHIBIT INDEX
Exhibit No. Description
3(i)* Certificate of Incorporation with Amendments
adopted through May 24, 1990.
3(ii)* By-Laws of the Company.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom
(included in Exhibit 5.1)
99.1 Benefit Trust Agreement.
* Previously filed.
EXHIBIT 5.1
April 29, 1996
Savannah Foods & Industries, Inc.
2 East Bryan Street
Savannah, Georgia 31401
Re: Savannah Foods & Industries, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to Savannah Foods &
Industries, Inc., a Delaware corporation (the "Company"), in
connection with the public offering by the Savannah Foods &
Industries, Inc. Benefit Trust (the "Benefit Trust") of up to
2,500,000 shares (the "Shares") of the Company's common stock,
par value $0.25 per share (the "Common Stock"), which are the
subject matter of a registration statement on Form S-3 (No. 333-
02005)(the "Registration Statement") filed on March 27, 1996 with
the Securities and Exchange Commission (the "Commis sion") under
the Securities Act of 1933, as amended (the "Act").
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined
originals or copies, certified or otherwise identified to our
satisfaction, of (i) the Registration Statement; (ii) the Benefit
Trust Agreement, dated as of March 14, 1996, between the Company
and Wachovia Bank of North Carolina, N.A., as trustee (the
"Trustee"); (iii) the Stock Purchase Agreement, dated as of March
14, 1996, between the Company and the Trustee, (iv) a specimen
certificate representing the Common Stock; (v) the Certificate of
Incorporation of the Company, as presently in effect; (vi) the
By-Laws of the Company, as presently in effect; and (vii) certain
resolutions of the Board of Directors of the Company relating to
the issuance and sale of the Shares and related matters. We have
also examined originals or copies, certified or otherwise identi-
fied to our satisfaction, of such records of the Company and such
agreements, certificates of public officials, certificates of
officers or other representatives of the Company and others, and
such other documents, certificates and records as we have deemed
necessary or appropriate as a basis for the opinions set forth
herein.
In our examination, we have assumed the legal capacity
of all natural persons, the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified, conformed or photostatic copies and the authentici-
ty of the originals of such latter documents. In making our
examination of documents executed or to be executed by parties
other than the Company, we have assumed that such parties had or
will have the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and
execution and delivery by such parties of such documents and the
validity and binding effect thereof. As to any facts material to
the opinions expressed herein which we have not independently
established or verified, we have relied upon statements and
representations of officers and other representatives of the
Company and others.
Members of our firm are admitted to the bar in the
State of Delaware, and we do not express any opinion as to the
laws of any other jurisdiction.
Based upon and subject to the foregoing, we are of the
opinion that the Shares have been duly authorized and validly
issued and are fully paid and nonassessable.
We hereby consent to the filing of this opinion with
the Commission as an exhibit to the Registration Statement. We
also consent to the reference to our firm under the caption
"Legal Matters" in the Registration Statement. In giving this
consent, we do not thereby admit that we are included in the
category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Commission.
Very truly yours,
/s/ SKADDEN, ARPS, SLATE,
MEAGHER & FLOM
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on
Form S-3 of our report dated November 17, 1995 appearing on page
14 of Savannah Foods & Industries, Inc.'s Annual Report on Form
10-K for the year ended October 1, 1995. We also consent to the
references to us under the heading "Experts" in such Prospectus.
Price Waterhouse LLP
Atlanta, Georgia
May 10, 1996
EXHIBIT 99.1
SAVANNAH FOODS & INDUSTRIES, INC.
BENEFIT TRUST AGREEMENT
BENEFIT TRUST AGREEMENT ("Trust Agreement"), dated
March 14, 1996, by and between Savannah Foods & Industries, Inc.,
a Delaware corporation (the "Company"), and Wachovia Bank of
North Carolina, N.A., as trustee of the Trust created hereby (the
"Trustee").
WHEREAS, the Company and its subsidiaries and affili-
ates (collectively, the "Corporation") are or may become obligat-
ed in respect of their existing compensation and benefit plans,
agreements, programs and arrangements listed on Exhibit A at-
tached hereto and such existing and future plans, agreements,
programs and arrangements as may hereafter be listed on said
Exhibit A (the plans, agreements, programs and arrangements
listed on said Exhibit A from time to time being collectively
referred to herein as the "Plans") to make payments to or contri-
butions on behalf of past, present or future employees or their
beneficiaries; and
WHEREAS, for purposes of providing a source of funds
for the satisfaction, in whole or in part, of the obligations of
the Corporation under the Plans, the Company desires to establish
a trust (the "Trust"), which is intended to constitute a grantor
trust within the meaning of section 671 of the Internal Revenue
Code of 1986, as amended (the "Code"), the assets of which shall
be subject to the claims of the Company's existing or future
creditors;
NOW, THEREFORE, in consideration of the mutual agree-
ments contained herein and for other good and valuable consider-
ation, the parties hereto agree as follows:
ARTICLE I.
PURPOSE OF THE TRUST
SECTION 1.1 Purpose. The purpose of the Trust is to
hold equity securities of the Company ("SF Securities") or other
property as herein provided as a source of funds to satisfy the
Corporation's obligations under the Plans. The Corporation shall
continue to be liable to make all payments required to be made by
the Corporation under the terms of the Plans to the extent such
payments have not been made pursuant to this Trust Agreement.
Distributions made from the Trust in respect of the Plans
pursuant to Section 3.1 shall, to the extent of such distribu-
tions, satisfy the Corporation's obligations under the Plans.
ARTICLE II.
TRUST AND THE TRUST CORPUS
SECTION 2.1 Delivery of Funds and Common Stock. (a)
Concurrently with the execution of this Trust Agreement, the
Company is selling to the Trustee 2,500,000 shares (the "Acquired
Shares") of common stock of the Company, par value $0.25 per
share ("Common Stock"), pursuant to the terms of a Stock Purchase
Agreement, dated the date hereof, between the Company and the
Trustee (the "Stock Purchase Agreement"), such Acquired Shares
to constitute collateral for the repayment of the Note (as defined
below) until released from collateral as provided herein and
otherwise to be administered and disposed of by the Trustee as
provided herein. Concurrently with the execution of this Trust
Agreement, and pursuant to the terms of the Stock Purchase Agreement,
the Trustee, at the direction of the Company, is delivering to the
Company, on behalf of the Trust, a Note (the "Note") of the Trust
in the original principal amount of $26,875,000, in payment of
the purchase price for the Acquired Shares.
(b) The Company may sell or otherwise deliver to the
Trustee additional amounts of cash or Cash Equivalents (as
defined in Section 2.3 hereof) or SF Securities to be held in
trust hereunder; provided, however, that the Company shall be
obligated to make the contributions specified in Section 2.2
hereof.
SECTION 2.2 Contributions to Repay Trust Indebtedness.
The Company shall contribute to the Trust in cash an amount
which, when added to cash dividends received by the Trust in
respect of Acquired Shares (or other SF Securities, as the case
may be) and not previously applied under this Section 2.2, shall
enable the Trustee to make all payments of principal and interest
due under the Note (or other indebtedness of the Trust relating
to the acquisition of SF Securities, as the case may be) on a
timely basis or to make prepayments of such principal or inter-
est. The Trustee shall apply all dividends and earnings paid in
respect of Acquired Shares (or other SF Securities) to the
payment of principal and interest under the Note (or such other
indebtedness, as the case may be). To the extent the Company
fails to make any contribution required under this Section 2.2,
or to the extent the Company notifies the Trustee that it wishes
to prepay any principal or interest under the Note (or such other
indebtedness) without making a contribution hereunder, such
contribution shall be deemed to have been made in the form of
forgiveness of principal and interest then due and owing on the
Note and such other indebtedness (or forgiveness of principal and
interest to the extent of such prepayment, as the case may be).
The Trustee shall be accountable for all contributions received
by it, but shall have no duty to require any contributions to be
made to it.
SECTION 2.3 Trust Corpus. As used herein, the term
"Trust Corpus" shall mean any cash or Cash Equivalents or SF
Securities delivered to the Trustee as described in Section 2.1
or 2.2 hereof, together with any earnings thereon or any proceeds
from the disposition thereof, plus any cash or Cash Equivalents
or SF Securities sold or otherwise delivered thereafter pursuant
to Section 2.1 or 2.2 hereof, together with any earnings thereon
or any proceeds from the disposition thereof (and less such
amounts distributed from the Trust pursuant to the terms hereof).
As used herein, the term "Cash Equivalents" shall mean securities
issued or directly and fully guaranteed by the United States or
any agency or instrumentality thereof (provided that the full
faith and credit of the United States is pledged in support
thereof) having maturities of less than one year from the date of
acquisition. The Trust Corpus shall at all times be limited to
SF Securities and cash or Cash Equivalents.
ARTICLE III.
RELEASE OF THE TRUST CORPUS
SECTION 3.1 Use of Assets. 1. In accordance with the
provisions hereof, the Trustee shall apply the Trust Corpus as
directed by the Company (1) to the payment of any indebtedness
(including the Note) of the Trust which is then outstanding, in
accordance with the terms thereof, (2) on behalf of the Corpora-
tion to the satisfaction of the Corporation's obligations under
the Plans, (3) to the reimbursement of payments made by the
Corporation in satisfaction of its obligations under the Plans or
(4) to the acquisition of additional SF Securities; provided,
however, that the Trustee shall not be required to apply the
Trust Corpus in the manner described in clauses (2) - (4) above
during the period that the Company exercises its right to prevent
the Trustee from disposing of SF Securities pursuant to Section
4.3, if and to the extent that, at the time the Company's direc-
tion to so apply the Trust Corpus is received by the Trustee, the
Trust Corpus does not contain sufficient cash or Cash Equivalents
to comply with the Company's direction without disposing of SF
Securities. A direction by the Company to apply the Trust Corpus
for a purpose described in clause (2) or (3) above may include a
direction to deliver SF Securities in kind or to dispose of SF
Securities and apply the proceeds therefrom for such purpose.
2. Except as provided in Sections 3.1(a) and 4.3,
the Company shall have no power to direct the Trustee to take or
omit to take any action with respect to the Trust Corpus.
SECTION 3.2 Release from Collateral. On each date on
which payment is made (or deemed to have been made) of any
principal amount of the Note (a "Principal Payment Date"), the
following number of Acquired Shares (and related collateral)
shall be released from collateral: the number of Acquired Shares
held in the Trust as collateral immediately prior to the Princi-
pal Payment Date multiplied by a fraction, the numerator of which
is the amount of the principal payment made (or deemed to have
been made) on such date and the denominator of which is the
principal amount of the Note outstanding immediately prior to
such principal payment. Any shares of SF Securities subsequently
acquired by the Trust with borrowed funds or other indebtedness
of the Trust (and related collateral) shall be released from
collateral in a manner consistent with the immediately preceding
sentence. The Acquired Shares, SF Securities and related collat-
eral released pursuant to this Section 3.2 (the "Released Collat-
eral") shall be contributed to the trust established under a Plan
or, in the case of any Plan under which no trust has been estab-
lished, directly to Participants (or Beneficiaries, if appropri-
ate) in accordance with the directions of the Company. Upon
receiving directions from the Company, the Trustee shall sell any
Released Collateral and transfer the proceeds of such sale to the
trust established under such Plan or, in the case of any Plan
under which no trust has been established, to such Plan's Partic-
ipants (or Beneficiaries, if appropriate). Any such sale shall
be made in the manner which the Trustee determines will produce
the greatest yield (after transaction costs), and may be made in
the open market or in a private transaction, including (with the
Company's consent) a sale to the Company.
SECTION 3.3 Deliveries to Creditors of the Corpora-
tion. It is the intent of the parties hereto that the Trust
Corpus is and shall remain at all times subject to the claims of
the general creditors of the Company. Accordingly, neither the
Trustee nor the Company shall create a security interest in the
Trust Corpus in favor of the Plans, any participant therein
(each, a "Participant") (or any beneficiary of such Participant)
(each, a "Beneficiary")) or any creditor. If the Trustee re-
ceives the notice provided for in Section 3.4, or if the Trustee
otherwise receives actual notice that the Company is insolvent or
bankrupt as defined in Section 3.4, the Trustee shall make no
further distributions of the Trust Corpus as directed by the
Company but shall deliver the entire amount of the Trust Corpus
only as a court of competent jurisdiction, or duly appointed
receiver or other person authorized to act by such a court, may
direct. The Trustee shall resume distribution of the Trust
Corpus as directed by the Company under the terms hereof, upon no
less than 30 days' advance notice to the Company, if the Trustee
determines that the Company was not, or is no longer, bankrupt or
insolvent. Such determination shall be made in a timely fashion,
and shall be based upon a decision of a court of competent
jurisdiction, a report of a nationally recognized appraisal firm
or a certification by the Chief Executive Officer of the Company
or a determination of the Board of Directors of the Company (the
"Board"). Unless the Trustee has actual knowledge of the
Company's bankruptcy or insolvency, the Trustee shall have no
duty to inquire whether the Company is bankrupt or insolvent.
SECTION 3.4 Notification of Bankruptcy or Insolvency.
The Company shall advise the Trustee promptly in writing of the
Company's bankruptcy or insolvency. The Company shall be deemed
to be bankrupt or insolvent upon the occurrence of any of the
following:
a. the Company shall make an assignment
for the benefit of creditors, file a petition in bank-
ruptcy, petition or apply to any tribunal for the ap-
pointment of a custodian, receiver, liquidator, seques-
trator, or any trustee for it or a substantial part of
its assets, or shall commence any case under any bank-
ruptcy, insolvency, reorganization, arrangement, read-
justment of debt, dissolution, liquidation or similar law
or statute of any jurisdiction (federal or state), wheth-
er now or hereafter in effect; or if there shall have
been filed any such petition or application, or any such
case shall have been commenced against it, in which an
order for relief is entered or which remains undismissed
for a period of 120 days; or the Company by any act or
omission shall indicate its consent to, approval of or
acquiescence in any such petition, application or case or
order for relief or to the appointment of a custodian,
receiver or any trustee for it or any substantial part of
any of its property, or shall suffer any such custodian-
ship, receivership or trusteeship to continue undis-
charged for a period of 120 days; or
b. The Company shall generally not pay
its debts as such debts become due or shall cease to pay
its debts generally in the ordinary course of business.
ARTICLE IV.
ADMINISTRATION OF TRUST FUND
SECTION 4.1 Trustee. (a) The duties and responsibil-
ities of the Trustee shall be limited to those expressly set
forth in this Trust Agreement and the Stock Purchase Agreement,
and no implied covenants or obligations shall be read into this
Trust Agreement against the Trustee.
(b) If, under circumstances described in Section
3.4 or otherwise, all or any part of the Trust Corpus is at any
time attached, garnished, or levied upon by any court order, or
in case the payment, assignment, transfer, conveyance or delivery
of any such property shall be stayed or enjoined by any court
order, or in case any order, judgment or decree shall be made or
entered by a court affecting such property or any part thereof,
then and in any of such events the Trustee is authorized, in its
sole discretion, to rely upon and comply with any such order,
writ, judgment or decree, and it shall not be liable to the
Corporation, any Plan or any Participant or Beneficiary by reason
of such compliance even though such order, writ, judgment or
decree subsequently may be reversed, modified, annulled, set
aside or vacated.
(c) The Trustee or its agent shall maintain such
books, records and accounts as may be necessary for the proper
administration of the Trust Corpus, and shall render to the
Company, within 30 days of the end of each calendar quarter,
commencing with the calendar quarter ending March 31, 1996, until
the termination of the Trust (and on the date of such termination
or as promptly as practicable thereafter), an accounting with
respect to the Trust Corpus as of the end of the then most recent
calendar quarter (and as of the date of such termination).
(d) The Trustee shall not be liable for any act
taken or omitted to be taken hereunder if taken or omitted to be
taken by it in good faith. The Trustee shall also be fully
protected in relying upon any notice or instruction given hereun-
der which it in good faith believes to be genuine and executed
and delivered in accordance with this Trust.
(e) The Trustee may consult with legal counsel to
be selected by it, including counsel to the Company, and the
Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such
counsel.
(f) The Trustee shall be reimbursed by the
Company for its reasonable expenses incurred in connection with
the performance of its duties hereunder and shall be paid reason-
able fees for the performance of such duties. Any amounts
payable to the Trustee under this paragraph (f) may be payable
from the Trust Corpus if not paid by the Company.
(g) Except for any damages, losses, claims or
expenses resulting from the Trustee's gross negligence or willful
misconduct, the Company agrees to indemnify and hold harmless the
Trustee from and against any and all damages, losses, claims or
expenses as incurred (including reasonable expenses of investiga-
tion and reasonable fees, charges and disbursements of counsel to
the Trustee and any taxes imposed on the Trust Corpus or income
of the Trust) arising out of or in connection with the perfor-
mance by the Trustee of its duties hereunder. Without limiting
the generality of the foregoing, the Trustee shall be under no
liability to any person for any loss of any kind which may result
by reason of any action taken by it pursuant to Section 4.4 or
(2) by reason of its exercising or failing to exercise any power
or authority under Section 4.4.
(h) Subject to the provisions of this Trust
Agreement, the Trustee shall have the following additional powers
and authority, in furtherance of the purpose of the Trust as
described in Section 1.1, with respect to property constituting a
part or all of the Trust Corpus:
a. At the direction of the Company, to
acquire and hold SF Securities and cash or Cash Equiva-
lents; to sell, exchange or transfer any such property at
public or private sale for cash or on credit and grant
options for the purchase or exchange thereof;
b. To exercise any conversion privilege
or subscription right available in connection with any
such property; to oppose or to consent to the reorganiza-
tion, consolidation, merger or readjustment of the fi-
nances of any corporation, company or association, or to
the sale, mortgage, pledge or lease of the property of
any corporation, company or association, any of the secu-
rities of which may at any time be held in the Trust and
to do any act with reference thereto, including the exer-
cise of options, the making of agreements or subscrip-
tions and the payment of expenses, assessments or sub-
scriptions, which may be deemed necessary or advisable in
connection therewith, and to hold and retain any securi-
ties or other property which it may so acquire;
c. To commence or defend suits or legal
proceedings and to represent the Trust in all suits or
legal proceedings; to settle, compromise or submit to
arbitration, any claims, debts or damages, due or owing
to or from the Trust;
d. To exercise, personally or by general
or limited power of attorney, any right, including the
right to vote, appurtenant to any SF Securities or other
property; to enter into any voting agreement or voting
trust, which voting agreement or voting trust shall be
binding upon any successor trustee but shall not survive
as to any SF Securities disposed of for value by the
Trustee;
e. To engage legal counsel, including
counsel to the Company, or any other suitable agents, to
consult with such counsel or agents with respect to the
construction of this Trust Agreement, the duties of the
Trustee hereunder, the transactions contemplated by this
Trust Agreement or any act which the Trustee proposes to
take or omit to take, to rely upon the advice of such
counsel or agents, and to pay its reasonable fees, ex-
penses and compensation;
f. To register any securities held by it
in its own name or in the name of any custodian of such
property or of its nominee, including the nominee of any
system for the central handling of securities, with or
without the addition of words indicating that such secu-
rities are held in a fiduciary capacity, to deposit or
arrange for the deposit of any such securities with such
a system and to hold any securities in bearer form;
g. At the direction of the Company, to
make, execute and deliver, as Trustee, any and all deeds,
leases, notes, bonds, guarantees, mortgages, conveyances,
contracts, waivers, proxies, releases or other instru-
ments in writing necessary or proper for the exercise of
any of the foregoing powers; and
h. To take any other action necessary or
advisable in furtherance of the foregoing powers and the
purposes of this Trust.
SECTION 4.2 Successor Trustee. The Trustee may resign
and be discharged from its duties hereunder at any time by giving
to the Company notice in writing of such resignation specifying a
date (not less than 30 days after the giving of such notice) when
such resignation shall take effect. Promptly after such notice,
the Company shall appoint an independent financial institution as
successor trustee, such trustee to become Trustee hereunder upon
the resignation date specified in such notice. The Trustee shall
continue to serve until its successor accepts the trust and
receives delivery of the Trust Corpus. The Company may at any
time substitute an independent financial institution as successor
trustee by giving 15 days' notice thereof to the Trustee then
acting; provided, however, that, during the pendency of and
within six (6) months following the cessation of a Potential
Change in Control (as defined in Section 5.2(d)) and following a
Change in Control (as defined in Section 5.2(c)), such substitu-
tion must be approved in writing by at least two-thirds (2/3) of
the Participants (and Beneficiaries of then-deceased Partici-
pants) in the Section 4.5 Plans other than Section 4.5 Plans
maintained for the benefit of non-employee directors of the
Company. In the event of such removal or resignation, the
Trustee shall duly file with the Company a written statement or
statements of account as provided in Section 4.1(c) for the
period since the last previous quarterly accounting of the Trust,
and if written objection to such account is not filed within 90
days, the Trustee shall to the maximum extent permitted by
applicable law be forever released and discharged from all
liability and accountability with respect to the propriety of its
acts and transactions shown in such account.
SECTION 4.3 Limitations on Sales. Except as other-
wise provided in Section 3.1(a) or 4.4(b) hereof, the Trustee
shall not sell, exchange or transfer any SF Securities or grant
any option for the purchase or exchange of any SF Securities
(each a "Securities Transaction") unless the Trustee shall have
given the Company 10 business days' prior notice of such Securi-
ties Transaction. The Trustee's notice shall state with respect
to such Securities Transaction (i) the amount of SF Securities
involved, (ii) whether such Securities Transaction will be
effected through the public markets and (iii) the date such
Securities Transaction is proposed to be entered into. If the
Company is advised in writing by a recognized independent invest-
ment banking firm that such Securities Transaction would adverse-
ly affect any financing by the Company that had been contemplated
by the Company prior to the receipt of such notice or if the
Company determines in its good faith judgment that such Securi-
ties Transaction would require the Company to disclose material
information which the Company has a bona fide business purpose
for preserving as confidential or that the Company is unable to
comply with SEC requirements prior to such Securities Transac-
tion, the Company may give notice to the Trustee not to effect
such Securities Transaction prior to the date specified in the
Trustee's notice. Upon receipt of such a notice from the Compa-
ny, the Trustee shall not effect such Securities Transaction for
a period not to exceed 120 days from the date of the Company's
notice or such lesser period as shall be specified in the
Company's notice.
SECTION 4.4 Voting and Tendering of Common Stock.
(a) Voting of Common Stock. As more fully set forth
herein, the manner in which shares of Common Stock held by the
Trust are to be voted on each matter brought before an annual or
special stockholders' meeting of the Company shall be exercised
by the Trustee based upon the voting provisions contained in the
Company's ESOP (or any successor or substitute employee benefit
plan of the Company which the Company and the Trustee agree shall
serve as the basis for implementing the provisions of this
Section 4.4) (such plan being referred to herein as the "Stock
Plan"). Not less than seventy-two (72) hours prior to each such
meeting of stockholders, the Company shall cause the trustee of
the Stock Plan to furnish to the Trustee a document setting forth
the aggregate votes to be cast on each matter by such trustee
with respect to shares of Common Stock (and securities convert-
ible into Common Stock) held by the Stock Plan as of the record
date for such stockholders' meeting, such votes to be based upon
the instructions received as of such time from Stock Plan Partic-
ipants and otherwise in accordance with the provisions of the
Stock Plan then in effect, but without regard to any failure on
the part of such trustee to follow such instructions or otherwise
to abide by such provisions by reason of, for example, its
fiduciary obligations under the Employee Retirement Security Act
of 1974, as amended ("ERISA"). Upon timely receipt of such
document by the Trustee, the Trustee shall on each such matter
vote the number of shares (including fractional shares) of Common
Stock held by the Trust in the same proportion as shares of
Common Stock (and securities convertible into Common Stock) held
by the Stock Plan are to be voted on such matter, based upon the
preceding provisions of this Section 4.4(a).
(b) Tender or Exchange of Common Stock. As more fully
set forth herein, the tender or exchange of shares of Common
Stock (and securities convertible into Common Stock) shall be
exercised by the Trustee based upon the tender or exchange
provisions contained in the Company's Stock Plan. Not less than
seventy-two (72) hours prior to the scheduled expiration date of
a tender or exchange offer for Shares of Common Stock, the
Company shall cause the trustee of the Stock Plan to furnish to
the Trustee a document setting forth the number and percentage of
shares of Common Stock (and securities convertible into Common
Stock) held by the Stock Plan which will be tendered or ex-
changed, such number and percentage to be based upon the instruc-
tions received from Stock Plan Participants and otherwise in
accordance with the provisions of the Stock Plan then in effect,
but without regard to any failure on the part of such trustee to
follow such instructions or otherwise to abide by such provisions
by reason of, for example, its fiduciary obligations under ERISA.
In the event the scheduled expiration date of such offer is
changed, the foregoing provisions of this Section 4.4(b) shall be
applied to each subsequent scheduled expiration date. Upon
timely receipt of such document by the Trustee, the Trustee shall
tender the number of shares of Common Stock held by the Trust in
the same proportion as shares of Common Stock (and securities
convertible into Common Stock) held by the Stock Plan are to be
tendered or exchanged, based upon the preceding provisions of
this Section 4.4(b).
(c) Nothing in this Section 4.4 shall be construed as
permitting or requiring the divulging or release to any person
affiliated with the Company of any confidential instructions
provided to the trustee of the Stock Plan by individual Stock
Plan Participants or Beneficiaries.
SECTION 4.5 Certain Change in Control Provisions.
Notwithstanding any other provision hereof, following a Change in
Control, (defined in Section 5.2(c)), (a) the Plans shall be
limited to those Plans which, immediately prior to such Change in
Control, are designated on Exhibit A hereto as "Section 4.5
Plans" until such time as all liabilities under such Section 4.5
Plans have been satisfied, (b) benefits under each Section 4.5
Plan shall be deemed to include payment or reimbursement to each
Participant or Beneficiary of such Section 4.5 Plan of legal fees
and other expenses incurred by such Participant or Beneficiary in
seeking to obtain benefits or otherwise to enforce his or her
rights under such Section 4.5 Plan, and (c) the Trustee shall
make payment to a Participant or Beneficiary of any such Section
4.5 Plan in accordance with written instructions received from
such Participant or Beneficiary, which instructions shall include
a certification (i) that such Participant or Beneficiary is
entitled to payment under the Section 4.5 Plan, (ii) of the
amount of such payment, (iii) that the Corporation has not made
payment of such amount, and (iv) that a copy of such instructions
has been provided to the Company. Unless the Company objects to
the payment called for by such instructions within 10 business
days of its receipt thereof (the bases for such objection by the
Company being limited to (i) the Company's Insolvency (as defined
in Section 3.4 hereof) and (ii) the amount of such payment
clearly not being payable under the appropriate Section 4.5
Plan), the Trustee shall make payment to the Participant or
Beneficiary in accordance with such instructions. In the event
the Trustee receives such objection within such 10-day period, it
shall not make payment until receipt of, and then in accordance
with, written instructions from the Company and the Participant
or Beneficiary.
ARTICLE V.
TERMINATION, AMENDMENT AND WAIVER
SECTION 5.1 Termination. The Trust shall be terminat-
ed on the earlier of the twentieth anniversary of the date hereof
or the date on which any of the following events occurs (the
"Termination Date"): (a) the Corporation's obligations under the
Plans are satisfied in full; (b) the Trust Corpus is exhausted;
or (c) such date as may be established by resolution of the
Board, provided, however, that during the period specified in
Section 5.2(b) hereof, the Board may not act to terminate the
Trust. Upon termination of the Trust, any remaining portion of
the Trust Corpus shall be applied in the following order: first,
to satisfy any outstanding indebtedness of the Trust; second, as
directed by the Company or its delegate pursuant to Section
3.1(a); and third, to fund obligations of the Corporation, or
otherwise provide benefits to current employees of the Corpora-
tion, under one or more employee benefit plans, agreements,
programs or arrangements (other than Plans). In no event shall
the Company receive any distribution of the Trust Corpus upon
termination of the Trust, except in repayment of indebtedness to
the Company incurred by the Trustee or in reimbursement of
payments made by the Corporation in satisfaction of its obliga-
tions under the Plans.
SECTIONS 5.2 Amendment and Waiver. (a) Prior to a
Potential Change in Control (as defined in Section 5.2(d), the
Company and the Trustee may amend this Trust Agreement, including
Exhibit A attached hereto, which is an integral part of this
Trust Agreement, by written instrument executed and duly autho-
rized by the Company and the Trustee; however, no such amendment
shall accelerate the Termination Date or permit the Company to
receive any distribution prohibited by the last sentence of
Section 5.1.
(b) During the pendency of and within six (6) months
following the cessation of a Potential Change in Control (as
defined in Section 5.2(d)) and following a Change in Control (as
defined in Section 5.2(c)), this Trust Agreement may be amended
in the manner and subject to the provisions of Section 5.2(a);
provided, however, that if any such amendment would be adverse in
any way to the interests of any Participant or Beneficiary (an
"Adverse Amendment"), then such amendment must be approved in
writing by at least two-thirds (2/3) of the Participants (and
Beneficiaries of then-deceased Participants) in the Section 4.5
Plans other than Section 4.5 Plans maintained for the benefit of
non-employee directors of the Company. For purposes of this
Section 5.2(b), an Adverse Amendment shall include, but not be
limited to, (i) an amendment which removes one or more Plans from
Exhibit A hereto or which would change the status of any Plan as
a "Section 4.5 Plan"; (ii) any amendment to Sections 2.2, 3.2 or
4.5 hereof or to this Article V.
(c) A "Change in Control" shall be deemed to have
occurred when and only when the first of the following events
occurs:
a. any "person" (as that term is used in
Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), other than
(1) any employee plan established by the Corporation,
(2) the Corporation, (3) an underwriter temporarily hold-
ing securities pursuant to an offering of such securi-
ties, or (4) a corporation owned, directly or indirectly,
by stockholders of the Corporation in substantially the
same proportions as their ownership of the Corporation)
is or becomes the beneficial owner, directly or indirect-
ly, of securities of the Company representing 20% or more
of the combined voting power of the Company's then out-
standing voting securities; or
b. during any period of two consecutive
years, individuals who at the beginning of such period
constituted the Board and any new director (other than an
individual whose nomination for election is in connection
with an actual or threatened election contest relating to
the election of the directors of the Company, as such
terms are used in Rule 14a-11 of Regulation 14A under the
Ex change Act) whose appointment, election, or nomination
for election by the Company's shareholders, was approved
by a vote of at least two-thirds (2/3) of the directors
then still in office who either were directors at the
beginning of the period or whose appointment, election or
nomination for election was previously so approved, cease
for any reason to constitute a majority of the Board; or
c. there is consummated a merger or
consolidation of the Company or a subsidiary thereof with
or into any other corporation, other than a merger or
consolidation which would result in the holders of the
voting securities of the Company outstanding immediately
prior thereto holding securities which represent immedi-
ately after such merger or consolidation more than 80% of
the combined voting power of the voting securities of
either the Company or the other entity which survives
such merger or consolidation or the parent of the entity
which survives such merger or consolidation; or
d. there is consummated a sale or dispo-
sition by the Company of all or substantially all the
Company's assets.
(d) A "Potential Change in Control" shall be deemed to
have occurred if the conditions set forth in any one of the
following paragraphs shall have been satisfied:
(i) any person (as defined in Section
5.2(c)(i) above) is or becomes the beneficial owner,
directly or indirectly, of securities of the Company
representing fifteen percent (15%) or more of the com-
bined voting power of the Company's then outstanding
voting securities; or
(ii) the Company enters into an agree-
ment, the consummation of which would result in the oc-
currence of a Change in Control; or
(iii) any person (as defined in Section
5.2(c)(i) above) publicly announces an intention to take
or to consider taking actions which, if consummated,
would constitute or result in a Change in Control; or
(iv) any person (as defined in Section
5.2(c)(i) above) commences a solicitation (as defined in
Rule 14a-1 of the General Rules and Regulations under the
Exchange Act) of proxies or consents which has the pur-
pose of effecting or would (if successful) result in a
Change in Control; or
(v) a tender or exchange offer for
voting securities of the Company, made by a person (as
defined in Section 5.2(c)(i) above), is first pub lished
or sent or given (within the meaning of Rule 14d-2(a) of
the General Rules and Regulations under the Exchange
Act).
ARTICLE VI
GENERAL PROVISIONS
SECTION 6.1 Certain Provisions Relating to This Trust
Agreement. (a) This Trust Agreement shall be binding upon and
inure to the benefit of the parties and their respective succes-
sors and legal representatives.
(b) This Trust Agreement shall be governed by and
construed in accordance with the laws of Delaware, without
reference to any provisions of such laws regarding choice of laws
or conflict of laws.
(c) In the event that any provision of this Trust
Agreement or the application thereof to any person or circum-
stances shall be determined by a court of proper jurisdiction to
be invalid or unenforceable to any extent, the remainder of this
Trust Agreement, or the application of such provision to persons
or circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected thereby, and each other
provision of this Trust Agreement shall be valid and enforced to
the fullest extent permitted by law.
SECTION 6.2 Notices. Any notice, report, demand or
waiver required or permitted hereunder shall be in writing and
shall be given personally, delivered by overnight delivery
service or sent by telecopier, addressed as follows:
If to the Company:
Savannah Foods & Industries, Inc.
2 East Bryan Street
Savannah, Georgia 31401
Attention: Senior Vice President, Chief Financial
Officer and Treasurer
If to the Trustee:
Wachovia Bank of North Carolina, N.A.
P.O. Box 3099
Winston-Salem, North Carolina 27150
Mail Code NC-31013
Attention: Beverley H. Wood
Senior Vice President
Notices shall be effective only upon receipt.
The Company or Trustee may change the address to which
notices, requests and other communications are to be sent to it
by giving written notice of such address change to the other
parties in conformity with this Section 6.2.
SECTION 6.3 Gender and Number. Wherever any words are
used herein in the masculine gender, they shall be construed as
though they were also used in the feminine gender in all cases
where they would so apply, and wherever any words are used herein
in the singular form, they shall be construed as though they were
also used in the plural form in all cases where they would so
apply. Likewise, wherever any words are used herein in the
plural form, they shall be construed as though they were also
used in the singular form in all cases where they would so apply.
SECTION 6.4 Headings. The headings and subheadings of
this Agreement have been inserted for convenience of reference
and are to be ignored in any construction of the provisions
hereof.
SECTION 6.5 No Third Party Beneficiaries. Nothing in
this Trust, express or implied, is intended to or shall confer on
any particular person, other than the Company and the Trustee,
any right, benefit or remedy of any nature whatsoever under or by
reason of this Trust, and no such person shall have any right,
title or interest in or any claim to the Trust Corpus except to
the extent expressly provided in Section 5.1 upon termination of
this Trust. In particular, it is the express intent of the
parties that (i) this Trust shall not form part of any of the
Plans, (ii) neither any Plan nor any Participant in any of the
Plans (nor any Beneficiary of such Participant) shall have any
right, title or beneficial ownership or other interest in or any
claim (preferred or otherwise) to the Trust Corpus, nor shall any
such participant have any right to compel, restrain or otherwise
direct the exercise of the respective powers of Trustee and the
Company hereunder, it being understood that the rights of each
such Participant (and Beneficiary) shall be determined in accor-
dance with the provisions of the Plans and (iii) the Trust Corpus
shall not be deemed to be held under any trust for the benefit of
any such Participant (or Beneficiary) or to be collateral securi-
ty for the performance of the obligations of the Corporation.
SECTION 6.6 Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which together constitute
but one instrument, which may be sufficiently evidenced by any
counterpart.
SECTION 6.7 Directions by Company. Except as other-
wise provided herein, all directions by the Company to the
Trustee shall be effected by any two officers of the Company from
the group of officers consisting of the Chief Executive Officer,
Chief Financial Officers, Executive Vice Presidents and Senior
Vice Presidents. The Company shall provide to the Trustee an
incumbency certificate with respect to each member of the forego-
ing group of officers and, in the absence of actual knowledge to
the contrary, the Trustee shall be conclusively entitled to rely
on such certificates as to each such individual's authority to
provide directions to the Trustee hereunder.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed under seal in their respective names by
their duly authorized officers the day and year first above
written.
SAVANNAH FOODS & INDUSTRIES, INC.
By /s/ GREGORY H. SMITH
Name: Gregory H. Smith
Title: Senior Vice President, Chief
Financial Officer and Treasurer
WACHOVIA BANK OF NORTH CAROLINA, N.A.,
solely in its capacity as
trustee under this Trust
Agreement
By /s/ BEVERLY H. WOOD
Name: Beverly H. Wood
Title: Senior Vice President
EXHIBIT A
SAVANNAH FOODS & INDUSTRIES, INC.
PLANS
Section 4.5 Plans
1. Deferred Compensation Plan for Key Employees of Savannah
Foods & Industries, Inc. and Subsidiaries (effective August
1, 1990), as amended, and all deferred compensation agree-
ments or elections made thereunder
2. Deferred Compensation Plan for Key Employees of Savannah
Foods & Industries, Inc. (Amendment and Restatement effec-
tive August 12, 1983), as amended, and all deferred compen-
sation agreements or elections made thereunder
3. Deferred Compensation Plan for Key Employees of Michigan
Sugar Company (initially effective January 1, 1985), as
amended, and all deferred compensation agreements or elec-
tions made thereunder
4. Deferred Compensation Plan for directors of Savannah Foods &
Industries, Inc. (amended and restated effective August 4,
1989), as amended, and all deferred compensation agreements
or elections made thereunder
5. Supplemental Executive Retirement Plan (SERP) of Savannah
Foods & Industries, Inc. and Subsidiaries (Second Amendment
and Restatement Effective January 1, 1989), as amended, and
all deferred compensation agreements or elections made
thereunder
6. Deferred Compensation Agreement between Walter C. Scott and
Savannah Foods & Industries, Inc. (dated December 27, 1984)
7. Deferred Compensation Agreement between William W. Sprague,
Jr. and Savannah Foods & Industries, Inc. (dated October 5,
1992)
8. Deferred Compensation Agreement between Ernest Flegenheimer
and Michigan Sugar Company (dated September 8, 1992)
Other Plans
1. Savannah Foods & Industries, Inc. Employee Stock Ownership
Plan, amended and restated effective January 1, 1989
2. Retirement Income Plan for Employees of Savannah Foods &
Industries, Inc., effective July 1, 1934
