As filed with the Securities and Exchange Commission on March 27, 1996
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
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)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price per Offering Registration
Registered Registered Share (1) Price (1) Fee
Common 2,500,000 $10.75 $26,875,000 $9,267.24
Stock, shares
$0.25 par
value
(1) The amounts are based upon the average of the high and low
sale prices for the Common Stock as reported on the New York
Stock Exchange on March 25, 1996, and are used solely for the
purpose of computing the registration fee pursuant to Rule 457(c)
under the Securities Act of 1933.
______________________
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
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities 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
corporation (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
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 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 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
distribution 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
purchased by them may be deemed underwriting commissions or
discounts 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
statements, 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 Exchange. Reports, proxy statements, and other
information concerning 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
Statement filed by the Company with the Commission under the
Securities 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
superseded, 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
President - 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.
Industrial and grocery products are marketed primarily in the
southeastern 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, Colonial,
Evercane, and Savannah Gold, 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 and its aspartame-
based sweetener is marketed under the trade name Sweet Thing II.
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.
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 , 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 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
substantially 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
policies.
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
"Promissory 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
purchases 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
Prospectus 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
creating the Benefit Trust, direct the trustee to make
distributions from the assets of the Benefit Trust to the Benefit
Plans maintained by the Company in satisfaction of the Company's
obligations 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
outstanding.
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
outstanding 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
Incorporation 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 Directors. These provisions could have the effect, however,
of discouraging a third party from making a tender offer or
otherwise attempting to obtain control of the Company even though
such an attempt might be beneficial to the Company and its
stockholders.
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
generally 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 directors 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
meetings 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
stockholder proposals to be considered at annual meetings of
stockholders. 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
representation 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 jurisdiction to any SAVANNAH FOODS &
person to whom it is unlawful to INDUSTRIES, INC.
make such offer in such
jurisdiction. Neither the 2,500,000 SHARES
delivery of this Prospectus nor
any sale made hereunder shall, Common Stock
under any circumstances, 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
corporation.
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
Corporation 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
improper personal benefit. Neither the amendment nor
repeal of this Article Ninth, nor the adoption of any
provision 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
Registration 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.
* To be filed by amendment.
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
registration 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
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement. Notwithstanding the foregoing, any
increase or decrease 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 Registration Fee" table in
the effective registration 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
statement;
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
securities 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
indemnification 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 registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
Savannah, Georgia on this 27th day of March, 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 Registration Statement has been signed below by the
following persons in the capacities indicated on the 27th day of
March, 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
Crystals Brands, Inc.
/s/ DAVID H. ROUCHE
David H. Roche Senior Vice President
President and Chief
Operating Officer -
Michigan Sugar Company
/s/ BENJAMIN A. OXNARD, JR.
Benjamin A. Oxnard, Jr. Senior Vice President - Raw Sugar
/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
/s/ HUGH M. TARBUTTON
Hugh M. Tarbutton Director
/s/ R. EUGENE CARTLEDGE
R. Eugene Cartledge Director
/s/ LEE B. DURHAM, JR.
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.
23.1 Consent of Price Waterhouse LLP.
99.1 Benefit Trust Agreement.
EXHIBIT 3(i)
SAVANNAH FOODS & INDUSTRIES, INC.
CERTIFICATE OF INCORPORATION
With Amendments Adopted Through
May 24, 1990
CERTIFICATE OF INCORPORATION
OF
SAVANNAH FOODS & INDUSTRIES, INC.
(a Delaware Corporation)
FIRST: The name of the Corporation (hereinafter called the
"Company") is Savannah Foods & Industries, Inc.
SECOND: The registered office of the Company is to be
located at 1209 Orange Street, in the City of Wilmington, in the
County of New Castle, in the State of Delaware. The name of its
registered agent at that address is The Corporation Trust
Company.
THIRD: The purpose of the Company is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
FOURTH:
(A) The total number of shares of Common Stock which the
Company is authorized to issue is sixty-four million
(64,000,000) and the par value of each such shares is
twenty-five cents ($.25), amounting in the aggregate to
sixteen million dollars ($16,000,000). The shares of
the Common Stock shall entitle the holder thereof to
one vote for each share upon all matters upon which
stockholders have the right to vote.
(B) The total number of shares of Preferred Stock which the
Company is authorized to issue is up to one million
(1,000,000) and the par value of each of such shares is
fifty cents ($.50), amounting in the aggregate to five
hundred thousand dollars ($500,000). The Board of
Directors of the Company shall have the right from time
to time to issue such shares in series, to fix the
redemption and liquidation value, dividend rate, issue
such shares in series, to fix the redemption and
liquidation value, dividend rate, voting rights,
conversion privilege, preferences, maturity dates and
other qualifications, limitations or restrictions, as
determined by the Board, without stockholder approval.
FIFTH: The names and addresses of each of the incorporators
are as follows:
Name Address
B.J. Consono . . . . . . . . . . .1209 Orange Street
Wilmington, Delaware
F.J. Obara, Jr. . . . . . . . . . 1209 Orange Street
Wilmington, Delaware
A.D. Grier. . . . . . . . . . . ..1209 Orange Street
Wilmington, Delaware
SIXTH: Except as otherwise provided herein, the Board of
Directors is expressly authorized:
(A) To adopt, amend, or repeal the By-laws of the Corporation,
provided however, that the Board of Directors shall have no
power to adopt, amend, or repeal Section 2 of Article III of
the By-laws of the Corporation without the approval of the
holders of 75% of the outstanding stock of the Corporation
entitled to vote thereon.
(B) To set apart out of the funds of the Corporation available
for dividends a reserve or reserves for any proper purpose
and to abolish any such reserve in the manner by which it
was created.
(C) (1) To effect and consummate:
(a) any merger or consolidation of the Corporation or
any subsidiary with or into any other corporation:
(b) any sale, lease, exchange, or other disposition of
all or substantially all of the assets of the
Corporation to or with any other person; or,
(c) any issuance or transfer by the Corporation or any
subsidiary of any voting securities of the
Corporation or any subsidiary to any other person
except for voting securities issued pursuant to
stock option, purchase, bonus, or other plans for
natural persons who are directors, employees,
consultants, and/or agents of the Corporation and
its subsidiaries;
when, and only when, authorized by the affirmative vote
of the holders of:
(i) at least 75% of the outstanding stock of the
Corporation entitled to vote generally in the
election of directors; and
(ii) at least a majority of the shares of
outstanding stock of the Corporation which
are not beneficially owned by such other
corporation or person.
(2) The provisions of Section (C)(1) of this Article shall
not apply, and the provisions of Delaware law relating
to the percentage of required stockholder approval, if
any, shall apply to:
(a) any merger or other transaction described in the
preceding Section (C)(1) if any such other
corporation is a subsidiary of the Corporation;
(b) any merger or other transaction described in the
preceding Section (C)(1) if the Board of Directors
has approved the transaction prior to the time
such other corporation or person acquired 10% or
more of the shares of the outstanding stock of
the Corporation entitled to vote in the election
of directors; or,
(c) any merger or other transaction described in the
preceding paragraph if at any time prior to its
consummation the transaction has been approved by
a resolution adopted by all of the directors then
in office.
(3) For purposes of this Article Sixth:
(a) any specified person shall be deemed to be a
beneficial owner of shares of stock of the
Corporation:
(i) which such specified person or any of its
affiliates or associates, as such terms are
hereinafter defined, owns, directly or
indirectly, whether of record or not;
(ii) which such specified person or any of its
affiliates or associates has the right to
acquire pursuant to any agreement, or upon
exercise of conversion rights, warrants or
options, or otherwise; or,
(iii) which are beneficially owned, directly
or indirectly [including shares deemed
owned through application of clauses (i)
and (ii) of this Section (C)(3)] by any
other person with which specified person
or any of its affiliates or associates
has any agreement or arrangement or
understanding for the purpose of
acquiring, holding, voting, or disposing
of the stock of the Corporation;
(b) a subsidiary is any corporation more than
50% of the voting securities of which are
owned, directly or indirectly, by the
Corporation;
(c) a person is any individual, partnership,
corporation, or entity;
(d) an affiliate of a specified person is any person
that, directly or indirectly, through one or more
intermediaries, controls or is controlled by, or
is under common control with, the specified
person; and,
(e) an associate of a specified person is:
(i) any person of which such specified person is
an officer or partner or is, directly or
indirectly, the beneficial owner of 10% or
more of any class of equity securities;
(ii) any trust or estate in which such specified
person has a substantial beneficial interest
or as to which such specified person serves
as trustee or in a similar capacity;
(iii) any relative or spouse of any such
specified person, or any relative of
such spouse, who has the same home as
the specified person; or,
(iv) any director or officer of such specified
person or any corporation which controls or
is controlled by, or is in common control
with, such specified person.
(4) The Board of Directors of the Corporation shall
determine, for purposes of this Article Sixth, on basis
of information known to it:
(a) whether any person referred to in Section (C)(1)
of this Article owns beneficially 10% or more of
the outstanding stock of the Corporation entitled
to vote in the election of directors; and,
(b) whether a proposed transaction is substantially
consistent with the terms of the transactions
approved in principle by the Board of Directors as
referred to in Section (C)(2). Any such
determination by the Board of Directors shall be
conclusive and binding for all purposes of this
Article Sixth and for purposes of such
determination, the Board of Directors shall be
entitled to rely solely on information provided to
it by any person referred to in section (c)(1) and
filings made available to the public by such
person with the Securities and Exchange Commission
under Section 13(d) of the Securities Exchange Act
of 1934, as amended.
SEVENTH: No action required or permitted to be taken by the
stockholders of the Corporation may be taken except at the annual
meeting of stockholders or at a special meeting of stockholders
duly called for as provided in the By-laws of the Corporation.
Meetings of the stockholders may be held outside the State of
Delaware, if the By-laws of the Corporation so provide. The
books of the Corporation may be kept (subject to any provision
contained in the statutes) outside of the State of Delaware in
such place or places as may be designated from time to time by
the Board of Directors or in the By-laws of the Corporation.
Election of the directors need not be by ballot unless the By-
laws of the Corporation shall so provide. The stockholders of
the Corporation shall have the authority to remove any director
of the Corporation with or without cause as provided in the By-
laws of the Corporation.
EIGHTH: The Corporation reserves the right to modify,
revise, alter, amend, change, repeal, or rescind any provision
contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and rights conferred upon the
stockholders herein are granted subject to this reservation,
provided, however, that the provisions of Article Sixth, Article
Seventh, and of this Article Eighth of this Certificate of
Incorporation shall not be modified, revised, altered, or
amended, repealed, or rescinded, in whole or in part, except by
the affirmative vote of the holders of not less than 75% of the
outstanding stock of the Corporation entitled to vote thereon.
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 Corporation 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 improper personal
benefit. Neither the amendment nor repeal of this Article Ninth,
not the adoption of any provision 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.
WE THE UNDERSIGNED, being each of the incorporators
hereinbefore named, for the purpose of forming a corporation
pursuant to the General Corporation Law of the State of Delaware,
do make this certificate, hereby declaring and certifying that
this is our act and deed and the facts herein stated are true,
and accordingly have hereunto set our hands this 19th day of
February, 1969.
/s/ B. J. CONSONO
/s/ F. J. OBARA, JR.
/s/ A. D. GRIER
STATE OF DELAWARE )
) SS:
COUNTY OF NEW CASTLE )
BE IT REMEMBERED that on this 19th day of February A.D.
1969, personally came before me, a Notary Public for the State of
Delaware, B.J. Consono, F.J. Obara, Jr., and A.D. Grier, all of
the parties to the foregoing Certificate of Incorporation, known
to me personally to be such, and severally acknowledged the said
Certificate to be the act and deed of the signers respectively
and that the facts stated therein are true.
GIVEN under my hand and seal of office the day and year
foresaid.
/s/ A. DANA ATWELL
Notary Public
A. Dana Atwell, Notary Public
Appointed October 28, 1967
State of Delaware
Term: Two Years
STATE OF DELAWARE
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF
DELAWARE DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF AMENDMENT OF SAVANNAH FOODS &
INDUSTRIES, INC. FILED IN THIS OFFICE ON THE TWENTIETH DAY OF
AUGUST, A.D. 1990, AT 10 O CLOCK A.M.
: : : : : : : : : :
/s/ MICHAEL HARKINS
Michael Harkins,
Secretary of State
AUTHENTICATION: 2765677
DATE: 08/20/1990
CERTIFICATE OF AMENDMENT OF
SAVANNAH FOODS & INDUSTRIES, INC.
CERTIFICATE OF INCORPORATION
Savannah Foods & Industries, Inc., a corporation organized
and existing under and by virtue of the General Corporation Law
of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said
corporation, at a meeting duly held on March 30, 1990, adopted a
resolution proposing and declaring advisable an amendment to the
Certificate of Incorporation of said corporation increasing the
number of shares of common capital stock of $.25 per share par
value from 32,000,000 to 64,000,000 as follows:
RESOLVED, that subject to approval by the
stockholders at the Annual Meeting to be held
on May 24, 1990 that Article Fourth of the
Company s Certificate of Incorporation be
amended so as to increase the authorized
number of shares of common capital stock of
$.25 per share par value from 32,000,000 to
64,000,000.
SECOND: That the Annual Meeting of Stockholders duly
held on May 24, 1990, the stockholders voted 21,104,867 shares
(77.7% of shares outstanding) for and 482,084 shares against said
amendment.
THIRD: That the aforesaid amendment was duly adopted
in accordance with the applicable provisions of section 242 of
the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Savannah Foods & Industries,
Inc. has caused this certificate to be signed by W.W. Sprague,
Jr., its President, and attested by John M. Tatum, its Secretary,
this 10th day of August, 1990.
SAVANNAH FOODS & INDUSTRIES, INC.
By: /s/ W.W. SPRAGUE, JR.
President
ATTEST:
By: /s/ JOHN M. TATUM
Secretary
EXHIBIT 3(ii)
BY-LAWS
OF
SAVANNAH FOODS & INDUSTRIES, INC.
(A DELAWARE CORPORATION)
ARTICLE I.
OFFICES
SECTION 1. Registered Office in Delaware. The registered
office of SAVANNAH FOODS & INDUSTRIES, INC. (hereinafter called
the "Corporation") in the State of Delaware shall be in the City
of Wilmington, County of New Castle, and the registered agent in
charge thereof shall be The Corporation Trust Company, 100 West
Tenth Street, Wilmington, Delaware 19801.
SECTION 2. Other Offices. The Corporation may have such
other office or offices at such other place or places, either
within or without the State of Delaware, as the Board of
Directors may from time to time determine or as shall be
necessary or appropriate for the conduct of the business of the
Corporation.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meeting. Meetings of stockholders may
be held at such place or places, either within or without the
State of Delaware, as the Board of Directors may from time to
time determine, or as shall be necessary or appropriate for the
conduct of the business of the Corporation.
SECTION 2. Annual Meetings. The annual meeting of
stockholders for the election of directors and the transaction of
other business shall be held on the third Thursday in February in
each year commencing with the year 1994. At each annual meeting
the stockholders entitled to vote shall elect a Board of
Directors and may transact such other business as may properly
come before the meeting.
Section 2 Amended 7/21/93
SECTION 3. Special Meetings. A special meeting of the
stockholders, or of any class thereof entitled to vote, for any
purpose or purposes, may be called at any time by the Chairman of
the Board, the President, or by order of the Board of Directors.
SECTION 4. Notice of Meeting. Except as otherwise
expressly required by law, written notice of each meeting of
stockholders, whether annual or special, stating the place, date
and hour of the meeting, shall be given not less than ten days
nor more than fifty days before the date on which the meeting is
to be held, to each stockholders of record entitled to vote
thereat by delivering a notice thereof to him personally or by
mailing such notice in a postage prepaid envelope directed to him
at his address as it appears on the stock ledger of the
Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be
directed to another address, in which case such notice shall be
directed to him at the address designated in such request. Every
notice of a special meeting of the stockholders, besides stating
the time and place of the meeting, shall state briefly the
objects or purposes thereof.
Notices of any meeting of stockholders shall not be required
to be given to any stockholder who shall attend such meeting in
person or by proxy unless such attendance is for the express
purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully
called or convened; and, if any stockholder shall, in person or
by attorney thereunto authorized, in writing or by telegraph,
cable or wireless, waive notice of any meeting of the
stockholders, whether prior to or after such meeting, notice
thereof need not be given to him.
If a meeting is adjourned to another time or place and if
any announcement of the adjourned time and place is made at the
meeting, it shall not be necessary to give notice of the
adjourned meeting unless the adjournment is for more than thirty
days or the Board of Directors, after adjournment, fixes a new
record date for the adjourned meeting.
SECTION 5. List of Stockholders. It shall be the duty of
the Secretary or other officer of the Corporation who shall have
charge of the stock ledger to prepare and make, at least ten days
before every meeting of the stockholders, a complete list of the
stockholders entitled to vote thereat, arranged in alphabetical
order, and showing the address of each stockholder and the number
of shares registered in his name. Such list shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall be kept
and produced at the time and place of the meeting during the
whole time thereof and subject to the inspection of any
stockholder who may be present. The original or duplicate stock
ledger shall be the only evidence as to who are the stockholders
entitled to examine such list or the books of the Corporation or
to vote in person or by proxy at such meeting.
SECTION 6. Quorum. At each meeting of the stockholders,
the holders of record of a majority of the issued and outstanding
stock of the Corporation entitled to vote at such meeting,
present in person or by proxy, shall constitute a quorum for the
transaction of business, except where otherwise provided by law,
the Certificate of Incorporation or these By-Laws. In the
absence of a quorum, any officer entitled to preside at, or act
as Secretary of, such meeting shall have the power to adjourn the
meeting from time to time until a quorum shall be constituted.
At any such adjourned meeting at which a quorum shall be present
any business may be transacted which might have been transacted
at the meeting as originally called, but only those stockholders
entitled to vote at the meeting as originally noticed shall be
entitled to vote at any adjournment or adjournments thereof.
SECTION 7. Voting. Except as otherwise provided in the
Certificate of Incorporation, at every meeting of stockholders
each holder of record of the issued and outstanding stock of the
Corporation entitled to vote at such meeting shall be entitled to
one vote, in person or by proxy, for each such share of stock
entitled to vote held by such stockholder, but no proxy shall be
voted after three years from its date unless the proxy provides
for a longer period. Shares of its own stock belonging to the
Corporation or to another corporation, if a majority of the
shares entitled to vote in the election of directors of such
corporation is held by the corporation, shall neither be entitled
to vote nor counted for quorum purposes. Nothing in this Section
shall be construed as limiting the right of the Corporation to
vote its own stock held by it in a fiduciary capacity. At all
meetings of the stockholders, a quorum being present, all matters
shall be decided by majority vote of the shares of stock entitled
to vote held by stockholders present in person or by proxy,
except as otherwise required by the Certificate of Incorporation
or the laws of the State of Delaware.
Unless demanded by a stockholder of the corporation present
in person or by proxy at any meeting of the stockholders and
entitled to vote thereat, or so directed by the Chairman of the
meeting or required by the laws of the State of Delaware, the
vote thereat on any question need not be by ballot. On a vote by
ballot, each ballot shall be signed by the stockholder voting, or
in his name by his proxy, if there by such proxy, and shall state
the number of shares voted by him and the number of votes to
which each share is entitled.
SECTION 8. Inspectors at Shareholders' Meetings. The Board
of Directors, in advance of any shareholders' meeting may appoint
one or more inspectors to act at the meeting or any adjournment
thereof. If inspectors are not so appointed, the person
presiding at the shareholders' meeting may, and on the request of
any shareholder entitled to vote thereat shall, appoint one or
more inspectors. In case any person appointed fails to appear or
act, the vacancy may be filled by appointment made by the Board
of Directors in advance of the meeting or at the meeting by the
person presiding thereat. Each inspector, before entering the
discharge of his duties, shall take and sign an oath faithfully
to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability.
The inspectors shall determine the number of shares
outstanding and the voting power of each, the shares represented
at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes,
ballots or consents, determine the result, and do such acts as
are proper to conduct the election or vote with fairness to all
shareholders. On request of the person presiding at the meeting
or any shareholder entitled to vote thereat, the inspectors shall
make a report in writing of any challenge, question or matter
determined by them and execute a certificate of any fact found by
them. Any report or certificate made by them shall be prima
facia evidence of the facts stated and the vote as certified by
them.
SECTION 9. Nominations of Directors. Only persons who are
nominated in accordance with the following procedures shall be
eligible for election as directors of the Corporation.
Nominations of persons for election to the Board of Directors may
be made at any annual meeting of stockholders, or at any special
meeting of stockholders called in the manner set forth in Article
II, Section 3 hereof for the purpose of electing directors, (a)
by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (b) by any stockholder of the
Corporation (i) who is a stockholder of record on the date of the
giving of the notice provided for in this Section 9 and on the
record date for the determination of stockholders entitled to
vote at such meeting and (ii) who complies with the notice
procedures set forth in this Section 9.
In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must
have given timely notice thereof in proper written form to the
Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must
be delivered to or mailed and received at the principal executive
offices of the Corporation (a) in the case of an annual meeting,
not less than sixty (60) days nor more than ninety (90) days
prior to the anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the event
that the annual meeting is called for a date that is not within
thirty (30) 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 (10th) 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) in the
case of a special meeting of stockholders called in the manner
set forth in Article II, Section 3 hereof for the purpose of
electing directors, not later than the close of business on the
tenth (10th) 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.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the
stockholder proposes to nominate for election as a director (i)
the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the
person, (iii) the class or series and number of shares of capital
stock of the Corporation which are owned beneficially or of
record by the person and (iv) any other information relating to
the person that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations promulgated
thereunder; and (b) as to the stockholder giving the notice (i)
the name and record address of such stockholder, (ii) the class
or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such
stockholder, (iii) a description of all arrangements or
understandings between such stockholder and each proposed nominee
and any other person or persons (including their names) pursuant
to which the nomination(s) are to be made by such stockholder,
(iv) a representation that such stockholder intends to appear in
person or by proxy at the meeting to nominate the persons named
in its notice and (v) any other information relating to such
stockholder that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to
Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a
nominee and to serve as a director if elected.
No person shall be eligible for election as a director of
the Corporation unless nominated in accordance with the
procedures set forth in this Section 9. If the Chairman of the
meeting determines that a nomination was not made in accordance
with the foregoing procedures, the Chairman shall declare to the
meeting that the nomination was defective nomination shall be
disregarded.
Section 9 Inserted 12/6/91
SECTION 10. Action at Meetings of Stockholders. No
business may be transacted at an annual meeting of stockholders,
other than business that is either (a) specified in the notice of
meeting (or any duly authorized committee thereof), (b) otherwise
properly brought before the annual meeting by or at the direction
of the Board of Directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the annual
meeting by any stockholder of the Corporation (i) who is a
stockholder of record on the date of the giving of the notice
provided for in this Section 10 and on the record date for the
determination of stockholders entitled to vote at such annual
meeting and (ii) who complies with the notice procedures set
forth in this Section 10.
In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a
stockholder, such stockholder must have given timely notice
thereof in proper written form to the Secretary of the
Corporation.
To be timely, a stockholder's notice to the Secretary must
be delivered to or mailed and received at the principal executive
offices of the Corporation not less than sixty (60) days nor more
than ninety (90) days prior to the anniversary date of the
immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for
a date that is not within thirty (30) 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 (10th) 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.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder
proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the
annual meeting, (ii) the name and record address of such
stockholder, (iii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or
of record by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder and any
other person or persons (including their names) in connection
with the proposal of such business by such stockholder and any
material interest of such stockholder in such business and (v) a
representation that such stockholder intends to appear in person
or by proxy at the annual meeting to bring such business before
the meeting.
No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in
accordance with the procedures set forth in this Section 10,
provided, however, that, once business has been properly brought
before the annual meeting in accordance with such procedures,
nothing in this Section 10 shall be deemed to preclude discussion
by any stockholder of any such business. If the Chairman of an
annual meeting determines that business was not properly brought
before the annual meeting in accordance with the foregoing
procedures, the Chairman shall declare to the meeting that the
business was not properly brought before the meeting and such
business shall not be transacted.
The business transacted at any special meeting of
stockholders called in the manner set forth in Article II,
Section 3 hereof shall be confined to the business stated in the
notice of meeting, as determined by the person or persons calling
such meeting.
Section 10 Inserted 12/6/91
ARTICLE III.
BOARD OF DIRECTORS
SECTION 1. General Powers. The property, business and
affairs of the Corporation shall be managed by the Board of
Directors.
SECTION 2. Number, Term of Office, and Qualifications. The
number of Directors shall not be less than three nor more than
fifteen as fixed from time to time by resolution of the Board of
Directors; provided however, that the number of Directors to be
elected at the annual meeting in 1987 shall be four, to be
elected for three-year terms expiring in 1990. And, upon
approval of this amendment by the stockholders, the Directors
then in office will elect a fifth member for a three-year term
expiring in 1990.
Section 2 amended 2/16/95
Commencing in the year 1988, all Directors to be elected
shall be elected for three-year terms except as hereinafter
provided in Section 9 of Article III of these By-Laws with
respect to Directors elected to fill certain vacancies; provided,
however, that the director elected by the Board of Directors in
1990 to fill the vacancy created by the increase in the number of
Directors to 13 will serve until the annual meeting in 1991. No
person shall be eligible to serve as a Director beyond December
31 of the year in which he reaches the age of sixty-eight, and no
person shall be eligible to serve as a Director beyond December
31 of the third year following retirement from his principal
occupation of employment at the time he first became a Director.
Each Director shall continue in office until the annual meeting
in the year in which his term expires and until his successor
shall have been elected and qualified, or until his death,
resignation, or removal.
Section 2 Amended 2/1/91
SECTION 3. Quorum and Manner of Acting. Unless otherwise
provided by law, the presence of one-third of the whole Board of
Directors shall be necessary to constitute a quorum for the
transaction of business. In the absence of a quorum, a majority
of the directors present may adjourn the meeting from time to
time until a quorum shall be present. Notice of any adjourned
meeting need not be given. At all meetings of directors, a
quorum being present, all matters shall be decided by the
affirmative vote of a majority of the directors present, except
as otherwise required by the laws of the State of Delaware.
SECTION 4. Place of Meetings, etc. The Board of Directors
may hold its meetings and keep the books and records of the
Corporation at such place or places within or without the State
of Delaware, as the Board may from time to time determine.
SECTION 5. Annual Meeting. As promptly as practicable
after each annual meeting of stockholders for the election of
directors, the Board of Directors shall meet in Savannah,
Georgia, for the purpose of organization, the election of
officers and the transaction of other business. Notice of such
meeting need not be given. If such meeting is held at any other
time, notice thereof must be given as hereinafter provided for
special meetings of the Board of Directors or a consent and
waiver of notice thereof must be signed by all the directors.
SECTION 6. Regular Meetings. The Board of Directors shall
hold six regular meetings annually at such time and place, within
or without the State of Delaware, as determined by the President
and specified in the notice of call thereof. The President shall
endeavor to schedule the regular meetings during a calendar year
at approximately even intervals if practicable. Notice of call
of such meetings shall specify the time and date and be given
each director in writing mailed no less than five (5) days nor
more than thirty (30) days before such meeting.
Section 6 Amended 3/4/88
SECTION 7. Special Meetings. Special meetings of the Board
of Directors may be called at any time by the Chairman of the
Board, when there is such an officer, or by the President, and
shall be called at the request in writing of any three directors,
on not less than three hours' notice to each director personally
or by telegram, or on not less than three days' written notice to
each director by mail. Notice of call of each special meeting
shall state the date, time and place of the meeting. In lieu of
the notice to be given as set forth above, a waiver thereof in
writing, signed by the director or directors entitled to said
notice, whether prior to or after the meeting in question, shall
be deemed equivalent thereto for purposes of this Section 7. No
notice to or waiver by any director with respect to any special
meeting shall be required if such director shall be present at
said meeting.
SECTION 8. Resignation. Any director of the Corporation
may resign at any time by giving written notice to the Chairman
of the Board, when there is such an officer, or to the President
or the Secretary of the Corporation. The resignation of any
director shall take effect upon receipt of notice thereof or at
such later time as shall be specified in such notice; and, unless
otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective. When one or more
directors shall resign from the Board, effective at a future
date, a majority of the directors then in office, including those
who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation
or resignations shall become effective.
(A). Any director or the entire Board of Directors may be
removed, with or without cause, by an affirmative vote of 75% of
the holders of the outstanding stock of the Corporation entitled
to vote in the election of directors, considered for this purpose
as one class, taking such action at an annual meeting of
stockholders or at a special meeting of stockholders duly called
for such purpose. Alternatively, any director may be removed for
cause at any time by the affirmative vote of a majority of the
directors then in office.
SECTION 9. Vacancies. Vacancies and newly created
directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors
then in office, though less than a quorum, unless otherwise
provided by the Certificate of Incorporation or the laws of the
State of Delaware. Each director so chosen shall hold office for
the unexpired term of the director whose place shall be vacant,
provided that each director so chosen to fill the vacancy created
by increase in the number of directors shall be elected for a
term to be designated by the Directors at the time of his
election and shall continue in office for such term and until his
successor shall have been elected and qualified, and until his
death, resignation or removal.
SECTION 10. Compensation of Directors. Directors, by
resolutions of the Board, may be appropriately compensated for
their work as directors, and for attendance at each regular or
special meeting of the Board, or any Committee thereof. Nothing
herein contained shall be construed to preclude any director from
servicing the Corporation or any subsidiary thereof in any other
capacity and receiving compensation therefore.
SECTION 11. Executive Committee and Other Committees. The
Board of Directors, by resolution adopted by a majority of the
entire Board, may designate from among its members an Executive
Committee and other committees to serve at the pleasure of the
Board. Each committee shall consist of three or more directors.
Except as set forth below and as otherwise limited by the General
Corporation Law of the State of Delaware, the Executive Committee
shall have all of the authority of the Board of Directors. Each
other committee shall be empowered to perform such functions as
may, by resolution, be delegated to it by the Board.
The Board of Directors may designate one or more directors
as alternate members of any such committee, who may replace any
absent member or members at any meetings of such committee.
Vacancies in any committee, whether caused by resignation or by
increase in the number of members constituting said committee,
shall be filled by a majority of the entire Board of Directors.
The Executive Committee may fix its own quorum and elect its own
Chairman. In the absence or disqualification of any member of
such committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in place of any
such absent or disqualified member.
The Board of Directors shall have power to change the
membership of any such committee at any time and to discharge any
such committee, either with or without cause, at any time. Each
member of any such committee shall be paid such fee, if any, as
shall be fixed by the Board of Directors for each meeting of such
committee which he shall attend and, in addition, such
transportation and other expenses actually incurred by him in
going to the meeting of such committee and returning therefrom as
the Board of Directors shall approve.
SECTION 12. Action Without Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or
of any committee thereof may be taken without a meeting if a
written consent thereto is signed by all members of the Board or
of such committee, as the case may be, and such written consent
is filed with the minutes or proceedings of the Board or
committee.
ARTICLE IV.
OFFICERS
SECTION 1. Number. The principal officers of the
Corporation shall be a President, one or more Vice Presidents, a
Secretary and a Treasurer. The Corporation may also have, at the
discretion of the Board of Directors, a Chairman of the Board of
Directors, an Executive Vice President, and such other officers
as may be appointed in accordance with the provisions of these
By-Laws. The offices of Executive Vice President, or of a Vice
President, the Secretary and the Treasurer or any of them may be
held by the same persons in the discretion of the Board of
Directors. The offices of President and Treasurer may also be
held by the same person.
SECTION 2. Election and Term of Office. The principal
officers of the Corporation shall be chosen annually by the Board
of Directors at the annual meeting thereof. Each such officer
shall hold office until his successor shall have been duly chosen
and shall qualify, or until his death, or until he shall resign
or shall have been removed in the manner hereinafter provided.
SECTION 3. Subordinate Officers. In addition to the
principal officers enumerated in Section I of this Article IV,
the Corporation may have one or more Assistant Secretaries, one
or more Assistant Treasurers, and such other officers, agents and
employees as the Board of Directors may deem necessary, each of
whom shall hold office for such period, have such authority, and
perform such duties as the President or the Board of Directors
may from time to time determine. The Board of Directors may
delegate to any principal officer the power to appoint and to
remove any such subordinate officers, agents or employees.
SECTION 4. Removal. Any officer may be removed, either
with or without cause, at any time, by resolution adopted by the
Board of Directors at any regular meeting of the Board, or at any
special meeting of the Board called for that purpose at which a
quorum is present.
SECTION 5. Resignations. Any officer may resign at any
time by giving written notice to the Board of Directors or to the
President or to the Secretary. Any such resignation shall take
effect upon receipt of such notice or at any later time specified
therein; and, unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
SECTION 6. Vacancies. A vacancy in any office may be
filled for the unexpired portion of the term in the manner
prescribed in these By-Laws for election or appointment to such
office for such term.
SECTION 7. Chairman of the Board. When there is a Chairman
of the Board he shall preside at all meetings of stockholders and
at all meetings of the Board of Directors. He shall perform such
other duties and have such other powers as the Board of Directors
may from time to time prescribe.
SECTION 8. President. The President shall be the Chief
Executive Officer of the Corporation, and as such shall have
general supervision of the affairs of the Corporation, subject to
the control of the Board of Directors. He shall be an ex officio
member of all standing committees. In the absence of the
Chairman of the Board, or whenever the office is vacant, the
President shall preside at all meetings of stockholders and at
all meetings of the Board of Directors. Subject to the control
and direction of the Board of Directors the President may enter
into any contract or execute and deliver any instrument in the
name and on behalf of the Corporation. In general, he shall
perform all duties incident to the office of President, as herein
defined, and all such other duties as from time to time may be
assigned to him by the Board of Directors.
SECTION 9. Vice Presidents. When there is an Executive
Vice President, he shall, in the absence or disability of the
President, perform the duties and exercise the powers of the
President. He shall perform such other duties and have such
other powers as the President or the Board of Directors may from
time to time prescribe. In the absence or disability of the
Executive Vice President, the Board of Directors shall determine
the Vice President or other officer to perform the duties and
exercise the powers of the President.
Vice Presidents shall perform such duties and have such
other powers as the President or the Board of Directors may from
time to time prescribe.
SECTION 10. Secretary. The Secretary, if present, shall
act as secretary at all meetings of the Board of Directors and of
the stockholders, and keep the minutes thereof in a book or books
to be provided for that purpose; shall see that all notices
required to be given by the Corporation are duly given and
served; shall have charge of the stock records of the
Corporation; shall see that all reports, statements and other
documents required by law are properly kept and filed; and in
general, shall perform all the duties incident to the office of
Secretary and such other duties as from time to time may be
assigned to him by the President or the Board of Directors.
SECTION 11. Treasurer. The Treasurer shall have charge and
custody of, and be responsible for, all funds and securities of
the Corporation, and shall deposit all such funds in the name of
the Corporation in such banks or other depositories as shall be
selected by the Board of Directors. He shall exhibit at all
reasonable times his books of account and records to any of the
directors of the Corporation upon application during business
hours at the office of the Corporation where such books and
records shall be kept; when requested by the Board of Directors,
shall render a statement of the condition of the finances of the
Corporation at any meeting of the Board or at the annual meeting
of stockholders; shall receive, and give receipts for, moneys due
and payable to the Corporation from any source whatsoever; and in
general, shall perform all the duties incident to the office of
the Treasurer and such other duties as from time to time may be
assigned to him by the President or the Board of Directors. The
Treasurer shall give such bond, if any, for the faithful
discharge of his duties as the Board of Directors may require.
SECTION 12. Salaries. The salaries of the principal
officers shall be fixed from time to time by the Board of
Directors, and the salaries of any other officers may be fixed by
the President.
ARTICLE V.
SHARES AND THEIR TRANSFER
SECTION 1. Certificate for Stock. Every stockholder of the
Corporation shall be entitled to a certificate or certificates,
to be in such form as the Board of Directors shall prescribe,
certifying the number of shares of the capital stock of the
Corporation owned by him.
SECTION 2. Stock Certificate Signature. The certificates
for such stock shall be numbered in the order in which they shall
be issued and shall be signed by the President or any Vice
President and the Secretary or Treasurer of the Corporation, and
its seal shall be affixed thereto. If such certificate is
countersigned (1) by a transfer agent other than the Corporation
or its employee, or, (2) by a registrar other than the
Corporation or its employee, the signatures of such officers of
the Corporation may be facsimiles. In case any officer of the
Corporation who has signed, or whose facsimile signature has been
placed upon any such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by
the Corporation with the same effect as if he were such officer
at the date of issue.
SECTION 3. Stock Ledger. A record shall be kept by the
Secretary, transfer agent or by any other officer, employee or
agent designated by the Board of Directors of the name of the
person, firm or corporation holding the stock represented by such
certificates, the number of shares represented by such
certificates, respectively, and the respective dates thereof, and
in case of cancellation, the respective dates of cancellation.
SECTION 4. Cancellation. Every certificate surrendered to
the Corporation for exchange or registration of transfer shall be
canceled, and no new certificate or certificates shall be issued
in exchange for any existing certificate until such existing
certificate shall have been so cancelled, except in cases
provided in Section 7 of this Article V.
SECTION 5. Registrations of Transfers of Stock.
Registrations of transfers of shares of the capital stock of the
Corporation shall be made on the books of the Corporation by the
registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the
Secretary of the Corporation, or with a transfer clerk or a
transfer agent appointed as in Section 6 of this Article V
provided, and on surrender of the certificate or certificates for
such shares properly endorsed and the payment of all taxes
thereon. The person in whose name shares of stock stand on the
books of the Corporation shall be deemed the owner thereof for
all purposes as regards the Corporation; provided, however, that
whenever any transfer of shares shall be made for collateral
security, and not absolutely, it shall be so expressed in the
entry of the transfer if, when the certificates are presented to
the Corporation for transfer, both the transferor and the
transferee request the Corporation to do so.
SECTION 6. Regulations. The Board of Directors may make
such rules and regulations as it may deem expedient, not
inconsistent with the Certificate of Incorporation or these
By-Laws, concerning the issue, transfer and registration of
certificates for shares of the stock of the Corporation. It may
appoint, or authorize any principal officer or officers to
appoint, one or more transfer clerks or one or more transfer
agents and one or more registrars, and may require all
certificates of stock to bear the signature or signatures of any
of them.
SECTION 7. Lost, Stolen, Destroyed or Mutilated
Certificates. As a condition of the issue of a new certificate
for shares of stock in the place of any certificate theretofore
issued and alleged to have been lost, stolen, mutilated or
destroyed, the Board of Directors, in its discretion, may require
the owner of any such certificate, or his legal representatives,
to file with the Corporation a bond in such sum and in such form
as it may deem sufficient to indemnify the Corporation against
any claim that may be made against it on account of the alleged
loss, theft, mutilation or destruction of any such certificate or
the issuance of such new certificate. Proper evidence of such
loss, theft, mutilation or destruction shall be procured for the
Board of Directors, if it so requires. The Board of Directors,
in its discretion, may authorize the issuance of new certificates
without any bond when in its judgment it is proper to do so.
SECTION 8. Record Dates. For the purpose of determining
the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors
may fix, in advance, a date as a record date for any such
determination of stockholders. Such record date shall not be
more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action.
Section 8 Amended 12/6/91
ARTICLE VI.
INDEMNIFICATION
The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of
Delaware, 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.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
SECTION 1. Corporate Seal. The Board of Directors shall
provide a corporate seal, which shall be in the form of a circle,
and shall bear the name of the Corporation and words and figures
showing that it was incorporated in the State of Delaware in the
year 1969. The Secretary shall be the custodian of the seal.
The Board of Directors may authorize a duplicate seal to be kept
and used by any other officer.
SECTION 2. Fiscal Year. The fiscal year of the Corporation
shall end on the Sunday nearest September 30 in each year
commencing with the year 1993.
Section 2 Amended 7/21/93
SECTION 3. Voting of Stocks Owned by the Corporation. The
Board of Directors may authorize any person in behalf of the
Corporation to attend, vote and grant proxies to be used at any
meeting of stockholders of any corporation (except this
Corporation) in which the Corporation may hold stock.
SECTION 4. Dividends. Subject to the provisions of the
Certificate of Incorporation, the Board of Directors may, out of
funds legally available therefor, at any regular or special
meeting declare dividends upon the capital stock of the
Corporation as and when they deem expedient. Before declaring
any dividend, there may be set apart out of any funds of the
Corporation available for dividends such sum or sums as the
directors from time to time in their discretion deem proper for
working capital, or as a reserve fund to meet contingencies, or
for equalizing dividends, or for such other purposes as the Board
of Directors shall deem conducive to the interests of the
Corporation.
ARTICLE VIII.
AMENDMENTS
The Board of Directors may alter, amend or repeal the
By-laws of the Corporation at any regular or special meeting of
the Board of Directors. Except as may otherwise be provided in
the Certificate of Incorporation, stockholders may alter, amend
or repeal the By-laws of the Corporation at any annual or special
meeting of stockholders only upon the affirmative vote of a
majority of the stock of the Corporation issued and outstanding
and entitled to vote in respect thereof, provided that notice of
the proposed alteration, amendment or repeal is contained in the
notice of such meeting. By-laws, whether made or altered by the
stockholders or by the Board of Directors, shall be subject to
alteration or repeal by the stockholders as in this Article VIII
above provided.
Article VIII Amended 12/6/91
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
March 27, 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
affiliates (collectively, the "Corporation") are or may become
obligated in respect of their existing compensation and benefit
plans, agreements, programs and arrangements listed on Exhibit A
attached 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
contributions 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
agreements contained herein and for other good and valuable
consideration, 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
distributions, satisfy the Corporation's obligations under the
Plans.
ARTICLE II.
TRUST AND THE TRUST CORPUS
SECTION 2.1 Delivery of Funds and Common Stock. 1.
Concurrently with the execution of this Trust Agreement, the
Company is contributing to the Trust in cash an amount equal to
the aggregate par value of 2,500,000 shares of common stock of
the Company, par value $0.25 per share ("Common Stock").
2. Concurrently with the execution of this Trust
Agreement, the Company is selling to the Trustee 2,500,000
shares of Common Stock (the "Acquired Shares"), 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, (i) an amount in cash equal to the aggregate par
value of the Acquired Shares, and (ii) a Note (the "Note") of the
Trust in the original principal amount of $26,875,000, in payment
of the remainder of the purchase price for the Acquired Shares.
3. 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
interest. 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
Corporation 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
direction 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
Principal 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
collateral released pursuant to this Section 3.2 (the "Released
Collateral") shall be contributed to the trust established under
a Plan or, in the case of any Plan under which no trust has been
established, directly to Participants (or Beneficiaries, if
appropriate) 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 Participants (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
Corporation. 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 receives 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
bankruptcy, petition or apply to any tribunal for the
appointment of a custodian, receiver, liquidator,
sequestrator, or any trustee for it or a substantial
part of its assets, or shall commence any case under
any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, dissolution,
liquidation or similar law or statute of any
jurisdiction (federal or state), whether 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 custodianship, receivership or
trusteeship to continue undischarged 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
responsibilities 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
hereunder 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 reasonable
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
investigation 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
performance 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
Equivalents; 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
reorganization, consolidation, merger or readjustment
of the finances 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 securities of which may at any
time be held in the Trust and to do any act with
reference thereto, including the exercise of options,
the making of agreements or subscriptions and the
payment of expenses, assessments or subscriptions,
which may be deemed necessary or advisable in
connection therewith, and to hold and retain any
securities 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, expenses 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
securities 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 instruments 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
substitution 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. 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
otherwise 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 Securities 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
investment banking firm that such Securities Transaction would
adversely 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
Securities 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
Transaction, 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
Company, 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
convertible 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 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 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
exchanged, such number and percentage to be based upon the
instructions 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
terminated 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 Corporation, 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 obligations 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
authorized 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 holding securities pursuant to an offering
of such securities, 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 indirectly, of securities
of the Company representing 20% or more of the combined
voting power of the Company's then outstanding 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 Exchange 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 immediately 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
disposition 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
combined voting power of the Company's then outstanding
voting securities; or
(ii) the Company enters into an
agreement, the consummation of which would result in
the occurrence 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 purpose 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 published 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
successors 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
circumstances 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
accordance 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 security 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
otherwise 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
foregoing 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
agreements or elections made thereunder
2. Deferred Compensation Plan for Key Employees of Savannah
Foods & Industries, Inc. (Amendment and Restatement
effective August 12, 1983), as amended, and all deferred
compensation 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
elections 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
