<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 14, 1997
REGISTRATION NO. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
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 of Incorporation) (I.R.S. Employer Identification No.)
2 EAST BRYAN STREET 31402
SAVANNAH, GEORGIA (Zip Code)
(Address of Principal Executive Offices)
SAVANNAH FOODS & INDUSTRIES, INC.
1996 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
MR. GREGORY H. SMITH
SENIOR VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND TREASURER
SAVANNAH FOODS & INDUSTRIES, INC.
2 EAST BRYAN STREET
SAVANNAH, GEORGIA 31402
(Name and Address of Agent for Service)
(912) 234-1261
(Telephone Number, including Area Code, of Agent for Service)
------------------------
with copies to:
WARD S. BONDURANT, ESQ.
HUNTER, MACLEAN, EXLEY & DUNN, P.C.
THE PEACHTREE, SUITE 640
1355 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30309
(404) 876-3611
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================
Title of securities Amount to be Proposed maximum Proposed Maximum Amount of
to be registered registered offering price per aggregate offering registration fee
share(1) price(1)
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<S> <C> <C> <C> <C>
Common Stock, 1,250,000 shares(2) $14.8125 $18,515,625 $5,610.80
$0.25 par value
- --------------------------------------------------------------------------------------------------------------
Total Registration Fee: $5,610.80
==============================================================================================================
</TABLE>
(1) The price is estimated in accordance with Rule 457(h)(1) and 457(c)
under the Securities Act of 1933, solely for the purpose of
calculating the registration fee and is based upon the average of the
high and low sales price of the shares of Common Stock of the
Registrant quoted on the New York Stock Exchange on March 11, 1997.
(2) This represents the maximum number of shares of the Registrant's
Common Stock, $0.25 par value per share, reserved for issuance under
the 1996 Equity Incentive Plan.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the employee benefit plan information required by
Item 1 of Form S-8 and the statement of availability of Registrant information
and any other information required by Item 2 of Form S-8 will be sent or given
to participants as specified by Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"). In accordance with Rule 428 and the
requirements of Part I of Form S-8, such documents are not being filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act. The Registrant shall maintain a file of
such documents in accordance with the provisions of Rule 428. Upon request, the
Registrant shall furnish to the Commission or its staff a copy or copies of all
of the documents included in such file.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the
year ended September 29, 1996;
(b) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange Act since September 29, 1996;
(c) The description of the Registrant's common stock to
be offered hereby which is contained in the Registration Statement on
Form 8-A filed pursuant to Section 12 of the Exchange Act on September
25, 1992, including any amendments or reports filed for the purpose of
updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of
filing of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference and to be a part of this Registration Statement
from the date of the filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be 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 Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. 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 hereto 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.
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<PAGE> 4
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.
Section 5.3 of the 1996 Equity Incentive Plan (the "Plan") provides
that neither the Board of Directors of the Registrant nor the committee of the
Board of Directors established to administer the Plan, nor any member of
either, shall be liable for any act, omission, interpretation, construction or
determination made in good faith in connection with the Plan. Under Section
5.3 of the Plan, the members of the Board of Directors or of the aforementioned
committee of the Board of Directors of the Registrant shall be entitled to
indemnification and reimbursement by the Registrant in respect of any claim,
loss, damage or expense (including, without limitation, attorneys' fees)
arising or resulting therefrom to the fullest extent permitted by law and/or
under any directors and officers liability insurance coverage which may be in
effect from time to time.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Certificate of Incorporation of the Registrant, as amended
(previously filed as Exhibit 3.1 to the Registrant's Form 10-K
for the year ended January 3, 1993)
4.2 By-Laws of the Registrant, as amended (previously filed as
Exhibit 3.3 to the Registrant's Form 10-K for the year ended
October 1, 1995)
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<PAGE> 5
4.3 Savannah Foods & Industries, Inc., 1996 Equity Incentive Plan
(and form of Award Agreement).
5.1 Opinion of Hunter, Maclean, Exley & Dunn, P.C.
23.1 Consent of Hunter, Maclean, Exley & Dunn, P.C. is contained in
its legal opinion filed as Exhibit 5.1.
23.2 Consent of Price Waterhouse LLP.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant 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, as amended;
(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
end 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 a 20% 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 registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 and 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 of 1933, as amended, 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.
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<PAGE> 6
(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 undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, as amended,
each filing of the Registrant's annual report pursuant to Section 13(a) or
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, as amended, may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described in
Item 6 above, or otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange 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 Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant 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 Registrant 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 of 1933, as amended,
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Savannah, State of Georgia, on February 20, 1997.
SAVANNAH FOODS & INDUSTRIES, INC.
By: /S/WILLIAM W. SPRAGUE, III
---------------------------------
William W. Sprague, III
President and Chief Executive
Officer
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<PAGE> 7
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 20th day of February, 1997.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/S/ R. EUGENE CARTLEDGE Director, Chairman of the Board
--------------------------------------
R. Eugene Cartledge
/S/ WILLIAM W. SPRAGUE, III Director, President and Chief Executive Officer
--------------------------------------
William W. Sprague, III
/S/ GREGORY H. SMITH Senior Vice President, Chief Financial Officer and
-------------------------------------- Treasurer
Gregory H. Smith
/S/ F. SPRAGUE EXLEY Director, Senior Vice President Human Resources and
-------------------------------------- Administration and Assistant Secretary
F. Sprague Exley
/S/ JAMES M. KELLEY Senior Vice President; President of Dixie Crystals
-------------------------------------- Brands, Inc.
James M. Kelley
/S/ DAVID H. ROCHE Senior Vice President; President of Michigan Sugar
-------------------------------------- Company and Savannah Foods Industrial, Inc.
David H. Roche
/S/ BENJAMIN A. OXNARD, JR. Senior Vice President, Raw Sugar
--------------------------------------
Benjamin A. Oxnard, Jr.
/S/ DALE C. CRITZ Director
--------------------------------------
Dale C. Critz
/S/ ARTHUR M. GIGNILLIAT, JR. Director
--------------------------------------
Arthur M. Gignilliat, Jr.
/S/ ROBERT S. JEPSON, JR. Director
--------------------------------------
Robert S. Jepson, Jr.
</TABLE>
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<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
Director
/S/ ARNOLD TENENBAUM
-----------------------------------------
Arnold Tenenbaum
/S/ W. WALDO BRADLEY Director
-----------------------------------------
W. Waldo Bradley
/S/ JOHN D. CARSWELL Director
-----------------------------------------
John D. Carswell
/S/ HUGH M. TARBUTTON Director
-----------------------------------------
Hugh M. Tarbutton
/S/ LEE B. DURHAM, JR. Director
-----------------------------------------
Lee B. Durham, Jr.
/S/ ROBERT L. HARRISON Director
-----------------------------------------
Robert L. Harrison
/S/ JAMES M. REED Director
-----------------------------------------
James M. Reed
</TABLE>
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<PAGE> 9
EXHIBIT INDEX
4 .1 Certificate of Incorporation of the Registrant, as amended
(previously filed as Exhibit 3.1 to the Registrant's Form 10-K
for the year ended January 3, 1993)
4 .2 By-Laws of the Registrant, as amended (previously filed as
Exhibit 3.3 to the Registrant's Form 10-K for the year ended
October 1, 1995)
4 .3 Savannah Foods & Industries, Inc., 1996 Equity Incentive Plan
(and form of Award Agreement).
5 .1 Opinion of Hunter, Maclean, Exley & Dunn, P.C.
23.1 Consent of Hunter, Maclean, Exley & Dunn, P.C. is contained in
its legal opinion filed as Exhibit 5.1.
23.2 Consent of Price Waterhouse LLP.
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<PAGE> 1
EXHIBIT 4.3
SAVANNAH FOODS & INDUSTRIES, INC.
1996 EQUITY INCENTIVE PLAN
SECTION 1
PURPOSE
The purpose of this Plan is to promote the interests of the Company,
its Subsidiaries and its shareholders by enabling the Company and its
Subsidiaries to attract, retain and motivate employees or those who will
become employees, and to align the interests of those individuals and the
Company's shareholders. To do this, the Plan offers equity- based
opportunities providing such employees with a proprietary interest in
maximizing the growth, profitability and overall success of the Company and its
Subsidiaries.
SECTION 2
DEFINITIONS
Each term set forth in this Section shall have the meaning set forth
opposite such term for purposes of this Plan and, for purposes of such
definitions, the singular shall include the plural and the plural shall include
the singular.
2.1 Award means an award or grant of an Option or Restricted Stock
made to a Participant under this Plan.
2.2 Award Agreement means the agreement executed by a Participant
pursuant to this Plan in connection with the granting of an Award.
2.3 Board means the Board of Directors of the Company, as
constituted from time to time.
2.4 Change in Control has the meaning set forth in Section 15.
2.5 Code means the Internal Revenue Code of 1986, as amended.
2.6 Committee means the committee of the Board established to
administer the Plan, as appointed under Section 5 of the Plan.
2.7 Common Stock means the $.25 par value common stock of the
Company.
2.8 Company means Savannah Foods & Industries, Inc., a Delaware
corporation, and any successor to such organization.
2.9 Disability means disability as defined in the Participant's
then effective employment agreement, or if the Participant is not then a party
to an effective employment agreement with the Company which defines disability,
"Disability" means disability as determined by the Committee in accordance with
standards and procedures similar to those under the Company's long-term
disability plan, if any. Subject to the first sentence of this Section 2.9, at
any time that the Company does not maintain a long-term disability plan,
"Disability" shall mean any physical or mental disability which is determined
to be total and permanent by a physician selected in good faith by the Company.
2.10 Employee means an employee of the Company, a Subsidiary or a
Parent.
<PAGE> 2
2.11 Exchange Act means the Securities Exchange Act of 1934, as
amended.
2.12 Fair Market Value means on, or with respect to, any given
date(s), the average of the highest and lowest market prices of the Common
Stock, as reported on the consolidated reporting system for the New York Stock
Exchange for such date(s) or, if the Common Stock was not traded on such
date(s), on the next preceding day or days on which the Common Stock was
traded. If at any time the Common Stock is not traded on such exchange, the
Fair Market Value of a share of the Common Stock shall be determined in good
faith by the Board.
2.13 Option means an option to purchase Shares granted under this
Plan.
2.14 Option Price means the price which shall be paid to purchase
one (1) Share upon the exercise of an Option granted under this Plan.
2.15 Parent means any corporation which is a parent corporation of
the Company within the meaning of Section 424(e) of the Code.
2.16 Participant means any individual who is selected from time to
time to receive an Award under the Plan.
2.17 Plan means the Savannah Foods & Industries, Inc. 1996 Equity
Incentive Plan, as amended from time to time.
2.18 Restricted Stock means Shares granted pursuant to Section 9.
2.19 Retirement means the voluntary retirement by the Participant
from active employment with the Company and its Subsidiaries on or after the
attainment of (i) age 65, or (ii) 60, with the consent of the Board.
2.20 Share means a share of the Common Stock of the Company.
2.21 Subsidiary means any corporation which is a subsidiary
corporation of the Company within the meaning of Section 424(f) of the Code.
2.22 Surrendered Shares means the Shares described in Section 8.7
which (in lieu of being purchased) are surrendered for cash or Shares, or for a
combination of cash and Shares, in accordance with Section 8.7.
SECTION 3
SHARES SUBJECT TO PLAN
The total number of Shares that may be issued pursuant to Options or
Restricted Stock Grants granted under this Plan shall not exceed One Million
Two Hundred and Fifty Thousand (1,250,000) Shares, as adjusted below and
pursuant to Section 12. Such Shares shall be reserved to the extent that the
Company deems appropriate from authorized but unissued Shares and from Shares
which have been reacquired by the Company. Furthermore, any Shares subject to
an Award granted hereunder which remain after the cancellation, expiration or
exchange of such Award shall again become available for use under this Plan,
but any Surrendered Shares which remain after the surrender of an Option under
Section 8.7 shall not again become available for use under this Plan.
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<PAGE> 3
SECTION 4
EFFECTIVE DATE
The effective date of this Plan shall be the date it is adopted by the
Board, provided the shareholders of the Company approve this Plan within twelve
(12) months after such effective date. If such effective date comes before
such shareholder approval, any Awards granted under this Plan before the date
of such approval shall automatically be granted subject to such approval.
SECTION 5
ADMINISTRATION
5.1 The Committee. This Plan shall be administered by the
Committee. The Committee shall be appointed from time to time by the Board and
shall consist of not less than three (3) of the then members of the Board who
are Non-Employee Directors (within the meaning of Rule 16b-3(b)(3) promulgated
pursuant to the Exchange Act) of the Company. No member of the Committee shall
be eligible to receive Awards under the Plan. Consistent with the Bylaws of
the Company, members of the Committee shall serve at the pleasure of the Board
and the Board, subject to the immediately preceding sentence, may at any time
and from time to time remove members from, or add members to, the Committee.
5.2 Powers of the Committee. The Committee, acting in its
absolute discretion, shall exercise such powers and take such action as
expressly called for under this Plan. The Committee shall have the power to
interpret this Plan and, subject to Section 14, to take such other action in
the administration and operation of the Plan as it deems equitable under the
circumstances. The Committee's actions shall be binding on the Company, on
each affected Participant, and on each other person directly or indirectly
affected by such action.
5.3 Liability Limitation. Neither the Board nor the Committee,
nor any member of either, shall be liable for any act, omission,
interpretation, construction or determination made in good faith in connection
with the Plan (or any Award Agreement), and the members of the Board and the
Committee shall be entitled to indemnification and reimbursement by the Company
in respect of any claim, loss, damage or expense (including, without
limitation, attorneys' fees) arising or resulting therefrom to the fullest
extent permitted by law and/or under any directors and officers liability
insurance coverage which may be in effect from time to time.
SECTION 6
ELIGIBILITY
Only Employees, or those who will become Employees, shall be eligible
for the grant of an Award under this Plan, but no Employee shall have the right
to be granted an Award under this Plan merely as a result of his or her status
as an Employee.
SECTION 7
GRANT OF AWARDS
7.1 Selection by Committee. The Committee, in its absolute
discretion, may grant Awards under this Plan from time to time and shall have
the right to grant new Awards in exchange for outstanding Awards. Awards shall
be granted to Employees selected by the Committee and the Committee shall be
under no obligation whatsoever to grant Awards to all Employees, to grant
Awards uniformly or to grant all Awards subject to the same terms and
conditions. In determining Employee(s) to whom an Award shall be granted and
the number of Shares to be covered by such Award, the Committee may take into
account the recommendations of the President of the Company and its other
officers, the duties of the Employee, the
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<PAGE> 4
present and potential contributions of the Employee to the success of the
Company, the anticipated number of years of service remaining before the
attainment by the Employee of retirement age, and other factors deemed relevant
by the Committee, in its sole discretion, in connection with accomplishing the
purpose of this Plan. An Employee who has been granted an Award, whether under
this Plan or otherwise, may be granted one or more additional Awards.
7.2 Award Agreements. Each grant of an Award shall be evidenced
by an Award Agreement and shall incorporate such terms and conditions as the
Committee, acting in its absolute discretion, deems consistent with the terms
of this Plan.
SECTION 8
STOCK OPTIONS
8.1 Terms and Conditions. Options granted under the Plan shall be
in respect of Common Stock. Such Options shall be subject to the terms and
conditions set forth in this Section 8 and any additional terms and conditions,
not inconsistent with the express terms and provisions of the Plan, as the
Committee shall set forth in the relevant Award Agreement. Options granted
hereunder shall not be intended to satisfy the requirements of Section 422 of
the Code as incentive stock options.
8.2 Option Price. The Option Price for each Share subject to such
Option shall be no less than the Fair Market Value of a Share on the date such
Option is granted. The Option Price shall be payable in full upon the exercise
of any Option, and an Award Agreement, at the discretion of the Committee may
provide for the payment of the Option Price either in cash or in Shares
acceptable to the Committee or in any combination of cash and Shares acceptable
to the Committee. Any payment made in Shares shall be treated as equal to the
Fair Market Value of such Shares on the date the properly endorsed certificate
for such Shares is delivered to the Committee (or to its delegate).
Notwithstanding the above, and in the sole discretion of the Committee, an
Option may be exercised as to a portion or all (as determined by the Committee)
of the number of Shares specified in the Award Agreement by delivery to the
Company of a secured promissory note to be executed by the Optionee. The
promissory note shall include, along with such other terms and conditions as
the Committee shall determine, provisions in a form approved by the Committee
under which (a) the balance of the aggregate purchase price shall be payable in
equal installments over such period and shall bear interest at such rate (which
shall not be less than the prime bank loan rate as determined by the Committee)
as the Committee shall approve and (b) the Optionee shall be personally liable
for payment of the unpaid principal balance and all accrued but unpaid
interest.
8.3 Option Exercise Period.
(a) Each Option granted under this Plan shall be
exercisable in whole or in part at such time or times as set forth in the
related Award Agreement, but no Award Agreement shall:
(i) make an Option exercisable before the date
such Option is granted or;
(ii) make an Option exercisable after the earlier
of the:
(A) the date such Option is exercised
in full; or
(B) the date which is the tenth (10th)
anniversary of the date such Option
is granted.
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<PAGE> 5
(b) If a Participant's employment with the Company and/or
any Parent or Subsidiary shall be terminated for any reason, except death,
Disability or Retirement, the Option shall terminate upon the date of such
termination of employment, unless the Award Agreement for the Option expressly
provides otherwise, except as otherwise provided herein.
(c) If a Participant shall become Disabled while an
employee of the Company or any Parent or Subsidiary or after the date of
termination of employment but prior to the expiration of the Option, or if a
Participant shall Retire, the Retired Participant, the transferee of the Option
pursuant to Section 8.6 or the Disabled Participant shall have the right to
exercise the Option, and the right to exercise the Option shall terminate as
provided by the terms of the Award Agreement for the Option. If a Participant
shall die while an employee of the Company or any Parent or Subsidiary or after
the date of termination of employment but prior to the expiration of the
Option, the executor or administrator of the Participant's estate or a
transferee of the Option pursuant to Section 8.6 shall have the right to
exercise the Option, and the right to exercise the Option shall terminate upon
the earliest of (i) the expiration of twelve (12) months from the date of such
termination of employment, (ii) the expiration of twelve (12) months from the
date of the Participant's death, or (iii) as otherwise provided by the terms of
the Award Agreement for the Option. The occurrence of a Change in Control shall
have no effect on the duration of the exercise period.
(d) Whether military or other government or eleemosynary
service or other leave of absence will constitute termination of employment
shall be determined in each case by the Committee in its sole discretion.
(e) Notwithstanding the foregoing termination provisions,
the Committee may, in its sole discretion, establish different terms and
conditions pertaining to the effect of an Participant's termination on the
expiration or exercisability of newly granted options or (with the consent of
the affected Participant) outstanding options. However, no Option can have a
term of more than ten (10) years.
8.4 Vesting. In respect of any Option granted under this Plan,
unless otherwise (a) determined by the Committee (in its sole discretion) at
any time and from time to time in respect of any such Option, or (b) provided
in the Award Agreement or in the Participant's employment agreement in respect
of any such Option, such Option shall become exercisable as to the aggregate
number of shares of Common Stock underlying such Option, as determined on the
date of grant, as follows:
(a) 33 1/3%, on the first anniversary of the date of grant
of the Option, provided the Participant is then
employed by the Company and/or one of its Subsidiaries;
(b) 66 2/3%, on the second anniversary of the date of grant
of the Option, provided the Participant is then
employed by the Company and/or one of its
Subsidiaries; and
(c) 100%, on the third anniversary of the date of grant of
the Option, provided the Participant is then employed
by the Company and/or one of its Subsidiaries.
8.5 Acceleration of Vesting upon Death, Disability or Retirement.
Notwithstanding anything to the contrary contained in Section 8.4, such
Option shall become one hundred percent (100%) exercisable as to the aggregate
number of shares of Common Stock underlying such Option upon the death,
Disability or Retirement of the Participant. Death or Disability of the
Participant occurring after termination of employment with the Company and/or
any Parent or Subsidiary shall not cause any Options to become exercisable.
8.6 Non-Transferable. No Option granted under this Plan shall be
transferable by a Participant other than by will or by the laws of descent and
distribution, and such Option shall be exercisable during a
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<PAGE> 6
Participant's lifetime only by the Participant. The person or persons to whom
an Option is transferred by will or by the laws of descent and distribution
thereafter shall be treated as the Participant.
8.7 Surrender of Options.
(a) General Rule. The Committee, acting in its absolute
discretion, may incorporate a provision in an Award Agreement to allow a
Participant to surrender his or her Option in whole or in part in lieu of the
exercise in whole or in part of that Option on any date that:
(i) the Fair Market Value of the Shares subject
to such Option exceeds the Option Price for
such Shares; and
(ii) the Option to purchase such Shares is
otherwise exercisable.
(b) Procedure. The surrender of an Option in whole or in
part shall be effected by the delivery of the Award Agreement to the Committee
(or to its delegate) together with a statement signed by the Participant which
specifies the number of Shares ("Surrendered Shares") as to which the
Participant surrenders his or her Option and how he or she desires payment be
made for such Surrendered Shares.
(c) Payment. A Participant in exchange for his or her
Surrendered Shares shall receive Shares equal in amount on the date such
surrender is effected to the excess of the Fair Market Value of the Surrendered
Shares on such date over the Option Price for the Surrendered Shares. If any
exercise under this Section 8.7 creates a right to acquire a fractional Share,
such fractional Share shall be disregarded and the number of Shares to be
issued shall be the next lower number of Shares, rounding all fractions
downward.
(d) Restrictions. Any Award Agreement for an Option which
incorporates a provision to allow a Participant to surrender his or her Option
in whole or in part also shall incorporate such additional restrictions on the
exercise or surrender of such Option as the Committee deems necessary to
satisfy the conditions to the exemption under Rule 16b-3 (or any successor
exemption) to Section 16(b) of the Exchange Act.
SECTION 9
RESTRICTED STOCK
9.1. Terms and Conditions. Awards of Restricted Stock shall be
subject to the terms and conditions set forth in this Section 9 and any
additional terms and conditions, not inconsistent with the express terms and
provisions of the Plan, as the Committee shall set forth in the relevant Award
Agreement. Restricted Stock may be granted alone or in addition to any other
Awards under the Plan. Subject to the terms of the Plan, the Committee shall
determine the number of Shares of Restricted Stock to be granted to a
Participant and the Committee may provide or impose different terms and
conditions on any particular Restricted Stock Award made to any Participant.
With respect to each Participant receiving an Award of Restricted Stock, there
shall be issued a stock certificate (or certificates) in respect of such
Restricted Stock. Such stock certificate(s) shall be registered in the name of
such Participant, shall be accompanied by a stock power duly executed by such
Participant, and shall bear, among other required legends, the following
legend:
"The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and
conditions (including, without limitation, forfeiture events)
contained in the Savannah Foods & Industries, Inc. 1996 Equity
Incentive Plan and an Award Agreement entered into between the
registered owner hereof and Savannah Foods & Industries, Inc.
Copies of
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<PAGE> 7
such Plan and Award Agreement are on file in the office of the
Secretary of Savannah Foods & Industries, Inc., Savannah,
Georgia. Savannah Foods & Industries, Inc. will furnish to the
recordholder of the certificate, without charge and upon
written request at its principal place of business, a copy of
such Plan and Award Agreement. Savannah Foods & Industries,
Inc. reserves the right to refuse to record the transfer of
this certificate until all such restrictions are satisfied, all
such terms are complied with and all such conditions are
satisfied."
Such stock certificate evidencing such shares shall, in the sole discretion of
the Committee, be deposited with and held in custody by the Company until the
restrictions thereon shall have lapsed and all of the terms and conditions
applicable to such grant shall have been satisfied.
9.2 Restricted Stock Award. An Award of Restricted Stock is an
Award of shares of Common Stock granted to a Participant, subject to such
restrictions, terms and conditions as the Committee deems appropriate,
including, without limitation, (a) restrictions on the sale, assignment,
transfer, hypothecation or other disposition of such shares, (b) the
requirement that the Participant deposit such shares with the Company while
such shares are subject to such restrictions, and (c) the requirement that such
shares be forfeited upon termination of employment for specified reasons within
a specified period of time or for other reasons (including, without limitation,
the failure to achieve designated performance goals).
9.3 Restriction Period. In accordance with Sections 9.1 and 9.2 of
the Plan and unless otherwise determined by the Committee (in its sole
discretion) at any time and from time to time, Restricted Stock shall only
become unrestricted and vested in the Participant in accordance with such
vesting schedule relating to such Restricted Stock, if any, as the Committee
may establish in the relevant Award Agreement (the "Restriction Period").
Notwithstanding the preceding sentence, in no event shall the Restriction
Period be less than six (6) months after the date of grant of the Award.
During the Restriction Period, such stock shall be and remain unvested and a
Participant may not sell, assign, transfer, pledge, encumber or otherwise
dispose of or hypothecate such Award. Upon satisfaction of the vesting
schedule and any other applicable restrictions, terms and conditions, the
Participant shall be entitled to receive payment of the Restricted Stock or a
portion thereof, as the case may be, as provided in Section 9.4 of the Plan.
9.4 Payment of Restricted Stock. After the satisfaction and/or
lapse of the restrictions, terms and conditions established by the Committee in
respect of an Award of Restricted Stock, a new certificate, without the legend
set forth in Section 9.1 of the Plan, for the number of shares of Common Stock
which are no longer subject to such restrictions, terms and conditions shall,
as soon as practicable thereafter, be delivered to the Participant.
9.5 Shareholder Rights. A Participant shall have, with respect to
the shares of Common Stock underlying an Award of Restricted Stock, all of the
rights of a shareholder of such stock (except as such rights are limited or
restricted under the Plan or in the relevant Award Agreement). Any stock
dividends paid in respect of unvested Restricted Stock shall be treated as
additional Restricted Stock and shall be subject to the same restrictions and
other terms and conditions that apply to the unvested Restricted Stock in
respect of which such stock dividends are issued.
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<PAGE> 8
SECTION 10
SECURITIES REGISTRATION
Each Award Agreement may provide that, upon the receipt of Shares as a
result of the surrender or exercise of an Award, the Employee shall, if so
requested by the Company, hold such Shares for investment and not with a view
of resale or distribution to the public and, if so requested by the Company,
shall deliver to the Company a written statement satisfactory to the Company to
that effect. Each Award Agreement also may provide that, if so requested by
the Company, the Employee shall make a written representation to the Company
that he or she will not sell or offer to sell any of such Shares unless a
registration statement shall be in effect with respect to such Shares under the
Securities Act of 1933, as amended ("1933 Act") and any applicable state
securities law or unless he or she shall have furnished to the Company an
opinion, in form and substance satisfactory to the Company, of legal counsel
acceptable to the Company, that such registration is not required.
Certificates representing the Shares transferred upon the grant, exercise or
surrender of an Award granted under this Plan may at the discretion of the
Company bear a legend to the effect that such Shares have not been registered
under the 1933 Act or any applicable state securities law and that such Shares
may not be sold or offered for sale in the absence of an effective registration
statement as to such Shares under the 1933 Act and any applicable state
securities law or an opinion, in form and substance satisfactory to the
Company, of legal counsel acceptable to the Company, that such registration is
not required.
SECTION 11
LIFE OF PLAN
No Award shall be granted under this Plan on or after the tenth (10th)
anniversary of the effective date of the Plan, in which case the Plan otherwise
shall continue in effect until the later of (i) all outstanding Options have
been terminated, surrendered or exercised in full or no longer are exercisable
or (ii) all restrictions on Shares transferred as Restricted Stock have lapsed.
SECTION 12
ADJUSTMENT
The number of Shares reserved under Section 3 of this Plan and the
number of Shares subject to Awards granted under this Plan and the exercise
price or other price per Share relating to outstanding Awards shall be adjusted
by the Committee in an equitable manner to reflect any change in the
capitalization of the Company, including, but not limited to, such changes as
stock dividends or stock splits. Furthermore, the Committee shall have the
right to adjust the number of Shares reserved under Section 3 of this Plan and
the number of Shares subject to Awards granted under this Plan and the exercise
price or other price per Share relating to outstanding Awards in the event of
any merger, consolidation, division, acquisition, reorganization or liquidation
which provides for the substitution or assumption of such Awards. If any
adjustment under this Section 12 creates a fractional Share or a right to
acquire a fractional Share, such fractional Share shall be disregarded and the
number of Shares reserved under this Plan and the number subject to any Awards
granted under this Plan shall be the next lower number of Shares, rounding all
fractions downward. An adjustment made under this Section 12 by the Committee
shall be conclusive and binding on all affected persons and, further, shall not
constitute an increase in the number of Shares reserved under Section 3 of this
Plan.
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<PAGE> 9
SECTION 13
SALE OR MERGER OF THE COMPANY
If the Company agrees to sell substantially all of its assets for cash
or property or for a combination of cash and property or agrees to any merger,
consolidation, reorganization, division or other transaction in which Shares
are converted into another security or into the right to receive securities or
property and such agreement does not provide for the assumption or substitution
of the Options granted under this Plan, each Option, at the direction and
discretion of the Committee, or as is otherwise provided in the Award
Agreements, may be canceled unilaterally by the Company in exchange for the
whole Shares which each Participant otherwise would receive if he or she had
the right to surrender his or her outstanding Option in full under Section 8.7
of this Plan and he or she exercised that right exclusively for Shares on a
date fixed by the Committee which comes before such sale or other corporate
transaction.
SECTION 14
AMENDMENT OR TERMINATION
This Plan may be amended by the Board from time to time to the extent
that the Board deems necessary or appropriate; provided, however, no such
amendment shall be made absent the approval of the shareholders of the Company
(1) to increase the number of Shares reserved under Section 3, except as set
forth in Section 12, (2) to extend the maximum life of the Plan under Section
11 or the maximum exercise period under Section 8.3, (3) to decrease the Option
Price under Section 8.2, or (4) to change the designation of Employees eligible
for Awards under Section 6. The Board also may suspend the granting of Awards
under this Plan at any time and may terminate this Plan at any time; provided,
however, the Company shall not have the right to modify, amend or cancel any
Award granted before such suspension or termination unless (i) the Participant
consents in writing to such modification, amendment or cancellation or (ii)
there is a dissolution or liquidation of the Company or a transaction described
in Section 12 or Section 13 of this Plan.
SECTION 15
CHANGE IN CONTROL
15.1 Acceleration of Awards Vesting. Anything in the Plan to the
contrary notwithstanding, if a Change in Control of the Company occurs (a) all
Options then unexercised and outstanding shall become fully vested and
exercisable as of the date of the Change in Control, and (b) all restrictions,
terms and conditions applicable to all Restricted Stock then outstanding shall
be deemed lapsed and satisfied as of the date of the Change in Control. The
immediately preceding sentence shall apply to only those Participants (i) who
are employed by the Company and/or one of its Subsidiaries as of the date of
the Change in Control, or (ii) to whom Section 15.3 below is applicable.
15.2 Payment After Change in Control. Notwithstanding anything to the
contrary in the Plan, within thirty (30) days after a Change in Control occurs,
(a) the holder of an Award of Restricted Stock vested under Section 15.1(b)
above shall receive a new certificate for such shares without the legend set
forth in Section 9 of the Plan and, in the case only of a Change in Control
under Section 15.4(a) of the Plan, such holder shall have the right, but not
the obligation, to elect, within ten (10) business days after the Participant
has actual or constructive knowledge of the occurrence of such Change in
Control, to require the Company to purchase such shares from the Participant at
their then Fair Market Value, and (b) in the case only of a Change in Control
under Section 15.4(a) of the Plan, the holders of any Options shall have the
right, but not the obligation, to elect, within ten (10) business days after
the Participant has actual or constructive knowledge of the occurrence of such
Change in Control, to require the Company to purchase such Options from the
Participant for an aggregate amount equal to the then aggregate Fair Market
Value of the Common Stock underlying such Awards tendered, less the aggregate
exercise price of such tendered Awards.
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<PAGE> 10
15.3 Termination as a Result of a Change in Control. Anything in the
Plan to the contrary notwithstanding, if a Change in Control occurs and if the
Participant's employment is terminated before such Change in Control and it is
reasonably demonstrated by the Participant that such employment termination (a)
was at the request, directly or indirectly, of a third party who has taken
steps reasonably calculated to effect the Change in Control, or (b) otherwise
arose in connection with or in anticipation of the Change in Control, then for
purposes of this Section 15, the Change in Control shall be deemed to have
occurred immediately prior to such Participant's employment termination.
15.4 Change in Control. For purposes of this Plan, 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 Company, (2) the Company, (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 Company in substantially the same
proportions as their ownership of the Company) 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 of the Company's assets.
SECTION 16
MISCELLANEOUS
16.1 Shareholder Rights. No Participant shall have any rights as a
shareholder of the Company as a result of the grant of an Award to him or to
her under this Plan or his or her exercise or surrender of such Award pending
the actual delivery of Shares subject to such Award to such Participant.
16.2 No Contract of Employment. The grant of an Award to an
Employee under this Plan shall not constitute a contract of employment or other
association with the Company, and shall not confer on an
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<PAGE> 11
Employee any rights upon his or her termination of employment or other
association with the Company, in addition to those rights, if any, expressly
set forth in the applicable Award Agreement.
16.3 Withholding. The Company shall have the right to deduct from
any payment or settlement under the Plan, including, without limitation, the
exercise of any Option, or the delivery, transfer or vesting of any Common
Stock or Restricted Stock, any federal, state, local or other taxes of any kind
which the Committee, in its sole discretion, deems necessary to be withheld to
comply with the Code and/or any other applicable law, rule or regulation. If
the Committee, in its sole discretion, permits shares of Common Stock to be
used to satisfy any such tax withholding, such Common Stock shall be valued
based on the Fair Market Value of such stock as of the date the tax withholding
is required to be made, such date to be determined by the Committee. The
Committee may establish rules limiting the use of Common Stock to meet
withholding requirements by Participants who are subject to Section 16 of the
Exchange Act. The exercise or surrender of any Option granted under this Plan
shall constitute an Employee's full and complete consent to whatever action the
Committee directs to satisfy the federal and state tax withholding
requirements, if any, which the Committee in its discretion deems applicable to
such exercise or surrender.
16.4 Transfer. The transfer of an Employee between or among the
Company, a Subsidiary or a Parent shall not be treated as a termination of his
or her employment under this Plan.
16.5 Construction. This Plan shall be construed under the laws of
the State of Georgia.
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SAVANNAH FOODS & INDUSTRIES, INC.
STOCK OPTION AGREEMENT PURSUANT TO
1996 EQUITY INCENTIVE PLAN
THIS AGREEMENT, made as of the ____ day of _________, 1996 (the "Grant
Date"), by and between Savannah Foods & Industries, Inc. (the "Company") and
__________________ (the "Optionee").
W I T N E S S E T H:
WHEREAS, the committee of the Board of Directors of the Company (the
"Committee") of the Savannah Foods & Industries, Inc., 1996 Equity Incentive
Plan ( the "Plan") has authorized the grant to Optionee of a stock option
pursuant to the Plan authorizing Optionee to purchase shares of common stock of
the Company; and
WHEREAS, Company and Optionee wish to confirm the terms and conditions
of the option;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, it is hereby agreed by the parties hereto as follows:
1. Grant of Option. Subject to the terms, restrictions,
limitations and conditions stated herein and in the Plan, the Company hereby
grants to the Optionee an option (the "Option") to purchase, all or any part of
____________ shares of common stock of the Company (the "Common Stock"). The
Option granted hereunder is not intended to satisfy the requirements of Section
422 of the "Code" (as defined in the Plan) as incentive stock options.
Capitalized terms used in this Agreement without definition shall have the
meanings given to them in the Plan.
2. Term and Exercise of Option. Subject to the provisions of
this Agreement:
(a) The Option shall be exercisable during the Option
Period (as defined in Section 4 hereof) only to the extent of the
number of Vested Shares determined pursuant to the vesting schedule
attached hereto as Schedule A.
(b) The Option may be exercised with respect to all or
any portion of the Vested Shares at any time during the Option Period
by the delivery to the Company, at its principal place of business, of
(i) a written notice of exercise in substantially the form attached
herein as Exhibit 1, which shall be actually delivered to the Company
no earlier that thirty (30) days and no later than (10) days prior to
the date upon which Optionee desires to exercise all or any portion of
the Option; (ii) payment to the Company of the Exercise Price, defined
in Section 3 below, multiplied by the number of shares being purchased
(the "Purchase Price") in the manner provided it Subsection (c)
hereof; and (iii) cash or a certified check representing payment of
all withholding tax obligations (whether federal, state or local),
<PAGE> 13
imposed by reason of the exercise of the Option. Upon acceptance of
such notice, receipt of payment in full of the Purchase Price and
receipt of payment of all withholding tax obligations, the Company
shall cause to be issued a certificate representing the shares of
Common Stock purchased.
(c) The Purchase Price shall be paid in full upon the
exercise of an Option and no shares of Common Stock shall be issued or
delivered until full payment therefor has been made. Payment of the
Purchase Price for all shares of Common Stock purchased pursuant to
the exercise of an Option shall be made in cash or by certified check
or, alternatively, as follows:
(i) by delivery to the Company of a number of
shares of Common Stock which have been owned by the Optionee
for at least six months prior to the date of the Option's
exercise, having a fair market value on the date of exercise,
as determined by the Committee in its sole discretion, either
equal to the Purchase Price or in combination with cash to
equal the Purchase Price; or
(ii) by receipt of the Purchase Price in cash from
a broker, dealer, or other "creditor" as defined by Regulation
T issued by the Board of Governors of the Federal Reserve
System following delivery by the Optionee to the Committee of
instructions in a form acceptable to the Committee regarding
delivery to such broker, dealer or other creditor of that
number of shares of Common Stock with respect to which the
Option is exercised; or
(iii) by instructing the Company to deduct from the
actual number of shares issuable upon exercise of the Option
that number of whole shares of Common Stock which, when
multiplied by the fair market value of the Common Stock as of
the date the Option is exercised, is sufficient to pay the
Purchase Price.
(d) In lieu of paying the withholding tax obligation in
cash or by certified check to the Company, as described in Subsection
2(b) hereof, Optionee may elect (i) to have the actual number of
shares issuable upon exercise reduced by the smallest number of whole
shares of Common Stock which, when multiplied by the fair market value
of the Common Stock as of the date the Option is exercised, is
sufficient to satisfy the amount of withholding tax; or (ii) to tender
to the Company the smallest number of whole shares of Common Stock
that have been owned by the Optionee for at least six months prior to
the Tax Date (defined below) and that, when multiplied by the fair
market value of the shares of Common Stock determined as of the Tax
Date (defined below), is sufficient to satisfy federal, state and
local, if any, withholding taxes arising from exercise of the option
(a "Withholding Election"). Optionee may make a Withholding Election
only if all of the following conditions are met:
(i) the Withholding Election must be made no
later than the date on which the amount of tax required to be
withheld is determined (the "Tax Date) by
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<PAGE> 14
executing and delivering to the Company a properly completed Notice of
Withholding Election in substantially the form of Exhibit 2 attached
hereto;
(ii) any Withholding Election is irrevocably given; and
(iii) if the Optionee is considered by the
Committee to be subject to Section 16 of the Securities
Exchange Act of 1934, the Withholding Election is delivered to the
Company sufficiently in advance of the Tax Date as the Committee
determines is necessary or appropriate to satisfy the conditions of
the exemption provided under Rule 16b-3 promulgated under the
Securities Exchange Act of 1934. Notwithstanding anything to the
contrary herein, the Committee may in its sole discretion disapprove
and give no effect to any Withholding Election and no Option to which
any Withholding Election relates may be exercised prior to one year
after the Company has been subject to the reporting requirements of
Section 13 of the Securities Exchange Act of 1934 and has filed all
reports and statements required to be filed pursuant to that Section
during that year.
(e) Notwithstanding anything to the contrary herein, upon
the occurrence of a Change in Control under Section 15.4(a) of the
Plan, Optionee shall have the right, but not the obligation, to elect,
within ten (10) business days after the Optionee has actual or constructive
knowledge of the occurrence of such Change in Control, to require the
Company to purchase this Option from Optionee for an aggregate amount equal
to the then aggregate Fair Market Value of the Common Stock underlying the
Option tendered, less the aggregate exercise price of such tendered Option
and the amount, if any, of withholding tax due thereon.
3. Exercise Price. The exercise price for each share of Common
Stock for which the Option is exercised shall be $_____, subject to adjustment
as set forth in Section 7 hereof (the "Exercise Price").
4. Term and Termination of Option. Except as otherwise provided
below, the term of the Option (the "Option Period") shall commence on the Grant
Date and terminate on the date of the first to occur of the following events:
(a) the tenth anniversary of the Grant Date; or
(b) the date the Optionee ceases to be an employee of the
Company or a subsidiary within the meaning of Code Section 424(f) (a
"Subsidiary"), except that (i) if Optionee ceases to be an employee of the
Company or a Subsidiary because of Optionee's death, Disability or
Retirement, the Option Period shall be extended until the expiration of
twelve (12) months following Optionee's death, Disability or Retirement or
(ii) if a Change in Control occurs and Optionee's employment is terminated
before such Change in Control and it is reasonably demonstrated by the
Optionee that such employment termination (x) was
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<PAGE> 15
at the request, directly or indirectly, of a third party who has taken
steps reasonably calculated to effect the Change in Control, or (y)
otherwise arose in connection with or in anticipation of the Change in
Control, then for purposes hereof, the Change in Control shall be
deemed to have occurred immediately prior to such Optionee's
employment termination and the Option Period shall be extended until
the expiration of thirty (30) days following termination of Optionee's
employment.
Upon the expiration of the Option Period, this Option and all unexercised
rights granted to Optionee hereunder shall terminate, and thereafter be null
and void.
5. Rights as Shareholder. Until the stock certificates
reflecting the Common Stock accruing to the Optionee upon exercise of the
Option are issued to the Optionee, the Optionee shall have no rights as a
shareholder with respect to such Common Stock. The Company shall make no
adjustments for any dividends or distributions or other rights on or with
respect to shares of Common Stock purchased pursuant to the Option for which
the record date is prior to the issuance of that stock certificate, except as
the Plan or this Agreement otherwise provides.
6. Restriction on Transfer of Option. The Option evidenced
hereby is nontransferable other than by will or the laws of descent and
distribution, and, shall be exercisable during the lifetime of the Optionee (or
in the event of his disability, by his personal representative) and after his
death, only by his personal representative.
7. Change in Capitalization. The number and type of shares of
stock, or both, subject to the Option; the Exercise Price; the Option Period;
and the number of Vested Shares may be adjusted in the event of certain
recapitalization or reorganizations affecting the Company in the manner set
forth in Section 12 of the Plan.
8. Special Limitation on Exercise. Notwithstanding anything
contained herein to the contrary, no purported exercise of the Option shall be
effective without the written approval of the Company, which may be withheld to
the extent that its exercise, either individually or in the aggregate together
with the exercise of other previously exercised stock option and/or offers and
sales pursuant to any prior or contemplated offering of securities, would, in
the sole and absolute judgment of the Company, require the filing of a
registration statement with the United States Securities and Exchange
Commission, or with the securities commission of any state. The Company shall
avail itself of any exemptions from registration contained in applicable
federal and state securities laws which are reasonably available to the Company
on terms which, in its sole and absolute discretion, it deems reasonable and
not unduly burdensome or costly. If the Option cannot be exercised at the time
it would otherwise expire due to the restrictions contained in this Section,
the exercise period shall be extended for successive one-year periods until it
can be exercised in accordance with this Section. The Optionee shall deliver
to the Company, prior to the exercise of the Option, such information,
representations and warranties as the Company reasonably request in order for
the Company to be able to satisfy itself that the Common Stock to be acquired
pursuant to the exercise of the Option is being acquired in accordance with the
terms of an applicable
4
<PAGE> 16
exemption from the securities registration requirements of applicable federal
and state securities laws.
9. Legend on Stock Certificates. Certificates evidencing Common
Stock to be distributed pursuant to the Agreement and the Plan shall, to the
extent appropriate at the time, have noted conspicuously on the certificates a
legend to the following effect, which is intended to give all persons full
notice of the existence of the conditions, restrictions, rights and
obligations set forth in this Agreement:
(a) That the securities evidenced by the certificate were
issued without registration under the Securities Act of 1933, as
amended (the "1933 Act"), or under the applicable laws of any state or
states (collectively referred to as the "State Acts"), in reliance
upon certain exemptive provisions of the 1933 Act or any applicable
State Acts;
(b) That the securities cannot be sold or transferred
unless, in the opinion of counsel reasonably acceptable to the
Company, the sale or transfer would be:
(1) Pursuant to an effective registration
statement under the 1933 Act or pursuant to an available
exemption form registration; and
(2) A transaction which is exempt under any
applicable State Acts or pursuant to an effective
registration. statement under or in a transaction which is
otherwise in compliance with the State Acts; and
(c) That the securities evidenced by the certificate were
issued in accordance with the provisions of the Agreement and the
Plan and are subject to the provisions thereof and may not be sold or
transferred except in compliance with said provisions.
10. Governing Laws. This Agreement shall be construed,
administered and enforced according to the laws of the State of Georgia;
provided, however, no option may be exercised except, in the reasonable
judgment of the Board of Directors, in compliance with exemptions under
applicable state securities laws.
11. Successors. This Agreement shall be binding upon and inure to
benefit of the heirs, legal representatives, successors and permitted assigns
of the parties.
12. Notice. Except as otherwise specified herein, all notices
and other communications under this Agreement shall be in writing and shall be
deemed to have been given if personally delivered or if sent by registered or
certified United States mail, return receipt requested, postage prepaid,
addressed to the proposed recipient at the last known address of the recipient.
Any party may designate any other address to which notice to be sent by giving
notice of the address to the other parties in the same manner as provided
herein.
5
<PAGE> 17
13. Severability. In the event that any one or more of
the provisions or portion thereof contained in this Agreement shall for
any reason be held to be invalid, illegal or unenforceable in any respect, the
same shall not invalidate or otherwise affect any other provisions of this
Agreement, and this Agreement shall be construed as if the invalid, illegal or
unenforceable provision or portion thereof had never been contained herein.
14. Entire Agreement. Subject to the terms and
conditions of the Plan, this Agreement expresses the entire understanding and
agreement of the parties. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
15. Violation. Any transfer, pledge, sale, assignment or
hypothecation of the Option or any portion thereof shall be a violation of the
terms of this Agreement and shall be void and without effect.
16. Heading. Paragraph headings used herein are for
convenience of reference only and shall not be considered in construing this
Agreement.
17. Specific Performance. In the event of any actual or
threatened default in, or breach of, any of the terms, conditions and
provisions of this Agreement the party or parties who are thereby aggrieved
shall have the right to specific performance and injunction in addition to any
and all other rights and remedies at law or entity, and all such rights and
remedies shall be cumulative.
18. No Rights Created. Neither the establishment of the
Plan nor the grant of the Option hereunder shall be construed as giving the
Optionee the right to continued employment with the Company or a Subsidiary.
6
<PAGE> 18
IN WITNESS WHEREOF, the parties have executed and sealed this
Agreement on the day and year first set forth above.
SAVANNAH FOODS & INDUSTRIES, INC.
By: ______________________________
Title: ___________________________
ATTEST:
_______________________________
Title: ________________________
[CORPORATE SEAL] OPTIONEE
___________________________(SEAL)
___________________________
(Print Name)
7
<PAGE> 19
EXHIBIT 1
NOTICE OF EXERCISE OF
STOCK OPTION TO PURCHASE
COMMON STOCK OF
SAVANNAH FOODS & INDUSTRIES, INC.
Savannah Foods & Industries, Inc.
2 East Bryan Street
Savannah, GA 31402
Re: Exercise of Stock Option
Gentlemen:
Subject to acceptance hereof in writing by Savannah Foods &
Industries, Inc. (the "Company") pursuant to the provisions of the Savannah
Foods & Industries, Inc. 1996 Equity Incentive Plan, I hereby give at least ten
days but no more than thirty days prior notice of my election to exercise
options granted to me to purchase _________________________ shares of
Common Stock of the Company under the Stock Option Agreement dated as of
______________________________, 199 ____. The purchase shall take place
as of _________________________, 199 ____ (the "Exercise Date").
On or before the Exercise Date, I will pay the applicable purchase
price as follows:
[ ] by delivery of cash or a certified check for $ ______________
for the full purchase price payable to the order of Savannah
Foods & Industries, Inc.
[ ] by delivery of cash or a certified check for $ ______________
representing a portion of the purchase price with the balance
to consist of shares of Common Stock that I have owned
for at least six months and that are represented by a stock
certificate I will surrender to the Company with my
endorsement. If the number of shares of Common Stock
represented by such stock certificate exceed the number to be
applied against the purchase price, I understand that a new
stock certificate will be issued to me reflecting the excess
number of shares.
[ ] by delivery of a stock certificate representing shares of
Common Stock that I have owned for at least six months which I
will surrender to the Company with my endorsement as payment
of the purchase price. If the number of shares of Common
Stock represented by such certificate exceed the number to be
applied against the purchase price, I understand that a new
certificate will be issued to me reflecting the excess number
of shares.
1
<PAGE> 20
[ ] by delivery of the purchase price by ____________________ , a
broker, dealer or other "creditor" as defined by
Regulation T issued by the Board of Governors of the Federal
Reserve System. I hereby authorize the Company to issue a
stock certificate in the number of shares indicated above in
the name of said broker, dealer or other creditor or its
nominee pursuant to instructions received by the Company and
to deliver said stock certificate directly to that broker,
dealer or other creditor (or to such other party specified in
the instructions received by the Company from the broker,
dealer or other creditor) upon receipt of the purchase price.
[ ] by hereby instructing the Company to deduct from the actual
number of shares issuable upon exercise of the Option that
number of whole shares of Common Stock which, when multiplied
by the fair market value of the Common Stock as of the date
the Option is exercised, is sufficient to pay the Purchase
Price.
The required federal, state and local income tax withholding, if any,
on the exercise of the option shall be paid on or before the Exercise Date in
cash or by certified check, or in the manner provided in the Withholding
Election previously tendered or to be tendered to the Company no later than the
Exercise Date.
As soon as the stock certificate is registered in my name, please
delivery it to me at the above address.
If the Common Stock being acquired is not registered for issuance to
and resale by the Optionee pursuant to an effective registration statement on
Form S-8 (or successor form) filed under the Securities Act of 1933, as amended
(the "1933 Act"), I hereby represent, warrant, covenant, and agree with the
Company as follows:
The shares of the Common Stock being acquired by me will be
acquired for my own account without the participation of any other
person, with the intent of holding the Common Stock for investment and
without the intent of participating, directly or indirectly, in a
distribution of the Common Stock and not with a view to, or for resale
in connection with, any distribution of the Common Stock, nor am I
aware of the existence of any distribution of the Common Stock.
I am not acquiring the Common Stock based upon any
representation, oral or written, by any person with respect to the
future value of, or income from, the Common Stock but rather upon an
independent examination and judgment as to the prospects of the
Company;
The Common Stock was not offered to me by means of publicly
disseminated advertisements or sales literature, nor am I aware of any
offers made to other persons by such means;
2
<PAGE> 21
I am able to bear the economic risks of the investment in the
Common Stock, including the risk of a complete loss of my investment
therein;
I understand and agree the Common Stock will be issued and
sold to me without registration under any state law relating to the
registration of securities for sale, and will be issued and sold in
reliance on the exemptions form registration under the 1933 Act,
provided by Sections 3(b) and/or 4(2) thereof and the rules and
regulations promulgated thereunder;
The Common Stock cannot be offered for sale, sold or
transferred by me other than pursuant to: (A) an effective
registration under the 1933 Act or in a transaction otherwise in
compliance with the 1933 Act; and (B) evidence satisfactory to the
Company of compliance with the applicable securities laws of other
jurisdictions. The Company shall be entitled to rely upon an opinion
of counsel satisfactory to it with respect to compliance with the
above laws;
The Company will be under no obligation to register the Common
Stock or to comply with any exemption available for sale of the Common
Stock without registration or filing, and the information or
conditions necessary to permit routine sales of securities of the
Company under Rule 144 under the 1933 Act are not now available and no
assurance has been given that it or they will become available. The
Company is under no obligation to act in any manner so as to make Rule
144 available with respect to the Common Stock;
I have and have had complete access to and the opportunity to
review and make copies of all material documents related to the
business of the Company, including, but not limited to, contracts,
financial statements, tax returns, leases, deeds and other books and
records. I have examined such of these documents as I wished and am
familiar with the business and affairs of the Company. I realize that
the purchase of the Common Stock is a speculative investment and that
any possible profit therefrom is uncertain;
I have had the opportunity to ask questions of and receive
answers from the Company and any such person acting on its behalf and
to obtain all material information reasonably available with respect
to the Company and its affairs. I have received all information and
data with respect to the Company which I have requested and which I
have deemed relevant in connection with the evaluation of the merits
and risks of my investment in the Company;
I have such knowledge and experience in financial and business
matters that I am capable of evaluating the merits and risks of the
purchase of the Common Stock hereunder and I am able to bear the
economic risk of such purchase; and
The agreements, representations, warranties and covenants made
by me herein extend to and apply to all of the Common Stock of the
Company issued to me pursuant to this Option. Acceptance by me of the
certificate representing such Common Stock shall
3
<PAGE> 22
constitute a confirmation by me that all such agreements,
representation, warranties and covenants made herein shall be true and
correct at that time.
I understand that the certificates representing the shares being
purchased by me in accordance with this notice shall bear a legend referring to
the foregoing covenants, representations and warranties and restrictions on
transfer, and I agree that a legend to that effect may be placed on any
certificate which may be issued to me as a substitute for the certificates
being acquired by me in accordance with this notice.
Very truly yours,
_________________________________(SEAL)
_________________________________
(Print Name)
AGREED TO AND ACCEPTED:
SAVANNAH FOODS & INDUSTRIES, INC.
By: ________________________
Title: _____________________
Number of Shares
Exercised: _________________ Date: ______________________
4
<PAGE> 23
EXHIBIT 2
NOTICE OF WITHHOLDING ELECTION
SAVANNAH FOODS & INDUSTRIES, INC.
1996 EQUITY INCENTIVE PLAN
TO: Savannah Foods & Industries, Inc.
FROM: Name:
------------------------------
RE: Withholding Election
- -------------------------------------------------------------------------------
This election relates to the option identified in Paragraph 3
below. I hereby certify that:
(1) My correct name and social security number and my
current address are set forth at the end of this
document.
(2) I am (check one, whichever is applicable):
[ ] the original recipient of the option.
[ ] the legal representative of the estate of the
original recipient of the option.
[ ] a legatee of the original recipient of the option.
[ ] a legal guardian of the original recipient of the
option.
(3) The option pursuant to which this election relates
was issued under the Savannah Foods & Industries, Inc.
1996 Equity Incentive Plan (the "Plan") in the name of
_______________________ for the purchase of a total of
___________ shares of Common Stock. This election relates to
___________ shares of Common Stock issuable upon exercise of
the option (the "Common Stock"), provided that the numbers
set forth above shall be deemed changed as appropriate to
reflect the applicable Plan provisions.
(4) In connection with any exercise of the option with
respect to the Common Stock, I hereby elect:
[ ] To have certain of the shares issuable
pursuant to the exercise withheld by the
Company for the purpose of having the value
of the
1
<PAGE> 24
shares applied to pay federal, state, and
local, if any, taxes arising from the
exercise; or
[ ] To tender shares of Common Stock held by me
for a period of at least six months prior to
the exercise of the option for the purpose of
having the value of the shares applied to pay
such taxes.
The shares to be withheld or tendered, as applicable,
shall have, as of the Tax Date applicable to the exercise, a
fair market value equal to the minimum statutory tax
withholding requirement under federal, state and local law in
connection with the exercise.
(5) This Withholding Election is made no later than the
Tax Date and is otherwise timely made pursuant to the
Plan.
(6) I understand that this Withholding election may not
be revised, amended or revoked by me (except in a
manner that satisfies the requirements of the
exemption provided under Rule 16b-3 promulgated under
the Securities Exchange Act of 1934).
(7) I further understand that the Company shall either
(a) withhold from the Common Stock a number of shares
of Common Stock having the value specified in
Paragraph 4 above, or (b) accept a number of shares
of Common Stock held by me for at least six months
prior to exercise and having the value specified in
Paragraph 4 above, as applicable.
(8) The Plan has been made available to me by the
Company, I have read and understand the Plan and I
have no reason to believe that any of the conditions
therein to the making of this Withholding Election
have not been met.
Capitalized terms used in this Notice of Withholding Election
without definition shall have the meanings given to them in the Plan.
Dated: ________________________ ________________________________________
Signature
_________________________________ ________________________________________
Social Security Number Name (printed)
________________________________________
Street Address
________________________________________
City, State, Zip Code
2
<PAGE> 25
SCHEDULE A
TO
SAVANNAH FOODS & INDUSTRIES, INC.
STOCK OPTION AGREEMENT
VESTING SCHEDULE
"Vested Shares" means only that percentage of the number of shares of
Common Stock subject to the Option as to which the Option becomes exercisable
following completion of the years of service indicated in the schedule below.
<TABLE>
<CAPTION>
Percentage of Shares Years of Service
Which are Vested Shares after Grant Date
----------------------- ----------------
<S> <C>
0% less than 1 year
33 1/3% 1 year
66 2/3% 2 years
100% 3 years
</TABLE>
- -----------------------------
1. Construction.
(a) For purposes of the Vesting Schedule, Optionee shall
be granted a year of service for each consecutive twelve-consecutive month
period following the Grant Date and during which Optionee remains, at all
times, employed on a full-time basis by the Company or a Subsidiary.
(b) The right of Optionee to vest in Common Stock shall
cease upon the termination of Optionee's employment by the Company or a
Subsidiary, other than by reason of Optionee's death, Disability or Retirement,
and thereafter, no further shares shall become Vested Shares; the Option shall
be exercisable during the Option Period specified in Section 4 of the
Agreement. The foregoing notwithstanding, the Option shall become one hundred
percent (100%) exercisable as to the aggregate number of shares of Common Stock
underlying the Option upon (i) the death, Disability or Retirement of the
Optionee or (ii) the occurrence of a Change in Control (as defined in the
Plan). Except as provided in Section 4(b) of this Agreement, death, Disability
or a Change in Control occurring after termination of employment with the
Company or a Subsidiary shall not cause any Options to become exercisable.
<PAGE> 1
EXHIBIT 5.1
March 13, 1997
Savannah Foods & Industries, Inc.
2 East Bryan Street
Savannah, Georgia 31401
Re: Savannah Foods & Industries, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Savannah Foods & Industries, Inc., a
Delaware corporation (the "Company"), in connection with the registration
statement on Form S-8 (the "Registration Statement") being filed by the Company
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act") relating to 1,250,000 shares (the
"Shares") of the Company's common stock, par value $0.25 per share (the "Common
Stock"), that may be issued pursuant to the Company's 1996 Equity Incentive Plan
(the "Plan").
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement; (ii) the Plan; (iii) a specimen certificate representing the Common
Stock; (iv) the Certificate of Incorporation of the Company, as presently in
effect; (v) the By-Laws of the Company, as presently in effect; and (vi) certain
resolutions of the Board of Directors of the Company relating to the issuance
and sale of the Shares and related matters. We have also examined originals or
copies, certified or otherwise identified to our satisfaction, of such records
of the Company and such agreements, certificates of public officials,
certificates of officers or other representatives of the Company and others, and
such other documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed or to be executed by parties other than the
Company, we have assumed that such parties had or will have the power, corporate
or other, to enter into and perform all obligations thereunder and have also
assumed the due authorization by all requisite action, corporate or other, and
execution and delivery by such parties of such documents and the validity and
binding effect thereof. As to any facts material to the opinions expressed
herein which we have not independently established or verified, we have relied
upon statements and representations of officers and other representatives of the
Company and others.
<PAGE> 2
Based upon and subject to the foregoing, we are of the opinion that,
upon the issuance of the Shares pursuant to the provisions of the Plan and the
related award agreements as authorized and approved in accordance with the Plan
for consideration at least equal to the par value of such shares, such shares
will be duly authorized by all necessary corporate action on the part of the
Company, validly issued and are fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. In giving this consent, we do not
thereby admit that we are included in the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission.
Very truly yours,
HUNTER, MACLEAN, EXLEY & DUNN, P.C.
/s/ Hunter, Maclean, Exley & Dunn, P.C.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 18, 1996 appearing on page 16
of Savannah Foods & Industries, Inc.'s Annual Report on Form 10-K for the year
ended September 29, 1996.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Atlanta, Georgia
March 3, 1997
