<PAGE> 1
As filed with the Securities and Exchange Commission on June 7, 1996.
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE
THE SECURITIES ACT OF 1933
----------------------
FUQUA ENTERPRISES, INC.
(Exact Name of Issuer as Specified in its Charter)
DELAWARE 13-1988043
(State or Other Jurisdiction of (I.R.S.Employer
Incorporation or Organization) Identification Number)
One Atlantic Center, Suite 5000
1201 West Peachtree Street, N.W.
Atlanta, Georgia 30309
(404) 815-2000
(Address, including zip code, and telephone number of
Principal Executive Offices)
1995 LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
Brady W. Mullinax, Jr.
Vice President-Finance, Treasurer and
and Chief Executive Officer
Fuqua Enterprises, Inc.
One Atlantic Center, Suite 5000
1201 West Peachtree Street, N.W.
Atlanta, Georgia 30309
(404) 815-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
Bryan E. Davis
Alston & Bird
1201 W. Peachtree Street, N.W.
Atlanta, GA 30309
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered (1) Per Unit (2) Price Registration Fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $2.50 per share 300,000 $28.625 $8,587,500 $2,961.21
===========================================================================================================
</TABLE>
(1) This Registration Statement also covers any additional shares that may
hereafter become exercisable as a result of the adjustment and
anti-dilution provisions of the Registrant's 1995 Long-Term Incentive
Plan.
(2) Estimated, solely for the purpose of calculating the registration fee,
as the price of the Registrant's Common Stock and computed, in
accordance with Rule 457(h)(1), based upon the average of the high and
low prices of the Registrant's Common Stock on the New York Stock
Exchange on June 4, 1996.
<PAGE> 2
PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference into this
Registration Statement and are deemed to be a part hereof from the date of the
filing of such documents:
(1) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995.
(2) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since December 31, 1995, including the Registrant's Quarterly
Report on Form 10-Q for the period ended March 31, 1996.
(3) The description of Common Stock contained in the Registrant's
Registration Statement filed under Section 12 of the Exchange Act, including
all amendments or reports filed for the purpose of updating such description.
All other documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 herein and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated
or deemed incorporated herein by reference shall be deemed to be modified or
superseded for the purpose of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also is,
or is deemed to be, incorporated herein by reference 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.
The legality of the securities registered hereby has been passed upon
by Alston & Bird.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Amended and Restated Certificate of Incorporation
(the "Certificate of Incorporation") provides that each person who was or is
made a party or is threatened to be made a party to or otherwise is involved in
any action, suit, or proceeding, whether civil, criminal, administrative, or
investigative (collectively, a "proceeding"), by reason of the fact that he or
she is or was a director or officer of the Registrant or, being at the time a
director or officer of the Registrant, is or was serving at the request of the
Registrant as a director, trustee, officer, employee, or agent of another
corporation or of a partnership, joint venture, trust, or other enterprise,
including service with respect to an employee benefit plan (collectively,
"another enterprise"), shall be indemnified and held harmless by the Registrant
to the fullest extent not prohibited by Section 145 of the Delaware General
Corporation Law (or any successor provision or provisions) as it currently
exists or may hereafter be amended (but, in the case of any amendment, with
respect to actions taken prior to such amendment, only to the extent that such
amendment permits the Registrant to provide broader indemnification rights than
permitted prior to such amendment) against all expense, liability, and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties,
and amounts paid in settlement) reasonably incurred or suffered by such person
in connection therewith. Except as may be provided by the Registrant's Bylaws
or its Board of Directors, however, such indemnification does not extend to an
indemnitee in connection with a proceeding (or portion thereof) initiated by
such indemnitee (other than a cross-claim, third party claim, or counterclaim)
unless such proceeding (or portion thereof) was authorized by the Board of
Directors.
1
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Under Section 145 of the Delaware General Corporation Law as currently
in effect, other than in actions brought by or in the right of the Registrant,
such indemnification would apply if it was determined in the specific case that
the proposed indemnitee acted in good faith and in a manner such indemnitee
reasonably believed to be in or not opposed to the best interests of the
Registrant and, with respect to any criminal proceeding, if such indemnitee had
no reasonable cause to believe that such indemnitee's conduct was unlawful. In
actions brought by or in the right of the Registrant, such indemnification
would be limited to reasonable expenses (including attorneys' fees), and would
apply if it were determined in the specific case that the proposed indemnitee
acted in good faith and in a manner such indemnitee reasonably believed to be
in or not opposed to the best interests of the Registrant, except that no
indemnification may be made with respect to any claim, issue, or matter as to
which such person is adjudged liable to the Registrant unless, and only to the
extent that, the Court of Chancery or the court in which that action was
brought determines upon application that, in view of all the circumstances of
the case, the proposed indemnitee is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper. To the extent that any
director, officer, employee, or agent of the Registrant has been successful on
the merits or otherwise in defense of any proceeding, he or she must be
indemnified against reasonable expenses incurred by him in connection therewith.
The Registrant's Certificate of Incorporation and Bylaws provide that
the right of such directors and officers to indemnification includes the right
to advancement by the Registrant of expenses incurred in defending any such
proceeding in advance of its final disposition upon delivery to the Registrant
of an undertaking to repay any amount so advanced if it is ultimately
determined by final judicial decision that the proposed indemnitee is not
entitled to be indemnified for such expenses.
The Registrant's Certificate of Incorporation further provides that
the Registrant may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, and to the advancement of expenses,
to any employee or agent of the Registrant (or any person serving at the
Registrant's request as a director, trustee, officer, employee, or agent of
another enterprise), or to persons who are or were directors, officers,
employees, or agents of any of the Registrant's affiliates, or predecessor or
subsidiary corporations, or any constituent corporation absorbed by the
Registrant in a consolidation or merger, or who is or was serving at the
request of such affiliate, predecessor or subsidiary corporation or any such
constituent corporation as a director, officer, employee, or agent of another
enterprise, in each case as determined by the Board of Directors.
The Registrant's Certificate of Incorporation also limits or
eliminates, to the fullest extent that the Delaware General Corporation Law
permits, the personal liability of a director to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that the liability of a director may not be eliminated or limited (i)
for any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, or (iii) violations under
Section 174 of the Delaware General Corporation Law (which makes directors
liable for unlawful distributions), or (iv) for any transaction from which the
director derived an improper personal benefit.
The Registrant's directors and officers are insured against losses
arising from claims against them as such for wrongful acts or omissions,
subject to certain limitations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable
2
<PAGE> 4
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Designation Exhibits Incorporated Herein by Reference
of Exhibit --------------------------------------------------------
in this Document with Which Exhibit Designation of Such
Registration Description of Was Previously Filed with Exhibit in That
Statement Exhibits Commission Document
------------ ------------------------------------------ --------------------------- -------------------
<S> <C> <C> <C>
4(a) Amended and Restated Certificate of
Incorporation of Fuqua
4(b) Bylaws of Fuqua
5 Opinion of Counsel of Fuqua
23(a) Consent of Counsel (included in Exhibit 5)
23(b) Consent of Independent Auditors
24 Powers of Attorney and Certified Copy of
Resolutions of the Board of Directors
adopted May 24, 1996
99 1995 Long-Term Incentive Plan of Fuqua Proxy Statement dated Exhibit A
April 16, 1996
</TABLE>
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 of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
this 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 this Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in this Registration
Statement or any material change to such
information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above 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 Registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities being
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.
3
<PAGE> 5
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (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 this 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 of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the Registrant's Certificate of
Incorporation and Bylaws, 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 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 Act and will be governed by the final adjudication of such
issue.
4
<PAGE> 6
SIGNATURES
The Registrant. 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 Atlanta, State of Georgia, on June 7,
1996.
FUQUA ENTERPRISES, INC.
By: /s/ Mildred H. Hutcheson
----------------------------
Mildred H. Hutcheson
Corporate Secretary
Dated: June 7, 1996
Pursuant to the requirements of the Securities Act of 1933 this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------- ---------------------------------------------- ----------------------------------------
<S> <C> <C>
J. B. FUQUA* Chairman of the Board
J. REX FUQUA* Vice Chairman of the Board
W. CLAY HAMNER* Director
FRANK W. HULSE IV* Director
LAWRENCE P. KLAMON* President, Chief Executive Officer
and Director (Principal Executive Officer)
June 7, 1996
RICHARD C. LAROCHELLE* Director
GENE J. MINOTTO* Director
CLARK L. REED, JR.* Director
D. RAYMOND RIDDLE* Director
BRADY W. MULLINAX, JR.* Vice President-Finance, Treasurer, and
Chief Financial Officer (Principal Financial
Officer and Principal Accounting Officer)
</TABLE>
FUQUA ENTERPRISES, INC.
*By: /s/ Mildred H. Hutcheson
---------------------------------------------------
Mildred H. Hutcheson
Attorney-in-fact
Note: Powers-of-Attorney authorizing the foregoing signatures are attached
hereto as Exhibit 24.
5
<PAGE> 7
FUQUA ENTERPRISES, INC.
Exhibit Index
to
Registration Statement on Form S-8
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
4(a) Amended and Restated Certificate of Incorporation of Fuqua Enterprises, Inc.
4(b) Bylaws of Fuqua Enterprises, Inc.
5 Opinion of Counsel of Fuqua Enterprises, Inc.
23(a) Consent of Counsel (included in Exhibit 5)
23(b) Consent of Independent Auditors of Fuqua Enterprises, Inc.
24 Powers of Attorney and Certified Copy of Resolutions of the Board of Directors
adopted May 24, 1996
</TABLE>
6
<PAGE> 1
EXHIBIT 4(a)
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
----------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED
CERTIFICATE OF "FUQUA ENTERPRISES, INC.", FILED IN THIS OFFICE ON THE THIRD DAY
OF JUNE, A.D. 1996, AT 10 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
[STATE OF DELAWARE SEAL]
[SECRETARY'S OFFICE OF DELAWARE SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7969564
0624103 8100
DATE: 06-03-96
960159654
<PAGE> 2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FUQUA ENTERPRISES, INC.
------------------------------------------
Pursuant to Sections 242 and 245 of the
Delaware General Corporation Law
------------------------------------------
The undersigned, Lawrence P. Klamon, President and Chief Executive
Officer, and Mildred H. Hutcheson, Corporate Secretary, of FUQUA ENTERPRISES,
INC. ("Corporation"), do hereby certify as follows:
1. The name of the Corporation is Fuqua Enterprises, Inc. The
name under which the Corporation was originally incorporated is The Seagrave
Delaware Corporation.
2. The Certificate of Incorporation of the Corporation was
originally filed with the Secretary of State of the State of Delaware on April
12, 1965.
3. The amendments to and the restatement of the Certificate of
Incorporation of the Corporation have been duly adopted in accordance with the
provisions of Sections 242 and 245 of the Delaware General Corporation Law by
the affirmative vote of the holders of a majority of the outstanding stock
entitled to vote thereon at a meeting of the stockholders of the Corporation
duly called and held on June 1, 1996.
4. The text of the Certificate of Incorporation of the
Corporation, as heretofore amended, is hereby amended further and restated to
read in full as follows:
ARTICLE I
NAME
The name of the corporation ("Corporation") is Fuqua Enterprises, Inc.
ARTICLE II
ADDRESS OF REGISTERED OFFICE;
NAME OF REGISTERED AGENT
The registered office of the Corporation is to be located at
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle, and State of Delaware. The name of its resident agent at that
address is The Corporation Trust Company.
ARTICLE III
PURPOSE AND POWERS
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Delaware General
Corporation Law. It shall have all powers that may now or hereafter be lawful
for a corporation to exercise under the Delaware General Corporation Law.
ARTICLE IV
CAPITAL STOCK
SECTION 4.1. TOTAL NUMBER OF SHARES OF STOCK. The total number of
shares of stock which the Corporation shall have authority to issue is
28,000,000, of which 8,000,000 shares shall be Preferred Stock with a par value
of $1.00, and 20,000,000 shares shall be Common Stock with a par value of
$2.50.
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SECTION 4.2. PREFERRED STOCK. (a) The shares of Preferred Stock of
the Corporation may be issued from time to time in one or more classes or
series thereof, the shares of each class or series thereof to have such voting
powers, full or limited, or no voting powers, and such designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as are stated and
expressed herein or in the resolution or resolutions providing for the issue of
such class or series, adopted by the Board of Directors as hereinafter
provided.
(b) Authority is hereby expressly granted to the Board of Directors
of the Corporation, subject to the provisions of this Article IV and to the
limitations prescribed by the Delaware General Corporation Law, to authorize
the issue of one or more classes, or series thereof, of Preferred Stock and
with respect to each such class or series to fix by resolution or resolutions
providing for the issue of such class or series the voting powers, full or
limited, if any, of the shares of such class or series and the designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof. The authority of the
Board of Directors with respect to each class or series thereof shall include,
but not be limited to, the determination or fixing of the following:
(i) the maximum number of shares to constitute such class
or series, which may subsequently be increased or decreased by resolution of
the Board of Directors unless otherwise provided in the resolution providing
for the issue of such class or series, the distinctive designation thereof and
the stated value thereof if different than the par value thereof;
(ii) the dividend rate of such class or series, the
conditions and dates upon which such dividends shall be payable, the relation
which such dividends shall bear to the dividends payable on any other class or
classes of stock or any other series of any class of stock of the Corporation,
and whether such dividends shall be cumulative or noncumulative;
(iii) whether the shares of such class or series shall be
subject to redemption, in whole or in part, and, if made subject to such
redemption, the times, prices and other terms and conditions of such
redemption, including whether or not such redemption may occur at the option of
the Corporation or at the option of the holder or holders thereof or upon the
happening of a specified event;
(iv) the terms and amount of any sinking fund established
for the purchase or redemption of the shares of such class or series;
(v) whether or not the shares of such class or series
shall be convertible into or exchangeable for shares of any other class or
classes of any stock or any other series of any class of stock of the
Corporation, and, if provision is made for conversion or exchange, the times,
prices, rates, adjustments, and other terms and conditions of such conversion
or exchange;
(vi) the extent, if any, to which the holders of shares of
such class or series shall be entitled to vote with respect to the election of
directors or otherwise;
(vii) the restrictions, if any, on the issue or reissue of
any additional Preferred Stock;
(viii) the rights of the holders of the shares of such class
or series upon the dissolution of, or upon the subsequent distribution of
assets of, the Corporation; and
(ix) the manner in which any facts ascertainable outside
the resolution or resolutions providing for the issue of such class or series
shall operate upon the voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of such class or series.
SECTION 4.3. COMMON STOCK. The holders of the Common Stock shall be
entitled to one vote for each share of Common Stock held.
2
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ARTICLE V
GOVERNANCE PROVISIONS
The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation and for further
defining, limiting and regulating the powers of the Corporation and its
director and stockholders:
SECTION 5.1. STOCKHOLDER NOMINATIONS. Nominations for election of
directors may be made by the Board of Directors or a committee appointed by the
Board of Directors or by any stockholder entitled to vote in the election of
directors. A stockholder entitled to vote in the election of directors may
nominate one or more persons for election as directors at a meeting of
stockholders provided that written notice the stockholder's intent to make such
nomination or nominations has been given either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the Corporation (i)
with respect to an election to be held at an annual meeting of stockholders, at
least ninety days prior to the anniversary date of the immediately preceding
annual meeting, (ii) with respect to an election to be held at a special
meeting of stockholders called at the request of a stockholder, at least ninety
days prior to the date of the special meeting, and (iii) with respect to an
election to be held at a special meeting of stockholders other than a special
meeting called at the request of a stockholder, prior to the close of business
on the tenth day following the date on which notice of such meeting is first
given to stockholders. The notice shall set forth: (a) the name and address of
the stockholder who intends to make the nomination and of the person or persons
to be nominated; (b) a statement that the stockholder is a holder of record of
stock of the Corporation entitled to vote at the meeting and intends to appear
in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (d) such other information
regarding each nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission; and (e) the consent of each nominee to
serve as a director of the Corporation if so elected. The election of the
directors of the Corporation need not be by written ballot.
SECTION 5.2. BYLAW AMENDMENTS. In furtherance and not in limitation
of the powers conferred by the laws of the State of Delaware, the Board of
Directors is expressly authorized and empowered, without the assent or vote of
the stockholders, to make, alter, or repeal the Bylaws of the Corporation.
ARTICLE VI
COMPROMISE
Wherever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of Title 8
of the Delaware Code, order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as the
case may be, to be summoned in such matter as the said court directs. If a
majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement, and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
3
<PAGE> 5
ARTICLE VII
INDEMNIFICATION
SECTION 7.1. RIGHT TO INDEMNIFICATION. Each person who was or is
made a party or is threatened to be made a party to or is otherwise involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact:
(i) that he or she is or was a director or officer of the
Corporation, or
(ii) that he or she, being at the time a director or officer of the
Corporation, is or was serving at the request of the Corporation as a director,
trustee, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (collectively, "another enterprise" or "other
enterprise"), whether either in case (i) or in case (ii) the basis of such
proceeding is alleged action or inaction (x) in an official capacity as a
director or officer of the Corporation, or as a director, trustee, officer,
employee or agent of such other enterprise, or (y) in any other capacity
related to the Corporation or such other enterprise while so serving as a
director, trustee, officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent not prohibited by Section 145
(or any successor provision or provisions) of the Delaware General Corporation
Law as the same exists or may hereafter be amended (but, in the case of any
such amendment, with respect to alleged action or inaction occurring prior to
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than permitted prior thereto),
against all expense, liability and loss (including without limitation
attorneys' fees and expenses, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such person
in connection therewith. The persons indemnified by this Article VII are
hereinafter referred to as "indemnitees." Such indemnification as to such
alleged action or inaction shall continue as to an indemnitee who has after
such alleged action or inaction ceased to be a director or officer of the
Corporation, or director, trustee, officer, employee or agent of such other
enterprise; and shall inure to the benefit of the indemnitee's heirs, executors
and administrators. Notwithstanding the foregoing, except as may be provided
in the Bylaws or by the Board of Directors, the Corporation shall not indemnify
any such indemnitee in connection with a proceeding (or portion thereof)
initiated by such indemnitee unless such proceeding (or portion thereof) was
authorized by the Board of Directors (but this prohibition shall not apply to a
counterclaim, cross-claim or third-party claim brought by the indemnitee in any
proceeding). The right to indemnification conferred in this Article VII: (i)
shall be a contract right; (ii) shall not be affected adversely to any
indemnitee by any amendment of this Amended and Restated Certificate of
Incorporation with respect to any alleged action or inaction occurring prior to
such amendment; and (iii) shall, subject to any requirements imposed by law and
the Bylaws, include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition.
SECTION 7.2. RELATIONSHIP TO OTHER RIGHTS AND PROVISIONS CONCERNING
INDEMNIFICATION. The rights to indemnification and to the advancement of
expenses conferred in this Article VII shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute, this
Amended and Restated Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise. The Bylaws may contain
such other provisions concerning indemnification, including provisions
specifying reasonable procedures relating to and conditions to the receipt by
indemnitees of indemnification, provided that such provisions are not
inconsistent with the provisions of this Article VII.
SECTION 7.3. AGENTS AND EMPLOYEES. The Corporation may, to the
extent authorized from time to time by the Board of Directors, grant rights to
indemnification, and to the advancement of expenses, to any employee or agent
of the Corporation (or any person serving at the Corporation's request as a
director, trustee, officer, employee or agent of another enterprise) or to any
person who is or was a director, officer, employee or agent of any of the
Corporation's affiliates, predecessor or subsidiary corporations or of a
constituent corporation absorbed by the Corporation in a consolidation or
merger or who is or was serving at the request of such affiliate, predecessor
or subsidiary corporation or of such constituent corporation as a director,
officer, employee or agent of another enterprise, in each case as determined by
the Board of Directors to the fullest extent of the provisions of this Article
VII in cases of the indemnification and advancement of expenses of directors
and officers of the Corporation, or to any lesser extent (or greater extent, if
permitted by law) determined by the Board of Directors.
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ARTICLE VIII
LIMITATION ON LIABILITY OF DIRECTORS
No director shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director;
provided, however, that this provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 (or any successor section) of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law is amended
hereafter to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation Law, as so amended. This Article VIII shall
not eliminate or limit the liability of a director for any act or omission
occurring prior to the date when this Article VIII becomes effective. Neither
the amendment nor repeal of this Article VIII, nor the adoption of any
provision of this Amended and Restated Certificate of Incorporation
inconsistent with this Article VIII, shall eliminate or reduce the effect of
this Article VIII in respect of any matter occurring, or any cause of action,
suit or claim that, but for this Article VIII, would accrue or arise, prior to
such amendment or repeal, or adoption of an inconsistent provision.
ARTICLE IX
SEVERABILITY
In the event that any of the provisions of this Amended and Restated
Certificate of Incorporation (including any provision within a single Section,
paragraph or sentence) is held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, the remaining provisions are
severable and shall remain enforceable to the full extent permitted by law.
IN WITNESS WHEREOF, we have signed this certificate this 1st day of June, 1996.
/s/ Lawrence P. Klamon
-------------------------------------
Lawrence P. Klamon
President and Chief Executive Officer
ATTEST:
/s/ Mildred H. Hutcheson
- ----------------------------------
Mildred H. Hutcheson
Corporate Secretary
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EXHIBIT 4(b)
BYLAWS
OF
FUQUA ENTERPRISES, INC.
ARTICLE I
Stockholders
Section 1.1. Annual Meetings. An annual meeting of
stockholders shall be held for the election of directors at such date, time and
place, either within or without the State of Delaware, as may be designated by
resolution of the Board of Directors from time to time. Any other proper
business may be transacted at the annual meeting.
Section 1.2 Special Meetings. Special meetings of
stockholders for any purpose or purposes may be called at any time by the Board
of Directors, the Chairman of the Board or the Vice Chairman, or by a committee
of the Board of Directors which has been duly designated by the Board of
Directors and whose powers and authority, as expressly provided in a resolution
of the Board of Directors, include the power to call such meetings.
Section 1.3. Notice of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which shall state the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, the certificate
of incorporation or these bylaws, the written notice of any meeting shall be
given not less than ten nor more than sixty days before the date of the meeting
to each stockholder entitled to vote at such meeting. If mailed, such notice
shall be deemed to be given when deposited in the mail, postage prepaid,
directed to the stockholder at his address as it appears on the records of the
corporation.
Section 1.4. Adjournments. Any meeting of stockholders,
annual or special, may adjourn from time to time to reconvene at the same or
some other place, and notice need not be given of any such adjourned meeting if
the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting the corporation may transact
any business which might have been transacted at the original meeting. If the
adjournment is for more than thirty days, or if after the
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adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 1.5. Quorum. Except as otherwise provided by law,
the certificate of incorporation or these bylaws, at each meeting of
stockholders the presence in person or by proxy of the holders of shares of
stock having a majority of the votes which could be cast by the holders of all
outstanding shares of stock entitled to vote at the meeting shall be necessary
and sufficient to constitute a quorum. In the absence of a quorum, the
stockholders so present may, by majority vote, adjourn the meeting from time to
time in the manner provided in Section 1.4 of these bylaws until a quorum shall
attend. 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 other corporation is held, directly or indirectly, by the
corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of
the corporation to vote stock, including but not limited to its own stock, held
by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be
presided over by the Chairman of the Board, and in his absence by the
President, or in his absence by a Vice President, or in the absence of the
foregoing persons by a chairman designated by the Board of Directors, or in the
absence of such designation by a chairman chosen at the meeting. The Secretary
shall act as secretary of the meeting, but in his absence the chairman of the
meeting may appoint any person to act as secretary of the meeting.
Section 1.7. Voting; Proxies. Except as otherwise provided
by the certificate of incorporation, each stockholder entitled to vote at any
meeting of stockholders shall be entitled to one vote for each share of stock
held by him which has voting power upon the matter in question. Each
stockholder entitled to vote at a meeting of stockholders may authorize another
person or persons to act for him by proxy, but no such proxy shall be voted or
acted upon after three years from its date, unless the proxy provides for a
longer period. A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A stockholder may revoke
any proxy which is not irrevocable by attending the meeting and voting in
person
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or by filing an instrument in writing revoking the proxy or another duly
executed proxy bearing a later date with the Secretary of the corporation.
Voting at meetings of stockholders need not be by written ballot and need not
be conducted by inspectors of election unless so determined by the Board of
Directors, the Executive Committee or the holders of shares of stock having a
majority of the votes which could be cast by the holders of all outstanding
shares of stock entitled to vote thereon which are present in person or by
proxy at such meeting. At all meetings of stockholders for the election of
directors a plurality of the votes cast shall be sufficient to elect. All
other elections and questions shall, unless otherwise provided by law, the
certificate of incorporation or these bylaws, be decided by the vote of the
holders of shares of stock having a majority of the votes which could be cast
by the holders of all shares of stock entitled to vote thereon which are
present in person or represented by proxy at the meeting.
Section 1.8. List of Stockholders Entitled to Vote. The
Secretary shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. 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 also be produced and kept at the time and place
of the meeting during the whole time thereof and may be inspected by any
stockholder who is present. The stock ledger shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger or to vote in
person or by proxy at any meeting of stockholders, and of the list of
stockholders or the books of the corporation.
Section 1.9. Action By Consent. Unless otherwise restricted
by the certificate of incorporation, any action required or permitted to be
taken at any annual or special meeting of the stockholders may be taken without
a meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at
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which all shares entitled to vote thereon were present and voted. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE II
Board of Directors
Section 2.1. Number; Qualifications. The Board of Directors
shall consist of one or more members, the number thereof to be determined from
time to time by resolution of the Board of Directors. Directors need not be
stockholders.
Section 2.2 Election; Resignation; Removal; Vacancies. The
Board of Directors shall initially consist of the persons named as directors in
the certificate of incorporation, and each director so elected shall hold
office until the first annual meeting of stockholders or until his successor is
elected and qualified. At the first annual meeting of stockholders and at each
annual meeting thereafter, the stockholders shall elect directors, each of whom
shall hold office for a term of one year or until his successor is elected and
qualified. Any director may resign at any time upon written notice to the
corporation. Any newly created directorship or any vacancy occurring in the
Board of Directors for any reason may be filled by a majority of the remaining
members of the Board of Directors, although such majority is less than a
quorum, or by a sole remaining director, or by a plurality of the votes cast at
a meeting of stockholders, and each director so elected shall hold office until
the expiration of the term of office of the director whom he has replaced or
until his successor is elected and qualified.
Section 2.3. Regular Meetings. Regular meetings of the Board
of Directors may be held at such places within or without the State of Delaware
and at such times as the Board of Directors may from time to time determine,
and if so determined notices thereof need not be given.
Section 2.4 Special Meetings. Special meetings of the Board
of Directors may be held at any time or place within or without the State of
Delaware whenever called by the Chairman of the Board of Directors, the Vice
Chairman, the President, or upon the written request of a majority of the
directors, unless the Board of Directors consists of one director, in which
case special meetings may be called by
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the sole director. Notice of a special meeting of the Board of Directors shall
be given to each director by the person or persons calling the meeting at least
twenty-four (24) hours before the special meeting.
Section 2.5. Telephonic Meetings Permitted. Members of the
Board of Directors, or any committee designated by the Board of Directors, may
participate in a meeting thereof by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
section shall constitute presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At all
meetings of the Board of Directors a majority of the whole Board of Directors
shall constitute a quorum for the transaction of business. Except in cases in
which the certificate of incorporation or these bylaws otherwise provide, the
vote of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors.
Section 2.7. Organization. Meetings of the Board of
Directors shall be presided over by the Chairman of the Board, and in his
absence by the President, or in their absence by a chairman chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in his
absence the chairman of the meeting may appoint any person to act as secretary
of the meeting.
Section 2.8. Action by Consent. Unless otherwise restricted
by the certificate of incorporation or these bylaws, 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 all members of the Board
of Directors or of such committee, as the case may be, consent thereto in
writing, and the writing or writings are directed to be filed with the minutes
of proceedings of the Board of Directors or such committee.
Section 2.9 Compensation of Directors. Directors shall not
receive any stated salary for their services as directors, but by resolution of
the Board of Directors a fixed fee and expenses of attendance may be allowed
for attendance at each regular or special meeting of the Board of Directors;
provided, that nothing herein shall be construed to preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor; provided further that the Chairman of the Board of Directors may
receive a stated salary for his services, established by resolution of the
Board of Directors.
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Members of special or standing committees may be allowed like compensation for
attending committee meetings.
ARTICLE III
Committees
Section 3.1. Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
or more committees, to consist of one or more of the directors of the
corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of
a member of the 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. Any such
committee, to the extent permitted by law and to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it.
Section 3.2 Committee Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board of Directors may
make, alter and repeal rules for the conduct of its business. In the absence
of such rules each committee shall conduct its business in the same manner as
the Board of Directors conducts its business pursuant to Article III of these
bylaws.
ARTICLE IV
Officers
Section 4.1 Executive Officers; Election; Qualifications;
Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall
elect a Chairman of the Board of Directors, Vice Chairman and a President from
among its members to serve as executive officers. The Board of Directors shall
also elect a Secretary and a Treasurer to serve as executive officers. The
Board of Directors may also choose one or more Vice Presidents, one or more
Assistant Secretaries and one or more Assistant Treasurers. Each such officer
shall hold office until the first meeting of the Board of Directors after the
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annual meeting of stockholders next succeeding his election, and until his
successor is elected and qualified or until his earlier resignation or removal.
Any officer may resign at any time upon written notice to the corporation. The
Board of Directors may remove any officer with or without cause at any time.
Any number of offices may be held by the same person. Any vacancy occurring in
any office of the corporation by death, resignation, removal or otherwise may
be filled for the unexpired portion of the term by the Board of Directors at
any regular or special meeting.
Section 4.2. Chairman of the Board of Directors. The
Chairman of the Board shall preside at all meetings of the Board of Directors
and all meetings of the stockholders at which he shall be present.
Section 4.3 Vice Chairman. In the absence or disability of
the Chairman of the Board of Directors, the Vice Chairman shall perform all the
duties of the Chairman, and when so acting, shall have the powers of the
Chairman.
Section 4.4. President. The President shall be the Chief
Executive Officer of the corporation and shall give general supervision and
direction to the affairs of the corporation, subject to the direction of the
Board of Directors.
Section 4.5. Vice-Presidents. In the absence or disability
of the President, a Vice-President designated by the Board of Directors or, in
the absence of such designation, the Vice-President first nominated to that
office and then available, shall perform all of the duties of the President,
and when so acting, shall have the powers of the President. All Vice
Presidents may sign, with the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary, certificates of stock of the corporation;
and shall perform such other duties as from time to time may be assigned to
them by the Board of Directors.
Section 4.6. Secretary. The Secretary shall keep the minutes
of all meetings of the stockholders and of the Board of Directors, in books
provided for that purpose. He shall give, or cause to be given, all notices
required by law or by these bylaws. He shall be custodian of the records and
of the seal or seals of the corporation. He shall, when authorized by the
Board of Directors or the Chairman of the Board, affix the seal of the
corporation to all documents requiring it, and he may attest the same. He may
sign with the Chairman of the Board, the President or a Vice-President,
certificates of stock of the
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corporation. In general, he shall perform all duties incident to the office of
a secretary of a corporation, and such other duties as from time to time may be
assigned to him by the Board of Directors.
Section 4.7. Treasurer. The Treasurer shall have charge of
and be responsible for all funds, securities, receipts and disbursements of the
corporation, and shall deposit, or cause to be deposited, in the name of the
corporation, all moneys or other valuable effects in such banks, trust
companies or other depositories as shall from time to time be selected by the
Board of Directors. He shall, whenever requested, render to the Chairman of
the Board or the Board of Directors an account of the financial condition of
the corporation. He may sign, with the Chairman of the Board, the President or
a Vice-President, certificates of stock of the corporation. In general, he
shall perform all the duties incident to the office of a treasurer of a
corporation, and such other duties as may be assigned to him by the Board of
Directors.
Section 4.8. Assistant Officers. The Board of Directors may
elect one or more Assistant Secretaries and one or more Assistant Treasurers.
Each Assistant Secretary, if any, and each Assistant Treasurer, if any, shall
hold office for such period and shall have such authority and perform such
duties as the Board of Directors may prescribe.
ARTICLE V
Stock
Section 5.1. Certificates. Every holder of stock shall be
entitled to have a certificate signed by or in the name of the corporation by
the Chairman or Vice Chairman of the Board of Directors, if any, or the
President or a Vice President, and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary of the corporation, certifying the
number of shares owned by him in the corporation. Any of or all the signatures
on the certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent, or registrar at the
date of issue.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificates. The corporation may issue a new certificate of
stock in the place of any certificate theretofore issued by
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it, alleged to have been lost, stolen or destroyed, and the corporation may
require the owner of the lost, stolen or destroyed certificate, or his legal
representative, to give the corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate.
Section 5.3. Fixing Date for Determination of Stockholders of
Record. In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a
meeting, 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 a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors and which record date: (1) in the case of
determination of stockholders entitled to vote at any meeting of stockholders
or adjournment thereof, shall, unless otherwise required by law, not be more
than sixty nor less than ten days before the date of such meeting; (2) in the
case of determination of stockholders entitled to express consent to corporate
action in writing without a meeting, shall not be more than ten days from the
date upon which the resolution fixing the record date is adopted by the Board
of Directors; and (3) in the case of any other action, shall not be more than
sixty days prior to such other action. If no record date is fixed: (1) the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; (2) the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting when no prior action
of the Board of Directors is required by law, shall be the first date on which
a signed written consent setting forth the action taken or proposed to be taken
is delivered to the corporation in accordance with applicable law, or, if prior
action by the Board of Directors is required by law, shall be at the close of
business on the day on which the Board of Directors adopts the resolution
taking such prior action; and (3) the record date for determining stockholders
for any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating
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thereto. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
ARTICLE VI
Indemnification
Section 6.1. Indemnification Provisions in Amended and
Restated Certificate of Incorporation. The provisions of this Article VI are
intended to supplement Article SEVENTH of the Amended and Restated Certificate
of Incorporation pursuant to Sections 7.2 and 7.3 thereof. To the extent that
this Article VI contains any provisions inconsistent with said Article SEVENTH,
the provisions of the Amended and Restated Certificate of Incorporation shall
govern. Terms defined in such Article SEVENTH shall have the same meaning in
this Article VI.
Section 6.2. Indemnification of Employees and Agents. The
Corporation may indemnify and advance expenses to its employees and agents to
the same or any lesser extent as to its directors and officers, as set forth in
the Amended and Restated Certificate of Incorporation and in this Article VI of
the Bylaws of the Corporation.
Section 6.3. Undertakings for Advances of Expenses. If and
to the extent the General Corporation Law of the State of Delaware (the "DGCL")
requires, an advancement by the Corporation of expenses incurred by an
indemnitee pursuant to clause (iii) of the last sentence of Section 7.1 of the
Amended and Restated Certificate of Incorporation (hereinafter an "advancement
of expenses") shall be made only upon delivery to the Corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter a
"final adjudication") that such indemnitee is not entitled to be indemnified
for such expenses under Article SEVENTH of the Amended and Restated Certificate
of Incorporation or otherwise.
Section 6.4. Claims for Indemnification. If a claim for
indemnification under Section 7.1 of the Amended and Restated Certificate of
Incorporation is not paid in full by the Corporation within 60 days after it
has been received in writing by the Corporation, except in the case of a claim
for an
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advancement of expenses, in which case the applicable period shall be 20 days,
the indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in
any such suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that, and
in any suit by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking the Corporation shall be entitled to recover
such expenses only upon a final adjudication that, the indemnitee has not met
the applicable standard of conduct set forth in Section 145 of the DGCL (or any
successor provision or provisions). Neither the failure of the Corporation
(including the Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
Section 145 of the DGCL (or any successor provision or provisions), nor an
actual determination by the Corporation (including the Board of Directors,
independent legal counsel, or its stockholders) that the indemnitee has not met
such applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to have or
retain such advancement of expenses, under Article SEVENTH of the Amended and
Restated Certificate of Incorporation or this Article VI or otherwise, shall be
on the Corporation.
Section 6.5. Insurance. The Corporation may maintain
insurance, at its expense, to protect itself and any director, trustee,
officer, employee or agent of the Corporation or another enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
DGCL.
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Section 6.6. Severability. In the event that any of the
provisions of this Article VI (including any provision within a single section,
paragraph or sentence) is held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, the remaining provisions are
severable and shall remain enforceable to the full extent permitted by law.
ARTICLE VII
Miscellaneous
Section 7.1. Fiscal Year. The fiscal year of the corporation
shall end on the 31st day of December in each year, or on such other day as
shall be determined from time to time by resolution of the Board of Directors.
Section 7.2. Seal. The corporate seal shall have the name of
the corporation inscribed thereon and shall be in such form as may be approved
from time to time by the Board of Directors.
Section 7.3. Waiver of Notice of Meetings of Stockholders,
Directors and Committees. Any written waiver of notice, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting 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. Neither the business to be transacted at, nor the purpose of any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
Section 7.4. Form of Records. Any records maintained by the
corporation in the regular course of its business, including its stock ledger,
books of account, and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs, or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
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Section 7.5. Amendment of Bylaws. These bylaws may be
altered or repealed, and new bylaws made, by the Board of Directors, but the
stockholders may make additional bylaws and may alter and repeal any bylaws
whether adopted by them or otherwise.
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EXHIBIT 5
ALSTON & BIRD
1201 W. Peachtree Street, N.W.
Atlanta, GA 30309
June 7, 1996
Fuqua Enterprises, Inc.
1201 West Peachtree Street, N.W., Suite 5000
Atlanta, Georgia 30309
Re: Form S-8 Registration Statement
1995 Long-Term Incentive Plan
Ladies and Gentlemen:
The undersigned have acted as counsel for Fuqua Enterprises, Inc., a
Delaware corporation (the "Corporation"), in connection with the referenced
Registration Statement on Form S-8 (the "Registration Statement") being filed
by the Corporation with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, and covering 300,000 shares of the
Corporation's common stock, $2.50 par value ("Common Stock") that may be issued
pursuant to the 1995 Long-Term Incentive Plan (the "Plan"). In connection
therewith, we have examined originals or copies of corporate records,
certificates of public officials and of officers of the Corporation and other
instruments as we have deemed relevant and necessary for the opinion
hereinafter expressed.
On the basis of the foregoing, we are of the opinion that:
The 300,000 shares of Common Stock to be issued pursuant to the Plan,
when issued accordance with the terms and conditions of the Plan, will be
legally and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement.
Sincerely,
ALSTON & BIRD
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1995 Long-Term Incentive Plan of Fuqua
Enterprises, Inc. (formerly VISTA RESOURCES, INC.) and in the related
Prospectus of our report dated February 21, 1996, with respect to the
consolidated financial statements and schedule of Fuqua Enterprises, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1995,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Atlanta, Georgia
June 3, 1996
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, officers
and/or directors of FUQUA ENTERPRISES, INC., a Delaware corporation
(hereinafter called the "Corporation"), do hereby severally constitute and
appoint Lawrence P. Klamon, Brady W. Mullinax, Jr. and Mildred H. Hutcheson, or
any of them, his true and lawful attorneys and agents, with full power to act
without the others, for him and in his name, place and stead, in any and all
capacities, to execute in his name any and all instruments, which said
attorneys and agents may deem necessary or advisable in order to enable the
Corporation to comply with the Securities Act of 1933, and requirements of the
Securities and Exchange Commission in respect thereof, in connection with the
registration under said Act of up to 300,000 shares of Common Stock, $2.50 par
value, of the Corporation to be delivered from treasury by the Corporation upon
the exercise of options granted under the Fuqua Enterprises, Inc. 1995
Long-Term Incentive Plan, including specifically power and authority to sign
his name to the Registration Statement on Form S-8 to be filed with the
Securities and Exchange Commission in respect to such Common Stock, any
amendment or application for amendment of such Registration Statement, and any
Prospectus, proxy statement, exhibits, financial statements and schedules filed
therewith, and to file the same with the Securities and Exchange Commission;
and each of the undersigned does hereby ratify and confirm that said attorneys
and agents, and each of them, shall have, and may exercise, without the others,
all the powers hereby confirmed.
IN WITNESS WHEREOF, each of the undersigned has signed his name hereto
on the 31 day of May, 1996.
<TABLE>
<S> <C>
/s/ J. B. Fuqua /s/ J. Rex Fuqua
---------------------------------------------- ------------------------------------------------
J. B. Fuqua, Chairman of the Board of J. Rex Fuqua, Vice Chairman of the Board
Directors of Directors
/s/ Lawrence P. Klamon /s/ Brady W. Mullinax, Jr.
---------------------------------------------- ------------------------------------------------
Lawrence P. Klamon, President, Chief Executive Brady W. Mullinax, Jr., Vice President-Finance,
Officer and Director Treasurer and Chief Financial Officer (Principal
(Principal Executive Officer) Financial and Accounting Officer)
</TABLE>
1
<PAGE> 2
<TABLE>
<S> <C>
/s/ W. Clay Hamner /s/ Frank W. Hulse IV
------------------------------- ---------------------------
W. Clay Hamner, Director Frank W. Hulse IV, Director
/s/ Richard C. Larochelle /s/ Gene J. Minotto
------------------------------- ---------------------------
Richard C. Larochelle, Director Gene J. Minotto, Director
/s/ Clark L. Reed, Jr. /s/ D. Raymond Riddle
------------------------------- ---------------------------
Clark L. Reed, Jr., Director D. Raymond Riddle, Director
</TABLE>
2
<PAGE> 3
FUQUA ENTERPRISES, INC.
CERTIFICATE
I, Mildred H. Hutcheson, hereby certify that I am a duly elected and
acting Corporate Secretary of Fuqua Enterprises, Inc., a Delaware corporation,
and that attached hereto as Exhibit A is a true and correct copy of resolutions
adopted by the Board of Directors by unanimous written consent as of May 24,
1996, and that said resolutions as of June 6, 1996 have not been rescinded,
modified or amended and are in full force and effect on the date hereof.
IN WITNESS WHEREOF, I have executed this certificate on behalf of
Fuqua Enterprises, Inc. and attached the corporate seal this 6th day of June
1996.
/s/ Mildred H. Hutcheson
------------------------
Mildred H. Hutcheson
Corporate Secretary
(Corporate Seal)
1
<PAGE> 4
EXHIBIT A
RESOLVED, That the President, Vice President-Finance and Treasurer and
the Corporate Secretary of this Corporation (hereinafter called
"Authorized Officers") be, and they hereby are, authorized to prepare
and file with the Securities and Exchange Commission, and any other
appropriate governmental body, a Registration Statement on Form S-8
(hereinafter called the "Registration Statement") covering 300,000
shares of Common Stock, $2.50 par value, of this Corporation
(hereinafter called the "Shares") to be issued from unissued shares in
connection with the Fuqua Enterprises, Inc. 1995 Long-Term Incentive
Plan.
RESOLVED, That the Authorized Officers, and each of them, with full
power to act without the others, be, and they hereby are, authorized
to sign the Registration Statement on behalf of this Corporation and
on behalf of, and as attorneys for, the principal executive officer
and/or the principal financial officer and/or any other officers of
this Corporation;
RESOLVED, That the Authorized Officers be, and they hereby are,
authorized from time to time (i) to execute, in the name and on behalf
of this Corporation, (ii) to procure all necessary signatures to, and
(iii) to file with the Securities and Exchange Commission, such
amendments to the Registration Statement as they shall deem necessary
or appropriate to effect such registration;
RESOLVED, That the Authorized Officers, and each of them, with full
authority to act without the others, be, and they hereby are,
authorized to appear on behalf of this Corporation before the
Securities and Exchange Commission in connection with any matter
relating to the Registration Statement and any amendment thereto;
RESOLVED, That the Authorized Officers, be, and they hereby are,
authorized in the name and on behalf of this Corporation to take any
and all action which they may deem necessary or advisable in order to
effect the registration or qualification (or exemption therefrom of
the Corporation, as a broker-dealer or otherwise, in connection with
the delivery and sale of the Shares or to effect the registration or
qualification (or exemption therefrom) of the Shares under the blue
sky or securities laws of the states of the United States of America
or the District of Columbia and in connection therewith to prepare,
execute, certify, acknowledge, deliver, file or cause to be published
any applications, records, consents to service of process,
appointments of attorneys to receive service of process and all
documents or instruments which may be required under such laws, and to
take any and all such further action as they may deem necessary or
advisable in order to maintain such registration or qualification (or
exemption therefrom) for so long as they shall deem necessary; and
that this Board hereby adopts the form of any and all resolutions
required by and such state authority to be filed by this Corporation
in connection with any such application, report, consent to service of
process, or document or instrument if (i) in the opinion of the
officer of the Corporation so acting, the adoption of such resolution
is necessary or advisable and (ii) the Secretary of this Corporation
evidences such adoption by filing with the minutes of this meeting
copies of such resolutions, which shall thereupon be deemed to be
adopted by this Board and incorporated in the minutes as part of this
resolution with same force and effect as if presented in full to this
meeting and so set forth in such minutes, and which may be certified
by the Secretary of this Corporation as so adopted;
RESOLVED, That the Authorized Officers of this Corporation be, and
they hereby are, authorized to take all such further action and to
execute and deliver all such further instruments and documents, in the
name and on behalf of this Corporation and under its corporate seal or
otherwise, and to pay such fees and expenses as in their judgment
shall be necessary, proper or advisable in order fully to carry out
the intent and to accomplish the purposes of the foregoing
resolutions.
2
