<PAGE>
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[_] Preliminary Proxy Statement [_] CONFIDENTIAL, FOR USE OF THE
COMMISSION ONLY (AS PERMITTED BY
[X] Definitive Proxy Statement RULE 14C-5(D)(2))
[_] Definitive Additional Materials
[_] Soliciting Material Pursuant to (S)240.14a-11(c) or (S)240.14a-12
FUQUA ENTERPRISES, INC.
------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[_] $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), 14a-6(i)(2) or
Item 22(a)(2) of Schedule 14A.
[_] $500 per each party to the controversy pursuant to Exchange Act Rule 14a-
6(i)(3).
[_] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[X] Fee paid previously with preliminary materials.
[_] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
Notes:
<PAGE>
FUQUA ENTERPRISES, INC.
One Atlantic Center
Suite 5000
1201 W. Peachtree Street, N.W.
Atlanta, Georgia 30309
--------------
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
June 1, 1996
=======================================
The Annual Meeting of Stockholders of Fuqua Enterprises, Inc.
("Fuqua"), a Delaware corporation, will be held at the offices of Fuqua, One
Atlantic Center, Suite 5000, 1201 W. Peachtree Street, N.W., Atlanta, Georgia,
30309 on June 1, 1996 at 9:30 a.m. local time, for the following purpose:
1. To elect nine directors.
2. To approve Fuqua's 1995 Long-Term Incentive Plan.
3. To approve Fuqua's 1995 Stock Option Plan for Outside
Directors.
4. To amend and restate Fuqua's Restated Certificate of
Incorporation.
THE FORM OF PROXY ENCLOSED PROVIDES THAT NO OTHER MATTERS MAY BE
CONSIDERED OR ACTED UPON AT THE MEETING.
The Board of Directors has fixed the close of business on April 4,
1996 as the record date. Only stockholders of record at the close of business on
that date will be entitled to notice of and to vote at the meeting. A list of
stockholders entitled to vote at the meeting will be available for inspection by
any stockholder on or after May 23, 1996 during ordinary business hours at the
offices of Fuqua.
WE URGE YOU TO MARK YOUR PROXY, SIGN, DATE AND RETURN IT IN THE
ENCLOSED ENVELOPE AS PROMPTLY AS POSSIBLE.
BY ORDER OF THE BOARD OF DIRECTORS
MILDRED H. HUTCHESON
Corporate Secretary
-------------------
Atlanta, Georgia
April 16, 1996
<PAGE>
FUQUA ENTERPRISES, INC.
PROXY STATEMENT
ANNUAL MEETING OF STOCKHOLDERS
June 1, 1996
__________________________
This Proxy Statement is furnished in connection with the solicitation of
proxies, in the accompanying form, by the Board of Directors of FUQUA
ENTERPRISES, INC. ("Fuqua" or the "Corporation") for use at the Annual Meeting
of Stockholders of Fuqua (the "Meeting") to be held at the executive offices of
Fuqua, One Atlantic Center, Suite 5000, 1201 W. Peachtree St., N.W., Atlanta,
Georgia 30309, on Saturday, June 1, 1996 at 9:30 a.m. local time and any and all
adjournments thereof.
Any proxy given pursuant to this solicitation may be revoked before it is
voted by notifying the Corporate Secretary of Fuqua in writing at Fuqua's
executive offices. In addition, any proxy may be revoked before it is voted by a
duly executed and delivered proxy bearing a later date or by attendance at the
Meeting and voting in person. Unless otherwise specified in the proxy, shares
represented by proxies will be voted for (i) the election of the nominees listed
herein, (ii) for approval of the 1995 Long-Term Incentive Plan, (iii) for
approval of the 1995 Stock Option Plan for Outside Directors, (iv) for the
amendment and restatement of Fuqua's Restated Certificate of Incorporation, as
amended (the "Certificate").
On or about April 16, 1996, this Proxy Statement and the accompanying form
of proxy will be mailed to each stockholder of record as of the close of
business on April 4, 1996.
VOTING
Only stockholders of record at the close of business on April 4, 1996 (the
"Record Date") are entitled to vote at the Meeting. As of the Record Date, Fuqua
had outstanding and entitled to vote 4,478,347 shares of its common stock, par
value $2.50 per share ("Common Stock"), each share of which is entitled to one
vote on the proposal at the Meeting.
The presence, in person or by proxy, of a majority of the outstanding
shares of Common Stock is necessary to constitute a quorum at the Meeting. In
counting the votes to determine whether a quorum exists at the meeting, the
proposal receiving the greatest number of all votes cast "for" or "against", as
well as any abstentions (including instructions to withhold authority to vote)
and any broker non-votes (which occur when shares held by brokers or nominees
for beneficial owners are voted on some matters but not on others), will be
used.
In voting with regard to the proposal to elect directors, stockholders may
vote in favor of all nominees, withhold their votes as to all nominees or
withhold their votes as to specific nominees. In accordance with Delaware law
(under which Fuqua is organized) and Fuqua's Certificate, directors will be
elected by a plurality of the votes cast by the holders of shares entitled to
vote, provided a quorum is present. As a result, votes that are withheld and any
broker non-votes will have no effect on the outcome of the election of
directors.
In voting with regard to the proposals to adopt the 1995 Long-Term
Incentive Plan and the 1995 Stock Option Plan for Outside Directors,
stockholders may vote in favor of each such proposal, against each such proposal
or abstain from voting. Each such plan is being submitted to the stockholders to
obtain the qualification of such plans under Rule 16b-3 of the Securities
Exchange Act of 1934, as amended, (the"Exchange Act"). Approval of each such
plan requires, under Delaware law, the affirmative vote of the holders of a
majority of the shares of Common Stock present at the Meeting or represented by
proxy and entitled to vote. For such purpose, abstentions are counted for
purposes of calculating shares entitled to vote and thus have the effect of "no"
votes, while broker non-votes are not counted as shares entitled to vote and
have no effect.
In voting with regard to the proposal to amend and restate the Certificate,
stockholders may vote in favor of such proposal, against such proposal or
abstain from voting. Under Delaware law, the amendment of the Certificate
requires the affirmative vote of the holders of a majority of the outstanding
shares of Common Stock. Accordingly, abstentions and broker non-votes will have
the effect of a "no" vote on the proposal to amend and restate the Certificate.
<PAGE>
PROPOSAL 1 - ELECTION OF DIRECTORS
At the Meeting, nine directors will be elected to hold office for a term of
one year or until their successors are elected and qualified. Unless contrary
instructions are given, the proxies given pursuant to this solicitation will be
voted for the nine nominees listed herein. If for any reason a nominee is unable
to serve, the proxies may substitute a nominee proposed by the Board of
Directors of Fuqua.
NOMINEES
The names of the nominees, together with certain information furnished by
them, are as follows:
J. B. FUQUA, age 77, has been Chairman of the Board of Fuqua since April
1989 and is a member of the Executive Committee. From March 1989 to March 1991,
he served as Senior Chairman of Fuqua Industries, Inc., a diversified company;
prior to that he was the Chairman of the Board and Chief Executive Officer of
Fuqua Industries, Inc. from September 1965 to March 1989.
J. REX FUQUA, age 46, has been Vice Chairman of the Board of Fuqua since
August 1, 1995, has served as a director of Fuqua since April 1989 and is a
member of the Executive Committee. Since 1985, he has been President and Chief
Executive Officer of Realan Capital Corporation, a privately-held investment
corporation headquartered in Atlanta, Georgia. He also serves as President of
Fuqua Capital Corporation, a privately-held investment management corporation
owned by J. Rex Fuqua and J. B. Fuqua. He is the son of J. B. Fuqua, Chairman of
the Board of Fuqua.
W. CLAY HAMNER, age 50, has been a director of Fuqua since April 1989 and
is a member of the Audit and Stock Option Committees. Since 1986, he has been
President and Chief Executive Officer of Montrose Capital Corporation, a
privately-held investment corporation headquartered in Durham, North Carolina.
Montrose Capital Corporation and its affiliates invest in special equity
situations, venture capital and real estate. He is also a director of Wendy's
International, Inc., a fast food chain, and Interstate/Johnson Lane Corporation,
a regional investment banker based in Charlotte, North Carolina.
FRANK W. HULSE IV, age 48, has been a director of Fuqua since April 1994
and is a member of the Audit and Stock Option Committees. Since February 1983,
he has been a principal in River Capital, Inc., a privately-held investment
corporation located in Atlanta, Georgia, which acquires operating companies
throughout the South.
LAWRENCE P. KLAMON, age 59, has been President and Chief Executive Officer
of Fuqua since August 1, 1995, and a director of Fuqua since July 1995. He is
also a member of the Executive Committee. From 1991 to July 1995, he was Senior
Counsel of Alston & Bird, a prominent Atlanta law firm. From 1967 to 1991, he
was associated with Fuqua Industries, Inc., a diversified company, rising from
General Counsel to President and Chief Executive Officer. He also served as a
director of Fuqua Industries, Inc. from 1979 to 1991.
RICHARD C. LAROCHELLE, age 50, has been a director of Fuqua since January
1992. He has been Chief Executive Officer of Fuqua's wholly-owned subsidiary,
Irving Tanning Company ("Irving"), a manufacturer of leather located in
Hartland, Maine, since January 1992, and President of Irving since August 1982.
He has also served as President of Fuqua's wholly-owned subsidiary, Kroy Tanning
Company, Incorporated ("Kroy"), a manufacturer of lambskin located in East
Wilton, Maine, from May 1984 until May 1988, and since January 1992 has served
as Chairman of the Board of Kroy.
GENE J. MINOTTO, age 62, has been a director of Fuqua since November 1995.
He has been President and Chief Executive Officer of Fuqua's wholly-owned
subsidiary, Basic American Medical Products, Inc. ("Basic"), a manufacturer and
distributor of beds, furniture, equipment and patient aids for the long-term
care, home care and acute care markets, since 1976.
CLARK L. REED, JR., age 54, has been a director of Fuqua since October 1990
and is a member of the Stock Option Committee. Since July 1994, he has served as
Vice Chairman of the Board of United American Bank, Memphis, Tennessee. From
November 1993 to July 1994, he was a private investor. From July 1982 to
November 1993, he served as President and Chief Executive Officer of Synovus
Securities, Inc. ("Synovus Securities"), a full
2
<PAGE>
service brokerage firm located in Columbus, Georgia and an affiliate of Synovus
Financial Corp., a regional investment banker. See "Other Matters" regarding Mr.
Reed's involvement in certain legal matters.
D. RAYMOND RIDDLE, age 62, has been a director of Fuqua since May 1993 and
is a member of the Audit Committee. On January 31, 1996, he retired as Chairman
of the Board from National Service Industries, Inc. ("National"), a diversified
holding company located in Atlanta, Georgia. From September 1994 to January
1996, he served as Chairman of the Board of National and prior to that, from
January 1993 to September 1994, he served as President and Chief Executive
Officer and a member of the Board of Directors of National. From 1987 to January
1993 he served as President and Chief Executive Officer and a director of
Wachovia Corporation of Georgia and its lead bank, Wachovia Bank of Georgia,
N.A., subsidiaries of Wachovia Corp., a regional bank holding company. He is
also a director of Atlanta Gas Light Company, a gas utility distributor,
Atlantic American Corporation, an insurance holding company, and Equifax, Inc.,
an information service company. All three companies are located in Atlanta,
Georgia.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE NOMINEES SET FORTH ABOVE.
INFORMATION CONCERNING THE BOARD AND ITS COMMITTEES
During the year ended December 31, 1995, the Board of Directors held five
meetings and took two actions by unanimous written consent. All directors
attended 75% or more of the combined total of the Board of Directors meetings
and of the committee meetings on which they served.
The Board of Directors has an Audit Committee, Executive Committee and a
Stock Option Committee. The Board has no Compensation Committee or Nominating
Committee.
The Audit Committee (a) recommends independent public accountants to act as
auditors, (b) considers the scope and preparation of the audit and (c) considers
other matters relating to the audit and financial statements. The Audit
Committee is composed of Messrs. W. Clay Hamner, Frank W. Hulse IV and D.
Raymond Riddle. The Audit Committee held one meeting during 1995.
The Executive Committee, which is composed of Messrs. J. B. Fuqua, J. Rex
Fuqua and Lawrence P. Klamon, may exercise all of the powers of the Board of
Directors in the management of the business and affairs of Fuqua. All actions
taken by the Executive Committee are reported to and ratified by the Board of
Directors at its next meeting following such action. During 1995, the Executive
Committee did not hold any meetings, but took 15 actions by unanimous written
consent, all of which were subsequently ratified by the Board of Directors.
The Stock Option Committee administers the 1989 and 1992 Stock Option
Plans, will administer the 1995 Long-Term Incentive Plan, if approved, and is
authorized, on behalf of Fuqua, to grant stock options under such plans. The
Stock Option Committee is composed of Messrs. W. Clay Hamner, Frank W. Hulse IV
and Clark L. Reed, Jr. The Stock Option Committee did not hold any meetings in
1995, but took three actions by unanimous written consent, all of which were
subsequently ratified by the Board of Directors.
FEES FOR DIRECTORS
Directors of Fuqua who are not executive officers of Fuqua receive an
annual director's fee of $12,000. Directors who are members of the Audit or
Stock Option Committees receive an additional fee of $3,000 per annum for each
committee on which they serve. See the third paragraph under "Transactions with
Management" for additional information regarding compensation of Fuqua's
directors, which information is incorporated herein by reference. Additionally,
each of Fuqua's outside directors receives on an annual basis an option to
purchase 1,000 shares of Common Stock under the 1995 Stock Option Plan for
Outside Directors, subject to the approval of such plan by the stockholders at
the Meeting. See "Proposal 3 - 1995 Stock Option Plan for Outside Directors",
which is incorporated herein by reference.
3
<PAGE>
OWNERSHIP OF COMMON STOCK
COMMON STOCK OWNED BY DIRECTORS AND EXECUTIVE OFFICERS
Fuqua's directors, nominees and executive officers named in the Summary
Compensation Table (and all present directors and executive officers as a group)
have beneficial ownership of the number of shares of Common Stock indicated in
the following table and its footnotes. Unless otherwise indicated in the
footnotes, each such individual has sole voting and investment power with
respect to the shares set forth in the table.
OWNERSHIP OF COMMON STOCK BY DIRECTORS AND EXECUTIVE OFFICERS
<TABLE>
<CAPTION>
COMMON STOCK
BENEFICIALLY OWNED AS PERCENT OF
NAME AND ADDRESS/(1) AND (7)/ OF APRIL 4, 1996 CLASS
===============================================================================================================================
<S> <C> <C>
J. B. Fuqua/(2)/ 1,129,615 25.22%
J. Rex Fuqua/(3)/ 745,840 16.65%
W. Clay Hamner/(5)/ 2,272 *
Frank W. Hulse IV/(5)/ 6,000 *
John J. Huntz, Jr./(4)/ 3,100 *
Lawrence P. Klamon/(4)/ 126,000 2.73%
Richard C. Larochelle/(4)/ 24,200 *
Gene J. Minotto 600,000 12.99%
Brady W. Mullinax, Jr./(4)/ 3,000 *
Samuel W. Norwood III/(6)/ 7,764 *
Clark L. Reed, Jr./(5)/ 3,000 *
D. Raymond Riddle/(5)/ 4,000 *
All present Directors and Executive Officers as a Group, including those 2,219,093 48.07%
named above (12 persons)
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Less than 1% of class.
================================================================================
(1) Each person listed has an address in care of Fuqua, One Atlantic Center,
Suite 5000, 1201 W. Peachtree Street, NW, Atlanta, Georgia 30309.
(2) Of the shares shown for J. B. Fuqua, 321,685 shares are held by two trusts
for the benefit of grandchildren of Mr. Fuqua (who are children of J. Rex
Fuqua) of which J. B. Fuqua is the trustee; and 69,698 shares are held by
The J. B. Fuqua Foundation, Inc., a charitable corporation of which J. B.
Fuqua is a director and officer. J. B. Fuqua has shared voting and
investment power with respect to the shares held by such foundation.
J. B. Fuqua also shares voting and investment power with J. Rex Fuqua with
respect to 366,000 shares held by Fuqua Holdings I, L.P., (the
"Partnership"), as a result of his status as an officer and director of
Fuqua Holdings, Inc. ("Holdings"), the general partner of the Partnership.
The shares are not duplicated in the percentage calculations for officers
and directors as a group.
(3) Of the shares shown for J. Rex Fuqua, he shares voting and investment power
with J. B. Fuqua with respect to 366,000 shares held by the Partnership as
a result of his status as an officer and director of Holdings, the general
partner of the Partnership. Also, 69,698 shares are held by The J. B.
Fuqua Foundation, Inc. of which he is a director and officer. He has shared
voting and investment power with respect to the shares owned by such
foundation. The shares are not duplicated in the percentage calculations
for officers and directors as a group.
(4) The number of shares shown for Messrs. Huntz, Klamon, Larochelle and
Mullinax includes 2,000 shares, 125,000 shares, 4,000 shares and 3,000
shares, respectively, which are issuable upon exercise of presently
exercisable stock options, and the number of shares shown for directors and
executive officers as a group includes an aggregate of 138,000 shares which
are issuable upon exercise of options which are presently exercisable or
which become exercisable within the next 60 days.
(5) The number of shares shown for Messrs. Hamner, Hulse, Reed and Riddle
includes 1,000 shares, respectively, which are issuable upon exercise of
presently exercisable stock options granted pursuant to the 1995 Stock
Option Plan for Outside Directors, subject to the approval of the
stockholders at the Meeting.
(6) Mr. Norwood resigned as a Director, President and Chief Executive Officer
of Fuqua on July 31, 1995.
(7) Under the securities laws of the United States, Fuqua's directors and
executive officers, and any persons holding more than 10 percent of Fuqua's
Common Stock, are required to report their ownership of Fuqua's Common
Stock and any changes in that ownership, on a timely basis, to the
Securities and Exchange Commission. Based on material provided to Fuqua,
all such required reports were filed on a timely basis in 1995.
4
<PAGE>
OWNERSHIP OF COMMON STOCK BY CERTAIN HOLDERS
The following table sets forth the name and address of each person (other
than those persons listed in the table appearing under "--Common Stock Owned by
Directors and Executive Officers") known to Fuqua to be the beneficial owner of
more than five percent (5%) of the outstanding shares of Common Stock, the
number of shares beneficially owned and the percent of Common Stock held by such
investor.
OWNERSHIP OF COMMON STOCK BY CERTAIN HOLDERS
<TABLE>
<CAPTION>
================================================================
COMMON STOCK PERCENT
NAME AND ADDRESS BENEFICIALLY OWNED OF CLASS
----------------------------------------------------------------
<S> <C> <C>
Fuqua Holdings--I, L.P.(1) 366,000 8.17%
One Atlantic Center
Suite 5000
1201 West Peachtree Street, NW
Atlanta, Georgia 30309
Marvin Schwartz(2) 242,600 5.46%
c/o Neuberger & Berman
11 Broadway
New York, New York 10004
================================================================
</TABLE>
(1) Fuqua Holdings, Inc., the general partner of Fuqua Holdings--I, L.P.
(the "Partnership"), may also be deemed to own-beneficially (through
the power of its sole directors, officers and shareholders, J.B. Fuqua
and J. Rex Fuqua, to direct the voting and disposition thereof) the
366,000 shares of Common Stock shown as beneficially owned by the
Partnership. See "--Common Stock Owned by Directors and Executive
Officers" for information regarding the beneficial ownership of such
shares of Common Stock by J.B. Fuqua and J. Rex Fuqua.
(2) Information with respect to Marvin Schwartz, a general
partner of Neuberger & Berman, a limited partnership
organized under the laws of New York, has been obtained
from a Schedule 13D filed on behalf of Mr. Schwartz on
February 13, 1996. The schedule reports Mr. Schwartz has
sole voting power over 74,900 shares and shared
dispositive power over 167,700 shares of the total
shares listed above.
-----------------------------------------------------------------
5
<PAGE>
EXECUTIVE COMPENSATION AND OTHER INFORMATION
The following table sets forth all cash compensation paid or accrued by
Fuqua to the Chairman of the Board, the Vice Chairman, the current Chief
Executive Officer, the former Chief Executive Officer and two other
executive officers of Fuqua as well as the total compensation paid to each
individual in the last three years.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
==============================================================================================================================
LONG TERM COMPENSATION
--------------------------------------
ANNUAL COMPENSATION AWARDS PAYOUTS
-----------------------------------------------------------------------
(A) (B) (C) (D) (E) (F) (G) (H) (I)
OTHER All
ANNUAL RESTRICTED Other
NAME & COMPEN- STOCK OPTIONS/ LTIP Compen-
PRINCIPAL SALARY BONUS SATION AWARD(S) SARS Payouts sation
POSITION YEAR ($) ($) ($)/(1)/ ($) (#) ($) ($)
=============================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
J. B. Fuqua, Chairman of 1995 108,333 72,000 7,953/(2)/
the Board 1994 150,000 72,000 8,135/(2)/
1993 150,000 72,000
J. Rex Fuqua, Vice/(3)/ 1995 66,667 12,000 7,600/(4)/
Chairman of the Board 1994 12,000 12,000/(4)/
1993 12,000 12,000/(4)/
Lawrence P. Klamon/(5)/ 1995 116,667 50,000 125,000 4,008/(6)/
Director, President and 1994
Chief Executive Officer 1993
Samuel W. Norwood III/(7)/ 1995 200,000 12,000 868,814/(8)/
(former Director,President 1994 200,000 50,000 12,000 1,998/(8)/
and Chief Executive 1993 180,000 100,000 12,000 4,392/(8)/
Officer)
John J. Huntz, Jr./(9)/ 1995 172,500 57,000 15,000 1,262/(6)/
Executive Vice President 1994 137,500 10,000 10,000 1,268/(6)/
& Chief Operating Officer 1993
Brady W. Mullinax, Jr./(9)/ 1995 166,250 52,500 10,000 1,118/(6)/
Vice President-Finance, 1994 154,500 10,000 10,000 1,874/(6)/
Treasurer & Chief 1993
Financial Officer
=============================================================================================================================
</TABLE>
(1) See "Transactions with Management".
(2) Includes use of automobile provided by American Southern Insurance Company,
a former subsidiary, and amounts reimbursed for spouse travel.
(3) Mr. J. Rex Fuqua's employment began August 1, 1995 at an annual salary
of $160,000.
(4) Consists of director's fee and amounts reimbursed for spouse travel.
(5) Mr. Klamon's employment began August 1, 1995 at an annual salary of
$280,000.
(6) Consists of life insurance premiums paid by Fuqua and amounts reimbursed
for spouse travel.
(7) Mr. Norwood resigned as a Director, President and Chief Executive Officer
on July 31, 1995. He received his salary from Fuqua and director's fee from
American Southern through January 15, 1996.
(8) Consists of life insurance premiums paid by Fuqua and compensation
received from stock options exercised.
(9) Mr. Huntz's and Mr. Mullinax's employment began February 1, 1994 and March
30, 1994, respectively, at an annual salary rate of $150,000. For the three
month period prior to March 30, 1994, Mr. Mullinax received $42,000 for his
services as a consultant to Fuqua.
OPTION/SAR GRANTS IN LAST FISCAL YEAR
In 1995, the Stock Option Committee granted options totaling 250,000 shares
of Common Stock under Fuqua's 1992 Stock Option Plan, of which 150,000 shares
were granted to executive officers. The following table contains information
concerning the grant of stock options in 1995 to the executive officers named in
the Summary Compensation Table:
6
<PAGE>
OPTION/SAR GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
===============================================================================================================================
INDIVIDUAL GRANTS POTENTIAL REALIZABLE VALUE
AT ASSUMED ANNUAL RATES
- --------------------------------------------------------------------------------------------
% EXERCISE OF STOCK PRICE APPRECIATION
OPTIONS/SARS OF TOTAL OPTIONS/SARS OR FOR OPTION TERM/(2)/
--------------------------------
GRANTED GRANTED TO EMPLOYEES IN BASE PRICE EXPIRATION
NAME (#) FISCAL YEAR ($/SHARE)/(1)/ DATE 5% ($) 10% ($)
(A) (B) (C) (D) (E) (F) (G)
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Lawrence P.
Klamon 125,000 83.33% 20.50 7-20-05 1,223,375 4,083,750
John J. Huntz, Jr. 15,000 10.00% 20.50 7-20-01 104,580 237,300
Brady W. 10,000 6.67% 20.50 7-20-01 69,720 158,200
Mullinax, Jr.
===============================================================================================================================
</TABLE>
(1) The option holder has the right to pay the exercise price by delivering
previously acquired shares of Fuqua's Common Stock, and to have shares
withheld to satisfy withholding requirements in connection with the
exercise of options. Options are non-transferrable other than by will or
the laws of descent and distribution.
(2) The Potential Realizable Value set forth in the table is mandated by the
rules of the Securities and Exchange Commission. Fuqua does not assure that
these rates of appreciation will be achieved over the terms of the options.
However, any appreciation achieved will benefit all Fuqua stockholders.
OPTION/SAR EXERCISES IN LAST FISCAL YEAR
The following table sets forth information in regard to the executive
officers named in the Summary Compensation Table with respect to option
exercises during 1995 and fiscal year end option values:
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR AND
FISCAL YEAR-END OPTIONS/SAR VALUES
<TABLE>
<CAPTION>
====================================================================================================
(A) (B) (C) (D) (E)
NUMBER OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED
OPTIONS/SARS IN-THE-MONEY
SHARES AT FISCAL YEAR-END OPTIONS/SARS AT
ACQUIRED (#) FISCAL YEAR-END ($)*
ON VALUE ------- -----
EXERCISE REALIZED EXERCISABLE/ EXERCISABLE/
NAME (#) ($) UNEXERCISABLE UNEXERCISABLE
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
J. B. Fuqua - - - -
J. Rex Fuqua - - - -
Lawrence P. Klamon - - 125,000 E - E
- U - U
Samuel W. Norwood III 60,500 $867,950 - E - E
- U - U
John J. Huntz, Jr. - - 2,000 E - E
23,000 U - U
Brady W. Mullinax, Jr. - - 3,000 E - E
17,000 U - U
===================================================================================================
</TABLE>
* Values are calculated by subtracting the exercise price from the fair market
value of the stock at year end.
7
<PAGE>
LONG-TERM INCENTIVE PLAN AWARDS IN LAST FISCAL YEAR
A Long-Term Incentive Plan was adopted by the Board of Directors in 1995,
and is subject to approval by the stockholders at the Meeting. On March 5, 1996,
the Stock Option Committee granted options to purchase 116,500 shares of Common
Stock under the 1995 Long-Term Incentive Plan, which is subject to the approval
of the stockholders at the Meeting. See "Proposal 2 - 1995 Long-Term Incentive
Plan", which information is incorporated herein by reference.
COMPENSATION COMMITTEE AND INTERLOCKS AND INSIDER PARTICIPATION
Fuqua does not have a Compensation Committee of the Board of Directors. The
Board of Directors establishes the compensation of the Chairman of the Board,
the Vice Chairman, and the President and Chief Executive Officer, after
considering the recommendations of the Executive Committee of the Board of
Directors. The Chairman, the Vice Chairman, and the President and Chief
Executive Officer, acting jointly, make decisions regarding the compensation of
other executive officers of Fuqua, which is approved by the Executive Committee
and ratified by the Board of Directors. During the last fiscal year, J. B.
Fuqua, J. Rex Fuqua, Lawrence P. Klamon, Samuel W. Norwood III (who resigned as
President and Chief Executive Officer of Fuqua on July 31, 1995), Richard C.
Larochelle and Roy S. Thompson, Jr. (who resigned as a Director of Fuqua on
December 31, 1995 when American Southern was sold), each of whom was a director
and an officer of either Fuqua or one of its subsidiaries, participated in
deliberations of the Board of Directors concerning executive officer
compensation. Stock options are granted by the Stock Option Committee based upon
recommendations of the Executive Committee and are ratified by the Board of
Directors.
See also the first three paragraphs under "Transactions with Management",
which information is incorporated herein by reference.
REPORT ON EXECUTIVE COMPENSATION
The following report is not subject to incorporation by reference in any
filings heretofore or hereafter made by Fuqua under the Securities Act of 1933,
as amended (the "Securities Act"), or the Exchange Act.
Executive Compensation Policy: Fuqua's overall compensation policy is to
attract, retain and motivate highly qualified executives through a combination
of salary, bonus, stock options and benefits that are competitive in the
executive market, commensurate with the challenges and responsibilities of the
individual employee and oriented to reward achievement in the development and
defense of rising corporate financial value and other operational and strategic
objectives of the corporation. Fuqua's policy is to provide a relatively stable
base salary and highly variable bonuses related to achievement of objectives.
Additionally, Fuqua provides stock options, generally with vesting over three to
five years, with an exercise price equal to the market price of Fuqua Common
Stock on the date of grant. Such options are granted for the purposes of
aligning executive motivation with the assumed objectives of the investors (high
return on investment through increasing market value of the Common Stock),
retaining successful executives for long term commitment, and permitting
executives to share meaningfully in the value that they create for all
stockholders.
Section 162(m) of the Internal Revenue Code, enacted in 1993, generally
disallows a tax deduction to public companies for compensation over $1 million
paid to Fuqua's chief executive officer or any of the four most highly
compensated executive officers. Certain performance-based compensation, however,
is specifically exempt from the deduction limit. Fuqua does not
have a policy that requires or encourages the Board of Directors to limit
executive compensation to that deductible under Section 162(m) of the Internal
Revenue Code. If executive compensation should ever approach the deduction
limit, the Board of Directors will consider various alternatives for preserving
the deductibility of compensation payments and benefits to the extent reasonably
practical and to the extent consistent with its other compensation objectives.
The 1995 Long-Term Incentive Plan described under "Proposal 2 - 1995 Long-Term
Incentive Plan" is designed in such a manner that options granted thereunder at
or above fair market value will not count against the $1 million compensation
limit prescribed by Section 162(m).
8
<PAGE>
Compensation of the Chief Executive Officer: Samuel W. Norwood III resigned
as President and Chief Executive Officer and a Director on July 31, 1995, but
remained on the payroll of Fuqua until January 15, 1996. Mr. Norwood exercised
his option for 59,500 shares and sold 41,100 shares of Common Stock to various
officers and directors of Fuqua. Mr. Norwood did not receive a bonus for the
year ended December 31, 1995. Lawrence P. Klamon became the Chief Executive
officer of Fuqua on August 1, 1995. His base salary on an annual basis was
$280,000 and his bonus for 1995 was $50,000. Mr. Klamon was granted an option
for 125,000 shares which became exercisable at the time of grant. The Board of
Directors, after considering recommendations of the Executive Committee,
established Mr. Klamon's compensation package based on their assessment of the
current market and the compensation for an executive of his level of experience
and expertise.
BY THE BOARD OF DIRECTORS:
J. B. Fuqua Richard C. Larochelle
J. Rex Fuqua Gene J. Minotto
W. Clay Hamner Clark L. Reed, Jr.
Frank W. Hulse IV D. Raymond Riddle
Lawrence P. Klamon
TRANSACTIONS WITH MANAGEMENT
Pursuant to a Management Agreement ("Agreement") between Fuqua and Fuqua
Capital Corporation ("Capital"), a Georgia corporation, dated as of April 10,
1989, as amended, Capital provides certain administrative, investment and other
management services to Fuqua and its subsidiaries and receives compensation for
its services. In September 1994, Fuqua amended the Agreement with Capital to
extend services through June 1, 2000 for a management fee of $360,000 for each
year of the noncancellable term. During 1995, Capital received aggregate
payments of $360,000 under the Agreement. Messrs. J. B. Fuqua and J. Rex Fuqua
are the sole shareholders of Capital.
In October 1994, Fuqua amended its lease for corporate office space to
extend the term for five years. Concurrently, Fuqua entered into a new sublease
with a similar five year term with Capital for the portion of space which
Capital uses. The sublease provides that if Fuqua moves out of the space it
shares with Capital, or there is a change in control of Fuqua, Capital has the
option of taking over the office space now occupied by Fuqua at terms favorable
to Capital.
Messrs. J. Rex Fuqua, Norwood and Reed, each of whom were directors in 1995
of Fuqua's subsidiary, American Southern, received $12,000 for serving on its
Board of Directors during 1995. In addition, J. B. Fuqua, also a director of
American Southern, did not receive a director's fee, but received $72,000 for
services as a management and investment consultant and $7,853 for use of an
automobile provided by American Southern during 1995. These amounts are included
in Column "e" and "i" of the Summary Compensation Table, with the exception of
amounts paid to Mr. Reed.
On November 8, 1995, Fuqua acquired Basic American Medical Products, Inc.
("Basic"), a privately-held corporation with its principal office located in
Atlanta, Georgia. Mr. Gene J. Minotto, now a director of Fuqua, is the President
and was the majority shareholder of Basic. As part of the purchase price, Mr.
Minotto received $1,329,980 in cash and 600,000 shares of Fuqua's Common Stock.
The shares are not registered under the Securities Act. Under the terms of the
acquisition, there are demand and "piggyback" registration rights with respect
to these shares. On November 17, 1995, Mr. Minotto was granted an option to
purchase 100,000 shares of Common Stock exercisable over a four year period.
Additionally, on November 15, 1995, Fuqua replaced Mr. Minotto as guarantor
under the Unconditional Guarantee of Performance in favor of Super Sagless, Inc.
Mr. Minotto's guarantee, which was limited to $1,400,000 arose in connection
with Basic's previous acquisition of SSC Medical, and Fuqua's guarantee is also
limited to $1,400,000.
9
<PAGE>
COMPANY PERFORMANCE
The following line graph compares Fuqua's cumulative stockholder returns on
an indexed basis with the S&P 500 Stock Index, the Ibbotson Small Company Index
and the Russell 2000 Index assuming reinvestment of dividends during the five
year period ended December 31, 1995.
COMPARISON OF FIVE YEAR CUMULATIVE TOTAL RETURN
[GRAPH OF FUQUA ENTERPRISES APPEARS HERE]
<TABLE>
<CAPTION>
==============================================================================
1990 1991 1992 1993 1994 1995
==============================================================================
<S> <C> <C> <C> <C> <C> <C>
Fuqua Enterprises, Inc. 100 107 182 244 230 210
- ------------------------------------------------------------------------------
Standard & Poor's 500 Index 100 130 140 155 157 216
- ------------------------------------------------------------------------------
Ibbotson Small Company Index 100 146 178 216 223 300
- ------------------------------------------------------------------------------
Russell 2000 Index 100 146 173 209 205 263
==============================================================================
</TABLE>
The stock performance graph above assumes that $100 was invested on
December 31, 1990 in each of Fuqua, the S&P 500 Index, the Ibbotson Small
Company Index and the Russell 2000 Index. The S&P 500 Index represents the
changing value of the companies participating in the S&P 500 Index. The Ibbotson
Small Company Index represents the changing value of the smallest one-fifth of
companies traded on the New York Stock Exchange, where Fuqua's stock is traded.
The Russell 2000 Index represents the changing value of 2,000 public companies
that are smaller than the 1,000 largest. Fuqua is included in both the Russell
2,000 Index and the Ibbotson Small Company Index.
10
<PAGE>
PROPOSAL 2 - 1995 LONG-TERM INCENTIVE PLAN
On November 14, 1995, the Board of Directors adopted, subject to
stockholder approval at the Meeting, the 1995 Long-Term Incentive Plan (the
"Incentive Plan"). If approved by the stockholders, the Incentive Plan will be
effective as of June 1, 1996.
A summary of the more important provisions of the Incentive Plan is set
forth below. This summary does not purport to be complete, and reference is made
to the full text of the Incentive Plan, which is attached hereto as Exhibit A.
1. GENERAL
The purpose of the Incentive Plan is to promote the success, and enhance
the value, of Fuqua by linking the personal interests of key employees to those
of the stockholders, and by providing key employees with an incentive for
outstanding performance. The Incentive Plan is further intended to provide
flexibility to Fuqua in its ability to motivate, attract, and retain the
services of employees upon whose judgment, interest, and special effort the
successful conduct of its operation largely is dependent.
The Incentive Plan authorizes the granting of awards ("Awards") to key
employees of Fuqua or its subsidiaries in the following forms: (i) options to
purchase shares of Common Stock ("Options"), (ii) stock appreciation rights
("SARs"); (iii) performance shares ("Performance Shares"); (iv) restricted stock
("Restricted Stock"); (v) dividend equivalent rights ("Dividend Equivalents");
and (vi) other stock-based awards. As of the Record Date, there were
approximately 100 persons eligible to participate in the Incentive Plan.
Subject to adjustment as provided in the Incentive Plan, the aggregate
number of shares of Common Stock reserved and available for Awards or which may
be used to provide a basis of measurement for or to determine the value of an
Award (such as with a SAR or Performance Share Award) is 300,000. The maximum
number of shares of stock with respect to one or more Awards that may be granted
to any one participant over the term of the Incentive Plan is 150,000.
2. ADMINISTRATION
The Incentive Plan will be administered by the Stock Option Committee of
the Board of Directors (the "Committee"). The Committee has the exclusive power,
authority and discretion to designate participants; determine the type or types
of Awards to be granted to each participant; determine the number of Awards to
be granted and the number of shares of stock to which an Award will relate;
determine the terms and conditions of any Award granted under the Incentive
Plan, including but not limited to, the exercise price, grant price, or purchase
price, any restrictions or limitations on the Award, any schedule for lapse of
forfeiture restrictions or restrictions on the exercisability of an Award, and
accelerations or waivers thereof, based in each case on such considerations as
the Committee in its sole discretion determines; determine whether, to what
extent, and under what circumstances an Award may be settled in, or the exercise
price of an Award may be paid in, cash, Common Stock, other Awards, or other
property, or an Award may be canceled, forfeited, or surrendered; prescribe the
form of each agreement governing an Award ("Award Agreement"), which need not be
identical for each participant; decide all other matters that must be determined
in connection with an Award; establish, adopt or revise any rules and
regulations as it may deem necessary or advisable to administer the Incentive
Plan; and make all other decisions and determinations that may be required under
the Incentive Plan or as the Committee deems necessary or advisable to
administer the Incentive Plan.
3. AWARDS
Stock Options. The Committee is authorized to grant Options, which may be
incentive stock options ("ISOs") or nonqualified stock options ("NSOs"), to
participants. All Options will be evidenced by a written Award Agreement between
Fuqua and the participant, which will include such provisions as may be
specified by the Committee. The terms of any ISO must meet the requirements of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
11
<PAGE>
Stock Appreciation Rights. The Committee may grant SARs to participants.
Upon the exercise of a SAR, the participant has the right to receive the excess,
if any, of: the fair market value of one share of Common Stock on the date of
exercise, over the grant price of the SAR as determined by the Committee, which
will not be less than the fair market value of one share of Common Stock on the
date of grant in the case of any SAR related to an ISO. All awards of SARs will
be evidenced by an Award Agreement, reflecting the terms, methods of exercise,
methods of settlement, form of consideration payable in settlement, and any
other terms and conditions of the SAR, as determined by the Committee at the
time of grant.
Performance Shares. The Committee may grant Performance Shares to
participants on such terms and conditions as may be selected by the Committee.
The Committee will have the complete discretion to determine the number of
Performance Shares granted to each participant and to set performance goals and
other terms or conditions to payment of the Performance Shares in its discretion
which, depending on the extent to which they are met, will determine the number
and value of Performance Shares that will be paid to the participant.
Restricted Stock Awards. The Committee may make Awards of Restricted Stock
to participants, which will be subject to such restrictions on transferability
and other restrictions as the Committee may impose (including, without
limitation, limitations on the right to vote Restricted Stock or the right to
receive dividends, if any, on the Restricted Stock).
Dividend Equivalents. The Committee is authorized to grant Dividend
Equivalents to participants subject to such terms and conditions as may be
selected by the Committee. Dividend Equivalents shall entitle the participant to
receive payments equal to dividends with respect to all or a portion of the
number of shares of Common Stock subject to an Option Award or SAR Award, as
determined by the Committee. The Committee may provide that Dividend Equivalents
be paid or distributed when accrued or be deemed to have been reinvested in
additional shares of Common Stock, or otherwise reinvested. No dividends have
been paid on the Common Stock since October 1988.
Other Stock-Based Awards. The Committee may, subject to limitations under
applicable law, grant to participants such other Awards that are payable in,
valued in whole or in part by reference to, or otherwise based on or related to
shares of Common Stock, as deemed by the Committee to be consistent with the
purposes of the Incentive Plan, including without limitation shares of Common
Stock awarded purely as a "bonus" and not subject to any restrictions or
conditions, convertible or exchangeable debt securities, other rights
convertible or exchangeable into shares of Common Stock, and Awards valued by
reference to book value of shares of Common Stock or the value of securities of
or the performance of specified subsidiaries of Fuqua. The Committee will
determine the terms and conditions of any such Awards.
Limitations on Transfer; Beneficiaries. No right or interest of a
participant in any Award may be pledged, encumbered, or hypothecated to or in
favor of any party other than Fuqua or a subsidiary, or shall be subject to any
lien, obligation, or liability of such participant to any other party other than
Fuqua or a subsidiary. No Award shall be assignable or transferable by a
participant other than by will or the laws of descent and distribution or,
except in the case of an ISO, pursuant to a qualified domestic relations order.
However, a participant may, in the manner determined by the Committee, designate
a beneficiary to exercise the rights of the participant and to receive any
distribution with respect to any Award upon the participant's death.
Acceleration Upon Death or Disability. Upon the participant's death or
disability, all outstanding Options, SARs, and other Awards in the nature of
rights that may be exercised will become fully exercisable and all restrictions
on outstanding Awards will lapse. Any Options or SARs will then lapse in
accordance with the other provisions of the Incentive Plan and the Award
Agreement.
Acceleration Upon Certain Events. In the event of (i) the commencement of
a public tender offer for all or any portion of the Common Stock, (ii) a
proposal to merge, consolidate or otherwise combine with another corporation is
submitted to the stockholders of Fuqua for approval, or (iii) the Board approves
any transaction or event that would constitute a change of control of Fuqua (as
defined in the Incentive Plan), the Committee may in its sole discretion declare
all outstanding Options, SARs, and other Awards in the nature of rights that may
be exercised to become fully exercisable, and/or all restrictions on all
outstanding Awards to lapse, in each case as of such date as the Committee may,
in its sole discretion, declare, which may be on or before the consummation of
such tender offer or other transaction or event.
12
<PAGE>
4. TERMINATION AND AMENDMENT
With the approval of the Board, at any time and from time to time, the
Committee may terminate, amend or modify the Incentive Plan. However, without
approval of the stockholders of Fuqua or other conditions as may be required by
the Code, by the insider trading rules of Section 16 of the Exchange Act, or
otherwise, no such termination, amendment, or modification may (i) increase the
total number of shares of Common Stock that may be issued under the Incentive
Plan, except for the case of stock dividends being issued; (ii) modify the
eligibility requirements for participation in the Incentive Plan; or (iii)
materially increase the benefits accruing to participants under the Incentive
Plan. No termination, amendment, or modification of the Incentive Plan shall
adversely affect any Award previously granted under the Incentive Plan, without
the written consent of the participant.
5. FEDERAL INCOME TAX EFFECTS
Nonqualified Stock Options. Under present federal income tax regulations,
there will be no federal income tax consequences to either Fuqua or the
participant upon the grant of an NSO. However, the participant will realize
ordinary income on the exercise of an NSO in an amount equal to the excess of
the fair market value of the Common Stock acquired upon the exercise of such
option over the exercise price, and Fuqua will receive a corresponding
deduction. The gain, if any, realized upon the subsequent disposition by the
participant of the Common Stock will constitute short- or long-term capital
gain, depending on the participant's holding period.
Incentive Stock Options. Under present federal income tax regulations,
there will be no federal income tax consequences to either Fuqua or the
participant upon the grant of an ISO or the exercise thereof by the participant.
If the participant holds the shares of Common Stock for the greater of two years
after the date the Option was granted or one year after the acquisition of such
shares of Common Stock (the "required holding period"), the difference between
the aggregate option price and the amount realized upon disposition of the
shares of Common Stock will constitute a long-term capital gain or loss, and
Fuqua will not be entitled to a federal income tax deduction. If the shares of
Common Stock are disposed of in a sale, exchange or other "disqualifying
disposition" during the required holding period, the participant will realize
taxable ordinary income in an amount equal to the excess of the fair market
value of the Common Stock purchased at the time of exercise over the aggregate
option price, and Fuqua will be entitled to a federal income tax deduction equal
to such amount.
SARs. Under present federal income tax regulations, a participant
receiving a SAR will not recognize income, and Fuqua will not be allowed a tax
deduction, at the time the Award is granted. When a participant exercises the
SAR, the amount of cash and the fair market value of any shares of Common Stock
received will be ordinary income to the participant and will be allowed as a
deduction for federal income tax purposes to Fuqua.
Performance Shares. Under present federal income tax regulations, a
participant receiving Performance Shares will not recognize income and Fuqua
will not be allowed a tax deduction at the time the Award is granted. When a
participant receives payment of Performance Shares, the amount of cash and the
fair market value of any shares of Common Stock received will be ordinary income
to the participant and will be allowed as a deduction for federal income tax
purposes to Fuqua.
Restricted Stock. Under present federal income tax regulations, and unless
the participant makes an election to accelerate recognition of the income to the
date of grant, a participant receiving a Restricted Stock Award will not
recognize income, and Fuqua will not be allowed a tax deduction, at the time the
Award is granted. When the restrictions lapse, the participant will recognize
ordinary income equal to the fair market value of the Common Stock, and Fuqua
will be entitled to a corresponding tax deduction at that time.
6. BENEFITS TO NAMED EXECUTIVE OFFICERS AND OTHERS
On March 5, 1996, the Stock Option Committee granted options under the
Incentive Plan to 38 officers and key personnel of Fuqua and its subsidiaries to
purchase 121,000 shares of Common Stock over a period of 5 years at an exercise
price of $21.25 per share, as indicated in the following table. Any additional
awards to be granted in the future under the Incentive Plan will be made at the
discretion of the Stock Option Committee and cannot be estimated at this time.
13
<PAGE>
NEW PLAN BENEFITS
<TABLE>
<CAPTION>
================================================================================================================================
1995 LONG-TERM INCENTIVE PLAN
---------------------------------------------------------
NAME AND POSITION DOLLAR VALUE ($) NUMBER OF OPTIONS/(2)/
================================================================================================================================
<S> <C> <C>
J. B. Fuqua, Chairman of the Board (1) 0
J. Rex Fuqua, Vice Chairman of the Board (1) 0
Lawrence P. Klamon, President & CEO (1) 0
Samuel W. Norwood III (former Director, President & CEO)/(3)/ (1) 0
John J. Huntz, Jr., Executive Vice President & COO (1) 5,000
Brady W. Mullinax, Jr., Vice President-Finance, Treasurer &
CFO (1) 5,000
All Executive Officers, as a Group (1) 10,000
Non-Executive Directors, as a Group (1) 0
Non-Executive Officers, Employees, as a Group (1) 121,000
================================================================================================================================
</TABLE>
(1) On a per share basis, this amount will be equal to the excess of the fair
market value of the Common Stock on the date of exercise of the option over
the fair market value of the Common Stock on the date of grant.
(2) Each option granted has an exercise price of $21.25, the fair market value
of a share of Common Stock on the date of grant.
(3) Mr. Norwood resigned as a Director, President and Chief Executive Officer
on July 31, 1995.
7. ADDITIONAL INFORMATION
The closing price of the Common Stock, as reported by the New York Stock
Exchange on April 1, 1996, was $26.125.
8. VOTE REQUIRED
The affirmative vote of the holders of a majority of the shares present or
represented by proxy and entitled to vote at the meeting on this proposal will
constitute approval of the Incentive Plan. If not so approved by the
stockholders, the Incentive Plan will be null and void.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE APPROVAL OF THE INCENTIVE PLAN.
PROPOSAL 3 - 1995 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
On November 14, 1995, the Board of Directors adopted, subject to
stockholder approval at the Meeting, the 1995 Stock Option Plan for Outside
Directors (the "Directors Plan"). If approved by the stockholders, the Directors
Plan will be effective as of June 1, 1996.
A summary of the more important provisions of the Directors Plan is set
forth below. This summary does not purport to be complete, and reference is made
to the full text of the Directors Plan, which is attached hereto as Exhibit B.
1. GENERAL
All members of Fuqua's Board of Directors who are not employees of Fuqua
("Outside Directors") are participants in the Directors Plan. The purpose of the
Directors Plan is to advance the interests of Fuqua by encouraging ownership of
Common Stock by Outside Directors, thereby giving such directors an increased
incentive to devote their efforts to the success of Fuqua.
The shares subject to the Directors Plan will be authorized but unissued or
reacquired shares of Common Stock. Subject to adjustment in accordance with the
Directors Plan, the maximum number of shares of Common Stock for which options
may be granted under the Directors Plan is 50,000.
14
<PAGE>
2. ADMINISTRATION
Grants of options under the Directors Plan are automatic. The Directors
Plan is intended to be a "formula plan" as recognized by Rule 16b-3 under the
Exchange Act, and will be interpreted accordingly. The Stock Option Committee of
the Board of Directors of Fuqua will have authority to interpret the Directors
Plan and otherwise administer the Directors Plan in accordance with its terms.
3. TERMS AND CONDITIONS OF OPTIONS
Grant. On the date of approval of the Directors Plan by the Board of
Directors, each Outside Director was granted an option to purchase 1,000 shares
of Common Stock, subject to approval of the Directors Plan by Fuqua's
stockholders at the Meeting. If the stockholders fail to approve the Directors
Plan, the initial grant of options will be null and void and no further options
will be granted under the Directors Plan. If the Directors Plan is approved by
the stockholders, then each Outside Director who is serving in such capacity as
of the day following the annual meeting of Fuqua's stockholders to be held in
1997 will be granted an option to purchase 1,000 shares of Common Stock, subject
to adjustment as provided in the Directors Plan. As of the day following each
subsequent annual meeting of stockholders, each Outside Director who is serving
in such capacity as of such date will be granted an option to purchase 1,000
shares of Common Stock, subject to adjustment as provided in the Directors Plan.
Appropriate pro-rata grants will be made if at any time there are insufficient
shares under the Directors Plan to make the full scheduled grants.
Option Terms. The option price for each option granted under the Directors
Plan will be the fair market value of the shares of Common Stock subject to the
option on the date of grant. The option price is payable in full upon the
exercise of an option in cash, by check, in shares of Common Stock, or in any
combination thereof.
Each option granted under the Directors Plan will be immediately
exercisable, in whole or in part, and will, to the extent not previously
exercised, terminate and expire five years after the date of grant, unless
earlier terminated as provided in the Directors Plan.
No option will be assignable or transferable by the grantee except by will,
by the laws of descent and distribution or pursuant to a qualified domestic
relations order. During the lifetime of the grantee, the option will be
exercisable only by the grantee.
The Directors Plan provides for appropriate adjustments in the options in
the event of certain recapitalizations involving the Common Stock and for the
assumption or substitution of the options by a surviving corporation in certain
business combinations or reorganizations.
Effect of Termination of Directorship or Death. Upon termination of any
grantee's membership on the Board of Directors for any reason other than for
cause or death, the options held by the grantee will terminate 90 days after
termination of the grantee's membership on the Board or, if earlier, five years
from the date of the grant. If the grantee exercises the options after
termination of the grantee's service on the Board of Directors, the grantee may
exercise the options only with respect to the shares that were otherwise
exercisable on the date of such termination. If the grantee is terminated for
cause, all options granted to such grantee will expire upon such termination. In
the event of the death of a grantee, the grantee's personal representatives,
heirs or legatees may exercise the options held by the grantee on the date of
death, within one year after the grantee's death and in any event prior to five
years from the date of the grant of such options.
4. TERMINATION AND AMENDMENT
The Directors Plan will terminate ten years after its effective date, but
the Board of Directors may terminate the Directors Plan at any earlier time. The
Board of Directors may amend the Directors Plan; provided, however, that without
the approval of the stockholders, no such amendment may change the provisions of
the Directors Plan in such a manner so as to increase materially the benefits
accruing under the Directors Plan, materially increase the number of securities
that may be issued under the Directors Plan, or materially modify the
requirements as to eligibility for participation in the Directors Plan. Certain
provisions of the Directors Plan may not be amended more than once every six
months other than to comport with changes in applicable laws.
15
<PAGE>
5. FEDERAL INCOME TAX EFFECTS
Under present federal income tax laws, there will be no federal income tax
consequences to either Fuqua or the grantee upon the grant of options under the
Directors Plan. However, the grantee will realize ordinary income on the
exercise of an option in an amount equal to the excess of the fair market value
of the Common Stock acquired upon the exercise of such option over the exercise
price, and Fuqua will receive a corresponding deduction. The gain, if any,
realized upon the subsequent disposition by the grantee of the Common Stock will
constitute short- or long-term capital gain, depending on the grantee's holding
period.
6. BENEFITS TO EXECUTIVE OFFICERS AND OTHERS
Only Outside Directors of Fuqua are entitled to participate in the
Directors Plan (currently Messrs. Hamner, Hulse, Reed and Riddle). The following
table shows the benefits that will accrue under the Directors Plan, for each
year that it is in effect, to the persons and groups indicated.
NEW PLAN BENEFITS
<TABLE>
<CAPTION>
1995 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
NAME AND POSITION DOLLAR VALUE ($) NO. OF OPTIONS/(2 & 3)/
============================================================================================================
<S> <C> <C>
All Outside Directors, as a Group (1) 4,000
All Executive Officers, as a Group (1) 0
All Non-Executive Officers,
Employees as a Group (1) 0
============================================================================================================
</TABLE>
(1) On a per share basis, this amount will be equal to the excess of
the fair market value of the Common Stock on the date of exercise
of the option over the fair market value of the Common Stock on
the date of grant.
(2) Number of options to be granted in any one year while the
Directors Plan is in effect, assuming there are four non-employee
directors in such year.
(3) Each option granted has an exercise price of $18.625, the fair
market value of a share of Common Stock on the date of grant.
7. ADDITIONAL INFORMATION
The closing price of the Common Stock, as reported by the New York Stock
Exchange on April 1, 1996, was $26.125.
8. VOTE REQUIRED
The affirmative vote of the holders of a majority of the shares present or
represented by proxy and entitled to vote at the Meeting on this proposal will
constitute approval of the Directors Plan. If not so approved by the
stockholders, the Directors Plan will be null and void.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE APPROVAL OF THE DIRECTOR'S
PLAN.
PROPOSALS 4 THROUGH 9 - AMENDMENTS TO THE CERTIFICATE OF INCORPORATION
On April 9, 1996, the Board of Directors adopted, subject to stockholder
approval at the Meeting, an amendment to the Corporation's Certificate, as
heretofore amended (the "Certificate"), for the purpose, among others, of
updating the preferred stock, indemnification and director exculpation
provisions thereof and eliminating obsolete provisions. Current rules of the
Securities and Exchange Commission require that each proposed amendment to the
Certificate be separately voted upon by the stockholders, as described below
under Proposals 4 through 9. Only those amendment proposals in Proposals 4
through 9 receiving the affirmative vote of the holders of a majority of the
outstanding shares of Common Stock will be incorporated into the Amended and
Restated Certificate of Incorporation (the "Certificate Amendment"). If and to
the extent approved by the stockholders, the Certificate Amendment will be
effective as of June 1, 1996, and the Certificate will be restated as of such
date to reflect such approved amendments and all previous amendments since the
Certificate was last restated in 1986.
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As described below in Proposal 5, the Board of Directors also approved
coordinating changes to the Corporation's Bylaw indemnification provisions. Such
Bylaw amendments are not themselves required to be approved by the stockholders,
but, because they are designed to work in tandem with the proposed new
indemnification provisions in the Certificate Amendment, they have been approved
by the Board contingent upon the stockholders approving the Certificate
amendment proposed under Proposal 5 below. A copy of Article VI of the Bylaws,
as amended, is attached hereto as Exhibit C.
A summary of the more important provisions of the proposed Certificate
Amendment is set forth below in Proposals 4 through 9. This summary does not
purport to be complete, and reference is made to the full text of the proposed
Amended and Restated Certificate of Incorporation, which is attached hereto as
Exhibit D.
PROPOSAL 4. UPDATE OF PREFERRED STOCK AUTHORIZATION PROVISIONS
Under the existing Certificate, the Board of Directors has the authority,
without further stockholder approval, to issue preferred stock in one or more or
series, with each such series to have such designations, preferences, and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, as shall be stated in the resolutions
providing for the issue of such series, subject to the limitations prescribed by
law. Without limiting the Board's existing authority in this regard, or
otherwise making substantive changes thereto, it is proposed that the
Certificate be amended to generally update such provisions, by authorizing the
Board to issue preferred stock in one or more or classes or series and to fix
the dividend rights, dividend rate, liquidation preference, conversion rights,
voting rights, rights and terms of redemption (including sinking fund
provisions), redemption price or prices, and the number of shares constituting
any such series, without any further action by the stockholders unless such
action is required by applicable rules or regulations or by the terms of other
outstanding classes or series of preferred stock. The Corporation has no
preferred stock currently outstanding.
The affirmative vote of the holders of a majority of the outstanding
shares of Common Stock on this proposal will constitute approval of the proposed
amendment. If not so approved by the stockholders, the amendment proposed in
this Proposal 4 will not be included in the Certificate Amendment.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE APPROVAL OF PROPOSAL 4.
PROPOSAL 5. AMENDMENT TO THE INDEMNIFICATION PROVISIONS
AMENDMENT: It is proposed that the indemnification provisions of the
Certificate be amended to provide 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 is or was a
director or officer of the Corporation or, 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"), 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
General Corporation Law of the State of Delaware (the "DGCL") as it currently
exists or may hereafter be amended (but, in the case of any 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 to such amendment) against all
expense, liability, and loss (including 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. Except
as may be provided by the Corporation's Bylaws or its Board of Directors,
however, such indemnification would 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.
Under Section 145 of the DGCL as currently in effect, other than in actions
brought by or in the right of the Corporation, such indemnification would apply
if it was determined in the specific case that the proposed indemnitee acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation and, with respect to any criminal proceeding,
if he had no reasonable cause to believe that his conduct was unlawful. In
actions brought by or in the right of the Corporation, such indemnification
would probably be
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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 he reasonably believed to be in or not opposed to the
best interests of the Corporation, 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 Corporation 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 Corporation has been successful on the merits or otherwise in
defense of any proceeding, he must be indemnified against reasonable expenses
incurred by him in connection therewith.
Under the proposed amended Certificate indemnification provisions and
corresponding Bylaw amendments, the right of such directors and officers to
indemnification would include the right to advancement by the Corporation of
expenses incurred in defending any such proceeding in advance of its final
disposition upon delivery to the Corporation 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 proposed Certificate amendment would further provide that 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 persons who are or were directors, officers,
employees, or agents of any of the Corporation's affiliates, or predecessor or
subsidiary corporations, or any corporation absorbed by the Corporation in a
consolidation or merger, or who is or was serving at the request of such
affiliate, predecessor, subsidiary or constituent corporation as a director,
officer, employee, or agent of another enterprise, in each case as determined by
the Board of Directors.
EXISTING INDEMNIFICATION PROVISIONS. The Certificate's existing
indemnification provisions have not been up-dated in ten years or more and do
not reflect the current indemnification standards of the DGCL. For example, the
existing Certificate sets forth a negligence standard for indemnitees, while the
current standard of conduct prescribed in the DGCL is that the indemnitee have
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation and, with respect to any
criminal proceeding, that he had no reasonable cause to believe that his conduct
was unlawful. The DGCL specifies that the persons appropriate to make the
determination whether a proposed indemnitee has met the standard of conduct
include (i) the Board of Directors acting by majority vote of directors not a
party to the proceeding, whether or not constituting a quorum, (ii) independent
legal counsel, or (iii) the stockholders. The existing Certificate provisions do
not follow this protocol; providing instead that the determination be made
either (i) by order of the court having jurisdiction over the proceeding, (ii)
by a majority of a quorum of the Board of Directors, other than interested
directors, (iii) by holders of a majority of the outstanding voting stock of the
Corporation, or (iv) by order of any court having jurisdiction over the
Corporation.
Both the existing Certificate and the proposed Certificate amendment
provide for mandatory indemnification of officers and directors, provided they
meet the applicable standard of conduct. The existing Certificate also requires
mandatory indemnification of the Corporation's employees, while the proposed
Certificate amendment would leave indemnification of non-officer employees to
the discretion of the Board of Directors on a case by case basis.
The existing Certificate provides that the Corporation, in its discretion,
may advance to the indemnitee the expenses of defending any proceeding if it
appears that indemnification would be appropriate, but requires the indemnitee
to reimburse such advances if he ultimately becomes ineligible for
indemnification. In contrast, the proposed Certificate amendment would require
the Corporation to advance such expenses to officers and directors who give a
written undertaking (as required by the amended Bylaws) to repay such advances
if it shall ultimately be determined by final judicial decision from which there
is no further right to appeal that such indemnitee is not entitled to be
indemnified for such expenses under the Amended and Restated Certificate of
Incorporation or otherwise.
Finally, the existing Certificate provisions refer to the Corporation's
Bylaws for procedures relating to the grant of indemnification. The existing
Bylaws, however, contain stand-alone indemnification provisions that are
inconsistent with the Certificate provisions. The Board of Directors has
approved, subject to stockholder approval of the Certificate amendments proposed
under this Proposal 5, coordinating amendments to the indemnification
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provisions of the Corporation's Bylaws which set forth procedures for the grant
of indemnification and advancement of expenses in accordance with the above-
described indemnification provisions of the proposed Certificate amendment. A
copy of Article VI of the Bylaws, is attached hereto as Exhibit C.
In summary, the Board of Directors believes that it is in the best
interests of the Corporation and its stockholders to wholly modernize and revise
both the Certificate indemnification provisions and the Bylaw indemnification
provisions, as described above, so that they work together to provide adequate
assurance to the Corporation's officers and directors that they will be
appropriately indemnified and entitled to advancement of expenses within the
confines of current Delaware law.
The affirmative vote of the holders of a majority of the outstanding shares
of Common Stock on this proposal will constitute approval of the proposed
amendment. If not so approved by the stockholders, the amendment proposed in
this Proposal 5 will not be included in the Certificate Amendment.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE APPROVAL OF PROPOSAL 5.
PROPOSAL 6. AMENDMENT TO THE DIRECTOR EXCULPATION PROVISIONS
Article NINTH of the existing Certificate provides that 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 such
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 DGCL or (iv) for any transaction from which the
director derived an improper personal benefit. The proposed amendment to the
Certificate would add a sentence that provides that if the DGCL is later amended
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 DGCL, as
so amended.
The stockholders approved the exculpation provision in the existing
Certificate to provide the Corporation's directors with the maximum protection
from personal liability made available by the DGCL. The proposed additional
language is intended to assure such directors that they will be afforded all
future protection from personal liability in their capacity as directors as may
hereafter be available under the DGCL. The Board of Directors is not aware of
any currently proposed amendments to the DGCL in this regard. It is believed
that this provision will help the Corporation to attract and retain as directors
the persons most qualified for those positions.
The affirmative vote of the holders of a majority of the outstanding shares
of Common Stock on this proposal will constitute approval of the proposed
amendment. If not so approved by the stockholders, the amendment proposed in
this Proposal 6 will not be included in the Certificate Amendment.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE APPROVAL OF PROPOSAL 6.
PROPOSAL 7. ELIMINATION OF CERTAIN INTERESTED DIRECTOR AND OFFICER
TRANSACTIONS PROVISIONS
The Certificate is proposed to be amended by eliminating subparagraphs (4),
(5), and (6) of Article FIFTH of the Certificate which relate to the validity of
contracts and transactions in which directors or officers of the Corporation
could be said to have an interest. The Board of Directors believes that such
provisions are unclear as to their enforceability and unnecessary in light of
Section 144 of the DGCL, which provides that no contract or transaction between
a corporation and one or more of its directors or officers, or between a
corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the board or committee thereof which authorizes
the contract or transaction, or solely because his or their votes are counted
for such purpose, if (i) the material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known to the board of
directors or the committee, and the board or committee in good faith authorizes
the contract or transaction by the affirmative vote of a majority of the
disinterested directors, even though the disinterested directors constitute less
than a quorum, (ii) the material facts as to his relationship or interest and as
to the contract or transaction are
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disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders, or (iii) the contract or transaction is fair as to the corporation
as of the time it is authorized, approved or ratified, by the board of
directors, a committee thereof, or the stockholders.
The affirmative vote of the holders of a majority of the outstanding shares
of Common Stock on this proposal will constitute approval of the proposed
amendment. If not so approved by the stockholders, the amendment proposed in
this Proposal 7 will not be included in the Certificate Amendment.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE APPROVAL OF PROPOSAL 7.
PROPOSAL 8. ELIMINATION OF PROVISION REGARDING RATIFICATION OF PRIOR ACTS
The Certificate is proposed to be amended by eliminating subparagraph (7)
of Article FIFTH of the Certificate which provides that any approval or
ratification of the acts of officers or directors of the Corporation by a
majority vote of the stockholders will be binding on every stockholder as though
it had been approved or ratified by every stockholder. The Board of Directors
believes that the enforceability of such provision is unclear under current
Delaware law and should be eliminated.
The affirmative vote of the holders of a majority of the outstanding shares
of Common Stock on this proposal will constitute approval of the proposed
amendment. If not so approved by the stockholders, the amendment proposed in
this Proposal 8 will not be included in the Certificate Amendment.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE APPROVAL OF PROPOSAL 8.
PROPOSAL 9. HOUSE-KEEPING AMENDMENTS
CONFIRMATION OF CORPORATE POWERS. The existing Certificate provides that
the purpose of the Corporation is to engage in any lawful act or activity for
which a corporation may be organized under the DGCL. The Certificate is proposed
to be amended to add an express confirmation that the Corporation shall have all
powers that may now or hereafter be lawful for a corporation to exercise under
the DGCL.
SEVERABILITY PROVISION. The Certificate is proposed to be amended by
adding a new Article IX, which provides that in the event any provision of the
Amended and Restated Certificate of Incorporation is held to be invalid, void or
otherwise unenforceable, the remaining provisions are severable and shall remain
enforceable to the full extent permitted by law.
ELIMINATION OF ARTICLE EIGHTH. The Certificate is further proposed to be
amended by eliminating Article EIGHTH of the Certificate which requires a three-
fourths stockholder vote to amend or repeal the provisions of Article FOURTH
relating to cumulative voting rights. Since the cumulative voting provisions of
Article FOURTH were eliminated in 1989 pursuant to appropriate stockholder vote,
Article EIGHTH is now obsolete and would be eliminated.
MISCELLANEOUS. Finally, the Certificate is proposed to be reformatted for
ease of readability, by adding section headings and subheadings, and renumbering
certain sections, subsections and cross-references.
The affirmative vote of the holders of a majority of the outstanding shares
of Common Stock on this proposal will constitute approval of the proposed
amendments. If not so approved by the stockholders, the amendments proposed in
this Proposal 9 will not be included in the Certificate Amendment.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE APPROVAL OF PROPOSAL 9.
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SELECTION OF INDEPENDENT AUDITORS
Ernst & Young LLP, a firm of independent auditors, was engaged by Fuqua to
examine its financial statements for 1995. The appointment of auditors is
approved annually by the Board of Directors. The decision of the Board is based
on the recommendation of the Audit Committee. Ernst & Young LLP has been
appointed Fuqua's independent auditors for 1996. A representative of Ernst &
Young LLP is expected to be present at the Meeting and will have the opportunity
to make a statement if he desires to do so. He will also be available to respond
to appropriate questions from stockholders.
STOCKHOLDER PROPOSALS AT FUQUA'S NEXT
ANNUAL MEETING OF STOCKHOLDERS
Stockholders of Fuqua who intend to submit proposals to Fuqua's
stockholders at Fuqua's next annual meeting of stockholders must submit such
proposals to Fuqua no later than December 18, 1996. Stockholder proposals should
be submitted to Mildred H. Hutcheson, Corporate Secretary, Fuqua Enterprises,
Inc., One Atlantic Center, Suite 5000, 1201 W. Peachtree Street, N.W., Atlanta,
Georgia 30309. In order to be eligible to submit a proposal, a stockholder must
at the time of submission of the proposal be the owner of record or beneficially
of at least $1,000 in market value of securities entitled to be voted at the
meeting and have held such securities for at least one year. In addition, such
stockholder must continue to own securities in at least such amount through the
date on which the next annual meeting is held.
OTHER MATTERS
In July 1994, the Securities and Exchange Commission (the "Commission")
issued an order initiating an administrative proceeding against Clark L. Reed,
Jr. and his former employer, Synovus Securities, Inc. ("Synovus"), alleging that
from 1988 to 1991 certain of Mr. Reed's and Synovus's activities were in
violation of the federal securities laws and Commission regulations.
Specifically, the Commission claimed that Synovus and Mr. Reed, in his capacity
as President of Synovus, engaged in activities in connection with municipal
securities trades that resulted in customers of Synovus being deprived of the
best price terms for their transactions. Without admitting or denying the
Commission's allegations, Mr. Reed consented to the Commission's order, was
barred from association with any broker, dealer, municipal securities dealer,
investment adviser or investment company, with a right to reapply after 18
months, was fined $50,000 and was ordered to cease-and-desist from further
violations.
The cost of solicitation of proxies will be borne by Fuqua. In order to
assure that more than the minimum of 50% of the outstanding shares required for
a quorum are present in person or represented by proxies at the Meeting, proxy
solicitation may also be made personally or by telephone or telegram by officers
or employees of Fuqua, without added compensation. Fuqua will reimburse brokers,
custodians and nominees for their expenses in sending proxies and proxy
materials to beneficial owners.
FUQUA WILL PROVIDE WITHOUT CHARGE A COPY OF ITS ANNUAL REPORT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31,
1995, INCLUDING THE FINANCIAL STATEMENTS AND SCHEDULES THERETO, ON THE WRITTEN
REQUEST OF THE BENEFICIAL OWNER OF ANY SHARES OF ITS COMMON STOCK ON THE RECORD
DATE, PROVIDED THE PERSON MAKING THE REQUEST WAS A BENEFICIAL OWNER OF COMMON
STOCK OF FUQUA AS OF SUCH DATE. THE WRITTEN REQUEST SHOULD BE DIRECTED TO:
MILDRED H. HUTCHESON, CORPORATE SECRETARY, FUQUA ENTERPRISES, INC., ONE ATLANTIC
CENTER, SUITE 5000, 1201 W. PEACHTREE STREET, N.W., ATLANTA, GEORGIA 30309.
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EXHIBIT A
FUQUA ENTERPRISES, INC.
1995 LONG-TERM INCENTIVE PLAN
ARTICLE I
PURPOSE
1.1 General. The purpose of the Fuqua Enterprises, Inc. 1995 Long-Term
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Incentive Plan (the "Plan") is to promote the success, and enhance the value, of
Fuqua Enterprises, Inc. (the "Corporation"), by linking the personal interests
of its key employees to those of Corporation stockholders and by providing its
key employees with an incentive for outstanding performance. The Plan is
further intended to provide flexibility to the Corporation in its ability to
motivate, attract, and retain the services of employees upon whose judgment,
interest, and special effort the successful conduct of the Corporation's
operation is largely dependent. Accordingly, the Plan permits the grant of
incentive awards from time to time to selected officers and key employees.
ARTICLE 2
EFFECTIVE DATE
2.1 Effective Date. The Plan shall be effective as of the date upon
--------------
which it shall be approved by the stockholders of the Corporation. The Plan will
be deemed to be approved by the stockholders if it receives the affirmative vote
of the holders of a majority of the shares of stock of the Corporation present,
or represented, and entitled to vote at a meeting duly held in accordance with
the applicable provisions of the Delaware General Corporation Law and the
Corporation's Bylaws and Certificate of Incorporation. Any Awards granted under
the Plan prior to stockholder approval are effective when made (unless the
Committee specifies otherwise at the time of grant), but no Award may be
exercised or settled and no restrictions relating to any Award may lapse before
stockholder approval. If the stockholders fail to approve the Plan, any Award
previously made shall be automatically canceled without any further act.
ARTICLE 3
DEFINITIONS
3.1 Definitions. When a word or phrase appears in this Plan with the
-----------
initial letter capitalized, and the word or phrase does not commence a sentence,
the word or phrase shall generally be given the meaning ascribed to it in this
Section or in Sections 1.1 or 2.1 unless a clearly different meaning is required
by the context. The following words and phrases shall have the following
meanings:
(a) "Award" means any Option, Stock Appreciation Right, Restricted
Stock Award, Performance Share Award, Dividend Equivalent Award, or Other
Stock-Based Award, or any other right or interest relating to Stock or
cash, granted to a Participant under the Plan.
(b) "Award Agreement" means any written agreement, contract, or
other instrument or document evidencing an Award.
(c) "Board" means the Board of Directors of the Corporation.
(d) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(e) "Committee" means the committee of the Board described in
Article 4.
(f) "Corporation" means Fuqua Enterprises, Inc., a Delaware
corporation.
(g) "Disability" shall mean any illness or other physical or
mental condition of a Participant that renders the Participant incapable of
performing his customary and usual duties for the Corporation, or any
medically determinable illness or other physical or mental condition
resulting from a bodily injury, disease or mental disorder which, in the
judgment of the Committee, is permanent and continuous in nature. The
Committee may require such medical or other evidence as it deems necessary
to judge the nature and permanency of the Participant's condition.
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(h) "Dividend Equivalent" means a right granted to a Participant
under Article 11 .
(i) "Effective Date" has the meaning assigned such term in Section
2.1.
(j) "Fair Market Value" means with respect to Stock or any other
property, the fair market value of such Stock or other property determined
by such methods or procedures as may be established from time to time by
the Committee. Unless otherwise determined by the Committee, the Fair
Market Value of Stock as of any date will be the average of the high and
low price of a share of Stock traded on the New York Stock Exchange on such
date, as reported in the composite transactions quoted in The Wall Street
Journal or, if no shares were traded on such day, on the next preceding day
on which shares were traded.
(k) "Incentive Stock Option" means an Option that is intended to
meet the requirements of Section 422 of the Code or any successor provision
thereto.
(l) "Non-Qualified Stock Option" means an Option that is not an
Incentive Stock Option.
(m) "Option" means a right granted to a Participant under Article
7 of the Plan to purchase Stock at a specified price during specified time
periods. An Option may be either an Incentive Stock Option or a Non-
Qualified Stock Option.
(n) "Other Stock-Based Award" means a right, granted to a
Participant under Article 12, that relates to or is valued by reference to
Stock or other Awards relating to Stock.
(o) "Participant" means a person who, as an officer or key
employee of the Corporation or any Subsidiary, has been granted an Award
under the Plan.
(p) "Performance Share" means a right granted to a Participant
under Article 9, to receive cash, Stock, or other Awards, the payment of
which is contingent upon achieving certain performance goals established by
the Committee.
(q) "Plan" means the Fuqua Enterprises, Inc. 1995 Long-Term
Incentive Plan, as amended from time to time.
(r) "Restricted Stock Award" means Stock granted to a Participant
under Article 10 that is subject to certain restrictions and to risk of
forfeiture.
(s) "Retirement" means a Participant's termination of employment
with the Corporation after attaining any normal or early retirement age
specified in any pension, profit sharing or other retirement program
sponsored by the Corporation.
(t) "Stock" means the $2.50 par value common stock of the
Corporation and such other securities of the Corporation as may be
substituted for Stock pursuant to Article 14.
(u) "Stock Appreciation Right" or "SAR" means a right granted to a
Participant under Article 8 to receive a payment equal to the difference
between the Fair Market Value of a share of Stock as of the date of
exercise of the SAR over the grant price of the SAR, all as determined
pursuant to Article 8.
(v) "Subsidiary" means any corporation of which a majority of the
outstanding voting stock or voting power is beneficially owned directly or
indirectly by the Corporation.
(w) "1933 Act" means the Securities Act of 1933, as amended from
time to time.
(x) "1934 Act" means the Securities Exchange Act of 1934, as
amended from time to time.
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ARTICLE 4
ADMINISTRATION
4.1 Committee. The Plan shall be administered by the Stock Option
---------
Committee of the Board. The Committee shall consist of two or more members of
the Board who are (i) "outside directors" as that term is used in Section 162 of
the Code and the regulations promulgated thereunder, and (ii) "disinterested
persons," as such term is defined in Rule 16b-3 promulgated under Section 16 of
the 1934 Act or any successor provision, except as may be otherwise permitted
under Section 16 of the 1934 Act and the regulations and rules promulgated
thereunder.
4.2 Action by the Committee. For purposes of administering the Plan,
-----------------------
the following rules of procedure shall govern the Committee. A majority of the
Committee shall constitute a quorum. The acts of a majority of the members
present at any meeting at which a quorum is present and acts approved in writing
by a majority of the Committee in lieu of a meeting shall be deemed the acts of
the Committee. Each member of the Committee is entitled to, in good faith, rely
or act upon any report or other information furnished to that member by any
officer or other employee of the Corporation or any Subsidiary, the
Corporation's independent certified public accountants, or any executive
compensation consultant or other professional retained by the Corporation to
assist in the administration of the Plan.
4.3 Authority of Committee. The Committee has the exclusive power,
----------------------
authority and discretion to:
(a) Designate Participants;
(b) Determine the type or types of Awards to be granted to each
Participant;
(c) Determine the number of Awards to be granted and the number of
shares of Stock to which an Award will relate;
(d) Determine the terms and conditions of any Award granted under
the Plan, including but not limited to, the exercise price, grant price, or
purchase price, any restrictions or limitations on the Award, any schedule
for lapse of forfeiture restrictions or restrictions on the exercisability
of an Award, and accelerations or waivers thereof, based in each case on
such considerations as the Committee in its sole discretion determines;
(e) Determine whether, to what extent, and under what
circumstances an Award may be settled in, or the exercise price of an Award
may be paid in, cash, Stock, other Awards, or other property, or an Award
may be canceled, forfeited, or surrendered;
(f) Prescribe the form of each Award Agreement, which need not be
identical for each Participant;
(g) Decide all other matters that must be determined in connection
with an Award;
(h) Establish, adopt or revise any rules and regulations as it may
deem necessary or advisable to administer the Plan; and
(i) Make all other decisions and determinations that may be
required under the Plan or as the Committee deems necessary or advisable to
administer the Plan.
4.4. Decisions Binding. The Committee's interpretation of the Plan, any
-----------------
Awards granted under the Plan, any Award Agreement and all decisions and
determinations by the Committee with respect to the Plan are final, binding, and
conclusive on all parties.
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ARTICLE 5
SHARES SUBJECT TO THE PLAN
5.1. Number of Shares. Subject to adjustment as provided in Section
----------------
14.1, the aggregate number of shares of Stock reserved and available for Awards
or which may be used to provide a basis of measurement for or to determine the
value of an Award (such as with a Stock Appreciation Right or Performance Share
Award) shall be 300,000.
5.2. Lapsed Awards. To the extent that an Award is canceled,
-------------
terminates, expires or lapses for any reason, any shares of Stock subject to the
Award will again be available for the grant of an Award under the Plan and
shares subject to SARs or other Awards settled in cash will be available for the
grant of an Award under the Plan, in each case to the full extent available
pursuant to the rules and interpretations of the Securities and Exchange
Commission under Section 16 of the 1934 Act, as amended. In the event that prior
to the Award's cancellation, termination, expiration, or lapse, the holder of
the Award at any time received one or more "benefits of ownership" pursuant to
such Award (as defined by the Securities and Exchange Commission, pursuant to
any rule or interpretation promulgated under Section 16 of the 1934 Act), the
Shares subject to such Award shall not be available for regrant under the Plan.
5.3. Stock Distributed. Any Stock distributed pursuant to an Award may
-----------------
consist, in whole or in part, of authorized and unissued Stock, treasury Stock
or Stock purchased on the open market.
5.4. Limitation on Number of Shares Subject to Awards. Notwithstanding
------------------------------------------------
any provision in the Plan to the contrary, the maximum number of shares of Stock
with respect to one or more Awards that may be granted to any one Participant
over any one year period during the term of the Plan shall be 150,000.
ARTICLE 6
ELIGIBILITY
6.1. General. Awards may be granted only to individuals who are
-------
officers or other key employees (including employees who also are directors or
officers) of the Corporation or a Subsidiary, as determined by the Committee.
ARTICLE 7
STOCK OPTIONS
7.1. General. The Committee is authorized to grant Options to
-------
Participants on the following terms and conditions:
(a) Exercise Price. The exercise price per share of Stock under
--------------
an Option shall be determined by the Committee.
(b) Time and Conditions of Exercise. The Committee shall
-------------------------------
determine the time or times at which an Option may be exercised in whole or
in part. The Committee also shall determine the performance or other
conditions, if any, that must be satisfied before all or part of an Option
may be exercised.
(c) Payment. The Committee shall determine the methods by which
-------
the exercise price of an Option may be paid, the form of payment,
including, without limitation, cash, shares of Stock, or other property
(including "cashless exercise" arrangements), and the methods by which
shares of Stock shall be delivered or deemed to be delivered to
Participants. Without limiting the power and discretion conferred on the
Committee pursuant to the preceding sentence, the Committee may, in the
exercise of its discretion, but need not, allow a Participant to pay the
Option price by directing the Corporation to withhold from the shares of
Stock that would otherwise be issued upon exercise of the Option that
number of shares having a Fair Market Value on the exercise date equal to
the Option price, all as determined pursuant to rules and procedures
established by the Committee.
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<PAGE>
(d) Evidence of Grant. All Options shall be evidenced by a
-----------------
written Award Agreement between the Corporation and the Participant. The
Award Agreement shall include such provisions as may be specified by the
Committee.
7.2. Incentive Stock Options. The terms of any Incentive Stock Options
-----------------------
granted under the Plan must comply with the following additional rules:
(a) Exercise Price. The exercise price per share of Stock shall
--------------
be set by the Committee, provided that the exercise price for any Incentive
Stock Option shall not be less than the Fair Market Value as of the date of
the grant.
(b) Exercise. In no event may any Incentive Stock Option be
--------
exercisable for more than ten years from the date of its grant.
(c) Lapse of Option. An Incentive Stock Option shall lapse under
---------------
the following circumstances:
(1) The Incentive Stock Option shall lapse ten years after it
is granted, unless an earlier time is set in the Award Agreement.
(2) The Incentive Stock Option shall lapse three months after
the Participant's termination of employment, if the termination of
employment was (i) attributable to Disability or Retirement or (ii)
for any other reason, provided that the Committee has approved, in
writing, the continuation of any Incentive Stock Option outstanding
on the date of the Participant's termination of employment.
(3) If the Participant separates from employment other than
as provided in paragraph (2), the Incentive Stock Option shall
lapse at the time of the Participant's termination of employment.
(4) If the Participant dies before the Option lapses pursuant
to paragraph (1), (2) or (3), above, the Incentive Stock Option
shall lapse, unless it is previously exercised, on the earlier of
(i) the date on which the Option would have lapsed had the
Participant lived and had his employment status (i.e., whether the
Participant was employed by the Corporation on the date of his
death or had previously terminated employment) remained unchanged;
or (ii) one year after the date of the Participant's death. Upon
the Participant's death, any exercisable Incentive Stock Options
may be exercised by the Participant's legal representative or
representatives, by the person or persons entitled to do so under
the Participant's last will and testament, or, if the Participant
shall fail to make testamentary disposition of such Incentive Stock
Option or shall die intestate, by the person or persons entitled to
receive such Incentive Stock Option under the applicable laws of
descent and distribution.
(d) Individual Dollar Limitation. The aggregate Fair Market Value
----------------------------
(determined as of the time an Award is made) of all shares of Stock with
respect to which Incentive Stock Options are first exercisable by a
Participant in any calendar year may not exceed $100,000.00.
(e) Ten Percent Owners. No Incentive Stock Option shall be
------------------
granted to any individual who, at the date of grant, owns stock possessing
more than ten percent of the total combined voting power of all classes of
stock of the Corporation or any Subsidiary unless the exercise price per
share of such Option is at least 110% of the Fair Market Value per share of
Stock at the date of grant and the Option expires no later than five years
after the date of grant.
(f) Expiration of Incentive Stock Options. No Award of an
-------------------------------------
Incentive Stock Option may be made pursuant to the Plan after the day
immediately prior to the tenth anniversary of the Effective Date.
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<PAGE>
(g) Right to Exercise. During a Participant's lifetime, an
-----------------
Incentive Stock Option may be exercised only by the Participant.
ARTICLE 8
STOCK APPRECIATION RIGHTS
8.1. Grant of SARs. The Committee is authorized to grant SARs to
-------------
Participants on the following terms and conditions:
(a) Right to Payment. Upon the exercise of a Stock Appreciation
----------------
Right, the Participant to whom it is granted has the right to receive the
excess, if any, of:
(1) The Fair Market Value of one share of Stock on the date of
exercise; over
(2) The grant price of the Stock Appreciation Right as determined
by the Committee, which shall not be less than the Fair Market Value of one
share of Stock on the date of grant in the case of any SAR related to an
Incentive Stock Option.
(b) Other Terms. All awards of Stock Appreciation Rights shall be
-----------
evidenced by an Award Agreement. The terms, methods of exercise, methods
of settlement, form of consideration payable in settlement, and any other
terms and conditions of any Stock Appreciation Right shall be determined by
the Committee at the time of the grant of the Award and shall be reflected
in the Award Agreement.
ARTICLE 9
PERFORMANCE SHARES
9.1. Grant of Performance Shares. The Committee is authorized to grant
---------------------------
Performance Shares to Participants on such terms and conditions as may be
selected by the Committee. The Committee shall have the complete discretion to
determine the number of Performance Shares granted to each Participant. All
Awards of Performance Shares shall be evidenced by an Award Agreement.
9.2. Right to Payment. A grant of Performance Shares gives the
----------------
Participant rights, valued as determined by the Committee, and payable to, or
exercisable by, the Participant to whom the Performance Shares are granted, in
whole or in part, as the Committee shall establish at grant or thereafter. The
Committee shall set performance goals and other terms or conditions to payment
of the Performance Shares in its discretion which, depending on the extent to
which they are met, will determine the number and value of Performance Shares
that will be paid to the Participant.
9.3. Other Terms. Performance Shares may be payable in cash, Stock, or
-----------
other property, and have such other terms and conditions as determined by the
Committee and reflected in the Award Agreement.
ARTICLE 10
RESTRICTED STOCK AWARDS
10.1. Grant of Restricted Stock. The Committee is authorized to make
-------------------------
Awards of Restricted Stock to Participants in such amounts and subject to such
terms and conditions as may be selected by the Committee. All Awards of
Restricted Stock shall be evidenced by a Restricted Stock Award Agreement.
10.2. Issuance and Restrictions. Restricted Stock shall be subject to
-------------------------
such restrictions on transferability and other restrictions as the Committee may
impose (including, without limitation, limitations on the right to vote
Restricted Stock or the right to receive dividends on the Restricted Stock).
These restrictions may lapse separately or in combination at such times, under
such circumstances, in such installments, or otherwise, as the Committee
determines at the time of the grant of the Award or thereafter.
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<PAGE>
10.3. Forfeiture. Except as otherwise determined by the Committee at the
----------
time of the grant of the Award or thereafter, upon termination of employment
during the applicable restriction period, Restricted Stock that is at that time
subject to restrictions shall be forfeited and reacquired by the Corporation;
provided, however, that the Committee may provide in any Award Agreement that
restrictions or forfeiture conditions relating to Restricted Stock will be
waived in whole or in part in the event of terminations resulting from specified
causes, and the Committee may in other cases waive in whole or in part
restrictions or forfeiture conditions relating to Restricted Stock.
10.4. Certificates for Restricted Stock. Restricted Stock granted under
---------------------------------
the Plan may be evidenced in such manner as the Committee shall determine. If
certificates representing shares of Restricted Stock are registered in the name
of the Participant, certificates must bear an appropriate legend referring to
the terms, conditions, and restrictions applicable to such Restricted Stock, and
the Corporation shall retain physical possession of the certificate until such
time as all applicable restrictions lapse.
ARTICLE 11
DIVIDEND EQUIVALENTS
11.1. Grant of Dividend Equivalents. The Committee is authorized to
-----------------------------
grant Dividend Equivalents to Participants subject to such terms and conditions
as may be selected by the Committee. Dividend Equivalents shall entitle the
Participant to receive payments equal to dividends with respect to all or a
portion of the number of shares of Stock subject to an Option Award or SAR
Award, as determined by the Committee. The Committee may provide that Dividend
Equivalents be paid or distributed when accrued or be deemed to have been
reinvested in additional shares of Stock, or otherwise reinvested.
ARTICLE 12
OTHER STOCK-BASED AWARDS
12.1. Grant of Other Stock-Based Awards. The Committee is authorized,
---------------------------------
subject to limitations under applicable law, to grant to Participants such other
Awards that are payable in, valued in whole or in part by reference to, or
otherwise based on or related to shares of Stock, as deemed by the Committee to
be consistent with the purposes of the Plan, including without limitation shares
of Stock awarded purely as a "bonus" and not subject to any restrictions or
conditions, convertible or exchangeable debt securities, other rights
convertible or exchangeable into shares of Stock, and Awards valued by reference
to book value of shares of Stock or the value of securities of or the
performance of specified Subsidiaries. The Committee shall determine the terms
and conditions of such Awards.
ARTICLE 13
PROVISIONS APPLICABLE TO AWARDS
13.1. Stand-Alone, Tandem, and Substitute Awards. Awards granted under
------------------------------------------
the Plan may, in the discretion of the Committee, be granted either alone or in
addition to, in tandem with, or in substitution for, any other Award granted
under the Plan. If an Award is granted in substitution for another Award, the
Committee may require the surrender of such other Award in consideration of the
grant of the new Award. Awards granted in addition to or in tandem with other
Awards may be granted either at the same time as or at a different time from
time from the grant of such other Awards.
13.2. Exchange Provisions. The Committee may at any time offer to
-------------------
exchange or buy out any previously granted Award for a payment in cash, Stock,
or another Award (subject to Section 14.1), based on the terms and conditions
the Committee determines and communicates to the Participant at the time the
offer is made.
13.3. Term of Award. The term of each Award shall be for the period as
-------------
determined by the Committee, provided that in no event shall the term of any
Incentive Stock Option or a Stock Appreciation Right granted in tandem with the
Incentive Stock Option exceed a period of ten years from the date of its grant.
A-7
<PAGE>
13.4. Form of Payment for Awards. Subject to the terms of the Plan and
--------------------------
any applicable law or Award Agreement, payments or transfers to be made by the
Corporation or a Subsidiary on the grant or exercise of an Award may be made in
such form as the Committee determines at or after the time of grant, including
without limitation, cash, Stock, other Awards, or other property, or any
combination, and may be made in a single payment or transfer, in installments,
or on a deferred basis, in each case determined in accordance with rules adopted
by, and at the discretion of, the Committee.
13.5. Limits on Transfer. No right or interest of a Participant in any
------------------
Award may be pledged, encumbered, or hypothecated to or in favor of any party
other than the Corporation or a Subsidiary, or shall be subject to any lien,
obligation, or liability of such Participant to any other party other than the
Corporation or a Subsidiary. No Award shall be assignable or transferable by a
Participant other than by will or the laws of descent and distribution or,
except in the case of an Incentive Stock Option, pursuant to a domestic
relations order as defined in Section 414(p)(1)(B) of the Code, if the order
satisfies Section 414(p)(1)(A) of the Code.
13.6. Beneficiaries. Notwithstanding Section 13.5, a Participant may, in
-------------
the manner determined by the Committee, designate a beneficiary to exercise the
rights of the Participant and to receive any distribution with respect to any
Award upon the Participant's death. A beneficiary, legal guardian, legal
representative, or other person claiming any rights under the Plan is subject to
all terms and conditions of the Plan and any Award Agreement applicable to the
Participant, except to the extent the Plan and Award Agreement otherwise
provide, and to any additional restrictions deemed necessary or appropriate by
the Committee. If the Participant is married, a designation of a person other
than the Participant's spouse as his beneficiary with respect to more than 50
percent of the Participant's interest in the Award shall not be effective
without the written consent of the Participant's spouse. If no beneficiary has
been designated or survives the Participant, payment shall be made to the person
entitled thereto under the Participant's will or the laws of descent and
distribution. Subject to the foregoing, a beneficiary designation may be changed
or revoked by a Participant at any time provided the change or revocation is
filed with the Committee.
13.7. Stock Certificates. All Stock certificates delivered under the
------------------
Plan are subject to any stop-transfer orders and other restrictions as the
Committee deems necessary or advisable to comply with federal or state
securities laws, rules and regulations and the rules of any national securities
exchange or automated quotation system on which the Stock is listed, quoted, or
traded. The Committee may place legends on any Stock certificate to reference
restrictions applicable to the Stock.
13.8 Acceleration Upon Death or Disability. Notwithstanding any other
-------------------------------------
provision in the Plan or any Participant's Award Agreement to the contrary, upon
the Participant's death or Disability, all outstanding Options, Stock
Appreciation Rights, and other Awards in the nature of rights that may be
exercised shall become fully exercisable and all restrictions on outstanding
Awards shall lapse. Any Option or Stock Appreciation Rights Awards shall then
lapse in accordance with the other provisions of the Plan and the Award
Agreement. To the extent that this provision causes Incentive Stock Options to
exceed the dollar limitation set forth in Section 7.2(d), the excess Options
shall be deemed to be Non-Qualified Stock Options.
13.9. Acceleration Upon Certain Events. In the event of (i) the
--------------------------------
commencement of a public tender offer for all or any portion of the Stock, (ii)
a proposal to merge, consolidate or otherwise combine with another corporation
is submitted to the stockholders of the Corporation for approval, or (iii) the
Board approves any transaction or event that would constitute a change of
control of the Corporation of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of the 1934 Act, the Committee may in its
sole discretion declare all outstanding Options, Stock Appreciation Rights, and
other Awards in the nature of rights that may be exercised to become fully
exercisable, and/or all restrictions on all outstanding Awards to lapse, in each
case as of such date as the Committee may, in its sole discretion, declare,
which may be on or before the consummation of such tender offer or other
transaction or event. To the extent that this provision causes Incentive Stock
Options to exceed the dollar limitation set forth in Section 7.2(d), the excess
Options shall be deemed to be Non-Qualified Stock Options.
A-8
<PAGE>
ARTICLE 14
CHANGES IN CAPITAL STRUCTURE
14.1. General. In the event a stock dividend is declared upon the Stock,
-------
the shares of Stock then subject to each Award shall be increased
proportionately without any change in the aggregate purchase price therefor. In
the event the Stock shall be changed into or exchanged for a different number or
class of shares of stock or securities of the Corporation or of another
corporation, whether through reorganization, recapitalization, stock split-up,
combination of shares, merger or consolidation, there shall be substituted for
each such share of Stock then subject to each Award the number and class of
shares into which each outstanding share of Stock shall be so exchanged, all
without any change in the aggregate purchase price for the shares then subject
to each Award.
ARTICLE 15
AMENDMENT, MODIFICATION AND TERMINATION
15.1. Amendment, Modification and Termination. With the approval of the
---------------------------------------
Board, at any time and from time to time, the Committee may terminate, amend or
modify the Plan. However, without approval of the stockholders of the
Corporation or other conditions (as may be required by the Code, by the insider
trading rules of Section 16 of the 1934 Act, by any national securities exchange
on which the Stock is listed or reported, or by a regulatory body having
jurisdiction), no such termination, amendment, or modification may:
(a) Increase the total number of shares of Stock that may be
issued under the Plan, except as provided in Section 14.1;
(b) Modify the eligibility requirements for participation in
the Plan; or
(c) Materially increase the benefits accruing to Participants
under the Plan.
15.2 Awards Previously Granted. No termination, amendment, or
-------------------------
modification of the Plan shall adversely affect any Award previously granted
under the Plan, without the written consent of the Participant.
ARTICLE 16
GENERAL PROVISIONS
16.1. No Rights to Awards. No Participant or employee shall have any
-------------------
claim to be granted any Award under the Plan, and neither the Corporation nor
the Committee is obligated to treat Participants and employees uniformly.
16.2. No Stockholder Rights. No Award gives the Participant any of the
---------------------
rights of a stockholder of the Corporation unless and until shares of Stock are
in fact issued to such person in connection with such Award.
16.3. Withholding. The Corporation or any Subsidiary shall have the
-----------
authority and the right to deduct or withhold, or require a Participant to remit
to the Corporation, an amount sufficient to satisfy federal, state, and local
taxes (including the Participant's FICA obligation) required by law to be
withheld with respect to any taxable event arising as a result of the Plan.
With respect to withholding required upon any taxable event under the Plan, the
Committee may, at the time the Award is granted or thereafter, require that any
such withholding requirement be satisfied, in whole or in part, by withholding
shares of Stock having a Fair Market Value on the date of withholding equal to
the amount to be withheld for tax purposes, all in accordance with such
procedures as the Committee establishes.
16.4. No Right to Employment. Nothing in the Plan or any Award Agreement
----------------------
shall interfere with or limit in any way the right of the Corporation or any
Subsidiary to terminate any Participant's employment at any time, nor confer
upon any Participant any right to continue in the employ of the Corporation or
any Subsidiary.
A-9
<PAGE>
l5.5. Unfunded Status of Awards. The Plan is intended to be an
-------------------------
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Participant pursuant to an Award, nothing contained
in the Plan or any Award Agreement shall give the Participant any rights that
are greater than those of a general creditor of the Corporation or any
Subsidiary.
16.6. Indemnification. To the extent allowable under applicable law,
---------------
each member of the Committee shall be indemnified and held harmless by the
Corporation from any loss, cost, liability, or expense that may be imposed upon
or reasonably incurred by such member in connection with or resulting from any
claim, action, suit, or proceeding to which such member may be a party or in
which he may be involved by reason of any action or failure to act under the
Plan and against and from any and all amounts paid by such member in
satisfaction of judgment in such action, suit, or proceeding against him
provided he gives the Corporation an opportunity, at its own expense, to handle
and defend the same before he undertakes to handle and defend it on his own
behalf. The foregoing right of indemnification shall not be exclusive of any
other rights of indemnification to which such persons may be entitled under the
Corporation's Certificate of Incorporation or By-Laws, as a matter of law, or
otherwise, or any power that the Corporation may have to indemnify them or hold
them harmless.
16.7. Relationship to Other Benefits. No payment under the Plan shall be
------------------------------
taken into account in determining any benefits under any pension, retirement,
savings, profit sharing, group insurance, welfare or benefit plan of the
Corporation or any Subsidiary.
16.8. Expenses. The expenses of administering the Plan shall be borne by
--------
the Corporation and its Subsidiaries.
16.9. Titles and Headings. The titles and headings of the Sections in
-------------------
the Plan are for convenience of reference only, and in the event of any
conflict, the text of the Plan, rather than such titles or headings, shall
control.
16.10. Gender and Number. Except where otherwise indicated by the
-----------------
context, any masculine term used herein also shall include the feminine; the
plural shall include the singular and the singular shall include the plural.
16.11. Fractional Shares. No fractional shares of Stock shall be issued
-----------------
and the Committee shall determine, in its discretion, whether cash shall be
given in lieu of fractional shares or whether such fractional shares shall be
eliminated by rounding up.
16.12. Securities Law Compliance. With respect to any person who is, on
-------------------------
the relevant date, obligated to file reports under Section 16 of the 1934 Act,
transactions under the Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the 1934 Act. To the extent any
provision of the Plan or action by the Committee fails to so comply, it shall be
void to the extent permitted by law and voidable as deemed advisable by the
Committee.
16.13. Government and Other Regulations. The obligation of the
--------------------------------
Corporation to make payment of awards in Stock or otherwise shall be subject to
all applicable laws, rules, and regulations, and to such approvals by government
agencies as may be required. The Corporation shall be under no obligation to
register under the 1933 Act, any of the shares of Stock paid under the Plan. If
the shares paid under the Plan may in certain circumstances be exempt from
registration under the 1933 Act, the Corporation may restrict the transfer of
such shares in such manner as it deems advisable to ensure the availability of
any such exemption.
16.14. Governing Law. To the extent not governed by federal law, the Plan
--------------
and all Award Agreements shall be construed in accordance with and governed by
the laws of the State of Delaware.
A-10
<PAGE>
EXHIBIT B
FUQUA ENTERPRISES, INC.
1995 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
--------------------------------------------
1. Purpose. The purpose of the Fuqua Enterprises, Inc. 1995 Stock Option
-------
Plan for Outside Directors (the "Plan") is to advance the interests of Fuqua
Enterprises, Inc. (the "Corporation") by encouraging ownership of the
Corporation's $2.50 par value common stock (the "Common Stock") by non-employee
directors of the Corporation, thereby giving such directors an increased
incentive to devote their efforts to the success of the Corporation.
2. Administration. Grants of options under this Plan are automatic.
--------------
This Plan is intended to be a "formula plan" as recognized by Rule 16b-
3(c)(2)(ii) promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and shall be interpreted accordingly.
3. Eligibility. Except as provided otherwise in this Section 3, options
-----------
under the Plan shall be granted in accordance with Section 5 to each member of
the Corporation's Board of Directors who is not an employee of the Corporation
(an "Outside Director"); provided that shares of the Corporation's Common Stock
remain available for grant hereunder in accordance with Section 4. An Outside
Director to whom an option is granted under the Plan shall be referred to
hereinafter as a "Grantee."
4. Shares Subject to Plan. The shares subject to the Plan shall be
----------------------
authorized but unissued or reacquired shares of the Corporation's Common Stock.
Subject to adjustment in accordance with the provisions of Section 6 of the
Plan, the maximum number of shares of Common Stock for which options may be
granted under the Plan shall be 50,000 and the initial adoption of the Plan by
the Board of Directors of the Corporation shall constitute a reservation of
50,000 authorized but unissued, or reacquired, shares of Common Stock for
issuance only upon the exercise of options granted under the Plan. In the event
that any outstanding option granted under the Plan for any reason expires or is
terminated prior to the end of the period during which options may be granted
under the Plan, the shares of Common Stock allocable to the unexercised portion
of such option may again be subject in whole or in part to any option granted
under the Plan.
5. Terms and Conditions of Options. Options granted pursuant to the Plan
-------------------------------
shall be evidenced by Stock Option Agreements in such form as shall comply with
and be subject to the following terms and conditions:
(a) Grant. On the date of approval of the Plan by the Board of Directors,
each Outside Director shall be granted an option to purchase 1,000 shares of the
Corporation's Common Stock, subject to adjustment as provided in Section 6, and
subject to approval of the Plan by the Corporation's stockholders at the 1996
annual meeting of the Corporation's stockholders ("Annual Meeting"). If the
stockholders of the Corporation fail to approve the Plan at the 1996 Annual
Meeting, the initial grant of options pursuant to the foregoing sentence shall
be null and void and no further options shall be granted under the Plan. If the
Plan is approved by the stockholders at the 1996 Annual Meeting, then each
Outside Director who is serving in such capacity as of the day following the
1997 Annual Meeting shall be granted an option to purchase 1,000 shares of the
Corporation's Common Stock, subject to adjustment as provided in Section 6. As
of the day following each subsequent Annual Meeting, each Outside Director who
is serving in such capacity as of such date shall be granted an option to
purchase 1,000 shares of the Corporation's Common Stock, subject to adjustment
as provided in Section 6. Each such day that options are to be granted under
the Plan is referred to hereinafter as a "Grant Date."
If on any Grant Date, shares of Common Stock are not available under this
Plan to grant to Outside Directors the full amount of a grant contemplated by
the immediately preceding paragraph, then each Outside Director shall receive an
option (a "Reduced Grant") to purchase shares of Common Stock in an amount equal
to the number of shares of Common Stock then available under the Plan divided by
the number of Outside Directors as of the applicable Grant Date. Fractional
shares shall be ignored and not granted.
If a Reduced Grant has been made and, thereafter, during the term of this
Plan, additional shares of Common Stock become available for grant (e.g.,
because of the forfeiture or lapse of an option), then each person who was an
Outside Director both on the Grant Date on which the Reduced Grant was made and
on the date additional shares of Common Stock become available (a "Continuing
Outside Director") shall receive an additional option to purchase shares of
Common Stock. The number of newly available shares shall be divided equally
among
B-1
<PAGE>
the options granted to the Continuing Outside Directors; provided, however, that
the aggregate number of shares of Common Stock subject to a Continuing Outside
Director's additional option plus any prior Reduced Grant to the Continuing
Outside Director on the applicable Grant Date shall not exceed 1,000 shares
(subject to adjustment pursuant to Section 6). If more than one Reduced Grant
has been made, available options shall be granted beginning with the earliest
such Grant Date.
(b) Option Price. The option price for each option granted under the Plan
shall be the Fair Market Value (as defined below) of the shares of Common Stock
subject to the option on the date of grant of the option. For purposes of the
Plan, the "Fair Market Value" of a share of Common Stock on a given date shall
mean the average of the high and low price of a share of Common Stock traded on
the New York Stock Exchange on such date, as reported in the composite
transactions quoted in The Wall Street Journal or, if no shares were traded on
such day, on the next preceding day on which shares were traded.
(c) Medium and Time of Payment. The option price shall be payable in full
upon the exercise of an option in cash, by check, in shares of Common Stock, or
in any combination thereof.
(d) Term. Each option granted under the Plan shall, to the extent not
previously exercised, terminate and expire on the date five (5) years after the
date of grant of the option, unless earlier terminated as provided hereinafter
in Section 5(g).
(e) Exercisability. Each option granted under this Plan shall be
immediately exercisable, in whole or in part. However, to avoid short-swing
profit liability under Section 16(b) of the Exchange Act, the Grantee should
wait at least six (6) months from the date of grant of the option before selling
the underlying shares.
(f) Method of Exercise. All options granted under the Plan shall be
exercised by an irrevocable written notice directed to the Secretary of the
Corporation at the Corporation's principal place of business. Such written
notice shall be accompanied by payment in full of the option price for the
shares for which such option is being exercised. The Corporation shall make
delivery of certificates representing the shares for which an option has been
exercised within a reasonable period of time; provided, however, that if any
law, regulation or agreement requires the Corporation to take any action with
respect to the shares for which an option has been exercised before the issuance
thereof, then the date of delivery of such shares shall be extended for the
period necessary to take such action. Certificates representing shares for
which options are exercised under the Plan may bear such restrictive legends as
may be necessary or desirable in order to comply with applicable federal and
state securities laws. Nothing contained in the Plan shall be construed to
require the Corporation to register any shares of Common Stock underlying
options granted under this Plan.
(g) Effect of Termination of Directorship or Death.
(i) Termination of Directorship. Upon termination of any Grantee's
---------------------------
membership on the Board of Directors of the Corporation for any reason
other than for cause or death, the options held by the Grantee under the
Plan shall terminate ninety (90) days following the date of termination of
the Grantee's membership on the Board or, if earlier, on the date of
expiration of the options as provided by Section 5(d) of the Plan. If the
Grantee exercises the options after termination of the Grantee's service on
the Board of Directors, the Grantee may exercise the options only with
respect to the shares that were otherwise exercisable on the date of
termination of the Grantees' service on the Board. Such exercise otherwise
shall be subject to the terms and conditions of the Plan. If the Grantee's
membership on the Board of Directors is terminated for cause, all options
granted to such Grantee shall expire upon such termination.
(ii) Death. In the event of the death of a Grantee, the Grantee's
-----
personal representatives, heirs or legatees (the "Grantee's Successors")
may exercise the options held by the Grantee on the date of death, upon
proof satisfactory to the Corporation of their authority. The Grantee's
Successors must exercise any such options within one (1) year after the
Grantee's death and in any event prior to the date on which the options
expire as provided by Section 5(d) of the Plan. Such exercise otherwise
shall be subject to the terms and conditions of the Plan.
B-2
<PAGE>
(h) Nonassignability of Option Rights. No option shall be assignable or
transferable by the Grantee except by will, by the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined in
Title I of the Employee Retirement Income Security Act of 1974 and the Internal
Revenue Code of 1986. During the lifetime of the Grantee, the option shall be
exercisable only by the Grantee.
(i) Rights as Stockholder. Neither the Grantee nor the Grantee's
Successors shall have rights as a stockholder of the Corporation with respect to
shares of Common Stock covered by the Grantee's option until the Grantee or the
Grantee's Successors become the holder of record of such shares.
(j) No Options after Ten Years. No options shall be granted except within
a period of ten (10) years after the effective date of the Plan.
6. Adjustments.
-----------
(a) If any change is made in the stock subject to the Plan, or subject to
any option granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or otherwise), the Plan and outstanding
options will be automatically and appropriately adjusted, including the maximum
number of shares subject to the Plan and the number of shares and price per
share of stock subject to outstanding options.
(b) In the event of: (i) a merger or consolidation in which the
Corporation is not the surviving corporation; (ii) a reverse merger in which the
Corporation is the surviving corporation but the shares of the Corporation's
common stock outstanding immediately preceding the merger are converted by
virtue of the merger into other property, whether in the form of securities,
cash other otherwise; or (iii) any other capital reorganization in which more
than fifty percent (50%) of the shares of the Corporation entitled to vote are
exchanged, then any surviving corporation shall assume any options outstanding
under the Plan or shall substitute similar options for those outstanding under
the Plan. If there is no surviving corporation, all outstanding options shall
expire.
7. Effective Date and Termination of Plan.
--------------------------------------
(a) Effective Date. The Plan shall become effective upon approval of the
same by the Board of Directors of the Corporation (November 14, 1995), subject
to approval of the Plan by the stockholders of the Corporation no later than the
first annual meeting of stockholders held after approval of the Plan by the
Board of Directors (the 1996 Annual Meeting).
(b) Termination. The Plan shall terminate ten (10) years after its
effective date, but the Board of Directors may terminate the Plan at any time
prior to such date. Termination of the Plan shall not alter or impair any of
the rights or obligations under any option theretofore granted under the Plan
unless the Grantee shall so consent.
8. No Obligation to Exercise Option. The granting of an option shall
--------------------------------
impose no obligation upon the Grantee to exercise such option.
9. Amendment. The Board of Directors of the Corporation by majority vote
---------
may amend the Plan; provided, however, that without the approval of the
stockholders of the Corporation, no such amendment shall change the provisions
of the Plan in such a manner so as to increase materially (within the meaning of
Rule l6b-3 under the Securities Exchange Act of l934, as amended) the benefits
accruing under the Plan, materially increase the number of securities that may
be issued under the Plan, or materially modify the requirements as to
eligibility for participation in the Plan.
The provisions of the Plan determining (i) the persons eligible to receive
grants of options, (ii) the timing of option grants, (iii) the number of shares
subject to options, (iv) the exercise price of options, (v) the periods during
which options are exercisable, and (vi) the dates on which options terminate,
may not be amended more than once every six months other than to comport with
changes in the Internal Revenue Code, the Employee Retirement Income Security
Act of 1974, or the rules thereunder.
B-3
<PAGE>
It is expressly contemplated that the Board may amend the Plan in any
respect that the Board deems necessary to cause the Plan to meet the
requirements of Rule 16b-3 (or any successor rule) under the Exchange Act and
otherwise to comport with the provisions of such Act and the applicable
regulations thereunder.
Any amendment to the Plan shall not, without the written consent of the
Grantee, affect such Grantee's rights under any option theretofore granted to
such Grantee.
B-4
<PAGE>
Exhibit C
AMENDMENT TO THE BYLAWS OF FUQUA ENTERPRISES, INC.
On April 9, 1996, pursuant to Article VII, Section 7.5 of Fuqua's Bylaws,
the Board of Directors of Fuqua amended Article VI, Indemnification, to be in
agreement with the proposed amendments to Fuqua's Restated Certificate of
Incorporation, subject to the approval of the stockholders at the Meeting on
June 1, 1996. The following is an excerpt from the resolution:
1. The Bylaws of the Corporation are hereby amended by striking Article
VI thereof in its entirety and substituting therefor the following:
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 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
C-1
<PAGE>
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.
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.
*************************************
2. Except as amended hereby, the Bylaws of the Corporation shall be and
remain in full force and effect as of the date hereof.
C-2
<PAGE>
Exhibit D
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.
D-1
<PAGE>
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.
D-2
<PAGE>
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.
D-3
<PAGE>
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.
D-4
<PAGE>
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 _____ day of June,
1996.
______________________________________
Lawrence P. Klamon
President and Chief Executive Officer
ATTEST:
________________________________________
Mildred H. Hutcheson
Corporate Secretary
D-5
<PAGE>
PLEASE FUQUA ENTERPRISES, INC.
MARK, PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS FOR THE ANNUAL
SIGN, MEETING ON JUNE 1, 1996
DATE AND
RETURN The undersigned hereby appoints J.B. Fuqua, J. Rex Fuqua and
THE Mildred H. Hutcheson, and each of them, his proxies with full
PROXY powers of substitution, to vote all shares of Common Stock of
CARD Fuqua Enterprises, Inc. ("Fuqua") owned by the undersigned at the
PROMPTLY Annual Meeting of Stockholders to be held at the offices of Fuqua,
USING One Atlantic Center, Suite 5000, 1201 W. Peachtree Street, N.W.,
THE Atlanta, Georgia, on June 1, 1996, at 9:30 a.m. local time, and at
ENCLOSED any adjournments thereof, solely on the terms of business as set
ENVELOPE forth in the Notice of Meeting.
Dated ______________________, 1996
----------------------------------
----------------------------------
Signature of Stockholder
THIS PROXY MUST BE SIGNED
EXACTLY AS NAME APPEARS HEREON
Executors, administrators, trust-
ees, etc. should give full title
as such. If the signer is a cor-
poration, please sign full corpo-
rate name by duly authorized of-
ficer.
(over)
<PAGE>
This proxy when properly executed will be voted in the manner directed herein
by the stockholder. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR THE
ELECTION OF NINE DIRECTORS, FOR THE APPROVAL OF THE 1995 LONG-TERM INCENTIVE
PLAN, THE 1995 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS, AND FOR THE APPROVAL OF
THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE NOMINEES AND ALL THE
PROPOSALS.
1. Election of Directors
Nominees: J.B. Fuqua, J. Rex Fuqua, Lawrence P. Klamon, W. Clay Hamner, Frank
W. Hulse III, Richard C. Larochelle, Gene J. Minotto, Clark L. Reed, Jr. and
D. Raymond Riddle.
[_] VOTE FOR all nominees listed above, except vote withheld from the
following nominees (if any).
------------------------------------------------------------------------------
[_] VOTE WITHHELD from all nominees.
<TABLE>
<S> <C> <C> <C>
2. Approval of the 1995 Long-Term Incentive Plan: [_] FOR [_] AGAINST [_] ABSTAIN
3. Approval of the 1995 Stock Option Plan for Outside Directors: [_] FOR [_] AGAINST [_] ABSTAIN
Approval of the Amended and Restated Certificate of Incorporation:
4. Update of Preferred Stock Authorization. [_] FOR [_] AGAINST [_] ABSTAIN
5. Indemnification Provisions. [_] FOR [_] AGAINST [_] ABSTAIN
6. Director Exculpation Provisions. [_] FOR [_] AGAINST [_] ABSTAIN
7. Elimination of Certain Interested Director and Officer Transaction [_] FOR [_] AGAINST [_] ABSTAIN
Provisions.
8. Elimination of Provision Regarding Ratification of Prior Acts. [_] FOR [_] AGAINST [_] ABSTAIN
9. House-Keeping. [_] FOR [_] AGAINST [_] ABSTAIN
</TABLE>
- --------------------------------------------------------------------------------
NO OTHER MATTERS MAY BE CONSIDERED OR ACTED UPON AT THE MEETING
