-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WwU2QSZup70+DtIw0E5sm5/Ku30sKh+uYCZmr7fr22n9aHNeMliYDtuj+dBYuSHz TlL2nF3tuf6jFUyT5Fb2/w== 0000950144-96-009306.txt : 19961224 0000950144-96-009306.hdr.sgml : 19961224 ACCESSION NUMBER: 0000950144-96-009306 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19961223 SROS: NASD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: LANCE INC CENTRAL INDEX KEY: 0000057528 STANDARD INDUSTRIAL CLASSIFICATION: COOKIES & CRACKERS [2052] IRS NUMBER: 560292920 STATE OF INCORPORATION: NC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-08551 FILM NUMBER: 96685236 BUSINESS ADDRESS: STREET 1: P O BOX 32368 STREET 2: POST OFFICE BOX 32368 CITY: CHARLOTTE STATE: NC ZIP: 28232 BUSINESS PHONE: 7045541421 MAIL ADDRESS: STREET 1: P O BOX 32368 CITY: CHARLOTTE STATE: NC ZIP: 28232 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: VAN EVERY NAN DAVIS CENTRAL INDEX KEY: 0001029491 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 6001 PELICAN BAY BOULEVARD CITY: NAPLES STATE: FL ZIP: 33963 BUSINESS PHONE: 7043667563 MAIL ADDRESS: STREET 1: 6001 PELICAN BAY BLVD CITY: NAPLES STATE: FL ZIP: 33963 SC 13D/A 1 LANCE, INC./NAN DAVIS VAN EVERY 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Rule 13d-101) Under the Securities Exchange Act of 1934 Amendment No. 1 LANCE, INC. -------------------------------------------- (Name of Issuer) $.83-1/3 PAR VALUE COMMON STOCK -------------------------------------------- (Title of Class of Securities) 514606 10 2 -------------------------------------------- (CUSIP Number) A. ZACHARY SMITH III 100 N. TRYON STREET, SUITE 4200 CHARLOTTE, NORTH CAROLINA 28202 (704) 331-7400 -------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) DECEMBER 12, 1996 -------------------------------------------- (Date of Event Which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box: [ ]. NOTE: This Amendment No. 1 amends and restates the Schedule 13D of Nan Davis Van Every dated August 10, 1990 pursuant to rule 13d-2(c). (Page 1 of 7) 2
- ---------------------------------- ----------------------------- CUSIP No. 514606 10 2 13D Page 2 of 7 Pages - ---------------------------------- ----------------------------- =================================================================================================================================== 1 NAME OF REPORTING PERSON Nan Davis Van Every S.S. or I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS - ----------------------------------------------------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - ----------------------------------------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - ----------------------------------------------------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* OO - ----------------------------------------------------------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [ ] - ----------------------------------------------------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION UNITED STATES OF AMERICA - ----------------------------------------------------------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF SHARES 111,840 BENEFICIALLY ------------------------------------------------------------------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH REPORTING 0 PERSON ------------------------------------------------------------------------------------------------------- WITH 9 SOLE DISPOSITIVE POWER 111,840 ------------------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 1,535,552 - ----------------------------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,647,392 - ----------------------------------------------------------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - ----------------------------------------------------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.5% - ----------------------------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN ====================================================================================================================================
* SEE INSTRUCTIONS BEFORE FILLING OUT! (Page 2 of 7) 3 ITEM 1. SECURITY AND ISSUER. This statement relates to the Common Stock, par value $.83-1/3 per share (the "Common Stock"), of Lance, Inc. (the "Issuer"). The principal executive offices of the Issuer are located at 8600 South Boulevard, Charlotte, North Carolina 28232. ITEM 2. IDENTITY AND BACKGROUND. (a)-(c) The name of the reporting person is Nan Davis Van Every. The residence address of Mrs. Van Every is 6001 Pelican Bay Boulevard, Naples, Florida 33963. Mrs. Van Every is not currently employed. (d) During the past five years, Mrs. Van Every has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the past five years, Mrs. Van Every has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. (f) Mrs. Van Every is a citizen of the United States of America. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Mrs. Van Every acquired 1,297,920 shares of the Common Stock (the "Acquired Shares") under the Will dated April 7, 1987 (the "Will") of her husband, Salem A. Van Every, Jr. who died on May 27, 1990 (the "Decedent") as the sole trustee under the marital trust (the "Marital Trust") created under the Will. Since Mrs. Van Every became the beneficial owner on June 29, 1990, upon her qualification as trustee of the Marital Trust, no funds or other consideration were used in the acquisition of the Acquired Shares. In addition, Mrs. Van Every also beneficially owns 353,772 shares of Common Stock (the "Other Shares"), of which 21,142 shares, taking into account stock splits and stock dividends, were given to her by the Decedent, with the balance purchased by her through the Issuer's dividend reinvestment plan, privately negotiated transactions or through brokers. Mrs. Van Every has used her personal funds in making such purchases. Mrs. Van Every beneficially owns 32,474 of these Other Shares in her capacity as trustee of several trusts (the "Family Trusts") established for the benefit of her children. On December 12, 1996, Mrs. Van Every transferred an aggregate of 1,535,552 shares of Common Stock (the "Trust Shares"), including all of the Acquired Shares and 237,632 of the Other Shares, to two separate irrevocable trusts (the "Irrevocable Trusts") with substantially the same terms except with different trustees. At this time, the source and amount of funds that Mrs. Van Every may use to fund future purchases of Common Stock, if any, is undetermined, although the funds for such future (Page 3 of 7) 4 purchases, if any, are likely to be the personal funds of Mrs. Van Every. Future purchases, if any, Mrs. Van Every may make under the Issuer's dividend reinvestment plan will be funded through the reinvestment of dividends or through personal funds of Mrs. Van Every. ITEM 4. PURPOSE OF TRANSACTION. Since Mrs. Van Every is the beneficial owner of the Acquired Shares not by purchase but by operation of law, she became such a beneficial owner without motive or purpose. Mrs. Van Every acquired beneficial ownership of the Other Shares either by gift without purpose or by purchase for investment. Mrs. Van Every intends to hold the Common Stock reported herein for investment, subject to the terms of the Irrevocable Trusts and the Family Trusts as described herein. Mrs. Van Every intends to evaluate the business and prospects of the Issuer and depending on her evaluation, other investment opportunities, market conditions and other factors as she may deem material, Mrs. Van Every may seek to acquire additional shares of the Common Stock in the open market or through the Issuer's dividend reinvestment plan, in private transactions or otherwise, or she may dispose of all or a portion of the shares of the Common Stock presently held or hereafter acquired. As the grantor of the Irrevocable Trusts, Mrs. Van Every retained a limited power of appointment under each Irrevocable Trust that grants her shared investment power to dispose or direct the disposition of the Trust Shares. She shares this dispositive power with the trustee of each Irrevocable Trust with respect to the Trust Shares held therein. Salem Lance Every, Mrs. Van Every's stepson, serves as trustee of one Irrevocable Trust which holds 1,297,920 of the Trust Shares. James D. Tomlinson, Mrs. Van Every's son, serves as trustee of the second Irrevocable Trust which holds 237,632 of the Trust Shares. Under the terms of each Irrevocable Trust the beneficial ownership of the Trust Shares may be transferred upon their respective dates of termination. Upon the death of Mrs. Van Every, the Irrevocable Trusts will terminate and their assets will be transferred to the 1992 Nan Davis Van Every Revocable Trust or, if such trust is not existing, to the estate of Mrs. Van Every. In addition, each Irrevocable Trust will terminate with respect to its respective assets, including the Trust Shares, after such assets have been held in the respective Irrevocable Trust for four months. Such assets will be transferred to the 1992 Nan Davis Van Every Revocable Trust or, if such trust is not existing, to Mrs. Van Every. Mrs. Van Every beneficially owns 31,000 shares of Common Stock subject to an option held by Salem Lance Van Every to acquire such shares. The option becomes exercisable on January 31, 1997. Except as set forth in this Item 4, Mrs. Van Every has no present plans or proposals that relate to or that would result in any of the actions specified in clauses (a) through (j) of Item 4 to Schedule 13D. (Page 4 of 7) 5 ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) The aggregate number of shares of the Common Stock beneficially owned by Mrs. Van Every pursuant to Rule 13d-3 of the Securities and Exchange Act of 1934 is 1,647,392, which constitutes approximately 5.5% of the outstanding shares of the Common Stock. (b) The 1,647,392 shares of Common Stock reported herein are beneficially owned by Mrs. Van Every as follows: (i) 111,840 shares of Common Stock are held either directly by Mrs. Van Every or in her capacity as trustee under the Family Trusts. Mrs. Van Every has the sole investment power to dispose or direct the disposition of these shares and she has the sole voting power to vote or direct the voting of these shares. (ii) 1,535,552 shares of Common Stock (the Trust Shares) are held in the Irrevocable Trusts. Under the terms of the Irrevocable Trusts, Mrs. Van Every has the shared investment power to dispose or direct the disposition of these shares. (c) Mrs. Van Every disposed of 4,300 shares of Common Stock by gift on December 9, 1996. In addition, she purchased 125 shares of the Common Stock on November 15, 1996 through the Issuer's dividend reinvestment plan for $18.09 per share. (d) No person other than Mrs. Van Every has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock beneficially owned by Mrs. Van Every, except as follows: (i) the trustee of each respective Irrevocable Trust has certain discretion to distribute for the benefit of Mrs. Van Every, during her lifetime, the net income and principal thereof, including dividends and proceeds from the sale of the Trust Shares, described in Item 5(b)(ii), under the terms of the Irrevocable Trusts. (ii) the beneficiaries under the Family Trusts have certain rights to receive dividends from, or the proceeds from the sale of, the shares of the Common Stock, described in Item 5(b)(i), held by such Family Trusts. (iii) Mrs. Van Every has pledged 48,366 shares of the Common Stock, described in Item 5(b)(i), to a bank as collateral for various loan obligations unrelated to any purchase of shares of the Common Stock. Mrs. Van Every has the power to direct the pledgee to sell such shares and use the proceeds to reduce the outstanding loan obligations. (e) This item is inapplicable and has been omitted. (Page 5 of 7) 6 ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. See Item 4 regarding (i) Mrs. Van Every's limited power of appointment to direct the disposition of the Trust Shares, (ii) the transfer of the Trust Shares upon termination of each Irrevocable Trust and (iii) certain shares held subject to an option agreement. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit A. Nan Davis Van Every Florida Intangible Tax Trust dated December 9, 1996. Exhibit B. Nan Davis Van Every Intangible Tax Trust dated December 6, 1996. Exhibit C. Letter Agreement dated July 22, 1996 between Nan D. Van Every and S. Lance Van Every. (Page 6 of 7) 7 After reasonable inquiry and to the best of the undersigned's knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. /s/ Nan Davis Van Every December 20, 1996 - ----------------------- Nan Davis Van Every (Page 7 of 7) EX-99.A 2 NAN DAVIS VAN EVERY FLORIDA INTANGIBLE TAX TRUST 1 EXHIBIT A NAN DAVIS VAN EVERY FLORIDA INTANGIBLE TAX TRUST THIS AGREEMENT, dated December 9, 1996 between NAN DAVIS VAN EVERY, of Naples, Florida (hereinafter called the "Grantor"), and SALEM LANCE VAN EVERY, of Charlotte, North Carolina (hereinafter called the "Trustee"), W I T N E S S E T H: The Grantor hereby delivers and assigns to the Trustee the property specified in Schedule A hereto annexed, the receipt of which is hereby acknowledged by the Trustee, which agrees to hold the same, in trust, together with any property added to the trust estate, as follows: Article I:Distribution of Trust Funds During the Grantor's Lifetime. A. Income and Principal Distributions. The Trustee shall pay or apply all or any part of the net income and principal of this trust to or for the benefit of the Grantor, during the Grantor's lifetime, that the Trustee considers advisable for the Grantor's maintenance in health and reasonable comfort, or support in the Grantor's accustomed manner of living. Any undistributed income shall be added to principal. The Trustee shall allocate all capital gains and/or losses to income. B. Trustee Power of Appointment. The Trustee may at any time, during the Grantor's lifetime, distribute all or any part of the trust principal to, or in trust for the benefit of the Grantor, upon such estates or conditions, in such manner, and at such time or times as the Trustee shall direct and appoint in writing specifically referring to and exercising this power; provided, however, that this power shall not be exercisable to any extent for the benefit of the Trustee, the Trustee's estate, the Trustee's creditors or the creditors of the Trustee's estate. C. Grantor's Limited Power of Appointment. The Grantor may at any time direct the distribution of all or any part of the trust principal to, or in trust for the benefit of, such person or persons, upon such estates or conditions, in such manner, and at such time or times as the Grantor shall direct and appoint, in writing, during the Grantor's lifetime or at the Grantor's death, specifically referring to and exercising this power; provided, however, that this power shall not be exercisable to any extent for the benefit of the Grantor, the Grantor's estate, the Grantor's creditors or the creditors of the Grantor's estate. Article II: Partial and Full Termination of Trust. Upon the first to occur of the following events, the Trustee shall (using the actual date of the receipt by the Trustee of each particular 1 2 asset as the controlling date with respect to each such particular assets in the case of a partial termination) distribute the particular asset received by the Trustee as hereinafter provided: A. Upon the death of the Grantor, the Trustee shall distribute any and all trust principal not effectively appointed pursuant to section C of Article I to the then acting Trustee of the Nan Davis Van Every Revocable Trust dated 4/1/92, as amended, to be added to the principal of such trust, or, if such trust is not then in existence, to the Personal Representative of the Grantor's estate, to be disposed of as part of the Grantor's estate. B. Upon the day occurring four (4) months after the actual date of the receipt of each particular asset received by the Trustee, the Trustee shall distribute each particular asset, which is then a part of the trust estate, to the then acting Trustee of the Nan Davis Van Every Revocable Trust dated 4/1/92, as amended, to be added to the principal of such trust, or, if such trust is not then in existence, to the Grantor. C. Notwithstanding the foregoing provisions of this Article, the Trustee shall retain the amount of assets initially listed on Schedule A attached hereto until the date of the Grantor's death. Article III: Appointment of Trustees. If the Grantor's son, SALEM LANCE VAN EVERY, ceases to act as Trustee, the Grantor's son, JAMES DAVIS TOMLINSON, currently of Raleigh, North Carolina, is appointed as Trustee, to act together with any other then acting Trustee. Any individual Trustee shall be considered removed at such time as such Trustee is unable to manage the Trustee's affairs. For purposes of this Agreement, an individual Trustee shall be considered to be unable to manage the Trustee's affairs if such individual is under a legal disability or by reason of mental illness or physical disability is unable to give prompt and intelligent consideration to financial matters. The determination as to the inability shall be made in writing by a physician who has examined such individual, and the Trustee may rely upon such written determination. Any individual Trustee may at any time appoint such Trustee's successor as Trustee, unless the foregoing provisions of this Agreement effectively provide for such Trustee's successor. Notwithstanding any provisions in this Agreement to the contrary, no individual who is a resident of the State of Florida, and no corporation doing business in, or qualified to do business in, the State of Florida may serve as Trustee of this Trust. 2 3 Any individual Trustee who is or becomes a resident of the State of Florida, or any corporate Trustee which does business in the State of Florida or becomes qualified to do business in the State of Florida, shall cease to act as a Trustee at such time. If at any time there is no Trustee and the foregoing provisions of this Agreement do not effectively provide for a successor Trustee, the Grantor may appoint one or more successor Trustees. The Grantor may not serve as Trustee. Any fiduciary is authorized to resign at any time without court approval. The resignation, appointment, or revocation of appointment may be made by the person authorized to take such action by delivery of an acknowledged instrument to the Trustee then acting and any Trustee to be appointed, or, if none, to a court having jurisdiction over the trust. Any appointment of a Trustee may be conditioned to commence or cease upon a future event and may be revoked or modified at any time before such future event has occurred. Unless otherwise expressly provided, any power to appoint a Trustee shall permit appointment of an individual, bank or trust company as such fiduciary, and shall be exercised by the parent (or, if none, the legal representative) of any minor and the legal representative of any incompetent person holding such power. Article IV: Administrative and Tax Provisions. A. Irrevocable Trust. This Agreement and any trust created hereunder shall be irrevocable and shall not be subject to alteration or amendment in any respect. B. Additions to Trust. Any person may add property to the trust estate by lifetime gift or by transfer taking effect at death, provided such property is acceptable to the Trustee. C. Situs of Trust Property. No Trustee shall invest in real property having a situs in the State of Florida. D. Requirement of Survival. No beneficiary shall be considered to have survived the event terminating any trust and be entitled to any trust funds on that event unless such beneficiary survives for at least thirty (30) days after that event. E. Distributions to Minors. If the Trustee is authorized or required to distribute trust funds to a beneficiary who is then a minor, and the Trustee does not believe that an immediate 3 4 distribution is in the beneficiary's best interests, it may instead distribute such property to any adult caring for the beneficiary or to the beneficiary's Guardian or Custodian under a Uniform Gifts to Minors Act or Uniform Transfers to Minors Act. In the alternative, the Trustee may hold and invest such property as a separate fund for such beneficiary, and accumulate income or pay or apply any part of the fund to or for the beneficiary's benefit from time to time, as it considers advisable. Any accumulated income shall be added to principal annually. When the beneficiary becomes an adult, the Trustee shall distribute the fund to the beneficiary. If the beneficiary dies before becoming an adult, the Trustee shall distribute the fund to the beneficiary's legal representative. F. Permissible Use of Trust Funds. Upon the death of the Grantor, the Trustee may in its discretion purchase property from the Grantor's estate, make loans to the Grantor's estate, and guarantee the obligations of the Grantor's estate and pledge trust property as security therefor upon whatever terms and in whatever manner and with whatever security the Trustee considers advisable. This provision shall not give either the Grantor or the Grantor's estate any right or authority over trust property. G. Governing Law. The validity, construction and administration of this Agreement and any trust hereunder shall be governed by the laws of Florida. H. Consideration of Other Resources of Beneficiaries. In exercising discretion to distribute trust funds to any beneficiary, the Trustee may (but shall not be required to) take into consideration any other resources reasonably available to such beneficiary. I. Informal Accountings. The Trustee may provide to the Grantor, or, after the Grantor's death, to each legally competent eligible income beneficiary and presumptive remainderman (or the parent or Guardian of the estate of any such minor or incompetent person), statements of trust transactions at such time and in such form as it considers advisable. If all such persons give written approval of the statement, it shall be final, binding and conclusive on all persons interested in the trust. J. Investment Counsel. The Trustee may employ investment counsel; consult with such counsel on any matters relating to the retention, sale, purchase, investment, or reinvestment of securities or other property; and pay such investment counsel reasonable compensation for its services in addition to the regular compensation of the Trustee. The Trustee may act upon or refrain from acting upon the advice of such investment counsel in whole or in part, and to the extent the Trustee follows the advice of such counsel the Trustee shall not be liable for any action taken, except in the case of willful misconduct. 4 5 Notwithstanding the foregoing provisions of this section J, no investment counsel which is a resident of the State of Florida, doing business in the State of Florida, or qualified to do business in the State of Florida, shall have the discretionary authority to make decisions relating to the retention, sale, purchase, investment or reinvestment of securities or other property. K. Trustee Relieved From Liability. No individual Trustee shall be liable for any mistake or error of judgment, or for any action taken or omitted, either by the Trustee or by any agent or attorney employed by the Trustee, or for any loss or depreciation in the value of the trust, except in the case of willful misconduct. L. Successor Trustee. No Trustee has a duty to examine the transactions of any prior Trustee. Each Trustee is responsible only for those assets which are actually delivered to it. M. Delegation. Any Trustee may delegate to the other Trustees the right to exercise any power (discretionary, administrative or otherwise), and may revoke the delegation at any time, by delivery of an acknowledged instrument to such other Trustees. N. Powers of Appointment. Any power of appointment created under this Agreement may be exercised only by an express reference to the power which includes the name of the Grantor. A person exercising a power of appointment may appoint trust funds outright or in trust. The choice of terms, Trustees and jurisdiction of any trust shall be entirely within the discretion of the person having the power of appointment, except to the extent otherwise expressly provided in this Agreement. No power of appointment shall be exercisable by a beneficiary over any property or its proceeds added to a trust by means of a disclaimer by such beneficiary. O. Management Powers of Trustee. Without limitation of the powers conferred upon it by law but subject to the foregoing terms of this Agreement, the Trustee is authorized: 1. To retain, acquire, or sell any property (including any discretionary common trust fund of any corporate fiduciary acting under this Agreement, covered and uncovered stock options, and investments in foreign securities), without regard to diversification and without being limited to the investments authorized for trust funds; (2) to exercise stock options; (3) to enter into agreements for the sale, merger, reorganization, dissolution or consolidation of any corporation or properties; (4) to manage, improve, repair, sell, mortgage, lease (including the power to lease for oil and gas), pledge, convey, option or exchange any property and take back purchase money mortgages thereon, without court order; (5) to make distributions in cash or in kind, or partly 5 6 in each, and, in the discretion of such fiduciaries, to allocate particular assets or portions thereof to any one or more beneficiaries, provided that such property shall be valued for purposes of distribution at its value on the date of distribution; (6) to maintain custody or brokerage accounts (including margin accounts) and to register securities in the name of a nominee; (7) to compromise and settle claims (including those relating to taxes) without court order; (8) to borrow funds from any person or corporation (including a Trustee) and pledge or mortgage trust assets to secure such loans; (9) to extend, renew or renegotiate the Grantor's loans or guarantees; (10) to employ attorneys, accountants, investment counsel, custodians and brokers to assist in the administration of trust property; (11) to vote and give proxies to vote shares of stock; (12) to make joint investments in property, real or personal; (13) to divide any trust into separate trusts; and (14) if there is more than one trust established under this Agreement, to administer such trusts as a single fund. Article V: Identification of Trust. This Trust Agreement may be referred to as the "Nan Davis Van Every Florida Intangible Tax Trust dated 12/9/96." IN WITNESS WHEREOF, NAN DAVIS VAN EVERY, the Grantor, has hereunto set the Grantor's hand and seal as of the 9th day of December, 1996. s/Nan Davis Van Every ----------------------- NAN DAVIS VAN EVERY Grantor SIGNED, SEALED, PUBLISHED and DECLARED by NAN DAVIS VAN EVERY, the Grantor, as and for the Nan Davis Van Every Florida Intangible Tax Trust dated 12/9/96, in the presence of us and each of us, who, at the Grantor's request, in the Grantor's presence and in the presence of each other, have hereunto subscribed our names as witnesses on the day and in the year first above written. s/Physis S. Johnson of 6501 Morrison Blvd. - ----------------------------- ------------------------------- Signature of Witness #1 Charlotte, NC 28211 as to Granter ------------------------------- Address of Witness #1 s/Sandra K. Jarvis of 6501 Morrison Blvd. - ----------------------------- ------------------------------- Signature of Witness #2 Charlotte, NC 28211 as to Grantor ------------------------------- Address of Witness #2 STATE OF NORTH CAROLINA ) ) Ss: COUNTY OF MECKLENBURG ) 6 7 The foregoing instrument was acknowledged before me this 9th day of December, 1996 by NAN DAVIS VAN EVERY, who is personally known to me or who has produced a driver's license as identification. s/Cynthia McKennie -------------------------------------- Notary Public My commission expires: 8/5/2001 IN WITNESS WHEREOF, SALEM LANCE VAN EVERY the Trustee,has hereunto set the Trustee's hand and seal as of the 9th day of December, 1996. s/Salem Lance Van Every -------------------------------------- SALEM LANCE VAN EVERY Trustee SIGNED AND SEALED by SALEM LANCE VAN EVERY as Trustee, as and for the Nan Davis Van Every Florida Intangible Tax Trust dated 12/9/96 in the presence of us and each of us, who, at the Trustee's request, in the Trustee's presence and in the presence of each other, have hereunto subscribed our names as witnesses on this 9 day of December, 1996. s/Physis S. Johnson of 6501 Morrison Blvd. - ------------------------------ ------------------------------- Signature of Witness #1 Charlotte, NC 28211 as to Granter ------------------------------- Address of Witness #1 s/Sandra K. Jarvis of 6501 Morrison Blvd. - ------------------------------ ------------------------------- Signature of Witness #2 Charlotte, NC 28211 as to Grantor ------------------------------- Address of Witness #2 STATE OF NORTH CAROLINA ) ) Ss: COUNTY OF MECKLENBURG ) The foregoing instrument was acknowledged before me this 9 day of December, 1996, by SALEM LANCE VAN EVERY who is personally known to me or who has produced a driver's license as identification. s/Cynthia McKennie ------------------------------------------ Notary Public My commission expires: 8/5/2001 ------------- 7 8 SCHEDULE A FIVE DOLLARS..................................................................$5.00
8 EX-99.B 3 NAN DAVIS VAN EVERY INTANGIBLE TAX TRUST 1 EXHIBIT B NAN DAVIS VAN EVERY INTANGIBLE TAX TRUST THIS AGREEMENT, dated December 6, 1996 between NAN DAVIS VAN EVERY, of Naples, Florida (hereinafter called the "Grantor"), and JAMES DAVIS TOMLINSON, of Raleigh, North Carolina (hereinafter called the "Trustee"), W I T N E S S E T H: The Grantor hereby delivers and assigns to the Trustee the property specified in Schedule A hereto annexed, the receipt of which is hereby acknowledged by the Trustee, which agrees to hold the same, in trust, together with any property added to the trust estate, as follows: Article I:Distribution of Trust Funds During the Grantor's Lifetime. A. Income and Principal Distributions. The Trustee shall pay or apply all or any part of the net income and principal of this trust to or for the benefit of the Grantor, during the Grantor's lifetime, that the Trustee considers advisable for the Grantor's maintenance in health and reasonable comfort, or support in the Grantor's accustomed manner of living. Any undistributed income shall be added to principal. The Trustee shall allocate all capital gains and/or losses to income. B. Trustee Power of Appointment. The Trustee may at any time, during the Grantor's lifetime, distribute all or any part of the trust principal to, or in trust for the benefit of the Grantor, upon such estates or conditions, in such manner, and at such time or times as the Trustee shall direct and appoint in writing specifically referring to and exercising this power; provided, however, that this power shall not be exercisable to any extent for the benefit of the Trustee, the Trustee's estate, the Trustee's creditors or the creditors of the Trustee's estate. C. Grantor's Limited Power of Appointment. The Grantor may at any time direct the distribution of all or any part of the trust principal to, or in trust for the benefit of, such person or persons, upon such estates or conditions, in such manner, and at such time or times as the Grantor shall direct and appoint, in writing, during the Grantor's lifetime or at the Grantor's death, specifically referring to and exercising this power; provided, however, that this power shall not be exercisable to any extent for the benefit of the Grantor, the Grantor's estate, the Grantor's creditors or the creditors of the Grantor's estate. Article II: Partial and Full Termination of Trust. Upon the first to occur of the following events, the Trustee shall (using the actual date of the receipt by the Trustee of each particular 1 2 asset as the controlling date with respect to each such particular assets in the case of a partial termination) distribute the particular asset received by the Trustee as hereinafter provided: A. Upon the death of the Grantor, the Trustee shall distribute any and all trust principal not effectively appointed pursuant to section C of Article I to the then acting Trustee of the Nan Davis Van Every Revocable Trust dated 4/1/92, as amended, to be added to the principal of such trust, or, if such trust is not then in existence, to the Personal Representative of the Grantor's estate, to be disposed of as part of the Grantor's estate. B. Upon the day occurring four (4) months after the actual date of the receipt of each particular asset received by the Trustee, the Trustee shall distribute each particular asset, which is then a part of the trust estate, to the then acting Trustee of the Nan Davis Van Every Revocable Trust dated 4/1/92, as amended, to be added to the principal of such trust, or, if such trust is not then in existence, to the Grantor. C. Notwithstanding the foregoing provisions of this Article, the Trustee shall retain the amount of assets initially listed on Schedule A attached hereto until the date of the Grantor's death. Article III: Appointment of Trustees. If the Grantor's son, JAMES DAVIS TOMLINSON, ceases to act as Trustee, the Grantor's son, WORTH EVAN TOMLINSON, JR., currently of North Wilkesboro, North Carolina, is appointed as Trustee, to act together with any other then acting Trustee. Any individual Trustee shall be considered removed at such time as such Trustee is unable to manage the Trustee's affairs. For purposes of this Agreement, an individual Trustee shall be considered to be unable to manage the Trustee's affairs if such individual is under a legal disability or by reason of mental illness or physical disability is unable to give prompt and intelligent consideration to financial matters. The determination as to the inability shall be made in writing by a physician who has examined such individual, and the Trustee may rely upon such written determination. Any individual Trustee may at any time appoint such Trustee's successor as Trustee, unless the foregoing provisions of this Agreement effectively provide for such Trustee's successor. Notwithstanding any provisions in this Agreement to the contrary, no individual who is a resident of the State of Florida, and no corporation doing business in, or qualified to do business in, the State of Florida may serve as Trustee of this Trust. 2 3 Any individual Trustee who is or becomes a resident of the State of Florida, or any corporate Trustee which does business in the State of Florida or becomes qualified to do business in the State of Florida, shall cease to act as a Trustee at such time. If at any time there is no Trustee and the foregoing provisions of this Agreement do not effectively provide for a successor Trustee, the Grantor may appoint one or more successor Trustees. The Grantor may not serve as Trustee. Any fiduciary is authorized to resign at any time without court approval. The resignation, appointment, or revocation of appointment may be made by the person authorized to take such action by delivery of an acknowledged instrument to the Trustee then acting and any Trustee to be appointed, or, if none, to a court having jurisdiction over the trust. Any appointment of a Trustee may be conditioned to commence or cease upon a future event and may be revoked or modified at any time before such future event has occurred. Unless otherwise expressly provided, any power to appoint a Trustee shall permit appointment of an individual, bank or trust company as such fiduciary, and shall be exercised by the parent (or, if none, the legal representative) of any minor and the legal representative of any incompetent person holding such power. Article IV: Administrative and Tax Provisions. A. Irrevocable Trust. This Agreement and any trust created hereunder shall be irrevocable and shall not be subject to alteration or amendment in any respect. B. Additions to Trust. Any person may add property to the trust estate by lifetime gift or by transfer taking effect at death, provided such property is acceptable to the Trustee. C. Situs of Trust Property. No Trustee shall invest in real property having a situs in the State of Florida. D. Requirement of Survival. No beneficiary shall be considered to have survived the event terminating any trust and be entitled to any trust funds on that event unless such beneficiary survives for at least thirty (30) days after that event. E. Distributions to Minors. If the Trustee is authorized or required to distribute trust funds to a beneficiary who is then a minor, and the Trustee does not believe that an immediate 3 4 distribution is in the beneficiary's best interests, it may instead distribute such property to any adult caring for the beneficiary or to the beneficiary's Guardian or Custodian under a Uniform Gifts to Minors Act or Uniform Transfers to Minors Act. In the alternative, the Trustee may hold and invest such property as a separate fund for such beneficiary, and accumulate income or pay or apply any part of the fund to or for the beneficiary's benefit from time to time, as it considers advisable. Any accumulated income shall be added to principal annually. When the beneficiary becomes an adult, the Trustee shall distribute the fund to the beneficiary. If the beneficiary dies before becoming an adult, the Trustee shall distribute the fund to the beneficiary's legal representative. F. Permissible Use of Trust Funds. Upon the death of the Grantor, the Trustee may in its discretion purchase property from the Grantor's estate, make loans to the Grantor's estate, and guarantee the obligations of the Grantor's estate and pledge trust property as security therefor upon whatever terms and in whatever manner and with whatever security the Trustee considers advisable. This provision shall not give either the Grantor or the Grantor's estate any right or authority over trust property. G. Governing Law. The validity, construction and administration of this Agreement and any trust hereunder shall be governed by the laws of Florida. H. Consideration of Other Resources of Beneficiaries. In exercising discretion to distribute trust funds to any beneficiary, the Trustee may (but shall not be required to) take into consideration any other resources reasonably available to such beneficiary. I. Informal Accountings. The Trustee may provide to the Grantor, or, after the Grantor's death, to each legally competent eligible income beneficiary and presumptive remainderman (or the parent or Guardian of the estate of any such minor or incompetent person), statements of trust transactions at such time and in such form as it considers advisable. If all such persons give written approval of the statement, it shall be final, binding and conclusive on all persons interested in the trust. J. Investment Counsel. The Trustee may employ investment counsel; consult with such counsel on any matters relating to the retention, sale, purchase, investment, or reinvestment of securities or other property; and pay such investment counsel reasonable compensation for its services in addition to the regular compensation of the Trustee. The Trustee may act upon or refrain from acting upon the advice of such investment counsel in whole or in part, and to the extent the Trustee follows the advice of such counsel the Trustee shall not be liable for any action taken, except in the case of willful misconduct. 4 5 Notwithstanding the foregoing provisions of this section J, no investment counsel which is a resident of the State of Florida, doing business in the State of Florida, or qualified to do business in the State of Florida, shall have the discretionary authority to make decisions relating to the retention, sale, purchase, investment or reinvestment of securities or other property. K. Trustee Relieved From Liability. No individual Trustee shall be liable for any mistake or error of judgment, or for any action taken or omitted, either by the Trustee or by any agent or attorney employed by the Trustee, or for any loss or depreciation in the value of the trust, except in the case of willful misconduct. L. Successor Trustee. No Trustee has a duty to examine the transactions of any prior Trustee. Each Trustee is responsible only for those assets which are actually delivered to it. M. Delegation. Any Trustee may delegate to the other Trustees the right to exercise any power (discretionary, administrative or otherwise), and may revoke the delegation at any time, by delivery of an acknowledged instrument to such other Trustees. N. Powers of Appointment. Any power of appointment created under this Agreement may be exercised only by an express reference to the power which includes the name of the Grantor. A person exercising a power of appointment may appoint trust funds outright or in trust. The choice of terms, Trustees and jurisdiction of any trust shall be entirely within the discretion of the person having the power of appointment, except to the extent otherwise expressly provided in this Agreement. No power of appointment shall be exercisable by a beneficiary over any property or its proceeds added to a trust by means of a disclaimer by such beneficiary. O. Management Powers of Trustee. Without limitation of the powers conferred upon it by law but subject to the foregoing terms of this Agreement, the Trustee is authorized: 1. To retain, acquire, or sell any property (including any discretionary common trust fund of any corporate fiduciary acting under this Agreement, covered and uncovered stock options, and investments in foreign securities), without regard to diversification and without being limited to the investments authorized for trust funds; (2) to exercise stock options; (3) to enter into agreements for the sale, merger, reorganization, dissolution or consolidation of any corporation or properties; (4) to manage, improve, repair, sell, mortgage, lease (including the power to lease for oil and gas), pledge, convey, option or exchange any property and take back purchase money mortgages thereon, without court order; (5) to make distributions in cash or in kind, or partly 5 6 in each, and, in the discretion of such fiduciaries, to allocate particular assets or portions thereof to any one or more beneficiaries, provided that such property shall be valued for purposes of distribution at its value on the date of distribution; (6) to maintain custody or brokerage accounts (including margin accounts) and to register securities in the name of a nominee; (7) to compromise and settle claims (including those relating to taxes) without court order; (8) to borrow funds from any person or corporation (including a Trustee) and pledge or mortgage trust assets to secure such loans; (9) to extend, renew or renegotiate the Grantor's loans or guarantees; (10) to employ attorneys, accountants, investment counsel, custodians and brokers to assist in the administration of trust property; (11) to vote and give proxies to vote shares of stock; (12) to make joint investments in property, real or personal; (13) to divide any trust into separate trusts; and (14) if there is more than one trust established under this Agreement, to administer such trusts as a single fund. Article V: Identification of Trust. This Trust Agreement may be referred to as the "Nan Davis Van Every Intangible Tax Trust dated 12/6/96." IN WITNESS WHEREOF, NAN DAVIS VAN EVERY, the Grantor, has hereunto set the Grantor's hand and seal as of the 6th day of December, 1996. S/Nan Davis Van Every ---------------------------- NAN DAVIS VAN EVERY Grantor SIGNED, SEALED, PUBLISHED and DECLARED by NAN DAVIS VAN EVERY, the Grantor, as and for the Nan Davis Van Every Intangible Tax Trust dated 12/6/96, in the presence of us and each of us, who, at the Grantor's request, in the Grantor's presence and in the presence of each other, have hereunto subscribed our names as witnesses on the day and in the year first above written. s/Kathryn K. Willis of 6501 Morrison Blvd. - ------------------------------- ------------------------------ Signature of Witness #1 Charlotte, NC 28211 as to Granter ------------------------------ Address of Witness #1 s/Rolanda D. Rhodes of 6501 Morrison Blvd. - ------------------------------- ------------------------------ Signature of Witness #2 Charlotte, NC 28211 as to Grantor ------------------------------ Address of Witness #2 STATE OF NORTH CAROLINA ) ) Ss: COUNTY OF MECKLENBURG ) 6 7 The foregoing instrument was acknowledged before me this 6th day of December, 1996 by NAN DAVIS VAN EVERY, who is personally known to me or who has produced a driver's license as identification. s/Cynthia McKennie ------------------------------------ Notary Public My commission expires: 8/5/2001 ------------ IN WITNESS WHEREOF, JAMES DAVIS TOMLINSON, the Trustee,has hereunto set the Trustee's hand and seal as of the 9th day of December, 1996. s/James Davis Tomlinson ------------------------------------ JAMES DAVIS TOMLINSON Trustee SIGNED AND SEALED by JAMES DAVIS TOMLINSON, as Trustee, as and for the Nan Davis Van Every Intangible Tax Trust dated 12/6/96 in the presence of us and each of us, who, at the Trustee's request, in the Trustee's presence and in the presence of each other, have hereunto subscribed our names as witnesses on this 9 day of December, 1996. s/ Witness #1 of 321 Oberlin Rd., Raleigh, NC 27605 - ----------------------------- ----------------------------------- Signature of Witness #1 Address of Witness #1 as to Trustee s/Carol Allred of 321 Oberlin Rd., Raleigh, NC 27605 - ----------------------------- ----------------------------------- Signature of Witness #2 Address of Witness #2 as to Grantor STATE OF NORTH CAROLINA ) ) Ss: COUNTY OF WAKE ) The foregoing instrument was acknowledged before me this 9 day of December, 1996, by JAMES DAVIS TOMLINSON, who is personally known to me or who has produced a driver's license as identification. s/ Notary Public ---------------------------------- Notary Public Commission Expires: 4-13-97 7 8 SCHEDULE A FIVE DOLLARS...................................................................$5.00
8 EX-99.C 4 LETTER AGREEMENT DATED 7/22/96 1 EXHIBIT C July 22, 1996 Mr. S. Lance Van Every 8913 Winged Bourne Charlotte, North Carolina 28210 Dear Lance: I hereby agree to purchase from S. Lance Van Every (Lance) 31,000 shares of the $.83-1/3 par value Common Stock (the Shares) of Lance, Inc. (the Company) at a purchase price per share equal to the lowest price at which the Common Stock of the Company shall have sold, regular way, on the NASDAQ Stock Market on the date hereof with the aggregate purchase price to be paid on July 24, 1996 against receipt of the Shares. I understand that 1,000 of the Shares are shares received as gifts by Lance in 1993 and 1994 and the remainder are shares received as a gift from Lance's father. I represent and covenant that the Shares to be purchased by me pursuant hereto are being purchased for investment only and not with a view to the resale or distribution thereof, and I agree to indemnify and hold harmless the Company from any and all liability for any violation of the United States Securities Act of 1933, as amended (the 1933 Act), which may be held or found by any court of competent jurisdiction to be due, directly or indirectly, in whole or in part, to any intent or design on my part to take any of the Shares with a view to the distribution thereof. I understand that the Shares being purchased by me constitute "restricted securities" as defined in Rule 144 under the 1933 Act and I agree that the Company will lodge with any stock transfer agent for the Company, or note on its stock transfer records, a stop transfer order against the Shares and that there shall be imprinted upon the certificate or certificates issued to me evidencing the Shares a legend reflecting such restriction as follows: These securities have not been registered under the Securities Act of 1933. They have been acquired for investment and may not be sold or otherwise disposed of in the absence of an effective registration statement under the Securities Act of 1933 or an opinion of counsel satisfactory to the Company and presented to it prior to any proposed sale or other disposition that registration is not required under said Act. 2 I understand that the Shares being purchased by me will not be registered under the 1933 Act and must be held indefinitely unless subsequently registered or an exemption from such registration is available, provided, that the Shares may be sold by me in conjunction with the sale of all or substantially all of the outstanding shares of Common Stock of the Company without such registration. I further acknowledge that the Company has made and makes no undertaking to either register the Shares or to take any action to comply with any exemption from registration that might be available or to supply any information to facilitate sales of the Shares. I further agree, in consideration of Lance selling the Shares to me rather than on the open market and the payment by him to me of $1,000, that Lance may repurchase all but not less than all of the Shares from me for cash at the purchase price per share provided above plus $1 per share at any time between January 31, 1997 and July 21, 2006, with the purchase price and number of shares subject to adjustment for stock dividends, stock splits and similar recapitalizations of the Company. The representations and understandings contained in the third, fourth and fifth paragraphs are directed to and may be relied upon by the Company and by Lance. Very truly yours, S/Nan D. Van Every Nan D. Van Every cc: Lance, Inc. Post Office Box 32368 Charlotte, NC 28232 2 -----END PRIVACY-ENHANCED MESSAGE-----