-----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, WCGUXitfdS46ATFySkYss1ZXQp+swGKx4EPGFvtCbjtPNAsxKYln7O84ja7mxOyk Dc38xKJAstdLar2wCs8mlA== 0000950172-96-000148.txt : 19960329 0000950172-96-000148.hdr.sgml : 19960329 ACCESSION NUMBER: 0000950172-96-000148 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19960327 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAVANNAH FOODS & INDUSTRIES INC CENTRAL INDEX KEY: 0000086941 STANDARD INDUSTRIAL CLASSIFICATION: SUGAR & CONFECTIONERY PRODUCTS [2060] IRS NUMBER: 581089367 STATE OF INCORPORATION: DE FISCAL YEAR END: 1003 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-02005 FILM NUMBER: 96539431 BUSINESS ADDRESS: STREET 1: P O BOX 339 CITY: SAVANNAH STATE: GA ZIP: 31402 BUSINESS PHONE: 9122341261 S-3 1 As filed with the Securities and Exchange Commission on March 27, 1996 Registration No. 333-____ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 __________________________ FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 __________________ SAVANNAH FOODS & INDUSTRIES, INC. (Exact name of registrant as specified in its charter) Delaware 58-1089367 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) P.O. Box 339 Savannah, Georgia 31402-0339 (912) 234-1261 (Address, including zip code, and telephone number including area code, of registrant's executive offices) ___________________________ Gregory H. Smith Senior Vice President, Chief Financial Officer and Treasurer Savannah Foods & Industries, Inc. P.O. Box 339 Savannah, Georgia 31402 (912) 234-1261 (Name, address, including zip code, and telephone number, including area code, of agent for service) ___________________________ With a copy to: Daniel E. Stoller Skadden, Arps, Slate, Meagher & Flom 919 Third Avenue New York, New York 10022 (212) 735-3000 ___________________________ Approximate date of commencement of proposed sale to the public: As soon as practicable after the registration statement becomes effective. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ( ) If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. (X) CALCULATION OF REGISTRATION FEE Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of to be to be Price per Offering Registration Registered Registered Share (1) Price (1) Fee Common 2,500,000 $10.75 $26,875,000 $9,267.24 Stock, shares $0.25 par value (1) The amounts are based upon the average of the high and low sale prices for the Common Stock as reported on the New York Stock Exchange on March 25, 1996, and are used solely for the purpose of computing the registration fee pursuant to Rule 457(c) under the Securities Act of 1933. ______________________ The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. PROSPECTUS 2,500,000 SHARES SAVANNAH FOODS & INDUSTRIES, INC. COMMON STOCK This Prospectus relates to up to 2,500,000 shares (the "Shares") of the common stock, par value $0.25 per share (the "Common Stock"), of Savannah Foods & Industries, Inc., a Delaware corporation (the "Company"), that may be sold from time to time by the trustee of the Savannah Foods & Industries, Inc. Benefit Trust (the "Benefit Trust"). The Common Stock offered hereby may be sold from time to time in one or more of the following transactions: (a) to underwriters who will acquire the shares for their own account and resell them in one or more transactions, including negotiated transactions, at a fixed price or at varying prices determined at the time of sale; any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time; (b) through brokers or dealers, acting as principal or agent, in transactions (which may involve block transactions) on the New York Stock Exchange, in special offerings, exchange distributions pursuant to the rules of the applicable exchanges or in the over-the-counter market, or otherwise, at market prices prevailing at the time of sale, at prices related to such prevailing market prices, at negotiated prices or at fixed prices; or (c) directly through brokers or agents in private sales at negotiated prices. Underwriters participating in any offering may receive underwriting discounts and commissions and discounts or concessions may be allowed or reallowed or paid to dealers, and brokers or agents participating in such transactions may receive brokerage or agent's commissions or fees. To the extent required, the aggregate amount of Common Stock being offered and the terms of the offering, the names of any such agents, dealers or underwriters and any applicable commission with respect to a particular offer will be set forth in an accompanying Prospectus Supplement. The aggregate proceeds to the Benefit Trust from the sale of the Common Stock will be the selling price of the Common Stock. The Company will pay all of the expenses of this offering, including commissions and discounts of agents, dealers or underwriters. Such expenses, excluding commissions and discounts, are estimated to be approximately $51,767. None of the proceeds from the sale of the Common Stock offered hereby will be received for the benefit of, or retained by, the Company. The Company, or one of its subsidiaries, as the case may be, has agreed to indemnify the trustee of the Benefit Trust against certain liabilities that may arise in connection with their performance of duties pursuant to the Benefit Trust. See "Plan of Distribution". The trustee of the Benefit Trust, the Benefit Trust and any agents, dealers or underwriters that participate in the distribution of the Common Stock offered hereby may be deemed to be "underwriters" within the meaning of the Securities Act of 1933, as amended (the "Securities Act"), and any commissions received by them and any profit on the resale of the Common Stock purchased by them may be deemed underwriting commissions or discounts under the Securities Act. SEE "RISK FACTORS" FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED HEREBY. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is , 1996 AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements, and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements, and other information filed by the Company can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549; as well as at the Regional Offices of the Commission at 7 World Trade Center, New York, New York 10048; and 500 West Madison Street, Chicago, Illinois 60661. Copies of such material can be obtained (at prescribed rates) from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The Common Stock is listed on the New York Stock Exchange. Reports, proxy statements, and other information concerning the Company can be inspected at the office of such Exchange, located at 20 Broad Street, New York, New York 10005. This Prospectus constitutes a part of a Registration Statement filed by the Company with the Commission under the Securities Act. This Prospectus omits certain of the information contained in the Registration Statement, and reference is hereby made to the Registration Statement and related exhibits for further information with respect to the Company and the Shares offered hereby. Any statements contained herein concerning the provisions of any document are not necessarily complete, and, in each instance, reference is made to the copy of such document filed as an exhibit to the Registration Statement or otherwise filed with the Commission. Each such statement is qualified in its entirety by such reference. The Company is incorporated under the laws of Delaware. Its principal executive offices are located at 2 East Bryan Street, Savannah, Georgia 31401 (telephone (912) 234-1261). INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed with the Commission pursuant to the Exchange Act are incorporated herein by reference and shall be deemed to be a part hereof: 1. Annual Report on Form 10-K for the fiscal year ended October 1, 1995. 2. Proxy Statement dated January 11, 1996, relating to the Company's 1996 Annual Meeting of Stockholders. 3. Quarterly Report on Form 10-Q for the period ended December 31, 1995. All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of the offering of the Shares covered by this Prospectus are deemed to be incorporated by reference herein and shall be a part hereof from their respective dates of filing. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained in this Prospectus or in any other subsequently filed document that also is incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will provide, without charge, to each person, including any beneficial owner, to whom a copy of this Prospectus is delivered, upon written or oral request, a copy of any and all of the information that has been incorporated by reference in this Prospectus, but not including exhibits to such information unless such exhibits are specifically incorporated by reference into the information that this Prospectus incorporates. Requests for copies of such information should be directed to Vice President - Administration, Savannah Foods & Industries, Inc., Post Office Box 339, Savannah, Georgia 31402-0339. THE COMPANY The Company was incorporated in Delaware on February 19, 1969, as the successor to Savannah Sugar Refining Corporation, which was originally incorporated in New York in 1916. The Company and its subsidiaries collectively comprise one business segment and are engaged in the production, marketing, and distribution of food products, primarily refined sugar. Effective October 2, 1995, the first day of fiscal 1996, the Company reorganized the business structure of several of its subsidiaries. This reorganization did not affect the overall business of the Company, but was done primarily for internal management purposes. The Company and its wholly-owned subsidiaries, Savannah Foods Industrial, Inc. and Dixie Crystals Brands, Inc., are engaged in the refining and marketing of a complete line of bulk and liquid sugars and sugar products, including edible molasses, liquid animal feeds and corn syrup blends. They also produce and market a complete line of packaged sugars and portion control items consisting of sugar envelopes, artificial sweeteners, salt, pepper, non-dairy creamer, and certain other products. Industrial and grocery products are marketed primarily in the southeastern portion of the United States, Louisiana, and Texas, but are also widely distributed into other states generally east of the Mississippi and south of New England. Foodservice products are marketed throughout the United States. Products are marketed under the trade names Dixie Crystals, Colonial, Evercane, and Savannah Gold, but are also sold under the Company's other controlled labels and under customers' private label brands. The Company's saccharin-based sweetener is marketed under the trade name Sweet Thing and its aspartame- based sweetener is marketed under the trade name Sweet Thing II. These products are marketed both by means of direct sales and through brokers and are primarily distributed directly to the customer by common carrier truck or railcar. Michigan Sugar Company, a wholly-owned subsidiary of the Company, and its wholly-owned subsidiary, Great Lakes Sugar Company, are engaged in the processing of sugar beets into refined sugar and the production of beet pulp and molasses. The refined sugar is marketed primarily in the states of Michigan and Ohio, but is also distributed in the midwestern and eastern parts of the United States. Packaged sugar is marketed under the trade name PIONEER , but is also sold under customers' private label brands. These products are marketed both by means of direct sales and through brokers and are primarily distributed directly to the customer by common carrier truck or railcar. Most of the beet pulp is pelletized and sold for export. The balance is sold in the domestic market. The majority of the molasses is sold to the Company's beet molasses desugarization facility for further processing to recover additional sugar. King Packaging Company, Inc., a wholly-owned subsidiary of Dixie Crystals Brands, Inc., packs custom made meal kits for the food service industry and provides complementary products to the portion control products manufactured at the Company's other locations. These products are marketed to the food service trade throughout the United States both by means of direct sales and through brokers and are primarily shipped directly to customers by common carrier truck. Raceland Sugars, Inc., a wholly-owned subsidiary of Savannah Foods Industrial, Inc., operates a raw sugar mill and is engaged in the business of producing raw sugar which is marketed in the Louisiana area. Additionally, the by-products, molasses and bagasse, are currently sold in the domestic market. RISK FACTORS The Company's business and results of operations are substantially affected by market factors, principally the domestic prices for refined sugar and raw sugar cane. These market factors are influenced by a variety of forces, including weather conditions, competition, and United States farm and trade policies. The principal legislation presently affecting the domestic sugar industry is the Food, Agriculture, Conservation and Trade Act (the "Act"), which became effective October 1, 1991, and governs the sugar price support program for sugar cane and sugar beets. The domestic marketplace demands approximately 9.5 million tons of refined sugar annually. To meet this demand, sugar beets and sugar cane are grown domestically, which are inadequate supplies to meet consumption demands. As a result, a restriction is placed on the quantity of foreign raw sugar that is imported into the country to balance the supply for the marketplace. The imported raw sugar restriction is referred to as the tariff-rate quota which was authorized under the General Agreement on Tariff and Trade. To maintain a viable cane sugar refining industry and to ensure minimum raw sugar market for the traditional offshore suppliers of raw sugar to the United States, the minimum tariff-rate quota is 1,250,000 short tons raw value annually. The quota can be increased from the annual minimum amount to compensate for domestic crop shortfalls. The quota can also be utilized to maintain a certain level of domestic raw sugar trading prices. The administration of the sugar program described above is primarily the responsibility of the United States Department of Agriculture (the "USDA"). It is difficult to predict how the USDA will administer the sugar program which, together with market dynamics, could positively or negatively affect the profitability of the Company. The sugar program, together with all farm legislation, is currently being reviewed for change, but changes in current legislation cannot be predicted. Additionally, the effectiveness of the future administration of the sugar program cannot be predicted. Consequently, the Company is unable to predict the outcome of future legislative changes and administration changes, and the effect these factors may have on the result of operations of the Company. PLAN OF DISTRIBUTION On March 14, 1996, the Company and Wachovia Bank of North Carolina, N.A., as trustee of the Benefit Trust, entered into a trust agreement creating the Benefit Trust. The Company sold 2,500,000 shares of Common Stock to the Benefit Trust in exchange for a promissory note in the amount of $26,875,000 (the "Promissory Note"). The Benefit Trust was created to prefund certain of the Company's obligations under its employee benefit plans, including deferred compensation plans, supplemental executive retirement plans, employee stock ownership plans and defined benefit pension plans (collectively, the "Benefit Plans"). Shares of Common Stock will be held in the Benefit Trust and will constitute collateral for the loan evidenced by the Promissory Note. On each date on which a payment or prepayment is made of any principal amount of the Promissory Note, the trustee of the Benefit Trust will release from collateral a certain number of Shares and will apply them, along with any other Benefit Trust assets to (i) the payment of indebtedness to the Company, (ii) the satisfaction of the Company's obligations under the Benefit Plans, (iii) the reimbursement of payments made by the Company in satisfaction of such obligations, or (iv) the acquisition of additional equity securities of the Company. This Prospectus relates to the shares of Common Stock owned by the Benefit Trust. The number of shares of Common Stock that will be sold from time to time in the market by the trustee of the Benefit Trust will depend upon a number of factors, including the number of participants, and the forms of benefits and level of benefits to be provided under such Benefit Plans, the market price of the Common Stock and the benefit payment cycles under the various Benefit Plans. The Company will pay all of the expenses incident to the registration, offering and sale of the Common Stock to the public, including commissions and discounts of agents, dealers or underwriters. The Company or one of its subsidiaries, as the case may be, has agreed to indemnify the trustee of the Benefit Trust against certain liabilities that may arise in connection with its performance of duties pursuant to the Benefit Trust. The Common Stock offered hereby may be sold from time to time in one or more of the following transactions: (a) to underwriters who will acquire the shares for their own account and resell them in one or more transactions, including negotiated transactions, at a fixed price or at varying prices determined at the time of sale; any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time; (b) through brokers or dealers, acting as principal or agent, in transactions (which may involve block transactions) on the New York Stock Exchange, in special offerings, exchange distributions pursuant to the rules of the applicable exchanges or in the over-the-counter market, or otherwise, at market prices prevailing at the time of sale, at prices related to such prevailing market prices, at negotiated prices or at fixed prices; or (c) directly or through brokers or agents in private sales at negotiated prices. Underwriters participating in any offering may receive underwriting discounts and commissions and discounts or concessions may be allowed or reallowed or paid to dealers, and brokers or agents participating in such transactions may receive brokerage or agent's commissions or fees. To the extent required, the aggregate amount of the Common Stock being offered and the terms of the offering, the names of any such agents, brokers, dealers or underwriters and any applicable commission with respect to a particular offer will be set forth in an accompanying Prospectus Supplement. The underwriters, brokers, dealers or agents who participate in the sale of the Shares may be deemed "underwriters" within the meaning of Section 2(11) of the Securities Act and the commission paid or discounts allowed to any of such underwriters, brokers, dealers or agents in addition to any profits received on resale of the Shares if any such underwriters, brokers, dealers or agents should purchase any Shares as a principal may be deemed to be underwriting discounts or commissions under the Securities Act of 1933. Certain of the underwriters, dealers, brokers or agents may have other business relationships with the Company and its affiliates in the ordinary course of business. Under applicable rules and regulations of the Exchange Act, any person engaged in the distribution of the Shares may not be simultaneously engaged in market making activities with respect to the Common Stock for a period of nine business days prior to the later of the commencement of offers or sales of the Shares to be distributed and the time such person becomes a participant in the distribution. In addition to and without limiting the generality of the foregoing, the Benefit Trust, the Company and any other persons participating in such distribution will be subject to applicable provisions of the Exchange Act and rules and regulations thereunder, including without limitation Rules 10b-6 and 10b-7, which provisions may limit the timing of purchases and sales of shares of Common Stock by the Benefit Trust, the Company and any other such person. All of the foregoing may limit the marketability of the Shares and the ability of any underwriter, broker, dealer or agent to engage in market making activities. THE SELLING STOCKHOLDER The 2,500,000 shares of Common Stock offered in this Prospectus are owned by the Benefit Trust. The trustee of the Benefit Trust is the beneficial owner of 2,500,000 shares or approximately 8.7% of the Common Stock. The trustee of the Benefit Trust has sole voting and investment power with respect to the Common Stock held in the Benefit Trust. The Company may, pursuant to the terms of the trust agreement creating the Benefit Trust, direct the trustee to make distributions from the assets of the Benefit Trust to the Benefit Plans maintained by the Company in satisfaction of the Company's obligations under those plans. DESCRIPTION OF COMMON STOCK The following summary is subject to the detailed provisions of, and is qualified in its entirety by reference to, the Company's Certificate of Incorporation and By-Laws, copies of which have been incorporated by reference as exhibits to the Registration Statement of which this Prospectus is a part. The authorized capital stock of the Company consists of 64 million shares of Common Stock, par value $.25 per share, and 1 million shares of preferred stock, par value $.50 per share. COMMON STOCK The Company's authorized common stock consists of 64 million shares of Common Stock, par value $.25 per share. As of December 31, 1995, there were 26,238,196 shares of Common Stock outstanding. Voting Rights Each share of Common Stock entitles the holder thereof to one vote in all matters submitted to a vote of stockholders. The Common Stock does not have cumulative voting rights, which means that holders of a majority of the outstanding Common Stock voting for the election of directors can elect all directors then being elected. Dividends Subject to the rights of any preferred stock which may be issued by the Board of Directors, each share of Common Stock has an equal and ratable right to receive dividends to be paid from the Company's assets legally available therefor when, as and if declared by the Board of Directors. Liquidation In the event of the dissolution, liquidation or winding up of the Company, the holders of Common Stock are entitled to share equally and ratably in the assets available for distribution after payments are made to the Company's creditors and to the holders of any preferred stock of the Company that may be outstanding at the time. Other The holders of shares of Common Stock have no preemptive, subscription, redemption or conversion rights and are not liable for further call or assessment. All of the outstanding shares of Common Stock are fully paid and nonassessable. Registrar and Transfer Agent Wachovia Bank of North Carolina, N.A. acts as Registrar and Transfer Agent for the Common Stock. PREFERRED STOCK The Company's Certificate of Incorporation provides that the Company may issue up to 1 million shares of preferred stock and the Board of Directors of the Company is authorized, without further stockholder action, to divide any or all shares of authorized preferred stock into series and to fix the redemption and liquidation value, dividend rate, voting rights, conversion privilege, preferences, maturity dates and other qualifications, limitations or restrictions. As of the date of this Prospectus, the Board of Directors of the Company has not authorized any series of preferred stock and there are no plans, agreements or understandings for the issuance of any shares of preferred stock. CERTIFICATE OF INCORPORATION AND BY-LAWS Certain provisions of the Company's Certificate of Incorporation and By-Laws could make more difficult non- negotiated acquisitions of the Company. The Board of Directors believes that these provisions will help to assure the continuity and stability of the Board of Directors and the business strategies and policies of the Company as determined by the Board of Directors. These provisions could have the effect, however, of discouraging a third party from making a tender offer or otherwise attempting to obtain control of the Company even though such an attempt might be beneficial to the Company and its stockholders. Pursuant to the Company's By-Laws, the Board of Directors of the Company is divided into three classes serving staggered three-year terms. Directors can be removed from office with or without cause by the affirmative vote of 75% of the holders of the outstanding shares of capital stock entitled to vote generally in an election of directors. Alternatively, any director may be removed for cause at any time by the affirmative vote of a majority of the directors then in office. Vacancies on the Board of Directors may be filled only by vote of the remaining directors and not by the stockholders. The Certificate of Incorporation provides that any action required or permitted to be taken by the stockholders of the Company may be effected only at an annual or special meeting of stockholders. The Company's By-Laws provide that special meetings of stockholders may be called only by the chairman, the president or by order of the Board of Directors. The By-Laws establish an advance notice procedure for the nomination, other than by or at the direction of the Board of Directors, of candidates for election as directors at annual or special meetings of stockholders, as well as for other stockholder proposals to be considered at annual meetings of stockholders. In general, (a) notice of intent to nominate a director or raise business at annual meetings must be received by the Company not less than 60 nor more than 90 days prior to the anniversary date of the previous year's annual meeting; provided, however, that in the event that the annual meeting is called for a date that is not within thirty days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure of the date of the annual meeting was made, whichever first occurs; and (b) notice of intent to nominate a director at special meetings must be received by the Company not later than the close of business on the tenth day following the day on which notice of the date of the special meeting was mailed or public disclosure of the date of the special meeting was made, whichever first occurs. All notices must contain certain specified information concerning the person to be nominated or the matters to be brought before the meeting and concerning the stockholder submitting the proposal. The foregoing summary is qualified in its entirety by the provisions of the Company's Certificate of Incorporation and By- Laws, copies of which have been incorporated by reference as exhibits to the Registration Statement of which this Prospectus constitutes a part. LEGAL MATTERS The validity of the issuance of the shares of Common Stock offered hereby has been passed upon for the Company by Skadden, Arps, Slate, Meagher & Flom. EXPERTS The financial statements incorporated in this Prospectus by reference to the Annual Report on Form 10-K for the year ended October 1, 1995, have been so incorporated in reliance on the report of Price Waterhouse LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. No person has been authorized to give any information or to make any representation not contained in this Prospectus and, if given or made, such information or representation must not be relied upon as having been authorized by the Company. This Prospectus does not constitute an offer to sell or a solicitation of an offer to buy any of the securities offered hereby in any jurisdiction to any SAVANNAH FOODS & person to whom it is unlawful to INDUSTRIES, INC. make such offer in such jurisdiction. Neither the 2,500,000 SHARES delivery of this Prospectus nor any sale made hereunder shall, Common Stock under any circumstances, create any implication that the information herein is correct as of any time subsequent to the date hereof or that there has been no change in the affairs of the Company since such date. PROSPECTUS _____________________ TABLE OF CONTENTS PAGE AVAILABLE INFORMATION . . . 5 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE . . . 5 THE COMPANY . . . . . . . 6 , 1996 RISK FACTORS . . . . . . 7 PLAN OF DISTRIBUTION . . . 8 THE SELLING STOCKHOLDER . . 9 DESCRIPTION OF COMMON STOCK. . 9 LEGAL MATTERS . . . . . . . 11 EXPERTS . . . . . . . . . 12 PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution Securities and Exchange Commission filing fee . . . . $ 9,267 Accounting fees and expenses . . . . . . . . . . . . . . 7,500* Legal fees and expenses . . . . . . . . . . . . . . . . 30,000* Miscellaneous . . . . . . . . . . . . . . . . . . . . . 5,000* Total . . . . . . . . . . . . . . . . . . . . . . . . 51,767* ___________ *Estimated Item 15. Indemnification of Directors and Officers Subsection (b)(7) of Section 102 of the General Corporation Law of the State of Delaware (the "GCL") empowers a corporation in its original certificate of incorporation or an amendment thereto validly approved by stockholders to eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision cannot eliminate or limit the liability of a director for (i) breach of his duty of loyalty, (ii) acts or omissions not in good faith or which involve intentional misconduct or knowing violation of law, (iii) payment of a stock dividend or approval of a stock repurchase which was illegal under Section 174 of the GCL or (iv) any transaction from which he derived an improper personal benefit. Reference is made to Section 145 of the GCL relating to the indemnification of directors and officers of a Delaware corporation. Article Ninth of the Company's Amended Certificate of Incorporation provides for limitation of liability of directors, and indemnification of directors, officers and others as follows: NINTH: No Director shall be personally liable to the Corporation or any stockholder for monetary damages for breach of fiduciary duty as a Director, except for any matter in respect of which such Director shall be liable under Section 174 of Title 8 of the Delaware Code (relating to the Delaware General Corporation Law) or any amendment thereto or successor provision thereto or shall be liable by reason that, in addition to any and all other requirements for such liability, he (i) shall have breached his duty of loyalty to the Corporation or its stockholders, (ii) shall not have acted in good faith or, in failing to act, shall not have acted in good faith, (iii) shall have acted in a manner involving intentional misconduct or a knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation of law, or (iv) shall have derived an improper personal benefit. Neither the amendment nor repeal of this Article Ninth, nor the adoption of any provision of the Certificate of Incorporation inconsistent with this Article Ninth shall eliminate or reduce the effect of this Article Ninth in respect of any matter occurring, or any cause of action, suit, or claim that, but for this Article Ninth would accrue or arise, prior to such amendment. Article VI of the Company's By-Laws provides that the Corporation shall, to the fullest extent permitted by Section 145 of the GCL, indemnify any and all persons whom it shall have power to indemnify under said Section from and against any and all of the expenses, liabilities or other matters referred to in, or covered by said Section. Item 16. Exhibits The following exhibits are filed as part of this Registration Statement: Exhibit No. Description 3(i) Certificate of Incorporation of the Company with Amendments adopted through May 24, 1990. 3(ii) By-Laws of the Company. 5.1* Opinion of Skadden, Arps, Slate, Meagher & Flom. 23.1 Consent of Price Waterhouse LLP. 23.2* Consent of Skadden, Arps, Slate, Meagher & Flom (included in Exhibit 5.1). 99.1 Benefit Trust Agreement. * To be filed by amendment. Item 17. Undertakings (a) The Company hereby undertakes: 1. To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post- effective amendment by those paragraphs is contained in periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. 2. That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. To remove from registration by means of a post- effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the provisions described under Item 15 above, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Savannah, Georgia on this 27th day of March, 1996. SAVANNAH FOODS & INDUSTRIES, INC. By /s/ WILLIAM W. SPRAGUE William W. Sprague President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on the 27th day of March, 1996. Signature Title /s/ WILLIAM W. SPRAGUE, III William W. Sprague, III President and Chief Executive Officer /s/ C. RICHARD DONNELLY C. Richard Donnelly Senior Vice President President - Savannah Foods Industrial, Inc. /s/ GREGORY H. SMITH Gregory H. Smith Senior Vice President Chief Financial Officer and Treasurer /s/ F. SPRAGUE EXLEY F. Sprague Exley Senior Vice President Human Resources and Administration and Assistant Secretary /s/ JAMES M. KELLY James M. Kelley Senior Vice President President - Dixie Crystals Brands, Inc. /s/ DAVID H. ROUCHE David H. Roche Senior Vice President President and Chief Operating Officer - Michigan Sugar Company /s/ BENJAMIN A. OXNARD, JR. Benjamin A. Oxnard, Jr. Senior Vice President - Raw Sugar /s/ DALE C. CRITZ Dale C. Critz Director /s/ ARTHUR M. GIGNILLIAT, JR. Arthur M. Gignilliat, Jr. Director /s/ ROBERT S. JEPSON, JR. Robert S. Jepson, Jr. Director /s/ ARNOLD TENENBAUM Arnold Tenenbaum Director /s/ W. WALDO BRADLEY W. Waldo Bradley Director /s/ JOHN D. CARSWELL John D. Carswell Director /s/ HUGH M. TARBUTTON Hugh M. Tarbutton Director /s/ R. EUGENE CARTLEDGE R. Eugene Cartledge Director /s/ LEE B. DURHAM, JR. Lee B. Durham, Jr. Director /s/ ROBERT L. HARRISON Robert L. Harrison Director EXHIBIT INDEX Exhibit No. Description 3(i) Certificate of Incorporation with Amendments adopted through May 24, 1990. 3(ii) By-Laws of the Company. 23.1 Consent of Price Waterhouse LLP. 99.1 Benefit Trust Agreement. EX-3.(I) 2 EXHIBIT 3(I) EXHIBIT 3(i) SAVANNAH FOODS & INDUSTRIES, INC. CERTIFICATE OF INCORPORATION With Amendments Adopted Through May 24, 1990 CERTIFICATE OF INCORPORATION OF SAVANNAH FOODS & INDUSTRIES, INC. (a Delaware Corporation) FIRST: The name of the Corporation (hereinafter called the "Company") is Savannah Foods & Industries, Inc. SECOND: The registered office of the Company is to be located at 1209 Orange Street, in the City of Wilmington, in the County of New Castle, in the State of Delaware. The name of its registered agent at that address is The Corporation Trust Company. THIRD: The purpose of the Company is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: (A) The total number of shares of Common Stock which the Company is authorized to issue is sixty-four million (64,000,000) and the par value of each such shares is twenty-five cents ($.25), amounting in the aggregate to sixteen million dollars ($16,000,000). The shares of the Common Stock shall entitle the holder thereof to one vote for each share upon all matters upon which stockholders have the right to vote. (B) The total number of shares of Preferred Stock which the Company is authorized to issue is up to one million (1,000,000) and the par value of each of such shares is fifty cents ($.50), amounting in the aggregate to five hundred thousand dollars ($500,000). The Board of Directors of the Company shall have the right from time to time to issue such shares in series, to fix the redemption and liquidation value, dividend rate, issue such shares in series, to fix the redemption and liquidation value, dividend rate, voting rights, conversion privilege, preferences, maturity dates and other qualifications, limitations or restrictions, as determined by the Board, without stockholder approval. FIFTH: The names and addresses of each of the incorporators are as follows: Name Address B.J. Consono . . . . . . . . . . .1209 Orange Street Wilmington, Delaware F.J. Obara, Jr. . . . . . . . . . 1209 Orange Street Wilmington, Delaware A.D. Grier. . . . . . . . . . . ..1209 Orange Street Wilmington, Delaware SIXTH: Except as otherwise provided herein, the Board of Directors is expressly authorized: (A) To adopt, amend, or repeal the By-laws of the Corporation, provided however, that the Board of Directors shall have no power to adopt, amend, or repeal Section 2 of Article III of the By-laws of the Corporation without the approval of the holders of 75% of the outstanding stock of the Corporation entitled to vote thereon. (B) To set apart out of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and to abolish any such reserve in the manner by which it was created. (C) (1) To effect and consummate: (a) any merger or consolidation of the Corporation or any subsidiary with or into any other corporation: (b) any sale, lease, exchange, or other disposition of all or substantially all of the assets of the Corporation to or with any other person; or, (c) any issuance or transfer by the Corporation or any subsidiary of any voting securities of the Corporation or any subsidiary to any other person except for voting securities issued pursuant to stock option, purchase, bonus, or other plans for natural persons who are directors, employees, consultants, and/or agents of the Corporation and its subsidiaries; when, and only when, authorized by the affirmative vote of the holders of: (i) at least 75% of the outstanding stock of the Corporation entitled to vote generally in the election of directors; and (ii) at least a majority of the shares of outstanding stock of the Corporation which are not beneficially owned by such other corporation or person. (2) The provisions of Section (C)(1) of this Article shall not apply, and the provisions of Delaware law relating to the percentage of required stockholder approval, if any, shall apply to: (a) any merger or other transaction described in the preceding Section (C)(1) if any such other corporation is a subsidiary of the Corporation; (b) any merger or other transaction described in the preceding Section (C)(1) if the Board of Directors has approved the transaction prior to the time such other corporation or person acquired 10% or more of the shares of the outstanding stock of the Corporation entitled to vote in the election of directors; or, (c) any merger or other transaction described in the preceding paragraph if at any time prior to its consummation the transaction has been approved by a resolution adopted by all of the directors then in office. (3) For purposes of this Article Sixth: (a) any specified person shall be deemed to be a beneficial owner of shares of stock of the Corporation: (i) which such specified person or any of its affiliates or associates, as such terms are hereinafter defined, owns, directly or indirectly, whether of record or not; (ii) which such specified person or any of its affiliates or associates has the right to acquire pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise; or, (iii) which are beneficially owned, directly or indirectly [including shares deemed owned through application of clauses (i) and (ii) of this Section (C)(3)] by any other person with which specified person or any of its affiliates or associates has any agreement or arrangement or understanding for the purpose of acquiring, holding, voting, or disposing of the stock of the Corporation; (b) a subsidiary is any corporation more than 50% of the voting securities of which are owned, directly or indirectly, by the Corporation; (c) a person is any individual, partnership, corporation, or entity; (d) an affiliate of a specified person is any person that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, the specified person; and, (e) an associate of a specified person is: (i) any person of which such specified person is an officer or partner or is, directly or indirectly, the beneficial owner of 10% or more of any class of equity securities; (ii) any trust or estate in which such specified person has a substantial beneficial interest or as to which such specified person serves as trustee or in a similar capacity; (iii) any relative or spouse of any such specified person, or any relative of such spouse, who has the same home as the specified person; or, (iv) any director or officer of such specified person or any corporation which controls or is controlled by, or is in common control with, such specified person. (4) The Board of Directors of the Corporation shall determine, for purposes of this Article Sixth, on basis of information known to it: (a) whether any person referred to in Section (C)(1) of this Article owns beneficially 10% or more of the outstanding stock of the Corporation entitled to vote in the election of directors; and, (b) whether a proposed transaction is substantially consistent with the terms of the transactions approved in principle by the Board of Directors as referred to in Section (C)(2). Any such determination by the Board of Directors shall be conclusive and binding for all purposes of this Article Sixth and for purposes of such determination, the Board of Directors shall be entitled to rely solely on information provided to it by any person referred to in section (c)(1) and filings made available to the public by such person with the Securities and Exchange Commission under Section 13(d) of the Securities Exchange Act of 1934, as amended. SEVENTH: No action required or permitted to be taken by the stockholders of the Corporation may be taken except at the annual meeting of stockholders or at a special meeting of stockholders duly called for as provided in the By-laws of the Corporation. Meetings of the stockholders may be held outside the State of Delaware, if the By-laws of the Corporation so provide. The books of the Corporation may be kept (subject to any provision contained in the statutes) outside of the State of Delaware in such place or places as may be designated from time to time by the Board of Directors or in the By-laws of the Corporation. Election of the directors need not be by ballot unless the By- laws of the Corporation shall so provide. The stockholders of the Corporation shall have the authority to remove any director of the Corporation with or without cause as provided in the By- laws of the Corporation. EIGHTH: The Corporation reserves the right to modify, revise, alter, amend, change, repeal, or rescind any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and rights conferred upon the stockholders herein are granted subject to this reservation, provided, however, that the provisions of Article Sixth, Article Seventh, and of this Article Eighth of this Certificate of Incorporation shall not be modified, revised, altered, or amended, repealed, or rescinded, in whole or in part, except by the affirmative vote of the holders of not less than 75% of the outstanding stock of the Corporation entitled to vote thereon. NINTH: No Director shall be personally liable to the Corporation or any stockholder for monetary damages for breach of fiduciary duty as a Director, except for any matter in respect of which such Director shall be liable under Section 174 of Title 8 of the Delaware Code (relating to the Delaware General Corporation Law) or any amendment thereto or successor provision thereto or shall be liable by reason that, in addition to any and all other requirements for such liability, he (i) shall have breached his duty of loyalty to the Corporation or its stockholders, (ii) shall not have acted in good faith or, in failing to act, shall not have acted in good faith, (iii) shall have acted in a manner involving intentional misconduct or a knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation of law, or (iv) shall have derived an improper personal benefit. Neither the amendment nor repeal of this Article Ninth, not the adoption of any provision of the Certificate of Incorporation inconsistent with this Article Ninth shall eliminate or reduce the effect of this Article Ninth in respect of any matter occurring, or any cause of action, suit, or claim that, but for this Article Ninth would accrue or arise, prior to such amendment. WE THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that this is our act and deed and the facts herein stated are true, and accordingly have hereunto set our hands this 19th day of February, 1969. /s/ B. J. CONSONO /s/ F. J. OBARA, JR. /s/ A. D. GRIER STATE OF DELAWARE ) ) SS: COUNTY OF NEW CASTLE ) BE IT REMEMBERED that on this 19th day of February A.D. 1969, personally came before me, a Notary Public for the State of Delaware, B.J. Consono, F.J. Obara, Jr., and A.D. Grier, all of the parties to the foregoing Certificate of Incorporation, known to me personally to be such, and severally acknowledged the said Certificate to be the act and deed of the signers respectively and that the facts stated therein are true. GIVEN under my hand and seal of office the day and year foresaid. /s/ A. DANA ATWELL Notary Public A. Dana Atwell, Notary Public Appointed October 28, 1967 State of Delaware Term: Two Years STATE OF DELAWARE OFFICE OF SECRETARY OF STATE I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF SAVANNAH FOODS & INDUSTRIES, INC. FILED IN THIS OFFICE ON THE TWENTIETH DAY OF AUGUST, A.D. 1990, AT 10 O CLOCK A.M. : : : : : : : : : : /s/ MICHAEL HARKINS Michael Harkins, Secretary of State AUTHENTICATION: 2765677 DATE: 08/20/1990 CERTIFICATE OF AMENDMENT OF SAVANNAH FOODS & INDUSTRIES, INC. CERTIFICATE OF INCORPORATION Savannah Foods & Industries, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That the Board of Directors of said corporation, at a meeting duly held on March 30, 1990, adopted a resolution proposing and declaring advisable an amendment to the Certificate of Incorporation of said corporation increasing the number of shares of common capital stock of $.25 per share par value from 32,000,000 to 64,000,000 as follows: RESOLVED, that subject to approval by the stockholders at the Annual Meeting to be held on May 24, 1990 that Article Fourth of the Company s Certificate of Incorporation be amended so as to increase the authorized number of shares of common capital stock of $.25 per share par value from 32,000,000 to 64,000,000. SECOND: That the Annual Meeting of Stockholders duly held on May 24, 1990, the stockholders voted 21,104,867 shares (77.7% of shares outstanding) for and 482,084 shares against said amendment. THIRD: That the aforesaid amendment was duly adopted in accordance with the applicable provisions of section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said Savannah Foods & Industries, Inc. has caused this certificate to be signed by W.W. Sprague, Jr., its President, and attested by John M. Tatum, its Secretary, this 10th day of August, 1990. SAVANNAH FOODS & INDUSTRIES, INC. By: /s/ W.W. SPRAGUE, JR. President ATTEST: By: /s/ JOHN M. TATUM Secretary EX-3.(II) 3 EXHIBIT 3(II) - BY-LAWS EXHIBIT 3(ii) BY-LAWS OF SAVANNAH FOODS & INDUSTRIES, INC. (A DELAWARE CORPORATION) ARTICLE I. OFFICES SECTION 1. Registered Office in Delaware. The registered office of SAVANNAH FOODS & INDUSTRIES, INC. (hereinafter called the "Corporation") in the State of Delaware shall be in the City of Wilmington, County of New Castle, and the registered agent in charge thereof shall be The Corporation Trust Company, 100 West Tenth Street, Wilmington, Delaware 19801. SECTION 2. Other Offices. The Corporation may have such other office or offices at such other place or places, either within or without the State of Delaware, as the Board of Directors may from time to time determine or as shall be necessary or appropriate for the conduct of the business of the Corporation. ARTICLE II. MEETINGS OF STOCKHOLDERS SECTION 1. Place of Meeting. Meetings of stockholders may be held at such place or places, either within or without the State of Delaware, as the Board of Directors may from time to time determine, or as shall be necessary or appropriate for the conduct of the business of the Corporation. SECTION 2. Annual Meetings. The annual meeting of stockholders for the election of directors and the transaction of other business shall be held on the third Thursday in February in each year commencing with the year 1994. At each annual meeting the stockholders entitled to vote shall elect a Board of Directors and may transact such other business as may properly come before the meeting. Section 2 Amended 7/21/93 SECTION 3. Special Meetings. A special meeting of the stockholders, or of any class thereof entitled to vote, for any purpose or purposes, may be called at any time by the Chairman of the Board, the President, or by order of the Board of Directors. SECTION 4. Notice of Meeting. Except as otherwise expressly required by law, written notice of each meeting of stockholders, whether annual or special, stating the place, date and hour of the meeting, shall be given not less than ten days nor more than fifty days before the date on which the meeting is to be held, to each stockholders of record entitled to vote thereat by delivering a notice thereof to him personally or by mailing such notice in a postage prepaid envelope directed to him at his address as it appears on the stock ledger of the Corporation, unless he shall have filed with the Secretary of the Corporation a written request that notices intended for him be directed to another address, in which case such notice shall be directed to him at the address designated in such request. Every notice of a special meeting of the stockholders, besides stating the time and place of the meeting, shall state briefly the objects or purposes thereof. Notices of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy unless such attendance is for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened; and, if any stockholder shall, in person or by attorney thereunto authorized, in writing or by telegraph, cable or wireless, waive notice of any meeting of the stockholders, whether prior to or after such meeting, notice thereof need not be given to him. If a meeting is adjourned to another time or place and if any announcement of the adjourned time and place is made at the meeting, it shall not be necessary to give notice of the adjourned meeting unless the adjournment is for more than thirty days or the Board of Directors, after adjournment, fixes a new record date for the adjourned meeting. SECTION 5. List of Stockholders. It shall be the duty of the Secretary or other officer of the Corporation who shall have charge of the stock ledger to prepare and make, at least ten days before every meeting of the stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in his name. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall be kept and produced at the time and place of the meeting during the whole time thereof and subject to the inspection of any stockholder who may be present. The original or duplicate stock ledger shall be the only evidence as to who are the stockholders entitled to examine such list or the books of the Corporation or to vote in person or by proxy at such meeting. SECTION 6. Quorum. At each meeting of the stockholders, the holders of record of a majority of the issued and outstanding stock of the Corporation entitled to vote at such meeting, present in person or by proxy, shall constitute a quorum for the transaction of business, except where otherwise provided by law, the Certificate of Incorporation or these By-Laws. In the absence of a quorum, any officer entitled to preside at, or act as Secretary of, such meeting shall have the power to adjourn the meeting from time to time until a quorum shall be constituted. At any such adjourned meeting at which a quorum shall be present any business may be transacted which might have been transacted at the meeting as originally called, but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. SECTION 7. Voting. Except as otherwise provided in the Certificate of Incorporation, at every meeting of stockholders each holder of record of the issued and outstanding stock of the Corporation entitled to vote at such meeting shall be entitled to one vote, in person or by proxy, for each such share of stock entitled to vote held by such stockholder, but no proxy shall be voted after three years from its date unless the proxy provides for a longer period. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such corporation is held by the corporation, shall neither be entitled to vote nor counted for quorum purposes. Nothing in this Section shall be construed as limiting the right of the Corporation to vote its own stock held by it in a fiduciary capacity. At all meetings of the stockholders, a quorum being present, all matters shall be decided by majority vote of the shares of stock entitled to vote held by stockholders present in person or by proxy, except as otherwise required by the Certificate of Incorporation or the laws of the State of Delaware. Unless demanded by a stockholder of the corporation present in person or by proxy at any meeting of the stockholders and entitled to vote thereat, or so directed by the Chairman of the meeting or required by the laws of the State of Delaware, the vote thereat on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or in his name by his proxy, if there by such proxy, and shall state the number of shares voted by him and the number of votes to which each share is entitled. SECTION 8. Inspectors at Shareholders' Meetings. The Board of Directors, in advance of any shareholders' meeting may appoint one or more inspectors to act at the meeting or any adjournment thereof. If inspectors are not so appointed, the person presiding at the shareholders' meeting may, and on the request of any shareholder entitled to vote thereat shall, appoint one or more inspectors. In case any person appointed fails to appear or act, the vacancy may be filled by appointment made by the Board of Directors in advance of the meeting or at the meeting by the person presiding thereat. Each inspector, before entering the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability. The inspectors shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all shareholders. On request of the person presiding at the meeting or any shareholder entitled to vote thereat, the inspectors shall make a report in writing of any challenge, question or matter determined by them and execute a certificate of any fact found by them. Any report or certificate made by them shall be prima facia evidence of the facts stated and the vote as certified by them. SECTION 9. Nominations of Directors. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation. Nominations of persons for election to the Board of Directors may be made at any annual meeting of stockholders, or at any special meeting of stockholders called in the manner set forth in Article II, Section 3 hereof for the purpose of electing directors, (a) by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (b) by any stockholder of the Corporation (i) who is a stockholder of record on the date of the giving of the notice provided for in this Section 9 and on the record date for the determination of stockholders entitled to vote at such meeting and (ii) who complies with the notice procedures set forth in this Section 9. In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation. To be timely, a stockholder's notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation (a) in the case of an annual meeting, not less than sixty (60) days nor more than ninety (90) days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure of the date of the annual meeting was made, whichever first occurs; and (b) in the case of a special meeting of stockholders called in the manner set forth in Article II, Section 3 hereof for the purpose of electing directors, not later than the close of business on the tenth (10th) day following the day on which notice of the date of the special meeting was mailed or public disclosure of the date of the special meeting was made, whichever first occurs. To be in proper written form, a stockholder's notice to the Secretary must set forth (a) as to each person whom the stockholder proposes to nominate for election as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by the person and (iv) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder; and (b) as to the stockholder giving the notice (i) the name and record address of such stockholder, (ii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such stockholder, (iii) a description of all arrangements or understandings between such stockholder and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination(s) are to be made by such stockholder, (iv) a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice and (v) any other information relating to such stockholder that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected. No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 9. If the Chairman of the meeting determines that a nomination was not made in accordance with the foregoing procedures, the Chairman shall declare to the meeting that the nomination was defective nomination shall be disregarded. Section 9 Inserted 12/6/91 SECTION 10. Action at Meetings of Stockholders. No business may be transacted at an annual meeting of stockholders, other than business that is either (a) specified in the notice of meeting (or any duly authorized committee thereof), (b) otherwise properly brought before the annual meeting by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (c) otherwise properly brought before the annual meeting by any stockholder of the Corporation (i) who is a stockholder of record on the date of the giving of the notice provided for in this Section 10 and on the record date for the determination of stockholders entitled to vote at such annual meeting and (ii) who complies with the notice procedures set forth in this Section 10. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation. To be timely, a stockholder's notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation not less than sixty (60) days nor more than ninety (90) days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure of the date of the annual meeting was made, whichever first occurs. To be in proper written form, a stockholder's notice to the Secretary must set forth as to each matter such stockholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting, (ii) the name and record address of such stockholder, (iii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such stockholder, (iv) a description of all arrangements or understandings between such stockholder and any other person or persons (including their names) in connection with the proposal of such business by such stockholder and any material interest of such stockholder in such business and (v) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting. No business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 10, provided, however, that, once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 10 shall be deemed to preclude discussion by any stockholder of any such business. If the Chairman of an annual meeting determines that business was not properly brought before the annual meeting in accordance with the foregoing procedures, the Chairman shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted. The business transacted at any special meeting of stockholders called in the manner set forth in Article II, Section 3 hereof shall be confined to the business stated in the notice of meeting, as determined by the person or persons calling such meeting. Section 10 Inserted 12/6/91 ARTICLE III. BOARD OF DIRECTORS SECTION 1. General Powers. The property, business and affairs of the Corporation shall be managed by the Board of Directors. SECTION 2. Number, Term of Office, and Qualifications. The number of Directors shall not be less than three nor more than fifteen as fixed from time to time by resolution of the Board of Directors; provided however, that the number of Directors to be elected at the annual meeting in 1987 shall be four, to be elected for three-year terms expiring in 1990. And, upon approval of this amendment by the stockholders, the Directors then in office will elect a fifth member for a three-year term expiring in 1990. Section 2 amended 2/16/95 Commencing in the year 1988, all Directors to be elected shall be elected for three-year terms except as hereinafter provided in Section 9 of Article III of these By-Laws with respect to Directors elected to fill certain vacancies; provided, however, that the director elected by the Board of Directors in 1990 to fill the vacancy created by the increase in the number of Directors to 13 will serve until the annual meeting in 1991. No person shall be eligible to serve as a Director beyond December 31 of the year in which he reaches the age of sixty-eight, and no person shall be eligible to serve as a Director beyond December 31 of the third year following retirement from his principal occupation of employment at the time he first became a Director. Each Director shall continue in office until the annual meeting in the year in which his term expires and until his successor shall have been elected and qualified, or until his death, resignation, or removal. Section 2 Amended 2/1/91 SECTION 3. Quorum and Manner of Acting. Unless otherwise provided by law, the presence of one-third of the whole Board of Directors shall be necessary to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of the directors present may adjourn the meeting from time to time until a quorum shall be present. Notice of any adjourned meeting need not be given. At all meetings of directors, a quorum being present, all matters shall be decided by the affirmative vote of a majority of the directors present, except as otherwise required by the laws of the State of Delaware. SECTION 4. Place of Meetings, etc. The Board of Directors may hold its meetings and keep the books and records of the Corporation at such place or places within or without the State of Delaware, as the Board may from time to time determine. SECTION 5. Annual Meeting. As promptly as practicable after each annual meeting of stockholders for the election of directors, the Board of Directors shall meet in Savannah, Georgia, for the purpose of organization, the election of officers and the transaction of other business. Notice of such meeting need not be given. If such meeting is held at any other time, notice thereof must be given as hereinafter provided for special meetings of the Board of Directors or a consent and waiver of notice thereof must be signed by all the directors. SECTION 6. Regular Meetings. The Board of Directors shall hold six regular meetings annually at such time and place, within or without the State of Delaware, as determined by the President and specified in the notice of call thereof. The President shall endeavor to schedule the regular meetings during a calendar year at approximately even intervals if practicable. Notice of call of such meetings shall specify the time and date and be given each director in writing mailed no less than five (5) days nor more than thirty (30) days before such meeting. Section 6 Amended 3/4/88 SECTION 7. Special Meetings. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board, when there is such an officer, or by the President, and shall be called at the request in writing of any three directors, on not less than three hours' notice to each director personally or by telegram, or on not less than three days' written notice to each director by mail. Notice of call of each special meeting shall state the date, time and place of the meeting. In lieu of the notice to be given as set forth above, a waiver thereof in writing, signed by the director or directors entitled to said notice, whether prior to or after the meeting in question, shall be deemed equivalent thereto for purposes of this Section 7. No notice to or waiver by any director with respect to any special meeting shall be required if such director shall be present at said meeting. SECTION 8. Resignation. Any director of the Corporation may resign at any time by giving written notice to the Chairman of the Board, when there is such an officer, or to the President or the Secretary of the Corporation. The resignation of any director shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. When one or more directors shall resign from the Board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective. (A). Any director or the entire Board of Directors may be removed, with or without cause, by an affirmative vote of 75% of the holders of the outstanding stock of the Corporation entitled to vote in the election of directors, considered for this purpose as one class, taking such action at an annual meeting of stockholders or at a special meeting of stockholders duly called for such purpose. Alternatively, any director may be removed for cause at any time by the affirmative vote of a majority of the directors then in office. SECTION 9. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, unless otherwise provided by the Certificate of Incorporation or the laws of the State of Delaware. Each director so chosen shall hold office for the unexpired term of the director whose place shall be vacant, provided that each director so chosen to fill the vacancy created by increase in the number of directors shall be elected for a term to be designated by the Directors at the time of his election and shall continue in office for such term and until his successor shall have been elected and qualified, and until his death, resignation or removal. SECTION 10. Compensation of Directors. Directors, by resolutions of the Board, may be appropriately compensated for their work as directors, and for attendance at each regular or special meeting of the Board, or any Committee thereof. Nothing herein contained shall be construed to preclude any director from servicing the Corporation or any subsidiary thereof in any other capacity and receiving compensation therefore. SECTION 11. Executive Committee and Other Committees. The Board of Directors, by resolution adopted by a majority of the entire Board, may designate from among its members an Executive Committee and other committees to serve at the pleasure of the Board. Each committee shall consist of three or more directors. Except as set forth below and as otherwise limited by the General Corporation Law of the State of Delaware, the Executive Committee shall have all of the authority of the Board of Directors. Each other committee shall be empowered to perform such functions as may, by resolution, be delegated to it by the Board. The Board of Directors may designate one or more directors as alternate members of any such committee, who may replace any absent member or members at any meetings of such committee. Vacancies in any committee, whether caused by resignation or by increase in the number of members constituting said committee, shall be filled by a majority of the entire Board of Directors. The Executive Committee may fix its own quorum and elect its own Chairman. In the absence or disqualification of any member of such committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. The Board of Directors shall have power to change the membership of any such committee at any time and to discharge any such committee, either with or without cause, at any time. Each member of any such committee shall be paid such fee, if any, as shall be fixed by the Board of Directors for each meeting of such committee which he shall attend and, in addition, such transportation and other expenses actually incurred by him in going to the meeting of such committee and returning therefrom as the Board of Directors shall approve. SECTION 12. Action Without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes or proceedings of the Board or committee. ARTICLE IV. OFFICERS SECTION 1. Number. The principal officers of the Corporation shall be a President, one or more Vice Presidents, a Secretary and a Treasurer. The Corporation may also have, at the discretion of the Board of Directors, a Chairman of the Board of Directors, an Executive Vice President, and such other officers as may be appointed in accordance with the provisions of these By-Laws. The offices of Executive Vice President, or of a Vice President, the Secretary and the Treasurer or any of them may be held by the same persons in the discretion of the Board of Directors. The offices of President and Treasurer may also be held by the same person. SECTION 2. Election and Term of Office. The principal officers of the Corporation shall be chosen annually by the Board of Directors at the annual meeting thereof. Each such officer shall hold office until his successor shall have been duly chosen and shall qualify, or until his death, or until he shall resign or shall have been removed in the manner hereinafter provided. SECTION 3. Subordinate Officers. In addition to the principal officers enumerated in Section I of this Article IV, the Corporation may have one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers, agents and employees as the Board of Directors may deem necessary, each of whom shall hold office for such period, have such authority, and perform such duties as the President or the Board of Directors may from time to time determine. The Board of Directors may delegate to any principal officer the power to appoint and to remove any such subordinate officers, agents or employees. SECTION 4. Removal. Any officer may be removed, either with or without cause, at any time, by resolution adopted by the Board of Directors at any regular meeting of the Board, or at any special meeting of the Board called for that purpose at which a quorum is present. SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors or to the President or to the Secretary. Any such resignation shall take effect upon receipt of such notice or at any later time specified therein; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office may be filled for the unexpired portion of the term in the manner prescribed in these By-Laws for election or appointment to such office for such term. SECTION 7. Chairman of the Board. When there is a Chairman of the Board he shall preside at all meetings of stockholders and at all meetings of the Board of Directors. He shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. SECTION 8. President. The President shall be the Chief Executive Officer of the Corporation, and as such shall have general supervision of the affairs of the Corporation, subject to the control of the Board of Directors. He shall be an ex officio member of all standing committees. In the absence of the Chairman of the Board, or whenever the office is vacant, the President shall preside at all meetings of stockholders and at all meetings of the Board of Directors. Subject to the control and direction of the Board of Directors the President may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. In general, he shall perform all duties incident to the office of President, as herein defined, and all such other duties as from time to time may be assigned to him by the Board of Directors. SECTION 9. Vice Presidents. When there is an Executive Vice President, he shall, in the absence or disability of the President, perform the duties and exercise the powers of the President. He shall perform such other duties and have such other powers as the President or the Board of Directors may from time to time prescribe. In the absence or disability of the Executive Vice President, the Board of Directors shall determine the Vice President or other officer to perform the duties and exercise the powers of the President. Vice Presidents shall perform such duties and have such other powers as the President or the Board of Directors may from time to time prescribe. SECTION 10. Secretary. The Secretary, if present, shall act as secretary at all meetings of the Board of Directors and of the stockholders, and keep the minutes thereof in a book or books to be provided for that purpose; shall see that all notices required to be given by the Corporation are duly given and served; shall have charge of the stock records of the Corporation; shall see that all reports, statements and other documents required by law are properly kept and filed; and in general, shall perform all the duties incident to the office of Secretary and such other duties as from time to time may be assigned to him by the President or the Board of Directors. SECTION 11. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and shall deposit all such funds in the name of the Corporation in such banks or other depositories as shall be selected by the Board of Directors. He shall exhibit at all reasonable times his books of account and records to any of the directors of the Corporation upon application during business hours at the office of the Corporation where such books and records shall be kept; when requested by the Board of Directors, shall render a statement of the condition of the finances of the Corporation at any meeting of the Board or at the annual meeting of stockholders; shall receive, and give receipts for, moneys due and payable to the Corporation from any source whatsoever; and in general, shall perform all the duties incident to the office of the Treasurer and such other duties as from time to time may be assigned to him by the President or the Board of Directors. The Treasurer shall give such bond, if any, for the faithful discharge of his duties as the Board of Directors may require. SECTION 12. Salaries. The salaries of the principal officers shall be fixed from time to time by the Board of Directors, and the salaries of any other officers may be fixed by the President. ARTICLE V. SHARES AND THEIR TRANSFER SECTION 1. Certificate for Stock. Every stockholder of the Corporation shall be entitled to a certificate or certificates, to be in such form as the Board of Directors shall prescribe, certifying the number of shares of the capital stock of the Corporation owned by him. SECTION 2. Stock Certificate Signature. The certificates for such stock shall be numbered in the order in which they shall be issued and shall be signed by the President or any Vice President and the Secretary or Treasurer of the Corporation, and its seal shall be affixed thereto. If such certificate is countersigned (1) by a transfer agent other than the Corporation or its employee, or, (2) by a registrar other than the Corporation or its employee, the signatures of such officers of the Corporation may be facsimiles. In case any officer of the Corporation who has signed, or whose facsimile signature has been placed upon any such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer at the date of issue. SECTION 3. Stock Ledger. A record shall be kept by the Secretary, transfer agent or by any other officer, employee or agent designated by the Board of Directors of the name of the person, firm or corporation holding the stock represented by such certificates, the number of shares represented by such certificates, respectively, and the respective dates thereof, and in case of cancellation, the respective dates of cancellation. SECTION 4. Cancellation. Every certificate surrendered to the Corporation for exchange or registration of transfer shall be canceled, and no new certificate or certificates shall be issued in exchange for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided in Section 7 of this Article V. SECTION 5. Registrations of Transfers of Stock. Registrations of transfers of shares of the capital stock of the Corporation shall be made on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the Corporation, or with a transfer clerk or a transfer agent appointed as in Section 6 of this Article V provided, and on surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes thereon. The person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation; provided, however, that whenever any transfer of shares shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer if, when the certificates are presented to the Corporation for transfer, both the transferor and the transferee request the Corporation to do so. SECTION 6. Regulations. The Board of Directors may make such rules and regulations as it may deem expedient, not inconsistent with the Certificate of Incorporation or these By-Laws, concerning the issue, transfer and registration of certificates for shares of the stock of the Corporation. It may appoint, or authorize any principal officer or officers to appoint, one or more transfer clerks or one or more transfer agents and one or more registrars, and may require all certificates of stock to bear the signature or signatures of any of them. SECTION 7. Lost, Stolen, Destroyed or Mutilated Certificates. As a condition of the issue of a new certificate for shares of stock in the place of any certificate theretofore issued and alleged to have been lost, stolen, mutilated or destroyed, the Board of Directors, in its discretion, may require the owner of any such certificate, or his legal representatives, to file with the Corporation a bond in such sum and in such form as it may deem sufficient to indemnify the Corporation against any claim that may be made against it on account of the alleged loss, theft, mutilation or destruction of any such certificate or the issuance of such new certificate. Proper evidence of such loss, theft, mutilation or destruction shall be procured for the Board of Directors, if it so requires. The Board of Directors, in its discretion, may authorize the issuance of new certificates without any bond when in its judgment it is proper to do so. SECTION 8. Record Dates. For the purpose of determining the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a date as a record date for any such determination of stockholders. Such record date shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. Section 8 Amended 12/6/91 ARTICLE VI. INDEMNIFICATION The Corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of the State of Delaware, indemnify any and all persons whom it shall have power to indemnify under said Section from and against any and all of the expenses, liabilities or other matters referred to in, or covered by said Section. ARTICLE VII. MISCELLANEOUS PROVISIONS SECTION 1. Corporate Seal. The Board of Directors shall provide a corporate seal, which shall be in the form of a circle, and shall bear the name of the Corporation and words and figures showing that it was incorporated in the State of Delaware in the year 1969. The Secretary shall be the custodian of the seal. The Board of Directors may authorize a duplicate seal to be kept and used by any other officer. SECTION 2. Fiscal Year. The fiscal year of the Corporation shall end on the Sunday nearest September 30 in each year commencing with the year 1993. Section 2 Amended 7/21/93 SECTION 3. Voting of Stocks Owned by the Corporation. The Board of Directors may authorize any person in behalf of the Corporation to attend, vote and grant proxies to be used at any meeting of stockholders of any corporation (except this Corporation) in which the Corporation may hold stock. SECTION 4. Dividends. Subject to the provisions of the Certificate of Incorporation, the Board of Directors may, out of funds legally available therefor, at any regular or special meeting declare dividends upon the capital stock of the Corporation as and when they deem expedient. Before declaring any dividend, there may be set apart out of any funds of the Corporation available for dividends such sum or sums as the directors from time to time in their discretion deem proper for working capital, or as a reserve fund to meet contingencies, or for equalizing dividends, or for such other purposes as the Board of Directors shall deem conducive to the interests of the Corporation. ARTICLE VIII. AMENDMENTS The Board of Directors may alter, amend or repeal the By-laws of the Corporation at any regular or special meeting of the Board of Directors. Except as may otherwise be provided in the Certificate of Incorporation, stockholders may alter, amend or repeal the By-laws of the Corporation at any annual or special meeting of stockholders only upon the affirmative vote of a majority of the stock of the Corporation issued and outstanding and entitled to vote in respect thereof, provided that notice of the proposed alteration, amendment or repeal is contained in the notice of such meeting. By-laws, whether made or altered by the stockholders or by the Board of Directors, shall be subject to alteration or repeal by the stockholders as in this Article VIII above provided. Article VIII Amended 12/6/91 EX-23 4 EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Prospectus constituting part of this Registration Statement on Form S-3 of our report dated November 17, 1995 appearing on page 14 of Savannah Foods & Industries, Inc.'s Annual Report on Form 10-K for the year ended October 1, 1995. We also consent to the references to us under the heading "Experts" in such Prospectus. Price Waterhouse LLP Atlanta, Georgia March 27, 1996 EX-99 5 EXHIBIT 99.1 EXHIBIT 99.1 SAVANNAH FOODS & INDUSTRIES, INC. BENEFIT TRUST AGREEMENT BENEFIT TRUST AGREEMENT ("Trust Agreement"), dated March 14, 1996, by and between Savannah Foods & Industries, Inc., a Delaware corporation (the "Company"), and Wachovia Bank of North Carolina, N.A., as trustee of the Trust created hereby (the "Trustee"). WHEREAS, the Company and its subsidiaries and affiliates (collectively, the "Corporation") are or may become obligated in respect of their existing compensation and benefit plans, agreements, programs and arrangements listed on Exhibit A attached hereto and such existing and future plans, agreements, programs and arrangements as may hereafter be listed on said Exhibit A (the plans, agreements, programs and arrangements listed on said Exhibit A from time to time being collectively referred to herein as the "Plans") to make payments to or contributions on behalf of past, present or future employees or their beneficiaries; and WHEREAS, for purposes of providing a source of funds for the satisfaction, in whole or in part, of the obligations of the Corporation under the Plans, the Company desires to establish a trust (the "Trust"), which is intended to constitute a grantor trust within the meaning of section 671 of the Internal Revenue Code of 1986, as amended (the "Code"), the assets of which shall be subject to the claims of the Company's existing or future creditors; NOW, THEREFORE, in consideration of the mutual agreements contained herein and for other good and valuable consideration, the parties hereto agree as follows: ARTICLE I. PURPOSE OF THE TRUST SECTION 1.1 Purpose. The purpose of the Trust is to hold equity securities of the Company ("SF Securities") or other property as herein provided as a source of funds to satisfy the Corporation's obligations under the Plans. The Corporation shall continue to be liable to make all payments required to be made by the Corporation under the terms of the Plans to the extent such payments have not been made pursuant to this Trust Agreement. Distributions made from the Trust in respect of the Plans pursuant to Section 3.1 shall, to the extent of such distributions, satisfy the Corporation's obligations under the Plans. ARTICLE II. TRUST AND THE TRUST CORPUS SECTION 2.1 Delivery of Funds and Common Stock. 1. Concurrently with the execution of this Trust Agreement, the Company is contributing to the Trust in cash an amount equal to the aggregate par value of 2,500,000 shares of common stock of the Company, par value $0.25 per share ("Common Stock"). 2. Concurrently with the execution of this Trust Agreement, the Company is selling to the Trustee 2,500,000 shares of Common Stock (the "Acquired Shares"), pursuant to the terms of a Stock Purchase Agreement, dated the date hereof, between the Company and the Trustee (the "Stock Purchase Agreement"), such Acquired Shares to constitute collateral for the repayment of the Note (as defined below) until released from collateral as provided herein and otherwise to be administered and disposed of by the Trustee as provided herein. Concurrently with the execution of this Trust Agreement, and pursuant to the terms of the Stock Purchase Agreement, the Trustee, at the direction of the Company, is delivering to the Company, on behalf of the Trust, (i) an amount in cash equal to the aggregate par value of the Acquired Shares, and (ii) a Note (the "Note") of the Trust in the original principal amount of $26,875,000, in payment of the remainder of the purchase price for the Acquired Shares. 3. The Company may sell or otherwise deliver to the Trustee additional amounts of cash or Cash Equivalents (as defined in Section 2.3 hereof) or SF Securities to be held in trust hereunder; provided, however, that the Company shall be obligated to make the contributions specified in Section 2.2 hereof. SECTION 2.2 Contributions to Repay Trust Indebtedness. The Company shall contribute to the Trust in cash an amount which, when added to cash dividends received by the Trust in respect of Acquired Shares (or other SF Securities, as the case may be) and not previously applied under this Section 2.2, shall enable the Trustee to make all payments of principal and interest due under the Note (or other indebtedness of the Trust relating to the acquisition of SF Securities, as the case may be) on a timely basis or to make prepayments of such principal or interest. The Trustee shall apply all dividends and earnings paid in respect of Acquired Shares (or other SF Securities) to the payment of principal and interest under the Note (or such other indebtedness, as the case may be). To the extent the Company fails to make any contribution required under this Section 2.2, or to the extent the Company notifies the Trustee that it wishes to prepay any principal or interest under the Note (or such other indebtedness) without making a contribution hereunder, such contribution shall be deemed to have been made in the form of forgiveness of principal and interest then due and owing on the Note and such other indebtedness (or forgiveness of principal and interest to the extent of such prepayment, as the case may be). The Trustee shall be accountable for all contributions received by it, but shall have no duty to require any contributions to be made to it. SECTION 2.3 Trust Corpus. As used herein, the term "Trust Corpus" shall mean any cash or Cash Equivalents or SF Securities delivered to the Trustee as described in Section 2.1 or 2.2 hereof, together with any earnings thereon or any proceeds from the disposition thereof, plus any cash or Cash Equivalents or SF Securities sold or otherwise delivered thereafter pursuant to Section 2.1 or 2.2 hereof, together with any earnings thereon or any proceeds from the disposition thereof (and less such amounts distributed from the Trust pursuant to the terms hereof). As used herein, the term "Cash Equivalents" shall mean securities issued or directly and fully guaranteed by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of less than one year from the date of acquisition. The Trust Corpus shall at all times be limited to SF Securities and cash or Cash Equivalents. ARTICLE III. RELEASE OF THE TRUST CORPUS SECTION 3.1 Use of Assets. 1. In accordance with the provisions hereof, the Trustee shall apply the Trust Corpus as directed by the Company (1) to the payment of any indebtedness (including the Note) of the Trust which is then outstanding, in accordance with the terms thereof, (2) on behalf of the Corporation to the satisfaction of the Corporation's obligations under the Plans, (3) to the reimbursement of payments made by the Corporation in satisfaction of its obligations under the Plans or (4) to the acquisition of additional SF Securities; provided, however, that the Trustee shall not be required to apply the Trust Corpus in the manner described in clauses (2) - (4) above during the period that the Company exercises its right to prevent the Trustee from disposing of SF Securities pursuant to Section 4.3, if and to the extent that, at the time the Company's direction to so apply the Trust Corpus is received by the Trustee, the Trust Corpus does not contain sufficient cash or Cash Equivalents to comply with the Company's direction without disposing of SF Securities. A direction by the Company to apply the Trust Corpus for a purpose described in clause (2) or (3) above may include a direction to deliver SF Securities in kind or to dispose of SF Securities and apply the proceeds therefrom for such purpose. 2. Except as provided in Sections 3.1(a) and 4.3, the Company shall have no power to direct the Trustee to take or omit to take any action with respect to the Trust Corpus. SECTION 3.2 Release from Collateral. On each date on which payment is made (or deemed to have been made) of any principal amount of the Note (a "Principal Payment Date"), the following number of Acquired Shares (and related collateral) shall be released from collateral: the number of Acquired Shares held in the Trust as collateral immediately prior to the Principal Payment Date multiplied by a fraction, the numerator of which is the amount of the principal payment made (or deemed to have been made) on such date and the denominator of which is the principal amount of the Note outstanding immediately prior to such principal payment. Any shares of SF Securities subsequently acquired by the Trust with borrowed funds or other indebtedness of the Trust (and related collateral) shall be released from collateral in a manner consistent with the immediately preceding sentence. The Acquired Shares, SF Securities and related collateral released pursuant to this Section 3.2 (the "Released Collateral") shall be contributed to the trust established under a Plan or, in the case of any Plan under which no trust has been established, directly to Participants (or Beneficiaries, if appropriate) in accordance with the directions of the Company. Upon receiving directions from the Company, the Trustee shall sell any Released Collateral and transfer the proceeds of such sale to the trust established under such Plan or, in the case of any Plan under which no trust has been established, to such Plan's Participants (or Beneficiaries, if appropriate). Any such sale shall be made in the manner which the Trustee determines will produce the greatest yield (after transaction costs), and may be made in the open market or in a private transaction, including (with the Company's consent) a sale to the Company. SECTION 3.3 Deliveries to Creditors of the Corporation. It is the intent of the parties hereto that the Trust Corpus is and shall remain at all times subject to the claims of the general creditors of the Company. Accordingly, neither the Trustee nor the Company shall create a security interest in the Trust Corpus in favor of the Plans, any participant therein (each, a "Participant") (or any beneficiary of such Participant) (each, a "Beneficiary")) or any creditor. If the Trustee receives the notice provided for in Section 3.4, or if the Trustee otherwise receives actual notice that the Company is insolvent or bankrupt as defined in Section 3.4, the Trustee shall make no further distributions of the Trust Corpus as directed by the Company but shall deliver the entire amount of the Trust Corpus only as a court of competent jurisdiction, or duly appointed receiver or other person authorized to act by such a court, may direct. The Trustee shall resume distribution of the Trust Corpus as directed by the Company under the terms hereof, upon no less than 30 days' advance notice to the Company, if the Trustee determines that the Company was not, or is no longer, bankrupt or insolvent. Such determination shall be made in a timely fashion, and shall be based upon a decision of a court of competent jurisdiction, a report of a nationally recognized appraisal firm or a certification by the Chief Executive Officer of the Company or a determination of the Board of Directors of the Company (the "Board"). Unless the Trustee has actual knowledge of the Company's bankruptcy or insolvency, the Trustee shall have no duty to inquire whether the Company is bankrupt or insolvent. SECTION 3.4 Notification of Bankruptcy or Insolvency. The Company shall advise the Trustee promptly in writing of the Company's bankruptcy or insolvency. The Company shall be deemed to be bankrupt or insolvent upon the occurrence of any of the following: a. The Company shall make an assignment for the benefit of creditors, file a petition in bankruptcy, petition or apply to any tribunal for the appointment of a custodian, receiver, liquidator, sequestrator, or any trustee for it or a substantial part of its assets, or shall commence any case under any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar law or statute of any jurisdiction (federal or state), whether now or hereafter in effect; or if there shall have been filed any such petition or application, or any such case shall have been commenced against it, in which an order for relief is entered or which remains undismissed for a period of 120 days; or the Company by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or case or order for relief or to the appointment of a custodian, receiver or any trustee for it or any substantial part of any of its property, or shall suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 120 days; or b. The Company shall generally not pay its debts as such debts become due or shall cease to pay its debts generally in the ordinary course of business. ARTICLE IV. ADMINISTRATION OF TRUST FUND SECTION 4.1 Trustee. (a) The duties and responsibilities of the Trustee shall be limited to those expressly set forth in this Trust Agreement and the Stock Purchase Agreement, and no implied covenants or obligations shall be read into this Trust Agreement against the Trustee. (b) If, under circumstances described in Section 3.4 or otherwise, all or any part of the Trust Corpus is at any time attached, garnished, or levied upon by any court order, or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by a court affecting such property or any part thereof, then and in any of such events the Trustee is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree, and it shall not be liable to the Corporation, any Plan or any Participant or Beneficiary by reason of such compliance even though such order, writ, judgment or decree subsequently may be reversed, modified, annulled, set aside or vacated. (c) The Trustee or its agent shall maintain such books, records and accounts as may be necessary for the proper administration of the Trust Corpus, and shall render to the Company, within 30 days of the end of each calendar quarter, commencing with the calendar quarter ending March 31, 1996, until the termination of the Trust (and on the date of such termination or as promptly as practicable thereafter), an accounting with respect to the Trust Corpus as of the end of the then most recent calendar quarter (and as of the date of such termination). (d) The Trustee shall not be liable for any act taken or omitted to be taken hereunder if taken or omitted to be taken by it in good faith. The Trustee shall also be fully protected in relying upon any notice or instruction given hereunder which it in good faith believes to be genuine and executed and delivered in accordance with this Trust. (e) The Trustee may consult with legal counsel to be selected by it, including counsel to the Company, and the Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel. (f) The Trustee shall be reimbursed by the Company for its reasonable expenses incurred in connection with the performance of its duties hereunder and shall be paid reasonable fees for the performance of such duties. Any amounts payable to the Trustee under this paragraph (f) may be payable from the Trust Corpus if not paid by the Company. (g) Except for any damages, losses, claims or expenses resulting from the Trustee's gross negligence or willful misconduct, the Company agrees to indemnify and hold harmless the Trustee from and against any and all damages, losses, claims or expenses as incurred (including reasonable expenses of investigation and reasonable fees, charges and disbursements of counsel to the Trustee and any taxes imposed on the Trust Corpus or income of the Trust) arising out of or in connection with the performance by the Trustee of its duties hereunder. Without limiting the generality of the foregoing, the Trustee shall be under no liability to any person for any loss of any kind which may result by reason of any action taken by it pursuant to Section 4.4 or (2) by reason of its exercising or failing to exercise any power or authority under Section 4.4. (h) Subject to the provisions of this Trust Agreement, the Trustee shall have the following additional powers and authority, in furtherance of the purpose of the Trust as described in Section 1.1, with respect to property constituting a part or all of the Trust Corpus: a. At the direction of the Company, to acquire and hold SF Securities and cash or Cash Equivalents; to sell, exchange or transfer any such property at public or private sale for cash or on credit and grant options for the purchase or exchange thereof; b. To exercise any conversion privilege or subscription right available in connection with any such property; to oppose or to consent to the reorganization, consolidation, merger or readjustment of the finances of any corporation, company or association, or to the sale, mortgage, pledge or lease of the property of any corporation, company or association, any of the securities of which may at any time be held in the Trust and to do any act with reference thereto, including the exercise of options, the making of agreements or subscriptions and the payment of expenses, assessments or subscriptions, which may be deemed necessary or advisable in connection therewith, and to hold and retain any securities or other property which it may so acquire; c. To commence or defend suits or legal proceedings and to represent the Trust in all suits or legal proceedings; to settle, compromise or submit to arbitration, any claims, debts or damages, due or owing to or from the Trust; d. To exercise, personally or by general or limited power of attorney, any right, including the right to vote, appurtenant to any SF Securities or other property; to enter into any voting agreement or voting trust, which voting agreement or voting trust shall be binding upon any successor trustee but shall not survive as to any SF Securities disposed of for value by the Trustee; e. To engage legal counsel, including counsel to the Company, or any other suitable agents, to consult with such counsel or agents with respect to the construction of this Trust Agreement, the duties of the Trustee hereunder, the transactions contemplated by this Trust Agreement or any act which the Trustee proposes to take or omit to take, to rely upon the advice of such counsel or agents, and to pay its reasonable fees, expenses and compensation; f. To register any securities held by it in its own name or in the name of any custodian of such property or of its nominee, including the nominee of any system for the central handling of securities, with or without the addition of words indicating that such securities are held in a fiduciary capacity, to deposit or arrange for the deposit of any such securities with such a system and to hold any securities in bearer form; g. At the direction of the Company, to make, execute and deliver, as Trustee, any and all deeds, leases, notes, bonds, guarantees, mortgages, conveyances, contracts, waivers, proxies, releases or other instruments in writing necessary or proper for the exercise of any of the foregoing powers; and h. To take any other action necessary or advisable in furtherance of the foregoing powers and the purposes of this Trust. SECTION 4.2 Successor Trustee. The Trustee may resign and be discharged from its duties hereunder at any time by giving to the Company notice in writing of such resignation specifying a date (not less than 30 days after the giving of such notice) when such resignation shall take effect. Promptly after such notice, the Company shall appoint an independent financial institution as successor trustee, such trustee to become Trustee hereunder upon the resignation date specified in such notice. The Trustee shall continue to serve until its successor accepts the trust and receives delivery of the Trust Corpus. The Company may at any time substitute an independent financial institution as successor trustee by giving 15 days' notice thereof to the Trustee then acting; provided, however, that, during the pendency of and within six (6) months following the cessation of a Potential Change in Control (as defined in Section 5.2(d)) and following a Change in Control (as defined in Section 5.2(c)), such substitution must be approved in writing by at least two-thirds (2/3) of the Participants (and Beneficiaries of then-deceased Participants) in the Section 4.5 Plans other than Section 4.5 Plans maintained for the benefit of non-employee directors of the Company. In the event of such removal or resignation, the Trustee shall duly file with the Company a written statement or statements of account as provided in Section 4.1(c) for the period since the last previous quarterly accounting of the Trust, and if written objection to such account is not filed within 90 days, the Trustee shall to the maximum extent permitted by applicable law be forever released and discharged from all liability and accountability with respect to the propriety of its acts and transactions shown in such account. SECTION 4.3 Limitations on Sales. Except as otherwise provided in Section 3.1(a) or 4.4(b) hereof, the Trustee shall not sell, exchange or transfer any SF Securities or grant any option for the purchase or exchange of any SF Securities (each a "Securities Transaction") unless the Trustee shall have given the Company 10 business days' prior notice of such Securities Transaction. The Trustee's notice shall state with respect to such Securities Transaction (i) the amount of SF Securities involved, (ii) whether such Securities Transaction will be effected through the public markets and (iii) the date such Securities Transaction is proposed to be entered into. If the Company is advised in writing by a recognized independent investment banking firm that such Securities Transaction would adversely affect any financing by the Company that had been contemplated by the Company prior to the receipt of such notice or if the Company determines in its good faith judgment that such Securities Transaction would require the Company to disclose material information which the Company has a bona fide business purpose for preserving as confidential or that the Company is unable to comply with SEC requirements prior to such Securities Transaction, the Company may give notice to the Trustee not to effect such Securities Transaction prior to the date specified in the Trustee's notice. Upon receipt of such a notice from the Company, the Trustee shall not effect such Securities Transaction for a period not to exceed 120 days from the date of the Company's notice or such lesser period as shall be specified in the Company's notice. SECTION 4.4 Voting and Tendering of Common Stock. (a) Voting of Common Stock. As more fully set forth herein, the manner in which shares of Common Stock held by the Trust are to be voted on each matter brought before an annual or special stockholders' meeting of the Company shall be exercised by the Trustee based upon the voting provisions contained in the Company's ESOP (or any successor or substitute employee benefit plan of the Company which the Company and the Trustee agree shall serve as the basis for implementing the provisions of this Section 4.4) (such plan being referred to herein as the "Stock Plan"). Not less than seventy-two (72) hours prior to each such meeting of stockholders, the Company shall cause the trustee of the Stock Plan to furnish to the Trustee a document setting forth the aggregate votes to be cast on each matter by such trustee with respect to shares of Common Stock (and securities convertible into Common Stock) held by the Stock Plan as of the record date for such stockholders' meeting, such votes to be based upon the instructions received as of such time from Stock Plan Participants and otherwise in accordance with the provisions of the Stock Plan then in effect, but without regard to any failure on the part of such trustee to follow such instructions or otherwise to abide by such provisions by reason of, for example, its fiduciary obligations under the Employee Retirement Security Act of 1974, as amended ("ERISA"). Upon timely receipt of such document by the Trustee, the Trustee shall on each such matter vote the number of shares (including fractional shares) of Common Stock held by the Trust in the same proportion as shares of Common Stock (and securities convertible into Common Stock) held by the Stock Plan are to be voted on such matter, based upon the preceding provisions of this Section 4.4(a). (b) Tender or Exchange of Common Stock. As more fully set forth herein, the tender or exchange of shares of Common Stock (and securities convertible into Common Stock) shall be exercised by the Trustee based upon the tender or exchange provisions contained in the Company's Stock Plan. Not less than seventy-two (72) hours prior to the scheduled expiration date of a tender or exchange offer for Shares of Common Stock, the Company shall cause the trustee of the Stock Plan to furnish to the Trustee a document setting forth the number and percentage of shares of Common Stock (and securities convertible into Common Stock) held by the Stock Plan which will be tendered or exchanged, such number and percentage to be based upon the instructions received from Stock Plan Participants and otherwise in accordance with the provisions of the Stock Plan then in effect, but without regard to any failure on the part of such trustee to follow such instructions or otherwise to abide by such provisions by reason of, for example, its fiduciary obligations under ERISA. In the event the scheduled expiration date of such offer is changed, the foregoing provisions of this Section 4.4(b) shall be applied to each subsequent scheduled expiration date. Upon timely receipt of such document by the Trustee, the Trustee shall tender the number of shares of Common Stock held by the Trust in the same proportion as shares of Common Stock (and securities convertible into Common Stock) held by the Stock Plan are to be tendered or exchanged, based upon the preceding provisions of this Section 4.4(b). (c) Nothing in this Section 4.4 shall be construed as permitting or requiring the divulging or release to any person affiliated with the Company of any confidential instructions provided to the trustee of the Stock Plan by individual Stock Plan Participants or Beneficiaries. SECTION 4.5 Certain Change in Control Provisions. Notwithstanding any other provision hereof, following a Change in Control, (defined in Section 5.2(c)), (a) the Plans shall be limited to those Plans which, immediately prior to such Change in Control, are designated on Exhibit A hereto as "Section 4.5 Plans" until such time as all liabilities under such Section 4.5 Plans have been satisfied, (b) benefits under each Section 4.5 Plan shall be deemed to include payment or reimbursement to each Participant or Beneficiary of such Section 4.5 Plan of legal fees and other expenses incurred by such Participant or Beneficiary in seeking to obtain benefits or otherwise to enforce his or her rights under such Section 4.5 Plan, and (c) the Trustee shall make payment to a Participant or Beneficiary of any such Section 4.5 Plan in accordance with written instructions received from such Participant or Beneficiary, which instructions shall include a certification (i) that such Participant or Beneficiary is entitled to payment under the Section 4.5 Plan, (ii) of the amount of such payment, (iii) that the Corporation has not made payment of such amount, and (iv) that a copy of such instructions has been provided to the Company. Unless the Company objects to the payment called for by such instructions within 10 business days of its receipt thereof (the bases for such objection by the Company being limited to (i) the Company's Insolvency (as defined in Section 3.4 hereof) and (ii) the amount of such payment clearly not being payable under the appropriate Section 4.5 Plan), the Trustee shall make payment to the Participant or Beneficiary in accordance with such instructions. In the event the Trustee receives such objection within such 10-day period, it shall not make payment until receipt of, and then in accordance with, written instructions from the Company and the Participant or Beneficiary. ARTICLE V. TERMINATION, AMENDMENT AND WAIVER SECTION 5.1 Termination. The Trust shall be terminated on the earlier of the twentieth anniversary of the date hereof or the date on which any of the following events occurs (the "Termination Date"): (a) the Corporation's obligations under the Plans are satisfied in full; (b) the Trust Corpus is exhausted; or (c) such date as may be established by resolution of the Board, provided, however, that during the period specified in Section 5.2(b) hereof, the Board may not act to terminate the Trust. Upon termination of the Trust, any remaining portion of the Trust Corpus shall be applied in the following order: first, to satisfy any outstanding indebtedness of the Trust; second, as directed by the Company or its delegate pursuant to Section 3.1(a); and third, to fund obligations of the Corporation, or otherwise provide benefits to current employees of the Corporation, under one or more employee benefit plans, agreements, programs or arrangements (other than Plans). In no event shall the Company receive any distribution of the Trust Corpus upon termination of the Trust, except in repayment of indebtedness to the Company incurred by the Trustee or in reimbursement of payments made by the Corporation in satisfaction of its obligations under the Plans. SECTIONS 5.2 Amendment and Waiver. (a) Prior to a Potential Change in Control (as defined in Section 5.2(d), the Company and the Trustee may amend this Trust Agreement, including Exhibit A attached hereto, which is an integral part of this Trust Agreement, by written instrument executed and duly authorized by the Company and the Trustee; however, no such amendment shall accelerate the Termination Date or permit the Company to receive any distribution prohibited by the last sentence of Section 5.1. (b) During the pendency of and within six (6) months following the cessation of a Potential Change in Control (as defined in Section 5.2(d)) and following a Change in Control (as defined in Section 5.2(c)), this Trust Agreement may be amended in the manner and subject to the provisions of Section 5.2(a); provided, however, that if any such amendment would be adverse in any way to the interests of any Participant or Beneficiary (an "Adverse Amendment"), then such amendment must be approved in writing by at least two-thirds (2/3) of the Participants (and Beneficiaries of then-deceased Participants) in the Section 4.5 Plans other than Section 4.5 Plans maintained for the benefit of non-employee directors of the Company. For purposes of this Section 5.2(b), an Adverse Amendment shall include, but not be limited to, (i) an amendment which removes one or more Plans from Exhibit A hereto or which would change the status of any Plan as a "Section 4.5 Plan"; (ii) any amendment to Sections 2.2, 3.2 or 4.5 hereof or to this Article V. (c) A "Change in Control" shall be deemed to have occurred when and only when the first of the following events occurs: a. any "person" (as that term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), other than (1) any employee plan established by the Corporation, (2) the Corporation, (3) an underwriter temporarily holding securities pursuant to an offering of such securities, or (4) a corporation owned, directly or indirectly, by stockholders of the Corporation in substantially the same proportions as their ownership of the Corporation) is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 20% or more of the combined voting power of the Company's then outstanding voting securities; or b. during any period of two consecutive years, individuals who at the beginning of such period constituted the Board and any new director (other than an individual whose nomination for election is in connection with an actual or threatened election contest relating to the election of the directors of the Company, as such terms are used in Rule 14a-11 of Regulation 14A under the Exchange Act) whose appointment, election, or nomination for election by the Company's shareholders, was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose appointment, election or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board; or c. there is consummated a merger or consolidation of the Company or a subsidiary thereof with or into any other corporation, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding securities which represent immediately after such merger or consolidation more than 80% of the combined voting power of the voting securities of either the Company or the other entity which survives such merger or consolidation or the parent of the entity which survives such merger or consolidation; or d. there is consummated a sale or disposition by the Company of all or substantially all the Company's assets. (d) A "Potential Change in Control" shall be deemed to have occurred if the conditions set forth in any one of the following paragraphs shall have been satisfied: (i) any person (as defined in Section 5.2(c)(i) above) is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company's then outstanding voting securities; or (ii) the Company enters into an agreement, the consummation of which would result in the occurrence of a Change in Control; or (iii) any person (as defined in Section 5.2(c)(i) above) publicly announces an intention to take or to consider taking actions which, if consummated, would constitute or result in a Change in Control; or (iv) any person (as defined in Section 5.2(c)(i) above) commences a solicitation (as defined in Rule 14a-1 of the General Rules and Regulations under the Exchange Act) of proxies or consents which has the purpose of effecting or would (if successful) result in a Change in Control; or (v) a tender or exchange offer for voting securities of the Company, made by a person (as defined in Section 5.2(c)(i) above), is first published or sent or given (within the meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act). ARTICLE VI GENERAL PROVISIONS SECTION 6.1 Certain Provisions Relating to This Trust Agreement. (a) This Trust Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and legal representatives. (b) This Trust Agreement shall be governed by and construed in accordance with the laws of Delaware, without reference to any provisions of such laws regarding choice of laws or conflict of laws. (c) In the event that any provision of this Trust Agreement or the application thereof to any person or circumstances shall be determined by a court of proper jurisdiction to be invalid or unenforceable to any extent, the remainder of this Trust Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each other provision of this Trust Agreement shall be valid and enforced to the fullest extent permitted by law. SECTION 6.2 Notices. Any notice, report, demand or waiver required or permitted hereunder shall be in writing and shall be given personally, delivered by overnight delivery service or sent by telecopier, addressed as follows: If to the Company: Savannah Foods & Industries, Inc. 2 East Bryan Street Savannah, Georgia 31401 Attention: Senior Vice President, Chief Financial Officer and Treasurer If to the Trustee: Wachovia Bank of North Carolina, N.A. P.O. Box 3099 Winston-Salem, North Carolina 27150 Mail Code NC-31013 Attention: Beverley H. Wood Senior Vice President Notices shall be effective only upon receipt. The Company or Trustee may change the address to which notices, requests and other communications are to be sent to it by giving written notice of such address change to the other parties in conformity with this Section 6.2. SECTION 6.3 Gender and Number. Wherever any words are used herein in the masculine gender, they shall be construed as though they were also used in the feminine gender in all cases where they would so apply, and wherever any words are used herein in the singular form, they shall be construed as though they were also used in the plural form in all cases where they would so apply. Likewise, wherever any words are used herein in the plural form, they shall be construed as though they were also used in the singular form in all cases where they would so apply. SECTION 6.4 Headings. The headings and subheadings of this Agreement have been inserted for convenience of reference and are to be ignored in any construction of the provisions hereof. SECTION 6.5 No Third Party Beneficiaries. Nothing in this Trust, express or implied, is intended to or shall confer on any particular person, other than the Company and the Trustee, any right, benefit or remedy of any nature whatsoever under or by reason of this Trust, and no such person shall have any right, title or interest in or any claim to the Trust Corpus except to the extent expressly provided in Section 5.1 upon termination of this Trust. In particular, it is the express intent of the parties that (i) this Trust shall not form part of any of the Plans, (ii) neither any Plan nor any Participant in any of the Plans (nor any Beneficiary of such Participant) shall have any right, title or beneficial ownership or other interest in or any claim (preferred or otherwise) to the Trust Corpus, nor shall any such participant have any right to compel, restrain or otherwise direct the exercise of the respective powers of Trustee and the Company hereunder, it being understood that the rights of each such Participant (and Beneficiary) shall be determined in accordance with the provisions of the Plans and (iii) the Trust Corpus shall not be deemed to be held under any trust for the benefit of any such Participant (or Beneficiary) or to be collateral security for the performance of the obligations of the Corporation. SECTION 6.6 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together constitute but one instrument, which may be sufficiently evidenced by any counterpart. SECTION 6.7 Directions by Company. Except as otherwise provided herein, all directions by the Company to the Trustee shall be effected by any two officers of the Company from the group of officers consisting of the Chief Executive Officer, Chief Financial Officers, Executive Vice Presidents and Senior Vice Presidents. The Company shall provide to the Trustee an incumbency certificate with respect to each member of the foregoing group of officers and, in the absence of actual knowledge to the contrary, the Trustee shall be conclusively entitled to rely on such certificates as to each such individual's authority to provide directions to the Trustee hereunder. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed under seal in their respective names by their duly authorized officers the day and year first above written. SAVANNAH FOODS & INDUSTRIES, INC. By /s/ GREGORY H. SMITH Name: Gregory H. Smith Title: Senior Vice President, Chief Financial Officer and Treasurer WACHOVIA BANK OF NORTH CAROLINA, N.A., solely in its capacity as trustee under this Trust Agreement By /s/ BEVERLY H. WOOD Name: Beverly H. Wood Title: Senior Vice President EXHIBIT A SAVANNAH FOODS & INDUSTRIES, INC. PLANS Section 4.5 Plans 1. Deferred Compensation Plan for Key Employees of Savannah Foods & Industries, Inc. and Subsidiaries (effective August 1, 1990), as amended, and all deferred compensation agreements or elections made thereunder 2. Deferred Compensation Plan for Key Employees of Savannah Foods & Industries, Inc. (Amendment and Restatement effective August 12, 1983), as amended, and all deferred compensation agreements or elections made thereunder 3. Deferred Compensation Plan for Key Employees of Michigan Sugar Company (initially effective January 1, 1985), as amended, and all deferred compensation agreements or elections made thereunder 4. Deferred Compensation Plan for directors of Savannah Foods & Industries, Inc. (amended and restated effective August 4, 1989), as amended, and all deferred compensation agreements or elections made thereunder 5. Supplemental Executive Retirement Plan (SERP) of Savannah Foods & Industries, Inc. and Subsidiaries (Second Amendment and Restatement Effective January 1, 1989), as amended, and all deferred compensation agreements or elections made thereunder 6. Deferred Compensation Agreement between Walter C. Scott and Savannah Foods & Industries, Inc. (dated December 27, 1984) 7. Deferred Compensation Agreement between William W. Sprague, Jr. and Savannah Foods & Industries, Inc. (dated October 5, 1992) 8. Deferred Compensation Agreement between Ernest Flegenheimer and Michigan Sugar Company (dated September 8, 1992) Other Plans 1. Savannah Foods & Industries, Inc. Employee Stock Ownership Plan, amended and restated effective January 1, 1989 2. Retirement Income Plan for Employees of Savannah Foods & Industries, Inc., effective July 1, 1934 -----END PRIVACY-ENHANCED MESSAGE-----