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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 14, 1997
REGISTRATION NO. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SAVANNAH FOODS & INDUSTRIES, INC.
(Exact Name of Registrant as specified in its Charter)
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DELAWARE 58-1089367
(State of Incorporation) (I.R.S. Employer Identification No.)
2 EAST BRYAN STREET 31402
SAVANNAH, GEORGIA (Zip Code)
(Address of Principal Executive Offices)
SAVANNAH FOODS & INDUSTRIES, INC.
1996 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
MR. GREGORY H. SMITH
SENIOR VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND TREASURER
SAVANNAH FOODS & INDUSTRIES, INC.
2 EAST BRYAN STREET
SAVANNAH, GEORGIA 31402
(Name and Address of Agent for Service)
(912) 234-1261
(Telephone Number, including Area Code, of Agent for Service)
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with copies to:
WARD S. BONDURANT, ESQ.
HUNTER, MACLEAN, EXLEY & DUNN, P.C.
THE PEACHTREE, SUITE 640
1355 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30309
(404) 876-3611
CALCULATION OF REGISTRATION FEE
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Title of securities Amount to be Proposed maximum Proposed Maximum Amount of
to be registered registered offering price per aggregate offering registration fee
share(1) price(1)
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Common Stock, 1,250,000 shares(2) $14.8125 $18,515,625 $5,610.80
$0.25 par value
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Total Registration Fee: $5,610.80
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(1) The price is estimated in accordance with Rule 457(h)(1) and 457(c)
under the Securities Act of 1933, solely for the purpose of
calculating the registration fee and is based upon the average of the
high and low sales price of the shares of Common Stock of the
Registrant quoted on the New York Stock Exchange on March 11, 1997.
(2) This represents the maximum number of shares of the Registrant's
Common Stock, $0.25 par value per share, reserved for issuance under
the 1996 Equity Incentive Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the employee benefit plan information required by
Item 1 of Form S-8 and the statement of availability of Registrant information
and any other information required by Item 2 of Form S-8 will be sent or given
to participants as specified by Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"). In accordance with Rule 428 and the
requirements of Part I of Form S-8, such documents are not being filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act. The Registrant shall maintain a file of
such documents in accordance with the provisions of Rule 428. Upon request, the
Registrant shall furnish to the Commission or its staff a copy or copies of all
of the documents included in such file.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the
year ended September 29, 1996;
(b) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange Act since September 29, 1996;
(c) The description of the Registrant's common stock to
be offered hereby which is contained in the Registration Statement on
Form 8-A filed pursuant to Section 12 of the Exchange Act on September
25, 1992, including any amendments or reports filed for the purpose of
updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of
filing of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference and to be a part of this Registration Statement
from the date of the filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Subsection (b)(7) of Section 102 of the General Corporation Law of
the State of Delaware (the "GCL") empowers a corporation in its original
certificate of incorporation or an amendment hereto validly approved by
stockholders to eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision cannot eliminate or limit the
liability of a director for (i) breach of his duty of loyalty, (ii) acts or
omissions not in good faith or which involve intentional misconduct or knowing
violation of law, (iii) payment of a stock dividend or approval of a stock
repurchase which was illegal under Section 174 of the GCL or (iv) any
transaction from which he derived an improper personal benefit.
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Reference is made to Section 145 of the GCL relating to the
indemnification of directors and officers of a Delaware corporation.
Article Ninth of the Company's Amended Certificate of Incorporation
provides for limitation of liability of directors, and indemnification of
directors, officers and others as follows:
NINTH: No Director shall be personally liable to the
Corporation or any stockholder for monetary damages for breach of
fiduciary duty as a Director, except for any matter in respect of
which such Director shall be liable under Section 174 of Title 8 of
the Delaware Code (relating to the Delaware General Corporation Law)
or any amendment thereto or successor provision thereto or shall be
liable by reason that, in addition to any and all other requirements
for such liability, he (i) shall have breached his duty of loyalty to
the Corporation or its stockholders, (ii) shall not have acted in good
faith or, in failing to act, shall not have acted in good faith, (iii)
shall have acted in a manner involving intentional misconduct or a
knowing violation of law or, in failing to act, shall have acted in a
manner involving intentional misconduct or a knowing violation of law,
or (iv) shall have derived an improper personal benefit. Neither the
amendment nor repeal of this Article Ninth, nor the adoption of any
provision of the Certificate of Incorporation inconsistent with this
Article Ninth shall eliminate or reduce the effect of this Article
Ninth in respect of any matter occurring, or any cause of action,
suit, or claim that, but for this Article Ninth would accrue or arise,
prior to such amendment.
Article VI of the Company's By-Laws provides that the Corporation
shall, to the fullest extent permitted by Section 145 of the GCL, indemnify any
and all persons whom it shall have power to indemnify under said Section from
and against any and all of the expenses, liabilities or other matters referred
to in, or covered by said Section.
Section 5.3 of the 1996 Equity Incentive Plan (the "Plan") provides
that neither the Board of Directors of the Registrant nor the committee of the
Board of Directors established to administer the Plan, nor any member of
either, shall be liable for any act, omission, interpretation, construction or
determination made in good faith in connection with the Plan. Under Section
5.3 of the Plan, the members of the Board of Directors or of the aforementioned
committee of the Board of Directors of the Registrant shall be entitled to
indemnification and reimbursement by the Registrant in respect of any claim,
loss, damage or expense (including, without limitation, attorneys' fees)
arising or resulting therefrom to the fullest extent permitted by law and/or
under any directors and officers liability insurance coverage which may be in
effect from time to time.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Certificate of Incorporation of the Registrant, as amended
(previously filed as Exhibit 3.1 to the Registrant's Form 10-K
for the year ended January 3, 1993)
4.2 By-Laws of the Registrant, as amended (previously filed as
Exhibit 3.3 to the Registrant's Form 10-K for the year ended
October 1, 1995)
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4.3 Savannah Foods & Industries, Inc., 1996 Equity Incentive Plan
(and form of Award Agreement).
5.1 Opinion of Hunter, Maclean, Exley & Dunn, P.C.
23.1 Consent of Hunter, Maclean, Exley & Dunn, P.C. is contained in
its legal opinion filed as Exhibit 5.1.
23.2 Consent of Price Waterhouse LLP.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act, as amended;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) to include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 and Section
15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended, each such post-effective
amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
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(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, as amended,
each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act, as amended, may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described in
Item 6 above, or otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933, as amended,
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Savannah, State of Georgia, on February 20, 1997.
SAVANNAH FOODS & INDUSTRIES, INC.
By: /S/WILLIAM W. SPRAGUE, III
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William W. Sprague, III
President and Chief Executive
Officer
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Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities
indicated on the 20th day of February, 1997.
Signature Title
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/S/ R. EUGENE CARTLEDGE Director, Chairman of the Board
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R. Eugene Cartledge
/S/ WILLIAM W. SPRAGUE, III Director, President and Chief Executive Officer
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William W. Sprague, III
/S/ GREGORY H. SMITH Senior Vice President, Chief Financial Officer and
-------------------------------------- Treasurer
Gregory H. Smith
/S/ F. SPRAGUE EXLEY Director, Senior Vice President Human Resources and
-------------------------------------- Administration and Assistant Secretary
F. Sprague Exley
/S/ JAMES M. KELLEY Senior Vice President; President of Dixie Crystals
-------------------------------------- Brands, Inc.
James M. Kelley
/S/ DAVID H. ROCHE Senior Vice President; President of Michigan Sugar
-------------------------------------- Company and Savannah Foods Industrial, Inc.
David H. Roche
/S/ BENJAMIN A. OXNARD, JR. Senior Vice President, Raw Sugar
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Benjamin A. Oxnard, Jr.
/S/ DALE C. CRITZ Director
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Dale C. Critz
/S/ ARTHUR M. GIGNILLIAT, JR. Director
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Arthur M. Gignilliat, Jr.
/S/ ROBERT S. JEPSON, JR. Director
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Robert S. Jepson, Jr.
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Signature Title
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Director
/S/ ARNOLD TENENBAUM
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Arnold Tenenbaum
/S/ W. WALDO BRADLEY Director
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W. Waldo Bradley
/S/ JOHN D. CARSWELL Director
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John D. Carswell
/S/ HUGH M. TARBUTTON Director
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Hugh M. Tarbutton
/S/ LEE B. DURHAM, JR. Director
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Lee B. Durham, Jr.
/S/ ROBERT L. HARRISON Director
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Robert L. Harrison
/S/ JAMES M. REED Director
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James M. Reed
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EXHIBIT INDEX
4 .1 Certificate of Incorporation of the Registrant, as amended
(previously filed as Exhibit 3.1 to the Registrant's Form 10-K
for the year ended January 3, 1993)
4 .2 By-Laws of the Registrant, as amended (previously filed as
Exhibit 3.3 to the Registrant's Form 10-K for the year ended
October 1, 1995)
4 .3 Savannah Foods & Industries, Inc., 1996 Equity Incentive Plan
(and form of Award Agreement).
5 .1 Opinion of Hunter, Maclean, Exley & Dunn, P.C.
23.1 Consent of Hunter, Maclean, Exley & Dunn, P.C. is contained in
its legal opinion filed as Exhibit 5.1.
23.2 Consent of Price Waterhouse LLP.
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