GOLDEN ENTERPRISES, INC.
One Golden Flake Drive
Birmingham, Alabama 35205
NOTICE OF ANNUAL MEETING
Notice Is Hereby Given that the Annual Meeting of the Stockholders of
Golden Enterprises, Inc., (the "Company") a Delaware Corporation, will be held
at the general offices of the Company, at One Golden Flake Drive, Birmingham,
Alabama on September 24, 2009, at 11:00 A.M., Birmingham time, for the following
purposes:
1. To elect a Board of Directors.
2. To transact such other business as may properly come before the meeting.
Stockholders of record at the close of business on July 31, 2009, are
entitled to notice of and to vote at the meeting. All Stockholders are cordially
invited to attend the meeting.
By Order of the Board of Directors
John S. Stein
Chairman
Birmingham, Alabama
September 1, 2009
HOLDERS OF A MAJORITY OF THE OUTSTANDING SHARES MUST BE PRESENT EITHER
IN PERSON OR BY PROXY IN ORDER TO HOLD THE MEETING. TO INSURE YOUR
REPRESENTATION AT THE MEETING, YOU ARE REQUESTED TO SIGN THE ENCLOSED PROXY AND
RETURN IT IN THE ACCOMPANYING ENVELOPE. IF YOU ARE ABLE TO ATTEND THE MEETING,
YOU MAY REVOKE THE PROXY AND VOTE YOUR SHARES PERSONALLY AT ANY TIME BEFORE THE
PROXY IS EXERCISED.
1
PROXY STATEMENT
GENERAL
The annual meeting of the stockholders of Golden Enterprises, Inc. (the
"Company") will be held at the general offices of the Company, at One Golden
Flake Drive, Birmingham, Alabama on September 24, 2009, at 11:00 A.M. All
holders of record of common stock as of July 31, 2009, will be entitled to vote
at the meeting and any adjournment thereof.
The purpose of this proxy solicitation is to enable those stockholders
who will be unable to personally attend the meeting to vote their stock.
Important Notice Regarding Availability of Proxy Materials for
Shareholder Meeting to be Held on September 24, 2009: This Proxy Statement,
Proxy Card and the Annual Report are available on line at
www.goldenflake.com/financial.html.
PERSONS MAKING THE SOLICITATION
This proxy is solicited on behalf of the Board of Directors of Golden
Enterprises, Inc. The cost of solicitation will be paid by the Company and will
include reimbursement paid to brokerage firms and others for their expenses in
forwarding solicitation material regarding the meeting to beneficial owners. In
addition to solicitation by mail, officers and regular employees of the Company
may solicit proxies by telephone, email, or personal interview at no additional
compensation.
SECURITY HOLDERS ENTITLED TO VOTE
Holders of shares of common stock of the Company of record at the close
of business on July 31, 2009, will be entitled to vote at the Annual Meeting and
at any and all adjournments thereof. Each share of common stock entitles its
owner to one vote. The number of shares of common stock of the Company
(exclusive of treasury shares) outstanding at the close of business on July 31,
2009 was 11,746,632 shares.
Stockholders who execute proxies retain the right to revoke them at any
time before they are voted. If the enclosed proxy is properly signed and
returned to the Company and not so revoked, the shares represented thereby will
be voted in accordance with its terms.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
At July 31, 2009, SYB, Inc., the Estate of Sloan Y. Bashinsky, Sr.,
deceased, and New York Life Insurance Company, as Trustee of the Golden
Enterprises, Inc., and subsidiaries Employee Stock Ownership Plan, were the only
persons known by the Company who beneficially owned more than 5% of the
outstanding voting securities of the Company. The following table sets forth the
number of shares of common stock of the Company beneficially owned by these
persons.
Name and Address of Amount and Nature of Percent of
Beneficial Owner Beneficial Ownership (1) Class
---------------- ------------------------ -----
Direct Indirect
------ --------
SYB, Inc. 5,283,128 -0- 45.0%
3432 Briarcliff Road East
Birmingham, Alabama 35223
2
Name and Address of Amount and Nature of Percent of
Beneficial Owner Beneficial Ownership (1) Class
---------------- ------------------------ -----
Direct Indirect
------ --------
The Estate of Sloan Y. Bashinsky, Sr. 1,014,500 -0- 8.6%
2117 Second Avenue N.
Birmingham, Alabama 35203
New York Life Trust Company, as Trustee -0- 591,155 (2) 5.0%
of the Golden Enterprises, Inc.
and subsidiaries Employee
Stock Ownership Plan
169 Lackawanna Avenue
Parsippany, NJ 07054 (a)
-----------------
(1) An indirect beneficial owner as this term is interpreted by the Securities
and Exchange Commission (SEC) includes any person who has or shares the (1)
voting power which includes the power to vote or to direct the voting of
such security, and/or (2) investment power which includes the power to
dispose, or to direct the disposition of such security.
(2) The Employee Stock Ownership Plan provides that the shares held by the
Trustee are voted by an administrative committee made up of 3 members. The
Board of Directors of the Company determines the members of the committee.
Present members of the administrative committee are: John S. Stein,
Chairman of the Board, Mark W. McCutcheon, Chief Executive Officer and
President of the Company and President of Golden Flake Snack Foods, Inc.,
and Patty Townsend, Chief Financial Officer, Vice President and Secretary
of the Company.
(a) The Employee Stock Ownership Plan is an employee benefit plan qualified
under ss.401(a) of the Internal Revenue Code and subject to the Employee
Retirement Income Security Act of 1974.
Security Ownership of Management
The following table shows the shares of common stock of Golden
Enterprises, Inc., beneficially owned, directly or indirectly, by each Director
and Nominee for Director and all Directors and Officers of the Company as a
group at July 31, 2009:
Amount and Nature of Percent of
Beneficial Ownership (1) Class
------------------------ -----
Name Direct Indirect
---- ------ --------
John S. Stein (a) (b) (c) 338,280 (2) -0- (3) (5) 2.9%
J. Wallace Nall, Jr. -0- 196,000 (3) (6) 1.7%
F. Wayne Pate 141,993 (3) (7) 1.2%
32
Edward R. Pascoe 25,000 -0- *
John P. McKleroy, Jr. (d) (e) (f) 40,000 (4) -0- (3) *
James I. Rotenstreich 9,533 -0- *
John S. P. Samford 1,666 -0- *
Joann F. Bashinsky (g) (h) 12,704 -0- (3) *
Mark W. McCutcheon 4,455 -0- (3) (5) *
Randy Bates 4,464 -0- *
David Jones 928 -0- *
Patty Townsend -0- -0- (3) (5) *
All Directors and
Officers as a group 579,023 196,032 6.6%
------------------
*Less than one percent of class
3
(1) An indirect beneficial owner as this term is interpreted by the Securities
and Exchange Commission (SEC) includes any person who has or shares the (1)
voting power which includes the power to vote or to direct the voting of
such security, and/or (2) investment power which includes the power to
dispose of, or to direct the disposition of, such security.
(2) Includes 49,426 shares held by a personal IRA account for the benefit of
John S. Stein.
(3) Each designated director is a member of the Voting Committee created under
the Will and under the SYB, Inc. Common Stock Trust of Sloan Y. Bashinsky,
Sr. ("Bashinsky"). As a member of the Voting Committee, each designated
director participates in the vote of the shares of common stock of the
Company owned by SYB, Inc. (5,283,128 shares) and by the
Estate/Testamentary Trust of Bashinsky (1,014,500 shares). Patty Townsend,
an officer of the Company, is also a member of the Voting Committee. The
decision of the majority of the members of the Voting Committee governs how
the stock is voted. The members of the Voting Committee do not possess and
specifically disclaim any beneficial ownership of the shares owned by SYB,
Inc. and the Estate/Testamentary Trust of Bashinsky.
(4) Includes 33,490 shares held by a 401(k) profit sharing plan and personal
IRA account for the benefit of John P. McKleroy, Jr.
(5) Does not include any portion of the 591,155 shares of common stock of the
Company which are owned by New York Life Insurance Company, as Trustee of
the Golden Enterprises, Inc. and subsidiaries Employee Stock Ownership
Plan. John S. Stein, Mark W. McCutcheon and Patty Townsend are members of
the Plan's administrative committee and exercise the voting power of the
shares and each disclaims any beneficial ownership of such shares with the
exception of the following shares which are vested in their respective
accounts as an employee-participant under the Plan: Stein -0-, McCutcheon
3,403 and Townsend 791.
(6) Shares owned by Nall Development Corporation, a corporation of which J.
Wallace Nall, Jr. is a Director and President. For SEC reporting purposes,
Mr. Nall is deemed the beneficial owner of such shares. Except for SEC
reporting purposes, Mr. Nall disclaims beneficial ownership of such shares.
(7) Includes 32 shares owned by the wife of F. Wayne Pate.
(a) Mr. Stein is a Director and President of SYB, Inc. which owns 5,283,128
shares of the Company's stock. Mr. Stein does not possess and specifically
disclaims any beneficial ownership of these shares.
(b) Mr. Stein is a Director and officer of the Bashinsky Foundation, Inc.,
which owns 400,544 shares of the Company's stock. Mr. Stein does not
possess and specifically disclaims any beneficial ownership of these
shares.
(c) Mr. Stein is designated under the Will of Sloan Y. Bashinsky, Sr.,
deceased, as a Co-Personal Representative/Co-Trustee of his Estate and
Testamentary Trust. The Estate and Trust own 1,014,500 shares of the
Company stock. Mr. Stein does not possess and specifically disclaims any
beneficial ownership of these shares.
(d) Mr. McKleroy is a Director and Secretary of SYB, Inc. which owns 5,283,128
shares of the Company's stock. Mr. McKleroy does not possess and
specifically disclaims any beneficial ownership of these shares.
(e) Mr. McKleroy is a Director and officer of the Bashinsky Foundation, Inc.,
which owns 400,544 shares of the Company's stock. Mr. McKleroy does not
possess and specifically disclaims any beneficial ownership of these
shares.
(f) Mr. McKleroy is designated under the Will of Sloan Y. Bashinsky, Sr.,
deceased, as a Co-Personal Representative/Co-Trustee of his Estate and
Testamentary Trust. The Estate and Trust own 1,014,500 shares of the
Company stock. Mr. McKleroy does not possess and specifically disclaims any
beneficial ownership of these shares.
(g) Mrs. Bashinsky is a Director, Chairman and CEO of SYB, Inc., which owns
5,283,128 shares of the Company's stock. Mrs. Bashinsky does not possess
and specifically disclaims any beneficial ownership of these shares.
(h) Mrs. Bashinsky is a Director, Chairman and CEO of the Bashinsky Foundation,
Inc., which owns 400,544 shares of the Company's stock. Mrs. Bashinsky does
not possess and specifically disclaims any beneficial ownership of these
shares.
Each Director has the sole voting and investment power of the shares directly
owned by him/her.
4
Voting Control
--------------
Sloan Y. Bashinsky, Sr. died on August 2, 2005. At the time of Mr.
Bashinsky's death, he beneficially owned 6,698,172 shares of common stock of the
Company which constitutes voting control of the Company. The stock beneficially
owned by Mr. Bashinsky was registered in and held by the following entities:
SYB, Inc. 5,283,128 shares
SYB, Inc. as Trustee
of the Sloan Y. Bashinsky,
Sr. Trust dated February 16, 1982 1,000,000 shares
Bashinsky Foundation, Inc. 400,544 shares
Sloan Y. Bashinsky, Sr. 14,500 shares
As a result of Mr. Bashinsky's death, and the probate of his will on
August 12, 2005, the 1,000,000 shares held in the SYB, Inc. Trust and the 14,500
shares held in his name passed to his Estate/Testamentary Trust created under
his Will. SYB, Inc. continues to own the 5,283,128 shares and the Bashinsky
Foundation, Inc. continues to own the 400,544 shares.
John S. Stein, Joann F. Bashinsky and John P. McKleroy, Jr., Directors
of the Company, each serves as a Director and officer of Bashinsky Foundation,
Inc. The stock of the Company owned by Bashinsky Foundation, Inc. is voted by
its board of directors and is not subject to the Voting Committee, as described
below.
John S. Stein, Joann F. Bashinsky and John P. McKleroy, Jr., Directors
of the Company, each serves as a director and officer of SYB, Inc. The voting
stock of SYB, Inc. is vested in the SYB, Inc. Common Stock Trust and John P.
McKleroy, Jr. serves as a Co-Trustee of this Trust.
John S. Stein and John P. McKleroy, Jr. are designated under Mr.
Bashinsky's Will as Co-Personal Representatives of his Estate and as Co-Trustees
of his Testamentary Trust ("Testamentary Trust").
Mr. Bashinsky's Will and the SYB, Inc. Common Stock Trust provide that
shares of the Company held by SYB, Inc. and his Estate/Testamentary Trust, along
with the voting shares of SYB, Inc. shall be voted by a committee made up of
members of the Board of Directors of Golden Enterprises, Inc. and one member
designated by his Estate Personal Representatives/Trustees ("Voting Committee").
Consequently, the 5,283,128 shares of the Company stock held by SYB, Inc. and
the 1,014,500 shares of the Company stock held by Mr. Bashinsky's
Estate/Testamentary Trust, all of which constitute a majority of the stock of
the Company, are voted by the Voting Committee. The Voting Committee presently
consists of John S. Stein, J. Wallace Nall Jr., F. Wayne Pate, John P. McKleroy,
Jr., Joann F. Bashinsky and Mark W. McCutcheon, all directors of the Company,
along with Patty Townsend, an officer of the Company. The decision of a majority
of the members of the Voting Committee governs how the stock is voted.
The Voting Committee will continue to vote the Company stock owned by
SYB, Inc. (5,283,128 shares) and by the Estate/Testamentary Trust (1,014,500
shares), respectively, until the SYB, Inc. Common Stock Trust and the
Testamentary Trust terminate. The Testamentary Trust will terminate upon the
death of Joann F. Bashinsky and the SYB, Inc. Common Stock Trust will terminate
upon the earliest to occur of the following dates: (i) in the event the Company
should be sold, five (5) years from the date of the sale of the Company, or (ii)
December 31, 2020.
5
Upon termination of the SYB, Inc. Common Stock Trust, the assets of the
Trust will be distributed to Sloan Y. Bashinsky, Sr.'s descendants and control
of the Company stock held by SYB, Inc. (5,283,128 shares) will transfer to these
descendants and the Voting Committee will cease to vote these shares. Upon
termination of the Testamentary Trust, the Company stock held by the
Testamentary Trust will transfer to various charitable organizations and the
Voting Committee will cease to vote these shares.
ELECTION OF DIRECTORS
At the Annual Meeting, nine Directors are to be elected, each to hold
office until the next Annual Meeting of Stockholders, or until a successor has
been elected and qualified. All nominees are presently members of the Board of
Directors and were elected to the Board by vote of the stockholders at the last
annual meeting. Proxies can not be voted for a greater number of persons than
the number of nominees named.
Shares represented by your proxy will be voted in accordance with your
direction as to the election as directors of the persons hereinafter listed as
nominees. In the absence of direction, the shares represented by your proxy will
be voted FOR such election. Should any of the persons listed as nominees become
unavailable as a nominee for election, it is intended that the shares
represented by your proxy will be voted for the balance of those named and for a
substitute nominee or nominees proposed by the Board of Directors unless the
Board reduces the number of directors, but the Board knows of no reason to
anticipate that this will occur.
The following table shows the names of the nominees for election as
directors, their respective ages as of July 31, 2009, the principal occupation,
business experience and other directorships held by such nominees, and the
period during which such nominees have served as directors of the Company.
Principal Occupation
Business Experiences Director
Name and Age and Other Directorships Since
------------ ----------------------- -----
John S. Stein, 72 Mr. Stein is Chairman of the Board. He was elected 1971
Chairman on June 1, 1996. He served as Chief
Executive Officer from 1991 to April 4, 2001, and as
President from 1985 to 1998 and from June 1, 2000 to
April 4, 2001. Mr. Stein also served as President of
Golden Flake Snack Foods, Inc. from 1976 to 1991. Mr.
Stein retired as an employee with the Company on May
31, 2002.
Edward R. Pascoe, 72 Mr. Pascoe is retired Chairman of the Board of Steel 1971
City Bolt & Screw, Inc. (formerly Coosa Acquisition,
Inc.) which, in 1995, acquired the bolt and special
fastener business owned by the Company. He served as
President of Steel City Bolt & Screw, Inc. and Nall &
Associates, Inc., which were wholly-owned subsidiaries
of the Company, from 1972 and 1973, respectively,
until 1995.
6
John P. McKleroy, Jr., 65 Mr. McKleroy is an attorney and member with Spain & 1976
Gillon, L.L.C., and general counsel for the Company.
He has practiced law with this firm since 1968.
James I. Rotenstreich, 71 Mr. Rotenstreich is Chairman and Chief Executive 1984
Officer of JHF Holdings, Inc. ("JHF"), a company
formerly doing business under the name of Jefferson
Home Furniture Company, Inc. He has served as Chief
Executive Officer since 1967 and as Chairman since
1992. In May of 1994, JHF sold its retail home
furniture interest and is presently engaged in real
estate and investment holdings.
John S. P. Samford, 59 Mr. Samford is President and sole owner of Samford 1984
Capital Corporation, an investment holding
company which he formed in 1989.
J. Wallace Nall, Jr., 69 Mr. Nall is President of Nall Development Corporation 1991
and a General Partner of Nall Partnership, Ltd. He has
held these positions since 1981. Nall Development
Corporation is an investment holding company and Nall
Partnership, Ltd. is a real estate investment and
development company.
F. Wayne Pate, 74 Mr. Pate retired as President of the Company on May 1992
31, 2000. He served as President from November 1,
1998 until retirement. He also served as President of
Golden Flake Snack Foods, Inc., a wholly-owned sub-
sidiary of the Company from September 20, 1991, to
November 1, 1998.
Joann F. Bashinsky, 77 Mrs. Bashinsky is Chairman and CEO of SYB, Inc., an 1996
investment holding company, which is a principal owner
of the Company. Mrs. Bashinsky served as Vice
President of SYB, Inc. from 1981 until August 8, 2005,
at which time she was elected Chairman and CEO. Mrs.
Bashinsky also serves as Chairman and CEO of Bashinsky
Foundation, Inc., a private charitable foundation.
Mark W. McCutcheon, 54 Mr. McCutcheon is Chief Executive Officer and 1999
President of the Company and President of Golden Flake
Snack Foods, Inc., a wholly-owned subsidiary of the
Company. He has served as President and Chief
Executive Officer of the Company since April 4, 2001
And as President of Golden Flake since November 1,
1998. He has been employed by Golden Flake since
1980.
7
ADDITIONAL INFORMATION CONCERNING THE BOARD OF DIRECTORS
Director Independence
The Board has determined that Edward R. Pascoe, James I. Rotenstreich
and John S.P. Samford, are qualified as "Independent Directors" within the
meaning of the director independence standards of the NASDAQ Stock Market, Inc.
("NASDAQ") and the Securities and Exchange Commission ("SEC") under the Exchange
Act of 1934. All other directors serve on the Voting Committee described in
"Security Ownership of Management" and would not qualify as Independent
Directors.
Meetings of Independent Directors
The Independent Directors meet in executive session (with no management
directors or officers present) at least twice each year.
Committees of the Board of Directors
The Board of Directors has a Compensation Committee, a Stock Option
Committee and an Audit Committee. The Board of Directors has no standing
Nominating Committee.
The Compensation Committee reviews the performance of the Executive
Officers of the Company and the top executive officer of Golden Flake Snack
Foods, Inc., a wholly-owned subsidiary, and recommends to the Board of Directors
of the Company the appropriate compensation level and compensation and benefit
programs of such officers. The Compensation Committee consists of John S. Stein,
John S.P. Samford, James I. Rotenstreich, J. Wallace Nall, Jr., Joann F.
Bashinsky and F. Wayne Pate. The Compensation Committee met once during fiscal
year 2009. Since the Company qualifies under NASDAQ Stock Market Rules as a
Controlled Company, the Compensation Committee is not required to meet the
independence requirements of the listing standards of NASDAQ and the
non-employee director definition of Rule 16b-3 promulgated under Section 16 of
the Exchange Act.
The Stock Option Committee has from time to time determined the key
employees of the Company and its subsidiary to whom stock options and stock
appreciation rights were granted under the Company's Long Term Incentive Plan.
The Stock Option Committee consists of John S. Stein, John S.P. Samford, James
I. Rotenstreich, J. Wallace Nall, Jr., Joann F. Bashinsky and F. Wayne Pate. The
Stock Option Committee met once during fiscal year 2009.
The Audit Committee reviews the results of the annual audit and
quarterly financial statements, selects and engages the independent accountants,
assesses the adequacy of the Company's procedures in connection with financial
controls and receives and considers the independent accountants' comments as to
internal controls. The Audit Committee acts pursuant to a written charter, which
is reviewed annually by the Board of Directors. James I. Rotenstreich, Chairman,
John S.P. Samford and Edward R. Pascoe constitute the Audit Committee of the
Board of Directors. The Board of Directors has determined that all of the
members of this committee qualify as independent directors under the current
requirements of NASDAQ and the SEC. The Board of Directors has further
determined that all of the members of this committee qualify as an "audit
committee financial expert" under the rules and regulations of the SEC. The
Audit Committee met four times during fiscal year 2009. See "REPORT OF THE AUDIT
COMMITTEE OF THE BOARD OF DIRECTORS".
8
Meetings of the Board of Directors and Committees
During the fiscal year ended May 29, 2009, there were four regular
meetings of the Board of Directors. The Compensation Committee and the Stock
Option Committee met once and the Audit Committee met four times during the
fiscal year 2009. All directors attended all of the meetings of the Board and
the Committees on which they served with the exception of J. Wallace Nall, Jr.
who missed one Board meeting.
Compensation of Directors
During the fiscal year ended May 29, 2009, the Company paid each of its
non-employee Directors a retainer of $300 per month and a fee of $2,000 for each
regular Board meeting attended. The members of the Compensation Committee were
each paid $2,000 for attending the Compensation Committee meeting and the
members of the Audit Committee were paid $1,000 for each meeting attended.
Board Member Attendance at Annual Meetings
It is the policy of Golden Enterprises that each member of the Board
shall make a reasonable effort to attend all meetings of the Board, applicable
committee meetings and the Company's annual meeting of shareholders. All
Directors attended the Annual Stockholders Meeting held last year.
Nomination of Directors
During the fiscal year ended May 29, 2009, the Company did not have a
standing nominating committee. The NASDAQ rules do not require the Company to
have a nominating committee since the Company was a "controlled company"
pursuant to Rule 4350(c)(5), in that more than 50% of the voting common stock of
the Company was held by SYB, Inc. and the Estate of Sloan Y. Bashinsky, Sr., all
of which were affiliated, and such shares are voted by a Voting Committee
created under the Will/Testamentary Trust of Sloan Y. Bashinsky, Sr. and under
the SYB, Inc. Common Stock Trust. The Voting Committee is comprised of John S.
Stein, J. Wallace Nall, Jr., F. Wayne Pate, John P. McKleroy, Jr., Joann F.
Bashinsky and Mark W. McCutcheon, all directors of the Company and Patty
Townsend, an officer of the Company. The Board believes that it is not necessary
to have a separate nominating committee in view of the size of the Company, and
the fact that the Company was a "controlled company". Nominees for election as a
director are determined by the entire Board. The Board will make all decisions
regarding Board nominees based upon the best interest of the Company and its
shareholders.
Communications with the Board
Shareholders interested in communicating directly with the Board of
Directors may do so by writing the Secretary of the Company, at the following
address:
Board of Directors of Golden Enterprises, Inc.
C/O Corporate Secretary
One Golden Flake Drive
Birmingham, Alabama 35205
All such letters must identify the author as a shareholder. The
Secretary of Golden Enterprises, Inc. will review all such communications and
forward all appropriate communications to the Board.
9
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934 requires that Directors,
certain Executive Officers and beneficial owners of more than ten percent of the
stock of the Company file reports of stock ownership and changes in ownership
with the Securities and Exchange Commission. These reports consist of Forms 3,
Initial Statement of Ownership, 4, Statement of Changes in Beneficial Ownership,
and 5, Annual Statement of Changes in Beneficial Ownership. Based upon a review
of copies of such reports, or representations that no reports were due to be
filed by Directors, Executive Officers or beneficial owners of more than ten
percent of the stock of the Company, the Company believes that Section 16(a)
filing requirements applicable to its Directors, Executive Officers and
beneficial owners of more than ten percent of the stock of the Company were
complied with during the fiscal year 2009. However, during fiscal year 2009 a
Form 4 for Ed Pascoe reporting his sale of 9,000 shares of stock was untimely
filed two days later than required.
CORPORATE GOVERNANCE
Board of Directors and Committees
Directors are expected to devote sufficient time to carrying out their
duties and responsibilities effectively. The Board of Directors meets regularly
four times each fiscal year to review matters affecting the Company and to act
on matters requiring the Board's approval. It also holds special meetings
whenever circumstances require and may act by unanimous written consent without
a meeting.
The Company's Board of Directors currently consists of nine directors.
John S. Stein serves as the Chairman of the Board. The Board of Directors met
four times during the fiscal year ended May 29, 2009, all of which were
regularly scheduled meetings. In the last fiscal year, the Independent Directors
met twice in executive session. All directors attended 100% of the meetings of
the Board and the meetings of the committees on which they served during the
fiscal year ended May 29, 2009 except for J. Wallace Nall, Jr. who missed one
Board meeting. The Board has a policy expecting director attendance at all Board
and committee meetings and the Company's annual meeting of stockholders.
The Company's Board has established an Audit Committee, Compensation
Committee and Stock Option Committee. The Charter for the Audit Committee is
available from the Company. The Compensation Committee has no Charter, but its
duties and responsibilities are set forth in corporate minutes adopted by the
Board. In addition, the Board may from time to time establish special purpose
committees. There were no special purpose committees existing in the last fiscal
year.
Corporate Governance Documents
Certain documents relating to corporate governance matters are
available on the Company website at www.goldenflake.com. These corporate
governance documents include, among others, the following:
o Charter for the Audit Committee of the Board;
o Code of Business Conduct and Ethics;
o Complaint Procedures for Accounting and Accounting Matters;
and
o Disclosure Controls and Procedures.
10
Stockholders may also obtain a copy of these documents free of charge
by contacting Patty Townsend, Chief Financial Officer, by email at
ptownsend@goldenflake.com or by telephone at (205) 323-6161.
Director Independence
Of the nine directors currently serving on the Board of Directors, the
Board has determined that Messrs Rotenstreich, Pascoe and Samford are
"Independent Directors" as defined in the rules of the NASDAQ Stock Market, Inc.
(NASDAQ) and the SEC. As a Controlled Company, the Company is exempt from
certain independence requirements of the NASDAQ rules, including the requirement
to maintain a majority of Independent Directors on the Board of Directors, an
Independent Compensation Committee or a Standing Nominating/Corporate Governance
Committee or committees performing similar function.
All members of the Audit Committee must be Independent Directors as
defined by NASDAQ Policies and Practices and U.S. Securities and Exchange
Commission. The Company's three Independent Directors serve on the Audit
Committee, with Mr. Rotenstreich serving as Chairman.
Policies and Practices
The Company's policies and practices reflect corporate governance
initiatives that comply with the listing requirements of NASDAQ and the
corporate governance requirements of the Sarbanes-Oxley Act of 2002, including
the following:
o All members of the Audit Committee are independent;
o The Charter of the Audit Committee establishes the
Committee's duties and responsibilities;
o The independent members of the Company's Board of
Directors meet regularly ("executive sessions") without
the presence of management;
o The Company has a policy for attendance of Board
members at both regular Board and committee meetings and
shareholder meetings;
o The Company has adopted a Code of Conduct and Ethics;
o The Company has adopted Disclosure Controls and Procedures
which establishes a committee for regular evaluation of
internal company disclosure control and procedures;
o The Company has procedures in place for the anonymous
submission to the Audit Committee of employee and third party
complaints on accounting, internal accounting controls or
auditing matters;
o The Company has policies and procedures for stockholders to
communicate directly with the Board of Directors; and
o The Audit Committee must review, approve and/or ratify all
related party transactions.
11
EXECUTIVE COMPENSATION
The Objectives of the Executive Compensation Program
The Compensation Committee is responsible for establishing and
administering the Company's policies governing the compensation for the
Executive Officers. All actions of the Compensation Committee must be approved
by the Board of Directors. Because the Company qualifies as a Controlled Company
pursuant to the exception of NASDAQ Stock Market Rule 4350(c) (5), the
Compensation Committee is composed of both independent and non-independent
directors. See "Committees of the Board of Directors" above.
The purpose of the Company's executive compensation program is to
attract, retain and motivate qualified executives to manage the business so as
to maximize profits and stockholder value. Executive compensation in the
aggregate is made up principally of the executive's annual base salary, a bonus
based upon operating earnings and Company perquisites or benefits. The
Compensation Committee annually considers and makes recommendations to the Board
as to executive compensation including changes in base salary and cash incentive
bonuses. Stock options and awards of stock under the Long Term Incentive Plan
have been granted from time to time by the Stock Option Committee, which is
composed of the same members as the Compensation Committee.
Consistent with the above-noted purpose of the executive compensation
program, in recommending the aggregate annual compensation of Executive
Officers, the Compensation Committee considers the individual contribution and
performance of the executive, the Company's overall performance and the total
return to stockholders. The Company's executive compensation program focuses on
strategic plans, corporate performance measures, and specific corporate goals.
The corporate performance measures which the Compensation Committee considers
include sales, earnings, return on equity and comparisons of sales and earnings
with prior years and with budgets.
The Compensation Committee does not rely on any fixed formulae or
specific numerical criteria in determining an executive's aggregate
compensation. It considers corporate and personal performance criteria and the
economic environment, changes in the cost of living, competitive compensation
levels and the recommendations of management. The Compensation Committee
exercises business judgment based on all of these criteria and the purposes of
the executive compensation program.
Employment Agreements, Severance Benefits and Change in Control Provisions
The Company has a non-qualified Salary Continuation Plan established
for the benefit of the Company's Chief Executive Officer, Mark W. McCutcheon.
The Company entered into this Salary Continuation Plan, on May 15, 2002, to
ensure the performance of his role in the Company for an extended period of
time. In addition, the Company also considered the critical nature of the
position and the Company's need to retain him when it committed to establish
this plan. The Salary Continuation Plan provides for payments of up to $120,000
per year, as adjusted for inflation, for 15 years following death or retirement
at age 65. In the event of disability prior to retirement, the yearly benefit of
$120,000 is reduced by any payments of social security disability benefits and
long term disability benefits which were funded or provided by the Company. The
Salary Continuation Plan may be amended or terminated by the Company's Board of
Directors, except that in the event of a change of control in the Company, the
Salary Continuation Plan becomes irrevocable. The Plan is funded in part with
life insurance on the life of Mr. McCutcheon, and during fiscal year 2009,
insurance premiums of $47,000 were paid by the Company.
12
Summary Compensation Table
The following table sets forth certain information with respect to
compensation for the fiscal years 2007, 2008, and 2009 earned by or paid to the
Chief Executive Officer, Chief Financial Officer and the other most highly
compensated Executive Officers whose total compensation exceeded $100,000.
Non-Equity
Stock Option Incentive Plan All Other
Name and Principal Salary Bonus Awards Awards Compensation Compensation Total
Position Year ($) ($) ($) ($) ($) ($)(1) ($)
-------- ---- --- --- --- --- --- ------ ---
Mark W. McCutcheon (a) 2009 $244,000 $40,844 -- --- --- $81,727 $366,571
President and 2008 $234,000 $23,168 -- --- --- $68,842 $326,010
Chief Executive Officer 2007 $227,000 $20,791 -- --- --- $64,658 $312,749
and President
of Golden Flake
Snack Foods, Inc.
Randy Bates (b) 2009 $171,000 $30,633 -- -- --- $1,534 $203,167
Executive Vice President 2008 $164,000 $17,376 -- -- --- $1,483 $182,859
of Sales, Marketing 2007 $158,000 $15,594 -- -- --- $1,325 $174,919
and Transportation
of Golden Flake Snack
Foods, Inc.
David Jones (c) 2009 $171,000 $30,633 -- -- --- $1,539 $203,172
Executive Vice President 2008 $164,000 $17,376 -- -- --- $1,497 $182,873
of Operations, Human 2007 $156,000 $15,594 -- -- --- $1,325 $172,919
Resources and Quality
Control of Golden Flake
Snack Foods, Inc.
Patty Townsend (d) 2009 $125,000 $ 26,548 -- -- --- $1,000 $152,548
Chief Financial Officer 2008 $117,000 $ 14,426 -- -- --- $ 936 $132,362
Vice President 2007 $110,000 $ 10,396 -- -- --- $ 880 $121,276
and Secretary
(1) The compensation represented by the amounts set forth in the
All Other Compensation column is detailed in the following
table, except as noted:
Company Salary
Contribution Continuation Company Total
to 401(k) Plan Accurals Paid Life All Other
Name ($) ($) Prerequistes Insurance Compensation
---- --- --- ------------ --------- ------------
Mark W. McCutcheon $1,840 $57,830 $21,510 $547 $81,727
Randy Bates $1,534 --- (e) --- $ 1,534
David Jones $1,539 --- (e) --- $ 1,539
Patty Townsend $1,000 --- (e) --- $ 1,000
(a) Mark W. McCutcheon has served as President and Chief Executive Officer
of the Company since April 4, 2001. He has served as President of
Golden Flake Snack Foods, Inc. since November 1, 1998.
(b) Randy Bates has served as Executive Vice President of Sales, Marketing
and Transportation of Golden Flake Snack Foods, Inc. since October 26,
1998.
(c) David Jones has served as Executive Vice President of Operations, Human
Resources and Quality Control of Golden Flake Snack Foods, Inc. since
May 20, 2002. He was Vice President of Manufacturing from 1998 to 2002
and Vice President of Operations from 2000 to 2002.
(d) Patty Townsend has served as Chief Financial Officer, Vice-President
and Secretary of the Company since March 1, 2004.
13
(e) Total Perquisites for Randy Bates, David Jones and Patty Townsend were
less than $10,000 per individual. Outstanding Equity Awards
The following table sets forth certain information with respect to
outstanding equity awards at May 29, 2009 with the Executive Officers.
Outstanding Equity Awards at Fiscal Year-End
Option Awards
------------------------------------------------------------------------
Number of
Securities
Underlying
Unexercised Option
Options Exercise Option
Name Exercisable (1) Price (2) Expiration Date
---- --------------- --------- ---------------
Mark W. McCutcheon 40,000 40,000 @ $3.81 10/15/2011
CEO
Randy Bates 29,000 29,000 @ $3.81 10/15/2011
David Jones 30,000 30,000 @ $3.81 10/15/2011
Patty Townsend 20,000 20,000 @ $3.81 10/15/2011
---------------------------
(1) Fully vested
(2) As of May 29, 2009, the value of the Company's Common Stock was $2.38
per share.
Compensation of Directors
During the fiscal year ended May 29, 2009, the Company paid each of its
non-employee Directors a retainer of $300 per month and a fee of $2,000 for each
regular Board meeting attended. The members of the Compensation Committee were
each paid $2,000 for attending the Compensation Committee meeting and the
members of the Audit Committee were paid $1,000 for each meeting attended.
The following table provides compensation information for the year
ended May 29, 2009 for each of the independent members of the Board.
Total Director Compensation
Name ($)
---- ---
Edward R. Pascoe $15,600
James I. Rotenstreich $17,600
John S.P. Samford $17,600
14
Indemnification Arrangements
The Company's Certificate of Incorporation provides that the Company
indemnify and hold harmless each of its directors and officers to the fullest
extent authorized by the Delaware General Corporation Law, against all expense,
liability and loss (including attorney's fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection with services rendered by such
directors or officers to or on behalf of the Company.
The Certificate of Incorporation also provides that a director will not
be personally liable to the Company or its stockholders for monetary damages for
breach of the fiduciary duty of care as a director. This provision does not
eliminate or limit the liability of a director:
o for breach of his or her duty of loyalty to the Company or to
the stockholders;
o for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
o under Section 174 of the Delaware General Corporation Law
(relating to unlawful payments of dividends or unlawful
stock repurchases or redemptions); or
o for any improper benefit.
The Company has executed with each Director a written Indemnification
Agreement which includes the items set forth above.
CERTAIN TRANSACTIONS
During the fiscal year ended May 29, 2009, the law firm of Spain &
Gillon, L.L.C., of which John P. McKleroy, Jr. is a member, served as General
Counsel and performed various legal services for the Company and its subsidiary
for which it was paid legal fees of $319,181. The firm will continue to perform
legal services for the current fiscal year.
Golden Flake owns a Cessna Citation II Airplane for business use. Joann
F. Bashinsky has leased the plane for personal use of up to 100 flight hours per
year. The lease requires monthly payments of $20,000. During fiscal year 2009,
Mrs. Bashinsky paid lease payments to Golden Flake of $240,000, and also paid
all flight crew expenses for flights used under the lease. The lease is
structured so that a substantial portion of the costs of ownership, maintenance,
and operation of the plane to Golden Flake are offset by the lease payments and
payment of the flight crew expenses on flights used under the lease. The lease
with Mrs. Bashinsky is for a term of one year and automatically renews annually
on each February 1, unless Golden Flake or Mrs. Bashinsky elects to terminate
the same. The current lease term will expire on January 31, 2010. The use of the
plane under the lease is coordinated with Golden Flake so as not to interfere
with Golden Flake's business use.
The Company believes that these transactions were on terms equal to or
better than those available from unaffiliated third parties.
15
The Audit Committee Charter requires that the Audit Committee review
and approve or ratify all related party transactions. Accordingly, the Audit
Committee reviewed, approved and ratified the above-described related party
transactions.
REPORT OF THE AUDIT COMMITTEE OF THE BOARD OF DIRECTORS
The Audit Committee reviews with the independent auditors, the
Company's Chief Financial Officer and the Company's general counsel the results
of the independent auditor's annual report on the Company's financial
statements. The Audit Committee selects and engages the Company's independent
auditors and performs such additional functions as are necessary or prudent to
fulfill the Committee's duties and responsibilities and reports its
recommendations and findings to the full Board of Directors.
The Board of Directors has adopted a written charter for the Audit
Committee, which is reviewed and reassessed for adequacy on an annual basis.
The Audit Committee has reviewed and discussed the audited financial
statements for the year ended May 29, 2009 with management. The Audit Committee
has also discussed with the independent auditors the matters required to be
discussed by Statement on Auditing Standards No. 61 ("SAS 61"). The Audit
Committee has received the written disclosures and the letter from the
independent auditors required by Independence Standards Board Standard No. 1 and
has discussed with the independent auditors their independence. The Audit
Committee has also discussed with the management of the Company and the
independent auditors, such other matters and received such assurances from them
as deemed appropriate by the Audit Committee.
Based on the review and discussions referred to above, the Audit
Committee recommended to the Board of Directors that the audited financial
statements referred to above be included in the Company's Annual Report on form
10-K for filing with the Securities and Exchange Commission.
The Audit Committee has considered whether the provision of the
non-audit services performed by Dudley, Hopton-Jones, Sims and Freeman PLLP, as
described on Page 17 hereof is compatible with maintaining Dudley, Hopton-Jones,
Sims and Freeman PLLP's independence.
The Audit Committee reviewed, approved and ratified the related party
transactions set forth and described in "Certain Transactions" on Page 15
hereof.
Members of the Audit Committee: James I. Rotenstreich, John S. P.
Samford and Edward R. Pascoe.
INDEPENDENT ACCOUNTANTS
Dudley, Hopton-Jones, Sims & Freeman PLLP, Certified Public Accountants
("Dudley, Hopton-Jones") were selected by the Audit Committee and ratified by
the Board of Directors as the independent accountants to audit the Company's
financial statements for the fiscal year ended May 29, 2009. Dudley,
Hopton-Jones has served as independent auditors to the Company since 1977.
Representatives of Dudley, Hopton-Jones will be present at the annual meeting
and will have the opportunity to make a statement if they desire to do so and
will be available to respond to appropriate questions from stockholders.
During the fiscal years ended 2009 and 2008, Dudley, Hopton-Jones
provided various audit and non-audit services to the Company and its subsidiary.
As part of their services as the Company's auditors, they audited the
consolidated financial statements of the Company and its subsidiary, the
individual financial statements of the Company and Golden Flake Snack Foods,
Inc. and its subsidiary and also reviewed the Company's Annual Report (Form
10-K) for filing with the Securities and Exchange Commission.
16
Fees billed by Dudley, Hopton-Jones:
The following table shows information about fees billed to the Company
by Dudley, Hopton-Jones.
FYE 2009 FYE 2008
-------- --------
Audit Fees (1) $135,450 $127,445
Audit Related Fees (2) -0- 55,500
Tax Fees (3) 32,000 22,500
All Other Fees (4) -0- -0-
-----------------------
(1) Current FYE 2009 audit fees consist of the aggregate fees billed for
professional services rendered for the audit of the Company's annual financial
statements and for the timely reviews of quarterly financial statements and
assistance with the review of documents filed with the SEC.
(2) Audit related fees consist of the aggregate fees billed for audit of the
Company's and the Company's subsidiary employee benefit plans.
(3) Tax fees consist of the aggregate fees billed for professional services
rendered for tax compliance including tax planning, tax advice, the preparation
of tax returns, audit of tax returns, and claims for refunds.
(4) All other fees: Dudley, Hopton-Jones did not provide any other services to
the Company than those described above nor were there any other fees billed to
the Company than those described above.
---------------------
The Audit Committee is required by its policy to pre-approve all
services to be rendered by the Company's Independent Auditors prior to
performance of such services. Pre-approval of services may be done in one of two
ways, specific pre-approval or general pre-approval. With the use of specific
pre-approval, the Audit Committee must specifically pre-approve the services
that are to be rendered by the Independent Auditors prior to their engagement to
render such services. The Audit Committee has elected to implement the specific
pre-approved policy and procedure. As a result, all services provided by the
Independent Auditors must be specifically pre-approved by the Audit Committee.
The services of the Independent Auditors described above were
specifically pre-approved by the Audit Committee prior to the engagement of the
Independent Auditors to render such services.
The Company has not selected the principal accountants to audit its
financial statements for the current fiscal year. It is the Company's policy to
select its principal accountants after the preceding year's audit has been
completed and the Company has had time to consider the selection.
Carr, Riggs & Ingram, LLC, Certified Public Accountants were selected
by the Audit Committee and ratified by the Board of Directors as the independent
accountants to audit the employee benefit plans of the Company and the Company's
subsidiary ("Employee Benefit Plans"). In addition, Carr, Riggs & Ingram was
also used to handle certain consulting matters for the Company. The Audit
Committee specifically pre-approved the use of Carr, Riggs and Ingram to perform
audit services for the Employee Benefit Plans for the fiscal year ended May 29,
2009 along with the 2010 fiscal year.
17
Fees billed by Carr, Riggs & Ingram:
The following table shows information about fees billed to the Company
by Carr, Riggs & Ingram.
FYE 2009 FYE 2008
-------- --------
Audit Related Fees (1) $19,333 $ -0-
All Other Fees (2) 85,970 1,840
------------
(1) Audit related fees consist of the aggregate fees billed for audit of the
Company's and the Company's subsidiary employee benefit plans
(2) All other fees: Carr, Riggs & Ingram provided consulting services to the
Company other than those described above.
---------------------
FINANCIAL STATEMENTS
Consolidated Financial Statements of the Company and its subsidiary for
the fiscal year ended May 29, 2009 are contained in the 2009 Annual Report to
Stockholders which accompanies this Proxy Statement. However, such Report and
Financial Statements contained therein are not to be considered a part of this
solicitation material since they are not deemed material to the matters to be
acted upon at the meeting.
STOCKHOLDER PROPOSALS FOR 2010 ANNUAL MEETING
Any stockholder desiring to submit a proposal to be considered by the
Board of Directors for inclusion in the proxy statement and form of proxy
relating to next year's Annual Meeting of Stockholders must do so in writing
received by the Company on or before June 4, 2010. Any other stockholder
proposals for the Company's 2010 Annual Meeting of Stockholders must be received
no later than July 23, 2010. The proposals must comply with all applicable
statues and regulations. Any such proposals should be submitted to Golden
Enterprises, Inc., Attention: Patty Townsend, CFO, Vice President & Secretary,
One Golden Flake Drive, Birmingham, Alabama 35205.
CODE OF CONDUCT AND ETHICS
Golden Enterprises has adopted a Code of Conduct and Ethics that
applies to its directors, officers and employees and to all employees of Golden
Flake Snack Foods, Inc. The Code of Conduct and Ethics and any amendments
thereto, are available on Golden Flake's website at www.goldenflake.com. Any
waiver from the Code of Conduct and Ethics for Directors and Officers also will
be made available on Golden Flake's website at www.goldenflake.com.
18
HOUSEHOLDING
The SEC's rules permit companies and intermediaries such as brokers to
satisfy delivery requirements for Proxy Statements with respect to two or more
stockholders sharing the same address by delivering a single Proxy Statement
addressed to those stockholders. This process, which is commonly referred to as
"householding," potentially provides extra convenience for stockholders and cost
savings for companies. Some brokers household Proxy Statements, delivering a
single Proxy Statement to multiple stockholders sharing an address. Once you
have received notice from your broker that it will be householding materials to
your address, householding will continue until you are notified otherwise or
until you revoke your consent. If at any time you no longer wish to participate
in householding and would prefer to receive a separate Proxy Statement, please
notify your broker. If you would like to receive a separate copy of this Proxy
Statement from us directly, please contact us by writing or telephone as
follows:
Golden Enterprises, Inc.
One Golden Flake Drive
Birmingham, Alabama 35205
Attention: Patty Townsend, Chief Financial Officer
Telephone: (205) 323-6161
OTHER BUSINESS
It is not anticipated that there will be presented to the meeting any
business other than the matters set forth herein and management was not aware, a
reasonable time before this solicitation of proxies, of any other matter which
may properly be presented for action at the meeting. If any other business
should come before the meeting, the persons named on the enclosed proxy will
have discretionary authority to vote all proxies in accordance with their best
judgment.
By Order of the Board of Directors
John S. Stein
Chairman
19