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EXHIBIT 4.2
STOCKHOLDERS AGREEMENT dated as of September , 1997, among
Imperial Xxxxx Corporation, a Texas corporation ("IHK"), IHK Merger Sub
Corporation, a Delaware corporation and wholly owned subsidiary of IHK ("Merger
Sub"), and the other parties identified on Schedule A hereto (each, a
"Stockholder").
WHEREAS, each Stockholder desires that Savannah Foods &
Industries, Inc., a Delaware corporation (the "Company"), IHK and Merger Sub
enter into an Agreement and Plan of Merger dated as of the date hereof (as the
same may be amended or supplemented, the "Merger Agreement") with respect to the
merger of Merger Sub with and into the Company (the "Merger"); and
WHEREAS, such Stockholder is executing this Agreement as an
inducement to IHK and Merger Sub to enter into and execute the Merger Agreement.
NOW, THEREFORE, in consideration of the execution and delivery
by IHK and Merger Sub of the Merger Agreement and the mutual covenants,
conditions and agreements contained herein and therein, the parties agree as
follows:
SECTION 1. Representations and Warranties. Each Stockholder
severally, and not jointly, represents and warrants to IHK and Merger Sub as
follows:
(a) Such Stockholder is the record or beneficial owner of the
number of shares of Common Stock, par value $0.25 per share, of the
Company (the "Company Common Stock") and holds options for shares of
Company Common Stock, each as set forth opposite such Stockholders'
name in Schedule A hereto (as may be adjusted from time to time
pursuant to Section 4, such Stockholder's "Shares"). Except for such
Stockholder's Shares, such Stockholder is not the record or beneficial
owner of any shares of Company Common Stock. Any of such Shares which
are described on Schedule A as option shares shall be deemed "Option
Shares" for the purposes of this Agreement. All other shares shall be
deemed "Owned Shares." Any Option Shares which are exercised prior to
the termination of this Agreement shall be deemed to be "Owned Shares."
(b) This Agreement has been duly authorized, executed and
delivered by such Stockholder and constitutes the legal, valid and
binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms. Neither the execution and
delivery of this Agreement nor the consummation by such Stockholder of
the transactions contemplated hereby will result in a violation of, or
a default under, or conflict with, any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to
which such Stockholder is a party or bound or to which such
Stockholder's Shares are subject. The consummation by such Stockholder
of the transactions contemplated hereby
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will not violate, or require any consent, approval, or notice under,
any provision of any judgment, order, decree, statute, law, rule or
regulation applicable to such Stockholder or such Stockholder's Shares.
(c) Such Stockholder's Owned Shares and the certificates
representing such Owned Shares are now and at all times during the term
hereof will be held by such Stockholder, or by a nominee or custodian
for the benefit of such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever,
except for any such encumbrances arising hereunder.
(d) Such Stockholder understands and acknowledges that IHK is
entering into, and causing Merger Sub to enter into, the Merger
Agreement in reliance upon such Stockholder's execution and delivery of
this Agreement.
SECTION 2. Purchase and Sale of Shares. So long as the Per
Share Amount in the Offer is not less than $20.25 in cash (net to the seller),
each Stockholder hereby severally agrees that he shall tender his Owned Shares
into the Offer prior to the expiration of the Offer and that it shall not
withdraw any Shares so tendered (it being understood that the obligation
contained in this sentence is unconditional).
SECTION 3. Covenants. Each Stockholder severally, and not
jointly, agrees with, and covenants to, IHK and Merger Sub as follows: such
Stockholder shall not, except as contemplated by the terms of this Agreement,
during the term of this Agreement, (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of such
Stockholder's Shares or any interest therein, (ii) enter into any contract,
option or other agreement or understanding with respect to any transfer of any
or all of such Shares or any interest therein, (iii) grant any proxy, power-of-
attorney or other authorization or consent in or with respect to such Shares,
(iv) deposit such Shares into a voting trust or enter into a voting agreement or
arrangement with respect to such Shares or (v) take any action that would in any
way restrict, limit or interfere with the performance of its obligations
hereunder or the transactions contemplated hereby; provided that each
Stockholder shall be entitled to transfer all or any portion of such
Shareholder's Shares to any person or entity which agrees in writing to be bound
by the provisions of this Agreement.
SECTION 4. Certain Events. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such Stockholder's
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Shares shall pass, whether by operation of law or
otherwise, including without limitation such Stockholder's heirs, guardians,
administrators or successors. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Company Common Stock, or the acquisition
of additional shares of Company Common Stock or other securities or rights of
the Company by any Stockholder, the number of Owned Shares and Option Shares
listed on Schedule A beside the name of such Stockholder shall be adjusted
appropriately and this Agreement and the
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obligations hereunder shall attach to any additional shares of Company Common
Stock or other securities or rights of the Company issued to or acquired by such
Stockholder.
SECTION 5. Transfer. Each Stockholder agrees with and
covenants to IHK that such Stockholder shall not request that the Company
register the transfer (booked as entry or otherwise) of any certificated or
uncertificated interest representing any of the securities of the Company,
unless such transfer is made in compliance with this Agreement.
SECTION 6. Stockholder Capacity. No person executing this
Agreement who is or becomes during the term hereof a director or officer of the
Company makes any agreement or understanding herein in his or her capacity as
such director or officer. Each Stockholder signs solely in his or her capacity
as the record holder and beneficial owner of such Stockholder's Shares and
nothing herein shall limit or affect any actions taken by a Stockholder in its
capacity as an officer or director for the Company to the extent specifically
permitted by the Merger Agreement.
SECTION 7. Further Assurances. Each Stockholder shall, upon
request of IHK or Merger Sub, execute and deliver any additional documents and
take such further actions as may reasonably be deemed by IHK or Merger Sub to be
necessary or desirable to carry out the provisions hereof.
SECTION 8. Termination. This Agreement, and all rights and
obligations of the parties hereunder, shall terminate upon the earlier of (a)
the date upon which the Merger Agreement is terminated by the Company, IHK or
Merger Sub for any reason in accordance with its terms or (b) the date that IHK
or Merger Sub shall have purchased and paid for the Shares of each Stockholder
pursuant to the Offer.
SECTION 9. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings assigned to such terms in
the Merger Agreement.
(b) All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be
deemed given if delivered personally or sent by overnight courier
(providing proof of delivery) to the parties at the following addresses
(or such other address for a party as shall be specified by like
notice): (i) if to IHK or Merger Sub, to the address set forth in
Section 9.02 of the Merger Agreement; and (ii) if to a Stockholder, to
the address set forth on Schedule A hereto, or such other address as
may be specified in writing by such Stockholder.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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(d) This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same
agreement, and shall become effective (even without the signature of
any other Stockholder) as to any Stockholder when one or more
counterparts have been signed by each of IHK, Merger Sub and such
Stockholder and delivered to IHK and such Stockholder.
(e) This Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement, and supersedes
all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
(f) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of
conflicts or laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise, by any of the parties without
the prior written consent of the other parties, except by laws of
descent. Any assignment in violation of the foregoing shall be void.
(h) If any term, provision, covenant or restriction herein, or
the application thereof to any circumstances, shall, to any extent, be
held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions herein and the application thereof to any other
circumstances, shall remain in full force and effect, shall not in any
way be affected, impaired or invalidated, and shall be enforced to the
fullest extent permitted by law.
(i) Each Stockholder agrees that irreparable damage would
occur and that IHK and Merger Sub would not have any adequate remedy at
law in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that IHK and Merger Sub shall be
entitled to an injunction or injunctions to prevent breaches by any
Stockholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement.
(j) No amendment, modification or waiver in respect of this
Agreement shall be effective against any party unless it shall be in
writing and signed by such party.
IN WITNESS WHEREOF, IHK, Merger Sub and the Stockholders have
caused this Agreement to be duly executed and delivered as of the date first
written above.
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IMPERIAL XXXXX CORPORATION
By:
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Name:
Title:
IHK MERGER SUB CORPORATION
By:
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Name:
Title:
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SCHEDULE A
NUMBER OF SHARES OF
NUMBER OF SHARES OF COMMON STOCK ISSUABLE
STOCKHOLDER (INCLUDING ADDRESS) COMMON STOCK OWNED UPON EXERCISE OF OPTIONS
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W. Xxxxx Xxxxxxx
Xxxx X. Xxxxxxxx
R. Xxxxxx Xxxxxxxxx
Xxxx X. Xxxxx
Xxx X. Xxxxxx, Xx.
X. Xxxxxxx Xxxxx
Xxxxxx X. Xxxxxxxxxx, Xx.
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxx
Xxxxxxx X. Xxxxxxx III
Xxxx X. Xxxxxxxxx
Xxxxxx Xxxxxxxxx
D. Xxxxxxx Xxxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
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