Exhibit 99.3
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT, dated as of July 14, 1997, to the Rights
Agreement, dated as of March 31, 1989 (the "Rights Agreement"), between
Savannah Foods & Industries, Inc., a Delaware corporation (the "Company"),
and Wachovia Bank, N.A., as successor Rights Agent (the "Rights Agent") to
Citizens and Southern Trust Company (Georgia), N.A.
WHEREAS, the Company and the Rights Agent entered into the Rights
Agreement specifying the terms of the Rights (as defined therein);
WHEREAS, Section 26 of the Rights Agreement provides as follows:
"Section 26. Supplements and Amendments. Prior to the Final
Amendment Date and subject to the penultimate sentence of this
Section 26, the Company and the Rights Agent shall, if the Company
so directs, supplement or amend any provision of this Agreement
without the approval of any holders of certificates representing
shares of Common Stock. From and after the Final Amendment Date and
subject to the penultimate sentence of this Section 26, the Company
and the Rights Agent shall at any time and from time to time, if
the Company so directs, supplement or amend this Agreement without
the approval of any holders of Rights Certificates in order (a) to
cure any ambiguity, (b) to correct or supplement any provision
contained herein which may be defective or inconsistent with any
other provisions herein, (c) to shorten or lengthen any time period
hereunder (which shortening or lengthening, following the first
occurrence of an event set forth in clause (A) and (B) of the first
proviso of Section 23(a) hereof, shall be effective only if there
are Continuing Directors and shall require the concurrence of a
majority of such Continuing Directors), or (d) to change or
supplement the provisions hereunder in any manner which the Company
may deem necessary or desirable and which shall not adversely
affect the interests of the holders of Rights Certificates (other
than an Acquiring Person, an Adverse Person or an Affiliate or
Associate of any such Person); provided, however, that this
Agreement may not be supplemented or amended to lengthen [sic],
pursuant to clause (c) of this sentence, (i) whether before or
after the Final Amendment Date, to lengthen a time period relating
to when the Rights may be redeemed or to modify the ability (or
inability) of the Continuing Directors to redeem the Rights, in
either case at such time as the Rights are not then redeemable or
(ii) after the Final Amendment Date, to lengthen, pursuant to
clause (c) of this sentence, any other time period unless such
lengthening is for the purpose of protecting, enhancing or
clarifying the rights of or the benefits to the holders of Rights
(other than an Acquiring Person, an Adverse Person or an Affiliate
or Associate of any such Person). Upon the delivery of a
certificate from an appropriate officer of the Company which states
that the proposed supplement or amendment is in compliance with the
terms of this Section 26, the Rights Agent shall execute such
supplement or amendment. Notwithstanding anything contained in
this Agreement to the contrary, no supplement or amendment shall be
made which changes the Redemption Price, the Final Expiration
Date, the Purchase Price or the number of Units for which a Right
is exercisable. Prior to the Distribution Date, the interests of
the holders of Rights shall be deemed coincident with the interests
of the holders of Common Stock."; and
WHEREAS, all acts and things necessary to constitute this First
Amendment a valid agreement according to its terms, have been done and
performed, and the execution and signing by the Company and the Rights
Agent of this First Amendment have in each and all respects been duly
authorized by the Company and the Rights Agent;
NOW, THEREFORE, in consideration of the premises and agreements
set forth in this First Amendment, the parties hereby agree as follows:
1. Section 1(u) of the Rights Agreement is amended to read in its
entirety as follows:
"(U) 'Exempt Person' shall mean (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan of the
Company or of any subsidiary of the Company, (iv) any Person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan or (v) XSF Holdings, Inc., a
Delaware corporation ("XSF Holdings"), DXE Merger Corp., a Delaware
corporation and a wholly owned subsidiary of XSF Holdings ("DXE"),
and Flo-Sun, Incorporated, a Florida corporation ("Flo-Sun"), if
XSF Holdings, DXE or Flo-Sun would otherwise become an Acquiring
Person as a result of (A) the approval, execution or delivery of
the Agreement and Plan of Merger to be dated as of July 14, 1997,
by and among XSF Holdings, DXE, the Company and Flo-Sun (the
"Merger Agreement") or (B) consummation of the Transactions (as
defined in the Merger Agreement)."
2. A new Section 34 is added to read in its entirety as follows:
"Section 34. Merger with XSF Holdings. Notwithstanding any
provision herein to the contrary, neither (a) the approval,
execution or delivery of the Merger Agreement nor (b) the
consummation of the Transactions, will cause a Stock Acquisition
Date or a Distribution Date to occur or cause an event set forth in
Sections 7, 11 or 13 hereof to occur."
3. The term "Agreement" as used in the Rights Agreement shall be
deemed to refer to the Rights Agreement as amended hereby.
4. This First Amendment shall be effective as of July 14, 1997
and, except as set forth herein, the Rights Agreement shall remain in full
force and effect and shall be otherwise unaffected hereby.
5. This First Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
SAVANNAH FOODS &
INDUSTRIES, INC.
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief
Operating Officer
Attest:
By /s/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Counsel
WACHOVIA BANK, N.A.
By /s/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Attest:
By /s/ K. Xxxx Xxxxxx
--------------------------
Name: K. Xxxx Xxxxxx
Title: Assistant Secretary
