EXHIBIT 99(c)(3)
AGREEMENT AND IRREVOCABLE PROXY
This Agreement and Irrevocable Proxy, dated as of September , 1997
(the "Agreement"), is by and between Savannah Foods & Industries, Inc., a
Delaware corporation (the "Company"), and the party identified as the
"Stockholder" on the signature page hereof (the "Stockholder").
R E C I T A L S:
WHEREAS, the Company, Imperial Xxxxx Corporation, a Texas corporation
("IHK"), and IHK Merger Sub Corporation, a Delaware corporation ("Merger Sub"),
propose to enter into an Agreement of Merger, dated as of the date hereof (the
"Merger Agreement"), providing, among other things, for the merger of the
Company and Merger Sub in accordance with the terms and provisions of, and
subject to the conditions set forth in, the Merger Agreement (the "Merger"); and
WHEREAS, the Stockholder is the owner, beneficially and of record, of
the number of shares of Company Common Stock (the "Shares") identified on the
signature page of this Agreement; and
WHEREAS, the Stockholder has agreed to vote the Shares in favor of the
issuance of the Stock Consideration upon consummation of the Merger at IHK's
Shareholders' Meeting;
NOW, THEREFORE, to induce the Company to enter into the Merger
Agreement and in consideration of the aforesaid and the representations,
warranties, covenants and agreements set forth herein and in the Merger
Agreement, including the benefits that the parties hereto expect to derive from
the Merger, the receipt and sufficiency of all of which are hereby acknowledged
by the parties, the parties hereto agree as follows:
1. Revocation of Prior Proxies. The Stockholder hereby revokes all
previous proxies granted with respect to any of the Shares owned by the
Stockholder that would conflict with the terms of the Proxy granted hereby.
2. Grant of Irrevocable Proxy. The Stockholder hereby irrevocably
constitutes and appoints the Company and R. Xxxxxx Xxxxxxxxx, Chairman of
the Board of the Company, and Xxxxxxx X. Xxxxxxx III, President and Chief
Executive Officer of the Company, in their respective capacities as
officers of the Company, and any individual, who shall hereafter succeed to
the office of Chairman of the Board or President and Chief Executive
Officer, respectively, of the Company, and each of them individually, as
its true and lawful proxy and attorney-in-fact, with full power of
substitution, for and in the name, place and stead of the Stockholder, to
call and attend any and all meetings of IHK's stockholders, including IHK's
Shareholders' Meeting, at which the issuance of the Stock
Consideration by IHK upon consummation of the Merger is to be considered
and voted upon by IHK's stockholders, and any adjournments thereof, to
execute any and all written consents of stockholders of IHK and to vote all
of the Shares and any and all shares of any other class of capital stock of
IHK presently or at any future time owned beneficially or of record by the
Stockholders, including any and all securities having voting rights issued
or issuable in respect thereof, which the Stockholder is entitled to vote
other than as set forth on Exhibit B hereto (all of the foregoing being
collectively referred to as the "Subject Stock"), and to represent and
otherwise act as the Stockholder could act, in the same manner and with the
same effect as if the Stockholder were personally present, at any such
annual, special or other meeting of the stockholders of the Company
(including the IHK's Shareholders' Meeting), and at any adjournment thereof
(a "Meeting"), or pursuant to any written consent in lieu of meeting or
otherwise; provided, however, that any such vote or consent in lieu thereof
or any other action so taken shall be solely for the purposes of voting in
favor of issuance of the Stock Consideration upon consummation of the
Merger and any transactions contemplated thereby. Such attorneys and
proxies are hereby authorized to vote the Subject Stock in accordance with
the terms of the Proxy contemplated hereby.
3. Vote in Favor of Stock Consideration. If the Company is unable or
declines to exercise the power and authority granted by the Proxy for any
reason, the Stockholder covenants and agrees to vote all the Subject Stock
in favor of approval of the issuance of the Stock Consideration upon
consummation of the Merger at any Meeting (including the IHK Shareholders'
Meeting) and, upon request of the Company, to provide the Stockholder's
written consent thereto.
4. No Action Without the Company's Consent. The Stockholder hereby
covenants and agrees that it will not vote or take any action by written
consent of stockholders in lieu of meeting on any matter that is subject to
the Proxy without the Company's prior written consent.
5. Negative Covenants of the Stockholder. Except to the extent
contemplated herein or in the Merger Agreement, the Stockholder hereby
covenants and agrees that the Stockholder will not, and will not agree to,
directly or indirectly, (a) sell, transfer, assign, cause to be redeemed or
otherwise dispose of any of the Subject Stock or enter into any contract,
option or other agreement or understanding with respect to the sale,
transfer, assignment, redemption or other disposition of any Subject Stock;
or (b) grant any proxy, power-of-attorney or other authorization or
interest in or with respect to such Subject Stock pertaining or relating to
the Merger Agreement, the Merger, the issuance of the Stock Consideration
upon consummation of the Merger, or any of the transactions contemplated
thereby; or (c) deposit such Subject Stock into a voting trust or enter
into a voting agreement or arrangement with respect to such Subject Stock,
unless and until, in the case of (a), (b) or (c) above, the Stockholder
shall have taken all actions (including, without limitation, the
endorsement of a legend on the certificates evidencing such Subject Stock)
reasonably necessary to ensure that such Subject Stock shall at all times
be subject to all the rights,
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powers and privileges granted or conferred, and subject to all the
restrictions, covenants and limitations imposed, by this Agreement and
shall have caused any transferee of any of the Subject Stock to execute and
deliver to the Company, an Agreement and Irrevocable Proxy, in
substantially the form of this Agreement with respect to the Subject Stock.
Nothing contained herein shall be construed in any way as affecting the
right of the Stockholder to grant a security interest, by way of pledge, by
hypothecation or otherwise, in the Subject Stock in connection with bona
fide credit arrangements or as requiring the lender in such bona fide
credit arrangement to be bound by the terms of this Agreement, provided
that the Stockholder shall promptly notify the Company of any such grant.
6. Negative Covenants of the Company. The Company covenants and
agrees that it will not (a) amend in any material respect the Merger
Agreement, unless it obtains the Stockholder's prior written consent
thereof, or (b) modify the terms of any other Agreement and Irrevocable
Proxy between the Company and any other stockholder of IHK, dated as of
even date herewith, unless the Company shall have offered to modify the
terms of this Agreement and Irrevocable Proxy in the same manner and the
Stockholder has elected not to accept such offer. Provided that the
Company shall have notified the Stockholder of any such amendment or
modification, the Company and the Stockholder hereby agree that the sole
remedy of the Stockholder for a breach by the Company of the foregoing
covenant shall be to elect to terminate this Agreement and Irrevocable
Proxy by notice to the Company.
7. Stockholder's Representations and Warranties. The Stockholder
represents and warrants to the Company that (a) the Stockholder has duly
authorized, executed and delivered this Agreement and this Agreement
constitutes a valid and binding agreement, enforceable in accordance with
its terms and neither the execution and delivery of this Agreement nor the
consummation by the Stockholder of the transactions contemplated hereby
will constitute a violation of, a default under, or conflict with any
contract, commitment, agreement, understanding, arrangement or restriction
of any kind to which the Stockholder is a party or by which the Stockholder
is bound; or (b) consummation by the Stockholder of the transactions
contemplated hereby will not violate, or require any consent, approval, or
notice under, any provision of law other than filing on Form 13D that may
be required under the Securities Exchange Act of 1934, as amended; (c)
except to the extent contemplated herein and except as described in the
final sentence of this Section 7, the Subject Stock and the certificates
representing same are now and at all times during the term of this
Agreement will be held by the Stockholder, or by a nominee or custodian for
the benefit of the Stockholder, free and clear of all liens, claims,
security interests, proxies, voting trusts or agreement or any other
encumbrances whatsoever ("Encumbrances") with respect to the ownership or
voting of the Subject Stock or otherwise, other than Encumbrances created
by or arising pursuant to this Agreement; and there are no outstanding
options, warrants or rights to purchase or acquire, or proxies, powers-of-
attorney, voting agreements, trust agreements or other agreements relating
to, the Subject Stock other than this Agreement; (d) except as set forth on
Exhibit B, such Subject Stock constitutes all of the securities of IHK
owned beneficially or of record by the Stockholder on the date hereof; and
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(e) the Stockholder has the present power and right to vote all of the
Subject Stock as contemplated herein. The Stockholder hereby advises the
Company that the Shares are pledged as security under that certain
Agreement [describe if applicable], and that no default, event of default,
or event of acceleration has occurred thereunder.
8. Certain Defined Terms. Unless otherwise expressly provided
herein, all capitalized terms used herein without definition shall have the
meanings assigned to them in the Merger Agreement.
9. Choice of Law. The terms and provisions of this Agreement shall
be governed by and construed in accordance with the laws of the State of
Delaware without giving effect to the provisions thereof relating to
conflicts of law.
10. Binding Effect; Assignability. The terms and provisions of this
Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the successors and permitted assigns of the parties hereto.
This Agreement and the rights hereunder may not be assigned or transferred
by the Company, except with the prior written consent of the Stockholder.
11. Term. This Agreement shall terminate at the earlier of (i) the
Effective Time, or (ii) the termination of the Merger Agreement in
accordance with its terms, or (iii) upon written notice of termination of
this Agreement given by the Company to the Stockholder expressly referring
to this paragraph, or (iv) the revocation by the Company of the
recommendation to its stockholders to approve the Merger, the Merger
Agreement, and the transactions contemplated thereby or (v) termination of
this Agreement in accordance with Section 6 hereof or (vi) May 31, 1998.
12. Irrevocable Proxy Coupled with an Interest. The Stockholder
acknowledges that the Company will enter into the Merger Agreement in
reliance upon this Agreement, including the Proxy, and that the Proxy is
granted in consideration for the execution and delivery of the Merger
Agreement by the Company. THE STOCKHOLDER AGREES THAT THE PROXY AND ALL
OTHER POWER AND AUTHORITY INTENDED TO BE CONFERRED HEREBY IS COUPLED WITH
AN INTEREST SUFFICIENT IN LAW TO SUPPORT AN IRREVOCABLE POWER AND, EXCEPT
AS PROVIDED IN SECTION 11 ABOVE, SHALL NOT BE TERMINATED BY ANY ACT OF THE
STOCKHOLDER BY LACK OF APPROPRIATE POWER OR AUTHORITY OR BY THE OCCURRENCE
OF ANY OTHER EVENT OR EVENTS.
13. Specific Performance. The parties acknowledge and agree that
performance of their respective obligations hereunder will confer a unique
benefit on the other and that a failure of performance will result in
irreparable harm to the other and will not be compensable by money damages.
The parties therefore agree that this Agreement, including the Proxy, shall
be specifically enforceable and that specific enforcement and injunctive
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relief shall be a remedy properly available to the Company and the
Stockholder for any breach of any agreement, covenant or representation of
the other hereunder.
14. Further Assurance. The Stockholder will, upon request, execute
and deliver any additional documents and take such further actions as may
reasonably be deemed by the Company or its counsel to be necessary or
desirable to carry out the provisions hereof.
15. Severability. If any term, provision, covenant or restriction of
this Agreement, or the applicable thereof to any circumstance 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 of this Agreement or the application thereof to any other
circumstance, 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.
16. Counterparts. This Agreement and Irrevocable proxy may be
executed in counterparts, each of which shall be deemed to be an original
but all of which together shall constitute one and the same document.
17. Notice. 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 the
Company, 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 the signature
page hereof, or such other address as may be specified in writing by such
Stockholder.
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IN WITNESS WHEREOF, the Company and the Stockholder have duly executed
this Agreement or caused this Agreement to be duly executed as of the date first
set forth hereinabove.
THE STOCKHOLDER:
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