SECOND AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated and effective as of July 8, 1997, to the
Rights Agreement, dated as of October 14, 1988 (the "Rights
Agreement"), between Delchamps, Inc., an Alabama corporation
(the "Company"), and AmSouth Bank, successor to First Alabama
Bank (the "Rights Agent"), as heretofore amended by an
Amendment to Rights Agreement, dated as of October 16, 1992,
between the Company and the Rights Agent (the "First
Amendment").
The Company and the Rights Agent have heretofore executed
and entered into the Rights Agreement and the First Amendment.
Pursuant to Section 27 of the Rights Agreement, the Company and
the Rights Agent may amend or supplement the Rights Agreement
in accordance with the provisions of Section 27 thereof. All
acts and things necessary to make this Second Amendment a valid
agreement according to its terms have been done and performed,
and the execution and delivery of this Agreement by the Company
and the Rights Agent have been in all respects authorized by
the Company and the Rights Agent.
In consideration of the foregoing premises and mutual
agreements set forth in the Rights Agreement as heretofore
amended and this Amendment, the parties hereby agree as
follows:
1. The Rights Agreement as heretofore amended is hereby
further amended by deleting the First Amendment in its entirety
so as to restore the Rights Agreement (subject to the further
amendments set forth hereinbelow) to the form in which it was
originally executed on October 14, 1988.
2. The Rights Agreement as heretofore amended is hereby
further modified and amended by deleting the first sentence of
paragraph (a) of Section 1 and substituting therefor the
following:
(a) "Acquiring Person" shall mean any Person (as
such term is hereinafter defined) who or which, together with
all Affiliates and Associates (as such terms are hereinafter
defined) of such Person, shall be the Beneficial Owner (as such
term is hereinafter defined) of 15% or more of the Common
Shares of the Company then outstanding, but shall not include
the Company, any Subsidiary (as such term is hereinafter
defined) of the Company, any employee benefit plan of the
Company or any Subsidiary of the Company or any entity holding
Common Shares for or pursuant to the terms of any such plan, or
Jitney-Jungle Stores of America, Inc., a Mississippi
corporation, or its Subsidiaries, Affiliates or Associates
(hereinafter, collectively, "Jitney-Jungle").
3. The Rights Agreement, as heretofore amended, is
hereby further modified and amended by adding an additional
paragraph at the end of the definition of the terms "Beneficial
Owner" and "beneficially own" in paragraph (c) of Section 1
reading as follows:
Notwithstanding anything in this definition of Beneficial Owner
and Beneficial Ownership to the contrary, Jitney-Jungle shall
not be deemed to be the Beneficial Owner of, nor to
beneficially own, any of the Common Shares of the Company
solely by reason of the approval, execution or delivery by any
party thereto, or by reason of the amendment or consummation of
an Agreement and Plan of Merger by and among Jitney-Jungle
Stores of America, Inc., Delta Acquisition Corporation, and
Delchamps, Inc. dated and effective as of July 8, 1997 (the
"Merger Agreement").
4. The Rights Agreement, as heretofore amended, is
hereby further modified and amended by deleting the first
sentence of paragraph (a) of Section 3 of the Rights Agreement
and substituting therefor the following:
(a) Until the earlier of (i) the tenth day after
the Shares Acquisition Date or (ii) the tenth business day (or
such later date as may be determined by action of the Board of
Directors prior to such time as any Person becomes an Acquiring
Person) after the date of commencement by any Person (other
than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company
or any entity holding Common Shares for or pursuant to the
terms of any such plan, or Jitney-Jungle) of, or of the first
public announcement of the intention of any Person (other than
the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company
or any entity holding Common Shares for or pursuant to the
terms of any such plan or Jitney-Jungle) to commence, a tender
or exchange offer the consummation of which would result in any
Person becoming the Beneficial Owner of Common Shares
aggregating 15% or more of the then outstanding Common Shares
(including any such date which is after the date of this
Agreement and prior to the issuance of the Rights; the earlier
of such dates being herein referred to as the "Distribution
Date"), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for
Common Shares registered in the names of the holders thereof
(which certificates shall also be deemed to be Right
Certificates) and not by separate Right Certificates, and (y)
the right to receive Right Certificates will be transferable
only in connection with the transfer of Common Shares.
5. The Rights Agreement as heretofore amended is hereby
further modified and amended by deleting paragraph (a) of
Section 7 and substituting therefor the following:
(a) The registered holder of any Right Certificate
may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or part at any time after the
Distribution Date upon surrender of the Right Certificate, with
the form of election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the principal office of
the Rights Agent, together with payment of the Purchase Price
for each one one-hundredth of a Preferred Share as to which the
Rights are exercised, at or prior to the earliest of (i) the
close of business on October 27, 1998 (the "Final Expiration
Date"), (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof (the "Redemption Date"),
(iii) the time at which such rights are exchanged as provided
in Section 24 hereof, or (iv) immediately prior to the
acceptance for purchase of Common Shares by Jitney-Jungle
pursuant to the Offer (as such term is defined in the Merger
Agreement).
6. The Rights Agreement as heretofore amended is hereby
further amended by adding the following new Section 34 at the
end:
Section 34. Jitney-Jungle Transaction. Notwithstanding
anything in this Agreement to the contrary, neither (a) the
approval, execution, delivery, amendment or consummation of the
Merger Agreement or (b) the public announcement or making of a
tender offer by Jitney-Jungle for Common Shares of the Company,
or the acceptance for purchase of such shares thereunder, shall
cause (i) Jitney-Jungle to become an Acquiring Person, (ii) a
Shares Acquisition Date to occur, or (iii) a Distribution Date
to occur. Any Distribution Date that might or could otherwise
occur under this Agreement shall be indefinitely deferred until
such time as the Board of Directors may otherwise determine.
7. This Second Amendment to the Rights Agreement shall
be governed by and construed in accordance with the internal
laws of the State of Alabama.
8. This Second Amendment to the Rights Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed an original, and
all such counterparts shall together constitute but one and the
same instrument.
9. Except as expressly set forth herein, this Second
Amendment to the Rights Agreement shall not by implication or
otherwise alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements
contained in the Rights Agreement, all of which are ratified
and affirmed in all respects and shall continue in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Second Amendment to the Rights Agreement to be duly executed on
and as of the day and year first above written.
Attest: DELCHAMPS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Title: Chairman and Chief
Chief Financial Officer Executive Officer
Attest: AMSOUTH BANK
By: /s/ Xxxx Xxx Xxxxxx By: /s/ Xxxxx X. Xxxxx
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Name: Xxxx Xxx Xxxxxx Name: Xxxxx X. Xxxxx
Title: Assistant Vice President Title: Chairman and Chief
Executive Officer
