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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 1, 1996
REGISTRATION NO. 333-00439
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
IMC GLOBAL INC.
(Exact name of Registrant as specified in its charter)
___________________
DELAWARE 36-3492467
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
2100 SANDERS ROAD 60062
NORTHBROOK, ILLINOIS (Zip Code)
(Address of Principal Executive
Offices)
THE VIGORO CORPORATION 1991 STOCK OPTION PLAN
(Full Title of the Plan)
MARSCHALL I. SMITH
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
IMC GLOBAL INC.
2100 SANDERS ROAD
NORTHBROOK, ILLINOIS 60062
(847) 272-9200
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
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INTRODUCTORY STATEMENT
IMC Global Inc., a Delaware corporation (the "Registrant"), hereby amends
its Registration Statement on Form S-4 (Registration No. 333-00439) by filing
this Post-Effective Amendment No. 1 on Form S-8.
On March 1, 1996, The Vigoro Corporation, a Delaware corporation
("Vigoro"), became a wholly-owned subsidiary of the Registrant upon consummation
of the merger (the "Merger") contemplated by the Agreement and Plan of Merger
dated as of November 13, 1995 (the "Merger Agreement") among the Registrant, a
wholly-owned subsidiary of the Registrant and Vigoro. Each option (an
"Outstanding Option") to purchase Common Stock, $0.01 par value per share, of
Vigoro ("Vigoro Common Stock"), which was outstanding immediately prior to the
effective time of the Merger (the "Effective Time") pursuant to The Vigoro
Corporation 1991 Stock Option Plan (the "Plan") became an option (a "Substitute
Option") to purchase the number of shares of Common Stock, $1.00 par value, of
the Registrant ("IMC Common Stock"), together with the associated rights to
purchase shares of Junior Participating Preferred Stock, Series C, par value
$1.00 per share of the Registrant ("Rights") in accordance with the Registrant's
Rights Agreement dated as of June 21, 1989, as amended, decreased to the nearest
whole share, determined by multiplying (i) the number of shares of Vigoro Common
Stock subject to such Outstanding Option by (ii) 1.60 (the "Conversion Number"),
at an exercise price per share of IMC Common Stock (increased to the nearest
whole cent) equal to the exercise price per share of Vigoro Common Stock
immediately prior to the Effective Time divided by the Conversion Number. Each
Substitute Option will be exercisable upon the same terms and conditions as were
applicable immediately prior to the Effective Time and vested to the extent
provided in the related Outstanding Option.
This Post-Effective Amendment relates to the offer and sale after the
Effective Time of IMC Common Stock, together with the associated Rights,
pursuant to and in accordance with the Substitute Options.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by the Registrant with the
Securities and Exchange Commission (the "SEC") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act") are incorporated herein by
reference:
1. The Registrant's Annual Report on Form 10-K for the year ended June 30,
1995;
2. The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
September 30 and December 31, 1995;
3. The Registrant's Current Reports on Form 8-K filed August 17, 1995 and
October 17, 1995;
4. The description of the IMC Common Stock contained in the Registration
Statement on Form 8-A/A-1 filed January 12, 1996, including any amendments
or reports filed for the purpose of updating such description; and
5. The description of the Rights contained in the Registration Statement on
Form 8-A June 23, 1989, as amended by Form 8-A/A filed September 18, 1995
and January 24, 1996, including any amendments or reports filed for the
purpose of updating such description.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference herein and to be a part hereof
from the dates of filing of such reports and documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein, or in any other
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
The legal matters in connection with the issuance and due authorization of
the IMC Common Stock and the associated Rights being registered hereby have been
passed upon by Marschall I. Smith, its Senior Vice President, Secretary and
General Counsel. As of January 15, 1996, Mr. Smith was the beneficial owner of
71,276 shares of IMC Common Stock (including 70,100 shares issuable upon the
exercise of stock options, 38,400 of which are currently exercisable).
Item 6. Indemnification of Directors and Officers.
Reference is made to Section 145 of the Delaware General Corporation Law of
the State of Delaware which provides for indemnification of directors and
officers in certain circumstances. The Registrant has insurance to indemnify
its directors and officers for those liabilities in respect of which such
indemnification insurance is permitted under the laws of the State of Delaware.
The Registrant's Restated Certificate of Incorporation provides that, to
the fullest extent permitted by Delaware law, a director shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of
duty as a director.
Item 7. Exemptions from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
(a) The following is a list of Exhibits included as part of this
Registration Statement. The Registrant agrees to furnish supplementally a copy
of any omitted schedule to the SEC upon request. Items marked with an asterisk
are filed herewith.
4.1 Restated Certificate of Incorporation, as amended (incorporated by
reference to the Registrant's Report on Form 8-K dated November 1, 1994).
4.2 Certificate of Amendment to Restated Certificate of Incorporation, dated
October 23, 1995 (incorporated by reference to Exhibit 3.2 to the
Registrant's Registration Statement on Form 8-A/A-1 dated January 12,
1996).
4.3* Certificate of Amendment to Restated Certificate of Incorporation, dated
March 1, 1996.
4.4* Bylaws of IMC Global Inc., as amended March 1, 1996.
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4.5 Rights Agreement, dated June 21, 1989, between IMC Global Inc. and The
First National Bank of Chicago, as Rights Agent (incorporated by reference
to Exhibit 10.35 to Registrant's Annual Report on Form 10-K for the fiscal
year ended June 30, 1989).
4.6 Amendment to Rights Agreement, effective as of April 29, 1993
(incorporated by reference to Exhibit 3.2 to Registrant's Registration
Statement on Form 8-A/A-1 dated January 12, 1996).
4.7 Amendment to Rights Agreement, dated August 17, 1995 (incorporated by
reference to Exhibit 1 to the Registrant's Registration Statement on Form
8-A/A dated September 7, 1995).
4.8 The Vigoro Corporation 1991 Stock Option Plan (incorporated by reference
to Exhibit No. 10(iii)(A)(1) to Vigoro's Registration Statement on Form
S-1 dated March 27, 1991).
4.9 First Amendment to The Vigoro Corporation 1991 Stock Option Plan
(incorporated by reference to Exhibit No. 10(iii)(A)(1)(b) to Vigoro's
Annual Report on Form 10-K for the year ended June 30, 1994).
4.10 Second Amendment to The Vigoro Corporation 1991 Stock Option Plan
(incorporated by reference to Exhibit No. 4(i)(2) to Vigoro's Registration
Statement on Form S-8 dated April 7, 1995).
5* Opinion of Marschall I. Smith.
23.1* Consent of Ernst & Young LLP.
23.2* Consent of Arthur Andersen LLP.
23.3* Consent of Ernst & Young.
23.4* Consent of Marschall I. Smith (included in Exhibit 5 to this Post-
Effective Amendment).
24 Powers of Attorney (filed by the Registrant with the SEC on January 29,
1996 with the Registration Statement on Form S-4 to which this Post-
Effective Amendment relates).
(b) Not applicable.
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
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registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the SEC by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
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fide offering thereof.
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(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
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(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
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fide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Post-
Effective Amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Northbrook, State of Illinois, on March 1, 1996.
IMC GLOBAL INC.
Wendell F. Bueche
By:_________________________
Wendell F. Bueche
Chairman and Chief Executive
Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post-Effective Amendment has been signed below by the following persons in
the capacities and on the dates indicated.
Wendell F. Bueche
__________________ Chairman of the Board March 1, 1996
Wendell F. Bueche and Chief Executive
Officer and Director
(principal executive
officer)
Brian J. Smith
__________________ Executive Vice President March 1, 1996
Brian J. Smith and Chief Financial
Officer (principal
accounting and financial
officer)
James D. Speir
__________________ President, Chief March 1, 1996
James D. Speir Operating Officer and
Director (principal
operating officer)
DIRECTORS
* *
_________________________ __________________________
Raymond F. Bentele Frank W. Considine
* *
_________________________ __________________________
Dr. James M. Davidson Richard A. Lenon
* *
_________________________ __________________________
David B. Mathis Thomas H. Roberts, Jr.
*
_________________________
Billie B. Turner
March 1, 1996
Marschall I. Smith
*By: _____________________________
Marschall I. Smith
Attorney-in-Fact
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EXHIBIT 4.3
CERTIFICATE OF AMENDMENT
OF RESTATED CERTIFICATE OF INCORPORATION
OF IMC GLOBAL INC.
PURSUANT TO SECTION 242 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
IMC Global Inc. (the "Corporation"), a corporation organized and
existing under the by virtue of the General Corporation Law of the State of
Delaware ("DGCL"), DOES HEREBY CERTIFY THAT:
FIRST: At a meeting of the Board of Directors of the Corporation duly
called and held on November 12, 1995 resolutions were duly adopted setting forth
the following proposed amendments to the Restated Certificate of Incorporation
of the Corporation, declaring said amendments to be advisable and directing such
amendments be submitted to stockholders of the Corporation for approval at a
special meeting of the stockholders of said Corporation. Such resolutions
recommended that the Restated Certificate of Incorporation of the Corporation be
amended as set forth below:
(i) the first paragraph of ARTICLE FOURTH of the Restated Certificate
of Incorporation of the Corporation shall be amended to read as follows:
"The aggregate number of shares which the Corporation shall have
authority to issue is 262,000,000 divided into 12,000,000 shares of Series
Preferred Stock, $1.00 par value per share (hereafter called "Series
Preferred Stock"), and 250,000,000 shares of Common Stock, $1.00 par value
per share (hereafter called "Common Stock"). All of such shares shall be
issued as fully-paid and non-assessable shares, and the holders thereof
shall not be liable for any further payments in respect thereto."; and
(ii) the first sentence of ARTICLE NINTH of the Restated Certificate
of Incorporation of the Corporation shall be amended to read as follows:
"(a) The number of directors of the Corporation, exclusive of
directors, if any, to be elected by the holders of one or more series of
Series Preferred Stock, shall be not less than five nor more than fifteen."
SECOND: Pursuant to a resolution of its Board of Directors, a special
meeting of the stockholders of the Corporation was duly called and held on March
1, 1996, upon notice in accordance with Section 222 of the DGCL, at which
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meeting the necessary number of the outstanding shares of common stock of the
Corporation entitled to vote on such amendments by the DGCL and the Restated
Certificate of Incorporation of the Corporation were voted in favor of such
amendments.
THIRD: That such amendments were duly adopted in accordance with the
provisions of Section 242 of the DGCL.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by Marschall I. Smith, Senior Vice President, Secretary
and General Counsel of the Corporation, as of this 1st day of March, 1996.
IMC Global Inc.
Marschall I. Smith
By:_____________________________
Marschall I. Smith
Senior Vice President
Secretary and General Counsel
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EXHIBIT 4.4
BY-LAWS
OF IMC GLOBAL INC.
ARTICLE I
Meetings of Stockholders
SECTION 1. The Annual Meeting of Stockholders of this Corporation
for the election of directors and the transaction of such other business as may
properly come before the meeting shall be held on such day in September, October
or November of each year and at such place and hour as may be fixed by the Board
of Directors prior to the giving of the notice of the date, place and object of
such meeting, or if no other date, place and hour has been so fixed, on the
third Wednesday in October and in the office of the Corporation, 2100 Sanders
Road, Northbrook, Illinois 60062, at 2:00 p.m. Chicago time. Notice of the
time, place and object of such meeting shall be given by mailing at least ten
days previous to such meeting, postage prepaid, a copy of such notice addressed
to each stockholder at his residence or place of business as the same shall
appear on the books of the Corporation.
SECTION 2. Special meetings of the stockholders other than those by
statute may be called at any time by the Chairman of the Board, the President or
by a majority of the directors. Notice of every special meeting stating the
time, place and object thereof, shall be given by mailing, postage prepaid, at
least ten days before such meeting, a copy of such notice addressed to each
stockholder at his post office address as the same appears on the books of the
Corporation.
SECTION 3. At all meetings of stockholders a majority of the
capital stock outstanding, either in person or by proxy, shall constitute a
quorum, excepting as may be otherwise provided by law.
SECTION 4. The Board of Directors may fix a date not more than
sixty days prior to the day of holding any meeting of stockholders as the date
as of which stockholders entitled to notice of and to vote at such meeting shall
be determined.
SECTION 5. At all meetings of stockholders all questions shall be
determined by a majority vote of the stockholders entitled to vote, present in
person or by proxy, except as otherwise provided by law.
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SECTION 6. Except as may otherwise be required by applicable law or
regulation or be expressly authorized by the Board of Directors, a stockholder
may make a nomination or nominations for director of the Corporation at an
annual meeting of stockholders or at a special meeting of stockholders called
for the purpose of electing directors or may bring up any other matter for
consideration and action by the stockholders at a meeting of stockholders only
if the provisions of Subsections A, B and C hereto shall have been satisfied.
If such provisions shall not have been satisfied, any nomination sought to be
made or other business sought to be presented by a stockholder for consideration
and action by the stockholders at the meeting shall be deemed not properly
brought before the meeting, is and shall be ruled by the chairman of the meeting
to be out of order, and shall not be presented or acted upon at the meeting.
A. The stockholder must be a stockholder of record on the record
date for such meeting entitled to vote thereat and must continue to
be a stockholder of record at the time of such meeting.
B. The stockholder must, not less than sixty days before the day of
the meeting or within ten days after the Company has mailed to
stockholders a notice of an annual meeting of stockholders,
whichever is the later, deliver or cause to be delivered a written
notice to the Secretary of the Corporation. The notice shall specify
(a) the name and address of the stockholder as they appear on the
books of the Corporation; (b) the class and number of shares of the
Corporation which are beneficially owned by the stockholder; (c) any
material interest of the stockholder in the proposed business
described in the notice; (d) if such business is a nomination for
director, each nomination sought to be made, together with the
reasons for each nomination, a description of the qualifications and
business or professional experience of each proposed nominee, and a
statement signed by each nominee indicating his or her willingness
so to serve if elected, and disclosing the information about him or
her that is required by the Securities Exchange Act of 1934 (the
"1934 Act") and the rules and regulations promulgated thereunder to
be disclosed in the proxy materials for the meeting involved if he
or she were a nominee of the Corporation for election as one of its
directors; (e) if such business is other than a nomination for
director, the nature of the business, the reasons why it is sought
to be raised and submitted for a vote of the stockholders, and if
and why it is deemed by the stockholder to be beneficial to the
Corporation; and (f) if so requested by the Corporation, all other
information that would be required to be filed with the Securities
and Exchange Commission if,
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with respect to the business proposed to be brought before the
meeting, the person proposing such business was a participant in a
solicitation subject to Section 14 of the 1934 Act.
C. Notwithstanding satisfaction of the provisions of Subsection
A, the proposed business described in the notice may be deemed not
to be properly brought before the meeting if, pursuant to state law
or to any rule or regulation of the Securities and Exchange
Commission, it was offered as a stockholder proposal and was
omitted, or had it been so offered, it could have been omitted, from
the notice of, and proxy material for, the meeting (or any
supplement thereto) authorized by the Board of Directors.
D. In the event such notice is timely given and the business
described therein is not disqualified because of Subsection B, such
business (a) may nevertheless not be presented or acted upon at a
special meeting of stockholders unless in all other respects it is
properly before such meeting; and (b) may not be presented except by
the stockholder who shall have given the notice required by
Subsection A or a representative of such stockholder who is
qualified under the law of the State of Delaware to present the
proposal on the stockholder's behalf at the meeting.
ARTICLE II
Directors
SECTION 1. The number of directors of the Corporation may be
determined from time to time by resolution adopted by a majority of the entire
Board of Directors, except that such number shall not be less than five nor more
than fifteen, exclusive of directors, if any, to be elected by the holders of
one or more series of Series Preferred Stock pursuant to the provisions of
Section (a) of Article Fourth of the Certificate of Incorporation of the
Corporation. Until the next such resolution is adopted, the Board of Directors
shall consist of thirteen directors. No decrease in the number of directors
shall shorten the term of any incumbent director. As used in these By-Laws, the
"entire Board of Directors" means the total number of directors which the
Corporation would have if there were no vacancies. Vacancies occurring in the
Board of Directors may be filled for the unexpired term only by majority vote of
the remaining directors. The Board of Directors shall adopt such rules and
regulations for the conduct of the meetings and management of the affairs of the
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Corporation as they may deem proper, not inconsistent with the laws of the State
of Delaware, the Certificate of Incorporation of the Corporation, or these By-
Laws.
SECTION 2. The director shall elect one of their members, who may
or may not be an officer of the Corporation, to act as Chairman of the Board. He
shall preside, when present, at all meetings of the Board of Directors and
stockholders.
SECTION 3. As soon as practicable after the Annual Meeting of
Stockholders, the newly elected Board of Directors shall hold its first meeting
for the purpose of organization and the transaction of business. At such
organizational meeting, the Board of Directors shall elect the officers of the
Corporation and shall prepare a schedule fixing the time and place of all
regular meetings of the Board of Directors to be held during the succeeding
calendar year. All such regular meetings of the Board of Directors may be held
without further notice to any director who shall have attended the
organizational meeting. Notice of the time and place fixed for such regular
meetings shall be given by personal notice or by mail or telegraph to each
director who shall not have attended the organizational meeting at least ten
days prior to the first Board of Directors' meeting after such organizational
meeting which such director shall be eligible to attend. The Board of Directors
shall have authority to change the time and place of any regular meeting
previously fixed, provided that the foregoing provisions as to notice thereof
shall apply to any such changed regular meeting. The Chairman of the Board of
Directors or the President may, and at the request of a majority of the Board of
Directors in writing must, call a special meeting of the Board of Directors, not
less than 24 hours' notice of which must be given by personal notice or by mail
or telegraph. Nothing herein contained shall prevent a waiver of notice of
meeting by directors.
SECTION 4. At all meetings of the Board of Directors one-third of
the entire Board of Directors as from time to time fixed under these By-Laws
shall constitute a quorum.
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ARTICLE III
Committees of the Board
SECTION 1. The Board of Directors may elect from among its members,
by resolution adopted by two-thirds of the entire Board of Directors, an
Executive Committee consisting of at least three members of the Board of
Directors. From the members of the Executive Committee, the Board of Directors
shall elect a chairman of such committee.
SECTION 2. During the intervals between meetings of the Board of
Directors, the Executive Committee shall, subject to any limitations imposed by
law or the Board of Directors, possess and may exercise all of the powers of the
Board of Directors in the management and direction of the Corporation in such
manner as the Executive Committee shall deem best for the interests of the
Corporation, in all cases in which specific directions shall not have been given
by the Board of Directors.
SECTION 3. The Board of Directors may also elect from among its
members, by resolutions adopted by a majority of the entire Board of Directors,
such other committee or committees as the Board of Directors shall determine,
each such committee to consist of one or more members of the Board of Directors.
The Board of Directors shall elect a chairman of each such committee, shall fix
the number of and elect the other members thereof, and shall establish the
duties and authority thereof, subject to such limitations as may be required by
law.
SECTION 4. The Board of Directors shall fill any vacancies on any
committee established under this Article, with the objective of keeping the
membership of each such committee full at all times.
SECTION 5. All action by any committee of the Board of Directors
shall be referred to the Board of Directors at its meeting next succeeding such
action, and shall be subject to revision or alteration by the Board of Directors
provided that no rights or acts of third parties shall be affected by any such
revision or alteration. Subject to such applicable resolutions as may be adopted
by the Board of Directors, each committee shall fix its own rules of procedure
and shall meet where and as provided in such rules, but in any case the presence
of a majority of the committee members shall be necessary to constitute a
quorum.
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ARTICLE IV
Meetings by Consent
SECTION 1. Any action required or permitted to be taken by the
Board of Directors or any committee thereof may be taken without a meeting if
all members of the Board of Directors or of the committee consent in writing to
the adoption of a resolution authorizing the action. The resolution and the
written consents thereto by the members of the Board of Directors or committee
shall be filed with the minutes of the proceedings of the Board of Directors or
committee.
SECTION 2. Any one or more members of the Board of Directors or any
committee thereof may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other at the same
time. Participation by such means shall constitute presence in person at a
meeting.
ARTICLE V
Officers
SECTION 1. The officers of the Corporation shall be a President
(who shall be a member of the Board of Directors), one or more Vice Presidents,
a Secretary, a Controller, a Treasurer, and such Assistant Secretaries,
Assistant Controllers and Assistant Treasurers as the Board of Directors may
deem necessary. The Chairman of the Board may be an officer of the Corporation.
The Board of Directors may create such other office or offices from time to time
as shall in their judgment, be necessary and convenient and shall have power to
prescribe the duties and authority of the officers elected thereto by the Board
of Directors. Any two offices, excepting those of President and Secretary, may
be held by one person.
SECTION 2. The President shall be the chief executive officer of
the Corporation. He shall exercise the powers and perform the duties usual to
the chief executive officer, and, subject to the control and direction of the
Board of Directors, shall have general charge of the affairs of the Corporation.
He shall see that all orders and resolutions of the Board of Directors are
carried into effect and shall do and
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perform such other duties as from time to time may be assigned to him by the
Board of Directors or these By-Laws and as are incident to the office of chief
executive officer. In the absence or disability of the Chairman of the Board,
the President shall preside at all meetings of the Board of Directors and at all
meetings of the stockholders.
SECTION 3. The Vice Presidents, one or more of whom may be
designated Executive or Senior Vice Presidents, shall perform such duties in
such capacities or as heads of their respective operating divisions as may be
assigned by the Board of Directors, Chairman of the Board or the President. In
the absence or incapacity of the President, the duties of the office of
President shall be performed by the Vice Presidents in the order of priority
established by the Board of Directors, and unless and until the Board of
Directors shall otherwise direct.
SECTION 4. The Controller shall be the chief accounting officer of
the Corporation and shall be in charge of its books of account, accounting
records and accounting and internal auditing procedures. He shall be
responsible for the verification of all of the assets of the Corporation and the
preparation of all tax returns and other financial reports to governmental
agencies by the Corporation and shall have such other duties and powers as shall
be designated from time to time by the Board of Directors or the Chairman of the
Board. The Controller shall be responsible to and shall report to the Board of
Directors, but in the ordinary conduct of the Corporation's business shall be
under the supervision of the Chairman of the Board or such officer of the
Corporation as the Board of Directors shall designate.
SECTION 5. The Treasurer, subject to the direction and supervision
of such officer and to such limitations on his authority as the Board of
Directors may from time to time designate or prescribe, shall have the care and
custody of the funds and securities of the Corporation, sign checks, drafts,
notes and orders for the payment of money, pay out and disburse the funds and
securities of the Corporation and in general perform the duties customary to
that office.
SECTION 6. The Secretary shall keep the minutes of meetings of the
Board of Directors and the minutes of the stockholders' meetings and have the
custody of the seal of the Corporation and affix and attest the same to
certificates of stock, contracts and other documents when proper and
appropriate. He shall perform all of the other duties usual to that office.
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<PAGE>
SECTION 7. The Assistant Secretaries, Assistant Controllers and
Assistant Treasurers shall perform such duties as may be assigned by the Board
of Directors.
SECTION 8. Each officer elected by the Board of Directors shall
hold office until the next annual meeting of the Board of Directors and until
his successor is elected. Any officer may be removed at any time with or without
cause by a vote of a majority of the members of the Board of Directors. A
vacancy in any office caused by the death, resignation or removal of the person
elected thereto or because of the creation of a new office or for any other
reason, may be filled for the unexpired portion of the term by election of the
Board of Directors at any meeting. In case of the absence or disability, or
refusal to act, of any officer of the Corporation, or for any other reason that
the Board of Directors shall deem sufficient, the Board of Directors may
delegate, for the time being, the powers and duties, or any of them, of such
officer to any other officer or to any director.
ARTICLE VI
Capital Stock
SECTION 1. Subscriptions to the capital stock must be paid to the
Treasurer at such time or times, and in such installments as the Board of
Directors may by resolution require.
SECTION 2. Certificates for shares of the Corporation shall be in
such form as shall be approved by the Board of Directors and shall be signed by
the Chairman of the Board or the President or a Vice President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary,
and shall be sealed with the seal of the Corporation or a facsimile thereof.
The signatures of the officers upon a certificate may be facsimiles if the
certificate is countersigned by a transfer agent or registered by a registrar
other than the Corporation itself or any employee. In case any officer has
signed, or whose facsimile signature has been placed upon, a certificate shall
have ceased to be such officer before such certificate is issued, it may be
issued by the Corporation with the same effect as if he were such officer at the
date of the issue.
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SECTION 3. Registration of transfers of shares shall be made upon
the books of the Corporation by the registered holder in person or by power of
attorney, duly executed and filed with the Secretary or other proper officer of
the Corporation, and upon surrender of the certificate or certificates for such
shares, properly assigned for transfer.
ARTICLE VII
Indemnification of Directors and Officers
SECTION 1. Each person who was or is made a party or is threatened
to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than such law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators; provided, however, that, except as provided in
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Section 2 hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Section shall
be a contract right and shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance of its final
disposition (hereinafter an
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"advancement of expenses"); provided, however, that, if the Delaware General
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Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
section or otherwise.
SECTION 2. If a claim under Section 1 of this Article is not paid
in full by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any
such suit, or in a suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such suit. In
(a) any suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (b) in any suit by the
Corporation to recover an advancement of expenses pursuant to the terms of
expenses upon final adjudication that, the indemnitee has not met the applicable
standard of conduct set forth in the Delaware General Corporation Law. Neither
the failure of the Corporation (including its board of directors, independent
legal counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper in
the circumstances because the indemnitee has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its board of directors, independent
legal counsel, or its stockholders) that the indemnitee has not met such
applicable standard of conduct, shall create a presumption that the indemnitee
has not met the applicable standard of conduct or, in the case of such a suit
brought by the indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article or otherwise shall be on the Corporation.
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SECTION 3. The rights to indemnification and to the advancement of
expenses conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the
Corporation's certificate of incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 4. The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 5. The Corporation may, to the extent authorized from time
to time by the Board of Directors, grant rights to indemnification, and to the
advancement of expenses to any employee or agent of the Corporation to the
fullest extent of the provisions of this Section with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
ARTICLE VIII
Amendments
SECTION 1. These By-Laws may be amended at any stockholders'
meeting by a majority of the votes cast at such meeting by the holders of shares
entitled to vote thereon, represented either in person or by proxy.
SECTION 2. Subject to the limitations, if any, from time to time
prescribed in by-laws established by stockholders, the Board of Directors at any
regular or special meeting, by the vote of a majority of the directors may
establish, alter, amend or repeal any by-laws, but any by-laws established by
the Board of Directors may be altered or repealed by stockholders.
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EXHIBIT 5
March 1, 1996
IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
Re: Registration of Shares of Common Stock and
Associated Preferred Stock Purchase Rights.
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Ladies and Gentlemen:
I have acted as counsel to IMC Global Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's Post-Effective
Amendment No. 1 on Form S-8 (the "Post-Effective Amendment") to its Registration
Statement on Form S-4 (Registration No. 333-00439) relating to the registration
of shares of Common Stock, $1.00 par value, of the Company (the "New Shares"),
together with the Preferred Stock Purchase Rights (the "Rights") associated
therewith, to be issued after the Effective Time (as defined in the Agreement
and Plan of Merger dated as of November 13, 1995 (the "Merger Agreement") among
the Company, Bull Merger Company, a Delaware corporation and a wholly-owned
subsidiary of the Company ("Sub"), and The Vigoro Corporation, a Delaware
corporation ("Vigoro"), which provides for the merger (the "Merger") of Sub with
and into Vigoro, with Vigoro surviving as a wholly-owned subsidiary of the
Company), pursuant to and in accordance with the Substitute Options (as defined
in the Merger Agreement). The terms of the Rights are set forth in the Rights
Agreement dated as of June 21, 1989, as amended (the "Rights Agreement"),
between the Company and The First National Bank of Chicago, as Rights Agent.
Based on the foregoing, it is my opinion that:
1. The Company is duly incorporated and validly existing under the
laws of the State of Delaware.
2. Each New Share issuable upon exercise of a Substitute Option will
be legally issued, fully paid and non-assessable when: (i) the Post-Effective
Amendment shall have become effective under the Securities Act and (ii) a
certificate representing such New Share shall have been duly executed,
<PAGE>
countersigned and registered and duly delivered upon receipt of the agreed
consideration therefor in accordance with the terms of the applicable stock
option agreement.
3. Each Right associated with a New Share will be legally issued
when: (i) the Post-Effective Amendment shall have become effective under the
Securities Act; (ii) such Right shall have been duly issued in accordance with
the terms of the Rights Agreement; and (iii) the associated New Share shall have
been duly issued as set forth in paragraph 2.
The foregoing opinions are limited to the federal laws of the United
States of America and the General Corporation Law of the State of Delaware. I
express no opinion as to the application of the securities or blue sky laws of
the various states to the sale of the New Shares.
I hereby consent to the filing of this opinion as an Exhibit to the
Post-Effective Amendment and to all references to me included in or made part of
the Registration Statement described above and any related Prospectus.
Very truly yours,
Marschall I. Smith
Marschall I. Smith
Senior Vice President,
Secretary and General Counsel
IMC Global Inc.
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Post-Effective
Amendment No. 1 (Form S-8) to the Registration Statement (Form S-4 No. 333-
00439) of IMC Global Inc. and the related Prospectuses of our report dated July
26, 1995, with respect to the consolidated financial statements of IMC Global
Inc. included in its Annual Report (Form 10-K) for the year ended June 30, 1995,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Chicago, Illinois
March 1, 1996
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Post-Effective Amendment No. 1 on Form S-8 to Registration
Statement No. 333-00439 of IMC Global Inc. on Form S-4 of our report dated May
12, 1995, included in The Vigoro Corporation's Transition Report on Form 10-K
for the Transition Period from July 1, 1994 through December 31, 1994 and to all
references to our firm included in this registration statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
February 27, 1996
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT CHARTERED ACCOUNTANTS
We consent to the incorporation by reference in this Post-Effective
Amendment No. 1 on Form S-8 to Registration Statement No. 333-00439 of IMC
Global Inc. on Form S-4 and in the related prospectuses of our report dated
August 17, 1994 (except for Note 8 which is as of November 28, 1994 and Note 1
which is as of December 16, 1994) with respect to the financial statements of
Central Canada Potash (then a division of Noranda Inc.) included in Vigoro's
Current Report on Form 8-K dated January 5, 1995 filed with the Securities and
Exchange Commission.
ERNST & YOUNG
Saskatoon, Canada
March 1, 1996
