<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 21, 1998
REGISTRATION NO. 333-
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
IMC GLOBAL INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 2874 36-3492467
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION OF INDUSTRIAL IDENTIFICATION NO.)
INCORPORATION OR CLASSIFICATION CODE
ORGANIZATION) NUMBER)
----------------
2100 SANDERS ROAD
NORTHBROOK, IL 60062
(847) 272-9200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
----------------
J. BRADFORD JAMES
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
2100 SANDERS ROAD
NORTHBROOK, IL 60062
(847) 272-9200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
WITH COPIES TO:
MICHAEL G. TIMMERS
KIRKLAND & ELLIS
200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60601
(312) 861-2000
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after this Registration Statement becomes
effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [_]
CALCULATION OF REGISTRATION FEE
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- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT
TITLE OF EACH CLASS OF OFFERING AGGREGATE OF
SECURITIES AMOUNT TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED UNIT(1) PRICE(1) FEE
- -----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
6 1/2% Notes due 2003... $200,000,000 100% $200,000,000 $59,000
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7 3/8% Debentures due
2018................... $100,000,000 100% $100,000,000 $29,500
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</TABLE>
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(f)
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED SEPTEMBER 21, 1998
PROSPECTUS
, 1998
IMC GLOBAL INC.
LOGO
OFFER TO EXCHANGE ITS 6 1/2% NOTES DUE 2003 AND ITS 7 3/8% DEBENTURES DUE 2018,
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, FOR ANY AND ALL OF
ITS OUTSTANDING 6 1/2% NOTES DUE 2003 AND 7 3/8% DEBENTURES DUE 2018,
RESPECTIVELY.
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON , 1998, UNLESS EXTENDED.
-----------
IMC Global Inc. ("IMC" or the "Company"), hereby offers (the "Exchange
Offer"), upon the terms and conditions set forth in this Prospectus (the
"Prospectus") and the accompanying Letter of Transmittal (the "Letter of
Transmittal"), to exchange $1,000 principal amount of its 6 1/2% Notes due 2003
(the "Exchange Notes") and $1,000 principal amount of its 7 3/8% Debentures due
2018 (the "Exchange Debentures," and together with the Exchange Notes, the
"Exchange Securities"), each registered under the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to a Registration Statement of which
this Prospectus is a part, for each $1,000 principal amount of its outstanding
6 1/2% Notes due 2003 (the "Old Notes"), of which $200,000,000 principal amount
is outstanding, and for each $1,000 principal amount of its outstanding 7 3/8%
Debentures due 2018 (the "Old Debentures," and together with the Old Notes, the
"Old Securities"), of which $100,000,000 principal amount is outstanding,
respectively. The forms and terms of the Exchange Notes and the Exchange
Debentures are the same as the forms and terms of the Old Notes and the Old
Debentures, respectively, except that (i) the Exchange Notes and the Exchange
Debentures will each bear a different CUSIP number from the Old Notes and the
Old Debentures, respectively, (ii) the Exchange Notes and the Exchange
Debentures will have been registered under the Securities Act and, therefore,
will not bear legends restricting the transfer thereof and (iii) holders of the
Exchange Notes and the Exchange Debentures will not be entitled to certain
rights of holders of Old Notes and Old Debentures under the Registration Rights
Agreement (as defined). The Old Notes and the Exchange Notes are sometimes
referred to herein collectively as the "Notes" and the Old Debentures and the
Exchange Debentures are sometimes referred to herein collectively as the
"Debentures." The Exchange Notes and the Exchange Debentures will evidence the
same debt as the Old Notes and the Old Debentures (which they respectively
replace) and will be issued under and be entitled to the benefits of the
Indenture dated as of August 1, 1998 (the "Indenture") between IMC and The Bank
of New York, as Trustee, governing the Notes and the Debentures. The Old Notes
and the Exchange Notes will constitute a single series of debt securities under
the Indenture. In the event that the Exchange Offer is consummated, any Old
Notes that remain outstanding after consummation of the Exchange Offer and the
Exchange Notes issued in the Exchange Offer will vote together as a single
class for purposes of determining whether holders of the requisite percentage
in outstanding principal amount of Notes have taken certain actions or
exercised certain rights under the Indenture. Similarly, the Old Debentures and
the Exchange Debentures will constitute a single series of debt securities
under the Indenture. In the event that the Exchange Offer is consummated, any
Old Debentures outstanding after consummation of the Exchange Offer and the
Exchange Debentures issued in the Exchange Offer will vote together as a single
class for purposes of determining whether holders of the requisite percentage
in outstanding principal amount of Debentures have taken certain actions or
exercised certain rights under the Indenture. See "Description of Exchange
Notes and Exchange Debentures" and "Exchange Offer."
IMC will accept for exchange any and all Old Notes and Old Debentures validly
tendered and not withdrawn prior to 5:00 p.m., New York City time, on
, 1998, unless extended by IMC in its sole discretion (such time and date, as
the same may be extended, the "Expiration Date"). Tenders of Old Notes and Old
Debentures may be withdrawn at any time on or prior to the Expiration Date. The
Exchange Offer is subject to certain customary conditions. See "Exchange
Offer."
The Old Securities were sold by IMC on August 11, 1998 to Merrill Lynch,
Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc., Chase
Securities Inc. and Salomon Brothers Inc (the "Initial Purchasers") in a
transaction not registered under the Securities Act in reliance upon an
exemption under the Securities Act (the "Initial Offering"). The Initial
Purchasers subsequently placed the Old Securities with qualified institutional
buyers in reliance upon Rule 144A under the Securities Act ("Rule 144A").
Accordingly, the Old Securities may not be reoffered, resold or otherwise
transferred in
(Continued on following page)
-----------
This Prospectus and the Letter of Transmittal are first being mailed to all
holders of Old Securities on , 1998.
SEE "RISK FACTORS" BEGINNING ON PAGE 17 FOR A DESCRIPTION OF CERTAIN RISKS TO
BE CONSIDERED WITH RESPECT TO THE EXCHANGE OFFER.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<PAGE>
(continued from previous page)
the United States unless registered under the Securities Act or unless an
applicable exemption from the registration requirements of the Securities Act
is available. The Exchange Securities are being offered hereunder in order to
satisfy the obligations of the Company under the Registration Rights Agreement
entered into by the Company and the Initial Purchasers in connection with the
Initial Offering (the "Registration Rights Agreement"). See "Exchange Offer."
The Exchange Notes will mature on August 1, 2003 and the Exchange Debentures
will mature on August 1, 2018. Each Exchange Note will bear interest at the
rate of 6 1/2% per annum and each Exchange Debenture will bear interest at the
rate of 7 3/8% per annum, in each case from the last Interest Payment Date (as
defined) to which interest was paid on the Old Note or Old Debenture (as the
case may be) surrendered in exchange therefor or, if no interest has been paid
on such Old Note or Old Debenture, from August 11, 1998, payable semiannually
on February 1 and August 1 in each year, commencing February 1, 1999. Holders
of the Old Notes or the Old Debentures whose Old Notes or Old Debentures are
accepted for exchange will not receive accrued interest on such Old Notes or
Old Debentures for any period from and after the last Interest Payment Date to
which interest has been paid or duly provided for on such Old Notes or Old
Debentures prior to the original issue date of the Exchange Notes or Exchange
Debentures or, if no such interest has been paid or duly provided for, will
not receive any accrued interest on such Old Notes or Old Debentures, and will
be deemed to have waived the right to receive any interest on such Old Notes
or Old Debentures accrued from and after such Interest Payment Date or, if no
such interest has been paid or duly provided for, from and after August 11,
1998. Each of the Exchange Notes and the Exchange Debentures will be
redeemable at the option of IMC, in whole at any time or in part from time to
time, at a redemption price equal to the greater of (i) 100% of their
principal amount and (ii) the sum of the present values of the principal
amount and the remaining scheduled payments of interest thereon, in each case
discounted from their respective scheduled payment dates to the redemption
date on a semiannual basis at the Treasury Rate (as defined) plus 15 basis
points in the case of the Exchange Notes and 25 basis points in the case of
the Exchange Debentures, plus in either case accrued interest thereon to the
redemption date. See "Description of Exchange Notes and Exchange Debentures."
The Exchange Notes and the Exchange Debentures will be unsecured, senior
debt of IMC and will rank on a parity with all other unsecured and
unsubordinated indebtedness of IMC. See "Description of Exchange Notes and
Exchange Debentures."
Any Old Notes or Old Debentures not tendered and accepted in the Exchange
Offer will remain outstanding and will be entitled to all the same rights and
benefits and will be subject to the same limitations applicable thereto under
the Indenture (except for those rights which terminate upon consummation of
the Exchange Offer). Following consummation of the Exchange Offer, the holders
of Old Notes or Old Debentures will continue to be subject to the existing
restrictions upon transfer thereof and the Company will have no further
obligation to such holders to provide for registration under the Securities
Act of the Old Notes or the Old Debentures held by them. To the extent that
Old Notes or Old Debentures are tendered and accepted in the Exchange Offer,
the trading market for untendered and tendered but unaccepted Old Notes and
Old Debentures could be adversely affected.
Based on existing interpretations of the Securities Act by the staff of the
Securities and Exchange Commission (the "SEC" or the "Commission") set forth
in several no-action letters to third parties, and subject to the immediately
following sentence, the Company believes that the Exchange Securities to be
issued pursuant to the Exchange Offer may be offered for resale, resold and
otherwise transferred by the holders thereof (other than any such holders who
are broker-dealers) without compliance with the registration and prospectus
delivery requirements of the Securities Act. However, any holder of Old Notes
or Old Debentures who is an "affiliate" of the Company or who intends to
participate in the Exchange Offer for the purpose of distributing the Exchange
Notes or the Exchange Debentures, or any broker-dealer who purchased the Old
Notes or the Old Debentures from the Company for resale pursuant to Rule 144A
or any other available exemption under the Securities Act, (i) will not be
able to rely on the interpretations of the staff of the Commission (the
"Staff") set forth in the above-mentioned no-action letters, (ii) will not be
entitled to tender its Old Notes or Old Debentures, as
2
<PAGE>
applicable, in the Exchange Offer and (iii) must comply with the registration
and prospectus delivery requirements of the Securities Act in connection with
any sale or transfer of the Old Notes or Old Debentures, as applicable, unless
such sale or transfer is made pursuant to an exemption from such requirements.
The Company does not intend to seek its own no-action letter, and there can be
no assurance that the Staff would make a similar determination with respect to
the Exchange Notes or the Exchange Debentures as it has in such no-action
letters to third parties.
Each holder of Old Notes or Old Debentures (other than certain specified
holders) who wishes to exchange the Old Notes or the Old Debentures, as
applicable, for Exchange Notes or Exchange Debentures, as applicable, in the
Exchange Offer will be required to represent that (i) it is not an "affiliate"
of the Company, (ii) the Exchange Notes or the Exchange Debentures, as
applicable, to be received by it are being acquired in the ordinary course of
its business, (iii) it has no arrangement with any person to participate in
the distribution (within the meaning of the Securities Act) of the Exchange
Notes or the Exchange Debentures, as applicable, and (iv) if such holder is
not a broker-dealer, such holder is not engaged in, and does not intend to
engage in, a distribution (within the meaning of the Securities Act). Each
broker-dealer that receives Exchange Notes or Exchange Debentures for its own
account pursuant to the Exchange Offer must acknowledge that it acquired the
Old Notes or the Old Debentures for its own account as a result of market-
making or other trading activities and must agree that it will deliver a
prospectus meeting the requirements of the Securities Act in connection with
any resale of such Exchange Notes or Exchange Debentures. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. The Commission has taken the position in
the above-mentioned no-action letters that broker-dealers who acquired Old
Notes or Old Debentures for their own accounts as a result of market-making or
other trading activities ("Participating Broker-Dealers") may fulfill their
prospectus delivery requirements with respect to the Exchange Notes or the
Exchange Debentures, as applicable, other than a resale of an unsold allotment
from the original sale thereof, with a prospectus meeting the requirements of
the Securities Act, which may be the prospectus prepared for an exchange offer
so long as it contains a plan of distribution with respect to the resale of
such Exchange Notes and Exchange Debentures. Under the Registration Rights
Agreement, the Company is required to allow Participating Broker-Dealers and
other persons, if any, subject to similar prospectus delivery requirements to
use this Prospectus, as it may be amended or supplemented from time to time,
in connection with the resale of such Exchange Notes or Exchange Debentures,
as applicable, for a period of 180 days from the issuance of the Exchange
Notes or the Exchange Debentures, as applicable. The Company has agreed that,
for a period of 180 days after the Expiration Date, it will make this
Prospectus available to any Participating Broker-Dealer for use in connection
with any such resale (provided that the Company has received prior written
notice from such Participating Broker-Dealer of its status as a Participating
Broker-Dealer). See "Plan of Distribution." Any Participating Broker-Dealer
who is an "affiliate" of the Company may not rely on the above-mentioned no-
action letters and must comply with the registration and delivery requirements
of the Securities Act in connection with any resale transaction.
The Company will not receive any cash proceeds from the issuance of the
Exchange Securities offered hereby. The Company has agreed to bear the
expenses of the Exchange Offer. No dealer-manager is being used in connection
with the Exchange Offer.
The Exchange Notes and the Exchange Debentures will each constitute a new
issue of securities with no established trading market. The Company does not
intend to list the Exchange Notes or the Exchange Debentures on any national
securities exchange or seek the admission thereof to trading in the National
Association of Securities Dealers Automated Quotation System. The Initial
Purchasers have advised the Company that they currently intend to make a
market in each of the Exchange Notes and the Exchange Debentures, but they are
not obligated to do so and may discontinue such market making at any time. In
addition, such market making activity will be subject to the limits imposed by
the Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and may be limited during the Exchange Offer and the pendency
of any Shelf Registration Statement (as defined). Accordingly, no assurance
can be given that an active public market or other market will develop for the
Exchange Notes or the Exchange Debentures. See "Risk Factors--Absence of a
Public Market Could Adversely Affect the Value of Exchange Securities."
3
<PAGE>
THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION.
HOLDERS OF OLD NOTES OR OLD DEBENTURES ARE URGED TO READ THIS PROSPECTUS AND
THE LETTER OF TRANSMITTAL CAREFULLY BEFORE DECIDING WHETHER TO TENDER THEIR
OLD NOTES OR OLD DEBENTURES PURSUANT TO THE EXCHANGE OFFER.
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THE COMPANY ACCEPT
SURRENDERS FOR EXCHANGE FROM, HOLDERS OF OLD NOTES OR OLD DEBENTURES IN ANY
JURISDICTION IN WHICH THE EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT
BE IN COMPLIANCE WITH THE SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTION.
NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING HEREBY TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
THE ACCOMPANYING LETTER OF TRANSMITTAL, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS OR THE
ACCOMPANYING LETTER OF TRANSMITTAL, NOR ANY EXCHANGE MADE HEREUNDER SHALL
UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED
HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF.
THE EXCHANGE NOTES AND THE EXCHANGE DEBENTURES WILL BE AVAILABLE INITIALLY
ONLY IN BOOK-ENTRY FORM. EXCEPT AS DESCRIBED UNDER "DESCRIPTION OF EXCHANGE
NOTES AND EXCHANGE DEBENTURES--BOOK ENTRY SYSTEM," THE COMPANY EXPECTS THAT
THE EXCHANGE NOTES AND THE EXCHANGE DEBENTURES ISSUED PURSUANT TO THE EXCHANGE
OFFER WILL BE REPRESENTED BY GLOBAL SECURITIES, WHICH WILL BE DEPOSITED WITH,
OR ON BEHALF OF, THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY" OR "DTC") AND
REGISTERED IN THE NAME OF CEDE & CO. (DTC'S PARTNERSHIP NOMINEE). BENEFICIAL
INTERESTS IN THE GLOBAL SECURITIES WILL BE SHOWN ON, AND TRANSFERS THEREOF
WILL BE EFFECTED ONLY THROUGH, RECORDS MAINTAINED BY DTC AND ITS PARTICIPANTS
(WHICH MAY INCLUDE MORGAN GUARANTY TRUST COMPANY OF NEW YORK, BRUSSELS OFFICE,
AS OPERATOR OF THE EUROCLEAR SYSTEM, AND CITIBANK, N.A., AS OPERATOR OF CEDEL
BANK, SOCIETE ANONYME). AFTER THE INITIAL ISSUANCE OF THE GLOBAL SECURITIES,
EXCHANGE NOTES AND EXCHANGE DEBENTURES IN CERTIFICATED FORM WILL BE ISSUED IN
EXCHANGE FOR THE GLOBAL SECURITIES ONLY UNDER LIMITED CIRCUMSTANCES AS SET
FORTH IN THE INDENTURE. SEE "DESCRIPTION OF EXCHANGE NOTES AND EXCHANGE
DEBENTURES--BOOK ENTRY SYSTEM."
PROSPECTIVE INVESTORS IN THE EXCHANGE NOTES AND THE EXCHANGE DEBENTURES ARE
NOT TO CONSTRUE THE CONTENTS OF THIS PROSPECTUS AS INVESTMENT, LEGAL OR TAX
ADVICE. EACH INVESTOR SHOULD CONSULT ITS OWN COUNSEL, ACCOUNTANT AND OTHER
ADVISORS AS TO LEGAL, TAX, BUSINESS, FINANCIAL AND RELATED ASPECTS OF THE
EXCHANGE NOTES AND THE EXCHANGE DEBENTURES. THE COMPANY IS NOT MAKING ANY
REPRESENTATION TO ANY PROSPECTIVE INVESTOR IN THE EXCHANGE NOTES OR THE
EXCHANGE DEBENTURES REGARDING THE LEGALITY OF AN INVESTMENT THEREIN BY SUCH
PERSON UNDER APPROPRIATE LEGAL INVESTMENT OR SIMILAR LAWS.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON REQUEST FROM
THE CORPORATE SECRETARY, IMC GLOBAL INC., 2100 SANDERS ROAD, NORTHBROOK,
ILLINOIS 60062, TELEPHONE NUMBER (847) 272-9200. IN ORDER TO ENSURE TIMELY
DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY , 1998
(FIVE BUSINESS DAYS PRIOR TO THE EXPIRATION DATE).
THE COMPANY HAS FIXED THE CLOSE OF BUSINESS ON , 1998 AS THE RECORD DATE FOR
THE EXCHANGE OFFER FOR PURPOSES OF DETERMINING THE HOLDERS TO WHOM THIS
PROSPECTUS AND THE LETTER OF TRANSMITTAL WILL BE MAILED INITIALLY.
4
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange Act
and in accordance therewith files reports and other information with the
Commission. Reports, proxy and information statements and other information
filed by the Company can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, and at the following Regional Offices of the
Commission: Midwest Regional Office, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661 and Northeast Regional Office, 7 World Trade Center,
Suite 1300, New York, New York 10048. Copies of such material can be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Reports, proxy and information
statements and other information concerning the Company may also be inspected
at the offices of the national securities exchanges on which the Company's
Common Stock is listed: The New York Stock Exchange, Inc., 20 Broad Street, New
York, New York 10005, and The Chicago Stock Exchange, Incorporated, 440 South
LaSalle Street, Chicago, Illinois 60605. The Company is subject to the
electronic filing requirements of the Commission. Accordingly, pursuant to the
rules and regulations of the Commission, certain documents, including annual
and quarterly reports and proxy statements, filed by the Company with the
Commission have been and will be filed electronically. The Commission maintains
a Web site at http://www.sec.gov containing reports, proxy and information
statements and other information regarding registrants, including the Company,
that file electronically with the Commission.
This Prospectus constitutes a part of a Registration Statement on Form S-4
(the "Exchange Offer Registration Statement," which term shall encompass all
amendments, exhibits, annexes and schedules thereto) filed by the Company with
the Commission under the Securities Act covering the Exchange Offer
contemplated hereby. This Prospectus omits certain of the information contained
in the Exchange Offer Registration Statement in accordance with the rules and
regulations of the Commission. Reference is hereby made to the Exchange Offer
Registration Statement and related exhibits for further information with
respect to the Company and the Exchange Offer. Statements contained herein
concerning the provisions of any document are not necessarily complete and, in
each instance, reference is made to the copy of such document filed as an
exhibit to the Exchange Offer Registration Statement or otherwise filed with
the Commission. Each such statement is qualified in its entirety by such
reference.
The Company has agreed that, if the Company ceases to be subject to the
reporting requirements of Section 13 or Section 15 of the Exchange Act, (i) for
so long as any Notes or Debentures remain outstanding, it will mail to the
holders of the Notes and the Debentures (a) annual reports containing the
information required by the Exchange Act to be contained in an Annual Report on
Form 10-K, (b) quarterly reports containing the information required by the
Exchange Act to be contained in a Quarterly Report on Form 10-Q and (c)
promptly after the occurrence of an event required to be therein reported, such
other reports containing information required by the Exchange Act to be
contained in a Current Report on Form 8-K and (ii) for so long as any
Registrable Notes (as defined in the Registration Rights Agreement) or
Registrable Debentures (as defined in the Registration Rights Agreement) remain
outstanding, it will, upon the request of any holder of Registrable Notes or
Registrable Debentures (x) make publicly available such information as is
necessary to permit sales of such securities pursuant to Rule 144 under the
Securities Act and (y) deliver such information to a prospective purchaser as
is necessary to permit sales of such securities pursuant to Rule 144A under the
Securities Act.
INFORMATION INCORPORATED BY REFERENCE
The following documents of the Company heretofore filed with the Commission
pursuant to the Exchange Act (File No. 1-9759) are incorporated herein by
reference:
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1997;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1998;
3. The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1998;
4. The Company's Current Report on Form 8-K filed on January 6, 1998;
5. The Company's Current Report on Form 8-K filed on January 15, 1998; and
6. The Company's Current Report on Form 8-K filed on April 15, 1998, as
amended on June 15, 1998 and September 16, 1998.
5
<PAGE>
The consolidated financial statements of Freeport-McMoRan Inc. ("FTX") at
December 31, 1996 and for each of the three years in the period ended December
31, 1996 contained in FTX's Annual Report on Form 10-K for the year ended
December 31, 1996 filed with the Commission pursuant to the Exchange Act (File
No. 1-8124) are incorporated herein by reference. The unaudited interim
consolidated financial statements of FTX for the quarter ended September 30,
1997 contained in FTX's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997 filed with the Commission pursuant to the Exchange Act (File
No. 1-8124) are incorporated herein by reference.
All reports and other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Exchange
Securities offered hereby shall be deemed to be incorporated by reference into
this Prospectus and to be a part hereof from the date of filing of such reports
and documents; provided, however, that the Report of the Compensation Committee
and the Performance Graph contained in any Proxy Statement of the Company shall
not be so deemed incorporated by reference. Any statement contained in a
document incorporated or deemed to be incorporated by reference in this
Prospectus shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein, therein or in any
other subsequently filed documents which also is or is deemed to be
incorporated by reference in this Prospectus modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
(without exhibits other than exhibits specifically incorporated by reference)
of any or all documents incorporated by reference into this Prospectus.
Requests for such copies should be directed to the Corporate Secretary, IMC
Global Inc., 2100 Sanders Road, Northbrook, Illinois 60062, telephone number
(847) 272-9200.
FORWARD-LOOKING STATEMENTS
This Prospectus, including the documents incorporated by reference herein,
includes "forward-looking statements" within the meaning of various provisions
of the Securities Act and the Exchange Act. All statements, other than
statements of historical facts, included or incorporated by reference in this
Prospectus that address activities, events or developments that the Company
expects or anticipates will or may occur in the future, including such things
as future capital expenditures (including the amount and nature thereof),
business strategy and measures to implement strategy, competitive strengths,
goals, expansion and growth of the Company's and its subsidiaries' business and
operations, plans, references to future success as well as other statements
which include words such as "anticipate," "believe," "plan," "estimate,"
"expect" and "intend" and other similar expressions, constitute forward-looking
statements. These statements are based on certain assumptions and analyses made
by the Company in light of its experience and its perception of historical
trends, current conditions and expected future developments as well as other
factors it believes are appropriate in the circumstances. However, whether
actual results and developments will conform with the Company's expectations
and predictions is subject to a number of risks and uncertainties, including
any special considerations included or incorporated by reference in this
Prospectus; general economic, market or business conditions; conditions in and
policies of the agriculture industry; weather; risks associated with export
sales and investments and operations in foreign jurisdictions and any future
international expansion, including those related to economic, political and
regulatory policies of local governments and laws or policies of the United
States and Canada, as well as those of the United Kingdom and other European
countries, China and other countries in the Far East and Australia; changes in
governmental laws and regulations affecting environmental compliance, taxes and
other matters impacting the Company; the risks attendant with mining
operations; the potential impacts of increased competition in the markets the
Company operates within; risk factors reported from time to time in the reports
filed by the Company with the SEC and other factors, many of which are beyond
the control of the Company and its subsidiaries. Consequently, all of the
forward-looking statements made in this Prospectus are qualified by these
cautionary statements, and there can be no assurance that the actual results or
developments anticipated by the Company will be realized or, even if
substantially realized, that they will have the expected consequences to or
effects on the Company and its subsidiaries or their business or operations.
6
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by, and should be read in
conjunction with, the more detailed information and financial data included
elsewhere in this Prospectus and in the documents incorporated by reference in
this Prospectus.
THE COMPANY
The Company is one of the world's leading producers of crop nutrients for the
international agricultural community and is one of the foremost distributors in
the United States of crop nutrients and related products through its retail and
wholesale distribution networks. The Company is also one of the world's leading
producers of salt, soda ash and other inorganic chemicals. The Company mines,
processes and distributes potash in the United States and Canada and is the
majority joint venture partner in IMC-Agrico Company ("IMC-Agrico"), a leading
producer, marketer and distributor of phosphate crop nutrients and animal feed
ingredients. The Company also mines, processes and distributes salt products in
the United States, Canada and Europe and is a major producer of soda ash and
other inorganic chemicals in the United States, Europe and Australia. The
Company has structured its operations into five business units corresponding to
its major product lines as follows: IMC Crop Nutrients (phosphates and potash),
IMC Salt (salt), IMC-Agrico Feed Ingredients (animal feed), IMC Chemicals (soda
ash and other inorganic chemicals) and IMC AgriBusiness (wholesale and retail
distribution).
The Company believes that it is one of the most efficient North American
producers of concentrated phosphates, potash and animal feed ingredients. The
Company's retail distribution network, which extends principally to corn and
soybean farmers in the eastern Midwest and to cotton, peanut and vegetable
farmers in the southeastern United States, is one of the preeminent
distributors of crop nutrients and related products. In addition, the Company
believes it is one of the lowest cost producers of salt in North America. The
Company produces and markets water conditioning, agricultural, industrial,
consumer and road salt products. The Company also produces soda ash, boron
chemicals and other inorganic chemicals. As a result of the merger with FTX,
the Company participates in the exploration and production of oil and gas with
McMoRan Oil & Gas Co.
The three major nutrients required for plant growth are phosphorus, contained
in phosphate rock; potassium, contained in potash; and nitrogen. Phosphorus
plays a key role in the photosynthesis process. Potassium is an important
regulator of plants' physiological functions. Nitrogen is an essential element
for most organic compounds and plants. These elements are naturally present in
the soil but need to be replaced through the use of crop nutrients as crops
exhaust them. Currently, no viable crop nutrient substitutes exist to replace
the role of phosphate, potash and nitrogen in the development and maintenance
of high-yield crops.
The Company's business strategy focuses on maintaining and growing its
leading position as a crop nutrient producer and distributor through extensive
customer service, efficient distribution and transportation and supplying
products worldwide at competitive prices by taking advantage of economies of
scale and state-of-the-art technology to reduce costs. The Company intends to
continue to expand its product distribution and marketing throughout the world
through export associations and its international sales force. The Company
recently expanded its strategy to include salt production and distribution
which it considers complementary to its crop nutrient businesses.
In April 1998, the Company completed its previously announced acquisition of
privately held Harris Chemical Group, Inc. ("HCG") and its Australian
affiliate, Harris Chemical Australia Pty Ltd. & Its Controlled Entities
("Penrice," and collectively with HCG, "Harris"), for approximately $1.4
billion (the "Harris Acquisition"). Under the terms of the Harris Acquisition,
the Company purchased all Harris equity for approximately $450 million in cash
and assumed approximately $950 million of debt. Harris, with annual sales
7
<PAGE>
of approximately $800 million, is a leading producer of salt, soda ash, boron
chemicals and other inorganic chemicals, including potash crop nutrients.
In December 1997, the Company completed a merger with FTX (the "FTX Merger"),
which held approximately 52% of the interest in Phosphate Resource Partners
Limited Partnership ("PLP"). The Company was the surviving entity and the
transaction was accounted for as a purchase. Immediately prior to the FTX
Merger, the sulphur and Main Pass 299 ("Main Pass") businesses of PLP and the
Company were transferred to Freeport-McMoRan Sulphur Inc. ("FSC"); the Company
does not own any of the outstanding shares of FSC. As a result of the FTX
Merger, the Company's total interest in IMC-Agrico increased from approximately
57% to approximately 79%.
The Company's principal executive office is located at 2100 Sanders Road,
Northbrook, Illinois 60062, telephone number (847) 272-9200.
THE INITIAL OFFERING
Old Securities.................. The Old Securities were sold by IMC on August
11, 1998 to the Initial Purchasers pursuant
to a Purchase Agreement dated August 6, 1998
(the "Purchase Agreement") in a transaction
not registered under the Securities Act in
reliance upon an exemption under the
Securities Act. The Initial Purchasers
subsequently placed the Old Securities with
qualified institutional buyers in reliance
upon Rule 144A.
Registration Rights Agreement... Pursuant to the Purchase Agreement, the
Company and the Initial Purchasers entered
into the Registration Rights Agreement, which
grants the holders of the Old Notes and the
Old Debentures certain exchange and
registration rights. The Company is making
the Exchange Offer in order to satisfy its
obligations under the Registration Rights
Agreement relating to the Old Securities.
THE EXCHANGE OFFER
Securities Offered.............. Up to $200,000,000 aggregate principal amount
of 6 1/2% Notes due 2003 and up to
$100,000,000 aggregate principal amount of 7
3/8% Debentures due 2018, which have been
registered under the Securities Act.
The Exchange Offer.............. $1,000 principal amount of Exchange Notes and
$1,000 principal amount of Exchange
Debentures in exchange for each $1,000
principal amount of Old Notes and Old
Debentures, respectively. As of the date
hereof, $200,000,000 aggregate principal
amount of Old Notes are outstanding and
$100,000,000 aggregate principal amount of
Old Debentures are outstanding. The Company
will issue the Exchange Notes and the
Exchange Debentures, as applicable, to
holders on or promptly after the Expiration
Date.
8
<PAGE>
Based on existing interpretations by the
Staff set forth in several no-action letters
issued to third parties, and subject to the
immediately following sentence, the Company
believes that the Exchange Securities to be
issued pursuant to the Exchange Offer may be
offered for resale, resold and otherwise
transferred by the holder thereof (other than
holders who are broker-dealers) without
compliance with the registration and
prospectus delivery requirements of the
Securities Act. However, any holder of Old
Notes or Old Debentures who is an "affiliate"
of the Company or who intends to participate
in the Exchange Offer for the purpose of
distributing the Exchange Notes or the
Exchange Debentures, or any broker-dealer who
purchased the Old Notes or the Old Debentures
from the Company for resale pursuant to Rule
144A or any other available exemption under
the Securities Act, (i) will not be able to
rely on the interpretations of the Staff set
forth in the above-mentioned no-action
letters, (ii) will not be entitled to tender
its Old Notes or Old Debentures, as
applicable, in the Exchange Offer and (iii)
must comply with the registration and
prospectus delivery requirements of the
Securities Act in connection with any sale or
transfer of the Old Notes or Old Debentures,
as applicable, unless such sale or transfer
is made pursuant to an exemption from such
requirements. The Company does not intend to
seek its own no-action letter, and there can
be no assurance that the Staff would make a
similar determination with respect to the
Exchange Notes or the Exchange Debentures as
it has in such no-action letters to third
parties.
Each holder of Old Notes or Old Debentures
(other than certain specified holders) who
wishes to exchange the Old Notes or the Old
Debentures, as applicable, for Exchange Notes
or Exchange Debentures, as applicable, in the
Exchange Offer will be required to represent
that (i) it is not an "affiliate" of the
Company, (ii) the Exchange Notes or the
Exchange Debentures, as applicable, to be
received by it are being acquired in the
ordinary course of its business, (iii) it has
no arrangement with any person to participate
in the distribution (within the meaning of
the Securities Act) of the Exchange Notes or
the Exchange Debentures, as applicable, and
(iv) if such holder is not a broker-dealer,
such holder is not engaged in, and does not
intend to engage in, a distribution (within
the meaning of the Securities Act). Each
Participating Broker-Dealer that receives
Exchange Notes or Exchange Debentures for its
own account pursuant to the Exchange Offer
must acknowledge that it acquired the Old
Notes or the Old Debentures for its own
account as a result of market-making or other
trading activities and must agree that it
will deliver a prospectus meeting the
requirements of the Securities Act in
connection with any resale of such Exchange
Notes or
9
<PAGE>
Exchange Debentures. The Letter of
Transmittal states that by so acknowledging
and by delivering a prospectus, a
Participating Broker-Dealer will not be
deemed to admit that it is an "underwriter"
within the meaning of the Securities Act. The
Commission has taken the position in the
above-mentioned no-action letters that
Participating Broker-Dealers who acquired Old
Notes or Old Debentures for their own
accounts as a result of market-making or
other trading activities may fulfill their
prospectus delivery requirements with respect
to the Exchange Notes or the Exchange
Debentures, as applicable, other than a
resale of an unsold allotment from the
original sale thereof, with a prospectus
meeting the requirements of the Securities
Act, which may be the prospectus prepared for
an exchange offer so long as it contains a
plan of distribution with respect to the
resale of such Exchange Notes and Exchange
Debentures. Under the Registration Rights
Agreement, the Company is required to allow
Participating Broker-Dealers and other
persons, if any, subject to similar
prospectus delivery requirements to use this
Prospectus, as it may be amended or
supplemented from time to time, in connection
with the resale of such Exchange Notes or
Exchange Debentures, as applicable, for a
period of 180 days from the issuance of the
Exchange Notes or the Exchange Debentures, as
applicable. The Company has agreed that, for
a period of 180 days after the Expiration
Date, it will make this Prospectus available
to any Participating Broker-Dealer for use in
connection with any such resale (provided
that the Company has received prior written
notice from such Participating Broker-Dealer
of its status as a Participating Broker-
Dealer). See "Plan of Distribution." Any
Participating Broker-Dealer who is an
"affiliate" of the Company may not rely on
the above-mentioned no-action letters and
must comply with the registration and
delivery requirements of the Securities Act
in connection with any resale transaction.
Holders of Old Notes or Old Debentures do not
have any appraisal or dissenters' rights
under the General Corporation Law of Delaware
or the Indenture in connection with the
Exchange Offer.
Expiration Date................. 5:00 p.m., New York City time, on
, 1998 unless extended by IMC in its sole
discretion, in which case the term
"Expiration Date" shall mean the latest date
and time to which the Exchange Offer is
extended.
Conditions to the Exchange The Exchange Offer is subject to certain
Offer........................... customary conditions, which may be waived by
the Company. See "Exchange Offer--
Conditions."
Procedures for Tendering Old Each holder of Old Notes or Old Debentures
Securities...................... wishing to accept the Exchange Offer must
complete, sign and date the
10
<PAGE>
accompanying Letter of Transmittal, or a
facsimile thereof (or, in the case of a book-
entry transfer, deliver an Agent's Message
(as defined) in lieu thereof), in accordance
with the instructions contained herein and
therein, and mail or otherwise deliver such
Letter of Transmittal, or such facsimile (or,
in the case of book-entry transfer, deliver
an Agent's Message in lieu thereof), together
with the Old Notes or Old Debentures and any
other required documentation to the Exchange
Agent (as defined) at the address set forth
herein. By executing the Letter of
Transmittal (or, in the case of a book-entry
transfer, delivering an Agent's Message in
lieu thereof), each holder will represent to
the Company that, among other things, (i) it
is not an "affiliate" of the Company, (ii)
the Exchange Notes or the Exchange
Debentures, as applicable, to be received by
it are being acquired in the ordinary course
of its business, (iii) it has no arrangement
with any person to participate in the
distribution (within the meaning of the
Securities Act) of the Exchange Notes or the
Exchange Debentures, as applicable, and (iv)
if such holder is not a broker-dealer, such
holder is not engaged in, and does not intend
to engage in, a distribution (within the
meaning of the Securities Act). Each
Participating Broker-Dealer that receives
Exchange Notes or Exchange Debentures for its
own account pursuant to the Exchange Offer
must acknowledge that it acquired the Old
Notes or the Old Debentures for its own
account as a result of market-making or other
trading activities and must agree that it
will deliver a prospectus meeting the
requirements of the Securities Act in
connection with any resale of such Exchange
Notes or Exchange Debentures. Questions
regarding how to tender and requests for
information should be directed to the
Exchange Agent. See "Exchange Offer--Purpose
and Effect of the Exchange Offer," "--
Procedures for Tendering" and "--Exchange
Agent."
Untendered Old Securities....... Any Old Notes or Old Debentures not tendered
and accepted in the Exchange Offer will
remain outstanding and will be entitled to
all the same rights and benefits and will be
subject to the same limitations applicable
thereto under the Indenture (except for those
rights which terminate upon consummation of
the Exchange Offer). Following consummation
of the Exchange Offer, the holders of Old
Notes or Old Debentures will continue to be
subject to the existing restrictions upon
transfer thereof and the Company will have no
further obligation to such holders to provide
for registration under the Securities Act of
the Old Notes or the Old Debentures held by
them. To the extent that Old Notes or Old
Debentures are tendered and accepted in the
Exchange Offer, the trading market for
untendered and tendered but unaccepted Old
Notes and Old Debentures could be adversely
affected.
11
<PAGE>
Consequences of Failure to The Old Notes and the Old Debentures that are
Exchange........................ not exchanged for Exchange Notes and Exchange
Debentures, respectively, pursuant to the
Exchange Offer will remain restricted
securities. Accordingly, such Old Notes or
Old Debentures may be offered, sold or
otherwise transferred only to certain persons
or under certain circumstances. The Old Notes
and the Exchange Notes will constitute a
single series of debt securities under the
Indenture. In the event that the Exchange
Offer is consummated, any Old Notes that
remain outstanding after consummation of the
Exchange Offer and the Exchange Notes issued
in the Exchange Offer will vote together as a
single class for purposes of determining
whether holders of the requisite percentage
in outstanding principal amount of Notes have
taken certain actions or exercised certain
rights under the Indenture. Similarly, the
Old Debentures and the Exchange Debentures
will constitute a single series of debt
securities under the Indenture. In the event
that the Exchange Offer is consummated, any
Old Debentures outstanding after consummation
of the Exchange Offer and the Exchange
Debentures issued in the Exchange Offer will
vote together as a single class for purposes
of determining whether holders of the
requisite percentage in outstanding principal
amount of Debentures have taken certain
actions or exercised certain rights under the
Indenture. See "Exchange Offer--Consequences
of Failure to Exchange."
Shelf Registration Statement.... If (i) because of any change in law or in
currently prevailing interpretations thereof
by the Staff, the Company is not permitted to
effect the Exchange Offer, (ii) the Exchange
Offer is not consummated within 180 days
after the date of issuance of the Old
Securities or (iii) upon the request of any
Initial Purchaser, if such Initial Purchaser
is not permitted, in the reasonable opinion
of counsel, pursuant to applicable law or
applicable interpretations of the Staff, to
participate in the Exchange Offer and thereby
receive securities that are freely tradeable
without restriction under the Securities Act
and applicable blue sky or state securities
laws, then in each case, the Company has
agreed, among other things, to file a shelf
registration statement covering resales of
the Old Securities (the "Shelf Registration
Statement") and use its reasonable best
efforts to cause it to be declared effective
under the Securities Act. See "Exchange
Offer--Purpose and Effect of the Exchange
Offer."
Special Procedures for Any beneficial owner whose Old Notes or Old
Beneficial Owners............... Debentures are registered in the name of a
broker, dealer, commercial bank, trust
company or other nominee and who wishes to
tender should contact such registered holder
promptly and instruct such registered holder
to tender on such beneficial owner's behalf.
See "Instructions to Registered Holder and/or
Book-Entry Transfer Facility Participant from
Beneficial Owner" included with the Letter of
Transmittal.
12
<PAGE>
Guaranteed Delivery Procedures.. Holders of Old Notes or Old Debentures who
wish to tender their Old Notes or Old
Debentures and whose Old Notes or Old
Debentures are not immediately available or
who cannot deliver their Old Notes or Old
Debentures, the Letter of Transmittal (or, in
the case of a book-entry transfer, deliver an
Agent's Message in lieu thereof) or any other
documents required by the Letter of
Transmittal to the Exchange Agent (or comply
with the procedures for book-entry transfer)
prior to the Expiration Date must tender
their Old Notes or Old Debentures according
to the guaranteed delivery procedures set
forth in "Exchange Offer--Guaranteed Delivery
Procedures."
Withdrawal Rights............... Tenders of Old Notes and Old Debentures may
be withdrawn at any time on or prior to the
Expiration Date.
Acceptance of Old Securities
and Delivery of Exchange
Securities......................
The Company will accept for exchange any and
all Old Securities which are properly
tendered in the Exchange Offer on or prior to
the Expiration Date. The Exchange Securities
issued pursuant to the Exchange Offer will be
delivered promptly following the Expiration
Date. See "Exchange Offer-- Terms of the
Exchange Offer."
Use of Proceeds................. The Company will not receive any cash
proceeds from the issuance of the Exchange
Securities offered hereby.
Exchange Agent.................. The Bank of New York is serving as Exchange
Agent in connection with the exchange offer
of Exchange Securities for Old Securities.
The Bank of New York is referred to herein as
the "Exchange Agent."
Certain Federal Income Tax See "Certain Federal Income Tax Consequences"
Consequences.................... for a discussion of certain federal income
tax consequences of the exchange of Old Notes
or Old Debentures for Exchange Notes or
Exchange Debentures, respectively.
THE EXCHANGE SECURITIES
General......................... The forms and terms of the Exchange Notes and
the Exchange Debentures are the same as the
forms and terms of the Old Notes and the Old
Debentures, respectively, except that (i) the
Exchange Notes and the Exchange Debentures
will each bear a different CUSIP number from
the Old Notes and the Old Debentures,
respectively, (ii) the Exchange Notes and the
Exchange Debentures will have been registered
under the Securities Act and, therefore, will
not bear legends restricting the transfer
thereof and (iii) holders of the Exchange
Notes and the Exchange Debentures will not be
entitled to certain rights of holders of Old
Notes and Old Debentures under the
Registration Rights Agreement. The Exchange
Notes and the Exchange Debentures will
evidence the same debt as the Old
13
<PAGE>
Notes and the Old Debentures (which they
respectively replace) and will be issued
under and be entitled to the benefits of the
Indenture. The Old Notes and the Exchange
Notes will constitute a single series of debt
securities under the Indenture. In the event
that the Exchange Offer is consummated, any
Old Notes that remain outstanding after
consummation of the Exchange Offer and the
Exchange Notes issued in the Exchange Offer
will vote together as a single class for
purposes of determining whether holders of
the requisite percentage in outstanding
principal amount of Notes have taken certain
actions or exercised certain rights under the
Indenture. Similarly, the Old Debentures and
the Exchange Debentures will constitute a
single series of debt securities under the
Indenture. In the event that the Exchange
Offer is consummated, any Old Debentures
outstanding after consummation of the
Exchange Offer and the Exchange Debentures
issued in the Exchange Offer will vote
together as a single class for purposes of
determining whether holders of the requisite
percentage in outstanding principal amount of
Debentures have taken certain actions or
exercised certain rights under the Indenture.
See "Description of Exchange Notes and
Exchange Debentures."
Issuer.......................... IMC Global Inc.
Maturity Dates.................. The Exchange Notes will mature on August 1,
2003 and the Exchange Debentures will mature
on August 1, 2018.
Interest Rates.................. Each Exchange Note will bear interest at the
rate of 6 1/2% per annum and each Exchange
Debenture will bear interest at the rate of 7
3/8% per annum, in each case from the last
Interest Payment Date to which interest was
paid on the Old Notes or Old Debentures (as
the case may be) surrendered in exchange
therefor or, if no interest has been paid on
such Old Notes or Old Debentures, from August
11, 1998, payable semiannually on February 1
and August 1 in each year, commencing
February 1, 1999. Holders of the Old Notes or
the Old Debentures whose Old Notes or Old
Debentures are accepted for exchange will not
receive accrued interest on such Old Notes or
Old Debentures for any period from and after
the last Interest Payment Date to which
interest has been paid or duly provided for
on such Old Notes or Old Debentures prior to
the original issue date of the Exchange Notes
or Exchange Debentures or, if no such
interest has been paid or duly provided for,
will not receive any accrued interest on such
Old Notes or Old Debentures, and will be
deemed to have waived the right to receive
any interest on such Old Notes or Old
Debentures accrued from and after such
Interest Payment Date or, if no such interest
has been paid or duly provided for, from and
after August 11, 1998.
Ranking......................... The Exchange Notes and the Exchange
Debentures will be unsecured, senior debt of
the Company and will rank on a
14
<PAGE>
parity with all other unsecured and
unsubordinated indebtedness of the Company.
However, because the Company is a holding
company which conducts substantially all of
its operations through subsidiaries, the
right of the Company, and hence the right of
creditors of the Company (including the
holders of the Exchange Notes and the
Exchange Debentures), to participate in any
distribution of the assets of any subsidiary
upon its liquidation or reorganization or
otherwise is necessarily subject to the prior
claims of creditors of the subsidiary, except
to the extent that claims of the Company
itself as a creditor of the subsidiary may be
recognized.
Optional Redemption............. Each of the Exchange Notes and the Exchange
Debentures is redeemable at the option of the
Company, in whole at any time or in part from
time to time, at a redemption price equal to
the greater of (i) 100% of their principal
amount and (ii) the sum of the present values
of the principal amount and the remaining
scheduled payments of interest thereon, in
each case discounted from their respective
scheduled payment dates to the redemption
date on a semiannual basis at the Treasury
Rate (as defined) plus 15 basis points in the
case of the Exchange Notes and 25 basis
points in the case of the Exchange
Debentures, plus in either case accrued
interest thereon to the redemption date. The
Exchange Notes and the Exchange Debentures
will not be subject to any sinking fund. See
"Description of Exchange Notes and Exchange
Debentures--Optional Redemption."
Certain Covenants............... The Indenture contains certain covenants that
limit, among other things, the ability of the
Company and its Restricted Subsidiaries (as
defined) to create liens on certain assets or
enter into sale and leaseback transactions
with respect to certain assets. See
"Description of Exchange Notes and Exchange
Debentures--Certain Covenants." In addition,
the Indenture limits the ability of the
Company to consolidate or merge with or into,
or sell, lease, convey or otherwise dispose
of all or substantially all of its assets or
assign any of its obligations under the Notes
and Debentures or the Indenture to any other
person. See "Description of Exchange Notes
and Exchange Debentures--Successor Company."
For additional information regarding the Exchange Securities, see
"Description of Exchange Notes and Exchange Debentures."
USE OF PROCEEDS
There will be no cash proceeds to the Company from the issuance of the
Exchange Securities offered hereby. The proceeds of the Initial Offering were
used to repay short-term debt, including commercial paper, of IMC and for
general corporate purposes. See "Use or Proceeds."
RISK FACTORS
See "Risk Factors" for a discussion of certain factors that should be
considered before tendering Old Notes or Old Debentures for Exchange Notes or
Exchange Debentures.
15
<PAGE>
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
The following selected historical consolidated financial information for IMC
with respect to each year in the five-year period ended December 31, 1997 is
derived from and should be read in conjunction with the consolidated financial
statements of IMC. The consolidated financial statements of IMC for each of the
years in the three-year period ended December 31, 1997 are included in
documents incorporated by reference in this Prospectus. Such consolidated
financial statements have been audited by Ernst & Young LLP, independent
auditors. The following selected consolidated financial information as of and
for each of the six-month periods ended June 30, 1998 and 1997 is derived from
and should be read in conjunction with the unaudited interim condensed
consolidated financial statements of IMC which are included in documents
incorporated by reference in this Prospectus. Such unaudited interim condensed
consolidated financial statements reflect all adjustments (consisting only of
normally recurring accruals) which the management of IMC considers necessary to
present fairly the financial information for such periods. The results of
operations for any interim period are not necessarily indicative of results for
a full year. See "Information Incorporated by Reference."
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30, YEARS ENDED DECEMBER 31,
-------------------- ------------------------------------------------
1998 (1)(2) 1997 1997 (2) 1996 1995 1994 1993 (3)
----------- -------- -------- -------- -------- -------- --------
(DOLLARS IN MILLIONS EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS
DATA:
Net sales............... $1,898.6 $1,713.0 $2,988.6 $2,941.0 $2,940.4 $2,475.7 $1,640.5
Gross margins........... 467.1 430.0 738.6 745.0 778.7 559.9 252.7
Main Pass writedown (4). -- -- 183.7 -- -- -- --
Sterlington litigation
settlement, net (5).... -- -- -- -- -- -- 169.1
Operating earnings
(loss)................. 300.2 297.4 303.0 461.4 566.6 399.7 (98.1)
Interest expense........ 83.7 25.2 53.5 56.7 69.8 77.5 76.6
Other (income) expense,
net.................... (8.9) -- (6.2) (5.9) (15.2) (6.6) 21.1
-------- -------- -------- -------- -------- -------- --------
Earnings (loss) before
minority interest...... 225.4 272.2 255.7 410.6 512.0 328.8 (195.8)
Minority interest....... 17.2 71.5 124.4 185.7 163.6 106.8 5.3
-------- -------- -------- -------- -------- -------- --------
Earnings (loss) before
taxes.................. 208.2 200.7 131.3 224.9 348.4 222.0 (201.1)
Provision (credit) for
income taxes........... 73.2 73.3 43.5 89.7 129.4 97.8 (75.2)
-------- -------- -------- -------- -------- -------- --------
Earnings (loss) before
extraordinary item and
cumulative effect of
accounting change...... 135.0 127.4 87.8 135.2 219.0 124.2 (125.9)
Extraordinary charge--
debt retirement........ (2.7) (3.3) (24.9) (8.1) (3.5) (4.4) (25.2)
Cumulative effect on
prior years of change
in accounting for
postemployment benefits
(net of taxes)......... -- -- -- -- -- (5.9) --
-------- -------- -------- -------- -------- -------- --------
Net earnings (loss)..... $ 132.3 $ 124.1 $ 62.9 $ 127.1 $ 215.5 $ 113.9 $ (151.1)
======== ======== ======== ======== ======== ======== ========
DILUTED EARNINGS (LOSS)
PER SHARE:
Earnings (loss) before
extraordinary item and
cumulative effect of
accounting change...... $ 1.18 $ 1.33 $ 0.93 $ 1.39 $ 2.34 $ 1.45 $ (1.50)
Extraordinary charge--
debt retirement........ (0.02) (0.03) (0.26) (0.08) (0.04) (0.05) (0.31)
Cumulative effect on
prior years of change
in
accounting............. -- -- -- -- -- (0.07) --
-------- -------- -------- -------- -------- -------- --------
Net earnings (loss)..... $ 1.16 $ 1.30 $ 0.67 $ 1.31 $ 2.30 $ 1.33 $ (1.81)
======== ======== ======== ======== ======== ======== ========
Diluted weighted average
number of shares
outstanding............ 114.8 95.6 94.7 97.0 95.5 88.8 81.2
BALANCE SHEET DATA (AT
END OF PERIOD):
Working capital......... $ (536.0) $ 592.6 $ 389.1 $ 582.6 $ 507.6 $ 355.2 $ 427.7
Total assets............ 6,741.1 3,611.6 4,673.9 3,485.2 3,521.8 3,275.1 3,280.9
Long-term debt, less
current maturities..... 1,639.1 694.8 1,235.2 656.8 741.7 699.1 950.0
Total stockholders'
equity................. 2,037.3 1,339.9 1,935.7 1,326.2 1,090.4 883.3 653.1
OTHER FINANCIAL DATA:
Capital expenditures.... $ 174.0 $ 105.0 $ 244.0 $ 209.0 $ 146.0 $ 97.7 $ 74.1
Depreciation, depletion
and amortization....... 124.6 100.5 183.2 171.0 166.4 162.7 104.9
</TABLE>
- --------
(1) Operating results reflect the Harris Acquisition which occurred in April
1998. Also, includes a $14.0 million restructuring charge, $9.1 million
after tax benefits or $0.08 per share, recorded in conjunction with the
divestiture of the IMC Vigoro business unit.
(2) Operating results reflect the FTX Merger which occurred in December 1997.
(3) Operating results reflect the consolidation of IMC-Agrico which was formed
in July 1993.
(4) Represents an adjustment to reduce the historical carrying value of IMC's
interest in Main Pass to estimated fair value.
(5) Represents a charge related to the settlement of litigation resulting from
a May 1991 explosion at a nitroparafins plant in Sterlington, Louisiana.
16
<PAGE>
RISK FACTORS
Prospective investors should carefully consider the following factors in
addition to the other information set forth in the Prospectus before tendering
Old Notes or Old Debentures in exchange for Exchange Notes or Exchange
Debentures.
ABSENCE OF A PUBLIC MARKET COULD ADVERSELY AFFECT THE VALUE OF EXCHANGE
SECURITIES
The Old Notes and the Old Debentures were issued to, and the Company
believes are currently owned by, a relatively small number of beneficial
owners. Prior to the Exchange Offer, there has not been any public market for
the Old Notes or the Old Debentures. The Old Notes and the Old Debentures have
not been registered under the Securities Act and will be subject to
restrictions on transferability to the extent that they are not exchanged for
Exchange Notes and Exchange Debentures, respectively, by holders who are
entitled to participate in this Exchange Offer. After consummation of the
Exchange Offer, the market for each of the Old Notes and the Old Debentures
not tendered or exchanged (or tendered but not accepted for exchange) in the
Exchange Offer will be even more limited than their existing market. The
Exchange Notes and the Exchange Debentures will each constitute a new issue of
securities with no established trading market. The Company does not intend to
list the Exchange Notes or the Exchange Debentures on any national securities
exchange or seek the admission thereof to trading in the National Association
of Securities Dealers Automated Quotation System. The Initial Purchasers have
advised the Company that they currently intend to make a market in each of the
Exchange Notes and the Exchange Debentures, but they are not obligated to do
so and may discontinue such market making at any time. In addition, such
market making activity will be subject to the limits imposed by the Securities
Act and the Exchange Act and may be limited during the Exchange Offer and the
pendency of any Shelf Registration Statement. Accordingly, no assurance can be
given that an active public or other market will develop for the Exchange
Notes or the Exchange Debentures or as to the liquidity of the trading market
for each of the Exchange Notes and the Exchange Debentures. If a trading
market does not develop or is not maintained, holders of the Exchange Notes or
the Exchange Debentures, as applicable, may experience difficulty in reselling
the Exchange Notes or the Exchange Debentures, as applicable, or may be unable
to sell them at all. If a market for the Exchange Notes or the Exchange
Debentures develops, any such market may be discontinued at any time.
If a public trading market develops for the Exchange Notes or the Exchange
Debentures, future trading prices of such securities will depend on many
factors including, among other things, prevailing interest rates, the
Company's results of operations and market for similar securities. Depending
on prevailing interest rates, the market for similar securities and other
factors, including the financial condition of the Company, the Exchange Notes
and the Exchange Debentures may each trade at a discount from their respective
principal amount.
FAILURE TO FOLLOW EXCHANGE OFFER PROCEDURES COULD ADVERSELY AFFECT HOLDERS
Issuance of the Exchange Notes and the Exchange Debentures in exchange for
the Old Notes and the Old Debentures, respectively, pursuant to the Exchange
Offer will be made only after a timely receipt by the Company of such Old
Notes or Old Debentures, a properly completed and duly executed Letter of
Transmittal (or, in the case of a book-entry transfer, an Agent's Message in
lieu thereof) and all other required documents. Therefore, holders of the Old
Notes or the Old Debentures desiring to tender such Old Notes or Old
Debentures in exchange for Exchange Notes or Exchange Debentures,
respectively, should allow sufficient time to ensure timely delivery. The
Company is under no duty to give notification of defects or irregularities
with respect to the tenders of Old Notes or Old Debentures for exchange. Old
Notes and Old Debentures that are not tendered or are tendered but not
accepted will, following the consummation of the Exchange Offer, continue to
be subject to certain restrictions on transfer, and holders thereof will not
have any further registration rights under the Registration Rights Agreement.
In addition, any holder of Old Notes or Old Debentures who tenders in the
Exchange Offer for the purpose of participating in a distribution of the
Exchange Notes or the Exchange Debentures may be deemed to have received
restricted securities, and if so, will be required to comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction.
17
<PAGE>
Each Participating Broker-Dealer that receives Exchange Notes or Exchange
Debentures for its own account pursuant to the Exchange Offer must acknowledge
that it acquired the Old Notes or the Old Debentures for its own account as a
result of market-making or other trading activities and must agree that it
will deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes or Exchange Debentures. See
"Exchange Offer--Resale of the Exchange Securities" and "Plan of
Distribution." To the extent that Old Notes or Old Debentures are tendered and
accepted in the Exchange Offer, the trading market for untendered and tendered
but unaccepted Old Notes or Old Debentures could be adversely affected. See
"Exchange Offer."
USE OF PROCEEDS
The Exchange Offer is intended to satisfy certain of the Company's
obligations under the Purchase Agreement and the Registration Rights
Agreement. The Company will not receive any cash proceeds from the issuance of
the Exchange Notes or the Exchange Debentures offered hereby. In consideration
for issuing the Exchange Notes and the Exchange Debentures contemplated in
this Prospectus, the Company will receive Old Notes and Old Debentures, each
in like principal amount, the forms and terms of which are the same as the
forms and terms of the Exchange Notes (which replace the Old Notes) and the
Exchange Debentures (which replace the Old Debentures), except as otherwise
described herein. The Old Notes and the Old Debentures surrendered in exchange
for Exchange Notes and the Exchange Debentures, respectively, will be retired
and cancelled and cannot be reissued. Accordingly, the issuance of the
Exchange Notes and the Exchange Debentures will not result in any increase or
decrease in the indebtedness of the Company. As such, no effect has been given
to the Exchange Offer in the capitalization table.
The net proceeds to the Company from the sale of the Old Securities in the
Initial Offering (after deducting discounts, fees and expenses) were utilized
by the Company to repay short-term debt, including commercial paper, and for
general corporate purposes.
CAPITALIZATION
The following table sets forth, at June 30, 1998, (i) the unaudited
consolidated historical capitalization of IMC and (ii) the unaudited combined
pro forma capitalization of IMC giving effect to the sale of the Old Notes and
the Old Debentures and the application of the proceeds therefrom as described
under "Use of Proceeds." The pro forma capitalization is presented for
informational purposes only and is not necessarily indicative of the future
capitalization of IMC. The table should be read in conjunction with the
historical and pro forma financial statements and notes thereto of IMC,
including IMC's Current Report on Form 8-K filed on April 15, 1998, as amended
on June 15, 1998 and September 16, 1998. See "Information Incorporated by
Reference."
<TABLE>
<CAPTION>
AT JUNE 30, 1998
--------------------
HISTORICAL PRO FORMA
---------- ---------
(DOLLARS IN
MILLIONS)
<S> <C> <C>
Short-term debt:
Commercial paper......................................... $ 482.1 $ 182.1
Notes and debentures..................................... 718.8 718.8
Other.................................................... 93.2 93.2
-------- --------
Total short-term debt.................................. 1,294.1 994.1
Long-term debt:
Commercial paper......................................... 612.1 612.1
Notes and debentures..................................... 634.1 934.1
Other.................................................... 392.9 392.9
-------- --------
Total long-term debt................................... 1,639.1 1,939.1
-------- --------
Total debt................................................. 2,933.2 2,933.2
Total stockholders' equity................................. 2,037.3 2,037.3
-------- --------
Total capitalization....................................... $4,970.5 $4,970.5
======== ========
</TABLE>
18
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of IMC
for the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS YEAR ENDED DECEMBER 31,
ENDED JUNE -------------------------
30, 1998 1997 1996 1995 1994 1993
---------- ---- ---- ---- ---- -----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges (a)... 3.69 5.78 8.24 8.34 5.24 (1.56)
Adjusted ratio of earnings to fixed
charges (b)............................. 3.86 9.21 9.98 8.34 5.24 0.65
</TABLE>
- --------
(a) Earnings consist of pre-tax earnings from continuing operations but before
fixed charges. Fixed charges consist of interest on indebtedness, interest
capitalized as part of fixed assets, amortization of debt expense and rent
expense which is deemed representative of an interest factor.
(b) The adjusted ratio of earnings to fixed charges for the six months ended
June 30, 1998 excludes a charge of $9.1 million relating to the sale of the
Company's IMC Vigoro business unit. The adjusted ratio of earnings to fixed
charges for the year ended December 31, 1997 excludes a charge of $183.7
million relating to the writedown of the historical carrying value of IMC's
interest in Main Pass. The adjusted ratio of earnings to fixed charges for
the year ended December 31, 1996 excludes a charge of $98.6 million
relating to the merger of The Vigoro Corporation into a wholly owned
subsidiary of IMC. The adjusted ratio of earnings to fixed charges for the
year ended December 31, 1993 excludes a charge of $169.1 million relating
to the settlement of litigation resulting from a May 1991 explosion at a
nitroparaffins plant in Sterlington, Louisiana.
19
<PAGE>
THE COMPANY
The Company is one of the world's leading producers of crop nutrients for the
international agricultural community and is one of the foremost distributors in
the United States of crop nutrients and related products through its retail and
wholesale distribution networks. The Company is also one of the world's leading
producers of salt, soda ash and other inorganic chemicals. The Company mines,
processes and distributes potash in the United States and Canada and is the
majority joint venture partner in IMC-Agrico, a leading producer, marketer and
distributor of phosphate crop nutrients and animal feed ingredients. The
Company also mines, processes and distributes salt products in the United
States, Canada and Europe and is a major producer of soda ash and other
inorganic chemicals in the United States, Europe and Australia. The Company has
structured its operations into five business units corresponding to its major
product lines as follows: IMC Crop Nutrients (phosphates and potash), IMC Salt
(salt), IMC-Agrico Feed Ingredients (animal feed), IMC Chemicals (soda ash and
other inorganic chemicals) and IMC AgriBusiness (wholesale and retail
distribution).
The Company believes that it is one of the most efficient North American
producers of concentrated phosphates, potash and animal feed ingredients. The
Company's retail distribution network, which extends principally to corn and
soybean farmers in the eastern Midwest and to cotton, peanut and vegetable
farmers in the southeastern United States, is one of the preeminent
distributors of crop nutrients and related products. In addition, the Company
believes it is one of the lowest cost producers of salt in North America. The
Company produces and markets water conditioning, agricultural, industrial,
consumer and road salt products. The Company also produces soda ash, boron
chemicals and other inorganic chemicals. As a result of the FTX Merger, the
Company participates in the exploration and production of oil and gas with
McMoRan Oil & Gas Co.
The three major nutrients required for plant growth are phosphorus, contained
in phosphate rock; potassium, contained in potash; and nitrogen. Phosphorus
plays a key role in the photosynthesis process. Potassium is an important
regulator of plants' physiological functions. Nitrogen is an essential element
for most organic compounds and plants. These elements are naturally present in
the soil but need to be replaced through the use of crop nutrients as crops
exhaust them. Currently, no viable crop nutrient substitutes exist to replace
the role of phosphate, potash and nitrogen in the development and maintenance
of high-yield crops.
The Company's business strategy focuses on maintaining and growing its
leading position as a crop nutrient producer and distributor through extensive
customer service, efficient distribution and transportation and supplying
products worldwide at competitive prices by taking advantage of economies of
scale and state-of-the-art technology to reduce costs. The Company intends to
continue to expand its product distribution and marketing throughout the world
through export associations and its international sales force. The Company
recently expanded its strategy to include salt production and distribution
which it considers complementary to its crop nutrient businesses.
In April 1998, the Company completed the Harris Acquisition for approximately
$1.4 billion. Under the terms of the Harris Acquisition, the Company purchased
all Harris equity for approximately $450 million in cash and assumed
approximately $950 million of debt. Harris, with annual sales of approximately
$800 million, is a leading producer of salt, soda ash, boron chemicals and
other inorganic chemicals, including potash crop nutrients.
In December 1997, the Company completed the FTX Merger, which held
approximately 52% of the interest in PLP. The Company was the surviving entity
and the transaction was accounted for as a purchase. Immediately prior to the
FTX Merger, the sulphur and Main Pass businesses of PLP and the Company were
transferred to FSC; the Company does not own any of the outstanding shares of
FSC. As a result of the FTX Merger, the Company's total interest in IMC-Agrico
increased from approximately 57% to approximately 79%.
RECENT DEVELOPMENTS
The Company is exploring strategic options for, including the possible
divestiture of, its IMC AgriBusiness retail and wholesale distribution unit. In
addition, the Company is exploring strategic options for, including the
possible divestiture of, certain chemical assets and businesses which were
acquired as part of the Harris Acquisition, which assets and businesses are not
deemed to be core to the Company's strategy.
In September 1998, the Company announced the consolidation of its phosphate
and potash business units into a new business unit, IMC Crop Nutrients. The
Company's phosphate business, formerly known as IMC-Agrico Crop Nutrients, is
now called IMC-Agrico Phosphates.
20
<PAGE>
DESCRIPTION OF EXCHANGE NOTES AND EXCHANGE DEBENTURES
The Exchange Notes and the Exchange Debentures will be issued as separate
series under an Indenture dated as of August 1, 1998 between the Company and
The Bank of New York, as Trustee. The Exchange Notes and the Exchange
Debentures will constitute "Senior Debt Securities" under the Indenture. The
forms and terms of the Exchange Notes and the Exchange Debentures are the same
as the forms and terms of the Old Notes and the Old Debentures, respectively,
except that (i) the Exchange Notes and the Exchange Debentures will each bear a
different CUSIP number from the Old Notes and the Old Debentures, respectively,
(ii) the Exchange Notes and the Exchange Debentures will have been registered
under the Securities Act and, therefore, will not bear legends restricting the
transfer thereof and (iii) holders of the Exchange Notes and the Exchange
Debentures will not be entitled to certain rights of holders of Old Notes and
Old Debentures under the Registration Rights Agreement. The following summary
of certain provisions of the Exchange Notes, the Exchange Debentures and the
Indenture do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all of the provisions of the Indenture
(including the definitions therein of certain terms), a copy of which has been
filed as an exhibit to the Exchange Offer Registration Statement. Certain
capitalized terms used herein are defined in the Indenture. Unless the context
otherwise indicates, references in this Description of Exchange Notes and
Exchange Debentures to the "Company" or "IMC" refer to IMC Global Inc., the
issuer of the Exchange Notes and the Exchange Debentures, and not to its
subsidiaries.
GENERAL
The Exchange Notes will mature on August 1, 2003 and the Exchange Debentures
will mature on August 1, 2018. Each Exchange Note will bear interest at the
rate of 6 1/2% per annum and each Exchange Debenture will bear interest at the
rate of 7 3/8% per annum, in each case from the last Interest Payment Date (as
defined) to which interest was paid on the Old Notes or Old Debentures (as the
case may be) surrendered in exchange therefor or, if no interest has been paid
or such Old Note or Old Debenture, from August 11, 1998, payable semiannually
on February 1 and August 1 in each year (each such date being referred to
herein as an "Interest Payment Date"), commencing February 1, 1999, to the
person in whose name such Exchange Note or Exchange Debenture, as the case may
be, is registered at the close of business on January 15 or July 15, as the
case may be, preceding such Interest Payment Dates. Interest on the Exchange
Notes and the Exchange Debentures will be computed on the basis of a 360-day
year of twelve 30-day months. If any Interest Payment Date, maturity date or
redemption date falls on a day that is not a Business Day, the required payment
shall be made on the next Business Day as if it were made on the date such
payment was due and no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, maturity date or redemption
date, as the case may be, to such next Business Day. "Business Day" means any
day, other than a Saturday or Sunday, on which banking institutions in New
York, New York are open for business. Holders of the Old Notes or the Old
Debentures whose Old Notes or Old Debentures are accepted for exchange will not
receive accrued interest on such Old Notes or Old Debentures for any period
from and after the last Interest Payment Date to which interest has been paid
or duly provided for on such Old Notes or Old Debentures prior to the original
issue date of the Exchange Notes or Exchange Debentures or, if no such interest
has been paid or duly provided for, will not receive any accrued interest on
such Old Notes or Old Debentures, and will be deemed to have waived the right
to receive any interest on such Old Notes or Old Debentures accrued from and
after such Interest Payment Date or, if no such interest has been paid or duly
provided for, from and after August 11, 1998.
The Old Notes and the Old Debentures are, and the Exchange Notes and the
Exchange Debentures will be, unsecured, senior debt of the Company and rank,
and will rank, on a parity with all other unsecured and unsubordinated
indebtedness of the Company. However, because the Company is a holding company
which conducts substantially all of its operations through subsidiaries, the
right of the Company, and hence the right of creditors of the Company
(including the holders of the Notes and the Debentures), to participate in any
distribution of the assets of any subsidiary upon its liquidation or
reorganization or otherwise is necessarily subject to the prior claims of
creditors of the subsidiary, except to the extent that claims of the Company
itself as a creditor of the subsidiary may be recognized.
21
<PAGE>
The Indenture does not limit the amount of debt securities which can be
issued thereunder and provides that debt securities of any series may be issued
thereunder up to the aggregate principal amount which may be authorized from
time to time by the Company. The Indenture does not limit the amount of other
Indebtedness or securities, other than certain secured Indebtedness as
described below, which may be issued by the Company or its Subsidiaries.
The Old Notes and the Exchange Notes will constitute a single series of debt
securities under the Indenture. In the event that the Exchange Offer is
consummated, any Old Notes that remain outstanding after consummation
of the Exchange Offer and the Exchange Notes issued in the Exchange Offer will
vote together as a single class for purposes of determining whether holders of
the requisite percentage in outstanding principal amount of Notes have taken
certain actions or exercised certain rights under the Indenture. Accordingly,
all references herein to specified percentages in aggregate principal amount of
the outstanding Notes shall be deemed to mean, at any time after the Exchange
Offer is consummated, such percentages in aggregate principal amount of the Old
Notes and the Exchange Notes then outstanding. Similarly, the Old Debentures
and the Exchange Debentures will constitute a single series of debt securities
under the Indenture. In the event that the Exchange Offer is consummated, any
Old Debentures outstanding after consummation of the Exchange Offer and the
Exchange Debentures issued in the Exchange Offer will vote together as a single
class for purposes of determining whether holders of the requisite percentage
in outstanding principal amount of Debentures have taken certain actions or
exercised certain rights under the Indenture. Accordingly, all references to
specified percentages in aggregate principal amount of the outstanding
Debentures shall be deemed to mean, at any time after the Exchange Offer is
consummated, such percentages in aggregate principal amount of the Old
Debentures and the Exchange Debentures then outstanding.
The Company currently guarantees the payment of $75 million principal amount
of industrial development bonds due 2015 issued by the Florida Polk County
Industrial Development Authority (the "Polk County Bonds"). As a result of the
FTX Merger, the Company is not in technical compliance with one covenant in
such guaranty. The Company has notified The Bank of New York, trustee for the
holders of the Polk County Bonds, regarding this issue. The holders of the Polk
County Bonds have not sought to accelerate the Polk County Bonds or requested
that any other action be taken. Because solicitation of a unanimous waiver is
impractical, the Company currently intends to take no action. The Company does
not believe that any acceleration, redemption or refinancing of the Polk County
Bonds would have a material adverse effect on the Company and its subsidiaries
taken as a whole because the Company believes it would be able to repay the
Polk County Bonds from available sources of liquidity.
Notes and Debentures will be issued only in fully registered form without
coupons in minimum denominations of $1,000 and any integral multiple thereof.
OPTIONAL REDEMPTION
Each of the Notes and the Debentures will be redeemable at the option of the
Company, in whole at any time or in part from time to time, at a redemption
price equal to the greater of (i) 100% of their principal amount and (ii) the
sum, as determined by the Independent Investment Banker, of the present values
of the principal amount and the remaining scheduled payments of interest on the
Notes or Debentures (as the case may be) to be redeemed, in each case
discounted from their respective scheduled payment dates to the redemption date
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 15 basis points in the case of the Notes and
25 basis points in the case of the Debentures, plus in either case accrued but
unpaid interest thereon to the redemption date. The Notes and the Debentures
will not be subject to any sinking fund.
Notice of any redemption must be given at least 30 days but not more than 60
days before the redemption date to each registered holder of Notes or
Debentures to be redeemed. If money sufficient to pay the redemption price of
and accrued interest on all of the Notes or the Debentures, as the case may be
(or portion thereof), to be redeemed on the redemption date is deposited with
the Trustee or a Paying Agent on or before the redemption date and certain
other conditions are satisfied, then on and after such date, interest will
cease to accrue on such Notes or Debentures, as the case may be (or such
portion thereof), called for redemption.
22
<PAGE>
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable
to the remaining term of the Notes or the Debentures (as the case may be) to be
redeemed that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of such Notes or
Debentures (as the case may be) to be redeemed.
"Comparable Treasury Price" means, with respect to any redemption date, the
average of the Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or if the Trustee obtains fewer than four such Reference Treasury
Dealer Quotations, the average of all such Reference Treasury Dealer
Quotations.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means each of Merrill Lynch Government Securities
Inc., J.P. Morgan Securities Inc., Chase Securities Inc. and Salomon Brothers
Inc, their affiliates, their respective successors and any other primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer")
selected by the Company in addition to, or in substitution for, any of such
firms; provided, however, that if any of the foregoing shall cease to be a
Primary Treasury Dealer, the Company will substitute another Primary Treasury
Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, calculated on the third Business Day preceding such redemption
date using a price for the Comparable Treasury Issue (expressed as a percentage
of its principal amount) equal to the Comparable Treasury Price for such
redemption date.
BOOK ENTRY SYSTEM
The Company has established a depositary arrangement with the Depositary with
respect to the Notes and the Debentures, the terms of which are summarized
below.
Upon issuance, all Notes and Debentures will be represented by Global
Securities. The Global Securities representing the Notes and the Debentures
will be deposited with, or on behalf of, the Depositary and will be registered
in the name of the Depositary or a nominee of the Depositary. No Global
Securities may be transferred except as a whole by a nominee of the Depositary
to the Depositary or to another nominee of the Depositary, or by the Depositary
or such nominee to a successor of the Depositary or a nominee of such
successor.
So long as the Depositary or its nominee is the registered owner of a Global
Security, the Depositary or its nominee, as the case may be, will be the sole
holder of the Notes or Debentures represented thereby for all purposes under
the Indenture. Except as otherwise provided in this section, the Beneficial
Owners (as hereinafter defined) of the Global Securities representing the Notes
and the Debentures will not be entitled to receive physical delivery of
certificated Notes or Debentures and will not be considered the holders thereof
for any purpose under the Indenture, and no Global Security representing the
Notes or the Debentures shall be exchangeable or transferable. Accordingly,
each Beneficial Owner must rely on the procedures of the Depositary and, if
such Beneficial Owner is not a Participant (as defined), then such Beneficial
Owner must rely on the procedures of the Participant through which such
Beneficial Owner owns its interest in order to exercise any rights of a holder
under such Global Security or the Indenture. The laws of some jurisdictions
require that certain purchasers of securities take physical delivery of such
securities in certificated form. Such limits and such laws may impair the
ability to transfer beneficial interests in a Global Security representing the
Notes or the Debentures.
23
<PAGE>
The Global Securities representing the Notes and the Debentures will be
exchangeable for certificated Notes and Debentures, respectively, of like tenor
and terms and of differing authorized denominations aggregating a like
principal amount, only if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for the Global Securities, (ii)
the Depositary ceases to be a clearing agency registered under the Exchange
Act, (iii) the Company in its sole discretion determines that the Global
Securities shall be exchangeable for certificated Notes or Debentures or (iv)
there shall have occurred and be continuing an Event of Default under the
Indenture with respect to the Notes or the Debentures. Upon any such exchange,
the certificated Notes or Debentures shall be registered in the names of the
Beneficial Owners of the Global Securities representing the Notes or the
Debentures, which names shall be provided by the Depositary's relevant
Participants (as identified by the Depositary) to the Trustee.
The following is based on information furnished by the Depositary:
The Depositary will act as securities depository for the Notes and the
Debentures. The Notes and the Debentures will be issued as fully registered
securities registered in the name of Cede & Co. (the Depositary's
partnership nominee). Fully registered Global Securities will be issued for
the Notes and the Debentures, in the aggregate principal amount of such
issue, and will be deposited with the Depositary.
The Depositary is a limited-purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of the New
York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act. The Depositary holds securities that its
participants ("Participants") deposit with the Depositary. The Depositary
also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes to Participants'
accounts, thereby eliminating the need for physical movement of securities
certificates. Direct Participants of the Depositary ("Direct Participants")
include securities brokers and dealers (including the Initial Purchasers),
banks, trust companies, clearing corporations and certain other
organizations. The Depositary is owned by a number of its Direct
Participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc.
Access to the Depositary's system is also available to others such as
securities brokers and dealers and banks and trust companies that clear
through or maintain a custodial relationship with a Direct Participant,
either directly or indirectly ("Indirect Participants"). The rules
applicable to the Depositary and its Participants are on file with the
Commission.
Purchases of Notes and Debentures under the Depositary's system must be
made by or through Direct Participants, which will receive a credit for
such Notes and Debentures on the Depositary's records. The ownership
interest of each actual purchaser of each Note or Debenture represented by
a Global Security ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners will not
receive written confirmation from the Depositary of their purchase, but
Beneficial Owners are expected to receive written confirmations providing
details of the transaction, as well as periodic statements of their
holdings, from the Direct or Indirect Participants through which such
Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Global Securities representing the Notes and the
Debentures are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial Owners of
the Global Securities representing the Notes and the Debentures will not
receive certificated Notes and Debentures representing their ownership
interests therein, except in the event that use of the book-entry system
for such Debentures is discontinued.
To facilitate subsequent transfers, all Global Securities representing
the Notes and the Debentures which are deposited with, or on behalf of, the
Depositary are registered in the name of the Depositary's nominee, Cede &
Co. The deposit of Global Securities with, or on behalf of, the Depositary
and their registration in the name of Cede & Co. effect no change in
beneficial ownership. The Depositary has no knowledge of the actual
Beneficial Owners of the Global Securities representing the Notes and the
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Debentures; the Depositary's records reflect only the identity of the
Direct Participants to whose accounts such Notes or Debentures are
credited, which may or may not be the Beneficial Owners. The Participants
will remain responsible for keeping account of their holdings on behalf of
their customers.
Conveyance of notices and other communications by the Depositary to
Direct Participants, by Direct Participants to Indirect Participants, and
by Direct and Indirect Participants to Beneficial Owners will be governed
by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Neither the Depositary nor Cede & Co. will consent or vote with respect
to the Global Securities representing the Notes and the Debentures. Under
its usual procedure, the Depositary mails an Omnibus Proxy to the Company
as soon as possible after the applicable record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Notes and the Debentures are credited on
the applicable record date (identified in a listing attached to the Omnibus
Proxy).
Principal, premium, if any, and/or interest, if any, payments on the
Global Securities representing the Notes and the Debentures will be made to
the Depositary. The Depositary's practice is to credit Direct Participants'
accounts on the applicable payment date in accordance with their respective
holdings shown on the Depositary's records unless the Depositary has reason
to believe that it will not receive payment on such date. Payments by
Participants to Beneficial Owners will be governed by standing instructions
and customary practices, as is the case with securities held for the
accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such Participant and not of the Depositary,
the Trustee or the Company, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of principal,
premium, if any, and/or interest, if any, to the Depositary is the
responsibility of the Company or the Trustee, disbursement of such payments
to Direct Participants shall be the responsibility of the Depositary, and
disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants.
The Depositary may discontinue providing its services as securities
depository with respect to the Notes and the Debentures at any time by
giving reasonable notice to the Company or the Trustee. Under such
circumstances, in the event that a successor securities depositary is not
obtained, certificated Notes and Debentures are required to be printed and
delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through the Depositary (or a successor securities depository). In
that event, certificated Notes and Debentures will be printed and
delivered.
The information in this section concerning the Depositary and the
Depositary's system has been obtained from sources that the Company believes to
be reliable, but the Company takes no responsibility for the accuracy thereof.
SAME-DAY SETTLEMENT AND PAYMENT
All payments of principal, premium, if any, and interest will be made by the
Company in immediately available funds. The Notes and the Debentures will trade
in the Depositary's Same-Day Funds Settlement System until maturity, and
secondary market trading activity in the Notes and the Debentures will
therefore be required by the Depositary to settle in immediately available
funds.
CERTAIN COVENANTS
Limitation on Liens. The Indenture provides that the Company will not, and
will not permit any of its Restricted Subsidiaries to, create, incur or
otherwise cause or suffer to exist or become effective any Liens of any kind
upon any Principal Property or any shares of stock or indebtedness of any
Restricted Subsidiary now owned or hereafter acquired, unless all payments due
under the Indenture and the Senior Debt Securities are secured on an equal and
ratable basis with the obligation so secured until such time as such obligation
is no longer secured by a Lien, except for Permitted Liens. See also "Exempted
Indebtedness" below.
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Limitations on Sale and Leaseback Transactions. The Indenture provides that
neither the Company nor any Restricted Subsidiary will enter into any sale and
leaseback transaction with respect to any Principal Property (whether such
Principal Property is now owned or hereafter acquired) (except for temporary
leases of a term, including renewals, not exceeding five years) unless either
(a) the Company or such Restricted Subsidiary would be entitled, pursuant to
the provisions of the Indenture, to incur Indebtedness secured by a Lien on
such property to be leased without equally and ratably securing the Senior Debt
Securities, or (b) the Company within 180 days after the effective date of such
transaction applies to the voluntary retirement of its Funded Debt an amount
equal to the value of such transaction, defined as the greater of the net
proceeds of the sale of the property leased in such transaction or the fair
value, as determined by the Board of Directors, of the leased property at the
time such transaction was entered into. The Indenture defines "Funded Debt" as
indebtedness (including the Senior Debt Securities) maturing by the terms
thereof more than one year after the original creation thereof. See also
"Exempted Indebtedness" below.
Exempted Indebtedness. Notwithstanding the foregoing limitations on Liens and
sale and leaseback transactions, the Company and its Restricted Subsidiaries
may issue, assume, suffer to exist or guarantee Indebtedness secured by a Lien
without securing the Senior Debt Securities, or may enter into sale and
leaseback transactions without retiring Funded Debt, or enter into a
combination of such transactions, if the sum of the principal amount of all
such Indebtedness and the aggregate value of all such sale and leaseback
transactions does not at any such time exceed 10% of the consolidated total
assets of the Company and its consolidated Subsidiaries as shown in the most
recent audited consolidated balance sheet contained in the latest annual report
to the stockholders of the Company.
EVENTS OF DEFAULT AND REMEDIES
An Event of Default with respect to any series of Senior Debt Securities is
defined as: (i) default in the payment of any installment of interest on or any
Additional Amounts payable in respect of any security of that series of Senior
Debt Securities when and as the same shall become due and payable, and
continuance of such default for a period of 30 days; (ii) default in the
payment of all or any part of the principal (which includes any premium payable
on any Senior Debt Security) of any security of that series of Senior Debt
Securities when and as the same shall become due and payable either at
maturity, upon any redemption, or otherwise; (iii) the failure by the Company
to perform or observe any of its other covenants, conditions or agreements
contained in the Indenture or in that series of Senior Debt Securities and
continuance of such failure for a period of 90 days after due notice by the
Trustee or by the holders of at least 25% in principal amount of such series of
Senior Debt Securities then outstanding; (iv) default in the payment of any
scheduled principal of or interest on any Indebtedness of the Company or any
wholly owned Subsidiary of the Company (other than that series of Senior Debt
Securities) aggregating more than $25 million in principal amount, when due
after giving effect to any applicable grace period, that results in such
Indebtedness becoming due and payable prior to the date on which it would
otherwise become due and payable, and such acceleration shall not have been
rescinded or annulled, or such Indebtedness shall not have been discharged; or
(v) certain events of bankruptcy, insolvency or reorganization involving the
Company as more fully described in the Indenture. The Indenture provides that
the Trustee shall notify the holders of the relevant series of Senior Debt
Securities of any continuing default known to the Trustee which has occurred
within 90 days after the occurrence thereof. The Indenture provides that
notwithstanding the foregoing, except in the case of default in the payment of
the principal of, interest on or any Additional Amounts payable in respect of
any series of Senior Debt Securities, the Trustee may withhold such notice if
the Trustee in good faith determines that the withholding of such notice is in
the interests of the holders of such series of Senior Debt Securities.
If an Event of Default of the type described in clause (v) shall happen and
be continuing, then the principal of, accrued and unpaid interest on and any
Additional Amounts payable in respect of the Senior Debt Securities will become
immediately due and payable. If one or more Events of Default of the type
described in clauses (i) through (iv) with respect to any series of Senior Debt
Securities at the time outstanding shall happen and be continuing, then either
the Trustee or the holders of not less than 25% of the principal amount of such
series of
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Senior Debt Securities then outstanding may declare the principal, accrued and
unpaid interest on and any Additional Amounts payable in respect of such series
of Senior Debt Securities due and payable immediately. This provision is
subject to the condition that if, after any declaration of acceleration and
before Stated Maturity of the principal with respect to such series of Senior
Debt Securities, all arrears of interest and any Additional Amounts and the
expenses of the Trustee, its agents or attorneys shall be paid by or for the
account of the Company, and all Defaults (other than the payment of principal
that has been declared due and payable) have been cured to the satisfaction of
the Trustee, then the Trustee shall, upon the written request of the holders of
a majority in principal amount of such series of Senior Debt Securities, waive
such Default and rescind or annul the declaration of acceleration; but no such
waiver, rescission or annulment shall extend to or affect any subsequent
Default or impair any right consequent thereon.
No holder of any series of Senior Debt Securities will have the right to
pursue a remedy under the Indenture or such series of Senior Debt Securities,
unless (1) such holder gives the Trustee notice of a continuing Default with
respect to such series of Senior Debt Securities, (2) the holders of at least a
majority in principal amount of such series of Senior Debt Securities make a
request to the Trustee to pursue the remedy, (3) such holder or holders offered
the Trustee security or indemnity satisfactory to the Trustee against any loss,
liability or expense and (4) the Trustee does not comply with the request
within 30 days after the receipt of the request and the offer of security or
indemnity. However, nothing contained in the Indenture shall affect or impair
the right of any holder of any series of Senior Debt Securities to institute
suit to enforce payment of the principal of, interest on and any Additional
Amounts payable in respect of such holder's Senior Debt Securities on or after
the due dates expressed in such Senior Debt Securities.
The Company must furnish to the Trustee a statement, detailing any Defaults
of which it is aware, within five days of the occurrence of any Default.
REPORTS
The Indenture requires the annual filing by the Company with the Trustee of a
certificate as to compliance with certain covenants contained in the Indenture.
The Indenture provides that the Company will file with the Trustee copies of
the annual reports and other information, documents and reports which the
Company is required to file with the Commission pursuant to the Exchange Act.
The Company shall also comply with the requirements of Section 314(a) of the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
SUCCESSOR COMPANY
The Indenture provides that the Company will not consolidate or merge with or
into, or sell, lease, convey or otherwise dispose of all or substantially all
of its assets or assign any of its obligations under Senior Debt Securities or
the Indenture to any Person unless (i) the entity formed by or surviving any
such consolidation or merger (if other than the Company), or to which such
sale, lease, conveyance or other disposition or assignment shall have been made
(the "Surviving Entity"), is a corporation organized and existing under the
laws of the United States, any state thereof, or the District of Columbia; (ii)
the Surviving Entity assumes by a supplemental indenture in a form satisfactory
to the Trustee all of the obligations of the Company under the Senior Debt
Securities and the Indenture; and (iii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing. With respect to the sale of assets, the phrase "all or
substantially all" as used in the Indenture varies according to the facts and
circumstances of the subject transaction, has no clearly established meaning
under New York law (which governs the Indenture) and is subject to judicial
interpretation. Accordingly, in certain circumstances there may be a degree of
uncertainty in ascertaining whether a particular transaction would involve a
disposition of "all or substantially all" of the assets of a person, and
therefore it may be unclear as to whether a disposition of assets comes within
the terms of this provision.
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DISCHARGE
The Indenture provides that it will cease to be of further effect (except
that certain obligations will survive) with respect to the Senior Debt
Securities when all outstanding Senior Debt Securities authenticated and issued
have been delivered (other than destroyed, lost or stolen Senior Debt
Securities that have been replaced or paid) to the Trustee for cancellation and
the Company has paid all sums payable under the Indenture.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of each affected series of Senior Debt Securities at the time
outstanding under the Indenture, to enter into supplemental indentures to amend
any of the provisions of the Indenture or any supplemental indenture with
respect to such series of Senior Debt Securities; provided that, unless
consented to by each affected holder of Senior Debt Securities, no such
supplemental indenture may (1) reduce the amount of such series of Senior Debt
Securities whose holders must consent to an amendment or a waiver; (2) reduce
the rate of or change the time for payment of interest or Additional Amounts,
including default interest on any such Senior Debt Security; (3) reduce the
principal of or change the Stated Maturity of any such Senior Debt Security or
alter the provisions with respect to redemption; (4) make any such Senior Debt
Security payable in money other than that stated in such Senior Debt Security;
(5) make any change in the types of amendment that need the approval of every
affected holder of such series of Senior Debt Securities; (6) with respect to
the Indenture, affect the ranking of such Senior Debt Securities; or (7) waive
a Default in the payment of principal of, any Additional Amounts payable in
respect of or interest on, or with respect to, any such Senior Debt Security.
The Trustee and the Company may enter into supplemental indentures which
amend the Indenture or a series of Senior Debt Securities without the consent
of any holder of Senior Debt Securities of such series in order to: (a) cure
any ambiguity, omission, defect or inconsistency; (b) comply with the Indenture
concerning the substitution of successor corporations pursuant to a merger or
consolidation; (c) comply with any requirements of the Commission in connection
with the qualification of the Indenture under the Trust Indenture Act; (d)
provide for uncertificated securities; (e) make any change that does not
materially adversely affect the legal rights of any holder of Senior Debt
Securities of such series under the Indenture as then in effect; (f) secure the
Senior Debt Securities and make intercreditor arrangements with respect to any
such Senior Debt Securities (unless prohibited by the Indenture); (g) provide
for a replacement Trustee; (h) add to the covenants and agreements of the
Company for the benefit of all the holders of all of the Senior Debt Securities
of such series and surrender any right or power reserved for the Company in the
Indenture; or (i) add to, change or eliminate any of the provisions of the
Indenture in respect of one or more series of Senior Debt Securities, provided
that any such addition, change or elimination (1) shall neither apply to any
Senior Debt Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor modify
the rights of the holder of any such Senior Debt Security with respect to such
provision or (2) shall become effective only when there is no Senior Debt
Security outstanding under the Indenture.
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that the Company may elect either (a) to terminate
(and be deemed to have satisfied) all its obligations with respect to a series
of Senior Debt Securities (except for the obligations to register the transfer
or exchange of such series of Senior Debt Securities, to replace mutilated,
destroyed, lost or stolen Senior Debt Securities, to maintain an office or
agency in respect of such series of Senior Debt Securities, to compensate and
indemnify the Trustee and to punctually pay or cause to be paid the principal
of, interest on and any Additional Amounts payable in respect of such series of
Senior Debt Securities when due) ("defeasance") or (b) to be released from its
obligations with respect to certain covenants, including those described above
under "Certain Covenants--Limitation on Liens" and "--Limitations on Sale and
Leaseback Transactions" above ("covenant defeasance"), upon the deposit with
the Trustee, in trust for such purpose, of money and/or U.S. Government
Obligations and/or Eligible Obligations (each as defined in the Indenture)
which through the
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payment of principal and interest in accordance with their terms will provide
money, in an amount sufficient (in the opinion of a nationally recognized firm
of independent public accountants) to pay the principal of, interest on and any
Additional Amounts payable in respect of the outstanding Senior Debt Securities
of such series, and any mandatory sinking fund or analogous payments thereon,
on the scheduled due dates therefor. Such a trust may be established only if,
among other things, the Company has delivered to the Trustee an opinion of
counsel (as specified in the Indenture) with regard to certain matters,
including an opinion to the effect that the holders of such series of Senior
Debt Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and discharge and will be subject to
Federal income on the same amounts and in the same manner and at the same times
as would have been the case if such deposit and defeasance or covenant
defeasance, as the case may be, had not occurred.
CONCERNING THE TRUSTEE
The Bank of New York is the Trustee under the Indenture and is an "eligible
trustee" under the Trust Indenture Act. The Company maintains normal commercial
banking relations with The Bank of New York, which is also the trustee under
certain other indentures of the Company.
CERTAIN DEFINITIONS
"Additional Amounts" shall mean any additional amounts which are required by
any Senior Debt Securities, under circumstances specified therein, to be paid
by the Company in respect of certain taxes imposed on certain holders of such
Senior Debt Securities, or as otherwise specified in the terms of such Senior
Debt Securities, and which are owing to such holders.
"Affiliate" shall mean, with respect to any Person, another Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such first Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise.
"Capital Stock"shall mean, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock or equity interests in a
partnership, joint venture, limited liability company or other equity that is
outstanding or issued on or after the Issue Date, including, without
limitation, all classes and series of such Person's common stock or ordinary
shares, preferred stock and preference stock.
"Capitalized Lease Obligation" shall mean an obligation that is required to
be classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined
in accordance with such principles; and the Stated Maturity thereof shall be
the date of the last payment of rent or any other amount due under such lease
prior to the first date upon which such lease may be terminated by the lessee
without payment of a penalty.
"Consolidated Net Worth" shall mean the excess of assets over liabilities of
the Company and its consolidated Subsidiaries, plus Minority Interests, as
determined from time to time in accordance with GAAP.
"Default" shall mean any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Indebtedness" shall mean, with respect to any Person, at any date, any of
the following, without duplication, (i) any liability, contingent or otherwise,
of such Person (A) for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), (B) evidenced
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by a note, bond, debenture or similar instrument or (C) for the payment of
money relating to a Capitalized Lease Obligation or other obligation (whether
issued or assumed) relating to the deferred purchase price of property; (ii)
all conditional sale obligations and all obligations under any title retention
agreement (even if the rights and remedies of the seller under such agreement
in the event of default are limited to repossession or sale of such property),
but excluding trade accounts payable arising in the ordinary course of
business; (iii) all obligations for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction other than
entered into in the ordinary course of business; (iv) all indebtedness of
others secured by (or for which the holder of such indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on any asset or
property (including, without limitation, leasehold interests and any other
tangible or intangible property) of such Person, whether or not such
indebtedness is assumed by such Person or is not otherwise such Person's legal
liability; provided, that if the obligations so secured have not been assumed
in full by such Person or are otherwise not such Person's legal liability in
full, the amount of such indebtedness for the purposes of this definition shall
be limited to the lesser of the amount of such indebtedness secured by such
Lien or the fair market value of the assets of the property securing such Lien;
(v) all indebtedness of others (including all interest and dividends on any
indebtedness or preferred stock of any other Person for the payment of which
is) guaranteed, directly or indirectly, by such Person or that is otherwise its
legal liability or which such Person has agreed to purchase or repurchase or in
respect of which such Person has agreed contingently to supply or advance
funds; and (vi) obligations in respect of Currency Agreements and Interest Swap
Obligations (as such capitalized terms are defined in the Indenture).
"Issue Date" shall mean the first date on which a Senior Debt Security is
authenticated by the Trustee pursuant to an Indenture.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance, lien,
charge or adverse claim affecting title or resulting in an encumbrance against
real or personal property or a security interest of any kind (including,
without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof or any filing or agreement to file a financing
statement as debtor under the Uniform Commercial Code or any similar statute
other than to reflect ownership by a third party or property leased to the
Company or any of its Subsidiaries under a lease that is not in the nature of a
conditional sale or title retention agreement).
"Minority Interest" is defined as any shares of stock of any class of a
Subsidiary that are not owned by the Company or a Subsidiary.
"Permitted Liens" shall mean, with respect to any Person: (i) Liens existing
on the Issue Date; (ii) Liens on property or assets of, or any shares of stock
of or secured debt of, any corporation existing at the time such corporation
becomes a Restricted Subsidiary of the Company or at the time such corporation
is merged into the Company or any of its Restricted Subsidiaries; (iii) Liens
in favor of the Company or any of its Restricted Subsidiaries; (iv) Liens in
favor of governmental bodies to secure progress or advance payments; (v) Liens
securing industrial revenue or pollution control bonds; (vi) Liens on Property
to secure Indebtedness incurred for the purpose of (a) financing all or any
part of the purchase price of such Property incurred prior to, at the time of,
or within 180 days after, the acquisition of such Property or (b) financing all
or any part of the cost of construction, improvement, development or expansion
of any such Property; (vii) statutory liens or landlords', carriers',
warehouseman's, mechanics', suppliers', materialmen's, repairmen's or other
like Liens arising in the ordinary course of business and with respect to
amounts not yet delinquent or being contested in good faith by appropriate
proceedings, if a reserve or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made therefor; (viii) Liens on
current assets of Restricted Subsidiaries securing Indebtedness of such
Restricted Subsidiaries; and (ix) any extensions, substitutions, replacements
or renewals in whole or in part of a Lien (an "existing Lien") enumerated in
clauses (i) through (viii) above; provided that the Lien may not extend beyond
(A) the Property or Indebtedness subject to the existing Lien and (B)
improvements and construction on such Property and the Indebtedness secured by
the Lien may not exceed the Indebtedness secured at the time by the existing
Lien.
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"Person" shall mean any individual, corporation, partnership, limited
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof, or any other entity.
"Principal Property" shall mean any manufacturing plant or warehouse owned or
leased by the Company or any Subsidiary, the gross book value of which exceeds
one percent of Consolidated Net Worth, other than manufacturing plants and
warehouses which the Board of Directors by resolution declares, together with
all other plants and warehouses previously so declared, are not of material
importance to the total business conducted by the Company and its Restricted
Subsidiaries as an entirety.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in
the most recent consolidated balance sheet of such Person and its Subsidiaries
under GAAP.
"Restricted Subsidiary" shall mean (i) IMC Global Operations Inc.,
International Minerals & Chemical (Canada) Global Limited ("IMC-Canada"), IMC-
Agrico, PLP, IMC Inorganic Chemicals Inc. and Penrice Holdings Pty., and any
intermediate holding company between either IMC Global Operations Inc., IMC-
Canada, IMC-Agrico, PLP, IMC Inorganic Chemicals Inc. or Penrice Holdings Pty.
and the Company and (ii) any other Subsidiary of the Company that is not an
Unrestricted Subsidiary.
"Stated Maturity," when used with respect to any security or any installment
of interest thereon, shall mean the date specified in such security as the
fixed date on which the principal of such security or such installment of
interest is due and payable.
"Subsidiary" of any Person shall mean (i) any Person of which more than 50%
of the total voting power of shares of Capital Stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more of the Restricted Subsidiaries of that
Person or a combination thereof, and (ii) any partnership, joint venture or
other Person in which such Person or one or more of the Restricted Subsidiaries
of that Person or a combination thereof has the power to control by contract or
otherwise the board of directors or equivalent governing body or otherwise
controls such entity.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that at the
time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors of the Company in the manner provided below and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate
any Subsidiary of the Company (including any newly-acquired or newly-formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any
Capital Stock of, or owns or holds any property of, the Company or any other
Subsidiary of the Company that is not a Subsidiary of the Subsidiary so
designated; provided, however, that the Subsidiary to be so designated has
total assets of $5,000 or less.
EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
The Old Securities were originally sold by the Company on August 11, 1998 to
the Initial Purchasers pursuant to the Purchase Agreement. The Initial
Purchasers subsequently resold the Old Securities to qualified institutional
buyers in reliance on Rule 144A. As a condition to the Purchase Agreement, the
Company entered into the Registration Rights Agreement with the Initial
Purchasers for the benefit of the holders of the Notes and the Debentures in
which the Company agreed for the benefit of the holders of the Notes and the
Debentures to use its reasonable best efforts (i) to file with the Commission
within 90 calendar days after the date on which the Company delivered the Old
Notes and the Old Debentures to the Initial Purchasers (the "Closing Date") a
registration statement (the "Registration Statement") with respect to notes and
debentures identical in all material respects to the Old Notes and the Old
Debentures, respectively, (except that the Exchange Notes and
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the Exchange Debentures will not contain terms with respect to transfer
restrictions and will not provide for any increase in the interest rate
thereon under the circumstances described below) and (ii) to cause the
Registration Statement to be declared effective under the Securities Act
within 150 calendar days after the Closing Date. Promptly after the
Registration Statement has been declared effective, the Company will offer to
holders of Old Notes and Old Debentures, as applicable, the opportunity to
exchange all their Old Notes and Old Debentures for Exchange Notes and
Exchange Debentures, respectively. The Company will keep the Exchange Offer
open for not less than 30 calendar days (or longer if required by applicable
law) after the date notice of the Exchange Offer is mailed to the holders of
the Old Notes and Old Debentures but will, in any event, use its reasonable
best efforts to cause the Exchange Offer to be consummated within 180 days of
the Closing Date. For each Old Note validly tendered to the Company pursuant
to the Exchange Offer, the holder of such Old Note will receive an Exchange
Note having a principal amount equal to the principal amount of the tendered
Old Note. For each Old Debenture validly tendered to the Company pursuant to
the Exchange Offer, the holder of such Old Debenture will receive an Exchange
Debenture having a principal amount equal to the principal amount of the
tendered Old Debenture. Interest on each Exchange Note and Exchange Debenture
will accrue from the last Interest Payment Date to which interest was paid on
the Old Note or Old Debenture (as the case may be) surrendered in exchange
therefor or, if no interest has been paid on such Old Note or Old Debenture,
from the date of the original issuance thereof. Holders of the Old Notes or
the Old Debentures whose Old Notes or Old Debentures are accepted for exchange
will not receive accrued interest on such Old Notes or Old Debentures for any
period from and after the last Interest Payment Date to which interest has
been paid or duly provided for on such Old Notes or Old Debentures prior to
the original issue date of the Exchange Notes or Exchange Debentures or, if no
such interest has been paid or duly provided for, will not receive any accrued
interest on such Old Notes or Old Debentures, and will be deemed to have
waived the right to receive any interest on such Old Notes or Old Debentures
accrued from and after such Interest Payment Date or, if no such interest has
been paid or duly provided for, from and after August 11, 1998.
Based on existing interpretations of the Securities Act by the Staff set
forth in several no-action letters to third parties, and subject to the
immediately following sentence, the Company believes that the Exchange Notes
and the Exchange Debentures to be issued pursuant to the Exchange Offer may be
offered for resale, resold and otherwise transferred by the holders thereof
(other than holders who are broker-dealers) without further compliance with
the registration and prospectus delivery provisions of the Securities Act.
However, any holder of Old Notes or Old Debentures who is an "affiliate" of
the Company or who intends to participate in the Exchange Offer for the
purpose of distributing the Exchange Notes or the Exchange Debentures, or any
broker-dealer who purchased the Old Notes or the Old Debentures from the
Company for resale pursuant to Rule 144A or any other available exemption
under the Securities Act, (i) will not be able to rely on the interpretations
of the Staff set forth in the above-mentioned no-action letters, (ii) will not
be entitled to tender its Old Notes or Old Debentures, as applicable, in the
Exchange Offer and (iii) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any sale or
transfer of the Old Notes or Old Debentures, as applicable, unless such sale
or transfer is made pursuant to an exemption from such requirements. The
Company does not intend to seek its own no-action letter, and there can be no
assurance that the Staff would make a similar determination with respect to
the Exchange Notes or the Exchange Debentures as it has in such no-action
letters to third parties.
Each holder of Old Notes or Old Debentures (other than certain specified
holders) who wishes to exchange the Old Notes or the Old Debentures, as
applicable, for Exchange Notes or Exchange Debentures, as applicable, in the
Exchange Offer will be required to represent that (i) it is not an "affiliate"
of the Company, (ii) the Exchange Notes or the Exchange Debentures, as
applicable, to be received by it are being acquired in the ordinary course of
its business, (iii) it has no arrangement with any person to participate in
the distribution (within the meaning of the Securities Act) of the Exchange
Notes or the Exchange Debentures, as applicable, and (iv) if such holder is
not a broker-dealer, such holder is not engaged in, and does not intend to
engage in, a distribution (within the meaning of the Securities Act). Each
Participating Broker-Dealer that receives Exchange Notes or Exchange
Debentures for its own account pursuant to the Exchange Offer must acknowledge
that it acquired the Old Notes or the Old Debentures for its own account as a
result of market-making or other trading
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activities and must agree that it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Notes or Exchange Debentures. The Letter of Transmittal states that
by so acknowledging and by delivering a prospectus, a Participating Broker-
Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. The Commission has taken the position in the
above-mentioned no-action letters that Participating Broker-Dealers who
acquired Old Notes or Old Debentures for their own accounts as a result of
market-making or other trading activities may fulfill their prospectus
delivery requirements with respect to the Exchange Notes or the Exchange
Debentures, as applicable, other than a resale of an unsold allotment from the
original sale thereof, with a prospectus meeting the requirements of the
Securities Act, which may be the prospectus prepared for an exchange offer so
long as it contains a plan of distribution with respect to the resale of such
Exchange Notes and Exchange Debentures. Under the Registration Rights
Agreement, the Company is required to allow Participating Broker-Dealers and
other persons, if any, subject to similar prospectus delivery requirements to
use this Prospectus, as it may be amended or supplemented from time to time,
in connection with the resale of such Exchange Notes or Exchange Debentures,
as applicable, for a period of 180 days from the issuance of the Exchange
Notes or the Exchange Debentures, as applicable. The Company has agreed that,
for a period of 180 days after the Expiration Date, it will make this
Prospectus available to any Participating Broker-Dealer for use in connection
with any such resale (provided that the Company has received prior written
notice from such Participating Broker-Dealer of its status as a Participating
Broker-Dealer). See "Plan of Distribution." Any Participating Broker-Dealer
who is an "affiliate" of the Company may not rely on the above-mentioned no-
action letters and must comply with the registration and delivery requirements
of the Securities Act in connection with any resale transaction.
If: (i) because of any change in law or in currently prevailing
interpretations of the Staff, the Company is not permitted to effect the
Exchange Offer, (ii) the Exchange Offer is not consummated within 180 days of
the Closing Date or (iii) upon the request of any Initial Purchaser, if such
Initial Purchaser is not permitted, in the reasonable opinion of counsel,
pursuant to applicable law or applicable interpretations of the Staff, to
participate in the Exchange Offer and thereby receive securities that are
freely tradeable without restriction under the Securities Act and applicable
blue sky or state securities laws, then in each case, the Company will (x)
promptly deliver to the holders written notice thereof and (y) at the
Company's sole expense (a) as promptly as practicable (but in no event more
than 90 days after so required or requested pursuant to the Registration
Rights Agreement), file a shelf registration statement covering resales of the
Old Notes and the Old Debentures (the "Shelf Registration Statement"), (b) use
its reasonable best efforts to cause the Shelf Registration Statement to be
declared effective under the Securities Act and (c) use its reasonable best
efforts to keep effective the Shelf Registration Statement until the earlier
of two years (or, if Rule 144(k) is amended to provide a shorter restrictive
period, such shorter period) after the Closing Date or such time as all of the
applicable Old Notes and Old Debentures have been sold thereunder. The Company
will, if a Shelf Registration Statement is filed, provide to each holder
copies of the prospectus that is a part of the Shelf Registration Statement,
notify each such holder when the Shelf Registration Statement for the Old
Notes and the Old Debentures has become effective and take certain other
actions as are required to permit unrestricted resales of the Old Notes and
the Old Debentures. A holder that sells Old Notes or Old Debentures pursuant
to the Shelf Registration Statement will be required to be named as a selling
security holder in the related prospectus, to provide information related
thereto and to deliver such prospectus to purchasers, will be subject to
certain of the civil liability provisions under the Securities Act in
connection with such sales and will be bound by the provisions of the
Registration Rights Agreement that are applicable to such a holder (including
certain indemnification rights and obligations). The Company shall have no
obligation to include in the Shelf Registration Statement holders who do not
deliver such information to the Company.
If the Company fails to comply with certain provisions of the Registration
Rights Agreement, in each case as described below, then a special interest
premium (the "Special Interest Premium") shall become payable in respect of
the Old Notes and the Old Debentures.
If: (i) the Registration Statement is not filed with the Commission on or
prior to the 90th day following the Closing Date, (ii) the Registration
Statement is not declared effective on or prior to the 150th day following the
Closing Date or (iii) the Exchange Offer is not consummated or the Shelf
Registration Statement is not declared
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effective on or prior to the 180th day following the Closing Date, the Special
Interest Premium shall accrue in respect of the Old Notes and the Old
Debentures from and including the next day following each of (a) such 90-day
period in the case of clause (i) above, (b) such 150-day period in the case of
clause (ii) above and (c) such 180-day period in the case of clause (iii)
above, in each case at a rate equal to 0.25% per annum. The aggregate amount
of the Special Interest Premium in respect of each of the Old Notes and the
Old Debentures payable pursuant to the above provisions will in no event
exceed 0.25% per annum and provided, further, that if the Registration
Statement is not declared effective on or prior to the 150th day following the
Closing Date and the Company shall request holders of Old Notes and Old
Debentures to provide the information called for by the Registration Rights
Agreement referred to herein for inclusion in the Shelf Registration
Statement, the Old Notes or Old Debentures, as the case may be, owned by
holders who do not deliver such information to the Company when required
pursuant to the Registration Rights Agreement will not be entitled to any such
increase in the interest rate for any day after the 180th day following the
Closing Date. Upon (1) the filing of the Registration Statement after the 90-
day period described in clause (i) above, (2) the effectiveness of the
Registration Statement after the 150-day period described in clause (ii) above
or (3) the consummation of the Exchange Offer or the effectiveness of a Shelf
Registration Statement, as the case may be, after the 180-day period described
in clause (iii) above, the interest rate on the Old Notes and the Old
Debentures from the date of such filing, effectiveness or consummation, as the
case may be, will be reduced to the original interest rate for the Old Notes
and the Old Debentures, respectively.
If a Shelf Registration Statement is declared effective pursuant to the
foregoing paragraphs, and if the Company fails to keep such Shelf Registration
Statement continuously (x) effective or (y) useable for resales for the period
required by the Registration Rights Agreement due to certain circumstances
relating to pending corporate developments, public filings with the Commission
and similar events, or because the prospectus contains an untrue statement of
a material fact or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading,
and such failure continues for more than 60 days (whether or not consecutive)
in any twelve-month period (the 61st day being referred to as the "Default
Day"), then from the Default Day until the earlier of (i) the date that the
Shelf Registration Statement is again deemed effective or is useable, (ii) the
date that is the second anniversary of the Closing Date (or, if Rule 144(k) is
amended to provide a shorter restrictive period, such shorter period) or (iii)
the date as of which all of the Old Notes and the Old Debentures are sold
pursuant to the Shelf Registration Statement, the Special Interest Premium in
respect of the Old Notes or the Old Debentures, as applicable, shall accrue at
a rate equal to 0.25% per annum.
If the Company fails to keep the Shelf Registration Statement continuously
effective or useable for resales pursuant to the preceding paragraph, it shall
give the holders notice to suspend the sale of the Old Notes and the Old
Debentures and shall extend the relevant period referred to above during which
the Company is required to keep effective the Shelf Registration Statement (or
the period during which Participating Broker-Dealers are entitled to use the
prospectus included in the Registration Statement in connection with the
resale of Exchange Notes or Exchange Debentures, as the case may be) by the
number of days during the period from and including the date of the giving of
such notice to and including the date when holders shall have received copies
of the supplemented or amended prospectus necessary to permit resales of the
Old Notes and the Old Debentures or to and including the date on which the
Company has given notice that the sale of the Old Notes and the Old Debentures
may be resumed, as the case may be.
The Registration Rights Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York. The summary herein of
certain provisions of the Registration Rights Agreement does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all the provisions of the Registration Rights Agreement, a copy of which has
been filed as an exhibit to the Exchange Offer Registration Statement. In
addition, the information set forth above concerning certain interpretations
and positions taken by the Staff is not intended to constitute legal advice,
and prospective investors should consult their own legal advisors with respect
to such matters.
Any Old Notes or Old Debentures not tendered and accepted in the Exchange
Offer will remain outstanding and will be entitled to all the same rights and
benefits and will be subject to the same limitations applicable
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<PAGE>
thereto under the Indenture (except for those rights which terminate upon
consummation of the Exchange Offer). Following consummation of the Exchange
Offer, the holders of Old Notes or Old Debentures will continue to be subject
to the existing restrictions upon transfer thereof and the Company will have
no further obligation to such holders to provide for registration under the
Securities Act of the Old Notes or the Old Debentures held by them. To the
extent that Old Notes or Old Debentures are tendered and accepted in the
Exchange Offer, the trading market for untendered and tendered but unaccepted
Old Notes and Old Debentures could be adversely affected.
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this Prospectus
and in the Letter of Transmittal, the Company will accept any and all Old
Notes and Old Debentures validly tendered in accordance with the procedures
described below on or prior to the Expiration Date and not withdrawn. The
Company will issue $1,000 principal amount of Exchange Notes in exchange for
each $1,000 principal amount of outstanding Old Notes accepted in the Exchange
Offer and $1,000 principal amount of Exchange Debentures in exchange for each
$1,000 principal amount of outstanding Old Debentures accepted in the Exchange
Offer. Holders may tender some or all of their Old Notes or Old Debentures
pursuant to the Exchange Offer. However, Old Notes and Old Debentures may each
be tendered only in integral multiples of $1,000.
The Exchange Offer is not conditioned upon any minimum principal amount of
Old Notes or Old Debentures being tendered. As of the date of this Prospectus,
$200,000,000 aggregate principal amount of Old Notes were outstanding and
$100,000,000 aggregate principal amount of Old Debentures were outstanding.
The Company has fixed the close of business on , 1998 as the record date for
the Exchange Offer for purposes of determining the holders to whom this
Prospectus and the Letter of Transmittal will be mailed initially.
Holders of Old Notes or Old Debentures do not have any appraisal or
dissenters' rights under the General Corporation Law of Delaware or the
Indenture in connection with the Exchange Offer. The Company intends to
conduct the Exchange Offer in accordance with the applicable requirements of
the Exchange Act and the rules and regulations of the Commission thereunder.
Old Notes and Old Debentures which are not tendered for exchange, which are
tendered but validly withdrawn or which are tendered but not accepted in
connection with the Exchange Offer will remain outstanding and be entitled to
the benefits of the Indenture, but not be entitled to any further registration
rights under the Registration Rights Agreement.
The Company shall be deemed to have accepted validly tendered Old Notes or
Old Debentures when, as and if the Company has given oral or written notice
thereof to the Exchange Agent. The Exchange Agent will act as agent for the
tendering holders for the purpose of receiving the Exchange Notes and the
Exchange Debentures from the Company.
If any tendered Old Notes or Old Debentures are not accepted for exchange
because of an invalid tender, the occurrence of certain other events set forth
herein or otherwise, the certificates for any such unaccepted Old Notes or Old
Debentures (if such securities were certificated) will be returned, without
expense, to the tendering holder thereof as promptly as practicable after the
Expiration Date.
Holders who tender Old Notes or Old Debentures in the Exchange Offer will
not be required to pay brokerage commissions or fees or, subject to the
instructions in the Letter of Transmittal, transfer taxes with respect to the
exchange of Old Notes or Old Debentures pursuant to the Exchange Offer. The
Company will pay all charges and expenses, other than transfer taxes in
certain circumstances, in connection with the Exchange Offer. See "--Fees and
Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" shall mean 5:00 p.m., New York City time, on ,
1998, unless extended by IMC in its sole discretion, in which case the term
"Expiration Date" shall mean the latest date and time to which the Exchange
Offer is extended.
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In order to extend the Exchange Offer, the Company will notify the Exchange
Agent of any extension by oral or written notice and will notify the holders
by issuing a press release regarding such extension, each prior to 9:00 a.m.,
New York City time, on the next business day after the previously scheduled
Expiration Date.
The Company reserves the right, in its sole discretion, subject to
applicable law and the terms of the Registration Rights Agreement, at any time
or from time to time, (i) to delay accepting any Old Notes or Old Debentures,
to extend the Exchange Offer or to terminate the Exchange Offer if any of the
conditions set forth below under "--Conditions" shall not have been satisfied,
by giving oral or written notice of such delay, extension or termination to
the Exchange Agent or (ii) to amend the terms of the Exchange Offer in any
manner. Any such delay in acceptance, extension, termination or amendment will
be followed as promptly as practicable by oral or written notice thereof to
the registered holders.
PROCEDURES FOR TENDERING
Only a holder of Old Notes or Old Debentures may tender such Old Notes or
Old Debentures in the Exchange Offer. For a holder to tender Old Notes or Old
Debentures validly pursuant to the Exchange Offer, a properly completed and
duly executed Letter of Transmittal (or facsimile thereof), with any required
signature guarantee, or, in the case of a book-entry transfer, an Agent's
Message in lieu of the Letter of Transmittal, and any other required documents
must be received by the Exchange Agent at the address set forth under "--
Exchange Agent" on or prior to the Expiration Date. In addition, on or prior
to the Expiration Date, either (A) certificates for tendered Old Notes or Old
Debentures must be received by the Exchange Agent at such address or (B) such
Old Notes or Old Debentures must be transferred pursuant to the procedures for
book-entry transfer described below (and a confirmation of such tender
received by the Exchange Agent, including an Agent's Message if the tendering
holder has not delivered a Letter of Transmittal). The term "Agent's Message"
means a message, transmitted by the book-entry transfer facility, The
Depository Trust Company (the "Book-Entry Transfer Facility"), to and received
by the Exchange Agent and forming a part of a book-entry confirmation, which
states that the Book-Entry Transfer Facility has received an express
acknowledgment from the tendering participant that such participant has
received and agrees to be bound by the Letter of Transmittal and that the
Company may enforce such Letter of Transmittal against such participant.
By executing the Letter of Transmittal (or, in the case of a book-entry
transfer, an Agent's Message in lieu thereof), each holder will make to the
Company the representations set forth above in the third paragraph under the
heading "--Purpose and Effect of the Exchange Offer."
The tender by a holder and the acceptance thereof by the Company will
constitute agreement between such holder and the Company in accordance with
the terms and subject to the conditions set forth herein and in the Letter of
Transmittal.
THE METHOD OF DELIVERY OF OLD NOTES OR OLD DEBENTURES AND THE LETTER OF
TRANSMITTAL, INCLUDING DELIVERY THROUGH DTC AND ANY ACCEPTANCE OF AN AGENT'S
MESSAGE TRANSMITTED THROUGH THE DTC AUTOMATED TENDER OFFER PROGRAM, AND ALL
OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND SOLE
RISK OF THE HOLDER. AS AN ALTERNATIVE TO DELIVERY BY MAIL, HOLDERS MAY WISH TO
CONSIDER OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT BEFORE THE
EXPIRATION DATE. NO LETTER OF TRANSMITTAL OR OLD NOTES OR OLD DEBENTURES
SHOULD BE SENT TO THE COMPANY. HOLDERS MAY REQUEST THEIR RESPECTIVE BROKERS,
DEALERS, COMMERCIAL BANKS, TRUST COMPANIES OR NOMINEES TO EFFECT THE ABOVE
TRANSACTIONS FOR SUCH HOLDERS.
Any beneficial owner whose Old Notes or Old Debentures are registered in the
name of a broker, dealer, commercial bank, trust company or other nominee and
who wishes to tender should contact the registered holder promptly and
instruct such registered holder to tender on such beneficial owner's behalf.
See "Instructions to Registered Holder and/or Book-Entry Transfer Facility
Participant from Beneficial Owner" included with the Letter of Transmittal.
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Signatures on a Letter of Transmittal or a notice of withdrawal, as the case
may be, must be guaranteed by an Eligible Institution (as defined) unless the
Old Notes or Old Debentures tendered pursuant thereto are tendered (i) by a
registered holder who has not completed the box entitled "Special Delivery
Instructions" on the Letter of Transmittal or (ii) for the account of an
Eligible Institution. In the event that signatures on a Letter of Transmittal
or a notice of withdrawal, as the case may be, are required to be guaranteed,
such guarantee must be by a member firm of the Medallion System (an "Eligible
Institution").
If the Letter of Transmittal is signed by a person other than the registered
holder of any Old Notes or Old Debentures listed therein, such Old Notes or
Old Debentures must be endorsed or accompanied by a properly completed bond
power, signed by such registered holder as such registered holder's name
appears on such Old Notes or Old Debentures with the signature thereon
guaranteed by an Eligible Institution.
If the Letter of Transmittal or any Old Notes, Old Debentures or bond powers
are signed by trustees, executors, administrators, guardians, attorneys-in-
fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing, and
evidence satisfactory to the Company of their authority to so act must be
submitted with the Letter of Transmittal.
The Company understands that the Exchange Agent will make a request promptly
after the date of this Prospectus to establish accounts with respect to the
Old Notes and the Old Debentures at the Book-Entry Transfer Facility for the
purpose of facilitating the Exchange Offer, and, subject to the establishment
thereof, any financial institution that is a participant in the Book-Entry
Transfer Facility's system may make book-entry delivery of Old Notes and Old
Debentures by causing such Book-Entry Transfer Facility to transfer such Old
Notes or Old Debentures, as applicable, into the Exchange Agent's account with
respect to the Old Notes or Old Debentures in accordance with the Book-Entry
Transfer Facility's procedures for such transfer. Although delivery of the Old
Notes or Old Debentures may be effected through book-entry transfer into the
Exchange Agent's account at the Book-Entry Transfer Facility, an appropriate
Letter of Transmittal properly completed and duly executed with any required
signature guarantee, or, in the case of a book-entry transfer, an Agent's
Message in lieu of the Letter of Transmittal, and all other required documents
must in each case be transmitted to and received or confirmed by the Exchange
Agent at its address set forth below on or prior to the Expiration Date, or,
if the guaranteed delivery procedures described below are complied with,
within the time period provided under such procedures. Delivery of documents
to the Book-Entry Transfer Facility does not constitute delivery to the
Exchange Agent.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance of tendered Old Notes or tendered Old Debentures and
withdrawal of tendered Old Notes or tendered Old Debentures will be determined
by the Company in its sole discretion, which determination will be final and
binding. The Company reserves the absolute right to reject any and all Old
Notes and Old Debentures not properly tendered or any Old Notes or Old
Debentures the Company's acceptance of which would, in the opinion of counsel
for the Company, be unlawful. The Company also reserves the right in its sole
discretion to waive any defects, irregularities or conditions of tender as to
particular Old Notes or Old Debentures. The Company's interpretation of the
terms and conditions of the Exchange Offer (including the instructions in the
Letter of Transmittal) will be final and binding on all parties. Unless
waived, any defects or irregularities in connection with tenders of Old Notes
or Old Debentures must be cured within such time as the Company shall
determine. Although the Company intends to notify holders of defects or
irregularities with respect to tenders of Old Notes and Old Debentures,
neither the Company, the Exchange Agent nor any other person shall incur any
liability for failure to give such notification. Tenders of Old Notes or Old
Debentures will not be deemed to have been made until such defects or
irregularities have been cured or waived. Any Old Notes or Old Debentures
received by the Exchange Agent that are not properly tendered and as to which
the defects or irregularities have not been cured or waived will be returned
by the Exchange Agent to the tendering holders, unless otherwise provided in
the Letter of Transmittal, as soon as practicable following the Expiration
Date.
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GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Old Notes or Old Debentures and (i) whose
Old Notes or Old Debentures are not immediately available, (ii) who cannot
deliver their Old Notes or Old Debentures, the Letter of Transmittal (or, in
the case of a book-entry transfer, delivering an Agent's Message in lieu
thereof) or any other required documents to the Exchange Agent or (iii) who
cannot complete the procedures for book-entry transfer (including delivery of
an Agent's Message), prior to the Expiration Date, may effect a tender if:
(a) the tender is made by or through an Eligible Institution;
(b) on or prior to the Expiration Date, the Exchange Agent receives from
such Eligible Institution (i) an Agent's Message with respect to guaranteed
delivery that is accepted by the Company or (ii) a properly completed and
duly executed Notice of Guaranteed Delivery (by facsimile transmission,
mail or hand delivery) setting forth the name and address of the holder,
the certificate number(s) of such Old Notes or Old Debentures (or, in the
case of book-entry transfer, the name and number of the account at the
Book-Entry Transfer Facility) and the principal amount of Old Notes or Old
Debentures tendered, stating that the tender is being made thereby and
guaranteeing that, within three New York Stock Exchange trading days after
the Expiration Date, the Letter of Transmittal (or facsimile thereof) (or,
in the case of a book-entry transfer, an Agent's Message in lieu thereof)
together with the certificate(s) representing the Old Notes or the Old
Debentures (or a confirmation of book-entry transfer of such Old Notes or
Old Debentures into the Exchange Agent's account at the Book-Entry Transfer
Facility), and any other documents required by the Letter of Transmittal
will be deposited by the Eligible Institution with the Exchange Agent; and
(c) such properly completed and executed Letter of Transmittal (of
facsimile thereof) (or, in the case of a book-entry transfer, an Agent's
Message in lieu thereof), as well as the certificate(s) representing all
tendered Old Notes or Old Debentures in proper form for transfer (or a
confirmation of book-entry transfer of such Old Notes or Old Debentures
into the Exchange Agent's account at the Book-Entry Transfer Facility), and
all other documents required by the Letter of Transmittal are received by
the Exchange Agent within three New York Stock Exchange trading days after
the date of execution of the Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, the delivery of Exchange Notes
and Exchange Debentures in exchange for Old Notes and Old Debentures,
respectively, tendered and accepted for exchange pursuant to the Exchange
Offer will in all cases be made only after timely receipt by the Exchange
Agent of Old Notes or Old Debentures (as applicable), or of a book-entry
confirmation with respect to such Old Notes or Old Debentures (as applicable),
and a properly completed and duly executed Letter of Transmittal (or facsimile
thereof), together with any required signature guarantees and any other
documents required by the Letter of Transmittal. Accordingly, the delivery of
Exchange Notes and Exchange Debentures (as applicable) might not be made to
all tendering holders at the same time, and will depend upon when Old Notes
and Old Debentures (as applicable), book-entry confirmations with respect to
Old Notes and Old Debentures (as applicable) and other required documents are
received by the Exchange Agent.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of Old Notes or Old Debentures
may be withdrawn at any time on or prior to the Expiration Date.
To withdraw a tender of Old Notes or Old Debentures in the Exchange Offer, a
telegram, telex, letter or facsimile transmission notice of withdrawal must be
received by the Exchange Agent at its address set forth herein on or prior to
the Expiration Date. Any such notice of withdrawal must (i) specify the name
of the person having deposited the Old Notes or Old Debentures to be withdrawn
(the "Depositor"), (ii) identify the Old Notes or Old Debentures to be
withdrawn (including the certificate number(s) and principal amount of such
Old Notes, or, in the case of Old Notes or Old Debentures transferred by book-
entry transfer, the name and number of the account at the Book-Entry Transfer
Facility to be credited), (iii) be signed by the holder in the same manner as
the original signature on the Letter of Transmittal by which such Old Notes or
Old Debentures were tendered (including any required signature guarantees) or
be accompanied by documents of transfer sufficient to have the
38
<PAGE>
Trustee with respect to the Old Notes and the Old Debentures register the
transfer of such Old Notes or Old Debentures into the name of the person
withdrawing the tender and (iv) specify the name in which any such Old Notes
or Old Debentures are to be registered, if different from that of the
Depositor. All questions as to the validity, form and eligibility (including
time of receipt) of such notices will be determined by the Company, whose
determination shall be final and binding on all parties. Any Old Notes or Old
Debentures so withdrawn will be deemed not to have been validly tendered for
purposes of the Exchange Offer and no Exchange Notes or Exchange Debentures
will be issued with respect thereto unless the Old Notes or the Old Debentures
so withdrawn are validly retendered. Any Old Notes or Old Debentures which
have been tendered but which are not accepted for exchange will be returned to
the holder thereof without cost to such holder as soon as practicable after
withdrawal, rejection of tender or termination of the Exchange Offer. Properly
withdrawn Old Notes or Old Debentures may be retendered by following one of
the procedures described above under "--Procedures for Tendering" at any time
prior to the Expiration Date.
CONDITIONS
Notwithstanding any other term of the Exchange Offer, the Company shall not
be required to accept for exchange, or exchange Exchange Notes or Exchange
Debentures for, any Old Notes or Old Debentures, respectively, and may
terminate or amend the Exchange Offer as provided herein before the acceptance
of such Old Notes or Old Debentures, if:
(a) any action or proceeding is instituted or threatened in any court or
by or before any governmental agency with respect to the Exchange Offer
which, in the sole judgment of the Company, might materially impair the
ability of the Company to proceed with the Exchange Offer or any material
adverse development has occurred in any existing action or proceeding with
respect to the Company or any of its subsidiaries; or
(b) any law, statute, rule, regulation or interpretation by the Staff is
proposed, adopted or enacted, which, in the sole judgment of the Company,
might materially impair the ability of the Company to proceed with the
Exchange Offer or materially impair the contemplated benefits of the
Exchange Offer to the Company; or
(c) any governmental approval has not been obtained, which approval the
Company shall, in its sole discretion, deem necessary for the consummation
of the Exchange Offer as contemplated hereby.
If the Company determines in its sole discretion that any of the conditions
are not satisfied, the Company may (i) refuse to accept any Old Notes and Old
Debentures and return all tendered Old Notes and Old Debentures to the
tendering holders, (ii) extend the Exchange Offer and retain all Old Notes and
Old Debentures tendered prior to the expiration of the Exchange Offer,
subject, however, to the rights of holders to withdraw such Old Notes or Old
Debentures (see "--Withdrawal of Tenders") or (iii) waive such unsatisfied
conditions with respect to the Exchange Offer and accept all properly tendered
Old Notes and Old Debentures which have not been withdrawn. If such waiver or
amendment constitutes a material change to the Exchange Offer, the Company
will promptly disclose such waiver or amendment by means of a prospectus
supplement that will be distributed to the registered holders of the Old Notes
and the Old Debentures, and the Company will extend the Exchange Offer to the
extent required by Rule 14e-1 under the Exchange Act.
39
<PAGE>
EXCHANGE AGENT
The Bank of New York has been appointed as Exchange Agent for the Exchange
Offer. Questions and requests for assistance, requests for additional copies of
this Prospectus or of the Letter of Transmittal and requests for Notice of
Guaranteed Delivery should be directed to the Exchange Agent addressed as
follows:
THE BANK OF NEW YORK
By Hand or Overnignt By Facsimile Transmission: By Registered or
Delivery: (Eligible Institutions Only) Certified Mail:
The Bank of New York (212) 815-6339 The Bank of New York
101 Barclay Street 101 Barclay Street, 7E
Corporate Trust Services To Confirm by Telephone New York, New York 10286
Window or for Information Call: Attention:
Ground Level Reorganization
Attention: (212) 815-6337 Section,
Reorganization
Section,
DELIVERY TO AN ADDRESS OTHER THAN SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY.
FEES AND EXPENSES
The expenses of soliciting tenders will be borne by the Company. The
principal solicitation is being made by mail; however, additional solicitation
may be made by telegraph, telecopy, telephone or in person by officers and
regular employees of the Company and its affiliates.
The Company has not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers, dealers or others
soliciting acceptances of the Exchange Offer. The Company, however, will pay
the Exchange Agent reasonable and customary fees for its services and will
reimburse it for its reasonable out-of-pocket expenses in connection therewith.
The cash expenses to be incurred in connection with the Exchange Offer will
be paid by the Company. Such expenses include fees and expenses of the Exchange
Agent and Trustee, accounting and legal fees and printing costs, among others.
The Company will pay all transfer taxes, if any, applicable to the exchange
of Old Notes and Old Debentures pursuant to the Exchange Offer. If, however, a
transfer tax is imposed for any reason other than the transfer and exchange of
Old Notes or Old Debentures pursuant to the Exchange Offer, then the amount of
any such transfer taxes (whether imposed on the registered holder or on any
other person) will be payable by the tendering holder. If satisfactory evidence
of payment of such taxes or exemption therefrom is not submitted with this
Letter of Transmittal, the amount of such transfer taxes will be billed
directly to such tendering holder.
ACCOUNTING TREATMENT
The Exchange Notes and the Exchange Debentures will be recorded at the same
carrying value as the Old Notes and the Old Debentures, respectively, which is
face value, as reflected in the Company's accounting records on the date of
exchange. Accordingly, no gain or loss for accounting purposes will be
recognized by the Company. The expenses of the Exchange Offer will be expensed
over the term of each of the Exchange Notes and the Exchange Debentures on a
pro rata basis.
CONSEQUENCES OF FAILURE TO EXCHANGE
The Old Notes and the Old Debentures that are not exchanged for Exchange
Notes and Exchange Debentures, respectively, pursuant to the Exchange Offer
will remain restricted securities. Accordingly, such Old Notes or Old
Debentures may offer, sell or otherwise transfer, as applicable, prior to the
date that is two years
40
<PAGE>
after the later of the date of original issue and the last date on which the
Company or any affiliate of the Company was the owner of such Old Notes or Old
Debentures, as applicable (or any predecessor thereto) (the "Resale
Restriction Termination Date") only (a) to the Company or any subsidiary
thereof, (b) to the Initial Purchasers, (c) pursuant to a registration
statement that has been declared effective under the Securities Act, (d) for
so long as the Old Notes or the Old Debentures, as applicable, are eligible
for resale pursuant to Rule 144A, to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
transfer is being made in reliance on Rule 144A or (e) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of its property or the property of such investor account or
accounts be at all times within its or their control and to compliance with
any applicable state securities laws; it being understood that prior to any
offer, sale or other transfer of Old Notes or Old Debentures, as applicable,
in certificated form prior to the Resale Restriction Termination Date pursuant
to clause (e) above, the Company reserves the right to require the delivery of
an opinion of counsel, certification and/or other information satisfactory to
the Company.
The Old Notes and the Exchange Notes will constitute a single series of debt
securities under the Indenture. In the event that the Exchange Offer is
consummated, any Old Notes that remain outstanding after consummation of the
Exchange Offer and the Exchange Notes issued in the Exchange Offer will vote
together as a single class for purposes of determining whether holders of the
requisite percentage in outstanding principal amount of Notes have taken
certain actions or exercised certain rights under the Indenture. Similarly,
the Old Debentures and the Exchange Debentures will constitute a single series
of debt securities under the Indenture. In the event that the Exchange Offer
is consummated, any Old Debentures outstanding after consummation of the
Exchange Offer and the Exchange Debentures issued in the Exchange Offer will
vote together as a single class for purposes of determining whether holders of
the requisite percentage in outstanding principal amount of Debentures have
taken certain actions or exercised certain rights under the Indenture.
RESALE OF THE EXCHANGE SECURITIES
Based on existing interpretations of the Securities Act by the Staff set
forth in several no-action letters to third parties, and subject to the
immediately following sentence, the Company believes that the Exchange Notes
and the Exchange Debentures to be issued pursuant to the Exchange Offer may be
offered for resale, resold and otherwise transferred by the holders thereof
(other than holders who are broker-dealers) without further compliance with
the registration and prospectus delivery provisions of the Securities Act.
However, any holder of Old Notes or Old Debentures who is an "affiliate" of
the Company or who intends to participate in the Exchange Offer for the
purpose of distributing the Exchange Notes or the Exchange Debentures, or any
broker-dealer who purchased the Old Notes or the Old Debentures from the
Company for resale pursuant to Rule 144A or any other available exemption
under the Securities Act, (i) will not be able to rely on the interpretations
of the Staff set forth in the above-mentioned no-action letters, (ii) will not
be entitled to tender its Old Notes or Old Debentures, as applicable, in the
Exchange Offer and (iii) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any sale or
transfer of the Old Notes or Old Debentures, as applicable, unless such sale
or transfer is made pursuant to an exemption from such requirements. The
Company does not intend to seek its own no-action letter, and there can be no
assurance that the Staff would make a similar determination with respect to
the Exchange Notes or the Exchange Debentures as it has in such no-action
letters to third parties.
Each holder of Old Notes or Old Debentures (other than certain specified
holders) who wishes to exchange the Old Notes or the Old Debentures, as
applicable, for Exchange Notes or Exchange Debentures, as applicable, in the
Exchange Offer will be required to represent that (i) it is not an "affiliate"
of the Company, (ii) the Exchange Notes or the Exchange Debentures, as
applicable, to be received by it are being acquired in the ordinary course of
its business, (iii) it has no arrangement with any person to participate in
the distribution (within the meaning of the Securities Act) of the Exchange
Notes or the Exchange Debentures, as applicable,
41
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and (iv) if such holder is not a broker-dealer, such holder is not engaged in,
and does not intend to engage in, a distribution (within the meaning of the
Securities Act). Each Participating Broker-Dealer that receives Exchange Notes
or Exchange Debentures for its own account pursuant to the Exchange Offer must
acknowledge that it acquired the Old Notes or the Old Debentures for its own
account as a result of market-making or other trading activities and must
agree that it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Notes or
Exchange Debentures. The Letter of Transmittal states that by so acknowledging
and by delivering a prospectus, a Participating Broker-Dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. The Commission has taken the position in the above-mentioned
no-action letters that Participating Broker-Dealers who acquired Old Notes or
Old Debentures for their own accounts as a result of market-making or other
trading activities may fulfill their prospectus delivery requirements with
respect to the Exchange Notes or the Exchange Debentures, as applicable, other
than a resale of an unsold allotment from the original sale thereof, with a
prospectus meeting the requirements of the Securities Act, which may be the
prospectus prepared for an exchange offer so long as it contains a plan of
distribution with respect to the resale of such Exchange Notes and Exchange
Debentures. Under the Registration Rights Agreement, the Company is required
to allow Participating Broker-Dealers and other persons, if any, subject to
similar prospectus delivery requirements to use this Prospectus, as it may be
amended or supplemented from time to time, in connection with the resale of
such Exchange Notes or Exchange Debentures, as applicable, for a period of 180
days from the issuance of the Exchange Notes or the Exchange Debentures, as
applicable. The Company has agreed that, for a period of 180 days after the
Expiration Date, it will make this Prospectus available to any Participating
Broker-Dealer for use in connection with any such resale (provided that the
Company has received prior written notice from such Participating Broker-
Dealer of its status as a Participating Broker-Dealer). See "Plan of
Distribution." Any Participating Broker-Dealer who is an "affiliate" of the
Company may not rely on the above-mentioned no-action letters and must comply
with the registration and delivery requirements of the Securities Act in
connection with any resale transaction.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is based on the current provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), applicable Treasury
regulations, judicial authority and administrative rulings and practice. There
can be no assurance that the Internal Revenue Service (the "Service") will not
take a contrary view, and no ruling from the Service has been or will be
sought. Legislative, judicial or administrative changes or interpretations may
be forthcoming that could alter or modify the statements and conditions set
forth herein. Any such changes or interpretations may or may not be
retroactive and could affect the tax consequences to holders. Certain holders
(including insurance companies, tax-exempt organizations, financial
institutions, broker-dealers, foreign corporations and persons who are not
citizens or residents of the United States) may be subject to special rules
not discussed below. The Company recommends that each holder consult such
holder's own tax advisor as to the particular tax consequences of exchanging
such holder's Old Notes or Old Debentures for Exchange Notes or Exchange
Debentures, respectively, including the applicability and effect of any state,
local or foreign tax laws.
The Company believes that the exchange of Old Notes or Old Debentures for
Exchange Notes or Exchange Debentures, respectively, pursuant to the Exchange
Offer will not be treated as an "exchange" for federal income tax purposes
because the Exchange Notes or the Exchange Debentures will not be considered
to differ materially in kind or extent from the Old Notes or the Old
Debentures, respectively. Rather, the Exchange Notes or the Exchange
Debentures received by a holder will be treated as a continuation of the Old
Notes or the Old Debentures, respectively, in the hands of such holder. As a
result, there will be no federal income tax consequences to holders exchanging
Old Notes or Old Debentures for Exchange Notes or Exchange Debentures,
respectively, pursuant to the Exchange Offer.
The Company may become obligated to pay additional interest to the
beneficial owners of the Old Notes and the Old Debentures under certain
circumstances described under "Exchange Offer--Purpose and Effect of
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<PAGE>
Exchange Offer." The Company believes that any such payments of interest
should be treated as an "incidental contingency" for purposes of the original
issue discount rules because the potential amount of any such interest
payments, if required to be made, is expected to be insignificant relative to
the total expected amount of remaining payments on the Old Notes and the Old
Debentures, and, accordingly, if such interest payments are required to be
made, such interest should be taxable to beneficial owners in the same manner
as any scheduled payments of interest.
PLAN OF DISTRIBUTION
Each Participating Broker-Dealer that receives Exchange Notes or Exchange
Debentures for its own account pursuant to the Exchange Offer must acknowledge
that it acquired the Old Notes or the Old Debentures for its own account as a
result of market-making or other trading activities and must agree that it
will deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes or Exchange Debentures. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a Participating Broker-Dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act. Under the
Registration Rights Agreement, the Company is required to allow Participating
Broker-Dealers and other persons, if any, subject to similar prospectus
delivery requirements to use this Prospectus, as it may be amended or
supplemented from time to time, in connection with the resale of such Exchange
Notes or Exchange Debentures, as applicable, for a period of 180 days from the
issuance of the Exchange Notes or Exchange Debentures, as applicable. The
Company has agreed that, for a period of 180 days after the Expiration Date,
it will make this Prospectus, as amended or supplemented, available to any
Participating Broker-Dealer for use in connection with any such resale
(provided that the Company has received prior written notice from such
Participating Broker-Dealer of its status as a Participating Broker-Dealer).
See "Exchange Offer--Resale of the Exchange Securities."
The Company will not receive any cash proceeds from any sales of the
Exchange Notes or Exchange Debentures by Participating Broker-Dealers.
Exchange Notes or Exchange Debentures received by Participating Broker-Dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or the
Exchange Debentures or a combination of such methods of resale, at market
prices prevailing at the time of resale, at prices related to such prevailing
market prices or negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such Participating Broker-
Dealer and/or the purchasers of any such Exchange Notes or Exchange
Debentures. Any Participating Broker-Dealer that resells the Exchange Notes or
Exchange Debentures that were received by it for its own account pursuant to
the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Notes or Exchange Debentures may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit on
any such resale of Exchange Notes or Exchange Debentures and any commissions
or concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that
by acknowledging that it will deliver and by delivering a prospectus, a
Participating Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
LEGAL MATTERS
The validity of the Exchange Notes and the Exchange Debentures offered
hereby will be passed upon for the Company by Kirkland & Ellis (a partnership
including professional corporations), Chicago, Illinois.
EXPERTS
The consolidated financial statements of the Company as of December 31, 1997
and 1996 and for each of the three years in the period ended December 31, 1997
appearing in the Company's Annual Report on Form 10-K for the year ended
December 31, 1997, have been audited by Ernst & Young LLP, independent
auditors,
43
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as set forth in their report thereon included therein and incorporated herein
by reference. Such financial statements have been incorporated herein in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
The consolidated balance sheets of Harris Chemical Group, Inc. as of March
29, 1997 and March 30, 1996 and the related consolidated statements of
operations, cash flows and common stockholders' equity for each of the three
fiscal years in the period ended March 29, 1997 appearing in the Company's
Current Report on Form 8-K/A filed on June 15, 1998, which is incorporated by
reference in this Prospectus and in the Exchange Offer Registration Statement,
have been audited by PricewaterhouseCoopers LLP, independent accountants, as
set forth in their report thereon included therein and incorporated herein by
reference. The consolidated balance sheets of Harris Chemical Group, Inc. as
of March 28, 1998 and March 29, 1997 and the related consolidated statements
of operations, cash flows and common stockholders' equity for each of the
three fiscal years in the period ended March 28, 1998 appearing in the
Company's Current Report on Form 8-K/A filed on September 16, 1998, which is
incorporated by reference in this Prospectus and in the Exchange Offer
Registration Statement, have been audited by PricewaterhouseCoopers LLP,
independent accountants, as set forth in their report thereon included therein
and incorporated herein by reference. Such financial statements have been
incorporated herein in reliance upon such reports given upon the authority of
such firm as experts in accounting and auditing.
The financial statements of Penrice for the year ended June 30, 1997
appearing in the Company's Current Report on Form 8-K/A filed on June 15,
1998, which is incorporated by reference in this Prospectus and in the
Exchange Offer Registration Statement, have been audited by Arthur Andersen,
Chartered Accountants, as set forth in their report thereon included therein
and incorporated herein by reference. Such financial statements have been
incorporated herein in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
The consolidated financial statements of FTX at December 31, 1996 and for
each of the three years in the period ended December 31, 1996 appearing in
FTX's Annual Report on Form 10-K for the year ended December 31, 1996, which
are incorporated by reference in this Prospectus and in the Exchange Offer
Registration Statement, have been audited by Arthur Andersen LLP, independent
public accountants, as set forth in their report thereon incorporated by
reference herein. In that report, that firm states that its report is based in
part on the report of other independent public accountants, Ernst & Young LLP.
Such financial statements have been incorporated herein by reference in
reliance upon the authority of those firms as experts in accounting and
auditing in giving said reports.
44
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NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THE OFFER CON-
TAINED HEREIN, OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITY OTHER THAN THOSE TO
WHICH IT RELATES NOR DOES IT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF
AN OFFER TO BUY, ANY SECURITY IN ANY JURISDICTION IN WHICH SUCH OFFER OR SO-
LICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH OFFER OR SO-
LICITATION IS NOT AUTHORIZED TO DO SO, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS
NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLI-
CATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE
DATE HEREOF OR THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSE-
QUENT TO THE DATE HEREOF.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Available Information...................................................... 5
Information Incorporated by Reference...................................... 5
Forward-Looking Statements................................................. 6
Prospectus Summary......................................................... 7
Risk Factors............................................................... 17
Use of Proceeds............................................................ 18
Capitalization............................................................. 18
Ratio of Earnings to Fixed Charges......................................... 19
The Company................................................................ 20
Recent Developments........................................................ 20
Description of Exchange Notes and Exchange Debentures...................... 21
Exchange Offer............................................................. 31
Certain Federal Income Tax Considerations.................................. 42
Plan of Distribution....................................................... 43
Legal Matters.............................................................. 43
Experts.................................................................... 43
</TABLE>
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-----------
PROSPECTUS
-----------
$300,000,000
IMC GLOBAL INC.
OFFER TO EXCHANGE ITS 6 1/2% NOTES DUE 2003 AND ITS 7 3/8% DEBENTURES DUE
2018, WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, FOR ANY AND
ALL OF ITS OUTSTANDING 6 1/2% NOTES DUE 2003 AND 7 3/8% DEBENTURES DUE 2018,
RESPECTIVELY
LOGO
, 1998
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law ("DGCL") permits a Delaware corporation
to indemnify any persons who are, or are threatened to be made, parties to any
threatened, pending or completed legal action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or
in the right of such corporation), by reason of the fact that such person was
an officer or director of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
action, suit or proceeding, provided that such officer or director acted in
good faith and in a manner he or she reasonably believed to be in or not
opposed to the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his or her conduct was illegal. A Delaware
corporation may indemnify officers and directors in an action by or in the
right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation in the performance of his
or her duty. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him or her against the expenses which such officer or director
actually and reasonably incurred.
The Company's Restated Certificate of Incorporation, as amended, provides
that the Company will indemnify each officer and director of the Company to
the fullest extent permitted by applicable law. The Company's Amended and
Restated By-Laws provide that 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, by
reason of the fact that he or she is or was a director or officer of the
Company, or is or was serving at the request of the Company 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, will be indemnified by the Company to the full extent
permitted by the DGCL. The indemnification rights conferred by the Company's
Restated Certificate of Incorporation, as amended, are not exclusive of any
other right to which persons seeking indemnification may be entitled under any
law, By-Law, agreement, vote of stockholders or disinterested directors or
otherwise. The Company is authorized to purchase and maintain (and the Company
maintains) insurance on behalf of its directors and officers.
The Purchase Agreement and the Registration Rights Agreement included as
exhibits to this Registration Statement provide for indemnification of
directors and officers of the Company against certain liabilities.
ITEM 21. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
4.1 Restated Certificate of Incorporation, as amended, (incorporated by
reference to the Company's Current Report on Form 8-K dated November 1,
1994 (File No. 1-9759)).
4.2 Certificate of Amendment to Restated Certificate of Incorporation, dated
October 20, 1994 (incorporated by reference to Exhibit 3.2 of the
Company's Annual Report on Form 10-K for the fiscal year ended June 30,
1997 (File No. 1-9759)).
4.3 Certificate of Amendment to Restated Certificate of Incorporation, dated
October 23, 1995 (incorporated by reference to Exhibit 3.2 of the
Company's Registration Statement on Form 8-A/A-1 dated January 12, 1996
(File No. 1-9759)).
4.4 Certificate of Amendment to Restated Certificate of Incorporation, dated
March 1, 1996 (incorporated by reference to Exhibit 3.4 of the Company's
Annual Report on Form 10-K for the fiscal year ended June 30, 1997 (File
No. 1-9759)).
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
4.5 Certificate of Merger of Freeport-McMoRan Inc. and the Company, dated
December 22, 1997 (incorporated by reference to Exhibit 3.5 of the
Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997 (File No. 1-9759)).
4.6 Amended and Restated By-Laws (incorporated by reference to Exhibit 3.6 to
the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 (File No. 1-9759)).
4.7 Indenture, dated as of August 1, 1998, between the Company and The Bank of
New York, as Trustee (incorporated by reference to Exhibit 4.10 to the
Company's Registration Statement on Form S-3 (No. 333-63503)).
4.8 Form of 6 1/2% Notes due 2003.
4.9 Form of 7 3/8% Debentures due 2018.
4.10 Purchase Agreement, dated August 6, 1998, between the Company and Merrill
Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc.,
Chase Securities Inc. and Salomon Brothers Inc, without exhibits thereto.
4.11 Registration Rights Agreement, dated August 11, 1998, between the Company
and the Initial Purchasers.
4.12 Indenture, dated as of July 17, 1997, between the Company and The Bank of
New York, as Trustee, relating to the issuance of 6.875% Senior Debentures
due July 15, 2007, 7.30% Senior Debentures due January 15, 2020, and 6.55%
Senior Notes due January 15, 2005 (incorporated by reference to Exhibit
4.1 to the Company's Current Report on Form 8-K dated July 23, 1997 (File
No. 1-9759)).
The Registrant will furnish to the Commission, upon request, each
instrument defining the rights of holders of long-term debt of the
Registrant and its subsidiaries where the amount of such debt does not
exceed 10 percent of the total assets of the Registrant and its
subsidiaries on a consolidated basis.
5 Opinion of Kirkland & Ellis.
12 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Arthur Andersen, Chartered Accountants.
23.3 Consent of PricewaterhouseCoopers LLP.
23.4 Consent of Kirkland & Ellis (included in Exhibit 5).
23.5 Consent of Arthur Andersen LLP, independent public accountants.
24 Powers of Attorney.
25 Statement of Eligibility and Qualification on Form T-1 of the Bank of New
York, as Trustee (incorporated by reference to Exhibit 25.1 to the
Company's Registration Statement on Form S-3 (No. 333-63503)).
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Form of Instructions to Registered Holder and/or Book-Entry Transfer
Participant.
</TABLE>
ITEM 22. UNDERTAKINGS.
(a) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
II-2
<PAGE>
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 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 of 1933 and will be governed by the final
adjudication of such issue.
(b) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through
the date of responding to the request.
(c) 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.
(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. 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% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 the time shall be deemed to
be the initial bona fide offering thereof.
(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.
(d) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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 fide offering
thereof.
(e) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT HAS DULY CAUSED THIS REGISTRATION STATEMENT ON FORM S-4 TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE
CITY OF NORTHBROOK, STATE OF ILLINOIS, ON SEPTEMBER 21, 1998.
IMC GLOBAL INC.
/s/ J. Bradford James
By: _________________________________
J. Bradford James
Senior Vice President and
Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chief Executive Officer September 21, 1998
____________________________________ (principal executive
Robert E. Fowler, Jr. officer), President
(principal operating
officer) and Director
/s/ J. Bradford James Senior Vice President and September 21, 1998
____________________________________ Chief Financial Officer
J. Bradford James (principal financial
officer)
/s/ Anne M. Scavone Vice President and September 21, 1998
____________________________________ Controller (principal
Anne M. Scavone accounting officer)
* Chairman and Director September 21, 1998
____________________________________
Wendell F. Bueche
* Director September 21, 1998
____________________________________
Raymond F. Bentele
* Director September 21, 1998
____________________________________
Robert W. Bruce, III
* Director September 21, 1998
____________________________________
Rod F. Dammeyer
* Director September 21, 1998
____________________________________
James M. Davidson, Ph.D.
* Director September 21, 1998
____________________________________
Rene L. Latiolais
* Director September 21, 1998
____________________________________
Harold H. MacKay
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Director September 21, 1998
____________________________________
David B. Mathis
* Director September 21, 1998
____________________________________
Donald F. Mazankowski
* Director September 21, 1998
____________________________________
Joseph P. Sullivan
* Director September 21, 1998
____________________________________
Richard L. Thomas
* Director September 21, 1998
____________________________________
Billie B. Turner
</TABLE>
/s/ J. Bradford James
*By: __________________________
J. Bradford James
Attorney In Fact
II-5
<PAGE>
EXHIBIT 4.8
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY (AS
DEFINED IN THE INDENTURE) OR A NOMINEE THEREOF. THIS GLOBAL SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY, OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. ______ $_________________
CUSIP No. _______________
IMC Global Inc.
6-1/2% Notes due 2003
IMC Global Inc., a Delaware corporation (hereinafter called the "Company",
which term includes any successor corporation under the Indenture referred to
below), for value received, hereby promises to pay to Cede & Co. or registered
assigns, the principal sum of _____________ Million Dollars ($_____________) on
August 1, 2003, and to pay interest thereon from August 11, 1998 or from the
most recent interest payment date to which interest has been paid or duly
provided for on the 6-1/2% Notes due 2003 surrendered in exchange for this Note,
payable semiannually on February 1 and August 1 in each year (each, an "Interest
Payment Date"), commencing February 1, 1999, at the rate of 6-1/2% per annum,
until the principal hereof is paid or duly made available for payment. Interest
on this Note shall be calculated on the basis of a 360-day year of twelve 30-day
months. If any Interest Payment Date, maturity date or redemption date falls on
a day that is not a Business Day, the required payment shall be made on the next
Business Day as if it were made on the date such payment was due and no interest
shall accrue on the amount so payable for the period from and after such
<PAGE>
Interest Payment Date, maturity date or redemption date, as the case may be, to
such next Business Day. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Note (or one or more predecessor
securities) is registered at the close of business on the regular record date
for such interest, which shall be January 15 or July 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date shall forthwith cease to be payable to the
registered Holder hereof on the relevant regular record date by virtue of having
been such Holder, and may be paid to the Person in whose name this Note (or one
or more predecessor securities) is registered at the close of business on a
subsequent special record date (which shall be at least five days before the
payment date) for the payment of such defaulted interest to be fixed by the
Company, notice whereof shall be given to the Holders of Notes of this series
not less than 15 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in such Indenture.
Payment of the principal of and the interest on this Note will be made at
the office or agency of the Company maintained for that purpose in The Borough
of Manhattan, The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that, at the option of the Company,
interest may be paid by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register; provided,
further, that payment to DTC or any successor depository may be made by wire
transfer to the account designated by DTC or such successor depository in
writing.
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes") issued and to be issued in one or more series under
an Indenture, dated as of August 1, 1998 (herein called, together with all
indentures supplemental thereto, the "Indenture"), between the Company and The
Bank of New York, as Trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Notes, and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face hereof, limited (subject to exceptions
provided in the Indenture) to the aggregate principal amount specified in the
Officers' Certificate, dated August 11 1998, establishing the terms of the Notes
pursuant to the Indenture.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions permitting, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series issued under the Indenture at any time by the Company and the
Trustee with the written consent of the Holders of not less than a majority
2
<PAGE>
in aggregate principal amount of the Securities at the time Outstanding of each
series affected thereby. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Securities
of any series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Notes issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
This Note is redeemable at the option of the Company, in whole at any time
or in part from time to time, at a redemption price equal to the greater of (i)
100% of the principal amount of this Note to be redeemed and (ii) the sum, as
determined by the Independent Investment Banker (as defined below), of the
present values of the principal amount of this Note to be redeemed and the
remaining scheduled payments of interest on the principal amount of this Note to
be redeemed from the redemption date to August 1, 2003 (the "Remaining Term"),
in each case, discounted from their respective scheduled payment dates to the
redemption date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined below) plus 15 basis
points, plus, in either case, accrued but unpaid interest thereon to the
redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the Remaining Term that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the Remaining Term.
"Comparable Treasury Price" means, with respect to any redemption date, the
average of the Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or if the Trustee obtains fewer than four such Reference Treasury
Dealer Quotations, the average of all such Reference Treasury Dealer Quotations.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means each of Merrill Lynch Government
Securities Inc., J.P. Morgan Securities Inc., Chase Securities Inc. and Salomon
Brothers Inc, their affiliates, their respective successors and any other
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer") selected by the Company in addition to, or in substitution for, any of
such firms; provided, however, that if any of the foregoing shall cease to be a
Primary Treasury Dealer, the Company will substitute another Primary Treasury
Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
3
<PAGE>
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, calculated on the third Business Day preceding such redemption
date using a price for the Comparable Treasury Issue (expressed as a percentage
of its principal amount) equal to the Comparable Treasury Price for such
redemption date.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to the Holder hereof at its registered
address. Unless the Company defaults in payment of the redemption price, on and
after the redemption date interest will cease to accrue on the principal amount
of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior
to maturity and is not subject to any sinking fund.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note,
at the times, place and rate, and in the coin or currency, herein and in the
Indenture prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein and in this Note, the transfer of this Note may be registered on the
Security Register upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for the purpose in any place
where the principal of and interest on this Note are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or by his
attorney duly authorized in writing, and thereupon one or more new Notes of this
series and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in the
denominations specified in the Officers' Certificate, dated August 11, 1998,
establishing the terms of the Notes, all as more fully provided in the Indenture
and such Officers' Certificate. As provided in the Indenture and in such
Officers' Certificate, and subject to certain limitations set forth in the
Indenture, such Officers' Certificate and in this Note, the Notes are
exchangeable for a like aggregate principal amount of Notes of this series in
different authorized denominations, as requested by the Holders surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith, other than in
certain cases provided in the Indenture.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be discharged
from its obligations with respect to the Notes (subject to certain exceptions)
or (ii) the Company may be
4
<PAGE>
released from its obligation under specified covenants and agreements in the
Indenture, in each case if the Company irrevocably deposits with the Trustee
money, Eligible Obligations or U.S. Government Obligations, or a combination
thereof, in an amount sufficient to pay and discharge the entire indebtedness on
all Notes of this series, and satisfies certain other conditions, all as more
fully provided in the Indenture.
This Note shall be governed by and construed in accordance with the laws of
the State of New York, applicable to agreements and instruments made and to be
performed wholly within such State.
All terms used in this Note without definition that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
5
<PAGE>
Unless the Certificate of Authentication hereon has been executed by or on
behalf of the Trustee under the Indenture by the manual signature of one of its
authorized officers, this Note shall not be entitled to any benefits under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
IMC GLOBAL INC.
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:_____________________
THE BANK OF NEW YORK,
as Trustee
By:_______________________________________
Authorized Signatory
6
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ________________________
(Minor)
Custodian ________________________
(Cust)
Under Uniform Gifts to Minors Act ________________________
(State)
Additional abbreviations may also be used though not in the above list.
7
<PAGE>
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
- -------------------------------------------
- -------------------------------------------
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing to transfer said Note on the books of the Company with full power of
substitution in the premises.
Dated:
--------------------------------
Signature:
----------------------------
Notice: The signature to this assignment must correspond with the name as it
appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranty:
------------------------------------------------------------
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Trustee, which
requirements include membership or participation in the
Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by
the Trustee in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934,
as amended.
8
<PAGE>
EXHIBIT 4.9
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY (AS
DEFINED IN THE INDENTURE) OR A NOMINEE THEREOF. THIS GLOBAL SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY, OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. _____ $________________
CUSIP No. _________________
IMC Global Inc.
7-3/8% Debentures due 2018
IMC Global Inc., a Delaware corporation (hereinafter called the "Company",
which term includes any successor corporation under the Indenture referred to
below), for value received, hereby promises to pay to Cede & Co. or registered
assigns, the principal sum of _________________ Million Dollars ($_____________)
on August 1, 2018, and to pay interest thereon from August 11, 1998 or from the
most recent interest payment date to which interest has been paid or duly
provided for on the 7-3/8% Debentures due 2018 surrendered in exchange for this
Debenture, payable semiannually on February 1 and August 1 in each year (each,
an "Interest Payment Date"), commencing February 1, 1999, at the rate of 7-3/8%
per annum, until the principal hereof is paid or duly made available for
payment. Interest on this Debenture shall be calculated on the basis of a 360-
day year of twelve 30-day months. If any Interest Payment Date, maturity date or
redemption date falls on a day that is not a Business Day, the required payment
shall be made on the next Business Day as if it were made on the date such
payment was due and no interest shall accrue on the amount payable for the
period from and such Interest
<PAGE>
Payment Date, maturity date or redemption date, as the case may be, to such next
Business Day. The interest so payable and punctually paid or duly provided for
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Debenture (or one or more predecessor securities) is
registered at the close of business on the regular record date for such
interest, which shall be January 15 or July 15 (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date. Any such interest
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date shall forthwith cease to be payable to the registered
Holder hereof on the relevant regular record date by virtue of having been such
Holder, and may be paid to the Person in whose name this Debenture (or one or
more predecessor securities) is registered at the close of business on a
subsequent special record date (which shall be at least five days before the
payment date) for the payment of such defaulted interest to be fixed by the
Company, notice whereof shall be given to the Holders of Debentures of this
series not less than 15 days prior to such Special Record Date, or may be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Debentures may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in such
Indenture.
Payment of the principal of and the interest on this Debenture will be made
at the office or agency of the Company maintained for that purpose in The
Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that, at the option of the
Company, interest may be paid by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register;
provided, further, that payment to DTC or any successor depository may be made
by wire transfer to the account designated by DTC or such successor depository
in writing.
This Debenture is one of a duly authorized issue of securities of the
Company (herein called the "Debentures") issued and to be issued in one or more
series under an Indenture, dated as of August 1, 1998 (herein called, together
with all indentures supplemental thereto, the "Indenture"), between the Company
and The Bank of New York, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Debentures, and of the terms
upon which the Debentures are, and are to be, authenticated and delivered. This
Debenture is one of the series designated on the face hereof, limited (subject
to exceptions provided in the Indenture) to the aggregate principal amount
specified in the Officers' Certificate, dated August 11, 1998, establishing the
terms of the Debentures pursuant to the Indenture.
If an Event of Default with respect to the Debentures shall occur and be
continuing, the principal of the Debentures may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture contains provisions permitting, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series issued under the Indenture at any time by the Company and the
Trustee with the written consent of the Holders of not less than a majority
2
<PAGE>
in aggregate principal amount of the Securities at the time Outstanding of each
series affected thereby. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Securities
of any series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Debenture
shall be conclusive and binding upon such Holder and upon all future Holders of
this Debenture and of any Debentures issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Debenture.
This Debenture is redeemable at the option of the Company, in whole at any
time or in part from time to time, at a redemption price equal to the greater of
(i) 100% of the principal amount of this Debenture to be redeemed and (ii) the
sum, as determined by the Independent Investment Banker (as defined below), of
the present values of the principal amount of this Debenture to be redeemed and
the remaining scheduled payments of interest on the principal amount of this
Debenture to be redeemed from the redemption date to August 1, 2018 (the
"Remaining Term"), in each case, discounted from their respective scheduled
payment dates to the redemption date on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate (as defined below)
plus 25 basis points, plus, in either case, accrued but unpaid interest thereon
to the redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the Remaining Term that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the Remaining Term.
"Comparable Treasury Price" means, with respect to any redemption date, the
average of the Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or if the Trustee obtains fewer than four such Reference Treasury
Dealer Quotations, the average of all such Reference Treasury Dealer Quotations.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means each of Merrill Lynch Government
Securities Inc., J.P. Morgan Securities Inc., Chase Securities Inc. and Salomon
Brothers Inc, their affiliates, their respective successors and any other
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer") selected by the Company in addition to, or in substitution for, any of
such firms; provided, however, that if any of the foregoing shall cease to be a
Primary Treasury Dealer, the Company will substitute another Primary Treasury
Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
3
<PAGE>
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, calculated on the third Business Day preceding such redemption
date using a price for the Comparable Treasury Issue (expressed as a percentage
of its principal amount) equal to the Comparable Treasury Price for such
redemption date.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to the Holder hereof at its registered
address. Unless the Company defaults in payment of the redemption price, on and
after the redemption date interest will cease to accrue on the principal amount
of this Debenture called for redemption.
Except as provided above, this Debenture is not redeemable by the Company
prior to maturity and is not subject to any sinking fund.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Debenture, at the times, place and rate, and in the coin or currency, herein and
in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein and in this Debenture, the transfer of this Debenture may be registered
on the Security Register upon surrender of this Debenture for registration of
transfer at the office or agency of the Company maintained for the purpose in
any place where the principal of and interest on this Debenture are payable,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Debentures of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Debentures are issuable only in registered form without coupons in the
denominations specified in the Officers' Certificate, dated August 11, 1998,
establishing the terms of the Debentures, all as more fully provided in the
Indenture and such Officers' Certificate. As provided in the Indenture and in
such Officers' Certificate, and subject to certain limitations set forth in the
Indenture, such Officers' Certificate and in this Debenture, the Debentures are
exchangeable for a like aggregate principal amount of Debentures of this series
in different authorized denominations, as requested by the Holders surrendering
the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith, other than in
certain cases provided in the Indenture.
Prior to due presentment of this Debenture for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Debenture is registered as the owner hereof for
all purposes, whether or not this Debenture be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
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<PAGE>
The Indenture contains provisions whereby (i) the Company may be discharged
from its obligations with respect to the Debentures (subject to certain
exceptions) or (ii) the Company may be released from its obligation under
specified covenants and agreements in the Indenture, in each case if the Company
irrevocably deposits with the Trustee money, Eligible Obligations or U.S.
Government Obligations, or a combination thereof, in an amount sufficient to pay
and discharge the entire indebtedness on all Debentures of this series, and
satisfies certain other conditions, all as more fully provided in the Indenture.
This Debenture shall be governed by and construed in accordance with the
laws of the State of New York, applicable to agreements and instruments made and
to be performed wholly within such State.
All terms used in this Debenture without definition that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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<PAGE>
Unless the Certificate of Authentication hereon has been executed by or on
behalf of the Trustee under the Indenture by the manual signature of one of its
authorized officers, this Debenture shall not be entitled to any benefits under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
IMC GLOBAL INC.
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:_________________
THE BANK OF NEW YORK,
as Trustee
By:_______________________________________
Authorized Signatory
6
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ________________________
(Minor)
Custodian ________________________
(Cust)
Under Uniform Gifts to Minors Act ________________________
(State)
Additional abbreviations may also be used though not in the above list.
7
<PAGE>
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________
________________________________________________
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE]
the within Debenture and all rights thereunder, hereby irrevocably constituting
and appointing to transfer said Debenture on the books of the Company with full
power of substitution in the premises.
Dated: _____________________
Signature: _____________________
Notice: The signature to this assignment must correspond with the name as it
appears upon the face of the within Debenture in every particular,
without alteration or enlargement or any change whatever.
Signature Guaranty:_____________________________________________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Trustee, which
requirements include membership or participation in the
Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by
the Trustee in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934,
as amended.
8
<PAGE>
EXHIBIT 4.10
IMC GLOBAL INC.
(a Delaware corporation)
$200,000,000
6-1/2% Notes due 2003
$100,000,000
7-3/8% Debentures due 2018
--------------------------------
PURCHASE AGREEMENT
--------------------------------
Dated: August 6, 1998
<PAGE>
Table of Contents
<TABLE>
Page
----
<S> <C>
SECTION 1. Representations and Warranties..................................... 2
(a) Representations and Warranties by the Company............................. 3
(b) Officer's Certificates.................................................... 9
SECTION 2. Sale and Delivery to Initial Purchasers; Closing................... 9
(a) Securities................................................................ 9
(b) Payment................................................................... 9
(c) Qualified Institutional Buyer.............................................10
(d) Denominations; Registration...............................................10
SECTION 3. Covenants of the Company...........................................10
(a) Offering Memorandum.......................................................10
(b) Notice and Effect of Material Events......................................10
(c) Amendment to Offering Memorandum and Supplements..........................11
(d) Qualification of Securities for Offer and Sale............................11
(e) Rating of Securities......................................................11
(f) DTC.......................................................................11
(g) Use of Proceeds...........................................................11
(h) Restriction on Sale of Securities.........................................11
SECTION 4. Payment of Expenses................................................11
(a) Expenses..................................................................11
(b) Termination of Agreement..................................................12
SECTION 5. Conditions of Initial Purchasers' Obligations......................12
(a) Opinion of Counsel for Company............................................12
(b) Opinion of Counsel for Initial Purchasers.................................12
(c) Officers' Certificate.....................................................13
(d) Accountant's Comfort Letters..............................................13
(e) Bring-down Comfort Letter.................................................13
(f) Maintenance of Rating.....................................................13
(g) Registration Rights Agreement.............................................13
(h) Additional Documents......................................................13
(i) Termination of Agreement..................................................14
SECTION 6. Subsequent Offers and Resales of the Securities....................14
(a) Offer and Sale Procedures.................................................14
(b) Covenants of the Company..................................................15
SECTION 7. Indemnification....................................................16
(a) Indemnification of Initial Purchasers.....................................16
(b) Indemnification of Company, Directors and Officers........................17
</TABLE>
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<PAGE>
(c) Actions against Parties; Notification................................... 17
(d) Settlement without Consent if Failure to Reimburse...................... 18
SECTION 8. Contribution.................................................... 18
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.. 19
SECTION 10. Termination of Agreement........................................ 19
(a) Termination; General.................................................... 19
(b) Liabilities............................................................. 20
SECTION 11. Default By One or More of The Initial Purchasers................ 20
SECTION 12. Notices......................................................... 20
SECTION 13. Parties......................................................... 21
SECTION 14. GOVERNING LAW AND TIME.......................................... 21
SECTION 15. Effect of Headings.............................................. 21
ii
<PAGE>
$200,000,000
6-1/2% Notes due 2003
$100,000,000
7-3/8% Debentures due 2018
IMC GLOBAL INC.
(a Delaware corporation)
PURCHASE AGREEMENT
August 6, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. MORGAN SECURITIES INC.
CHASE SECURITIES INC.
SALOMON BROTHERS INC
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
IMC Global Inc., a Delaware corporation (the "Company"), confirms its
agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and J.P. Morgan Securities Inc., Chase Securities
Inc. and Salomon Brothers Inc (collectively, the "Initial Purchasers", which
term shall also include any initial purchaser substituted as hereinafter
provided in Section 11 hereof), with respect to the issue and sale by the
Company and the purchase by the Initial Purchasers, acting severally and not
jointly, of the respective principal amounts set forth in Schedule A of
$200,000,000 aggregate principal amount of the Company's 6-1/2% Notes due 2003
and $100,000,000 aggregate principal amount of the Company's 7-3/8% Debentures
due 2018 (collectively, the "Securities"). The Securities are to be issued
pursuant to an indenture dated as of August 1, 1998 (the "Indenture", which
term, as used herein, includes the Officers' Certificate (as defined in the
Indenture) establishing the form and terms of the Securities pursuant to Section
2.1 of the Indenture), between the Company and The Bank of New York, as trustee
(the "Trustee"). Securities issued in book-entry form will be issued to Cede &
Co. as nominee of The Depository Trust Company ("DTC") pursuant to a letter
agreement, to be dated as of the Closing Time (as defined in Section 2(b)) (the
"DTC Agreement"), among the Company, the Trustee and DTC.
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<PAGE>
The Company understands that the Initial Purchasers propose to make an
offering of the Securities on the terms and in the manner set forth herein and
agrees that the Initial Purchasers may resell, subject to the conditions set
forth herein, all or a portion of the Securities to purchasers ("Subsequent
Purchasers") at any time after the date of this Agreement. The Securities are to
be offered and sold through the Initial Purchasers without being registered
under the Securities Act of 1933, as amended (the "1933 Act"), in reliance upon
exemptions therefrom. Pursuant to the terms of the Securities and the Indenture,
investors that acquire Securities may only resell or otherwise transfer such
Securities if such Securities are hereafter registered under the 1933 Act or if
an exemption from the registration requirements of the 1933 Act is available
(including the exemption afforded by Rule 144A ("Rule 144A") of the rules and
regulations promulgated under the 1933 Act by the Securities and Exchange
Commission (the "Commission")).
The Company has prepared and delivered to each Initial Purchaser copies of
a preliminary offering memorandum dated July 27, 1998 (the "Preliminary Offering
Memorandum") and has prepared and will deliver to each Initial Purchaser, on the
date hereof or the next succeeding day, copies of a final offering memorandum
dated August 6, 1998 (the "Final Offering Memorandum"), each for use by such
Initial Purchaser in connection with its solicitation of purchases of, or
offering of, the Securities. "Offering Memorandum" means, with respect to any
date or time referred to in this Agreement, the most recent offering memorandum
(whether the Preliminary Offering Memorandum or the Final Offering Memorandum,
or any amendment or supplement to either such document), including any exhibits
thereto and the documents incorporated by reference therein, which has been
prepared and delivered by the Company to the Initial Purchasers in connection
with their solicitation of purchases of, or offering of, the Securities.
All references in this Agreement to financial statements and schedules and
other information which are "contained," "included" or "stated" in the Offering
Memorandum (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
are incorporated by reference in the Offering Memorandum; and all references in
this Agreement to amendments or supplements to the Offering Memorandum shall be
deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), which is incorporated by
reference in the Offering Memorandum.
The holders of Securities will be entitled to the benefits of a
Registration Rights Agreement, in substantially the form attached hereto as
Exhibit C with such changes as shall be agreed to by the parties hereto (the
"Registration Rights Agreement"), pursuant to which the Company will file a
registration statement (the "Registration Statement") with the Commission
registering the Securities or the Exchange Notes and Exchange Debentures
referred to in the Registration Rights Agreement under the 1933 Act.
SECTION 1. Representations and Warranties.
2
<PAGE>
(a) Representations and Warranties by the Company. The Company represents
and warrants to each Initial Purchaser as of the date hereof and as of the
Closing Time referred to in Section 2(b) hereof, and agrees with each Initial
Purchaser as follows:
(i) Similar Offerings. The Company has not, directly or indirectly,
solicited any offer to buy or offered to sell, and will not, directly or
indirectly, solicit any offer to buy or offer to sell, in the United States or
to any United States citizen or resident, any security which is or would be
integrated with the sale of the Securities in a manner that would require the
Securities to be registered under the 1933 Act.
(ii) Offering Memorandum. The Offering Memorandum does not, and at
the Closing Time will not, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that this representation, warranty and agreement shall not apply to
statements in or omissions from the Offering Memorandum made in reliance upon
and in conformity with written information furnished to the Company in writing
by any Initial Purchaser through Merrill Lynch expressly for use in the Offering
Memorandum.
(iii) Independent Accountants. The accountants who certified certain
of the financial statements and supporting schedules of the Company and its
subsidiaries, of Harris Chemical Group, Inc. and its subsidiaries ("Harris") and
of Harris Chemical Australia Pty Ltd. & its controlled entities ("Penrice")
included in the Offering Memorandum are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning of
Regulation S-X under the 1933 Act.
(iv) Financial Statements. The financial statements, together with
the related schedules and notes, of the Company and its subsidiaries included in
the Offering Memorandum present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved, except as indicated therein or in the notes thereto and,
except that data with respect to unaudited interim periods do not contain
footnote disclosure and reflect adjustments which the management of the Company
considers necessary to present fairly in all material respects the financial
information for such periods. The financial statements, together with the
related schedules and notes, of Harris included in the Offering Memorandum
present fairly in all material respects the financial position of Harris and its
consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of Harris and its consolidated
subsidiaries for the periods specified; said financial statements have been
prepared in conformity with GAAP applied on a consistent basis throughout the
periods involved, except as indicated therein or in the notes thereto and,
except that data with respect to unaudited interim periods do not contain
footnote disclosure and reflect adjustments which the management of the Company
considers necessary to present fairly in all material respects the financial
information for such periods. The financial statements, together with the
related schedules and notes, of Penrice included in the Offering Memorandum
present fairly the financial position of Penrice and its controlled entities
3
<PAGE>
at the dates indicated and the statement of operations, stockholders' equity and
cash flows of Penrice and its controlled entities for the periods specified;
said financial statements have been prepared in conformity with Australian GAAP
applied on a consistent basis throughout the periods involved, except as
indicated therein or in the notes thereto and, except that data with respect to
unaudited interim periods do not contain footnote disclosure and reflect
adjustments which the management of the Company considers necessary to present
fairly in all material respects the financial information for such periods. The
selected historical consolidated financial data included in the Offering
Memorandum present fairly the particular information shown therein and have been
compiled on a basis consistent with that of the audited financial statements
included in the Offering Memorandum. The pro forma financial statements and
other pro forma financial information of the Company and its subsidiaries and
the related notes thereto included in the Offering Memorandum present fairly in
all material respects the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Offering Memorandum, except as
otherwise stated therein or contemplated thereby, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries which are material with
respect to the Company and its subsidiaries considered as one enterprise, other
than those in the ordinary course of business, and (C) except for regular
quarterly dividends on its outstanding common stock, there has been no dividend
or distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Offering Memorandum and to enter into and perform its obligations under this
Agreement and the Registration Rights Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation S-X) (each a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly organized and
is validly existing as a corporation or partnership, as the case may be, in good
standing under the laws of the jurisdiction of its incorporation or
organization, as the case may be, has corporate or partnership, as the case may
be, power and authority to own, lease and operate its properties and to conduct
its business as
4
<PAGE>
described in the Offering Memorandum and is duly qualified as a foreign
corporation or partnership, as the case may be, to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect; except as otherwise disclosed in the
Offering Memorandum or in Schedule C hereto, all of the issued and outstanding
capital stock of each corporate Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company, directly
or through subsidiaries, and all of the partnership interests of each
partnership Subsidiary have been duly authorized and validly issued and are
owned by the Company, directly or through subsidiaries, in each case free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock or partnership
interests, as the case may be, of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary. The only
Subsidiaries of the Company are listed on Schedule C hereto.
(viii) Capitalization. The shares of outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and non-
assessable; none of the outstanding shares of capital stock of the Company was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Authorization of Registration Rights Agreement. The
Registration Rights Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws relating to or affecting enforcement of creditors' rights generally, or by
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law), and except that rights to indemnification and
contribution thereunder may be limited by applicable law.
(xi) Authorization of the Indenture. The Indenture has been duly
authorized by the Company and, at the Closing Time, will have been duly executed
and delivered by the Company and will constitute a valid and binding agreement
of the Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
(xii) Authorization of the Securities. The Securities have been duly
authorized and, at the Closing Time, will have been duly executed by the Company
and, when authenticated in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor, will constitute valid
and binding obligations of the Company,
5
<PAGE>
enforceable against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws relating to or affecting enforcement of
creditors' rights generally, or by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law), and will
be in the form contemplated by, and entitled to the benefits of, the Indenture.
(xiii) Description of the Securities, the Indenture and the
Registration Rights Agreement. The Securities, the Indenture and the
Registration Rights Agreement will conform in all material respects to the
respective statements relating thereto contained in the Offering Memorandum and
will be in substantially the respective forms previously delivered to the
Initial Purchasers.
(xiv) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or partnership
agreement, as the case may be, or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is subject
(collectively, "Agreements and Instruments") except for such defaults as are
disclosed in the Offering Memorandum or that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this Agreement,
the Registration Rights Agreement, the Indenture and the Securities and any
other agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated hereby or
thereby or in the Offering Memorandum and the consummation of the transactions
contemplated herein, therein and in the Offering Memorandum (including the
issuance and sale of the Securities, the use of the proceeds from the sale of
the Securities as described in the Offering Memorandum under the caption "Use of
Proceeds" and the filing of the Registration Statement) and compliance by the
Company with its obligations hereunder, and under the Registration Rights
Agreement, the Indenture and the Securities have been duly authorized by all
necessary corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or a Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, the
Agreements and Instruments (except for such conflicts, breaches, defaults or
Repayment Events or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or bylaws or partnership agreement, as the case may
be, of the Company or any of its subsidiaries or, to the best of the Company's
knowledge, any applicable law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries or any
of their assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness of the Company or any of its subsidiaries (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Company
or any of its subsidiaries.
6
<PAGE>
(xv) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its subsidiaries principal
suppliers, manufacturers, customers or contractors, which, in either case, would
reasonably be expected to result in a Material Adverse Effect.
(xvi) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any of its subsidiaries which
would, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect, or which would, individually or in the aggregate,
reasonably be expected to materially and adversely affect the properties and
assets of the Company and its subsidiaries considered as one enterprise or the
consummation of this Agreement or the Registration Rights Agreement or the
performance by the Company of its obligations hereunder or thereunder; the
aggregate of all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their respective
property or assets is the subject which are not described in the Offering
Memorandum, including ordinary routine litigation incidental to the business,
would not reasonably be expected to result in a Material Adverse Effect.
(xvii) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, and neither
the Company nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict or invalidity or inadequacy, singly or in the
aggregate, would reasonably be expected to result in a Material Adverse Effect.
(xviii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency (other than under state
securities laws, or the 1933 Act and the rules and regulations thereunder with
respect to the Registration Rights Agreement and the transactions contemplated
thereunder) is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions contemplated by
this Agreement.
(xix) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, except where the failure to so
possess would not have a Material Adverse Effect; the Company and its
subsidiaries
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are in compliance with the terms and conditions of all such Governmental
Licenses, except as disclosed in the Offering Memorandum or where the failure to
so comply would not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and effect, except
as disclosed in the Offering Memorandum or when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, would reasonably be expected to result in a
Material Adverse Effect.
(xx) Title to Property. The Company and its subsidiaries have good and
marketable title to all material real property owned by the Company and its
subsidiaries and good title to all material personal property owned by them, in
each case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a) are
described in the Offering Memorandum or (b) would not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse Effect; and
all of the leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or any
of its subsidiaries holds properties described in the Offering Memorandum, are
in full force and effect, and neither the Company nor any of its subsidiaries
has any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any of its subsidiaries under any
of the leases or subleases mentioned above, or affecting or questioning the
rights of the Company or any of its subsidiaries to the continued possession of
the leased or subleased premises under any such lease or sublease, except such
as would not, singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
(xxi) Environmental Laws. Except as described in the Offering
Memorandum and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is
in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental
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body or agency, against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or Environmental Laws.
(xxii) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Offering Memorandum will not
be, an "investment company" as such term is defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xxiii) Rule 144A Eligibility. The Securities are not, and at the
Closing Time will not be, of the same class as securities listed on a national
securities exchange registered under Section 6 of the 1934 Act, or quoted in a
U.S. automated interdealer quotation system.
(xxiv) No General Solicitation. None of the Company, its affiliates,
as such term is defined in Rule 501(b) under the 1933 Act ("Affiliates"), or any
person acting on its or any of their behalf (other than the Initial Purchasers,
as to whom the Company makes no representation) has engaged or will engage, in
connection with the offering of the Securities, in any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the
1933 Act.
(xxv) No Registration Required. Subject to compliance by the Initial
Purchasers with the representations and warranties set forth in Section 2 and
the procedures set forth in Section 6 hereof, it is not necessary in connection
with the offer, sale and delivery of the Securities to the Initial Purchasers
and to each Subsequent Purchaser in the manner contemplated by this Agreement
and the Offering Memorandum to register the Securities under the 1933 Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as amended.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Initial Purchasers or to
counsel for the Initial Purchasers shall be deemed a representation and warranty
by the Company to each Initial Purchaser as to the matters covered thereby.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Initial Purchaser, severally and not jointly, and each
Initial Purchaser, severally and not jointly, agrees to purchase from the
Company, at the price set forth in Schedule B, the aggregate principal amount of
Securities set forth in Schedule A opposite the name of such Initial Purchaser,
plus any additional principal amount of Securities which such Initial Purchaser
may become obligated to purchase pursuant to the provisions of Section 11
hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the office of Brown &
Wood llp, One World Trade Center, New York, New York 10048, or at such other
place as shall be agreed upon by the Initial Purchasers and the Company, at 9:00
A.M. on the third business day after the date hereof (unless postponed in
accordance with the provisions of Section 11), or such other time not later than
ten
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business days after such date as shall be agreed upon by the Initial Purchasers
and the Company (such time and date of payment and delivery being herein called
the "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Initial Purchasers for the respective accounts of the Initial Purchasers of
the Securities to be purchased by them. Merrill Lynch, individually and not as
representative of the Initial Purchasers, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by any
Initial Purchaser whose funds have not been received by the Closing Time, but
such payment shall not relieve such Initial Purchaser from its obligations
hereunder. The certificates representing the Securities shall be registered in
the name of Cede & Co. pursuant to the DTC Agreement and shall be made available
for examination and packaging by the Initial Purchasers in The City of New York
not later than 10:00 A.M. on the last business day prior to the Closing Time.
(c) Qualified Institutional Buyer. Each Initial Purchaser severally and not
jointly represents and warrants to, and agrees with, the Company that it is a
"qualified institutional buyer" within the meaning of Rule 144A under the 1933
Act (a "Qualified Institutional Buyer") and an "accredited investor" within the
meaning of Rule 501(a) under the 1933 Act.
(d) Denominations; Registration. Certificates for the Securities shall be
in such denominations ($1,000 or integral multiples thereof) and registered in
such names as the Initial Purchasers may request in writing at least one full
business day before the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
Initial Purchaser as follows:
(a) Offering Memorandum. The Company, as promptly as possible, will furnish
to each Initial Purchaser, without charge, such number of copies of the
Preliminary Offering Memorandum, the Final Offering Memorandum and any
amendments and supplements thereto and documents incorporated by reference
therein as such Initial Purchaser may reasonably request prior to the Placement
Completion Date (as defined below).
(b) Notice and Effect of Material Events. The Company will promptly notify
each Initial Purchaser, and confirm such notice in writing, of (x) any filing
made by the Company of information relating to the offering of the Securities
with any securities exchange or any other regulatory body in the United States
or any other jurisdiction, and (y) prior to the Placement Completion Date, any
material changes in or affecting, or any developments involving prospective
material changes in or affecting, the condition, financial or otherwise, or the
earnings or business of the Company and its subsidiaries which (i) make any
statement in the Offering Memorandum false or misleading or (ii) are not
disclosed in the Offering Memorandum. In such event or if during such time any
event shall occur as a result of which it is necessary, in the reasonable
opinion of the Company, its counsel, the Initial Purchasers or counsel for the
Initial Purchasers, to amend or supplement the Final Offering Memorandum in
order that the Final Offering Memorandum not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances then
existing, the Company will forthwith amend or supplement the Final
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Offering Memorandum by preparing and furnishing to each Initial Purchaser an
amendment or amendments of, or a supplement or supplements to, the Final
Offering Memorandum (in form and substance satisfactory in the reasonable
opinion of counsel for the Initial Purchasers) so that, as so amended or
supplemented, the Final Offering Memorandum will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing at the time
it is delivered to a Subsequent Purchaser, not misleading.
(c) Amendment to Offering Memorandum and Supplements. The Company will
advise each Initial Purchaser promptly of any proposal to amend or supplement
the Offering Memorandum and will not effect such amendment or supplement without
the consent of the Initial Purchasers. Neither the consent of the Initial
Purchasers, nor the Initial Purchaser's delivery of any such amendment or
supplement, shall constitute a waiver of any of the conditions set forth in
Section 5 hereof.
(d) Qualification of Securities for Offer and Sale. The Company will use
its reasonable best efforts, in cooperation with the Initial Purchasers, to
qualify the Securities for offering and sale under the applicable securities
laws of such jurisdictions as the Initial Purchasers may designate and will
maintain such qualifications in effect as long as required for the sale of the
Securities; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(e) Rating of Securities. The Company shall take all reasonable action
necessary to enable Standard & Poor's Ratings Group, a division of The McGraw-
Hill Companies, Inc. ("S&P"), and Moody's Investors Service, Inc. ("Moody's") to
provide their respective credit ratings of the Securities.
(f) DTC. The Company will cooperate with the Initial Purchasers and use its
reasonable best efforts to permit the Securities to be eligible for clearance
and settlement through the facilities of DTC.
(g) Use of Proceeds. The Company will use the proceeds received by it from
the sale of the Securities in the manner specified in the Offering Memorandum
under "Use of Proceeds".
(h) Restriction on Sale of Securities. During a period of nine days from
the date of the Offering Memorandum, the Company will not, without the prior
written consent of Merrill Lynch, directly or indirectly, issue, sell, offer or
agree to sell, grant any option for the sale of, or otherwise dispose of, any
other debt securities of the Company or securities of the Company that are
convertible into, or exchangeable for, the Securities or such other debt
securities.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including (i) the preparation, printing
and any filing of the Offering Memorandum (including financial statements and
any schedules or exhibits and any
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document incorporated therein by reference) and of each amendment or supplement
thereto, (ii) the preparation, reproduction and delivery to the Initial
Purchasers of this Agreement, any Agreement Among Initial Purchasers, the
Indenture and such other documents as may be required in connection with the
offering, purchase, sale and delivery of the Securities, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the Initial
Purchasers, including any charges of DTC in connection therewith; (iv) the fees
and disbursements of the Company's counsel, accountants and other advisors, (v)
the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(d) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Initial Purchasers in connection therewith
and in connection with the preparation of the Blue Sky Survey, any supplement
thereto and any Legal Investment Survey, (vi) the fees and expenses of the
Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities, and (vii) any fees payable in
connection with the rating of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Initial Purchasers in accordance with the provisions of Section 5 or Section
10(a)(i) hereof, the Company shall reimburse the Initial Purchasers for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers' Obligations. The obligations
of the several Initial Purchasers hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Opinion of Counsel for Company. At the Closing Time, the Initial
Purchasers shall have received the favorable opinions, dated as of the Closing
Time, of (i) Kirkland & Ellis (a partnership including professional
corporations), counsel for the Company, in form and substance reasonably
satisfactory to counsel for the Initial Purchasers, to the effect set forth in
Exhibit A hereto and (ii) Marschall I. Smith, Senior Vice President and General
Counsel of the Company, in form and substance reasonably satisfactory to counsel
for the Initial Purchasers, to the effect set forth in Exhibit B hereto.
(b) Opinion of Counsel for Initial Purchasers. At the Closing Time, the
Initial Purchasers shall have received the favorable opinion, dated as of the
Closing Time, of Brown & Wood llp, counsel for the Initial Purchasers, with
respect to the matters set forth in (i) (1) (with respect to corporate existence
and good standing only), (3) through (5), inclusive, (6) (with respect to the
information under the headings "Description of Notes and Debentures" and
"Exchange Offer; Registration Rights") and (ii) the last paragraph on page 5 of
Exhibit A hereto. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the State of
New York, the federal law of the United States and the General Corporation Law
of the State of Delaware, upon the opinions of counsel satisfactory to the
Initial Purchasers. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
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(c) Officers' Certificate. At the Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Offering Memorandum, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the Initial
Purchasers shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of the Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as though
expressly made at and as of the Closing Time, and (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time.
(d) Accountant's Comfort Letters. At the time of the execution of this
Agreement, the Initial Purchasers shall have received from Ernst & Young LLP,
PricewaterhouseCoopers LLP and Arthur Andersen, Chartered Accountants letters,
each dated such date, in form and substance reasonably satisfactory to the
Initial Purchasers, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to Initial Purchasers with respect to
the financial statements and certain financial information contained in the
Offering Memorandum.
(e) Bring-down Comfort Letter. At the Closing Time, the Initial Purchasers
shall have received from Ernst & Young LLP, PricewaterhouseCoopers LLP and
Arthur Andersen, Chartered Accountants letters, each dated as of the Closing
Time, to the effect that they reaffirm the statements made in the letters
furnished pursuant to subsection (d) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to the
Closing Time.
(f) Maintenance of Rating. At the Closing Time, the Securities shall be
rated at least Baa2 by Moody's and BBB by S&P, and the Company shall have
delivered to the Initial Purchasers a letter dated the Closing Time, from each
such rating agency, or other evidence reasonably satisfactory to the Initial
Purchasers, confirming that the Securities have been assigned such ratings; and
since the date of this Agreement, there shall not have occurred a downgrading in
the rating assigned to the Securities or any of the Company's other securities
by any nationally recognized securities rating agency, and no such securities
rating agency shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Securities or any
of the Company's other securities.
(g) Registration Rights Agreement. At the Closing Time, the Registration
Rights Agreement shall have been fully executed and delivered by the Company.
(h) Additional Documents. At the Closing Time, counsel for the Initial
Purchasers shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the
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Company in connection with the issuance and sale of the Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the
Initial Purchasers and counsel for the Initial Purchasers.
(i) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Initial Purchasers by notice to the Company
at any time at or prior to the Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Subsequent Offers and Resales of the Securities.
(a) Offer and Sale Procedures. Each of the Initial Purchasers and the
Company hereby establish and agree to observe the following procedures in
connection with the offer and sale of the Securities:
(i) Offers and Sales only to Qualified Institutional Buyers. Offers
and sales of the Securities will be made only by the Initial Purchasers or
Affiliates thereof qualified to do so in the jurisdictions in which such offers
or sales are made. Each such offer or sale shall only be made to persons whom
the offeror or seller, or any person acting on behalf of the offeror or seller,
reasonably believes to be Qualified Institutional Buyers.
(ii) No General Solicitation. The Securities will be offered by
approaching prospective Subsequent Purchasers on an individual basis. No general
solicitation or general advertising (within the meaning of Rule 502(c) under the
1933 Act) will be used in the United States in connection with the offering of
the Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Subsequent Purchaser of a Security acting as a fiduciary for one or more third
parties, in connection with an offer and sale to such purchaser pursuant to
clause (a) above, each such third party shall, in the judgment of the applicable
Initial Purchaser, be a Qualified Institutional Buyer.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser will
take reasonable steps to inform persons acquiring Securities from such Initial
Purchaser that the Securities (A) have not been and will not be registered under
the 1933 Act, (B) are being sold to them without registration under the 1933 Act
in reliance on Rule 144A or in accordance with another exemption from
registration under the 1933 Act, as the case may be, and (C) may not be offered,
sold or otherwise transferred prior to the earlier of (x) the date when such
Securities can be sold pursuant to Rule 144 under the 1933 Act without any
limitations under clauses (c), (e), (f) and (h) of Rule 144 and (y) the date
which is two years after the later of the original issuance date thereof and the
last date on which the Company or any "affiliate" of the Company was the owner
of such Securities (or any predecessor Securities), except (1) to the Company or
any subsidiary thereof, (2) to the Initial Purchasers, (3) pursuant to a
registration statement which has been declared effective under the 1933 Act, (4)
as long as the Securities are eligible for resale pursuant to Rule 144A, to a
person whom the seller reasonably believes is a Qualified
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Institutional Buyer that is purchasing such Securities for its own account or
for the account of a Qualified Institutional Buyer to whom notice is given that
the offer, sale or transfer is being made in reliance on Rule 144A or (5)
pursuant to any other available exemption from the registration requirements of
the 1933 Act.
(v) Restrictions on Transfer. The transfer restrictions and the other
provisions set forth in the Officers' Certificate (as defined in the Indenture)
establishing the form and terms of the Securities pursuant to Sections 2.1 of
the Indenture, including the legend required thereby, shall apply to the
Securities except as otherwise agreed by the Company and the Initial Purchasers.
Following the sale of the Securities by the Initial Purchasers to Subsequent
Purchasers pursuant to the terms hereof, the Initial Purchasers shall not be
liable or responsible to the Company for any losses, damages or liabilities
suffered or incurred by the Company, including any losses, damages or
liabilities under the 1933 Act, arising from or relating to any resale or
transfer of any Security.
(vi) Delivery of Offering Memorandum. Each Initial Purchaser will
deliver to each purchaser of the Securities from such Initial Purchaser, in
connection with its original distribution of the Securities, a copy of the
Offering Memorandum, as amended and supplemented at the date of such delivery.
(vii) Placement Completion Date. The Initial Purchasers will notify
the Company in writing as soon as possible, but in any event within five
business days, after they have completed the placement of the Securities (the
"Placement Completion Date").
(b) Covenants of the Company. The Company covenants with each Initial
Purchaser as follows:
(i) In connection with the original distribution of the Securities,
the Company agrees that, prior to any offer or resale of the Securities by the
Initial Purchasers, the Initial Purchasers and counsel for the Initial
Purchasers shall have the right to make reasonable inquiries into the business
of the Company and its subsidiaries. The Company also agrees to provide answers
to each prospective Subsequent Purchaser of Securities who so requests
concerning the Company and its subsidiaries (to the extent that such information
is available or can be acquired and made available to prospective Subsequent
Purchasers without unreasonable effort or expense and to the extent the
provision thereof is not prohibited by applicable law) and the terms and
conditions of the offering of the Securities, as provided in the Offering
Memorandum.
(ii) Integration. Except following the effectiveness of the
Registration Statement, the Company agrees that it will not and will cause its
Affiliates not to make any offer or sale of securities of the Company of any
class if, as a result of the doctrine of "integration" referred to in Rule 502
under the 1933 Act, such offer or sale would render invalid (for the purpose of
(i) the sale of the Securities by the Company to the Initial Purchasers, (ii)
the resale of the Securities by the Initial Purchasers to Subsequent Purchasers
or (iii) the resale of the Securities by such Subsequent Purchasers to others)
the exemption from the registration
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requirements of the 1933 Act provided by Section 4(2) thereof or by Rule 144A
thereunder or otherwise.
(iii) Rule 144A Information. The Company agrees that, in order to
render the Securities eligible for resale pursuant to Rule 144A under the 1933
Act, until the earlier of (i) the second anniversary of the original issuance
date of the Securities and (ii) the date when no Securities remain outstanding,
it will make available, upon request, to any holder of Securities or prospective
purchasers of Securities the information specified in Rule 144A(d)(4), unless
the Company furnishes information to the Commission pursuant to Section 13 or
15(d) of the 1934 Act (such information, whether made available to holders or
prospective purchasers or furnished to the Commission, is herein referred to as
"Additional Information").
(iv) Restriction on Repurchases. Until the expiration of two years
after the original issuance of the Securities, the Company will not, and will
cause its Affiliates not to, purchase or agree to purchase or otherwise acquire
any Securities which are "restricted securities" (as such term is defined under
Rule 144(a)(3) under the 1933 Act), whether as beneficial owner or otherwise
(except as agent acting as a securities broker on behalf of and for the account
of customers in the ordinary course of business in unsolicited broker's
transactions) unless, immediately upon any such purchase, the Company or any
Affiliate shall submit such Securities to the Trustee for cancellation.
SECTION 7. Indemnification.
(a) Indemnification of Initial Purchasers. The Company agrees to indemnify
and hold harmless each Initial Purchaser and each person, if any, who controls
any Initial Purchaser within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Offering Memorandum or
the Final Offering Memorandum (or any amendment or supplement thereto) or in any
Additional Information, or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 7(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing to defend or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon
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any such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above; provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Initial Purchaser through Merrill Lynch expressly for use in the
Offering Memorandum (or any amendment or supplement thereto) and provided,
further, that as to the Preliminary Offering Memorandum this indemnity agreement
shall not inure to the benefit of any Initial Purchaser or any person
controlling that Initial Purchaser on account of any loss, claim, damage,
liability or action arising from the sale of Securities to any person by that
Initial Purchaser if that Initial Purchaser failed to send or give a copy of the
Final Offering Memorandum, as the same may be amended or supplemented, to that
person and the untrue statement or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact in such Preliminary
Offering Memorandum was corrected in said amended or supplemented Final Offering
Memorandum and the delivery thereof would have constituted a complete defense to
the claim of that person, unless such failure resulted from non-compliance by
the Company with Section 3(a). For purposes of the second proviso to the
immediately preceding sentence, the term Final Offering Memorandum shall not be
deemed to include the documents incorporated by reference therein, and no
Initial Purchaser shall be obligated to send or give any supplement or amendment
to any document incorporated by reference in a Preliminary Offering Memorandum
or supplement thereto or the Final Offering Memorandum to any person. The
foregoing indemnity agreement is in addition to any liability which the Company
may otherwise have to any Initial Purchaser or to any controlling person of that
Initial Purchaser.
(b) Indemnification of Company, Directors and Officers. Each Initial
Purchaser severally agrees to indemnify and hold harmless the Company, its
directors, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Offering Memorandum in reliance upon and in conformity with written information
furnished to the Company by such Initial Purchaser through Merrill Lynch
expressly for use in the Offering Memorandum (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 7(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 7(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the
17
<PAGE>
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 7 or Section 8 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 7(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 45 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 8. Contribution. If the indemnification provided for in Section 7
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Initial Purchasers on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Initial Purchasers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Initial Purchasers on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Initial
Purchasers, bear to the aggregate initial offering price of the Securities.
The relative fault of the Company on the one hand and the Initial
Purchasers on the other hand shall be determined by reference to, among other
things, whether any such untrue or
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<PAGE>
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or by the
Initial Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 8. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing to defend or defending against any litigation,
or any investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Initial Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Initial
Purchaser, and each director of the Company, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
The Initial Purchasers' respective obligations to contribute pursuant to this
Section 8 are several in proportion to the principal amount of Securities set
forth opposite their respective names in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Initial Purchaser or controlling person, or by or on behalf
of the Company, and shall survive delivery of the Securities to the Initial
Purchasers.
SECTION 10. Termination of Agreement.
(a) Termination; General. The Initial Purchasers may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing Time
(i) if there has been, since the
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<PAGE>
time of execution of this Agreement or since the respective dates as of which
information is given in the Offering Memorandum, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the reasonable judgment of the Initial Purchasers,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities has been suspended or
materially limited by the Commission or the New York Stock Exchange, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the NASDAQ National Market System has been suspended or materially limited
(other than in accordance with New York Stock Exchange Rules 80A and 80B or any
similar rules of the American Stock Exchange or the NASDAQ National Market
System regarding limitations on trading during significant market declines and
extraordinary market volatility), or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 7 and
8 shall survive such termination and remain in full force and effect.
SECTION 11. Default By One or More of The Initial Purchasers. If one or
more of the Initial Purchasers fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Initial Purchasers shall have the right, but not
the obligation, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Initial Purchasers, or any other Initial Purchasers, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Initial Purchasers shall not have completed such arrangements within such 24-
hour period, then this Agreement shall terminate without liability on the part
of any non-defaulting Initial Purchaser.
No action pursuant to this Section shall relieve any defaulting Initial
Purchaser from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Initial Purchasers or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Offering Memorandum or in any other
documents or arrangements.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard
20
<PAGE>
form of telecommunication. Notices to the Initial Purchasers shall be directed
to Merrill Lynch at Sears Tower Building, Suite 5500, Chicago, Illinois 60606,
attention of Janet Mitchell; notices to the Company shall be directed to it at
2100 Sanders Road, Northbrook, Illinois 60062-6146, attention of the Corporate
Secretary.
SECTION 13. Parties. This Agreement shall each inure to the benefit of and
be binding upon the Initial Purchasers and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Initial Purchasers and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 7 and 8
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Initial Purchasers and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Initial Purchaser shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
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<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
IMC GLOBAL INC.
By: /s/ E. Paul Dunn, Jr.
-----------------------------------
Name: E. Paul Dunn, Jr.
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
J.P. MORGAN SECURITIES INC.
CHASE SECURITIES INC.
SALOMON BROTHERS INC
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Janet Mitchell
----------------------------------
Authorized Signatory
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<PAGE>
SCHEDULE A
Principal Principal
Amount Amount
of of
Notes Debentures
------------ ------------
Name of Initial Purchaser
- -------------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.............. $100,000,000 $ 50,000,000
J.P. Morgan & Co. Inc.................... 60,000,000 30,000,000
Chase Securities Inc..................... 20,000,000 10,000,000
Salomon Brothers Inc..................... 20,000,000 10,000,000
------------ ------------
Total.................................... $100,000,000 $200,000,000
============ ============
Sch-A
<PAGE>
SCHEDULE B
IMC GLOBAL INC.
$200,000,000
6-1/2% Notes due 2003 (the "Notes")
$100,000,000
7-3/8% Debentures due 2018 (the "Debentures")
The Notes
- ---------
1. The initial offering price of the Notes shall be 99.614% of the
principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Initial Purchasers for the Notes
shall be 99.014% of the principal amount thereof.
3. The interest rate on the Notes shall be 6-1/2% per annum.
The Debentures
- --------------
1. The initial offering price of the Debentures shall be 98.995% of the
principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Initial Purchasers for the
Debentures shall be 98.12% of the principal amount thereof.
3. The interest rate on the Debentures shall be 7-3/8% per annum.
Sch-B
<PAGE>
SCHEDULE C
List of Significant Subsidiaries
--------------------------------
GSL corporation*,
a Delaware corporation
Harris Chemical Europe Limited,
an England corporation
Harris Chemical North America, Inc.,
a Delaware corporation
IMC AgriBusiness Inc.,
a Delaware corporation
IMC-Agrico Company,
a Delaware general partnership
IMC Central Canada Potash Inc.,
a Delaware corporation
IMC Chemicals Inc.*,
a Delaware corporation
IMC Global Operations Inc.,
a Delaware corporation
IMC Global Potash Holdings Inc.,
a Delaware corporation
IMC Inorganic Chemicals Inc.,
a Delaware corporation
IMC Kalium Carlsbad Potash Company,
a Delaware corporation
IMC Kalium Ltd.,
a Delaware corporation
______________________________
* Common stock has been pledged for the benefit of 10.25% Senior Secured
Discount Notes due July 15, 2001 issued by Harris Chemical North America, Inc.
and 8.5% Senior Secured Notes due July 15, 2000 issued by Sifto Canada Inc.
Sch-C-1
<PAGE>
IMC Kalium Ogden Corp.,
a Delaware corporation
IMC Salt Inc.,
a Delaware corporation
International Minerals & Chemical (Canada) Global Limited,
a Canada (Federal) corporation
KCL Holdings, Inc.,
a Delaware corporation
NAMSCO Inc.*,
a Delaware corporation
Phosphate Resource Partners Limited Partnership,
a Delaware limited partnership
Sifto Canada Inc.,
an Ontario corporation
The Vigoro Corporation,
a Delaware corporation
- ------------------
* Common stock has been pledged for the benefit of 10.25% Senior Secured
Discount Notes due July 15, 2001 issued by Harris Chemical North America, Inc.
and 8.5% Senior Secured Notes due July 15, 2000 issued by Sifto Canada Inc.
Sch-C-2
<PAGE>
EXHIBIT 4.11
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of August 11, 1998 between IMC GLOBAL INC., a Delaware
corporation (the "Company"), and the Initial Purchasers (as hereinafter
defined).
This Agreement is made pursuant to the Purchase Agreement dated August
6, 1998 (the "Purchase Agreement"), between the Company, as issuer of the 6-1/2%
Notes due 2003 (the "Notes") and 7-3/8% Debentures due 2018 (the "Debentures"),
and the Initial Purchasers, which provides for, among other things, the sale by
the Company to the Initial Purchasers of the aggregate principal amounts of
Notes and Debentures specified therein. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of Section
3 hereof.
"Affiliate" has the same meaning as given to that term in Rule 405 under
the Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(t)
hereof.
"Business Day" means any day other than a Saturday, a Sunday, or a day on
which banking institutions in New York, New York are authorized or required by
law or executive order to remain closed.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Debentures" shall have the meaning set forth in the preamble to this
Agreement.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
<PAGE>
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Debentures" shall mean the 7-3/8% Debentures due 2018 issued by
the Company under the Indenture containing terms identical in all material
respects to the Debentures (except that (i) interest thereon shall accrue from
the last date on which interest was paid or duly provided for on the Debentures
or, if no such interest has been paid, from the date of their original issue,
(ii) they will not contain terms with respect to transfer restrictions under the
Securities Act and (iii) they will not provide for any Special Interest Premium
thereon) to be offered to Holders of Debentures in exchange for Debentures
pursuant to the Exchange Offer.
"Exchange Notes" shall mean the 6-1/2% Notes due 2003 issued by the Company
under the Indenture containing terms identical in all material respects to the
Notes (except that (i) interest thereon shall accrue from the last date on which
interest was paid or duly provided for on the Notes or, if no such interest has
been paid, from the date of their original issue, (ii) they will not contain
terms with respect to transfer restrictions under the Securities Act and (iii)
they will not provide for any Special Interest Premium thereon) to be offered to
Holders of Notes in exchange for Notes pursuant to the Exchange Offer.
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Notes and Registrable Debentures for a like
amount of Exchange Notes and Exchange Debentures pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a) hereof.
"Holder" shall mean any Initial Purchaser, for so long as it owns any
Registrable Notes or Registrable Debentures, and each of its successors, assigns
and direct and indirect transferees who become registered owners of Registrable
Notes or Registrable Debentures, as the case may be, under the Indenture.
"Indenture" shall mean the Indenture, dated as of August 1, 1998, between
the Company, as issuer, and The Bank of New York, as trustee, as the same may be
amended or supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" shall mean Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, J.P. Morgan Securities Inc., Chase Securities Inc.
and Salomon Brothers Inc.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
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<PAGE>
"Issue Date" shall mean August 4, 1998, the date of delivery of the Notes
and the Debentures from the Company to the Initial Purchasers.
"Issuer" shall mean the Company as defined in the preamble hereto.
"Majority Holders" shall mean, as the context requires, the Holders of a
majority of the aggregate principal amount of outstanding Notes and Exchange
Notes or the Holders of a majority of the aggregate principal amount of
outstanding Debentures and Exchange Debentures, as the case may be.
"Notes" shall have the meaning set forth in the preamble to this Agreement.
"Participating Broker-Dealer" shall have the meaning set forth in Section
3(t) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability corporation, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes or Registrable Debentures covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all documents
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
"Registrable Debentures" shall mean the Debentures; provided, however, that
any Debentures shall cease to be Registrable Debentures when any of the
following occurs: (i) a Registration Statement with respect to such Debentures
for the exchange or resale thereof shall have been declared effective under the
Securities Act and such Debentures shall have been disposed of pursuant to such
Registration Statement, (ii) such Debentures shall have been sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act or are eligible to be sold without restriction as
contemplated by Rule 144(k), (iii) such Debentures shall have ceased to be
outstanding or (iv) no Shelf Registration Event has occurred and the Exchange
Offer has concluded in accordance with the provisions hereof.
"Registrable Notes" shall mean the Notes; provided, however, that any Notes
shall cease to be Registrable Notes when any of the following occurs: (i) a
Registration Statement with respect to such Notes for the exchange or resale
thereof shall have been declared effective under the Securities Act and such
Notes shall have been disposed of pursuant to such Registration Statement, (ii)
such Notes shall have been sold to the public pursuant to Rule 144(k) (or any
similar provision then in force, but not Rule 144A) under the Securities Act or
are eligible to be
3
<PAGE>
sold without restriction as contemplated by Rule 144(k), (iii) such Notes shall
have ceased to be outstanding or (iv) no Shelf Registration Event has occurred
and the Exchange Offer has concluded in accordance with the provisions hereof.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Notes or
Registrable Debentures in accordance with the rules and regulations of the NASD,
(ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of one
counsel for all underwriters and Holders as a group in connection with blue sky
qualification of any of the Exchange Notes, Exchange Debentures, Registrable
Notes or Registrable Debentures) and compliance with the rules of the NASD,
(iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any Prospectus
and any amendments or supplements thereto, and in preparing or assisting in
preparing, printing and distributing any underwriting agreements, securities
sales agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) the fees and
disbursements of counsel for the Company and of the independent certified public
accountants of the Company and its subsidiaries, including the expenses of any
"cold comfort" letters required by or incident to the performance of and
compliance with this Agreement, (vi) the reasonable fees and expenses of the
Trustee and its counsel and any exchange agent or custodian, and (vii) the
reasonable fees and expenses of any special experts retained by the Company in
connection with any Registration Statement.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Notes, Exchange Debentures, Registrable
Notes or Registrable Debentures pursuant to the provisions of this Agreement,
and all amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to Section
2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section 2(b)
hereof.
"Shelf Registration Event Date" shall have the meaning set forth in Section
2(b) hereof.
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<PAGE>
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2(b) hereof which covers
all of the Registrable Notes and Registrable Debentures (except Registrable
Notes and Registrable Debentures which the Holders have elected not to include
in such Shelf Registration Statement or the Holders of which have not complied
with their obligations under the penultimate paragraph of Section 3 hereof or
under the penultimate sentence of Section 2(b) hereof) on an appropriate form
under Rule 415 under the Securities Act, or any similar rule that may be adopted
by the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all documents incorporated by
reference therein.
"Special Interest Premium" shall have the meaning set forth in Section 2(e)
hereof.
"TIA" shall have the meaning set forth in Section 3(k) hereof.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer. Except as set forth in Section 2(b) below, the
Company shall, for the benefit of the Holders, at the Company's cost, use its
reasonable best efforts to (i) file with the SEC within 90 calendar days after
the Issue Date an Exchange Offer Registration Statement on an appropriate form
under the Securities Act relating to the Exchange Offer, (ii) cause such
Exchange Offer Registration Statement to be declared effective under the
Securities Act by the SEC not later than the date which is 150 calendar days
after the Issue Date, (iii) keep such Exchange Offer Registration Statement
effective for not less than 30 calendar days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed to the
Holders and (iv) cause the Exchange Offer to be consummated within 180 calendar
days after the Issue Date. Promptly after the effectiveness of the Exchange
Offer Registration Statement, the Company shall commence the Exchange Offer, it
being the objective of such Exchange Offer to enable each Holder eligible and
electing to exchange Registrable Notes or Registrable Debentures for a like
principal amount of Exchange Notes or Exchange Debentures, respectively
(provided that such Holder (i) is not an Affiliate of the Company, (ii) is not a
broker-dealer tendering Registrable Notes or Registrable Debentures acquired
directly from the Company, (iii) acquires the Exchange Notes or the Exchange
Debentures, as applicable, in the ordinary course of such Holder's business and
(iv) has no arrangements or understandings with any Person to participate in the
Exchange Offer for the purpose of distributing the Exchange Notes or Exchange
Debentures) to transfer such Exchange Notes and/or such Exchange Debentures from
and after their receipt without any limitations or restrictions under the
Securities Act and under state securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
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(ii) keep the Exchange Offer open for acceptance for a period of not less
than 30 days after the date notice thereof is mailed to the Holders (or longer
if required by applicable law) (such period referred to herein as the "Exchange
Period");
(iii) utilize the services of the Depositary for the Exchange Offer with
respect to Notes and Debentures represented by a global certificate;
(iv) permit Holders to withdraw tendered Registrable Notes and Registrable
Debentures at any time prior to the close of business, New York City time, on
the last Business Day of the Exchange Period, by sending to the institution
specified in the notice to Holders, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the series and principal amount of
Registrable Notes and/or Registrable Debentures delivered for exchange, and a
statement that such Holder is withdrawing his election to have such Registrable
Notes and/or Registrable Debentures exchanged;
(v) notify each Holder that any Registrable Note or Registrable Debenture
not tendered by such Holder in the Exchange Offer will remain outstanding and
continue to accrue interest but will not retain any rights under this Agreement
(except in the case of the Initial Purchasers and Participating Broker-Dealers
as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to
the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Registrable Notes and Registrable Debentures
or portions thereof duly tendered and not validly withdrawn pursuant to the
Exchange Offer in accordance with the terms of the Exchange Offer Registration
Statement and letter of transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for cancellation
all Registrable Notes and Registrable Debentures or portions thereof so accepted
for exchange by the Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly
authenticate and deliver to each Holder, Exchange Notes of the same series equal
in principal amount to the principal amount of the Registrable Notes as are
surrendered by such Holder, and Exchange Debentures of the same series equal in
principal amount to the principal amount of the Registrable Debentures as are
surrendered by such Holder.
Interest on each Exchange Note and Exchange Debenture issued pursuant
to the Exchange Offer will accrue from the last date on which interest was paid
or duly provided for on the Registrable Note or Registrable Debenture
surrendered in exchange therefor or, if no interest has been paid on such
Registrable Note or such Registrable Debenture, from the Issue Date. To the
extent not prohibited by any law or applicable interpretation of the staff of
the SEC, the Company shall use reasonable best efforts to complete the Exchange
Offer as provided above, and shall comply with the applicable requirements of
the Securities Act, the Exchange Act and other applicable laws in connection
with the Exchange Offer. The Exchange Offer shall not be subject to any
conditions other than the conditions referred to in Section 2(b)(i) and (ii)
below
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<PAGE>
and those conditions that are customary in similar exchange offers. Each
Holder of Registrable Notes or Registrable Debentures who wishes to exchange
such Registrable Notes or Registrable Debentures for Exchange Notes or Exchange
Debentures in the Exchange Offer will be required to make certain customary
representations in connection therewith, including, in the case of any Holder,
representations that (i) it is not an Affiliate of the Company, (ii) it is not a
broker-dealer tendering Registrable Notes or Registrable Debentures acquired
directly from the Company, (iii) the Exchange Notes or Exchange Debentures to be
received by it are being acquired in the ordinary course of its business and
(iv) at the time of the Exchange Offer, it has no arrangements or understandings
with any Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes or the Exchange Debentures. The Company
shall inform the Initial Purchasers, after consultation with the Trustee, of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right to contact such Holders in order to
facilitate the tender of Registrable Notes or Registrable Debentures in the
Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Exchange Notes and Exchange Debentures held by
Participating Broker-Dealers, and the Company shall have no further obligation
to register the Registrable Notes or Registrable Debentures held by any Holder
pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. If (i) because of any change in law or in
currently prevailing interpretations thereof by the staff of the SEC, the
Company is not permitted to effect the Exchange Offer as contemplated by Section
2(a) hereof, (ii) the Exchange Offer is not consummated within 180 days after
the Issue Date or (iii) upon the request of any Initial Purchaser with respect
to any Registrable Notes or Registrable Debentures held by it, if such Initial
Purchaser is not permitted, in the reasonable opinion of Brown & Wood llp,
pursuant to applicable law or applicable interpretations of the staff of the
SEC, to participate in the Exchange Offer and thereby receive securities that
are freely tradeable without restriction under the Securities Act and applicable
blue sky or state securities laws (any of the events specified in (i), (ii) or
(iii) being a "Shelf Registration Event", and the date of occurrence thereof,
the "Shelf Registration Event Date"), then in addition to or in lieu of
conducting the Exchange Offer contemplated by Section 2(a), as the case may be,
the Company shall promptly notify the Holders in writing thereof and shall, at
its cost, file as promptly as practicable after such Shelf Registration Event
Date and, in any event, within 90 days after such Shelf Registration Event Date,
a Shelf Registration Statement providing for the sale by the Holders of all of
the Registrable Notes and all of the Registrable Debentures (other than
Registrable Notes and Registrable Debentures owned by Holders who have elected
not to include such Registrable Notes or Registrable Debentures in such Shelf
Registration Statement or who have not complied with their obligations under the
penultimate paragraph of Section 3 hereof or under the penultimate sentence of
this Section 2(b), and shall use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as soon as
practicable. No Holder of Registrable Notes or Registrable Debentures shall be
entitled to include any of its Registrable Notes or Registrable Debentures in
any Shelf Registration pursuant to this Agreement unless and until such Holder
agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder and furnishes to the Company in writing, within 15
days after receipt of a request therefor, such information as the Company may,
after conferring
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<PAGE>
with counsel with regard to information relating to Holders that would be
required by the SEC to be included in such Shelf Registration Statement or
Prospectus included therein, reasonably request for inclusion in any Shelf
Registration Statement or Prospectus included therein. Each Holder as to which
any Shelf Registration is being effected agrees to furnish to the Company all
information with respect to such Holder necessary to make the information
previously furnished to the Company by such Holder not materially misleading.
The Company agrees to use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective and the Prospectus usable
for resales for the earlier of: (a) the Rule 144(k) Period or (b) such time as
all of the securities covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement or cease to be Registrable Notes or
Registrable Debentures (the "Effectiveness Period"). The Company shall not
permit any securities other than (i) the Company's issued and outstanding
securities currently possessing incidental registration rights (ii) Registrable
Notes and (iii) Registrable Debentures, to be included in the Shelf
Registration. The Company will, in the event a Shelf Registration Statement is
declared effective, provide to each Holder of Registrable Notes or Registrable
Debentures covered thereby a reasonable number of copies of the Prospectus which
is a part of the Shelf Registration Statement, notify each such Holder when the
Shelf Registration has become effective and take any other action required to
permit unrestricted resales of the Registrable Notes and Registrable Debentures.
The Company further agrees, if necessary, to supplement or amend the Shelf
Registration Statement, if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company agrees to
furnish to the Holders of Registrable Notes or Registrable Debentures covered by
such Shelf Registration Statement copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with any Registration Statement filed pursuant to Section 2(a) and/or
2(b) hereof and will reimburse the Initial Purchasers for the reasonable fees
and disbursements of Brown & Wood llp incurred in connection with the Exchange
Offer. Except as provided herein, each Holder shall pay all expenses of its
counsel, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Notes or
Registrable Debentures pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if,
after it has been declared effective, the offering of Registrable Notes and
Registrable Debentures pursuant to such Exchange Offer Registration Statement or
Shelf Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or court,
such Exchange Offer Registration Statement or Shelf Registration Statement will
be deemed not to have been effective during the period of such interference,
until the offering of Registrable Notes and Registrable Debentures pursuant to
such Registration Statement may legally resume. The Company will be deemed not
to have used its reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain,
8
<PAGE>
effective during the requisite period if it voluntarily takes any action that
would result in any such Registration Statement not being declared effective or
that would result in the Holders of Registrable Notes or Registrable Debentures
covered thereby not being able to exchange or offer and sell such Registrable
Notes or such Registrable Debentures during that period, unless such action is
required by applicable law.
(e) Special Interest Premium. In the event that:
(i) the Exchange Offer Registration Statement is not filed with
the SEC on or prior to the 90th day after the Issue Date, then, commencing on
the 91st day after the Issue Date, a special interest premium (the "Special
Interest Premium") shall accrue on the principal amount of each of the Notes and
the Debentures at a rate of 0.25% per annum;
(ii) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 150th day after the Issue Date, then,
commencing on the 151st day after the Issue Date, a Special Interest Premium
shall accrue on the principal amount of each of the Notes and the Debentures at
a rate of 0.25% per annum;
(iii) (A) the Company has not exchanged Exchange Notes and
Exchange Debentures for all Registrable Notes and Registrable Debentures,
respectively, validly tendered in accordance with the terms of the Exchange
Offer on or prior to the 180th day after the Issue Date or (B) if the Shelf
Registration Statement is required to be filed pursuant to Section 2(b) but is
not declared effective by the SEC on or prior to the 180th day after the Issue
Date, then, commencing on the 181st day after the Issue Date, a Special Interest
Premium shall accrue on the principal amount of each of the Notes and the
Debentures at the rate of 0.25% per annum; or
(iv) the Shelf Registration Statement has been declared effective
and such Shelf Registration Statement ceases to be effective or the Prospectus
ceases to be usable for resales (A) at any time prior to the expiration of the
Effectiveness Period or (B) if related to corporate developments, public filings
or similar events or to correct a material misstatement or omission in the
Prospectus, for more than 60 days (whether or not consecutive) in any twelve-
month period, then a Special Interest Premium shall accrue on the principal
amount of each of the Notes and the Debentures at a rate of 0.25% per annum
commencing on the day (in the case of (A) above), or the 61st day after (in the
case of (B) above), such Shelf Registration Statement ceases to be effective or
the Prospectus ceases to be usable for resales;
provided, however, that the aggregate amount of the Special Interest Premium in
respect of each of the Notes and the Debentures may not exceed 0.25% per annum;
provided, further, however, that (1) upon the filing of the Exchange Offer
Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement (in the case of
clause (ii) above), (3) upon the exchange of Exchange Notes and Exchange
Debentures for all Registrable Notes and Registrable Debentures, respectively,
validly tendered (in the case of clause (iii)(A) above) or upon the
effectiveness of the Shelf Registration Statement (in the case of clause (iii)
(B) above) or (4) the earlier of (y) such time as the Shelf Registration
Statement which had ceased to remain effective or the Prospectus which had
ceased to be usable for resales again becomes effective and usable for resales
and (z) the expiration of the Effectiveness Period (in the case of clause (iv)
above), the Special Interest Premium on the principal amount of each
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<PAGE>
of the Notes and the Debentures as a result of such clause (or the relevant
subclause thereof) shall cease to accrue;
provided, further, however, that if the Exchange Offer Registration Statement is
not declared effective by the SEC on or prior to the 150th day after the Issue
Date and the Company shall request Holders to provide the information required
by the SEC for inclusion in the Shelf Registration Statement, the Notes and the
Debentures owned by Holders who do not provide such information when required
pursuant to Section 2(b) will not be entitled to any Special Interest Premium
for any day after the 180th day after the Issue Date.
Any Special Interest Premium due pursuant to Section 2(e)(i), (ii), (iii)
or (iv) above will be payable in cash on the next succeeding February 1 or
August 1, as the case may be, to Holders on the relevant record dates for the
payment of interest pursuant to the Indenture.
(f) Specific Enforcement. Without limiting the remedies available to
the Holders, the Company acknowledges that any failure by the Company to comply
with its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Holders for which there is no adequate remedy
at law, that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of
the Company with respect to the Registration Statements pursuant to Sections
2(a) and 2(b) hereof, the Company shall use its reasonable best efforts to:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof
within the relevant time period specified in Section 2 hereof on the
appropriate form under the Securities Act, which form shall (i) be
selected by the Company, (ii) in the case of a Shelf Registration, be
available for the sale of the Registrable Notes and the Registrable
Debentures by the selling Holders thereof and, in the case of an
Exchange Offer, be available for the exchange of Registrable Notes and
Registrable Debentures, and (iii) comply as to form in all material
respects with the requirements of the applicable form and include all
financial statements required by the SEC to be filed therewith; the
Company shall use its reasonable best efforts to cause such
Registration Statement to become effective and remain effective (and,
in the case of a Shelf Registration Statement, the Prospectus to be
usable for resales) in accordance with Section 2 hereof; provided,
however, that if (1) such filing is pursuant to Section 2(b), or (2) a
Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes or Exchange Debentures, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto, the
Company shall furnish to and afford the Holders of the Registrable
Notes and Registrable Debentures and each such Participating Broker-
Dealer, as the case may be, covered by such Registration Statement,
their counsel and the managing
10
<PAGE>
underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated
by reference therein and all exhibits thereto) proposed to be filed;
and the Company shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of
which the Holders must be afforded an opportunity to review prior to
the filing of such document if the Majority Holders of either or both
the Registrable Notes or Registrable Debentures, depending solely upon
which Holders must be afforded the opportunity of such review, or such
Participating Broker-Dealer, as the case may be, their counsel or the
managing underwriters, if any, shall reasonably object in a timely
manner;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep
such Registration Statement effective for the Effectiveness Period or
the Applicable Period, as the case may be, and cause each Prospectus
to be supplemented, if so determined by the Company or requested by
the SEC, by any required prospectus supplement and as so supplemented
to be filed pursuant to Rule 424 (or any similar provision then in
force) under the Securities Act, and comply with the provisions of the
Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder applicable to it with respect to the
disposition of all securities covered by each Registration Statement
during the Effectiveness Period or the Applicable Period, as the case
may be, in accordance with the intended method or methods of
distribution by the selling Holders thereof described in this
Agreement (including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes and Registrable Debentures included in the Shelf
Registration Statement, at least three Business Days prior to filing,
that a Shelf Registration Statement with respect to the Registrable
Notes and the Registrable Debentures is being filed and advising such
Holder that the distribution of Registrable Notes and Registrable
Debentures will be made in accordance with the method selected by (1)
the Majority Holders of the Registrable Notes solely in respect to the
method of distribution for the Registrable Notes and (2) the Majority
Holders of the Registrable Debentures solely in respect to the method
of distribution for the Registrable Debentures, (ii) furnish to each
Holder of Registrable Notes and Registrable Debentures included in the
Shelf Registration Statement and to each underwriter of an
underwritten offering of Registrable Notes and Registrable Debentures,
if any, without charge, as many copies of each Prospectus, including
each preliminary prospectus, and any amendment or supplement thereto,
and such other documents as such Holder or underwriter may reasonably
request, in order to facilitate the public sale or other disposition
of the Registrable Notes and Registrable Debentures and (iii) consent
to the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Registrable Notes and Registrable
Debentures included in the Shelf Registration Statement in connection
with the offering and sale of the Registrable Notes and Registrable
Debentures covered by the Prospectus or any amendment or supplement
thereto;
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<PAGE>
(d) in the case of a Shelf Registration, register or qualify the
Registrable Notes and Registrable Debentures under all applicable
state securities or "blue sky" laws of such jurisdictions by the time
the applicable Registration Statement is declared effective by the SEC
as any Holder of Registrable Notes or Registrable Debentures covered
by a Registration Statement and each underwriter of an underwritten
offering of Registrable Notes or Registrable Debentures shall
reasonably request in writing in advance of such date of
effectiveness, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder and
underwriter to consummate the disposition in each such jurisdiction of
such Registrable Notes or Registrable Debentures owned by such Holder;
provided, however, that the Company shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but
for this Section 3(d), (ii) file any general consent to service of
process in any jurisdiction where it would not otherwise be subject to
such service of process or (iii) subject itself to taxation in any
such jurisdiction if it is not then so subject;
(e) (1) in the case of a Shelf Registration or (2) if Participating
Broker-Dealers from whom the Company has received prior written notice
that they will be utilizing the Prospectus contained in the Exchange
Offer Registration Statement as provided in Section 3(t) hereof, are
seeking to sell Exchange Notes or Exchange Debentures and are required
to deliver Prospectuses, promptly notify each Holder of Registrable
Notes and Registrable Debentures, or such Participating Broker-
Dealers, as the case may be, their counsel and the managing
underwriters, if any, and promptly confirm such notice in writing (i)
when a Registration Statement has become effective and when any post-
effective amendments thereto become effective, (ii) of any request by
the SEC or any state securities authority for amendments and
supplements to a Registration Statement or Prospectus or for
additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the qualification of the Registrable Notes,
the Registrable Debentures, the Exchange Notes or the Exchange
Debentures to be offered or sold by any Participating Broker-Dealer in
any jurisdiction described in Section 3(d) hereof or the initiation of
any proceedings for that purpose, (iv) in the case of a Shelf
Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Notes or
Registrable Debentures covered thereby, the representations and
warranties of the Company contained in any purchase agreement,
securities sales agreement or other similar agreement cease to be true
and correct in all material respects, (v) of the happening of any
event or the failure of any event to occur or the discovery of any
facts, during the Effectiveness Period, which makes any statement made
in such Registration Statement or the related Prospectus untrue in any
material respect or which causes such Registration Statement or
Prospectus to omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, as well as any other corporate
developments, public filings with the SEC or similar events causing
such
12
<PAGE>
Registration Statement not to be effective or the Prospectus not to be
useable for resales and (vi) of the reasonable determination of the
Company that a post-effective amendment to the Registration Statement
would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness
of a Registration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes and Registrable Debentures included within the
coverage of such Shelf Registration Statement, without charge, at
least one conformed copy of each Registration Statement relating to
such Shelf Registration and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes and Registrable Debentures to facilitate
the timely preparation and delivery of certificates representing
Registrable Notes and Registrable Debentures to be sold and not
bearing any restrictive legends (except any customary legend borne by
securities held through The Depository Trust Company or any similar
depository) and in such denominations (consistent with the provisions
of the Indenture and the officers' certificate establishing the forms
and the terms of the Notes and the Debentures pursuant to the
Indenture) and registered in such names as the selling Holders or the
underwriters may reasonably request at least two Business Days prior
to the closing of any sale of Registrable Notes or Registrable
Debentures pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, promptly after the occurrence of any event specified in
Section 3(e)(ii), 3(e)(iii), 3(e)(v) (subject to a 60-day grace period
within any twelve-month period) or 3(e)(vi) hereof, prepare a
supplement or post-effective amendment to such Registration Statement
or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes and Registrable
Debentures, such Prospectus will not include any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and the Company shall notify each Holder to
suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to suspend
use of the Prospectus until the Company has amended or supplemented
the Prospectus to correct such misstatement or omission;
(j) obtain a CUSIP number for the Exchange Notes and the Exchange
Debentures or the Registrable Notes and the Registrable Debentures, as
the case may be, not later than the effective date of a Registration
Statement, and provide the Trustee with certificates for the Exchange
Notes, the Exchange Debentures, the
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<PAGE>
Registrable Notes or the Registrable Debentures, as the case may be,
in a form eligible for deposit with the Depositary;
(k) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration
of the Exchange Notes and Exchange Debentures or Registrable Notes and
Registrable Debentures, as the case may be, and effect such changes to
such documents as may be required for them to be so qualified in
accordance with the terms of the TIA and execute, and cause the
Trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with
the SEC to enable such documents to be so qualified in a timely
manner;
(l) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten
offerings and take all such other appropriate actions in connection
therewith as are reasonably requested by (1) in the case of the
Registrable Notes, the Holders of at least 25% in aggregate principal
amount of the Registrable Notes in order to expedite or facilitate the
registration or the disposition of the Registrable Notes and (2) in
the case of the Registrable Debentures, the Holders of at least 25% in
aggregate principal amount of the Registrable Debentures in order to
expedite or facilitate the registration or the disposition of the
Registrable Debentures;
(m) in the case of a Shelf Registration, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration, if requested by (x) an
Initial Purchaser, in the case where such Initial Purchaser holds
Notes or Debentures acquired by it as part of its initial placement
and (y) Holders of at least 25% in aggregate principal amount of the
Registrable Notes or 25% in aggregate principal amount of Registrable
Debentures, as the case may be, covered thereby: (i) make such
representations and warranties to Holders of such Registrable Notes or
Registrable Debentures and the underwriters (if any), with respect to
the business of the Company and the subsidiaries of the Company as
then conducted and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings, and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Company and
updates thereof (which may be in the form of a reliance letter) in
form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in amount of the
Registrable Notes or Registrable Debentures being sold, addressed to
each selling Holder and the underwriters (if any) covering the matters
customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such
underwriters (it being agreed that the matters to be covered by such
opinion may be subject to customary qualifications and exceptions);
(iii) obtain "cold comfort" letters and updates thereof in form and
substance reasonably satisfactory to the managing underwriters from
the independent certified public accountants of the Company and its
subsidiaries (and, if necessary, any other independent certified
public accountants of any business acquired or to be acquired by the
14
<PAGE>
Company for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to
each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings and such other
matters as reasonably requested by such underwriters in accordance
with Statement on Auditing Standards No. 72; and (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those
set forth in Section 4 hereof (or such other provisions and procedures
acceptable to Holders of a majority (1) in aggregate principal amount
of Registrable Notes or (2) in aggregate principal amount of
Registrable Debentures, as the context requires, covered by such
Registration Statement and the managing underwriters) customary for
such agreements with respect to all parties to be indemnified pursuant
to said Section (including, without limitation, such underwriters and
selling Holders); and in the case of an underwritten registration, the
above requirements shall be satisfied at each closing under the
related underwriting agreement or as and to the extent required
thereunder;
(n) if (1) a Shelf Registration is filed pursuant to Section 2(b) or
(2) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes or Exchange Debentures during the Applicable Period,
make reasonably available for inspection by any selling Holder of
Registrable Notes or Registrable Debentures or Participating Broker-
Dealer, as applicable, who certifies to the Company that it has a
current intention to sell Registrable Notes or Registrable Debentures
pursuant to the Shelf Registration, any underwriter participating in
any such disposition of Registrable Notes or Registrable Debentures,
if any, and any attorney, accountant or other agent retained by any
such selling Holder, Participating Broker-Dealer, as the case may be,
or underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during the Company's normal business hours, all
financial and other records, pertinent organizational and operational
documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to
enable them to conduct due diligence activities, and cause the
officers, trustees and employees of the Company and its subsidiaries
to supply all relevant information in each case reasonably requested
by any such Inspector in connection with such Registration Statement;
records and information which the Company determines, in good faith,
to be confidential and any Records and information which it notifies
the Inspectors are confidential shall not be disclosed to any
Inspector except where (i) the disclosure of such Records or
information is necessary to avoid or correct a material misstatement
or omission in such Registration Statement, (ii) the release of such
Records or information is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction or is necessary in
connection with any action, suit or proceeding or (iii) such Records
or information previously has been made generally available to the
public; each selling Holder of such Registrable Notes or Registrable
Debentures and each such Participating Broker-Dealer will be required
to agree in writing that Records and
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information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Company unless and until
such is made generally available to the public through no fault of an
Inspector or a selling Holder; and each selling Holder of such
Registrable Notes or Registrable Debentures and each such
Participating Broker-Dealer will be required to further agree in
writing that it will, upon learning that disclosure of such Records or
information is sought in a court of competent jurisdiction, or in
connection with any action, suit or proceeding, give notice to the
Company and allow the Company at its expense to undertake appropriate
action to prevent disclosure of the Records and information deemed
confidential;
(o) comply with all applicable rules and regulations of the SEC so
long as any provision of this Agreement shall be applicable and make
generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 60 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes and/or Registrable Debentures are sold to
underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods, provided that the obligations under
this paragraph (o) shall be satisfied by the timely filing of
quarterly and annual reports on Forms 10-Q and 10-K under the Exchange
Act;
(p) upon consummation of an Exchange Offer, if requested by the
Trustee, obtain an opinion of counsel to the Company addressed to the
Trustee for the benefit of all Holders of Registrable Notes or
Registable Debentures participating in the Exchange Offer,
substantially to the effect that (i) the Company has duly authorized,
executed and delivered the Exchange Notes or Exchange Debentures, as
the case may be, and (ii) each of the Exchange Notes or Exchange
Debentures constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company, in accordance with its
respective terms (in each case, with customary exceptions);
(q) if an Exchange Offer is to be consummated, upon delivery of the
Registrable Notes and Registrable Debentures by Holders to the Company
(or to such other Person as directed by the Company), in exchange for
the Exchange Notes and Exchange Debentures, the Company shall mark, or
cause to be marked, on such Registrable Notes and Registrable
Debentures delivered by such Holders that such Registrable Notes and
Registrable Debentures are being cancelled in exchange for the
Exchange Notes and Exchange Debentures; it being understood that in no
event shall such Registrable Notes or Registrable Debentures be marked
as paid or otherwise satisfied;
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(r) cooperate with each seller of Registrable Notes or Registrable
Debentures covered by any Registration Statement and each underwriter,
if any, participating in the disposition of such Registrable Notes or
Registrable Debentures and their respective counsel in connection with
any filings required to be made with the NASD;
(s) take all other steps necessary to effect the registration of the
Registrable Notes and Registrable Debentures covered by a Registration
Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," which section shall be reasonably
acceptable to the Initial Purchasers or another representative of the
Participating Broker-Dealers, and which shall contain a summary
statement of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of any broker-
dealer that holds Registrable Notes or Registrable Debentures acquired
for its own account as a result of market-making activities or other
trading activities (a "Participating Broker-Dealer") and that will be
the beneficial owner (as defined in Rule 13d-3 under the Exchange Act)
of Exchange Notes or Exchange Debentures to be received by such
broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC or
such positions or policies, in the reasonable judgment of the Initial
Purchasers or such other representative, represent the prevailing
views of the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Notes for Registrable Notes and/or
Exchange Debentures for Registrable Debentures pursuant to the
Exchange Offer may be deemed a statutory underwriter and must deliver
a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes or Exchange
Debentures, (ii) furnish to each Participating Broker-Dealer who has
delivered to the Company the notice referred to in Section 3(e),
without charge, as many copies of each Prospectus included in the
Exchange Offer Registration Statement, including any preliminary
Prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (the Company hereby
consents to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto by
any Person subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Notes or Exchange
Debentures covered by the Prospectus or any amendment or supplement
thereto), (iii) use its reasonable best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be
lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such
Persons must comply with such requirements under the Securities Act
and applicable rules and regulations in order to resell the Exchange
Notes or the Exchange Debentures; provided, however, that such period
shall not be required to exceed 180 days (or such longer
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period if extended pursuant to the last sentence of Section 3 hereof)
(the "Applicable Period"), and (iv) include in the transmittal letter
or similar documentation to be executed by an exchange offeree in
order to participate in the Exchange Offer (x) the following
provision:
"If the exchange offeree is a broker-dealer holding Registrable Notes
or Registrable Debentures acquired for its own account as a result of
market-making activities or other trading activities, it will deliver
a prospectus meeting the requirements of the Securities Act in
connection with any resale of Exchange Notes or Exchange Debentures
received in respect of such Registrable Notes or Registrable
Debentures pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus
in connection with the exchange of Registrable Notes or Registrable
Debentures, the broker-dealer will not be deemed to admit that it is
an underwriter within the meaning of the Securities Act; and
(B) in the case of any Exchange Offer Registration Statement, the
Company agrees to deliver to the Initial Purchasers or to another
representative of the Participating Broker-Dealers, if reasonably
requested by an Initial Purchaser or such other representative of
Participating Broker-Dealers, on behalf of the Participating Broker-
Dealers upon consummation of the Exchange Offer (i) an opinion of
counsel in form and substance reasonably satisfactory to such Initial
Purchaser or such other representative of the Participating Broker-
Dealers, covering the matters customarily covered in opinions
requested in connection with Exchange Offer Registration Statements
and such other matters as may be reasonably requested (it being agreed
that the matters to be covered by such opinion may be subject to
customary qualifications and exceptions), (ii) an officers'
certificate containing certifications substantially similar to those
set forth in Section 5(c) of the Purchase Agreement and such
additional certifications as are customarily delivered in a public
offering of debt securities and (iii) upon the effectiveness of the
Exchange Offer Registration Statement, comfort letters, in each case,
in customary form if permitted by Statement on Auditing Standards No.
72.
The Company may require each seller of Registrable Notes or
Registrable Debentures as to which any registration is being effected to furnish
to the Company such information regarding such seller as may be required by the
staff of the SEC to be included in a Registration Statement. The Company may
exclude from such registration the Registrable Notes and the Registrable
Debentures of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request. The Company shall have
no obligation to register under the Securities Act the Registrable Notes or
Registrable Debentures of a seller who so fails to furnish such information.
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In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided in
this Section 3(t) hereof are seeking to sell Exchange Notes or Exchange
Debentures and are required to deliver Prospectuses, each Holder agrees that,
upon receipt of any notice from the Company of the occurrence of any event
specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such
Holder will forthwith discontinue disposition of Registrable Notes and
Registrable Debentures pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and, if so
directed by the Company, such Holder will deliver to the Company (at the
Company's expense) all copies in such Holder's possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registrable Notes, Registrable Debentures, Exchange Notes, or Exchange
Debentures, as the case may be, current at the time of receipt of such notice.
If the Company shall give any such notice to suspend the disposition of
Registrable Notes, Registrable Debentures, Exchange Notes or Exchangeable
Debentures , as the case may be, pursuant to a Registration Statement, the
Company shall use its reasonable best efforts to file and have declared
effective (if an amendment) as soon as practicable after the resolution of the
related matters an amendment or supplement to the Registration Statement and
shall extend the period during which such Registration Statement is required to
be maintained effective and the Prospectus usable for resales pursuant to this
Agreement by the number of days in the period from and including the date of the
giving of such notice to and including the date when the Company shall have made
available to the Holders (x) copies of the supplemented or amended Prospectus
necessary to resume such dispositions or (y) the Advice.
4. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Company shall indemnify and hold harmless the
Initial Purchasers, each Holder, each underwriter who participates in an
offering of the Registrable Notes or Registrable Debentures, each Participating
Broker-Dealer, each Person, if any, who controls any of such parties within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and each of their respective directors, officers, employees and agents, as
follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto),
covering Registrable Notes, Registrable Debentures, Exchange Notes, or
Exchange Debentures, as applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that (subject
to Section 4(d) hereof) any such settlement is effected with the prior
written consent of the Company; and
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(iii) against any and all expenses whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by such
Holder, such Participating Broker-Dealer, or any underwriter (except
to the extent otherwise expressly provided in Section 4(c) hereof)),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) of this Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Company by the
Initial Purchasers or such Holder, underwriter or Participating Broker-Dealer
for use in a Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto).
(b) Each of the Initial Purchasers and each Holder, underwriter or
Participating Broken-Dealer agrees, severally and not jointly, to indemnify and
hold harmless the Company and each Person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all loss, liability, claim, damage and expense
whatsoever described in the indemnity contained in Section 4(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Holder expressly for use in such Registration Statement (or any
amendment thereto), or any such Prospectus (or any amendment or supplement
thereto); provided, however, that in the case of a Shelf Registration Statement,
no such Holder shall be liable for any claims hereunder in excess of the amount
of net proceeds received by such Holder from the sale of Registrable Notes or
Registrable Debentures pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have under this Section 4 to the extent that it is
not materially prejudiced by such failure as a result thereof, and in any event
shall not relieve it from liability which it may have otherwise on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 4(a) or (b) above, counsel to the indemnified parties shall be selected
by such parties. An indemnifying party may participate at its own expense in
the defense of such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel (in addition to local
counsel), separate from their own counsel, for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified
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parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional written release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have validly requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unenforceable by an indemnified party
although applicable in accordance with its terms, the Company and the Holders
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company and the Holders, as incurred; provided, however, that no Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person that was not
guilty of such fraudulent misrepresentation. As between the Company and the
Holders, such parties shall contribute to such aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement in such proportion as shall be appropriate to reflect the relative
fault of the Company, on the one hand, and the Holders, on the other hand, with
respect to the statements or omissions which resulted in such loss, liability,
claim, damage or expense, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault of the Company, on the
one hand, and of the Holders, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, on the one hand, or by or on
behalf of the Holders, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 4 were to be
determined by pro rata allocation or by any other method of allocation that does
not take into account the relevant equitable considerations. For purposes of
this Section 4, each Affiliate of a Holder, and each director, officer and
employee and Person, if any, who controls a Holder or such Affiliate within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such Holder and each Person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as the Company.
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5. Participation in an Underwritten Registration. No Holder may
participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Notes or Registrable Debentures on the
basis provided in the underwriting arrangement approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably required under the
terms of such underwriting arrangements.
6. Selection of Underwriters. The Holders of Registrable Notes
and/or Registrable Debentures covered by the Shelf Registration Statement who
desire to do so may sell the Securities covered by such Shelf Registration in an
underwritten offering, subject to the provisions of Section 3(l) hereof. In any
such underwritten offering, the underwriter or underwriters and manager or
managers that will administer the offering will be selected by the Holders of a
majority in aggregate principal amount of the Registrable Notes and/or a
majority in aggregate principal amount of the Registrable Debentures included in
such offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Notes or Registrable Debentures remain outstanding, the Company will
file the reports required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act and the rules and regulations adopted by the
SEC thereunder; provided, however, that if the Company ceases to be so required
to file such reports, it will, upon the request of any Holder of Registrable
Notes or Registrable Debentures, (a) make publicly available such information as
is necessary to permit sales of its securities pursuant to Rule 144 under the
Securities Act, (b) deliver such information to a prospective purchaser as is
necessary to permit sales of its securities pursuant to Rule 144A under the
Securities Act, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Notes or Registrable Debentures without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may be amended
from time to time, (ii) Rule 144A under the Securities Act, as such rule may be
amended from time to time, or (iii) any similar rules or regulations hereafter
adopted by the SEC. Upon the request of any Holder of Registrable Notes or
Registrable Debentures, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into,
nor will the Company on or after the date of this Agreement enter into, any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes or the Registrable Debentures in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or
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consents to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Holders of a majority in aggregate
principal amount of the outstanding Registrable Notes or a majority in aggregate
principal amount of the outstanding Registrable Debentures affected by such
amendment, modification, supplement, waiver or departure; provided that no
amendment, modification or supplement or waiver or consent to the departure with
respect to the provisions of Section 4 hereof shall be effective as against any
Holder of Registrable Notes or Registrable Debentures unless consented to in
writing by such Holder of Registrable Notes or Registrable Debentures.
Notwithstanding the foregoing sentence, (i) this Agreement may be amended,
without the consent of any Holder of Registrable Notes or Registrable
Debentures, by written agreement signed by the Company and the Initial
Purchasers, to cure any ambiguity, correct or supplement any provision of this
Agreement that may be inconsistent with any other provision of this Agreement or
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may be given, by
written agreement signed by the Company and the Initial Purchasers to the extent
that any such amendment, modification, supplement, waiver or consent is, in
their reasonable judgment, necessary or appropriate to comply with applicable
law (including any interpretation of the Staff of the SEC) or any change therein
and (iii) to the extent any provision of this Agreement relates to an Initial
Purchaser, such provision may be amended, modified or supplemented, and waivers
or consents to departures from such provisions may be given, by written
agreement signed by such Initial Purchaser and the Company.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or any courier guaranteeing overnight delivery
(i) if to a Holder, at the most current address given by such Holder to the
Company by means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to each Initial
Purchaser, the address set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of the
Initial Purchasers, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Notes or Registrable Debentures in violation of the terms of the
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Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Registrable Notes or Registrable Debentures in any manner, whether by
operation of law or otherwise, such Registrable Notes or Registrable Debentures
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Notes or Registrable Debentures, such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder and any Participating
Broker-Dealer shall be third party beneficiaries of the agreements made
hereunder between the Initial Purchasers and the Company, and the Initial
Purchasers shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE
IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE PARTIES
HERETO AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY
DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
SUCH COURT. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
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(k) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes or
Registrable Debentures is required hereunder, Registrable Notes or Registrable
Debentures held by the Company or its Affiliates shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
25
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
IMC GLOBAL INC.
By: /s/ E. Paul Dunn, Jr.
-----------------------------------
Name: E. Paul Dunn, Jr.
Title: Vice President and Treasurer
Confirmed and accepted as of
the date first above
written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
J.P. MORGAN SECURITIES INC.
CHASE SECURITIES INC.
SALOMON BROTHERS INC
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
For itself and as Representative of the
several Initial Purchasers
By: /s/ Janet Mitchell
-----------------------------------
Authorized Signatory
26
<PAGE>
EXHIBIT 5
[LETTERHEAD OF KIRKLAND & ELLIS]
September 18, 1998
To: IMC Global Inc.
2100 Sanders Road
Northbrook, IL 60062
Re: IMC Global Inc.
6 1/2% Notes due 2003 and 7 3/8% Debentures due 2018
Ladies and Gentlemen:
We are issuing this letter in our capacity as special counsel to IMC
Global Inc., a Delaware corporation (the "Company"), in connection with the
proposed registration by the Company of up to $200,000,000 in aggregate
principal amount of the Company's 6 1/2% Notes due 2003 (the "Exchange Notes")
and of up to $100,000,000 in aggregate principal amount of the Company's 7 3/8%
Debentures due 2018 (the "Exchange Debentures") pursuant to a Registration
Statement on Form S-4 to be filed with the Securities and Exchange Commission
(the "Commission") on or about September 18, 1998 under the Securities Act of
1933, as amended (the "Securities Act") (such Registration Statement, as amended
or supplemented, is hereinafter referred to as the "Registration Statement"),
for the purpose of effecting an exchange offer (the "Exchange Offer") for the
Company's 6 1/2% Notes due 2003 (the "Old Notes") and the Company's 7 3/8%
Debentures due 2018 (the "Old Debentures"), respectively. The Exchange Notes and
the Exchange Debentures are to be issued pursuant to an Indenture (the
"Indenture"), dated August 1, 1998, between the Company and The Bank of New
York, as Trustee (the "Trustee"), in exchange for and in replacement of the
Company's outstanding Old Notes and Old Debentures, respectively, of which
$200,000,000 and $100,000,000, respectively, in aggregate principal amount are
outstanding.
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary for the purposes of this
opinion, including (i) the corporate and organizational documents of the
Company, (ii) minutes and records of the corporate proceedings of the Company
with respect to the issuance of the Exchange Notes and the Exchange Debentures,
(iii) the Registration Statement and exhibits thereto and (iv) the Registration
Rights Agreement, dated August 11, 1998, between the Company and the initial
purchasers named therein.
For purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity of the originals of all
documents submitted to us as copies. We have also
<PAGE>
IMC Global Inc.
September 18, 1998
Page 2
assumed the genuineness of the signatures of persons signing all documents in
connection with which this opinion is rendered, the authority of such persons
signing on behalf of the parties thereto other than the Company, and the due
authorization, execution and delivery of all documents by the parties thereto
other than the Company. As to any facts material to the opinions expressed
herein which we have not independently established or verified, we have relied
upon statements and representations of officers and other representatives of the
Company and others.
Based upon and subject to the foregoing qualifications, assumptions
and limitations and the further limitations set forth below, we are of the
opinion that when, as and if (i) the Registration Statement becomes effective
pursuant to the provisions of the Securities Act, (ii) the Indenture has been
qualified pursuant to the provisions of the Trust Indenture Act of 1939, as
amended, (iii) the Old Notes and the Old Debentures have been validly tendered
to the Company, (iv) the Exchange Notes and the Exchange Debentures have been
issued in the form and containing the terms described in the Registration
Statement, the Indenture, the resolutions of the Company's Board of Directors
(or authorized committee thereof) authorizing the foregoing and the officer's
certificate establishing the terms thereof and any legally required consents,
approvals, authorizations and other orders of the Commission and any other
regulatory authorities to be obtained and (v) the Exchange Notes and the
Exchange Debentures have been authenticated by the Trustee, the Exchange Notes
and the Exchange Debentures when issued pursuant to the Exchange Offer will be
validly issued, fully paid and nonassessable and will constitute binding
obligations of the Company.
Our opinions expressed above are subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of (i)
any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or other similar law affecting the enforcement of
creditors' rights generally, (ii) general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law), (iii)
public policy considerations which may limit the rights of parties to obtain
certain remedies and (iv) any laws except the laws of the State of New York and
the General Corporation Law of the State of Delaware. We advise you that issues
addressed by this letter may be governed in whole or in part by other laws, but
we express no opinion as to whether any relevant difference exists between the
laws upon which our opinions are based and any other laws which may actually
govern.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. We also consent to the reference to our firm under the
heading "Legal Matters" in the Registration Statement. In giving this consent,
we do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act of the rules and regulations of
the Commission.
We do not find it necessary for the purposes of this opinion, and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the issuance of the Exchange Notes.
<PAGE>
IMC Global Inc.
September 18, 1998
Page 3
This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the States of Delaware or New York be changed by legislative action,
judicial decision or otherwise.
This opinion is furnished to you in connection with the filing of the
Registration Statement, and is not to be used, circulated, quoted or otherwise
relied upon for any other purposes.
Yours very truly,
KIRKLAND & ELLIS
<PAGE>
EXHIBIT 12
IMC Global Inc.
Computation of Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Six Months Years Ended December 31,
Ended ------------------------------------------------------
June 30, 1998 1997 1996 1995 1994 1993
------------- ------- ------- ------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
Fixed charges:
Interest charges $ 83.7 $ 53.5 $ 56.7 $ 69.8 $ 77.5 $ 76.6
====== ====== ====== ====== ====== =======
Earnings:
Net earnings (loss) $132.3 $ 62.9 $127.1 $215.5 $113.9 $(151.1)
Extraordinary charge 2.7 24.9 8.1 3.5 4.4 25.2
Cumulative effect of accounting
change -- -- -- -- 5.9 --
Provision (credit) for income 73.2 43.5 89.7 129.4 97.8 (75.2)
taxes
Minority interest 17.2 124.4 185.7 163.6 106.8 5.3
Interest charges 83.7 53.5 56.7 69.8 77.5 76.6
------ ------ ------ ------ ------ -------
Total earnings (loss) $309.1 $309.2 $467.3 $581.8 $406.3 $(119.2)
====== ====== ====== ====== ====== =======
Ratio of earnings (loss) to fixed
charges $ 3.69 $ 5.78 $ 8.24 $ 8.34 $ 5.24 $ (1.56)
====== ====== ====== ====== ====== =======
Adjusted ratio of earnings to fixed
charges(1) $ 3.86 $ 9.21 $ 9.98 $ 8.34 $ 5.24 $ 0.65
====== ====== ====== ====== ====== =======
</TABLE>
(1) The adjusted ratio of earnings to fixed charges for the six months ended
June 30, 1998 excludes a charge of $9.1 million relating to the sale of the
Company's IMC Vigoro business unit. The adjusted ratio of earnings to fixed
charges for the year ended December 31, 1997 excludes a charge of $183.7
million relating to the writedown of the historical carrying value of IMC's
interest in the Main Pass 299 business of Phosphate Resource Partners
Limited Partnership. The adjusted ratio of earnings to fixed charges for
the year ended December 31, 1996 excludes a charge of $98.6 million
relating to the merger of The Vigoro Corporation into a wholly owned
subsidiary of IMC. The adjusted ratio of earnings to fixed charges for the
year ended December 31, 1993 excludes a charge of $169.1 million relating
to the settlement of litigation resulting from a May 1991 explosion at a
nitroparaffins plant in Sterlington, Louisiana.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the captions "Experts" and
"Selected Historical Consolidated Financial Data" in the Registration Statement
(Form S-4) and related Prospectus of IMC Global Inc. for the offer to exchange
its 6 1/2% Notes due 2003 and its 7 3/8% Debentures due 2018 for any and all of
its outstanding 6 1/2% Notes due 2003 and 7 3/8% Debentures due 2018 and to the
incorporation by reference therein of our report dated January 26, 1998, with
respect to the consolidated financial statements of IMC Global Inc. included in
its Annual Report on Form 10-K for the year ended December 31, 1997, filed with
the Securities and Exchange Commission.
ERNST & YOUNG LLP
Chicago, Illinois
September 18, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTS
We consent to the incorporation by reference in the prospectus constituting a
part of this Registration Statement on Form S-4 of IMC Global Inc. of our report
dated 18 September 1997, on our audits of the financial statements of Harris
Chemical Australia Pty Ltd. & Its Controlled Entities for the year ended 30 June
1997, which report is included in the Current Report on Form 8-K/A which was
filed with the Securities and Exchange Commission on June 15, 1998. We also
consent to the reference to our firm under the caption "Experts" in the
prospectus constituting a part of this Registration Statement.
Arthur Andersen
Chartered Accountants
Adelaide, South Australia
18 September 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this prospectus and registration
statement of IMC Global Inc. on Form S-4 of our report dated August 14, 1997, on
our audits of the consolidated financial statements of Harris Chemical Group,
Inc. as of March 29, 1997 and March 30, 1996, and for the years ended March 29,
1997, March 30, 1996, and March 25, 1995, which report is included in IMC Global
Inc.'s Form 8-K/A which was filed with the Securities and Exchange Commission on
June 15, 1998.
We also consent to the incorporation by reference in this prospectus and
registration statement of IMC Global Inc. on Form S-4 of our report dated
September 8, 1998, on our audits of the consolidated financial statements of
Harris Chemical Group, Inc. as of March 28, 1998 and March 29, 1997, and for the
years ended March 28, 1998, March 29, 1997, and March 30, 1996, which report is
included in IMC Global Inc.'s Form 8-K/A which was filed with the Securities and
Exchange Commission on September 16, 1998. We also consent to the reference to
our firm under the caption "Experts".
Kansas City, Missouri /s/ PricewaterhouseCoopers LLP
September 17, 1998 --------------------------
PricewaterhouseCoopers LLP
<PAGE>
Exhibit 23.5
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 21, 1997
incorporated by reference in Freeport-McMoRan Inc's Form 10-K for the year
ended December 31, 1996 and to all references to our Firm included in this
Registration Statement.
Arthur Andersen LLP
New Orleans, Louisiana
September 18, 1998
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, a Registration Statement on Form
S-4 under the Securities Act of 1933, as amended, with respect to the exchange
of its 6 1/2% Notes due 2003 for a like principal amount of the Company's issued
and outstanding 6 1/2% Notes due 2003, of which an aggregate of $200 million in
principal amount is outstanding, and of its 7 3/8% Debentures due 2018 for a
like principal amount of its issued and outstanding 7 3/8% Debentures due 2018,
of which an aggregate of $100 million in principal amount is outstanding; to
execute and deliver any and all amendments to such Registration Statement
(including post-effective amendments) for filing with the Securities and
Exchange Commission; and in connection with the foregoing, to do any and all
acts and things and execute any and all instruments which such attorneys and
agents may deem necessary or advisable to enable the Company to comply with the
securities laws of the United States and of any state or other political
subdivision thereof. The undersigned hereby grants to such attorneys and agents,
and each of them, full power of substitution and revocation in the premises and
hereby ratifies and confirms all that such attorneys and agents may do or cause
to be done by virtue of these presents.
Dated this 25th day of August, 1998.
/s/ Robert E. Fowler, Jr.
- -----------------------------
Robert E. Fowler, Jr.
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, a Registration Statement on Form
S-4 under the Securities Act of 1933, as amended, with respect to the exchange
of its 6 1/2% Notes due 2003 for a like principal amount of the Company's issued
and outstanding 6 1/2% Notes due 2003, of which an aggregate of $200 million in
principal amount is outstanding, and of its 7 3/8% Debentures due 2018 for a
like principal amount of its issued and outstanding 7 3/8% Debentures due 2018,
of which an aggregate of $100 million in principal amount is outstanding; to
execute and deliver any and all amendments to such Registration Statement
(including post-effective amendments) for filing with the Securities and
Exchange Commission; and in connection with the foregoing, to do any and all
acts and things and execute any and all instruments which such attorneys and
agents may deem necessary or advisable to enable the Company to comply with the
securities laws of the United States and of any state or other political
subdivision thereof. The undersigned hereby grants to such attorneys and agents,
and each of them, full power of substitution and revocation in the premises and
hereby ratifies and confirms all that such attorneys and agents may do or cause
to be done by virtue of these presents.
Dated this 25th day of August, 1998.
/s/ Wendell F. Bueche
- -----------------------------
Wendell F. Bueche
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, a Registration Statement on Form
S-4 under the Securities Act of 1933, as amended, with respect to the exchange
of its 6 1/2% Notes due 2003 for a like principal amount of the Company's issued
and outstanding 6 1/2% Notes due 2003, of which an aggregate of $200 million in
principal amount is outstanding, and of its 7 3/8% Debentures due 2018 for a
like principal amount of its issued and outstanding 7 3/8% Debentures due 2018,
of which an aggregate of $100 million in principal amount is outstanding; to
execute and deliver any and all amendments to such Registration Statement
(including post-effective amendments) for filing with the Securities and
Exchange Commission; and in connection with the foregoing, to do any and all
acts and things and execute any and all instruments which such attorneys and
agents may deem necessary or advisable to enable the Company to comply with the
securities laws of the United States and of any state or other political
subdivision thereof. The undersigned hereby grants to such attorneys and agents,
and each of them, full power of substitution and revocation in the premises and
hereby ratifies and confirms all that such attorneys and agents may do or cause
to be done by virtue of these presents.
Dated this 25th day of August, 1998.
/s/ Raymond F. Bentele
- -----------------------------
Raymond F. Bentele
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, a Registration Statement on Form
S-4 under the Securities Act of 1933, as amended, with respect to the exchange
of its 6 1/2% Notes due 2003 for a like principal amount of the Company's issued
and outstanding 6 1/2% Notes due 2003, of which an aggregate of $200 million in
principal amount is outstanding, and of its 7 3/8% Debentures due 2018 for a
like principal amount of its issued and outstanding 7 3/8% Debentures due 2018,
of which an aggregate of $100 million in principal amount is outstanding; to
execute and deliver any and all amendments to such Registration Statement
(including post-effective amendments) for filing with the Securities and
Exchange Commission; and in connection with the foregoing, to do any and all
acts and things and execute any and all instruments which such attorneys and
agents may deem necessary or advisable to enable the Company to comply with the
securities laws of the United States and of any state or other political
subdivision thereof. The undersigned hereby grants to such attorneys and agents,
and each of them, full power of substitution and revocation in the premises and
hereby ratifies and confirms all that such attorneys and agents may do or cause
to be done by virtue of these presents.
Dated this 25th day of August, 1998.
/s/ Robert W. Bruce III
- -----------------------------
Robert W. Bruce III
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, a Registration Statement on Form
S-4 under the Securities Act of 1933, as amended, with respect to the exchange
of its 6 1/2% Notes due 2003 for a like principal amount of the Company's issued
and outstanding 6 1/2% Notes due 2003, of which an aggregate of $200 million in
principal amount is outstanding, and of its 7 3/8% Debentures due 2018 for a
like principal amount of its issued and outstanding 7 3/8% Debentures due 2018,
of which an aggregate of $100 million in principal amount is outstanding; to
execute and deliver any and all amendments to such Registration Statement
(including post-effective amendments) for filing with the Securities and
Exchange Commission; and in connection with the foregoing, to do any and all
acts and things and execute any and all instruments which such attorneys and
agents may deem necessary or advisable to enable the Company to comply with the
securities laws of the United States and of any state or other political
subdivision thereof. The undersigned hereby grants to such attorneys and agents,
and each of them, full power of substitution and revocation in the premises and
hereby ratifies and confirms all that such attorneys and agents may do or cause
to be done by virtue of these presents.
Dated this 25th day of August, 1998.
/s/ Rod F. Dammeyer
- -----------------------------
Rod F. Dammeyer
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, a Registration Statement on Form
S-4 under the Securities Act of 1933, as amended, with respect to the exchange
of its 6 1/2% Notes due 2003 for a like principal amount of the Company's issued
and outstanding 6 1/2% Notes due 2003, of which an aggregate of $200 million in
principal amount is outstanding, and of its 7 3/8% Debentures due 2018 for a
like principal amount of its issued and outstanding 7 3/8% Debentures due 2018,
of which an aggregate of $100 million in principal amount is outstanding; to
execute and deliver any and all amendments to such Registration Statement
(including post-effective amendments) for filing with the Securities and
Exchange Commission; and in connection with the foregoing, to do any and all
acts and things and execute any and all instruments which such attorneys and
agents may deem necessary or advisable to enable the Company to comply with the
securities laws of the United States and of any state or other political
subdivision thereof. The undersigned hereby grants to such attorneys and agents,
and each of them, full power of substitution and revocation in the premises and
hereby ratifies and confirms all that such attorneys and agents may do or cause
to be done by virtue of these presents.
Dated this 25th day of August, 1998.
/s/ James M. Davidson
- -----------------------------
James M. Davidson
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, a Registration Statement on Form
S-4 under the Securities Act of 1933, as amended, with respect to the exchange
of its 6 1/2% Notes due 2003 for a like principal amount of the Company's issued
and outstanding 6 1/2% Notes due 2003, of which an aggregate of $200 million in
principal amount is outstanding, and of its 7 3/8% Debentures due 2018 for a
like principal amount of its issued and outstanding 7 3/8% Debentures due 2018,
of which an aggregate of $100 million in principal amount is outstanding; to
execute and deliver any and all amendments to such Registration Statement
(including post-effective amendments) for filing with the Securities and
Exchange Commission; and in connection with the foregoing, to do any and all
acts and things and execute any and all instruments which such attorneys and
agents may deem necessary or advisable to enable the Company to comply with the
securities laws of the United States and of any state or other political
subdivision thereof. The undersigned hereby grants to such attorneys and agents,
and each of them, full power of substitution and revocation in the premises and
hereby ratifies and confirms all that such attorneys and agents may do or cause
to be done by virtue of these presents.
Dated this 25th day of August, 1998.
/s/ Rene L. Latiolais
- -----------------------------
Rene L. Latiolais
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, a Registration Statement on Form
S-4 under the Securities Act of 1933, as amended, with respect to the exchange
of its 6 1/2% Notes due 2003 for a like principal amount of the Company's issued
and outstanding 6 1/2% Notes due 2003, of which an aggregate of $200 million in
principal amount is outstanding, and of its 7 3/8% Debentures due 2018 for a
like principal amount of its issued and outstanding 7 3/8% Debentures due 2018,
of which an aggregate of $100 million in principal amount is outstanding; to
execute and deliver any and all amendments to such Registration Statement
(including post-effective amendments) for filing with the Securities and
Exchange Commission; and in connection with the foregoing, to do any and all
acts and things and execute any and all instruments which such attorneys and
agents may deem necessary or advisable to enable the Company to comply with the
securities laws of the United States and of any state or other political
subdivision thereof. The undersigned hereby grants to such attorneys and agents,
and each of them, full power of substitution and revocation in the premises and
hereby ratifies and confirms all that such attorneys and agents may do or cause
to be done by virtue of these presents.
Dated this 25th day of August, 1998.
/s/ Harold H. MacKay
- -----------------------------
Harold H. MacKay
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, a Registration Statement on Form
S-4 under the Securities Act of 1933, as amended, with respect to the exchange
of its 6 1/2% Notes due 2003 for a like principal amount of the Company's issued
and outstanding 6 1/2% Notes due 2003, of which an aggregate of $200 million in
principal amount is outstanding, and of its 7 3/8% Debentures due 2018 for a
like principal amount of its issued and outstanding 7 3/8% Debentures due 2018,
of which an aggregate of $100 million in principal amount is outstanding; to
execute and deliver any and all amendments to such Registration Statement
(including post-effective amendments) for filing with the Securities and
Exchange Commission; and in connection with the foregoing, to do any and all
acts and things and execute any and all instruments which such attorneys and
agents may deem necessary or advisable to enable the Company to comply with the
securities laws of the United States and of any state or other political
subdivision thereof. The undersigned hereby grants to such attorneys and agents,
and each of them, full power of substitution and revocation in the premises and
hereby ratifies and confirms all that such attorneys and agents may do or cause
to be done by virtue of these presents.
Dated this 25th day of August, 1998.
/s/ David B. Mathis
- -----------------------------
David B. Mathis
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, a Registration Statement on Form
S-4 under the Securities Act of 1933, as amended, with respect to the exchange
of its 6 1/2% Notes due 2003 for a like principal amount of the Company's issued
and outstanding 6 1/2% Notes due 2003, of which an aggregate of $200 million in
principal amount is outstanding, and of its 7 3/8% Debentures due 2018 for a
like principal amount of its issued and outstanding 7 3/8% Debentures due 2018,
of which an aggregate of $100 million in principal amount is outstanding; to
execute and deliver any and all amendments to such Registration Statement
(including post-effective amendments) for filing with the Securities and
Exchange Commission; and in connection with the foregoing, to do any and all
acts and things and execute any and all instruments which such attorneys and
agents may deem necessary or advisable to enable the Company to comply with the
securities laws of the United States and of any state or other political
subdivision thereof. The undersigned hereby grants to such attorneys and agents,
and each of them, full power of substitution and revocation in the premises and
hereby ratifies and confirms all that such attorneys and agents may do or cause
to be done by virtue of these presents.
Dated this 25th day of August, 1998.
/s/ Donald F. Mazankowski
- -----------------------------
Donald F. Mazankowski
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, a Registration Statement on Form
S-4 under the Securities Act of 1933, as amended, with respect to the exchange
of its 6 1/2% Notes due 2003 for a like principal amount of the Company's issued
and outstanding 6 1/2% Notes due 2003, of which an aggregate of $200 million in
principal amount is outstanding, and of its 7 3/8% Debentures due 2018 for a
like principal amount of its issued and outstanding 7 3/8% Debentures due 2018,
of which an aggregate of $100 million in principal amount is outstanding; to
execute and deliver any and all amendments to such Registration Statement
(including post-effective amendments) for filing with the Securities and
Exchange Commission; and in connection with the foregoing, to do any and all
acts and things and execute any and all instruments which such attorneys and
agents may deem necessary or advisable to enable the Company to comply with the
securities laws of the United States and of any state or other political
subdivision thereof. The undersigned hereby grants to such attorneys and agents,
and each of them, full power of substitution and revocation in the premises and
hereby ratifies and confirms all that such attorneys and agents may do or cause
to be done by virtue of these presents.
Dated this 25th day of August, 1998.
/s/ Joseph P. Sullivan
- -----------------------------
Joseph P. Sullivan
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, a Registration Statement on Form
S-4 under the Securities Act of 1933, as amended, with respect to the exchange
of its 6 1/2% Notes due 2003 for a like principal amount of the Company's issued
and outstanding 6 1/2% Notes due 2003, of which an aggregate of $200 million in
principal amount is outstanding, and of its 7 3/8% Debentures due 2018 for a
like principal amount of its issued and outstanding 7 3/8% Debentures due 2018,
of which an aggregate of $100 million in principal amount is outstanding; to
execute and deliver any and all amendments to such Registration Statement
(including post-effective amendments) for filing with the Securities and
Exchange Commission; and in connection with the foregoing, to do any and all
acts and things and execute any and all instruments which such attorneys and
agents may deem necessary or advisable to enable the Company to comply with the
securities laws of the United States and of any state or other political
subdivision thereof. The undersigned hereby grants to such attorneys and agents,
and each of them, full power of substitution and revocation in the premises and
hereby ratifies and confirms all that such attorneys and agents may do or cause
to be done by virtue of these presents.
Dated this 25th day of August, 1998.
/s/ Richard L. Thomas
- -----------------------------
Richard L. Thomas
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams his or her true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute and deliver in the name and on behalf of the
undersigned as such Director and/or Officer, a Registration Statement on Form
S-4 under the Securities Act of 1933, as amended, with respect to the exchange
of its 6 1/2% Notes due 2003 for a like principal amount of the Company's issued
and outstanding 6 1/2% Notes due 2003, of which an aggregate of $200 million in
principal amount is outstanding, and of its 7 3/8% Debentures due 2018 for a
like principal amount of its issued and outstanding 7 3/8% Debentures due 2018,
of which an aggregate of $100 million in principal amount is outstanding; to
execute and deliver any and all amendments to such Registration Statement
(including post-effective amendments) for filing with the Securities and
Exchange Commission; and in connection with the foregoing, to do any and all
acts and things and execute any and all instruments which such attorneys and
agents may deem necessary or advisable to enable the Company to comply with the
securities laws of the United States and of any state or other political
subdivision thereof. The undersigned hereby grants to such attorneys and agents,
and each of them, full power of substitution and revocation in the premises and
hereby ratifies and confirms all that such attorneys and agents may do or cause
to be done by virtue of these presents.
Dated this 25th day of August, 1998.
/s/ Billie B. Turner
- -----------------------------
Billie B. Turner
<PAGE>
EXHIBIT 99.1
LETTER OF TRANSMITTAL
TO TENDER FOR EXCHANGE
6 1/2% NOTES DUE 2003
AND
7 3/8% DEBENTURES DUE 2018
OF
IMC GLOBAL INC.
Pursuant to the Prospectus dated , 1998
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON , 1998, UNLESS EXTENDED (SUCH TIME AND DATE, AS THE
SAME MAY BE EXTENDED, THE "EXPIRATION DATE").
PLEASE READ CAREFULLY THE ATTACHED INSTRUCTIONS
If you desire to accept the Exchange Offer, this Letter of Transmittal
should be completed, signed, and submitted to the Exchange Agent:
THE BANK OF NEW YORK
(THE "EXCHANGE AGENT")
By Hand or Overnignt By Facsimile Transmission: By Registered or
Delivery: (Eligible Institutions Only) Certified Mail:
The Bank of New York (212) 815-6339 The Bank of New York
101 Barclay Street 101 Barclay Street, 7E
Corporate Trust Services To Confirm by Telephone New York, New York 10286
Window or for Information Call: Attention:
Ground Level Reorganization
Attention: (212) 815-6337 Section,
Reorganization
Section,
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION VIA
FACSIMILE TO A NUMBER, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A
VALID DELIVERY.
FOR ANY QUESTIONS REGARDING THIS LETTER OF TRANSMITTAL OR FOR ANY ADDITIONAL
INFORMATION, YOU MAY CONTACT THE EXCHANGE AGENT.
The undersigned hereby acknowledges receipt of the Prospectus dated
, 1998 (as it may be supplemented and amended from time to time,
the "Prospectus") of IMC Global Inc., a Delaware corporation ("Company"), and
this Letter of Transmittal (the "Letter of Transmittal"), that together
constitute the Company's offer (the "Exchange Offer") to exchange $1,000 in
principal amount of its 6 1/2% Notes due 2003 (the "Exchange Notes") and
$1,000 principal amount of its 7 3/8% Debentures due 2018 (the "Exchange
Debentures"), each registered under the Securities Act of 1933, as amended
(the "Securities Act"), pursuant to a Registration Statement, for each $1,000
principal amount of its outstanding 6 1/2% Notes due 2003 (the "Notes"), of
which $200,000,000 principal amount is outstanding, and for each $1,000
principal amount of its outstanding 7 3/8% Debentures due 2018 (the
"Debentures"), of which $100,000,000 principal amount is outstanding,
respectively. Capitalized terms used but not defined herein have the meanings
ascribed to them in the Prospectus.
The undersigned hereby tenders the Notes (the "Tendered Notes") and/or the
Debentures ("Tendered Debentures") described in Box 1 below pursuant to the
terms and conditions described in the Prospectus and this Letter of
Transmittal. The undersigned is the registered owner of all the Tendered Notes
and/or the Tendered Debentures and the undersigned represents that it has
received from each beneficial owner of the Tendered Notes
<PAGE>
and/or the Tendered Debentures ("Beneficial Owners") a duly completed and
executed form of "Instruction to Registered Holder and/or Book-Entry Transfer
Facility Participant from Beneficial Owner" accompanying this Letter of
Transmittal, instructing the undersigned to take the action described in this
Letter of Transmittal.
Subject to, and effective upon, the acceptance for exchange of the Tendered
Notes and/or the Tendered Debentures, the undersigned hereby exchanges,
assigns and transfers to, or upon the order of, the Company all right, title,
and interest in, to and under the Tendered Notes and/or the Tendered
Debentures.
Please issue the Exchange Notes and/or the Exchange Debentures exchanged for
Tendered Notes and/or Tendered Debentures, respectively, in the name(s) of the
undersigned. Similarly, unless otherwise indicated under "Special Delivery
Instructions" below (see Box 3), please send or cause to be sent the
certificates for the Exchange Notes and/or the Exchange Debentures (and
accompanying documents, as appropriate) to the undersigned at the address
shown below in Box 1.
The undersigned hereby irrevocably constitutes and appoints the Exchange
Agent as the true and lawful agent and attorney in fact of the undersigned
with respect to the Tendered Notes and/or the Tendered Debentures, with full
power of substitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest), to (i) deliver the Tendered Notes
and/or the Tendered Debentures to the Company or cause ownership of the
Tendered Notes and/or the Tendered Debentures to be transferred to, or upon
the order of, the Company, on the books of the registrar for the Notes and/or
the Debentures and deliver all accompanying evidences of transfer and
authenticity to, or upon the order of, the Company upon receipt by the
Exchange Agent, as the undersigned's agent, of the Exchange Notes and/or the
Exchange Debentures to which the undersigned is entitled upon acceptance by
the Company of the Tendered Notes and/or the Tendered Debentures pursuant to
the Exchange Offer, and (ii) receive all benefits and otherwise exercise all
rights of beneficial ownership of the Tendered Notes and/or the Tendered
Debentures, all in accordance with the terms of the Exchange Offer.
The undersigned understands that tenders of Notes and/or Debentures pursuant
to the procedures described under the caption "Exchange Offer" in the
Prospectus and in the instructions hereto will constitute a binding agreement
between the undersigned and the Company upon the terms and subject to the
conditions of the Exchange Offer, subject only to withdrawal of such tenders
on the terms set forth in the Prospectus under the caption "Exchange Offer--
Withdrawal of Tenders." All authority herein conferred or agreed to be
conferred shall survive the death or incapacity of the undersigned and any
Beneficial Owner(s), and every obligation of the undersigned or any Beneficial
Owner(s) hereunder shall be binding upon the heirs, representatives,
successors, and assigns of the undersigned and such Beneficial Owner(s).
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, exchange, assign, and transfer the Tendered
Notes and/or the Tendered Debentures and that the Company will acquire good
and unencumbered title thereto, free and clear of all liens, restrictions,
charges, encumbrances, and adverse claims when the Tendered Notes and/or the
Tendered Debentures are acquired by the Company as contemplated herein. The
undersigned and each Beneficial Owner will, upon request, execute and deliver
any additional documents reasonably requested by the Company or the Exchange
Agent as necessary or desirable to complete and give effect to the
transactions contemplated hereby.
The undersigned hereby represents and warrants that the information set
forth in Box 2 is true and correct.
By accepting the Exchange Offer, the undersigned hereby represents and
warrants that (i) neither the undersigned nor any Beneficial Owner, whether or
not the undersigned or any Beneficial Owner is the holder, is an "affiliate"
(as defined in Rule 405 under the Securities Act) of the Company, (ii) the
Exchange Notes and/or the Exchange Debentures to be received by the
undersigned and any Beneficial Owner(s) are being acquired in the ordinary
course of business, (iii) the undersigned and any Beneficial Owner(s) have no
arrangement with any person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Notes or the Exchange
Debentures, as applicable, and (iv) if the undersigned or any Beneficial Owner
is not a broker-dealer, the undersigned or any such Beneficial Owner is not
engaged in, and does not intend to engage in, a distribution
2
<PAGE>
(within the meaning of the Securities Act). By accepting the Exchange Offer,
the undersigned hereby represents and agrees, consistent with certain no-
action letters issued by the Staff to third parties, that, if the undersigned
or any Beneficial Owner of the Notes and/or the Debentures is a broker-dealer,
that (i) such Notes and/or Debentures are held by such broker-dealer only as a
nominee or (ii) such Notes and/or Debentures were acquired by such broker-
dealer for its own account as a result of market-making or other trading
activities and it will deliver a prospectus meeting the requirements of the
Securities Act in connection with resales of any Exchange Notes or Exchange
Debentures received pursuant to the Exchange Offer. By agreeing that it will
deliver and by delivering a prospectus, such broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
The Company has agreed that, for a period of 180 days after the Expiration
Date, it will make the Prospectus available to any broker-dealer who acquired
Notes or Debentures for its own account as a result of market-making or other
trading activities (a "Participating Broker-Dealer"), provided that the
Company has received prior written notice from such Participating Broker-
Dealer of its status as a Participating Broker-Dealer. Such notice may be
given in Box 7 or may be delivered to the Exchange Agent at the address
indicated above.
Holders of Notes and/or Debentures that are tendering by book-entry transfer
to the Exchange Agent's account at DTC can execute the tender through the DTC
Automated Tender Offer Program ("ATOP"), for which the transaction will be
eligible. DTC participants that are accepting the Exchange Offer must transmit
their acceptance to DTC, which will verify the acceptance and execute a book-
entry delivery to the Exchange Agent's DTC account. DTC will then send an
Agent's Message to the Exchange Agent for its acceptance. DTC participants may
also accept the Exchange Offer prior to the Expiration Date by submitting a
Notice of Guaranteed Delivery or Agent's Message relating thereto as described
herein under Instruction 2, "Guaranteed Delivery Procedures."
[_]CHECK HERE IF TENDERED NOTES AND/OR TENDERED DEBENTURES ARE BEING DELIVERED
HEREWITH.
[_]CHECK HERE IF TENDERED NOTES AND/OR TENDERED DEBENTURES ARE BEING DELIVERED
PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY DELIVERED TO THE
EXCHANGE AGENT AND COMPLETE "USE OF GUARANTEED DELIVERY" BELOW (BOX 4).
[_]CHECK HERE IF TENDERED NOTES AND/OR TENDERED DEBENTURES ARE BEING DELIVERED
BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE
AGENT WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE "USE OF BOOK-
ENTRY TRANSFER" BELOW (BOX 5).
3
<PAGE>
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING THE BOXES
BOX 1
DESCRIPTION OF NOTES AND/OR DEBENTURES TENDERED
(ATTACH ADDITIONAL SIGNED PAGES, IF NECESSARY)
<TABLE>
- -------------------------------------------------------------------------------------
<CAPTION>
NAME(S) AND ADDRESS(ES)
OF REGISTERED NOTE HOLDER(S)
AND/OR REGISTERED DEBENTURE
HOLDERS, EXACTLY AS
NAME(S) APPEAR(S) ON CERTIFICATE AGGREGATE PRINCIPAL
NOTE CERTIFICATE(S) NUMBER(S) OF AMOUNT AGGREGATE
AND/OR DEBENTURE CERTIFICATE(S) NOTES AND/OR REPRESENTED BY PRINCIPAL AMOUNT
(PLEASE FILL IN, IF BLANK) DEBENTURES* CERTIFICATES(S) TENDERED**
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
<S> <C> <C> <C>
Total
- -------------------------------------------------------------------------------------
</TABLE>
*Need not be completed by persons tendering by book-entry transfer.
**The minimum permitted tender is $1,000 in principal amount of Notes or
Debentures. All other tenders must be in integral multiples of $1,000 of
principal amount. Unless otherwise indicated in this column, the principal
amount of all Note Certificates and all Debenture Certificates identified
in this Box 1 or delivered to the Exchange Agent herewith shall be deemed
tendered. See Instruction 4.
BOX 2
BENEFICIAL OWNER(S)
- --------------------------------------------------------------------------------
STATE OF PRINCIPAL RESIDENCE OF EACH PRINCIPAL AMOUNT OF TENDERED NOTES
BENEFICIAL OWNER OF TENDERED NOTES AND/OR TENDERED DEBENTURES HELD FOR
AND/OR TENDERED DEBENTURES ACCOUNT OF BENEFICIAL OWNER
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
4
<PAGE>
BOX 3
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 5, 6 AND 7)
TO BE COMPLETED ONLY IF EXCHANGE NOTES AND/OR EXCHANGE DEBENTURES EXCHANGED
FOR NOTES AND/OR DEBENTURES AND UNTENDERED NOTES AND/OR UNTENDERED
DEBENTURES ARE TO BE SENT TO SOMEONE OTHER THAN THE UNDERSIGNED, OR TO THE
UNDERSIGNED AT AN ADDRESS OTHER THAN THAT SHOWN ABOVE.
Mail Exchange Note(s) and/or Exchange Debenture(s) and any untendered Notes
and/or untendered Debentures to:
Name(s):
-----------------------------------------------------------------------------
(please print)
Address:
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
(include Zip Code)
Tax Identification or
Social Security No.: ________________________________________________________
BOX 4
USE OF GUARANTEED DELIVERY
(SEE INSTRUCTION 2)
TO BE COMPLETED ONLY IF NOTES AND/OR DEBENTURES ARE BEING TENDERED BY MEANS
OF A NOTICE OF GUARANTEED DELIVERY.
Name(s) of Registered Holder(s): ____________________________________________
Window Ticket No. (if any): _________________________________________________
Date of Execution of Notice of Guaranteed Delivery: _________________________
Name of Institution that Guaranteed Delivery: _______________________________
If Delivered by Book-Entry Transfer: ________________________________________
Account Number with DTC: _________________________________________________
Transaction Code Number: _________________________________________________
BOX 5
USE OF BOOK-ENTRY TRANSFER
(SEE INSTRUCTION 1)
TO BE COMPLETED ONLY IF DELIVERY OF TENDERED NOTES AND/OR TENDERED
DEBENTURES IS TO BE MADE BY BOOK-ENTRY TRANSFER.
Name of Tendering Institution: ______________________________________________
Account Number: _____________________________________________________________
Transaction Code Number: ____________________________________________________
5
<PAGE>
BOX 6
TENDERING HOLDER SIGNATURE
(SEE INSTRUCTIONS 1 AND 5)
IN ADDITION, COMPLETE SUBSTITUTE FORM W-9
- --------------------------------------------------------------------------------
Signature Guarantee
X _________________________________ (If required by Instruction 5)
X _________________________________ Authorized Signature
(SIGNATURE OF REGISTERED HOLDER(S) X _________________________________
OR AUTHORIZED SIGNATORY) Name: _____________________________
(please print)
Note: The above lines must be
signed by the registered holder(s)
of Notes and/or Debentures as
their name(s) appear(s) on the
Notes and/or Debentures or by
persons(s) authorized to become
registered holder(s) (evidence of
such authorization must be
transmitted with this Letter of
Transmittal). If signature is by a
trustee, executor, administrator,
guardian, attorney-in-fact,
officer, or other person acting in
a fiduciary or representative
capacity, such person must set
forth his or her full title below.
See Instruction 5.
Title: ____________________________
Name of Firm: _____________________
(Must be an Eligible Institution
as
defined in Instruction 2)
Address:
-----------------------------------
-----------------------------------
-----------------------------------
(Zip Code)
Area Code and Telephone Number:
Name(s): __________________________
-----------------------------------
Capacity: _________________________
Dated: ____________________________
Street Address: ___________________
------------------------BOX 7
(Zip Code)
BROKER-DEALER STATUS
Area Code and Telephone Number:
- --------------------------------------------------------------------------------
[_]Check this box if the Beneficial Owner of the Notes and/or the
Debentures is a Participating Broker-Dealer and such Participating
Broker-Dealer acquired the Notes and/or the Debentures for its own
account as a result of market-making or other trading activities.
-----------------------------------
Tax Identification or Social
Security Number:
-----------------------------------
6
<PAGE>
PAYOR'S NAME: THE BANK OF NEW YORK
- -------------------------------------------------------------------------------
SUBSTITUTE Name (if joint names, list first and circle the name of
FORM W-9 the person or entity whose number you enter in Part 1
below. See instructions if your name has changed.)
DEPARTMENT OF THE City, State and ZIP Code
-------------------------------------------------------------
Address
-------------------------------------------------------------
TREASURY List account number(s) here
(optional)
-------------------------------------------------------------
PART 1--PLEASE PROVIDE YOUR TAXPAYER Social
IDENTIFICATION NUMBER ("TIN") IN THE BOX Security
AT RIGHT AND CERTIFY BY SIGNING AND Number
DATING BELOW
INTERNAL REVENUE -------------------------------------------------------------
SERVICE
or TIN
-------------------------------------------------------------
PART 2--Check the box if you are NOT subject to backup
withholding under the provisions of section 3406(a)(1)(C)
of the Internal Revenue Code because (1) you have not
been notified that you are subject to backup withholding
as a result of failure to report all interest or
dividends or (2) the Internal Revenue Service has
notified you that you are no longer subject to backup
withholding. [_]
-------------------------------------------------------------
CERTIFICATION--UNDER THE PENALTIES OF PART 3--
PERJURY, I CERTIFY THAT THE INFORMATION Awaiting
PROVIDED ON THIS FORM IS TRUE, CORRECT TIN [_]
AND COMPLETE.
SIGNATURE _____________ DATE _____________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE
OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
7
<PAGE>
IMC GLOBAL INC.
INSTRUCTIONS TO LETTER OF TRANSMITTAL
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND NOTES AND/OR DEBENTURES. This
Letter of Transmittal is to be completed by registered holders of Notes and/or
Debentures if certificates representing such Notes and/or Debentures are to be
forwarded herewith pursuant to the procedures set forth in the Prospectus
under the caption "Exchange Offer--Procedures for Tendering," unless delivery
is to be made by book-entry transfer to the Exchange Agent's account
maintained by DTC through ATOP. For a holder to properly tender Notes and/or
Debentures pursuant to the Exchange Offer, a properly completed and duly
executed copy of this Letter of Transmittal, including Substitute Form W-9,
and any other documents required by this Letter of Transmittal must be
received by the Exchange Agent at its address set forth herein, and either (i)
certificates for Tendered Notes and/or Tendered Debentures must be received by
the Exchange Agent at its address set forth herein or (ii) such Tendered Notes
and/or Tendered Debentures must be transferred pursuant to the procedures for
book-entry transfer described in the Prospectus under the caption "Exchange
Offer--Procedures for Tendering" (and a confirmation of such transfer received
by the Exchange Agent), in each case on or prior to the Expiration Date. The
method of delivery of certificates for Tendered Notes and/or Tendered
Debentures, this Letter of Transmittal and all other required documents to the
Exchange Agent is at the election and risk of the tendering holder and the
delivery will be deemed made only when actually received by the Exchange
Agent. If delivery is by mail, registered mail with return receipt requested,
properly insured, is recommended. Instead of delivery by mail, it is
recommended that the holder use an overnight or hand delivery service. In all
cases, sufficient time should be allowed to assure timely delivery. No Letter
of Transmittal or Tendered Notes or Tendered Debentures should be sent to the
Company. Neither the Company nor the Exchange Agent is under any obligation to
notify any tendering holder of the Company's acceptance of Tendered Notes
and/or Tendered Debentures prior to the closing of the Exchange Offer.
2. GUARANTEED DELIVERY PROCEDURES. If a registered holder desires to tender
Notes and/or Debentures pursuant to the Exchange Offer and (a) certificates
representing such Tendered Notes and/or Tendered Debentures are not
immediately available, (b) time will not permit such holder's Letter of
Transmittal, certificates representing such Tendered Notes and/or Tendered
Debentures and all other required documents to reach the Exchange Agent on or
prior to the Expiration Date, or (c) the procedures for book-entry transfer
cannot be completed on or prior to the Expiration Date, such holder may
nevertheless tender such Notes and/or Debentures with the effect that such
tender will be deemed to have been received on or prior to the Expiration Date
if the procedures set forth below and in the Prospectus under "Exchange
Offer--Guaranteed Delivery Procedures" (including the completion of Box 4
above) are followed. Pursuant to such procedures, (i) the tender must be made
by or through an Eligible Institution (as defined), (ii) a properly completed
and duly executed Notice of Guaranteed Delivery, substantially in the form
provided by the Company herewith, or an Agent's Message with respect to a
guaranteed delivery that is accepted by the Company, must be received by the
Exchange Agent on or prior to the Expiration Date, and (iii) the certificates
for the Tendered Notes and/or Tendered Debentures, in proper form for transfer
(or a book-entry confirmation of the transfer of such Tendered Notes and/or
Tendered Debentures to the Exchange Agent's account at DTC as described in the
Prospectus), together with a Letter of Transmittal (or manually signed
facsimile thereof) properly completed and duly executed, with any required
signature guarantees and any other documents required by the Letter of
Transmittal or a properly transmitted Agent's Message, must be received by the
Exchange Agent within three New York Stock Exchange trading days after the
date of execution of the Notice of Guaranteed Delivery. Any holder who wishes
to tender Notes and/or Debentures pursuant to the guaranteed delivery
procedures described above must ensure that the Exchange Agent receives the
Notice of Guaranteed Delivery relating to such Tendered Notes and/or Tendered
Debentures on or prior to the Expiration Date. Failure to complete the
guaranteed delivery procedures outlined above will not, of itself, affect the
validity or effect a revocation of any Letter of Transmittal form properly
completed and executed by an eligible holder who attempted to use the
guaranteed delivery process.
8
<PAGE>
3. BENEFICIAL OWNER INSTRUCTIONS TO REGISTERED HOLDERS. Only a holder in
whose name Tendered Notes and/or Tendered Debentures are registered on the
books of the registrar (or the legal representative or attorney-in-fact of
such registered holder) may execute and deliver this Letter of Transmittal.
Any Beneficial Owner of Tendered Notes and/or Tendered Debentures who is not
the registered holder must arrange promptly with the registered holder to
execute and deliver this Letter of Transmittal on his or her behalf through
the execution and delivery to the registered holder of the "Instructions to
Registered Holder and/or Book-Entry Transfer Facility Participant from
Beneficial Owner" form accompanying this Letter of Transmittal.
4. PARTIAL TENDERS. Tenders of Notes and/or Debentures will be accepted only
in integral multiples of $1,000 in principal amount. If less than the entire
principal amount of Notes and/or Debentures held by the holder is tendered,
the tendering holder should fill in the principal amount tendered in the
column labeled "Aggregate Principal Amount Tendered" of the box entitled
"Description of Notes and/or Debentures Tendered" (see Box 1) above. The
entire principal amount of Notes and/or Debentures delivered to the Exchange
Agent will be deemed to have been tendered unless otherwise indicated. If the
entire principal amount of all Notes and/or Debentures held by the holder is
not tendered, then Notes and/or Debentures for the principal amount of Notes
and/or Debentures not tendered and Exchange Notes and/or Exchange Debentures
issued in exchange for any Notes and/or Debentures tendered and accepted will
be sent to the holder at his or her registered address, unless a different
address is provided in the appropriate box on this Letter of Transmittal, as
soon as practicable following the Expiration Date.
5. SIGNATURES ON THE LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS;
GUARANTEE OF SIGNATURES. If this Letter of Transmittal is signed by the
registered holder(s) of the Tendered Notes and/or the Tendered Debentures, the
signature must correspond with the name(s) as written on the face of the
Tendered Notes and/or Tendered Debentures without alteration, enlargement or
any change whatsoever.
If any of the Tendered Notes and/or the Tendered Debentures are owned of
record by two or more joint owners, all such owners must sign this Letter of
Transmittal. If any Tendered Notes and/or Tendered Debentures are held in
different names, it will be necessary to complete, sign and submit as many
separate copies of the Letter of Transmittal as there are different names in
which Tendered Notes and/or Tendered Debentures are held.
If this Letter of Transmittal is signed by the registered holder(s) of
Tendered Notes and/or Tendered Debentures, and Exchange Notes and/or Exchange
Debentures issued in exchange therefor are to be issued (and any untendered
principal amount of Notes and/or Debentures is to be reissued) in the name of
the registered holder(s), then such registered holder(s) need not and should
not endorse any Tendered Notes and/or Tendered Debentures, nor provide a
separate bond power. In any other case, such registered holder(s) must either
properly endorse the Tendered Notes and/or the Tendered Debentures or transmit
a properly completed separate bond power with this Letter of Transmittal, with
the signature(s) on the endorsement or bond power guaranteed by a Medallion
Signature Guarantor (as defined below).
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of any Tendered Notes and/or Tendered Debentures, such
Tendered Notes and/or Tendered Debentures must be endorsed or accompanied by
appropriate bond powers, in each case, signed as the name(s) of the registered
holder(s) appear(s) on the Tendered Notes and/or the Tendered Debentures, with
the signature(s) on the endorsement or bond power guaranteed by a Medallion
Signature Guarantor (as defined).
If this Letter of Transmittal or any Tendered Notes and/or Tendered
Debentures or bond powers are signed by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations, or others acting in a
fiduciary or representative capacity, such persons should so indicate when
signing and, unless waived by the Company, evidence satisfactory to the
Company of their authority to so act must be submitted with this Letter of
Transmittal.
Signatures on this Letter of Transmittal must be guaranteed by a recognized
participant in the Securities Transfer Agents Medallion Program, the New York
Stock Exchange Medallion Signature Program or the Stock Exchange Medallion
Program (each a "Medallion Signature Guarantor"), unless the Tendered Notes
and/or the
9
<PAGE>
Tendered Debentures are tendered (i) by a registered holder of Tendered Notes
and/or Tendered Debentures (or by a participant in DTC whose name appears on a
security position listing as the owner of such Tendered Notes and/or Tendered
Debentures) who has not completed Box 3 ("Special Delivery Instructions") on
this Letter of Transmittal or (ii) for the account of a member firm of a
registered national securities exchange, a member of the National Association
of Securities Dealers, Inc. ("NASD") or a commercial bank or trust company
having an office or correspondent in the United States (each of the foregoing
being referred to as an "Eligible Institution"). If the Tendered Notes and/or
the Tendered Debentures are registered in the name of a person other than the
signor of the Letter of Transmittal or if Notes and/or Debentures not tendered
are to be returned to a person other than the registered holder, then the
signature on this Letter of Transmittal accompanying the Tendered Notes and/or
the Tendered Debentures must be guaranteed by a Medallion Signature Guarantor
as described above. Beneficial owners whose Notes and/or Debentures are
registered in the name of a broker, dealer, commercial bank, trust company or
other nominee must contact such broker, dealer, commercial bank, trust company
or other nominee if they desire to tender such Notes and/or Debentures.
6. SPECIAL DELIVERY INSTRUCTIONS. Tendering holders should indicate in Box 3
the name and address to which the Exchange Notes and/or the Exchange
Debentures (and/or substitute Notes and/or Debentures) for principal amounts
not tendered or not accepted for exchange are to be sent, if different from
the name and address of the person signing this Letter of Transmittal. In the
case of issuance in a different name, the taxpayer identification or social
security number of the person named must also be indicated.
7. TRANSFER TAXES. The Company will pay all transfer taxes, if any,
applicable to the exchange of Tendered Notes and/or Tendered Debentures
pursuant to the Exchange Offer. If, however, a transfer tax is imposed for any
reason other than the transfer and exchange of Tendered Notes and/or Tendered
Debentures pursuant to the Exchange Offer, then the amount of any such
transfer taxes (whether imposed on the registered holder or on any other
person) will be payable by the tendering holder. If satisfactory evidence of
payment of such taxes or exemption therefrom is not submitted with this Letter
of Transmittal, the amount of such transfer taxes will be billed directly to
such tendering holder.
Except as provided in this Instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the Tendered Notes and/or the Tendered
Debentures listed in this Letter of Transmittal.
8. TAX IDENTIFICATION NUMBER. Federal income tax law requires that the
holder(s) of any Tendered Notes and/or Tendered Debentures which are accepted
for exchange must provide the Exchange Agent (as payor) with its correct
taxpayer identification number ("TIN"), which, in the case of a holder who is
an individual, is his or her social security number. If the Exchange Agent is
not provided with the correct TIN, the holder may be subject to backup
withholding and a $50 penalty imposed by the Internal Revenue Service. (If
withholding results in an over-payment of taxes, a refund may be obtained.)
Certain holders (including, among others, all corporations and certain foreign
individuals) are not subject to these backup withholding and reporting
requirements. See the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional instructions.
To prevent backup withholding, each holder of Tendered Notes and/or Tendered
Debentures must provide such holder's correct TIN by completing the Substitute
Form W-9 set forth herein, certifying that the TIN provided is correct (or
that such holder is awaiting a TIN), and that (i) the holder has not been
notified by the Internal Revenue Service that such holder is subject to backup
withholding as a result of failure to report all interest or dividends or (ii)
if previously so notified, the Internal Revenue Service has notified the
holder that such holder is no longer subject to backup withholding. If the
Tendered Notes and/or the Tendered Debentures are registered in more than one
name or are not in the name of the actual owner, consult the "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
information on which TIN to report.
The Company reserves the right in its sole discretion to take whatever steps
are necessary to comply with the Company's obligation regarding backup
withholding.
10
<PAGE>
9. VALIDITY OF TENDERS. All questions as to the validity, form, eligibility
(including time of receipt), acceptance and withdrawal of Tendered Notes or
Tendered Debentures will be determined by the Company in its sole discretion,
which determination will be final and binding. The Company reserves the right
to reject any and all Notes or Debentures not validly tendered or any Notes or
Debentures the Company's acceptance of which would, in the opinion of the
Company or its counsel, be unlawful. The Company also reserves the right to
waive any conditions of the Exchange Offer or defects or irregularities in
tenders of Notes or Debentures as to any ineligibility of any holder who seeks
to tender Notes or Debentures in the Exchange Offer. The interpretation of the
terms and conditions of the Exchange Offer (including this Letter of
Transmittal and the instructions hereto) by the Company shall be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of Notes or Debentures must be cured within such time
as the Company shall determine. Neither the Company, the Exchange Agent nor
any other person shall be under any duty to give notification of defects or
irregularities with respect to tenders of Notes or Debentures, nor shall any
of them incur any liability for failure to give such notification. Tenders of
Notes or Debentures will not be deemed to have been made until such defects or
irregularities have been cured or waived. Any Notes or Debentures received by
the Exchange Agent that are not properly tendered and as to which the defects
or irregularities have not been cured or waived will be returned by the
Exchange Agent to the tendering holders, unless otherwise provided in this
Letter of Transmittal, as soon as practicable following the Expiration Date.
10. WAIVER OF CONDITIONS. The Company reserves the absolute right to amend,
waive or modify any of the conditions in the Exchange Offer in the case of any
Tendered Notes or Tendered Debentures.
11. NO CONDITIONAL TENDER. No alternative, conditional, irregular, or
contingent tender of Notes or Debentures or transmittal of this Letter of
Transmittal will be accepted.
12. MUTILATED, LOST, STOLEN OR DESTROYED NOTES. Any tendering holder whose
Notes or Debentures have been mutilated, lost, stolen or destroyed should
contact the Exchange Agent at the address indicated herein for further
instructions.
13. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests for
assistance and requests for additional copies of the Prospectus or this Letter
of Transmittal may be directed to the Exchange Agent at the address indicated
herein. Holders may also contact their broker, dealer, commercial bank, trust
company or other nominee for assistance concerning the Exchange Offer.
14. ACCEPTANCE OF TENDERED NOTES AND TENDERED DEBENTURES AND ISSUANCE OF
EXCHANGE NOTES AND EXCHANGE DEBENTURES; RETURN OF NOTES AND DEBENTURES.
Subject to the terms and conditions of the Exchange Offer, the Company will
accept for exchange all validly Tendered Notes and Tendered Debentures as soon
as practicable after the Expiration Date and will issue Exchange Notes and
Exchange Debentures, as applicable, therefor as soon as practicable
thereafter. For purposes of the Exchange Offer, the Company shall be deemed to
have accepted Tendered Notes and Tendered Debentures when, as and if the
Company has given written or oral notice (immediately followed in writing)
thereof to the Exchange Agent. If any Tendered Notes or Tendered Debentures
are not exchanged pursuant to the Exchange Offer for any reason, such
unexchanged Notes or Debentures will be returned, without expense, to the
undersigned at the address shown in Box 1 or at a different address as may be
indicated herein under "Special Delivery Instructions" (Box 3).
15. WITHDRAWAL. Tenders may be withdrawn only pursuant to the procedures set
forth in the Prospectus under the caption "Exchange Offer--Withdrawal of
Tenders."
11
<PAGE>
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
IN RESPECT OF
6 1/2% NOTES DUE 2003
AND
7 3/8% DEBENTURES DUE 2018
OF
IMC GLOBAL INC.
Pursuant to the Prospectus dated , 1998
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE BANK OF NEW YORK
(THE "EXCHANGE AGENT")
By Hand or Overnight By Facsimile Transmission: By Registered or
Delivery: (Eligible Institutions Only) Certified Mail:
The Bank of New York (212) 815-6339 The Bank of New York
101 Barclay Street 101 Barclay Street, 7E
Corporate Trust To Confirm by Telephone New York, New York
Services Window or for Information Call: 10286
Ground Level Attention:
Reorganization
Attention: (212) 815-6337
Reorganization Section,
Section,
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS, OR TRANSMISSION
VIA FACSIMILE TO A NUMBER, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE
VALID DELIVERY.
As set forth in the Prospectus dated , 1998 (as it may be supplemented
and amended from time to time, the "Prospectus") of IMC Global Inc. (the
"Company") under the caption "Exchange Offer--Guaranteed Delivery Procedures,"
and in the Instructions to the related Letter of Transmittal (the "Letter of
Transmittal"), this form, or one substantially equivalent hereto, or an Agent's
Message relating to the guaranteed delivery procedures, must be used to accept
the Company's offer (the "Exchange Offer") to exchange its 6 1/2% Notes due
2003 ("Exchange Notes") and 7 3/8% Debentures due 2018 ("Exchange Debentures"),
each registered under the Securities Act of 1933, as amended (the "Securities
Act"), for its 6 1/2% Notes due 2003 ("Notes") and its 7 3/8% Debentures due
2018 ("Debentures"), respectively, if time will not permit the Letter of
Transmittal, certificates representing such Notes or Debentures or other
required documents to reach the Exchange Agent, or the procedures for book-
entry transfer cannot be completed, on or prior to the Expiration Date (as
defined).
This form must be delivered by an Eligible Institution (as defined) by mail
or hand delivery or transmitted via facsimile to the Exchange Agent as set
forth above. If a signature on the Letter of Transmittal is required to be
guaranteed by a Medallion Signature Guarantor (as defined in the Letter of
Transmittal) under the instructions thereto, such signature guarantee must
appear in the applicable space provided in the Letter of Transmittal. This form
is not to be used to guarantee signatures.
Questions and requests for assistance and requests for additional copies of
the Prospectus may be directed to the Exchange Agent at the address above.
Holders may also contact their broker, dealer, commercial bank, trust company,
or other nominee for assistance concerning the Exchange Offer.
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW
YORK CITY TIME, ON , 1998, UNLESS EXTENDED (SUCH TIME AND DATE, AS THE
SAME MAY BE EXTENDED, THE "EXPIRATION DATE").
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tender(s) to the Company, upon the terms and subject
to the conditions set forth in the Prospectus and the related Letter of
Transmittal (receipt of which is hereby acknowledged), the principal amount of
the Notes and/or the Debentures specified below pursuant to the guaranteed
delivery procedures set forth in the Prospectus under "Exchange Offer--
Guaranteed Delivery Procedures" and in Instruction 2 to the Letter of
Transmittal. The undersigned hereby authorizes the Exchange Agent to deliver
this Notice of Guaranteed Delivery to the Company with respect to the Notes
and/or the Debentures tendered pursuant to the Exchange Offer.
The undersigned understands that Notes or Debentures will be exchanged only
after timely receipt by the Exchange Agent of (i) such Notes or Debentures, or
a confirmation of book-entry transfer, and (ii) a Letter of Transmittal (or a
manually signed facsimile thereof), including by means of an Agent's Message,
of the transfer of such Notes or Debentures into the Exchange Agent's account
at the Book-Entry Transfer Facility, with respect to such Notes or Debentures,
properly completed and duly executed, with any signature guarantees and any
other documents required by the Letter of Transmittal within three New York
Stock Exchange, Inc. trading days after the execution hereof. The undersigned
also understands that the method of delivery of this Notice of Guaranteed
Delivery and any other required documents to the Exchange Agent is at the
election and sole risk of the holder, and the delivery will be deemed made
only when actually received by the Exchange Agent.
The undersigned understands that tenders of Notes or Debentures will each be
accepted only in principal amounts equal to $1,000 or integral multiples
thereof. The undersigned also understands that tenders of Notes or Debentures
may be withdrawn at any time prior to the Expiration Date.
All authority conferred or agreed to be conferred by this Notice of
Guaranteed Delivery shall not be affected by, and shall survive, the death or
incapacity of the undersigned, and every obligation of the undersigned under
this Notice of Guaranteed Delivery shall be binding upon the heirs, executors,
administrators, trustees in bankruptcy, personal and legal representatives,
successors and assigns of the undersigned.
All capitalized terms used herein but not defined herein shall have the
meanings ascribed to them in the Prospectus.
2
<PAGE>
PLEASE SIGN AND COMPLETE
Signature(s) of Registered Holder(s)
or
Authorized Signatory: _______________ Date: _______________________________
------------------------------------- Address: ____________________________
------------------------------------- -------------------------------------
Name(s) of Registered Holder(s): ____ Area Code and Telephone No. _________
------------------------------------- If Notes and/or Debentures will be
delivered by book-entry transfer,
check book-entry transfer facility
below:
-------------------------------------
Principal Amount of Notes Tendered: _
[_] The Depository Trust Company
-------------------------------------
Depository
Principal Amount of Debentures Account No. _________________________
Tendered: ___________________________
-------------------------------------
Certificate No.(s) of Notes and/or
Debentures
(if available) ______________________
This Notice of Guaranteed Delivery must be signed by the holder(s) exactly
as their name(s) appear(s) on certificate(s) for Notes and/or Debentures or
on a security position listing as the owner of Notes and/or Debentures, or
by person(s) authorized to become holder(s) by endorsements and documents
transmitted with this Notice of Guaranteed Delivery without alteration,
enlargement or any change whatsoever. If signature is by a trustee,
executor, administrator, guardian, attorney-in-fact, officer or other person
acting in a fiduciary or representative capacity, such person must provide
the following information.
Please print name(s) and address(es)
Name(s): ____________________________________________________________________
-----------------------------------------------------------------------------
Capacity: ___________________________________________________________________
Address(es): ________________________________________________________________
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
DO NOT SEND NOTES OR DEBENTURES WITH THIS FORM. NOTES AND DEBENTURES SHOULD
BE SENT TO THE EXCHANGE AGENT TOGETHER WITH A PROPERLY COMPLETED AND DULY
EXECUTED LETTER OF TRANSMITTAL.
3
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member of the Securities Transfer Agents Medallion
Program, the Stock Exchange Medallion Program or the New York Stock
Exchange, Inc. Medallion Signature Program (each, an "Eligible
Institution"), hereby (i) represents that the above-named persons are deemed
to own the Notes and/or the Debentures tendered hereby within the meaning of
Rule 14e-4 promulgated under the Securities Exchange Act of 1934, as amended
("Rule 14e-4"), (ii) represents that such tender of Notes and/or Debentures
complies with Rule 14e-4 and (iii) guarantees that the Notes and/or the
Debentures tendered hereby are in proper form for transfer (pursuant to the
procedures set forth in the Prospectus under "Exchange Offer--Guaranteed
Delivery Procedures"), and that the Exchange Agent will receive (a) such
Notes and/or Debentures, or a confirmation of book-entry transfer of such
Notes and/or Debentures into the Exchange Agent's account at the Book-Entry
Transfer Facility and (b) a properly completed and duly executed Letter of
Transmittal or facsimile thereof (or Agent's message) with any required
signature guarantees and any other documents required by the Letter of
Transmittal within three New York Stock Exchange, Inc. trading days after
the date of execution hereof.
The Eligible Institution that completes this form must communicate the
guarantee to the Exchange Agent and must deliver the Letter of Transmittal
and confirmation of book-entry transfer to the Exchange Agent within the
time period shown herein. Failure to do so could result in a financial loss
to such Eligible Institution.
Name of Firm: _______________________________________________________________
Authorized Signature: _______________________________________________________
Title: ______________________________________________________________________
Address: ____________________________________________________________________
-----------------------------------------------------------------------------
(Zip Code)
Area Code and Telephone Number: _____________________________________________
Dated: ________________________ , 1998
4
<PAGE>
EXHIBIT 99.3
INSTRUCTIONS
TO REGISTERED HOLDER AND/OR
BOOK-ENTRY TRANSFER FACILITY PARTICIPANT FROM BENEFICIAL OWNER
OF
IMC GLOBAL INC.
6 1/2% NOTES DUE 2003
AND
7 3/8% DEBENTURES DUE 2018
To Registered Holder and/or Participant of the Book-Entry Transfer Facility:
The undersigned hereby acknowledges receipt of the Prospectus dated
, 1998 (as the same may be amended or supplemented from time to
time, the "Prospectus") of IMC Global Inc., a Delaware corporation (the
"Company"), and the accompanying Letter of Transmittal (the "Letter of
Transmittal"), that together constitute the Company's offer (the "Exchange
Offer"). Capitalized terms used but not defined herein have the meanings
ascribed to them in the Prospectus.
This will instruct you, the registered holder and/or book-entry transfer
facility participant, as to action to be taken by you relating to the Exchange
Offer with respect to the 6 1/2% Notes due 2003 (the "Notes") and/or the 7
3/8% Debentures due 2018 (the "Debentures") held by you for the account of the
undersigned.
The aggregate face amounts of the Notes and/or the Debentures held by you
for the account of the undersigned are (FILL IN AMOUNTS):
$ of the 6 1/2% Notes due 2003.
$ of the 7 3/8% Debentures due 2018.
With respect to the Exchange Offer, the undersigned hereby instructs you
(CHECK APPROPRIATE BOXES):
[_]TO TENDER the following Notes held by you for the account of the
undersigned (INSERT PRINCIPAL AMOUNT OF NOTES TO BE TENDERED, IF ANY): $
[_]TO TENDER the following Debentures held by you for the account of the
undersigned (INSERT PRINCIPAL AMOUNT OF DEBENTURES TO BE TENDERED, IF
ANY): $
[_]NOT TO TENDER any Notes held by you for the account of the undersigned.
[_]NOT TO TENDER any Debentures held by you for the account of the
undersigned.
If the undersigned instructs you to tender the Notes and/or the Debentures
held by you for the account of the undersigned, it is understood that you are
authorized (a) to make, on behalf of the undersigned (and the undersigned, by
its signature below, hereby makes to you), the representations and warranties
contained in the Letter of Transmittal that are to be made with respect to the
undersigned as a beneficial owner, including but not limited to, the
representations that (i) the undersigned, whether or not the undersigned is
the holder, is not an "affiliate" (as defined in Rule 405 under the Securities
Act of 1933, as amended (the "Securities Act")) of the Company, (ii) the
Exchange Notes and/or the Exchange Debentures to be received by the
undersigned, are being acquired in the ordinary course of business, (iii) the
undersigned has no arrangement with any person to participate in the
distribution of the Exchange Notes or the Exchange Debentures, as applicable,
and (iv) if the undersigned or any Beneficial Owner is not a broker-dealer,
the undersigned or any such Beneficial Owner is not engaged in, and does not
intend to engage in, a distribution (within the meaning of the Securities
Act); (b) to agree, on behalf of the undersigned, as set forth in the Letter
of Transmittal; and (c) to take such other action as necessary under the
Prospectus or the Letter of Transmittal to effect the valid tender of such
Notes and/or Debentures.
<PAGE>
SIGN HERE
Name of beneficial owner(s): ______________________________________________
Signature(s): _____________________________________________________________
Name (please print): ______________________________________________________
Address:___________________________________________________________________
--------------------------------------------------------------------
--------------------------------------------------------------------
Telephone number: _________________________________________________________
Taxpayer Identification or Social Security Number: ________________________
Date: _____________________________________________________________________
2
