<PAGE>
As filed with the Securities and Exchange Commission on January 20, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under the
Securities Act of 1933
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IMC GLOBAL INC.
(Exact name of Registrant as specified in its charter)
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Delaware 36-3492467
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation)
2100 Sanders Road
Northbrook, Illinois 60062
(847) 272-9200
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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J. Bradford James
Senior Vice President and Chief Financial Officer
2100 Sanders Road
Northbrook, Illinois 60062
(847) 272-9200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With a copy to:
Michael G. Timmers
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act of 1933, please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Maximum
Aggregate Amount of
Title of Each Class of Amount to be Offering Registration
Securities to Be Registered Registered (3) Price (4) Fee (5)
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<S> <C> <C> <C>
Debt Securities, Common Stock, par
value $1.00 per share (1), Series
Preferred Stock (2), Debt
Securities Warrants, Common Stock
Warrants and Currency Warrants.. $750,000,000 $750,000,000 $208,500
</TABLE>
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(1) Includes such presently indeterminable number of shares of Common Stock,
par value $1.00 per share, as may be issuable from time to time upon
conversion of Debt Securities.
(2) Includes such presently indeterminable number of shares of Series
Preferred Stock as may be issuable from time to time upon the conversion
of Debt Securities.
(3) Or the equivalent thereof in one or more foreign currencies or composite
currencies. If any Debt Securities or Debt Securities Warrants are issued
at an original issue discount, represents such greater principal amount of
such securities as shall result in net proceeds to the Registrant of such
amount.
(4) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c).
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 which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
(5) The registration fee has been calculated pursuant to Rule 457(o) under the
Securities Act of 1933.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JANUARY 19, 1999
Prospectus
[LOGO OF IMC GLOBAL]
$750,000,000
IMC GLOBAL INC.
Debt Securities and Debt Warrants
Series Preferred Stock
Common Stock and Common Stock Warrants
Currency Warrants
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We will use this prospectus to offer and sell securities from time to time.
These may include:
. unsecured senior debt. warrants to purchase common stock
securities
. warrants to receive the cash value in U.S. dollars of
the right to purchase or sell a foreign currency or
currency units
. unsecured subordinated
debt securities
. warrants to purchase . units consisting of any combination of these
debt securities securities
. preferred stock
. common stock
We will provide the specific terms and conditions of these securities in
supplements to this prospectus prepared in connection with each offering. These
terms and conditions may include:
In the case of debt securities:
In the case of warrants:
In the case of currency
In the case of any
warrants: securities:
. interest rate
. expiration date
. base foreign currency or currency units
. price
. maturity
. exercise price . size of offering
. formula for determining value
. ranking
. conditions to exercisability. underwriting discounts and
commissions
. conditions to exercisability
. redemption prior to maturity
The securities offered will contain other significant terms and conditions.
Please read this prospectus and the applicable prospectus supplement carefully
before you invest.
-----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
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The date of this prospectus is , 1999.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission (the "SEC") using a "shelf" registration
process. Under this shelf process, we may sell:
. unsecured senior debt securities
. warrants to purchase common stock
. unsecured subordinated debt securities
. warrants to receive the cash value in U.S.
dollars of the right to purchase or sell a
foreign currency or currency units
. warrants to purchase debt securities
. preferred stock . units consisting of any combination of
these securities
. common stock
in one or more offerings up to a total dollar amount of $750,000,000. This
prospectus provides you with a general description of those securities. Each
time we sell securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. You should read this prospectus and the applicable prospectus
supplement together with the additional information described below under the
heading "Where You Can Find More Information."
The registration statement of which this prospectus constitutes a part
(including the exhibits) contains additional important information about our
company and the securities offered under this prospectus. Specifically, the
legal documents that control the terms of any securities offered by this
prospectus are filed with the SEC as exhibits to the registration statement.
That registration statement can be read at the SEC's web site or at the SEC
offices mentioned under the heading "Where You Can Find More Information."
We may sell the securities to or through underwriters or dealers and may
also sell securities directly to other purchasers or through agents. See "Plan
of Distribution." The applicable prospectus supplement will contain the names
of any underwriters, dealers or agents involved in the sale of any securities
in respect of which this prospectus is being delivered and any applicable fee,
commission or discount arrangements with them.
This prospectus may not be used to consummate sales of any securities
described herein unless accompanied by a prospectus supplement.
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<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file with the SEC at its public reference facilities at
450 Fifth Street, N.W., Washington, D.C. 20549, 7 World Trade Center, Suite
1300, New York, New York 10048 and Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. You can also obtain copies of our
filings at prescribed rates by writing to the Public Reference Section of the
SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
facilities. Our SEC filings are also available at the office of The New York
Stock Exchange at 20 Broad Street, New York, New York 10005, or at the office
of The Chicago Stock Exchange at 440 South LaSalle Street, Chicago, Illinois
60605. For further information on obtaining copies of our public filings at the
New York Stock Exchange, you should call (212) 656-5060.
We "incorporate by reference" into this prospectus the information we file
with the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus and any information that we file
subsequently with the SEC will automatically update this prospectus. We
incorporate by reference the documents listed below and any filings we make
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 after the initial filing of the registration statement
that contains this prospectus and prior to the time that we sell all of the
securities offered by this prospectus:
1. Our Annual Report on Form 10-K for the year ended December 31, 1997;
2. Our Quarterly Report on Form 10-Q for the quarter ended March 31, 1998;
3. Our Quarterly Report on Form 10-Q for the quarter ended June 30, 1998;
4. Our Quarterly Report on Form 10-Q for the quarter ended September 30, 1998;
5. Our Current Report on Form 8-K filed on January 6, 1998;
6. Our Current Report on Form 8-K filed on January 15, 1998;
7. Our Current Report on Form 8-K filed on April 15, 1998, as amended on June
15, 1998, September 16, 1998 and January 7, 1999;
8. Our Current Report on Form 8-K filed on October 28, 1998;
9. Our Current Report on Form 8-K filed on November 17, 1998;
10. Our Current Report on Form 8-K filed on December 31, 1998, as amended on
January 13, 1999;
11. Our Current Report on Form 8-K filed on January 6, 1999;
12. Our Current Report on Form 8-K filed on January 8, 1999;
13. The description of our Common Stock contained in our Registration Statement
on Form 8-A/A-1 filed on January 12, 1996; and
14. The description of the IMC Preferred Stock Purchase Rights contained in our
Registration Statement on Form 8-A filed on June 23, 1989, as amended by
Form 8-A/A filed on September 18, 1995 and January 24, 1996.
Additionally, we "incorporate by reference" the consolidated financial
statements of Freeport-McMoRan Inc. at December 31, 1996 and for each of the
three years in the period ended December 31, 1996 contained in that company's
Annual Report on Form 10-K for the year ended December 31, 1996 filed with the
SEC. Finally, we "incorporate by reference" the unaudited interim consolidated
financial statements of Freeport-McMoRan Inc. at September 30, 1997 and for the
nine months ended September 30, 1997 and September 30, 1996 which are contained
in that company's Quarterly Report on Form 10-Q for the quarter ended September
30, 1997 filed with the SEC.
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<PAGE>
You may request a copy of these filings (other than exhibits, unless that
exhibit is specifically incorporated by reference into that filing) at no cost,
by writing to or telephoning us at the following address and telephone number:
Corporate Secretary
IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
Telephone: (847) 272-9200.
You should rely only on the information incorporated by reference or set
forth in this prospectus or the applicable prospectus supplement. We have not
authorized anyone else to provide you with different information. We may only
use this prospectus to sell securities if it is accompanied by a prospectus
supplement. We are only offering these securities in states where the offer is
permitted. You should not assume that the information in this prospectus or the
applicable prospectus supplement is accurate as of any date other than the
dates on the front of those documents.
4
<PAGE>
IMC GLOBAL INC.
IMC Global Inc. is one of the world's leading producers of phosphate and
potash crop nutrients for the domestic and 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. We
are also one of the world's leading producers of salt, soda ash and other
inorganic chemicals in addition to animal feed ingredients. Our operations are
structured into the following five business units, each of which is listed with
its major product line: 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). Our principal executive office is located at 2100 Sanders Road,
Northbrook, Illinois 60062, telephone (847) 272-9200. As used in this
prospectus and the accompanying prospectus supplement, "IMC Global," "IMC" or
the "Company" refers to IMC Global Inc. and its subsidiaries, unless otherwise
indicated by the context.
USE OF PROCEEDS
Unless otherwise specified in an applicable prospectus supplement, we will
use the net proceeds to be received from the sale of the offered securities for
general corporate purposes, which include working capital, the repayment or
refinancing of our indebtedness, future acquisitions and/or capital
expenditures. Before any net proceeds are applied to the uses described above,
such proceeds may be invested in short-term or marketable securities.
RATIOS OF EARNINGS TO FIXED CHARGES
The following are our unaudited consolidated ratios of earnings to fixed
charges for the nine months ended September 30, 1998 and 1997 and each of the
years in the five-year period ended December 31, 1997:
<TABLE>
<CAPTION>
Nine Months Ended Year Ended December 31,
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September 30, September 30,
1998 1997 1997 1996 1995 1994 1993
------------- ------------- ---- ----- ---- ---- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges(a)....... 3.05 10.34 5.86 8.87 8.51 4.88 (2.06)
Adjusted ratio of
earnings to fixed
charges(b)............. 3.15 10.34 9.84 10.59 8.51 4.88 .21
</TABLE>
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(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 nine months ended
September 30, 1998 excludes a charge of $14.0 million relating to the sale
of our 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 our
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 $84.9 million
relating to the merger of The Vigoro Corporation into a wholly owned
subsidiary of ours. 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
nitroparaffns plant in Sterlington, Louisiana.
5
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following is a general description of the terms of the debt securities
that we may offer from time to time. The particular terms of the debt
securities offered by any prospectus supplement and the extent, if any, to
which the general provisions described below may or may not apply will be
described in the applicable prospectus supplement.
The debt securities may be issued from time to time in one or more series.
If the debt securities are "Senior Debt Securities," they will be issued under
an Indenture dated August 1, 1998 (the "Senior Indenture"), between us and The
Bank of New York, as Trustee (the "Senior Trustee"). A copy of the Senior
Indenture is filed as an exhibit to the registration statement of which this
prospectus is a part. If the debt securities are "Subordinated Debt
Securities," they will be issued under an Indenture (the "Subordinated
Indenture"), between us and a trustee to be named prior to the offering of any
Subordinated Debt Securities (the "Subordinated Trustee"). A copy of the form
of Subordinated Indenture is filed as an exhibit to the registration statement
of which this prospectus is a part. The Senior Trustee and the Subordinated
Trustee are referred to herein individually as the "Trustee" and collectively
as the "Trustees," and the Senior Indenture and the Subordinated Indenture are
referred to herein individually as an "Indenture" and, collectively, as the
"Indentures." You should read these documents carefully to fully understand the
terms of the debt securities.
Because the following is only a summary of certain provisions of the debt
securities and the Indentures, it does not contain all information that you may
find useful. For further information about the debt securities and the
Indentures, you should read the Indentures. The Indentures are substantially
identical, except for certain of our covenants and provisions relating to
subordination. Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Indentures.
General
The Indentures do not limit the amount of debt securities which we can issue
thereunder and provide that we can issue debt securities of any series
thereunder up to the aggregate amount which our board of directors may
authorize from time to time. The Indentures do not limit the amount of other
Indebtedness or securities, other than certain secured Indebtedness as
described below, which we may issue. All Senior Debt Securities will be
unsecured and will rank on a parity with all our other unsecured and
unsubordinated indebtedness. All Subordinated Debt Securities will be unsecured
and will be subordinated in right of payment to the prior payment in full of
our Senior Indebtedness (which term includes the Senior Debt Securities) as
described below under "Provisions Applicable Solely to Subordinated Debt
Securities -- Subordination." In addition, because we are a holding company
which conducts substantially all our operations through our Subsidiaries,
creditors of our Subsidiaries are entitled to a claim on the assets of those
Subsidiaries. Consequently, in the event of a liquidation or reorganization of
any Subsidiary, creditors of that Subsidiary are likely to be paid in full
before any distribution is made to us and holders of Senior Debt Securities or
Subordinated Debt Securities, except to the extent that we are recognized as a
creditor of such Subsidiary, in which case our claims would still be
subordinate to any security interests in the assets of such Subsidiary and any
Indebtedness of such Subsidiary senior to that held by us.
Terms
We will prepare a prospectus supplement for each series of debt securities
that it issues. Each prospectus supplement will set forth the applicable terms
of the debt securities to which it relates, which may include the following:
(1) the title of the offered securities;
(2) any limit on the amount of the offered securities;
(3) the percentage of principal amount at which such securities may be
offered;
(4) the maturity;
6
<PAGE>
(5) the interest rate, the date from which interest will accrue and the
interest payment dates, or discount to face value and accretion rate,
in the case of debt securities issued at a substantial discount to the
principal amount and the record dates for determination of the holders
to whom interest is payable;
(6) the price, date, terms and conditions of any redemption at our option;
(7) our obligation, if any, to redeem, repurchase or repay the offered
securities and any requirement to maintain a "sinking fund" to support
such obligation;
(8) if other than U.S. dollars, the currency or currencies or units based
on or relating to currencies in which the securities are denominated
and in which we will pay principal, interest or Additional Amounts;
(9) any conversion features;
(10) whether the offered securities will be represented by one or more
global securities registered in the name of a depository or its
nominee;
(11) whether and under what circumstances we will pay Additional Amounts;
and
(12) any other terms or conditions not inconsistent with the Indentures.
Unless otherwise provided in the prospectus supplement relating to any
offered debt securities, principal, interest and Additional Amounts, if any,
will be payable, and the debt securities will be transferable or, if
applicable, convertible, at the office or agency maintained by us for such
purposes; provided that we may pay interest on registered debt securities by
check mailed to the persons entitled thereto at the addresses of such persons
appearing on the security register. In the case of registered debt securities,
interest on the such debt securities will be payable on any interest payment
date to the persons in whose name the debt securities are registered at the
close of business on the record date with respect to such interest payment
date.
Unless otherwise specified in the applicable prospectus supplement, debt
securities will be issued only in fully registered form without coupons in
minimum denominations of $1,000 and any integral multiple thereof. The debt
securities may be represented in whole or in part by one or more global
securities registered in the name of a depository or its nominee and, if so
represented, interests in such global security will be shown on, and transfers
thereof will be effected only through, records maintained by the designated
depository and its participants as described below. Where debt securities of
any series are issued in bearer form, the special restrictions and
considerations, including special offering restrictions and special Federal
income tax considerations, applicable to any such debt securities and to
payment on and transfer and exchange of such debt securities will be described
in the applicable prospectus supplement.
We may issue some of the debt securities as discounted debt securities
(bearing no interest or bearing interest at a rate which at the time of
issuance is below market rates) to be sold at a substantial discount below
their stated principal amount ("Original Issue Discount Securities"). Federal
income tax consequences and other special considerations applicable to any such
Original Issue Discount Securities will be described in the applicable
prospectus supplement.
If the purchase price of any debt securities is payable in one or more
foreign currencies or currency units or if any debt securities are denominated
in one or more foreign currencies or currency units or if the principal of or
interest, if any, on any debt securities is payable in one or more foreign
currencies or currency units, the restrictions, elections, certain Federal
income tax considerations, specific terms and other information with respect to
such issue of debt securities and such foreign currency or currency units will
be set forth in the applicable prospectus supplement.
Debt securities may be presented for exchange, and registered debt
securities may be presented for transfer, in the manner, at the places or
subject to the restrictions set forth in the applicable Indenture, the debt
securities and the applicable prospectus supplement. Debt securities in bearer
form and the coupons, if any, appertaining thereto will be transferable by
delivery. No service charge will be made for any transfer or exchange of debt
securities, but we may require payment of a sum sufficient to cover any tax or
other governmental change payable in connection therewith.
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<PAGE>
The Indentures require us to file with the Trustee, on an annual basis, a
certificate as to compliance with specified covenants contained in the
Indentures.
We will comply with Section 14(e) under the Securities Exchange Act of 1934,
and any other tender offer rules which may then be applicable, in connection
with any obligation of ours to purchase offered debt securities at the option
of the holders thereof. Any such obligation applicable to a series of debt
securities will be described in the applicable prospectus supplement.
Unless otherwise described in a prospectus supplement relating to any
offered debt securities, other than as described below under "-- Limitation on
Liens," the Indentures do not contain any provisions that would limit our
ability to incur indebtedness or that would afford holders of debt securities
protection in the event of a sudden and significant decline in our credit
quality or a takeover, recapitalization or highly leveraged or similar
transaction in which we are involved. Accordingly, we could in the future enter
into transactions that could increase the amount of indebtedness outstanding at
that time or otherwise affect our capital structure or credit rating. Please
refer to the applicable prospectus supplement relating to any offered debt
securities for information with respect to any deletions from, modifications of
or additions to the Events of Default described below or our covenants
contained in the Indentures, including any addition of a covenant or other
provision providing event risk or similar protection.
Global Securities
We may issue debt securities as "global securities" that will be deposited
with a depository identified in the applicable prospectus supplement. The
depository may also act through a nominee. Global securities may be issued in
fully registered or bearer form and may be issued in either temporary or
permanent form. The specific terms of the depository arrangements for a series
of debt securities will be described in the applicable prospectus supplement.
We anticipate that the following provisions will generally apply to depository
arrangements.
Upon the issuance of a global security and the deposit of such global
security with or on behalf of the depository of such global security, the
depository will credit on its book-entry registration and transfer system the
principal amounts of the individual debt securities represented by such global
security to the accounts of persons that have accounts with such depository
("Participants"). The accounts to be credited will be designated by the
underwriters or agents of such debt securities or, if such debt securities are
offered and sold directly by us, by us. Ownership of beneficial interests in a
global security will be limited to Participants or persons that may hold
interests through Participants. Ownership of beneficial interests in such
global security will be shown on, and the transfer of that ownership interests
will be effected only through, records maintained by the depository (with
respect to interests of Participants) and records of Participants (with respect
to interests of persons who hold through Participants). The laws of some states
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such limits and such laws may impair the ability
to own, pledge or transfer beneficial interest in a global security.
So long as the depository is the registered owner of a global security, the
depository will be considered the sole owner or holder of the debt securities
represented by such global security for all purposes under the applicable
Indenture. Except as provided below or in the applicable prospectus supplement,
owners of beneficial interests in a global security will not be entitled to
have any of the individual debt securities registered in their names, will not
receive or be entitled to receive physical delivery of any such debt securities
in definitive form and will not be considered the owners or holders thereof
under the applicable Indenture.
Payments of principal of and any interest (and premium, if any) on
individual debt securities represented by a global security will be made to the
depository as the registered owner of such global security. The depository will
have sole responsibility and liability with respect to passing such payments
along to beneficial holders and for maintaining, supervising or reviewing
records relating to beneficial ownership of the debt securities.
8
<PAGE>
We understand that under existing industry practices, if we request any
action of holders or an owner of a beneficial interest in a global security
desires to give any notice to take any action a holder is entitled to give or
take under the applicable Indenture, the depositary would authorize the
Participants to give such notice or take such action, and Participants would
authorize beneficial owners owning through such Participants to give such
notice or take such action or would otherwise act upon the instructions of
beneficial owners owning through them.
We expect that the depository upon receipt of any payment in respect of a
global security will immediately credit Participants' accounts for their pro
rata share of such payments. We also expect that payments by Participants to
beneficial owners will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name." Such payments will be
the responsibility of such Participants.
If the depository is at any time unwilling, unable or ineligible to continue
as depository and a successor depository is not appointed by us within 90 days,
we will issue individual debt securities to Participants in exchange for the
global security. In addition, we may, at any time and in our sole discretion,
subject to any limitations described in the applicable prospectus supplement,
redeem the global securities and issue individual debt securities to
Participants in exchange for such global security.
Principal of and any premium and interest on a global security will be
payable in a manner described in the applicable prospectus supplement.
Certain Covenants
Limitation on Liens
The Senior Indenture provides that we will not, and will not permit any of
our 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 Senior 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. Permitted Liens are excepted from this limitation. See also "--
Exempted Indebtedness" below.
The Subordinated Indenture provides that we will not, and will not permit
any of our 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
(whether such Principal Property, shares of stock or indebtedness are now owned
or hereafter acquired) that secures any Indebtedness that is on a parity in
right of payment with the Subordinated Debt Securities unless all payments due
under the Subordinated Indenture and the Subordinated 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. Permitted Liens are
excepted from this limitation. See also "--Exempted Indebtedness" below.
Limitations on Sale and Leaseback Transactions
The Indentures provide that neither we nor any Restricted Subsidiary will
enter into any sale and leaseback transaction with respect to any Principal
Property (except for temporary leases of a term, including renewals, not
exceeding five years) unless either (a) we or such Restricted Subsidiary would
be entitled, under the provisions of the Indentures, to incur Indebtedness
secured by a Lien on such property to be leased without equally and ratably
securing the debt securities, or (b) we, within 180 days after the effective
date of such transaction, apply to the voluntary retirement of our 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 Indentures define "Funded Debt" as
indebtedness (including the debt securities) maturing by the terms thereof more
than one year after the original creation thereof. See also "-- Exempted
Indebtedness" below.
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Exempted Indebtedness
Notwithstanding the foregoing limitations on Liens and sale and leaseback
transactions, we (and our Restricted Subsidiaries) may issue, assume, suffer
to exist or guarantee Indebtedness secured by a Lien without securing the 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
our and our Subsidiaries' consolidated total assets as shown in the latest
audited consolidated balance sheet contained in the latest annual report to
our stockholders.
Conversion
The Indentures contain certain provisions regarding the conversion of debt
securities into common stock (or cash in lieu thereof). The specific terms
applicable to a series of convertible debt securities, including the initial
conversion price or conversion rate, any adjustments to such conversion price
or conversion rate and the conversion period, and the conditions upon which
such conversion will be effected will be set forth in the applicable
prospectus supplement.
Events of Default
The following are Events of Default under the Indentures with respect to
any debt securities of any series:
(i) failure to pay any installment of interest on or any Additional Amounts
with respect to any debt security of that series when due, continued
for 30 days;
(ii) failure to pay principal of (or premium, if any, on) any debt security
of that series when due, either at maturity, upon any redemption or
otherwise;
(iii) failure by us to perform or observe any other covenants, conditions
or agreements contained in debt securities of that series or in the
applicable Indenture, continued for a period of 90 days after due
notice is given as provided in the applicable Indenture;
(iv) failure to pay principal or interest on any Indebtedness of ours or of
any of our wholly owned Subsidiaries (other than the debt securities
of such series) when due, aggregating more than $25 million in
principal amount, after giving effect to any applicable grace period,
that results in such Indebtedness becoming due prior to the date on
which it would otherwise become due, 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
us.
Additional Events of Default may be added for the benefit of holders of
debt securities of a series which, if added, will be described in the
applicable prospectus supplement. The Indentures provide that the Trustee
shall notify the holders of debt securities of each series of any continuing
default known to the Trustee which has occurred with respect to that series
within 90 days after the occurrence thereof. The Indentures provide 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 of the debt securities of such series, 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 debt securities of such series.
If an Event of Default of the type described in clause (v) above has
happened and is continuing, then the principal of (or, with respect to a
series of Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series), accrued and unpaid
interest on, and any Additional Amounts payable in respect of the 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 debt securities at the time outstanding has happened and is
continuing, then either (x) the Trustee or (y) the holders of not less
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than 25% of the principal amount of that series of the debt securities then
outstanding may declare the principal (or, with respect to a series of Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series), accrued and unpaid interest on and any
Additional Amounts payable in respect of the debt securities of that series 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 the debt securities of such series, all arrears of
interest and any Additional Amounts and the expenses of the Trustee, its agents
or attorneys shall be paid by us or for our accounts, 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 the debt
securities of the applicable series, waive such Default and rescind or annul
the declaration of acceleration; provided that no such waiver, rescission or
annulment shall extend to or affect any subsequent Default or impair any right
consequent thereon.
No holder of any debt security of any series will have the right to pursue a
remedy under the applicable Indenture or the debt securities, unless (1) such
holder gives the Trustee notice of a continuing Default with respect to the
debt securities of that series, (2) the holders of at least a majority in
principal amount of the debt securities of the applicable series 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 Indentures shall affect or impair
the right of any holder of 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 debt securities on or after the due dates expressed in such
debt securities.
We will be required to furnish to the Trustee a statement, detailing any
Defaults of which we are aware, within five days after the occurrence of any
such Default.
Reports
The Indentures provide that we will file with the Trustee copies of the
annual reports and other information, documents and reports which we are
required to file with the SEC under the Securities Exchange Act of 1934. If we
are not required to file such reports and other information, the Indentures
provide that we shall file with the Trustee and cause to be mailed to the
holders of debt securities (i) annual reports containing the information
required to be contained in an Annual Report on Form 10-K, (ii) quarterly
reports containing the information required to be contained in a Quarterly
Report on Form 10-Q and (iii) promptly after the occurrence of an event
required to be therein reported, such other reports containing information
required to be contained in a Current Report on Form 8-K. We shall also comply
with the requirements of Section 314(a) of the Trust Indenture Act of 1939, as
amended.
Successor Company
The Indentures provide that we will not consolidate or merge with or into,
or sell, lease, convey or otherwise dispose of all or substantially all of our
assets or assign any of our obligations under the debt securities or applicable
Indenture, unless (i) the entity formed by or surviving any such consolidation
or merger (if other than us), 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 our
obligations under the debt securities and the applicable Indenture; and (iii)
immediately after giving effect to such transaction, no Default or Event of
Default has occurred and is continuing. With respect to the sale of assets, the
phrase "all or substantially all" as used in the Indentures varies according to
the facts and circumstances of the subject transaction, has no clearly
established meaning under New York law (which governs the Indentures) 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
Each Indenture provides that it will cease to be of further effect (except
that certain obligations will survive) with respect to a series of debt
securities when all outstanding debt securities of such series authenticated
and issued have been delivered (other than destroyed, lost or stolen debt
securities that have been replaced or paid) to the Trustee for cancellation and
we have paid all sums payable under such Indenture.
Modification of the Indentures
Each Indenture contains provisions permitting us and the applicable Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the debt securities of a particular series at the time
outstanding under such Indenture only (and not of holders of other series of
debt securities outstanding under such Indenture), to enter into supplemental
indentures to amend any of the provisions of each Indenture or any supplemental
indenture with respect to the debt securities of that particular series (and no
other series outstanding under such Indenture); provided that, unless consented
to by each holder of debt securities of such series, no such supplemental
indenture may:
(a) reduce the amount of debt securities whose holders must consent to an
amendment or a waiver;
(b) reduce the rate of or change the time for payment of interest or
Additional Amounts, including default interest on any debt security;
(c) reduce the principal of or change the Stated Maturity of any debt
security or alter the provisions with respect to redemption;
(d) make any debt security payable in money other than that stated in the
debt security;
(e) make any change in the types of amendment that need the approval of
every affected holder of debt securities;
(f) with respect to the Senior Indenture, affect the ranking of the Senior
Debt Securities; or
(g) waive a Default in the payment of principal of, any Additional Amounts
payable in respect of or interest on, or with respect to, any debt
security.
We and the applicable Trustee may enter into supplemental indentures which
amend the applicable Indenture and the debt securities with respect to a
particular series without the consent of any holder of debt securities of such
series in order to:
(i)cure any ambiguity, omission, defect or inconsistency;
(ii) comply with such Indenture concerning the substitution of successor
corporations pursuant to a merger or consolidation;
(iii) comply with any requirements of the SEC in connection with the
qualification of such Indenture under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act");
(iv)provide for uncertificated securities;
(v) make any change that does not materially adversely affect the legal
rights of any holder of debt securities under the applicable Indenture
as then in effect;
(vi) secure the debt securities and make intercreditor arrangements with
respect to any such debt securities (unless prohibited by such
Indenture);
(vii)provide for a replacement Trustee; or
(viii) add to our covenants and agreements for the benefit of all the
holders of all of the debt securities with respect to a series and
surrender any right or power reserved for us in such Indenture.
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Defeasance and Covenant Defeasance
Each Indenture provides that we may elect either:
(a) to terminate (and be deemed to have satisfied) all our obligations with
respect to such debt securities (except for the obligations to register
the transfer or exchange of such debt securities, to replace mutilated,
destroyed, lost or stolen debt securities, to maintain an office or
agency in respect of the 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 all debt
securities of such series when due) ("defeasance") or
(b) to be released from our obligations with respect to certain covenants,
including those described above under "Certain Covenants--Limitation on
Liens" and "--Limitations on Sale and Leaseback Transactions"
("covenant defeasance"),
upon the deposit with the Trustee, in trust for such purpose, of money and/or
U.S. Government Obligations (as defined in the Indentures) which through the
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 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, we have delivered to the Trustee an opinion of counsel (as
specified in such Indenture) with regard to certain matters, including an
opinion to the effect that the holders of such 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. The applicable prospectus supplement with respect to the debt
securities of any series may further describe these or other provisions, if
any, permitting defeasance or covenant defeasance.
Concerning the Trustee
The Bank of New York is the Trustee under the Senior Indenture. Prior to the
issuance of any Subordinated Debt Securities under the Subordinated Indenture,
we will engage a qualified trustee to serve as Trustee under the Subordinated
Indenture. Such Trustee will be an "eligible trustee" under the Trust Indenture
Act.
Provisions Applicable Solely to Subordinated Debt Securities
Subordination
The Subordinated Debt Securities will be subordinate and junior in right of
payment, to the extent set forth in the Subordinated Indenture, to all our
Senior Indebtedness (as defined below). If we should default in the payment of
any principal of, interest on or any Additional Amounts payable in respect of
any Senior Indebtedness when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise,
then, upon written notice of such default to us by the holders of such Senior
Indebtedness or any trustee therefor and subject to certain rights of ours to
dispute such default and subject to proper notification of the Trustee, unless
and until such default has been cured or waived or has ceased to exist, no
direct or indirect payment (in cash, property, securities, by set-off or
otherwise) will be made or agreed to be made for principal of, interest on or
any Additional Amounts payable in respect of the Subordinated Debt Securities,
or in respect of any redemption, retirement, purchase or other acquisition of
the Subordinated Debt Securities other than those made in our capital stock (or
cash in lieu of fractional shares thereof) under any conversion right of the
Subordinated Debt Securities or otherwise made in our capital stock.
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The term "Senior Indebtedness" is defined to mean our Indebtedness
(including the Senior Debt Securities) outstanding at any time except:
(a) any Indebtedness as to which, by the terms of the instrument creating
or evidencing the same, it is provided that such Indebtedness is not
senior in right of payment to the Subordinated Debt Securities;
(b) the Subordinated Debt Securities;
(c) any Indebtedness of ours to a wholly owned Subsidiary of ours;
(d) interest accruing after the filing of a petition initiating certain
events of bankruptcy or insolvency unless such interest is an allowed
claim enforceable against us in a proceeding under federal or state
bankruptcy laws; and
(e) trade payables.
If (i) without our consent a court shall enter an order for relief with
respect to us under the United States federal bankruptcy laws or a judgment,
order or decree adjudging us as bankrupt or insolvent, or enter an order for
relief for reorganization, arrangement, adjustment or composition of or in
respect of us under the United States federal or state bankruptcy or insolvency
laws or (ii) we shall institute proceedings for the entry of an order for
relief with respect to us under the United States federal bankruptcy laws or
for an adjudication of insolvency, or shall consent to the institution of
bankruptcy or insolvency proceedings against us, or shall file a petition
seeking, or seek or consent to reorganization, arrangement, composition or
similar relief under any applicable law, or shall consent to the filing of such
petition or to the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator or similar official in respect of us or of substantially
all of our property, or we shall make a general assignment for the benefit of
creditors, then all Senior Indebtedness (including any interest thereon
accruing after the commencement of any such proceedings and any Additional
Amounts payable in respect thereof) will first be paid in full before any
payment or distribution, whether in cash, securities or other property, is made
on account of the principal of, interest on or any Additional Amounts payable
in respect of the Subordinated Debt Securities. In such event, any payment or
distribution on account of the principal of, interest on or any Additional
Amounts payable in respect of Subordinated Debt Securities, whether in cash,
securities or other property (other than our securities or securities of any
other corporation provided for by a plan or reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in the
subordination provisions with respect to the Subordinated Debt Securities, to
the payment of all Senior Indebtedness then outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment), which would otherwise (but for the subordination provisions) be
payable or deliverable in respect of the Subordinated Debt Securities will be
paid or delivered directly to the holders of Senior Indebtedness in accordance
with the priorities then existing among such holders until all Senior
Indebtedness (including any interest thereon accruing after the commencement of
any such proceedings and any Additional Amounts payable in respect thereof) has
been paid in full. In the event of any such proceeding, after payment in full
of all sums owing with respect to Senior Indebtedness, the holders of
Subordinated Debt Securities, together with the holders of any obligations of
ours ranking on a parity with the Subordinated Debt Securities, will be
entitled to be repaid from our remaining assets the amounts at that time due
and owing on account of unpaid principal of, interest on and any Additional
Amounts payable in respect of the Subordinated Debt Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any of our capital stock or
obligations ranking junior to the Subordinated Debt Securities and such other
obligations.
If any payment or distribution on account of the principal of, interest on
or any Additional Amounts payable in respect of the Subordinated Debt
Securities of any character, whether in cash, securities or other property
(other than our securities or securities of any other corporation provided for
by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in the subordination provisions
with respect to the Subordinated Debt Securities, to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan or reorganization or readjustment), shall be received by
the Trustee or any holder of any Subordinated Debt
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Securities in contravention of any of the terms of the Subordinated Indenture
and before all the Senior Indebtedness shall have been paid in full, such
payment or distribution or security will be received in trust for the benefit
of, and will be paid over or delivered and transferred to, the holders of the
Senior Indebtedness then outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Senior
Indebtedness remaining unpaid in full.
By reason of such subordination, in the event of our insolvency, holders of
Senior Indebtedness may receive more, ratably, than holders of the Subordinated
Debt Securities. In addition, other creditors of ours who are not holders of
Subordinated Debt Securities or holders of Senior Indebtedness may recover
less, ratably, than holders of Senior Indebtedness and may recover more,
ratably, than holders of Subordinated Debt Securities. Such subordination will
not prevent the occurrence of an Event of Default or limit the right of
acceleration in respect of the Subordinated Debt Securities.
Certain Definitions
The following are certain key definitions used in this section. These and
other definitions are contained in the Indentures. You should read the
applicable Indenture to understand these sections fully.
"Additional Amounts" shall mean any additional amounts which are required by
a debt security, under circumstances specified therein, to be paid by us in
respect of certain taxes imposed on certain holders of such debt securities, or
as otherwise specified in the terms of such debt security, 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.
"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 generally accepted accounting principles, 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 our assets over our
liabilities plus those of our consolidated Subsidiaries, plus Minority
Interests, as determined from time to time in accordance with generally
accepted accounting principles.
"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 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
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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 Indentures).
"Issue Date" shall mean the first date on which a debt security is
authenticated by the applicable Trustee under 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
us or any of our 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 us or a Subsidiary of ours.
"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 ours or at the time such corporation is
merged into the Company or any of its Restricted Subsidiaries; (iii) Liens in
favor of us or any of our 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 generally accepted accounting principles has 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.
"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 us or any Subsidiary, the gross book value of which exceeds one
percent of Consolidated Net Worth, other than
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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 us and our
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 generally accepted accounting principles.
"Restricted Subsidiary" shall mean any of our Subsidiaries 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 of our Subsidiaries that at the time
of determination shall be designated an Unrestricted Subsidiary by the our
Board of Directors in the manner provided below and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any of our
Subsidiaries (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, ours or any of our other Subsidiaries 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.
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DESCRIPTION OF DEBT WARRANTS
We may issue, together with other securities or separately, warrants for the
purchase of debt securities ("Debt Warrants"). The Debt Warrants are to be
issued under debt warrant agreements (each a "Debt Warrant Agreement") to be
entered into between us and a bank or trust company, as debt warrant agent (the
"Debt Warrant Agent"), all as set forth in the applicable prospectus
supplement. The Debt Warrant Agent will act solely as our agent in connection
with the Debt Warrants of such series and will not assume any obligations or
relationship of agency or trust for or with any holders or beneficial owners of
Debt Warrants. A copy of the form of Debt Warrant Agreement, including the form
of warrant certificates representing the Debt Warrants (the "Debt Warrant
Certificates"), reflecting the alternative provisions to be included in the
Debt Warrant Agreements that will be entered into with respect to particular
offerings of Debt Warrants, will be filed in an amendment to the registration
statement of which this prospectus is a part or filed in a Current Report on
Form 8-K and incorporated by reference in the registration statement of which
this prospectus is a part. Because the following is only a summary of the Debt
Warrant Agreements and the Debt Warrant Certificates, it does not contain all
of the information that you may find useful. For further information about the
Debt Warrant Agreements and the Debt Warrant Certificates, you should read the
Debt Warrant Agreements and the Debt Warrant Certificates.
General
You should look in the accompanying prospectus supplement for the following
terms of the offered Debt Warrants:
(a) the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of such Debt Warrants and the
procedures and conditions relating to the exercise of such Debt
Warrants;
(b) the specific designation and terms of any related debt securities
with which such Debt Warrants are issued and the number of such Debt
Warrants issued with each such debt security;
(c) the date, if any, on and after which such Debt Warrants and the
related debt securities will be separately transferable;
(d) the principal amount of debt securities purchasable upon exercise
of each Debt Warrant and the price at which such principal amount of
debt securities may be purchased upon such exercise;
(e) the date on which the right to exercise such Debt Warrants shall
commence and the date on which such right shall expire (the
"Expiration Date");
(f) if the debt securities purchasable upon exercise of such Debt
Warrants are original issue discount debt securities, a discussion
of federal income tax considerations applicable thereto; and
(g) whether the Debt Warrants represented by the Debt Warrant
Certificates will be issued in registered or bearer form, and, if
registered, where they may be transferred and registered.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations and Debt Warrants may be exercised at
the corporate trust office of the Debt Warrant Agent or any other office
indicated in the prospectus supplement. Prior to the exercise of their Debt
Warrants, holders of Debt Warrants will not have any of the rights of holders
of the debt securities purchasable upon such exercise and will not be entitled
to payments of principal of (and premium, if any) or interest, if any, on the
debt securities purchasable upon such exercise.
Exercise of Debt Warrants
Each Debt Warrant will entitle the holder to purchase for cash such
principal amount of debt securities at such exercise price as shall in each
case be set forth in, or to be determinable as set forth in the applicable
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prospectus supplement. Debt Warrants may be exercised at any time up to the
close of business on the Expiration Date set forth in the applicable prospectus
supplement. After the close of business on the Expiration Date, unexercised
Debt Warrants will become void.
Debt Warrants may be exercised as set forth in the applicable prospectus
supplement relating to such Debt Warrants. Upon receipt of payment and the Debt
Warrant Certificate properly completed and duly executed at the corporate trust
office of the Debt Warrant Agent or any other office indicated in the
applicable prospectus supplement, we will, as soon as practicable, forward the
debt securities purchasable upon such exercise. If less than all of the Debt
Warrants represented by such Debt Warrant Certificate are exercised, a new Debt
Warrant Certificate will be issued for the remaining amount of Debt Warrants.
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DESCRIPTION OF SERIES PREFERRED AND COMMON STOCK
We may issue, separately or together with or upon conversion of or exchange
for other securities, series preferred stock ("Series Preferred Stock") and
common stock ("Common Stock"), all as set forth in the applicable prospectus
supplement. The following summaries do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, the following
documents:
(i) our Restated Certificate of Incorporation, as amended (the "Restated
Certificate of Incorporation");
(ii) our Amended and Restated By-Laws (the "By-Laws");
(iii) the Rights Agreement, as amended (the "Rights Agreement"), between
us and The First National Bank of Chicago, as Rights Agent,
pursuant to which shares of Series C Preferred Stock are issuable;
and
(iv) with respect to any Series Preferred Stock, the Certificate of
Designation with respect to such Series Preferred Stock.
A copy of each of the Restated Certificate of Incorporation, By-Laws and
the Rights Agreement are incorporated by reference as exhibits, and in the
case of an offering of Series Preferred Stock, the Certificate of Designation
will be filed in an amendment to the registration statement of which this
prospectus is a part or filed in a Current Report on Form 8-K and incorporated
by reference in the registration statement of which this prospectus is a part.
See "Where You Can Find More Information."
Common and Preferred Stock
The total amount of our authorized capital stock consists of (i)
300,000,000 shares, $1.00 par value per share, of Common Stock, of which
114,334,500 shares were issued and outstanding as of December 31, 1998 and
(ii) 12,000,000 shares of Series Preferred Stock, par value $1.00 per share.
The Board of Directors has reserved 3,000,000 shares of Series C Preferred
Stock for issuance in connection with the Rights Plan described below.
Series Preferred Stock
General
Under the Restated Certificate of Incorporation, our Board of Directors is
authorized to create and issue up to 12,000,000 shares of Series Preferred
Stock in one or more series and to determine the rights and preferences of
each series, to the extent permitted by the Restated Certificate of
Incorporation. As of September 30, 1998, 3,000,000 shares of Series C
Preferred Stock were reserved for issuance. Please refer to the applicable
prospectus supplement and the Certificate of Designation with respect to any
series of Series Preferred Stock for the terms of any series, including the
specific title and stated value, dividend, liquidation, redemption, voting and
other rights.
The applicable prospectus supplement will describe the terms of any series
of Series Preferred Stock, which may include the following:
(i) the title and stated value of such Series Preferred Stock;
(ii) the number of shares of such Series Preferred Stock offered, the
liquidation preference per share and the initial offering price of
such Series Preferred Stock;
(iii) the dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Series
Preferred Stock;
(iv) the date from which dividends on such Series Preferred Stock
shall accumulate, if applicable;
(v) the procedures for any auction and remarketing, if any, for such
Series Preferred Stock;
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(vi)the provisions for a sinking fund, if any, for such Series Preferred
Stock;
(vii) the provisions for redemption, if applicable, of such Series
Preferred Stock;
(viii) any listing of such Series Preferred Stock on any securities
exchange;
(ix) the terms and conditions, if applicable, upon which such Series
Preferred Stock will be convertible into our Common Stock,
including the conversion price (or manner of calculation thereof);
(x)a discussion of Federal income tax considerations applicable to such
Series Preferred Stock;
(xi) the relative ranking and preferences of such Series Preferred
Stock as to dividend rights and rights upon liquidation,
dissolution or winding up of the affairs of the Company;
(xii) any limitations on issuance of any series of Series Preferred
Stock ranking senior to or on a parity with such series of Series
Preferred Stock as to dividend rights and rights upon
liquidation, dissolution or winding up of the affairs of the
Company; and
(xiii) any other specific terms, preferences, rights (including,
without limitation, voting rights), limitations or restrictions
of such Series Preferred Stock.
Liquidation Preference
Unless otherwise specified in the applicable prospectus supplement, upon
any liquidation, dissolution or winding up of IMC whether voluntary or
involuntary, the holders of any series of Series Preferred Stock in respect of
which this prospectus is being delivered will have preference and priority
over the Common Stock and any other class of stock or series of a class of
stock of IMC ranking on liquidation junior to such series of Series Preferred
Stock, for payment out of the assets of IMC or proceeds thereof, whether from
capital or surplus, in the amount set forth in the applicable prospectus
supplement. After such payment, the holders of such series of Series Preferred
Stock will be entitled to no other payments. If, in the case of any such
liquidation, dissolution or winding up of IMC, the assets of IMC or proceeds
thereof shall be insufficient to make the full liquidation payment in respect
of such series of Series Preferred Stock and liquidating payments on any other
series of Series Preferred Stock ranking as to liquidation on a parity with
such series, then those assets and proceeds will be distributed among the
holders of such series of Series Preferred Stock and any such other series of
Series Preferred Stock ratably in accordance with the respective amounts which
would be payable on such shares of such series of Series Preferred Stock and
such other series of Series Preferred Stock if all amounts thereon were paid
in full. A sale of all or substantially all of IMC's assets or a consolidation
or merger of IMC with one or more corporations shall not be deemed to be a
liquidation, dissolution or winding up of IMC.
Common Stock
The holders of outstanding shares of our Common Stock are entitled to
receive dividends, subject to the prior rights of any outstanding Series
Preferred Stock, out of assets legally available therefor at such times and in
such amounts as the Board of Directors may from time to time determine. The
shares of our Common Stock are neither redeemable nor convertible, and the
holders thereof have no preemptive or subscription rights to purchase any
securities of IMC. Each outstanding share of our Common Stock is entitled to
one vote on all matters submitted to a vote of stockholders. There is no
cumulative voting. Upon any liquidation, dissolution or winding up of IMC,
whether voluntary or involuntary, remaining net assets, if any, of IMC shall
be distributed pro rata to the holders of the Common Stock.
Certain Provisions of the Restated Certificate of Incorporation and By-Laws
The Restated Certificate of Incorporation and By-Laws contain certain
provisions that are intended to enhance the likelihood of continuity and
stability in the composition of our Board of Directors and which may
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have the effect of delaying, deferring or preventing a future takeover or
change in control of IMC unless such takeover or change of control is approved
by our Board of Directors. Such provisions may also render the removal of the
current Board of Directors and of management more difficult. The Restated
Certificate of Incorporation provides that before we may purchase outstanding
shares of our Common Stock from a beneficial owner of 3% or more of the
outstanding shares of Common Stock at a price known by us to exceed the market
price of the Common Stock, a majority of our stockholders must approve such
purchase unless the purchase is made by us on the same terms and as a result of
an offer to purchase any and all of our outstanding Common Stock.
Under the Restated Certificate of Incorporation, our Board of Directors is
divided into three classes serving staggered three-year terms. Directors can be
removed from office only for cause and only by the affirmative vote of the
holders of a majority of the voting power of the then outstanding shares of our
stock entitled to vote generally in the election of directors (the "Voting
Stock"), voting together as a single class. Vacancies on the Board of Directors
may only be filled by the remaining directors and not by the stockholders,
except in the case of newly created directorships, if the remaining directors
fail to fill any such vacancy, the stockholders may do so at the next annual or
special meeting called for that purpose.
The By-Laws establish an advance notice procedure with regard to the
nomination, other than by or at the direction of the Board of Directors, of
candidates for election as directors and with regard to certain matters to be
brought before an annual meeting of our stockholders. In general, notice must
be received by us not less than 60 days prior to the annual meeting and must
contain certain specified information concerning the person to be nominated or
the matter to be brought before the meeting and concerning the stockholder
submitting the proposal.
The Restated Certificate of Incorporation also provides that in the case of
certain mergers, sales of assets, issuances of securities, liquidations or
dissolutions, or reclassifications or recapitalizations involving affiliated
holders of stock representing 20% or more of the voting power of the then
outstanding shares of Voting Stock, such transactions must be approved by 80%
of the combined voting power of the then outstanding Voting Stock, unless such
transactions are approved by a majority of our Disinterested Directors (as
defined in the Restated Certificate of Incorporation) unless certain minimum
price, form of consideration and procedural requirements are satisfied. The
Restated Certificate of Incorporation provides that the affirmative vote of the
holders of 80% of the total votes eligible to be cast in the election of
directors is required to amend, alter, change or repeal such provisions.
The requirement of a supermajority vote to approve certain corporate
transactions and certain amendments to our Restated Certificate of
Incorporation could enable a minority of our stockholders to exercise veto
powers over such transactions and amendments.
Special meetings of stockholders may be called only by our Chairman of the
Board, our President or a majority of the Board of Directors. The Restated
Certificate of Incorporation provides that stockholders may act only at an
annual or special meeting and stockholders may not act by written consent.
Rights Plan
On June 21, 1989, our Board of Directors declared a dividend of one
preferred share purchase right (a "Right") for each outstanding share of Common
Stock. The dividend was payable on July 12, 1989 (the "Record Date") to the
stockholders of record on that date. Each Right entitles the registered holder
to purchase from us one two-hundredth of a share of our Junior Participating
Preferred Stock, Series C, par value $1.00 per share (the "Series C Preferred
Shares"), at a price of $75 per one two-hundredth of a Preferred Share (the
"Purchase Price"), subject to adjustment.
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") has acquired beneficial ownership of 15% or more of the outstanding
shares of Common Stock or (ii) 10 business days (or such later date as may be
determined by
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action of the Board of Directors prior to such time as any Person becomes an
Acquiring Person) following the commencement of, or announcement of an
intention to make, a tender offer or exchange offer the consummation of which
would result in the beneficial ownership by a person or group of 15% or more of
such outstanding shares of Common Stock (the earlier of such dates being called
the "Distribution Date"), the Rights will be evidenced, with respect to any of
the Common Stock certificates outstanding as of the Record Date, by such
certificate with a notation incorporating the Rights Agreement by reference.
Notwithstanding the foregoing, if our Board of Directors determines in good
faith that a Person who would otherwise be an "Acquiring Person" has become
such inadvertently and such Person divests as promptly as practicable a
sufficient number of shares of Common Stock so that such Person would no longer
be an "Acquiring Person," then such Person shall not be deemed to be an
"Acquiring Person" for any purpose under the Rights Agreement.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on June 21, 1999 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed by us, in
each case, as described below.
In the event that, after a Distribution Date, we are acquired in a merger or
other business combination transaction or 50% or more of its consolidated
assets or earning power are sold or otherwise transferred, proper provision
will be made so that each holder of a Right will thereafter have the right to
receive, upon the exercise thereof at the then current exercise price of the
Right, that number of shares of common stock of the acquiring company which at
the time of such transaction will have a market value of two times the exercise
price of the Right. In the event that any person becomes an Acquiring Person,
proper provision will be made so that each holder of a Right, other than Rights
beneficially owned by the Acquiring Person and its affiliates and associates
(which will thereafter be void), will thereafter have the right to receive upon
exercise that number of shares of Common Stock having a market value of two
times the exercise price of the Right.
At any time after the acquisition by an Acquiring Person of beneficial
ownership of 15% or more of the outstanding Common Stock and prior to the
acquisition by such person or group of 50% or more of the outstanding Common
Stock, our Board of Directors may exchange the Rights (other than Rights owned
by such person or group which have become void), in whole or in part for Common
Stock at an exchange ratio of one-half of the number of shares of Common Stock
which each holder of a Right would have a right to receive upon exercise of a
Right after giving effect to the adjustment set forth in Section 11(a) (ii) of
the Rights Agreement or one two-hundredth of a Series C Preferred Share (or of
a share of a class or series of the Company's preferred stock having equivalent
rights, preferences and privileges), per Right (subject to adjustment).
Until a Right is exercised, the holder thereof, as such, will have no rights
as a stockholder of ours, including, without limitation, the right to vote or
to receive dividends.
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DESCRIPTION OF STOCK WARRANTS
We may issue, together with other securities or separately, stock warrants
for the purchase of common stock ("Stock Warrants"). The Stock Warrants are to
be issued under stock warrant agreements (each a "Stock Warrant Agreement") to
be entered into between us and a bank or trust company, as stock warrant agent
(the "Stock Warrant Agent"), all as set forth in the applicable prospectus
supplement. The Stock Warrant Agent will act solely as our agent in connection
with the Stock Warrants of such series and will not assume any obligations or
relationship of agency or trust for or with any holders or beneficial owners
of Stock Warrants. Copies of the forms of Stock Warrant Agreements and the
forms of warrant certificates (the "Stock Warrant Certificates") will be filed
in an amendment to the registration statement of which this prospectus is a
part or filed in a Current Report on Form 8-K and incorporated be reference in
the registration statement of which this prospectus is a part. The following
description of certain provisions of the forms of Stock Warrant Agreements and
Stock Warrant Certificates does not purport to be complete and is subject to,
and are qualified in their entirety by reference to, all the provisions of the
Stock Warrant Agreements and the Stock Warrant Certificates to be filed in an
amendment to the registration statement of which this prospectus is a part or
filed in a Current Report on Form 8-K and incorporated by reference in the
registration statement of which this prospectus is a part.
General
If we offer warrants for the purchase of Common Stock, the applicable
prospectus supplement will describe their terms, which may include the
following:
(i) the offering price of such Stock Warrants, if any;
(ii) the procedures and conditions relating to the exercise of such
Stock Warrants;
(iii) the number of shares of Common Stock purchasable upon exercise of
each stock warrant and the initial price at which such shares may
be purchased upon exercise;
(iv) the date on which the right to exercise such Stock Warrants shall
commence and the date on which such right shall expire (the
"Expiration Date");
(v) a discussion of Federal income tax considerations applicable to the
exercise of Stock Warrants;
(vi) call provisions of such Stock Warrants, if any; and
(vii) any other terms of the Stock Warrants.
The shares of Common Stock issuable upon the exercise of the Stock Warrants
will, when issued in accordance with the Stock Warrant Agreement, be fully
paid and nonassessable.
Prior to the exercise of their Stock Warrants, holders of Stock Warrants
will not have any of the rights of holders of the Common Stock purchasable
upon such exercise, and will not be entitled to any dividend payments on the
Common Stock purchasable upon such exercise.
Exercise of Warrants
Each stock warrant will entitle the holder to purchase for cash such number
of shares of Common Stock at such exercise price as shall in each case be set
forth in, or be determinable as set forth in, the applicable prospectus
supplement. Unless otherwise specified in the applicable prospectus
supplement, Stock Warrants may be exercised at any time up to the close of
business on the Expiration Date set forth in the applicable prospectus
supplement. After the close of business on the Expiration Date, unexercised
Stock Warrants will become void.
Stock Warrants may be exercised as set forth in the applicable prospectus
supplement. Upon receipt of payment and the Stock Warrant Certificates
properly completed and duly executed at the corporate trust office
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of the Stock Warrant Agent or any other office indicated in the prospectus
supplement, we will, as soon as practicable, forward a certificate representing
the number of shares of Common Stock purchasable upon such exercise. If less
than all of the Stock Warrants represented by such Stock Warrant Certificate
are exercised, a new Stock Warrant Certificate will be issued for the remaining
amount of Stock Warrants.
Anti-Dilution Provisions
Unless otherwise specified in the applicable prospectus supplement, the
exercise price payable and the number of shares purchasable upon the exercise
of each stock warrant will be subject to adjustment in certain events,
including:
(i) the issuance of a stock dividend to holders of Common Stock or a
combination, subdivision or reclassification of Common Stock;
(ii) the issuance of rights, warrants or options to all holders of
Common Stock entitling the holders thereof to purchase Common
Stock for an aggregate consideration per share less than the
current market price per share of the Common Stock; or
(iii) any distribution by us to the holders of our Common Stock of
evidences of our indebtedness or of assets (excluding cash
dividends or distributions payable out of capital surplus and
dividends and distributions referred to in (1) above).
No fractional shares will be issued upon exercise of Stock Warrants, but we
will pay the cash value of any fractional shares otherwise issuable.
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DESCRIPTION OF CURRENCY WARRANTS
We may issue, together with debt securities or Debt Warrants or separately,
currency warrants which either: (i) entitle the holders thereof to receive from
us the Cash Settlement Value in U.S. dollars of the right to sell a specified
amount of a specified foreign currency or currency units for a specified amount
of U.S. dollars (each, a "Currency Put Warrant") or (ii) entitle the holders
thereof to receive from us the Cash Settlement Value in U.S. dollars of the
right to purchase a specified amount of a specified foreign currency or
currency units for a specified amount of U.S. dollars (each, a "Currency Call
Warrant"). The spot exchange rate of the applicable Base Currency, upon
exercise, as compared to the U.S. dollar, will determine whether the currency
warrants have a Cash Settlement Value on any given day prior to their
expiration.
The currency warrants are to be issued under currency warrant agreement
(each a "Currency Warrant Agreement") to be entered into between us and a bank
or trust company, as agent (the "Currency Warrant Agent"), all as set forth in
the applicable prospectus supplement. The Currency Warrant Agent will act
solely as our agent in connection with the currency warrants of such series and
will not assume any obligations or relationship of agency or trust for or with
any warrant holders. Copies of the forms of Currency Warrant Agreements and the
forms of global warrant certificates representing the Currency Put Warrants and
the Currency Call Warrants (the "Currency Warrant Certificates"), reflecting
the provisions to be included in the Currency Warrant Agreement that will be
entered into with respect to particular offerings of Currency Warrants, will be
filed in an amendment to the registration statement of which this prospectus is
a part or filed in a Current Report on Form 8-K and incorporated by reference
in the registration statement of which this prospectus is a part are filed as
exhibits in the applicable registration statement of which this prospectus is a
part. The following description of certain provisions of the forms of Currency
Warrant Agreements and the Currency Warrant Certificates does not purport to be
complete and is subject to all the provisions of the Currency Warrant
Agreements and the Currency Warrant Certificates, respectively, to be filed in
an amendment to the registration statement of which this prospectus is a part
or to be filed on a Current Report on Form 8-K and incorporated by reference in
the registration statement of which this prospectus is a part, including the
definitions therein of certain capitalized terms not defined herein.
General
If we offer currency warrants, the applicable prospectus supplement will
describe their terms, which may include the following:
(i) whether such currency warrants will be Currency Put Warrants,
Currency Call Warrants, or both;
(ii) the formula for determining the Cash Settlement Value, if any, of
each currency warrant;
(iii) the procedures and conditions relating to the exercise of such
currency warrants;
(iv) the circumstances which will cause the currency warrants to be
deemed to be automatically exercised;
(v) any minimum number of currency warrants which must be exercised at
any one time, other than upon automatic exercise; and
(vi) the date on which the right to exercise such currency warrants
will commence and the date on which such right will expire (the
"Expiration Date").
Book-Entry Procedures and Settlement
Except as may otherwise be provided in the applicable prospectus supplement,
the currency warrants will be issued in the form of global Currency Warrant
Certificates, registered in the name of a depositary or its nominee. Holders
will not be entitled to receive definitive certificates representing currency
warrants. A holder's ownership of a currency warrant will be recorded on or
through the records of the brokerage firm or
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other entity that maintains such holder's account. In turn, the total number of
currency warrants held by an individual brokerage firm for its clients will be
maintained on the records of the depositary in the name of such brokerage firm
or its agent. Transfer of ownership of any currency warrant will be effected
only through the selling holder's brokerage firm.
Exercise of Currency Warrants
Each currency warrant will entitle the holder to receive the Cash Settlement
Value of such currency warrant on the applicable Exercise Date, in each case as
such terms will be defined in the applicable prospectus supplement. If not
exercised prior to 3:00 P.M., New York City time, on the third New York
Business Day preceding the Expiration Date, currency warrants will be deemed
automatically exercised on the Expiration Date.
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PLAN OF DISTRIBUTION
We may sell the securities offered under this prospectus through agents,
through underwriters or dealers or directly to one or more purchasers. The
prospectus supplement with respect to the offered securities will set forth the
terms of the offering of such offered securities, including the name or names
of any underwriters, dealers or agents, the purchase price of such offered
securities and the proceeds to us from such sale, any underwriting discounts
and other items constituting underwriters' compensation, any initial public
offering price and any discounts, commissions or concessions allowed or
reallowed or paid to dealers, and any bidding or auction process. Any initial
offering price and any discounts, concessions or commissions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in an offering, the offered securities will be
acquired by the underwriters for their own account. The offered securities may
be sold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The offered securities may be offered to the public either
through underwriting syndicates represented by one or more managing
underwriters or directly by one or more of such firms. The specific managing
underwriter or underwriters, if any, will be set forth in the applicable
prospectus supplement together with the members of the underwriting syndicate,
if any. Unless otherwise set forth in the prospectus supplement, the
obligations of the underwriters to purchase the offered securities will be
subject to certain conditions precedent and the underwriters will be obligated
to purchase all such offered securities if any are purchased.
Offered securities may be sold directly by us or through agents designated
by us from time to time. The prospectus supplement will set forth the name of
any agent involved in the offer or sale of the offered securities in respect of
which the prospectus supplement is delivered and any commissions payable by us
to such agent. Unless otherwise indicated in the prospectus supplement, any
such agent is acting on a best efforts basis for the period of its appointment.
Any underwriters, dealers, or agents participating in the distribution of
the offered securities may be deemed to be underwriters and any discounts or
commissions received by them on the sale or resale of the offered securities
may be deemed to be underwriting discounts and commissions under the Securities
Act of 1933, as amended.
Agents, dealers or underwriters may be entitled, under agreements entered
into with us, to indemnification by us against certain liabilities, including
liabilities under the Securities Act of 1933, as amended, and to contribution
with respect to payments which the agents, dealers or underwriters may be
required to make in respect thereof. Agents, dealers and underwriters may
engage in transactions with or perform services for us in the ordinary course
of business.
The offered securities, other than the Common Stock, will be a new issue or
issues of securities with no established trading market. Any Common Stock
offered by this prospectus will be listed. Unless otherwise indicated in a
prospectus supplement, we do not currently intend to list any offered debt
securities or warrants on any securities exchange. No assurance can be given
that the underwriters, dealers or agents, if any, involved in the sale of the
offered securities will make a market in such offered securities. Whether or
not any of the offered securities are listed on a national securities exchange
or the underwriters, dealers or agents, if any, involved in the sale of the
offered securities make a market in such offered securities, no assurance can
be given as to the liquidity of the trading market for such offered securities.
Delayed Delivery Arrangements
If so indicated in the applicable prospectus supplement, we may authorize
underwriters or other persons acting as our agents to solicit offers by certain
institutions to purchase offered securities from us under contracts providing
for payment and delivery on a future date. Institutions with which such
contracts may be made include:
.commercial and savings banks,
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.insurance companies,
.pension funds,
.investment companies, and
.educational and charitable institutions and others,
but in all cases will be subject to our approval. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of the offered securities shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such agents will not have any responsibility in
respect of the validity or performance of such contracts.
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LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, certain
legal matters in connection with the securities offered hereby will be passed
upon for us by Kirkland & Ellis (a partnership including professional
corporations).
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements for the three years ended December 31, 1997 included in
our Current Report on Form 8-K filed on December 31, 1998, as amended on
January 13, 1999, as set forth in their report, which is incorporated in this
prospectus by reference. Our consolidated financial statements are incorporated
by reference in reliance on their report, given on their authority 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 our Current Report
on Form 8-K/A filed on June 15, 1998, which is incorporated by reference in
this prospectus and in the registration statement of which this prospectus is a
part, 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 our Current Report
on Form 8-K/A filed on September 16, 1998, which is incorporated by reference
in this prospectus and in the registration statement of which this prospectus
is a part, 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 Harris Chemical Australia Pty Ltd. & Its
Controlled Entities for the year ended June 30, 1997 appearing in our Current
Report on Form 8-K/A filed on June 15, 1998, which is incorporated by reference
in this prospectus and in the registration statement of which this prospectus
is a part, 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 Freeport-McMoRan Inc. at December
31, 1996 and for each of the three years in the period ended December 31, 1996
appearing in Freeport-McMoRan Inc.'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 registration statement of which this prospectus is a part, have been
audited by Arthur Andersen LLP, independent public accountants, as set forth in
their report thereon included therein and incorporated herein by reference. 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.
30
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate, subject to future contingencies, of the
expenses to be incurred by the Registrant in connection with the issuance and
distribution of the securities being registered:
<TABLE>
<S> <C>
Registration Fee................................................. $208,500
* Legal Fees and Expenses........................................ 100,000
* Trustee Fees and Expenses...................................... 10,000
* Accounting Fees and Expenses................................... 100,000
* Blue Sky and Legal Investment Fees and Expenses................ 10,000
* Printing and Engraving Fees.................................... 100,000
* Rating Agency Fees............................................. 150,000
* Miscellaneous.................................................. 82,500
--------
Total.......................................................... $761,000
========
</TABLE>
- --------
* Estimated pursuant to instruction to Item 511 of Regulation S-K.
ITEM 15. 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 provides that the
Company will indemnify each officer and director of the Company to the fullest
extent permitted by applicable law. The Company's 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 are not exclusive of any
other right to which persons seeking indemnification may be entitled pursuant
to 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 form of Underwriting Agreement included as an exhibit to this
registration statement provides for indemnification of directors and officers
of the Company against certain liabilities.
II-1
<PAGE>
ITEM 16. EXHIBITS
The following Exhibits are filed as part of this registration statement:
<TABLE>
<S> <C>
1.1 Form of Underwriting Agreement (incorporated by reference to Exhibit 1.1
to the Company's Registration Statement on Form S-3 (No. 333-41713)).
1.2 Form of Distribution Agreement.*
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)).
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 Certificate of Amendment to Restated Certificate of Incorporation, dated
January 6, 1998.
4.7 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)).
4.8 Rights Agreement dated June 21, 1989, amended as of August 17, 1995, with
The First National Bank of Chicago (incorporated by reference to the
Company's Report on Form
8-A/A dated September 7, 1995 (File No. 1-9759)).
4.9 Amendment to Rights Agreement, effective as of April 29, 1993
(incorporated by reference to Exhibit 4.2 to the Company's Registration
Statement on Form 8-A/A dated January 12, 1996 (File No. 1-9759)).
4.10 Amendment to Rights Agreement, dated August 17, 1995 (incorporated by
reference to Exhibit 1 to the Company's Registration Statement on Form 8-
A/A dated September 7, 1995 (File No. 1-9759)).
4.11 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 dated September 16, 1998
(File No. 333-63503)).
4.12 Form of Senior Debt Securities.*
4.13 Form of Subordinated Debt Securities Indenture (incorporated by reference
to Exhibit 4.12 to the Company's Registration Statement on Form S-3 (No.
333-41713)).
4.14 Form of Subordinated Debt Securities.*
4.15 Form of Certificate of Designations of Preferred Stock.*
4.16 Form of Debt Warrant Agreement, including form of Debt Warrant
Certificate.*
4.17 Form of Stock Warrant Agreement, including form of Stock Warrant
Certificate.*
4.18 Form of Currency Warrant Agreement, including form of Currency Warrant
Certificate.*
5.1 Opinion of Kirkland & Ellis.
12.1 Computation of Ratio of Earnings to Fixed Charges.
</TABLE>
II-2
<PAGE>
<TABLE>
<S> <C>
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 Arthur Andersen LLP, independent public accountants.
23.5 Consent of Kirkland & Ellis (included in Exhibit 5.1).
24.1 Powers of Attorney.
25.1 Statement of Eligibility on Form T-1 of the Bank of New York, as Trustee
pursuant to the Senior Indenture pursuant to which the Senior Debt
Securities registered hereunder are to be issued (incorporated by
reference to the Company's Registration Statement on Form
S-3 (No. 333-63503)).
</TABLE>
- --------
* To be filed, if necessary, subsequent to the effectiveness of this
registration statement by an amendment to the registration statement or
incorporated by reference pursuant to a Current Report on Form 8-K in
connection with the offering of securities.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
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 that 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.
(b) 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
II-3
<PAGE>
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.
(c) 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
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) pursuant to the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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 file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Securities and Exchange Commission
under Section 305(b)(2) of the Trust Indenture Act.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this
registration statement, or amendment thereto, to be signed on its behalf by the
undersigned, duly authorized, in Northbrook, Illinois, on the 19th day of
January, 1999.
IMC Global Inc.
/s/ J. Bradford James
By___________________________________
J. Bradford James
Senior Vice President and Chief
Financial Officer
Pursuant to the Securities Act of 1933, as amended, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chief Executive Officer, January 19, 1999
____________________________________ Director and Chairman of
Robert E. Fowler, Jr. the Board (Principal
Executive Officer)
* President, Chief Operating January 19, 1999
____________________________________ Officer and Director
Douglas A. Pertz
/s/ J. Bradford James Senior Vice President and January 19, 1999
____________________________________ Chief Financial Officer
J. Bradford James (Principal Financial
Officer)
/s/ Anne M. Scavone Vice President and January 19, 1999
____________________________________ Controller (Principal
Anne M. Scavone Accounting Officer)
* Director January 19, 1999
____________________________________
Wendell F. Bueche
* Director January 19, 1999
____________________________________
Raymond F. Bentele
* Director January 19, 1999
____________________________________
Rod F. Dammeyer
* Director January 19, 1999
____________________________________
James M. Davidson, PhD
* Director January 19, 1999
____________________________________
Harold H. MacKay
* Director January 19, 1999
____________________________________
David B. Mathis
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Director January 19, 1999
____________________________________
Donald F. Mazankowski
* Director January 19, 1999
____________________________________
Joseph P. Sullivan
* Director January 19, 1999
____________________________________
Richard L. Thomas
* Director January 19, 1999
____________________________________
Billie B. Turner
</TABLE>
/s/ J. Bradford James
*By: __________________________
J. Bradford James
Attorney in Fact
II-6
<PAGE>
Exhibit 4.6
CERTIFICATE OF AMENDMENT
OF RESTATED CERTIFICATE OF INCORPORATION
OF IMC GLOBAL INC.
PURSUANT TO SECTION 242 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
IMC GLOBAL INC. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware ("DGCL"), DOES HEREBY CERTIFY THAT:
FIRST: At meetings of the Board of Directors of the Corporation duly
called and held on August 26, 1997, and October 28, 1997, resolutions were duly
adopted setting forth the following proposed amendment to the Restated
Certificate of Incorporation of the Corporation, declaring said amendment to be
advisable and directing such amendment be submitted to stockholders of the
Corporation for approval at a special meeting of the stockholders of said
Corporation. Such resolutions recommended that the Restated Certificate of
Incorporation of the Corporation be amended as set forth below:
(i) the first paragraph of ARTICLE FOURTH of the Restated Certificate
of Incorporation of the Corporation be amended to read as
follows:
"The aggregate number of shares which the Corporation shall have
authority to issue is 312,000,000 divided into 12,000,000 shares of
Series Preferred Stock, $1.00 par value per share (hereafter called
"Series Preferred Stock"), and 300,000,000 shares of Common Stock,
$1.00 par value per share (hereafter called "Common Stock"). All of
such shares shall be issued as fully-paid and non-assessable shares,
and the holders thereof shall not be liable for any further payments
in respect thereto; and
(ii) the first sentence of ARTICLE NINTH of the Restated Certificate
of Incorporation of the Corporation be amended to read as
follows:
(a) The number of directors of the Corporation, exclusive of
directors, if any, to be elected by the holders of one or
more series of Series Preferred Stock, shall be not less than
five nor more than eighteen.
SECOND: Pursuant to a resolution of its Board of Directors, a special
meeting of the stockholders of the Corporation was duly called and held on
December 22, 1997, upon notice in accordance with Section 222 of the DGCL, at
which meeting the necessary number of the outstanding shares of common stock of
the Corporation entitled to vote on such amendment by the DGCL and the Restated
Certificate of Incorporation were voted in favor of such amendment.
<PAGE>
THIRD: That such amendment was duly adopted in accordance with the
provisions of Section 242 of the DGCL.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by Rose Marie Williams, Secretary of the Corporation,
dated as of this 22nd day of December, 1997.
IMC GLOBAL INC.
By: /s/ Rose Marie Williams
----------------------------------
Rose Marie Williams
Secretary
-2-
<PAGE>
Exhibit 5.1
[KIRKLAND & ELLIS LETTERHEAD]
To Call Writer Direct:
312 861-2200
January 19, 1999
To: IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
Re: IMC Global Inc.
Registration Statement on Form S-3
We are issuing this opinion in our capacity as special counsel to IMC
Global Inc. (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), on a Registration Statement on
Form S-3 to be filed with the Securities and Exchange Commission on or about
January 19, 1999 (the "Registration Statement") of (i) unsecured debt
securities, which may be either senior (the "Senior Debt Securities") or
subordinated (the "Subordinated Debt Securities"), and which may be convertible
into shares of common stock, par value $1.00 per share ("Common Stock") of the
Company (the "Convertible Debt Securities," and, together with the Senior Debt
Securities and the Subordinated Debt Securities, the "Debt Securities"); (ii)
warrants to purchase Debt Securities (the "Debt Warrants"); (iii) shares of its
series preferred stock (the "Series Preferred Stock"), which may be convertible
into shares of Common Stock; (iv) shares of Common Stock; (v) warrants to
purchase shares of Common Stock (the "Stock Warrants"); and (vi) warrants to
receive from the Company the cash value in U.S. dollars of the right to purchase
("Currency Call Warrants") or to sell ("Currency Put Warrants," and, together
with the Currency Call Warrants, the "Currency Warrants") such foreign currency
or currency units as shall be designated by the Company at the time of the
offering. The Debt Securities, Debt Warrants, Series Preferred Stock, Common
Stock, Stock Warrants and Currency Warrants (collectively, the "Securities") may
be issued by the Company either together or separately in connection with an
offering or offerings from time to time pursuant to the Registration Statement
and will be offered on terms set forth in the Registration Statement and in the
prospectus contained in the Registration Statement (the "Prospectus") and in
amounts, at prices and on other terms to be determined by the Company at the
time of offering and to be set forth in an amendment or amendments to the
Registration Statement and the Prospectus and in one or more supplements to the
Prospectus (each, a "Prospectus Supplement").
The Debt Securities specified as Senior Debt Securities in the
applicable Prospectus Supplement will be issued under an Indenture, dated August
1, 1998 (such Indenture,
<PAGE>
IMC Global Inc.
January 19, 1999
Page 2
as amended or supplemented from time to time, the "Senior Indenture"), between
the Company and The Bank of New York, as Trustee. The Debt Securities specified
as Subordinated Debt Securities in the applicable Prospectus Supplement will be
issued under an Indenture the form of which is filed as an exhibit to the
Registration Statement (such Indenture, as amended or supplemented from time to
time, the "Subordinated Indenture"). The Subordinated Indenture will be executed
by the Company and a trustee to be named and qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), prior to the offering of
any Subordinated Debt Securities. The executed Subordinated Indenture will be
filed prior to the issuance of such Subordinated Debt Securities in an amendment
to the Registration Statement or incorporated by reference into the Registration
Statement pursuant to a Current Report on Form 8-K of the Company. Each series
of Debt Warrants will be issued under a warrant agreement (each, a "Debt Warrant
Agreement"), to be filed prior to the issuance of such Debt Warrants in an
amendment to the Registration Statement or incorporated by reference into the
Registration Statement pursuant to a Current Report on Form 8-K of the Company,
to be executed by the Company and a warrant agent or agents to be named by the
Company prior to the offering of any Debt Warrants of such series. Each series
of Stock Warrants will be issued under a warrant agreement (each, a "Stock
Warrant Agreement"), to be filed prior to the issuance of such Stock Warrants in
an amendment to the Registration Statement or incorporated by reference into the
Registration Statement pursuant to a Current Report on Form 8-K of the Company,
to be executed by the Company and a warrant agent or agents to be named by the
Company prior to the offering of any Stock Warrants of such series. Each series
of Currency Warrants will be issued under a warrant agreement (each, a "Currency
Warrant Agreement"), to be filed prior to the issuance of such Currency Warrants
in an amendment to the Registration Statement or incorporated by reference into
the Registration Statement pursuant to a Current Report on Form 8-K of the
Company, to be entered by the Company and a warrant agent or agents to be named
by the Company prior to the offering of any Currency Warrants of such series.
The Registration Statement provides that the Company may sell the
Securities registered thereby (i) through underwriters or dealers, (ii) directly
to one or more other purchasers, (iii) through agents or (iv) to both investors
and/or dealers through a specific bidding or auction process or otherwise. The
applicable Prospectus Supplement with respect to the Securities offered will set
forth the terms of the offering of such Securities, including the name or names
of any underwriters, dealers or agents, the purchase price of such Securities
and the proceeds to the Company from such sale, any underwriting discounts and
other items constituting underwriters' compensation, any initial public offering
price and any discounts, commissions or concessions allowed or reallowed or paid
to dealers, and any bidding or auction process. If
<PAGE>
IMC Global Inc.
January 19, 1999
Page 3
underwriters are used in an offering of Securities registered by the
Registration Statement, the Registration Statement anticipates that the Company
will sell such Securities pursuant to the terms of an underwriting agreement to
be executed between the Company and underwriters that will be identified in the
applicable Prospectus Supplement. We have for purposes of this letter reviewed
the preliminary form of the underwriting agreement initially filed as an exhibit
to the Registration Statement and we have assumed for purposes of this letter
that the terms of the Underwriting Agreement will fall within the scope of the
authorization adopted by the Company's Board of Directors and will receive the
approvals required by that Board authorization. The term "Underwriting
Agreement" is used in this letter to mean an underwriting agreement in the form
in which it will be actually executed by the Company and the underwriters with
respect to a particular underwritten offering of Securities registered by the
Registration Statement. We have also assumed for purposes of this letter that
the terms of any other agreement providing for the sale of Securities registered
by the Registration Statement (other than by means of an underwritten offering),
including a distribution agreement to be filed prior to a particular offering of
Securities registered by the Registration Statement in an amendment to the
Registration Statement or incorporated by reference into the Registration
Statement pursuant to a Current Report on Form 8-K of the Company, to be
executed by the Company and an appropriate party or parties that will be
identified in the applicable Prospectus Supplement, will fall within the scope
of the authorization adopted by the Company's Board of Directors and will
receive the approvals required by that Board authorization. The term "Other
Agreement" is used in this letter to mean an agreement providing for the sale of
Securities registered by the Registration Statement (other than by means of an
underwritten offering) in the form in which it will be actually executed by the
Company and the appropriate party or parties with respect to a particular
offering or offerings of Securities registered by the Registration Statement.
The term "Agreement" is used in this letter to mean either an Underwriting
Agreement or an Other Agreement. The terms "Registered Senior Debt Securities,"
"Registered Subordinated Debt Securities," "Registered Debt Warrants,"
"Registered Series Preferred Stock," "Registered Common Stock," "Registered
Stock Warrants" and "Registered Currency Warrants" are used in this letter to
mean, respectively, the Senior Debt Securities, the Subordinated Debt
Securities, the Debt Warrants, the Series Preferred Stock, the Common Stock, the
Stock Warrants and the Currency Warrants that are registered under the
Registration Statement as initially filed and are sold by the Company under an
Agreement.
For purposes of this letter, 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
purpose of this opinion, including (i) the corporate and organizational
documents of the Company, (ii) minutes and records of the
<PAGE>
IMC Global Inc.
January 19, 1999
Page 4
corporate proceedings of the Company with respect to the issuance of the
Securities and (iii) the Registration Statement and the exhibits thereto.
For purposes of this letter, 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
submitted to us as copies. We have also 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.
Subject to the assumptions, qualifications and limitations identified
in this letter, we advise you that in our opinion:
(1) Registered Senior Debt Securities of each series, when issued, will be
binding obligations of the Company, enforceable against the Company in
accordance with their terms, when, as and if (i) the Registration Statement
shall have become effective pursuant to the provisions of the Act, (ii)
appropriate corporate action shall have been taken by the Company to authorize
(a) the form, terms, execution and delivery of any necessary supplemental
indenture or amendment to the Senior Indenture (and such supplemental indenture
or amendment shall have been duly executed and delivered by the Company and the
trustee thereunder) and (b) the form and terms of such series of Registered
Senior Debt Securities, (iii) such series of Registered Senior Debt Securities
shall have been issued in the form and containing the terms described in the
Registration Statement, any applicable Prospectus Supplements, the Senior
Indenture and such corporate action, (iv) a Prospectus Supplement or Prospectus
Supplements with respect to such series of Registered Senior Debt Securities
shall have been filed (or transmitted for filing) with the Securities and
Exchange Commission (the "Commission") pursuant to Rule 424(b) of the Act and
any exhibits necessary under the rules and regulations of the Commission shall
have been filed with the Commission in an amendment to the Registration
Statement or incorporated by reference into the Registration Statement pursuant
to a Current Report on Form 8-K of the Company filed with the Commission, (v)
any legally required consents, approvals, authorizations and other orders of the
Commission and any other regulatory authorities shall have been obtained and
(vi) Registered Senior Debt Securities of such series shall have been duly
executed and authenticated
<PAGE>
IMC Global Inc.
January 19, 1999
Page 5
as provided in the Senior Indenture and duly delivered to the purchasers thereof
against payment of the agreed consideration therefor in accordance with the
applicable Agreement.
(2) Registered Subordinated Debt Securities of each series, when issued,
will be binding obligations of the Company, enforceable against the Company in
accordance with their terms, when, as and if (i) the Registration Statement
shall have become effective pursuant to the provisions of the Act, (ii)
appropriate corporate action shall have been taken by the Company to authorize
(a) the form, terms, execution and delivery of the Subordinated Indenture and
any necessary supplemental indenture or amendment to the Subordinated Indenture
(and the Subordinated Indenture and any such supplemental indenture or amendment
shall have been duly executed and delivered by the Company and the trustee
thereunder) and (b) the form and terms of such series of Registered Subordinated
Debt Securities, (iii) the trustee under the Subordinated Indenture shall have
been qualified under the Trust Indenture Act, (iv) such series of Registered
Subordinated Debt Securities shall have been issued in the form and containing
the terms described in the Registration Statement, any applicable Prospectus
Supplements, the Subordinated Indenture and such corporate action, (v) a
Prospectus Supplement or Prospectus Supplements with respect to such series of
Registered Subordinated Debt Securities shall have been filed (or transmitted
for filing) with the Commission pursuant to Rule 424(b) of the Act and any
exhibits necessary under the rules and regulations of the Commission, including
the executed Subordinated Indenture, shall have been filed with the Commission
in an amendment to the Registration Statement or incorporated by reference into
the Registration Statement pursuant to a Current Report on Form 8-K of the
Company filed with the Commission, (vi) any legally required consents,
approvals, authorizations and other orders of the Commission and any other
regulatory authorities shall have been obtained and (vii) Registered
Subordinated Debt Securities of such series shall have been duly executed and
authenticated as provided in the Senior Indenture and duly delivered to the
purchasers thereof against payment of the agreed consideration therefor in
accordance with the applicable Agreement.
(3) Registered Debt Warrants of each series, when issued, will be binding
obligations of the Company, enforceable against the Company in accordance with
their terms when, as and if (i) the Registration Statement shall have become
effective pursuant to the provisions of the Act, (ii) appropriate corporate
action shall have been taken by the Company to authorize the form, terms,
execution and delivery of a Debt Warrant Agreement for such series of Registered
Debt Warrants, including a form of certificate evidencing such series of
Registered Debt Warrants (and such Debt Warrant Agreement shall have been duly
executed and delivered by the Company and the warrant agent or agents
thereunder), (iii) a Prospectus Supplement or Prospectus
<PAGE>
IMC Global Inc.
January 19, 1999
Page 6
Supplements with respect to such series of Registered Debt Warrants shall have
been filed (or transmitted for filing) with the Commission pursuant to Rule
424(b) of the Act and any exhibits necessary under the rules and regulations of
the Commission, including such Debt Warrant Agreement, shall have been filed
with the Commission in an amendment to the Registration Statement or
incorporated by reference into the Registration Statement pursuant to a Current
Report on Form 8-K of the Company filed with the Commission, (iv) any legally
required consents, approvals, authorizations and other orders of the Commission
and any other regulatory authorities shall have been obtained and (v) Registered
Debt Warrants of such series are duly executed, attested and issued by duly
authorized officers of the Company, countersigned by the applicable warrant
agent and delivered to the purchasers thereof against payment of the agreed
consideration therefor in the manner provided for in the Registration Statement,
any applicable Prospectus Supplements, such Debt Warrant Agreement, the
applicable Agreement and such corporate action.
(4) Shares of each series of Registered Series Preferred Stock will be
validly issued, fully paid and nonassessable when, as and if (i) the
Registration Statement shall have become effective pursuant to the provisions of
the Act, (ii) appropriate corporate action shall have been taken to authorize
the issuance of such series of Registered Series Preferred Stock, to fix the
terms thereof and to authorize the execution and filing of a Certificate of
Designations relating thereto with the Secretary of State of the State of
Delaware, (iii) such Certificate of Designations shall have been executed by
duly authorized officers of the Company and so filed by the Company, all in
accordance with the laws of the State of Delaware and any legally required
consents, approvals, authorizations and other orders of the Commission and any
other regulatory authorities are obtained, (iv) a Prospectus Supplement or
Prospectus Supplements with respect to such series of Registered Series
Preferred Stock shall have been filed (or transmitted for filing) with the
Commission pursuant to Rule 424(b) of the Act and any exhibits necessary under
the rules and regulations of the Commission, including such Certificate of
Designations, shall have been filed with the Commission in an amendment to the
Registration Statement or incorporated by reference into the Registration
Statement pursuant to a Current Report on Form 8-K of the Company filed with the
Commission, (v) Registered Series Preferred Stock of such series with terms so
fixed shall have been duly issued and delivered by the Company against payment
therefor in accordance with such corporate action and the applicable Agreement
and (vi) certificates representing shares of such series of Registered Series
Preferred Stock shall have been duly executed by the duly authorized officers of
the Company in accordance with applicable law.
<PAGE>
IMC Global Inc.
January 19, 1999
Page 7
(5) Shares of Registered Common Stock will be validly issued, fully paid
and nonassessable when, as and if (i) the Registration Statement shall have
become effective pursuant to the provisions of the Act, (ii) appropriate
corporate action shall have been taken to authorize the issuance and sale of
such Registered Common Stock, (iii) a Prospectus Supplement or Prospectus
Supplements with respect to the shares of Registered Common Stock shall have
been filed (or transmitted for filing) with the Commission pursuant to Rule
424(b) of the Act and any exhibits necessary under the rules and regulations of
the Commission shall have been filed with the Commission in an amendment to the
Registration Statement or incorporated by reference into the Registration
Statement pursuant to a Current Report on Form 8-K of the Company filed with the
Commission, (iv) any legally required consents, approvals, authorizations and
other orders of the Commission and any other regulatory authorities shall have
been obtained and (v) appropriate certificates representing the shares of
Registered Common Stock are duly executed, countersigned by the Company's
transfer agent/registrar, registered and delivered against payment of the agreed
consideration therefor in accordance with the applicable Agreement.
(6) Registered Stock Warrants of each series, when issued, will be binding
obligations of the Company, enforceable against the Company in accordance with
their terms when, as and if (i) the Registration Statement shall have become
effective pursuant to the provisions of the Act, (ii) appropriate corporate
action shall have been taken by the Company to authorize the form, terms,
execution and delivery of a Stock Warrant Agreement for such series of
Registered Stock Warrants, including a form of certificate evidencing such
series of Registered Stock Warrants (and such Stock Warrant Agreement shall have
been duly executed and delivered by the Company and the warrant agent or agents
thereunder), (iii) a Prospectus Supplement or Prospectus Supplements with
respect to such series of Registered Stock Warrants shall have been filed (or
transmitted for filing) with the Commission pursuant to Rule 424(b) of the Act
and any exhibits necessary under the rules and regulations of the Commission,
including such Stock Warrant Agreement, shall have been filed with the
Commission in an amendment to the Registration Statement or incorporated by
reference into the Registration Statement pursuant to a Current Report on Form
8-K of the Company filed with the Commission, (iv) any legally required
consents, approvals, authorizations and other orders of the Commission and any
other regulatory authorities shall have been obtained and (v) Registered Stock
Warrants of such series are duly executed, attested and issued by duly
authorized officers of the Company, countersigned by the applicable warrant
agent and delivered to the purchasers thereof against payment of the agreed
consideration therefor in the manner provided for in the Registration Statement,
any applicable Prospectus Supplements, such Stock Warrant Agreement, the
applicable Agreement and such corporate action.
<PAGE>
IMC Global Inc.
January 19, 1999
Page 8
(7) Registered Currency Warrants of each series, when issued, will be
binding obligations of the Company, enforceable against the Company in
accordance with their terms when, as and if (i) the Registration Statement shall
have become effective pursuant to the provisions of the Act, (ii) appropriate
corporate action shall have been taken by the Company to authorize the form,
terms, execution and delivery of a Currency Warrant Agreement for such series of
Registered Currency Warrants, including a form of certificate evidencing such
series of Registered Currency Warrants (and such Currency Warrant Agreement
shall have been duly executed and delivered by the Company and the warrant agent
or agents thereunder), (iii) a Prospectus Supplement or Prospectus Supplements
with respect to such series of Registered Currency Warrants shall have been
filed (or transmitted for filing) with the Commission pursuant to Rule 424(b) of
the Act and any exhibits necessary under the rules and regulations of the
Commission, including such Currency Warrant Agreement, shall have been filed
with the Commission in an amendment to the Registration Statement or
incorporated by reference into the Registration Statement pursuant to a Current
Report on Form 8-K of the Company filed with the Commission, (iv) any legally
required consents, approvals, authorizations and other orders of the Commission
and any other regulatory authorities shall have been obtained and (v) Registered
Currency Warrants of such series are duly executed, attested and issued by duly
authorized officers of the Company, countersigned by the applicable warrant
agent and delivered to the purchasers thereof against payment of the agreed
consideration therefor in the manner provided for in the Registration Statement,
any applicable Prospectus Supplements, such Currency Warrant Agreement, the
applicable Agreement and such corporate action.
Our advice on every legal issue addressed in this letter is based
exclusively on the internal law of New York and the General Corporation Law of
the State of Delaware (under which the Company is incorporated).
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 or judicially developed doctrine in
this area (such as substantive consolidation or equitable subordination)
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) an implied covenant of good faith and
fair dealing, (iv) public policy considerations which may limit the rights of
parties to obtain certain remedies, (v) any requirement that a claim with
respect to any security denominated in other than U.S. dollars (or a judgment
denominated in other than U.S. dollars in respect of such claim) be converted
into U.S. dollars at a rate of exchange
<PAGE>
IMC Global Inc.
January 19, 1999
Page 9
prevailing on a date determined in accordance with applicable law, (vi)
governmental authority to limit, delay or prohibit the making of payments
outside of the United States or in a foreign currency or currency unit and (vii)
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.
For purposes of rendering our opinions expressed above, we have
assumed that (i) the Registration Statement remains effective during the offer
and sale of the particular Securities, (ii) the terms of the (a) the Senior
Indenture, as amended, (b) the Subordinated Indenture, as executed or as
thereafter amended, (c) any supplemental indenture to the Senior Indenture or
the Subordinated Indenture, (d) any Debt Warrant Agreement, (e) any Certificate
of Designations, (f) any Stock Warrant Agreement or (g) any Currency Warrant
Agreement, each as applicable to the particular Securities, are consistent with
the description of the terms of such indenture, agreement or certificate set
forth in the Registration Statement and in the Prospectus, (iii) at the time of
the issuance, sale and delivery of each such Security (x) the authorization of
such Security by the Company will not have been modified or rescinded, and there
will not have occurred any change in law affecting the validity, legally binding
character or enforceability of such Security and (y) the issuance, sale and
delivery of such Security, the terms of such Security and compliance by the
Company with the terms of such Security will not violate any applicable law, any
agreement or instrument then binding upon the Company (including, but not
limited to, any Agreement, any supplemental indenture to the Senior Indenture or
the Subordinated Indenture, any Debt Warrant Agreement, any Certificate of
Designations, any Stock Warrant Agreement or any Currency Warrant Agreement) or
any restriction imposed by any court or governmental body having jurisdiction
over the Company and (iv) any revisions to the form of Subordinated Indenture
filed as an exhibit to the Registration Statement prior to the execution
thereof, and any amendments or supplemental indentures to the Senior Indenture
or the Subordinated Indenture (as executed), will not require requalification of
such indenture under the Trust Indenture Act.
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 Securities.
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
<PAGE>
IMC Global Inc.
January 19, 1999
Page 10
supplement this opinion should the present laws of the State of New York or the
General Corporation Law of the State of Delaware 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.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. We also consent to the reference to our firm under the
heading "Legal Opinion" in the Prospectus. 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 Act of the rules and regulations of the Commission.
Very Truly Yours,
/s/ Kirkland & Ellis
Kirkland & Ellis
<PAGE>
EXHIBIT 12.1
IMC Global, Inc.
Computation of Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Nine Months Ended Years Ended December 31,
------------------------------- -------------------------------------------
Sept. 30, 1998 Sept. 30, 1997 1997 1996 1995 1994 1993
-------------- -------------- ------ ------ ------ ------ -------
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed charges:
Interest charges $127.7 $ 28.6 $ 40.2 $ 43.6 $ 57.8 $ 69.4 $ 70.1
Rent expense 8.0 4.4 6.0 5.8 5.0 4.7 4.4
------ ------ ------ ------ ------ ------ -------
Total fixed charges $135.7 $ 33.0 $ 46.2 $ 49.4 $ 62.8 $ 74.1 $ 74.5
====== ====== ====== ====== ====== ====== =======
Earnings:
Net earnings (loss) $169.2 $150.8 $ 62.9 $127.1 $215.5 $113.9 $(151.1)
Extraordinary charge 3.6 3.3 24.9 8.1 3.5 4.4 25.2
Earnings from discontinued operations (12.5) (21.9) (18.0) (13.5) (23.8) (24.4) (18.9)
Cumulative effect of accounting change -- -- -- -- -- 5.9 --
Provision (credit) for income taxes 87.0 72.7 30.4 81.3 112.7 81.1 (88.1)
Minority interest 30.4 103.2 124.4 185.7 163.6 106.8 5.3
Interest charges 127.7 28.6 40.2 43.6 57.8 69.4 70.1
Rent expense 8.0 4.4 6.0 5.8 5.0 4.7 4.4
------ ------ ------ ------ ------ ------ -------
Total earnings (loss) $413.4 $341.1 $270.8 $438.1 $534.3 $361.8 $(153.1)
====== ====== ====== ====== ====== ====== =======
Ratio of earnings (loss) to fixed charges 3.05 10.34 5.86 8.87 8.51 4.88 (2.06)
Adjusted ratio of earnings to fixed charges(1) 3.15 10.34 9.84 10.59 8.51 4.88 0.21
</TABLE>
(1) The adjusted ratio of earnings to fixed charges for the nine months ended
September 30, 1998 excludes a charge of $14.0 million relating to the sale
of our 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 write down of the historical carrying value of the
Company's 25 percent interest in Main Pass 299. The adjusted ratio of
earnings to fixed charges for the year ended December 31, 1996 excludes a
charge of $84.9 million relating to the merger of The Vigoro Corporation
into a wholly-owned subsidiary of the Company. 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 references to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of IMC Global Inc. for
the registration of $750,000,000 of Debt Securities and Debt Warrants, Series
Preferred Stock, Common Stock and Common Stock Warrants and Currency Warrants,
and to the incorporation by reference therein of our report dated January 26,
1998, except for Note 24 as to which the date is December 15, 1998, with respect
to the consolidated financial statements of IMC Global Inc. included in its
Current Report on Form 8-K dated December 31, 1998, filed with the Securities
and Exchange Commission.
We also consent to the incorporation by reference therein of our report dated
January 15, 1997, with respect to the financial statements of IMC-Agrico
Company (not presented separately therein) included in the Annual Report (Form
10-K) of Freeport-McMoRan Inc. for the year ended December 31, 1996.
/s/ Ernst & Young LLP
Chicago, Illinois
January 18, 1999
<PAGE>
Exhibit 23.2
[LOGO OF ARTHUR ANDERSEN]
Consent of Independent Auditors
We consent to the incorporation by reference, in the IMC Global Inc., a Delaware
Corporation (the "Company") Registration Statement on Form S-3 relating to the
registration of Debt Securities, Debt Warrants, Series Preferred Stock, Common
Stock, Common Stock Warrants and Currency Warrants to a value of $750,000,000,
of our report dated 18 September 1997, on our audit 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.
Arthur Andersen
Chartered Accountants
Adelaide, South Australia
January 19, 1999
<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-3 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-3 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 the 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".
/s/PricewaterhouseCoopers LLP
Kansas City, Missouri --------------------------------------
January 19, 1999 PricewaterhouseCoopers LLP
<PAGE>
Exhibit 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the prospectus constituting a part of 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 the prospectus constituting a part of this
Registration Statement.
/s/ Arthur Andersen LLP
New Orleans, Louisiana
January 18, 1999
<PAGE>
Exhibit 24.1
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-3 under the Securities Act of 1933, as amended, with respect to the
registration of $750,000,000 of securities of the Company (or such greater
amount as shall be permitted to be registered under the rules of the Securities
and Exchange Commission pursuant to Rule 462(b), 457 or other applicable rules
or regulations); 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 5th day of January, 1999
/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-3 under the Securities Act of 1933, as amended, with respect to the
registration of $750,000,000 of securities of the Company (or such greater
amount as shall be permitted to be registered under the rules of the Securities
and Exchange Commission pursuant to Rule 462(b), 457 or other applicable rules
or regulations); 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 6th day of January, 1999
/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-3 under the Securities Act of 1933, as amended, with respect to the
registration of $750,000,000 of securities of the Company (or such greater
amount as shall be permitted to be registered under the rules of the Securities
and Exchange Commission pursuant to Rule 462(b), 457 or other applicable rules
or regulations); 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 6th day of January, 1999
/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-3 under the Securities Act of 1933, as amended, with respect to the
registration of $750,000,000 of securities of the Company (or such greater
amount as shall be permitted to be registered under the rules of the Securities
and Exchange Commission pursuant to Rule 462(b), 457 or other applicable rules
or regulations); 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 3rd day of January, 1999
/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-3 under the Securities Act of 1933, as amended, with respect to the
registration of $750,000,000 of securities of the Company (or such greater
amount as shall be permitted to be registered under the rules of the Securities
and Exchange Commission pursuant to Rule 462(b), 457 or other applicable rules
or regulations); 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 6th day of January, 1999
/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-3 under the Securities Act of 1933, as amended, with respect to the
registration of $750,000,000 of securities of the Company (or such greater
amount as shall be permitted to be registered under the rules of the Securities
and Exchange Commission pursuant to Rule 462(b), 457 or other applicable rules
or regulations); 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 6th day of January, 1999
/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-3 under the Securities Act of 1933, as amended, with respect to the
registration of $750,000,000 of securities of the Company (or such greater
amount as shall be permitted to be registered under the rules of the Securities
and Exchange Commission pursuant to Rule 462(b), 457 or other applicable rules
or regulations); 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 6th day of January, 1999
/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-3 under the Securities Act of 1933, as amended, with respect to the
registration of $750,000,000 of securities of the Company (or such greater
amount as shall be permitted to be registered under the rules of the Securities
and Exchange Commission pursuant to Rule 462(b), 457 or other applicable rules
or regulations); 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 6th day of January, 1999
/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-3 under the Securities Act of 1933, as amended, with respect to the
registration of $750,000,000 of securities of the Company (or such greater
amount as shall be permitted to be registered under the rules of the Securities
and Exchange Commission pursuant to Rule 462(b), 457 or other applicable rules
or regulations); 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 6th day of January, 1999
/s/ Douglas A. Pertz
- --------------------
Douglas A. Pertz
<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-3 under the Securities Act of 1933, as amended, with respect to the
registration of $750,000,000 of securities of the Company (or such greater
amount as shall be permitted to be registered under the rules of the Securities
and Exchange Commission pursuant to Rule 462(b), 457 or other applicable rules
or regulations); 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 6th day of January, 1999
/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-3 under the Securities Act of 1933, as amended, with respect to the
registration of $750,000,000 of securities of the Company (or such greater
amount as shall be permitted to be registered under the rules of the Securities
and Exchange Commission pursuant to Rule 462(b), 457 or other applicable rules
or regulations); 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 4th day of January, 1999
/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-3 under the Securities Act of 1933, as amended, with respect to the
registration of $750,000,000 of securities of the Company (or such greater
amount as shall be permitted to be registered under the rules of the Securities
and Exchange Commission pursuant to Rule 462(b), 457 or other applicable rules
or regulations); 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 1st day of January, 1999
/s/ Billie B. Turner
- --------------------
Billie B. Turner
