EXHIBIT 4.3
WARRANT AGREEMENT
This Warrant Agreement dated as of December 22, 1997 (the
"Agreement") between IMC GLOBAL INC., a Delaware corporation (the
"Company"), and American Stock Transfer & Trust Company, a New York
corporation, as warrant agent (the "Warrant Agent").
RECITALS
WHEREAS, the Company proposes to issue and deliver its
warrant certificates (the "Warrant Certificates") evidencing warrants
(the "Warrants") to purchase up to an aggregate of 8,421,363 shares of
its Common Stock (as defined below) to holders (the "Warrant
Recipients") of the common stock, par value $.01 per share, of
Freeport-McMoRan Inc. ("FTX") in connection with the Agreement and Plan
of Merger dated as of August 26, 1997 (the "Merger Agreement") between
the Company and FTX; and
WHEREAS, each Warrant will entitle the registered holder
thereof to purchase one share of Common Stock (as defined below) at the
Exercise Price (as defined below);
In consideration of the foregoing and for the purpose of
defining the terms and provisions of the Warrants and the respective
rights and obligations thereunder of the Company and the Holders, the
Company and the Warrant Agent each agrees as follows:
Section 1. Certain Definitions. As used in this Agreement,
the following terms shall have the following respective meanings:
"Affiliate" of any person means any person directly or
indirectly controlling or controlled by or under direct or indirect
common control with such person. For purposes of this definition,
"control" when used with respect to any person means the power to
direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise, and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Business Day" means any day other than a Saturday, a Sunday
or a day on which the New York Stock Exchange, banking institutions or
trust companies in the City of New York are authorized or obligated by
law or executive order to close.
"Common Stock" means the Common Stock, $1.00 par value per
share, of the Company, and any other capital stock of the Company into
which the Common Stock may be converted or reclassified or that may be
issued in respect of, in exchange for, or in substitution of, the
Common Stock by reason of any stock splits, stock dividends,
distributions, mergers, consolidations or other like events.
"Company" shall have the meaning set forth in the preamble to
this Agreement or its successors and assigns.
"Current Market Value" shall have the meaning set forth in
Section 8(e) of this Agreement.
"Effective Time" means December 22, 1997.
"Exercise Date" shall mean, as to any Warrants, the date on
which the Warrant Agent shall have received both (a) the Warrant
Certificate representing such Warrants, with the Exercise Forms therein
duly executed by the Holder thereof or his attorney duly authorized in
writing, and (b) payment in cash, or by official bank check or
certified check made payable to the Company, of an amount in lawful
money of the United States of America equal to the applicable Exercise
Price (as defined below).
"Exercise Price" means the purchase price per share of Common
Stock to be paid upon the exercise of a Warrant in accordance with the
terms hereof, which price shall initially be $44.50 per share, subject
to adjustment from time to time pursuant to Section 8 hereof.
"Expiration Date" means December 22, 2000.
"Holder" means, with respect to any Warrant Certificate, the
person in whose name such Warrant Certificate is registered upon the
books to be maintained by the Warrant Agent pursuant to Section 3
hereof.
"Merger Agreement" shall have the meaning set forth in the
first Recital to this Agreement.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability
company, trust, unincorporated organization or government or any agency
or political subdivision thereof.
"Register" shall have the meaning set forth in Section 3(a)
of this Agreement.
"Warrant Agent" shall have the meaning set forth in the
preamble to this Agreement or the successor or successors of such
Warrant Agent duly appointed in accordance with the terms hereof.
"Warrant Certificates" shall have the meaning set forth in
the first Recital to this Agreement.
"Warrant Recipients" shall have the meaning set forth in the
first Recital to this Agreement.
"Warrants" shall have the meaning set forth in the first
Recital to this Agreement.
Section 2. The Warrant Certificates. (a) Upon issuance,
each Warrant Certificate shall evidence one or more Warrants. The
Warrant Certificates shall be in registered form only and substantially
in the form attached hereto as Exhibit A. The Warrant Certificates
shall be dated the date on which they are countersigned by the Warrant
Agent and may have such legends and endorsements typed, stamped,
printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with applicable laws, rules
or regulations including any rule or regulation of any securities
exchange on which the Warrants may be listed.
(b) Warrant Certificates substantially in the form of Exhibit
A hereto and evidencing Warrants to purchase an aggregate of up to
8,421,363 shares of Common Stock (subject to adjustment pursuant to
Section 8) shall be executed, on or after the date of this Agreement,
by the Company and delivered to the Warrant Agent for countersignature,
and the Warrant Agent shall thereupon countersign and deliver such
Warrant Certificates upon the order and at the direction of the
Company. The names and addresses of the Warrant Recipients shall be
specified by the Company pursuant to a list of Warrant Recipients
provided to the Warrant Agent by the Company, which shall consist of
the names of those Persons who were stockholders of record of FTX as of
the Effective Time, subject only to the elimination of the names of any
such Persons as are only entitled to receive a payment in lieu of a
fractional Warrant in accordance with the terms of the Merger
Agreement. The Warrant Agent is hereby authorized to countersign and
deliver Warrant Certificates as required by this Section 2(b) or by
Section 3(b), 4(f) or 6 hereof. The Warrant Certificates shall be
executed on behalf of the Company by any of its duly authorized
officers, either manually or by facsimile signature printed thereon,
and shall be dated the date of issuance. The Warrant Agent shall
countersign the Warrant Certificates either manually or by facsimile
signature printed thereon, and the Warrant Certificates shall not be
valid for any purpose until so countersigned. In case any duly
authorized officer of the Company whose signature shall have been
placed upon any of the Warrant Certificates shall cease to be such
officer of the Company before countersignature by the Warrant Agent and
issue and delivery thereof, such Warrant Certificates may,
nevertheless, be countersigned by the Warrant Agent and issued and
delivered with the same force and effect as though such person had not
ceased to be such officer of the Company.
Section 3. Registration, Exchange and Transfer of Warrants.
(a) The Warrant Agent shall keep at the principal corporate trust
office of the Warrant Agent, specified in or pursuant to Section 4(e),
a register (the "Register") in which , subject to such regulations as
the Company may reasonably prescribe, the Warrant Agent shall provide
for the registration of Warrant Certificates and of transfers or
exchanges of Warrant Certificates as herein provided.
(b) At the option of the Holder, Warrant Certificates may be
exchanged at such office and upon payment of the charges hereinafter
provided. Whenever any Warrant Certificates are so surrendered for
exchange, the Company shall execute, and the Warrant Agent shall
countersign and deliver, the Warrant Certificates that the Holder
making the exchange is entitled to receive; provided, however, that the
Company shall not be required to issue and deliver Warrant Certificates
representing fractional warrants.
(c) Each Warrant Certificate issued upon any registration of
transfer or exchange of Warrant Certificates shall be the valid
obligation of the Company, evidencing the same obligations, and
entitled to the same benefits under this Agreement as the Warrant
Certificates surrendered for such registration of transfer or exchange.
(d) Each Warrant Certificate surrendered for registration of
transfer or exchange shall (if so required by the Company or the
Warrant Agent) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Warrant Agent, duly executed by the Holder thereof or his attorney duly
authorized in writing.
(e) No service charge shall be made for any registration of
transfer or exchange of Warrant Certificates. The Company may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Warrant Certificates.
(f) Each Warrant Certificate when duly endorsed in blank shall
be negotiable and when a Warrant Certificate shall have been so
endorsed, the Holder thereof may be treated by the Company, the Warrant
Agent and all other persons dealing therewith as the sole and absolute
owner thereof for any purpose and as the person solely entitled to
exercise the rights represented thereby or to request the Warrant Agent
to record the transfer thereof on the Register any notice to the
contrary notwithstanding; but until such transfer on such Register, the
Company and the Warrant Agent may treat the Holder thereof as the owner
for all purposes.
Section 4. Exercise Price, Payment of the Exercise Price,
Duration and Exercise of Warrants Generally. (a) Each Warrant
Certificate shall, when countersigned by the Warrant Agent, entitle the
Holder thereof, upon payment of the Exercise Price and subject to the
provisions of this Agreement, to receive one share of Common Stock for
each whole Warrant represented thereby, subject to adjustment as herein
provided, upon payment of the Exercise Price for each of such shares.
(b) A Warrant shall be deemed to have been exercised
immediately prior to the close of business on the Exercise Date and the
Person entitled to receive shares of Common Stock upon exercise of the
Warrant shall be treated as the holder of such Common Stock as of the
close of business on the Exercise Date. As soon as practicable on or
after the Exercise Date, the Warrant Agent shall notify the Company,
and the Warrant Agent shall, within five Business Days of the Exercise
Date, deliver or cause to be delivered to or upon any written order of
any Holder appropriate evidence of ownership of any shares of Common
Stock issuable upon exercise of the Warrants or other securities or
property (including any cash) to which the Holder is entitled
hereunder, subject to Section 5. All funds received upon the exercise
of Warrants shall be deposited by the Warrant Agent for the account of
the Company, unless otherwise instructed in writing by the Company.
(c) Subject to the terms and conditions set forth herein, the
Warrants shall be exercisable from time to time by the Holder thereof
at any time on or prior to the Expiration Date.
(d) The Warrants shall terminate and become void as of 5:00
P.M. (New York City time) on the Expiration Date and all rights of the
Holder of the Warrant Certificate evidencing such Warrant under this
Agreement or otherwise shall cease.
(e) Subject to Sections 5 and 9 hereof, in order to exercise
a Warrant, the Holder thereof must surrender the Warrant Certificate
evidencing such Warrant, with one of the forms on the reverse of or
attached to the Warrant Certificates duly executed (with signature
guaranteed), to the Warrant Agent at its office at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other address as the Warrant Agent may
specify in writing to the Holders at their respective addresses
specified in the Register, together with payment-in-full of the
Exercise Price thereof.
(f) The Warrants evidenced by a Warrant Certificate shall be
exercisable either as an entirety or, from time to time, for part only
of the number of whole Warrants evidenced thereby. If fewer than all
of the Warrants evidenced by a Warrant Certificate are exercised at any
time, the Warrant Certificate representing such Warrants shall be
surrendered and a new Warrant Certificate of the same tenor and for the
number of Warrants that were not exercised shall be issued by the
Company. The Warrant Agent shall countersign the new Warrant
Certificate, register it in such name or names as may be directed in
writing by the Holder and deliver the new Warrant Certificate to the
person or persons entitled to receive the same.
Section 5. Payment of Taxes. The Company will pay all
documentary, stamp or similar taxes or other governmental charges, if
any, attributable to the issuance of the Warrants or the issuance of
Common Stock upon the exercise of Warrants; provided, however, that the
Company shall not be required to pay any tax or other governmental
charge which may be payable in respect of any transfer involved in the
issue or delivery of any Warrant Certificates or certificates for
Common Stock issued upon the exercise of Warrants in a name other than
that of the Holder of such Warrants, and the Company shall not register
any such transfer or issue any such certificate until such tax or
governmental charge, if required, shall have been paid.
Section 6. Mutilated or Missing Warrant Certificates. If
(a) any mutilated Warrant Certificate is surrendered to the Warrant
Agent or (b) the Company and the Warrant Agent receive evidence to
their satisfaction of the destruction, loss or theft of any Warrant
Certificate, and there is delivered to the Company and the Warrant
Agent (in the case of destruction, loss or theft) such security or
indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Warrant Agent that
such Warrant Certificate has been acquired by a bona fide purchaser,
the Company shall execute and the Warrant Agent shall countersign and
deliver, in exchange for any such mutilated Warrant Certificate or in
lieu of any such destroyed, lost or stolen Warrant Certificate, a new
Warrant Certificate of like tenor and for a like aggregate number of
Warrants.
Upon the issuance of any new Warrant Certificate under this
Section 6, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation thereto and other expenses in connection therewith.
Every new Warrant Certificate executed and delivered pursuant
to this Section 6 in lieu of any destroyed, lost or stolen Warrant
Certificate shall constitute an original contractual obligation of the
Company, whether or not the destroyed, lost or stolen Warrant
Certificate shall be at any time enforceable by anyone, and shall be
entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder.
The provisions of this Section 6 are exclusive and shall
preclude (to the extent lawful) all other rights or remedies with
respect to the replacement of mutilated, destroyed, lost or stolen
Warrant Certificates.
Section 7. Reservation of Common Stock for Issuance on
Exercise of Warrants; Listing; Registration. (a) The Company will at
all times reserve and keep available, free from preemptive rights, and
out of its authorized but unissued Common Stock, solely for the purpose
of issuance upon exercise of Warrants as herein provided, such number
of shares of Common Stock as shall then be issuable upon exercise of
all outstanding Warrants. The Company covenants that all shares of
Common Stock which shall be issuable upon exercise of the Warrants
shall, upon issue in accordance with the terms of this Agreement, be
duly and validly issued and fully paid and nonassessable and free from
all taxes, liens, and charges with respect to the issue thereof and
that upon issuance such shares shall be listed on each national
securities exchange on which any other shares of outstanding Common
Stock are then listed.
(b) The Company covenants that if any Common Stock to be
reserved for the purpose of exercise of the Warrants hereunder require
registration with, or approval of, any governmental authority under any
federal or state securities law before such securities may be validly
issued or delivered upon such exercise, or freely transferred by the
holder thereof after such exercise, as expeditiously as reasonably
possible, it shall endeavor to secure such registration or approval and
shall use its reasonable efforts to obtain appropriate approvals under
state "blue sky" securities laws.
Section 8. Adjustments. The Exercise Price and the number
of shares of Common Stock issuable upon exercise of each whole Warrant
shall be subject to adjustment from time to time as follows:
(a) Stock Dividends; Stock Splits; Reverse Stock Splits;
Reclassifications. If the Company shall (i) pay a dividend in shares
of Common Stock or make any other distribution with respect to its
Common Stock in shares of Common Stock, (ii) subdivide its outstanding
Common Stock, (iii) combine its outstanding Common Stock into a
smaller number of shares, or (iv) issue any shares of Common Stock in
a reclassification of the Common Stock (including any such
reclassification in connection with a merger, consolidation or other
business combination in which the Company is the continuing
corporation), then the number of shares of Common Stock issuable upon
exercise of each Warrant immediately prior to the record date for such
dividend or distribution or the effective date of such subdivision or
combination shall be adjusted so that the Holder of each Warrant shall
thereafter be entitled to receive the kind and number of shares of
Common Stock or other securities or property (including cash) of the
Company that such Holder would have owned or have been entitled to
receive after the happening of any of the events described above, had
such Warrant been exercised immediately prior to the happening of such
event or any record date with respect thereto. An adjustment made
pursuant to this Section 8(a) shall become effective immediately after
the effective date of such event retroactive to the record date, if
any, for such event.
(b) Rights; Options; Warrants. If the Company shall issue
rights, options, warrants or convertible or exchangeable securities
(other than a convertible or exchangeable security subject to Section
8[a]) to all holders of its Common Stock ("Additional Options"),
entitling them to subscribe for or purchase Common Stock at a price per
share that is lower (at the record date for such issuance) than the
Current Market Value per share of Common Stock, the Exercise Price of
each Warrant shall be adjusted by multiplying such price by a fraction,
of which the numerator shall be (i) the number of shares of Common
Stock outstanding on the record date established for the issuance of
the Additional Rights, Options plus the number of shares of Common
Stock that the aggregate consideration received (upon issuance of such
additional shares upon exercise of such Additional Options) would
purchase at the Current Market Price, and of which the denominator
shall be the number of shares of Common Stock outstanding on the record
date established for the issuance of such Additional Options plus the
number of additional shares of Common Stock issuable upon exercise of
the Additional Options. Such adjustment shall be made whenever such
rights, options, warrants or convertible or exchangeable securities are
issued, and shall become effective retroactively immediately after the
record date for the determination of stockholders entitled to receive
such rights, options, warrants or convertible or exchangeable
securities.
Any adjustment to the number of shares of Common Stock
issuable upon exercise of all Warrants then outstanding made pursuant
to this Section 8(b) shall be allocated among the Warrants then
outstanding on a pro rata basis.
(c) Issuance of Common Stock at Lower Values. If the Company
shall, in a transaction to which Section 8(b) is inapplicable, issue or
sell shares of Common Stock, or rights, options, warrants or
convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock, at a price per share
of Common Stock (determined in the case of such rights, options,
warrants or convertible or exchangeable securities, by dividing (A) the
total amount receivable by the Company in consideration of the issuance
and sale of such rights, options, warrants or convertible or
exchangeable securities, plus the total consideration, if-any, payable
to the Company upon exercise, conversion or exchange thereof, by (B)
the total number of shares of Common Stock covered by such rights,
options, warrants or convertible or exchangeable securities) that is
lower than the then Current Market Value per share of the Common Stock
in effect immediately prior to such sale or issuance, then the Exercise
Price of each Warrant shall be adjusted by multiplying such Exercise
Price by a fraction, of which the numerator shall be (i) the number of
shares of Common Stock outstanding on the record date established for
the issuance of such rights, options, or warrants plus the number of
shares of Common Stock which the aggregate consideration received (upon
exercise of such rights, options or warrants) would purchase at the
Current Market Price, and the denominator of which shall be the number
of shares of Common Stock outstanding on the record date established
for the issuance of such rights, options or warrants plus the number of
additional shares of Common Stock issuable upon exercise thereof. Such
adjustment shall be made successively whenever any such sale or
issuance is made.
In case the Company shall issue and sell shares of Common
Stock or rights, options, warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase shares of
Common Stock for a consideration consisting, in whole or in part, of
property other than cash or its equivalent, then in determining the
price per share of Common Stock and the "consideration" receivable by
or payable to the Company for purposes of the first sentence of this
Section 8(c), the Board of Directors of the Company shall determine, in
good faith, the fair value of such property. In case the Company shall
issue and sell rights, options, warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase shares of
Common Stock, together with one or more other securities as part of a
unit at a price per unit, then in determining the "price per share of
Common Stock" and the "consideration" receivable by or payable to the
Company for purposes of the first sentence of this Section 8(c), the
Board of Directors of the Company shall determine, in good faith, the
fair value of the rights, options, warrants or convertible or
exchangeable securities then being sold as part of such unit.
Any adjustment to the number of shares of Common Stock
issuable upon exercise of all Warrants then outstanding made pursuant
to this Section 8(c) shall be allocated among each Warrant then
outstanding on a pro rata basis.
The provisions of this Section 8(c) shall not apply (i) to
shares issued pursuant to an employee stock option plan or similar plan
providing for options or other similar rights to purchase shares of
Common Stock, (ii) to issuances pursuant to incentive bonus plans or
(iii) to shares issued in payment or settlement of any other equity-
related award to employees.
(d) Expiration of Rights, Options and Conversion Privileges.
Upon the expiration of any rights, options, warrants or conversion or
exchange privileges that have previously resulted in an adjustment
hereunder, if any thereof shall not have been exercised, the Exercise
Price and the number of shares of Common Stock issuable upon the
exercise of each Warrant shall, upon such expiration, be readjusted and
shall thereafter, upon any future exercise, be such as they would have
been had they been originally adjusted (or had the original adjustment
not been required, as the case may be) as if (i) the only shares of
Common Stock so issued were the shares of Common Stock, if any,
actually issued or sold upon the exercise of such rights, options,
warrants or conversion or exchange rights and (ii) such shares of
Common Stock, if any, were issued or sold for the consideration
actually received by the Company upon such exercise plus the
consideration, if any, actually received by the Company for issuance,
sale or grant of all such rights, options, warrants or conversion or
exchange rights whether or not exercised; provided, however, that no
such readjustment shall have the effect of increasing the Exercise
Price by an amount, or decreasing the number of shares issuable upon
exercise of each Warrant by a number, in excess of the amount or number
of the adjustment initially made in respect of the issuance, sale or
grant of such rights, options, warrants or conversion or exchange
rights.
(e) Current Market Value. For the purposes of any
computation under this Section 8 or under Section 7(b), the Current
Market Value per share of Common Stock at the date herein specified
shall be deemed to be the average of the daily market prices of the
Common Stock for the 20 consecutive trading days immediately preceding
the day as of which "Current Market Value" is being determined. The
market price for each such trading day shall be the closing price,
regular way, on such day, or if no sale takes place on such day, the
average of the closing bid and asked prices on such day.
(f) Adjustments for Consolidation, Merger, Sale of Assets,
Reorganization, etc. If the Company (i) consolidates with or merges
into any other corporation and is not the continuing or surviving
corporation of such consolidation or merger, or (ii) permits any other
corporation to consolidate with or merge into the Company and the
Company is the continuing or surviving corporation but, in connection
with such consolidation or merger, the Common Stock is converted into
or exchanged for stock or other securities of any other corporation or
cash or any other assets, or (iii) transfers all or substantially all
of its properties and assets to any other corporation, or (iv) effects
a capital reorganization or reclassification of the capital stock of
the Company in such a way that holders of Common Stock shall be
entitled to receive stock, securities, cash or assets with respect to
or in exchange for Common Stock, then, and in each such case, proper
provision shall be made so that, upon the basis and upon the terms and
in the manner provided in this subsection (f), each Holder, upon the
exercise of each Warrant at any time after the consummation of such
consolidation, merger, transfer, reorganization or reclassification,
shall be entitled to receive (at the aggregate Exercise Price in effect
for all shares of Common Stock issuable upon such exercise immediately
prior to such consummation as adjusted to the time of such
transaction), in lieu of shares of Common Stock issuable upon such
exercise prior to such consummation, the stock and other securities,
cash and assets to which such Holder would have been entitled
immediately prior to the record date for such dividend or distribution
or the effective date of such consolidation, merger, transfer,
reorganization or reclassification.
(g) De Minimis Adjustments. Except as provided in Section
8(c) with reference to adjustments required by such Section 8(c), no
adjustment in the Exercise Price shall be required unless such
adjustment would result in an increase or decrease of such Exercise
Price by at least one percent (1%); provided, however, that any
adjustments which by reason of this Section 8(h) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations shall be made to the nearest one-
thousandth of a share.
(h) Notice of Adjustment. Whenever the number of shares of
Common Stock or other stock or property issuable upon the exercise of
each Warrant is adjusted, as herein provided, the Company shall
promptly give written notice (signed by the Chief Financial Officer or
Chief Executive Officer) to the Warrant Agent of such adjustment or
adjustments and shall cause the Warrant Agent promptly to mail by first
class mail, postage prepaid, to each Holder notice of such adjustment
or adjustments and shall deliver to the Warrant Agent a certificate of
a firm of independent public accountants selected by the Board of
Directors of the Company (who may be the regular accountants employed
by the Company) setting forth the adjusted Exercise Price, setting
forth a brief statement of the facts requiring such adjustment and
setting forth the computation by which such adjustment was made. The
Warrant Agent shall be entitled to rely on such certificate and shall
be under no duty or responsibility with respect to any such
certificate, except to exhibit the same from time to time to any Holder
desiring an inspection thereof during reasonable business hours. The
Warrant Agent shall not at any time be under any duty or responsibility
to any Holder to determine whether any facts exist that may require any
adjustment of the number of shares of Common Stock or other stock or
property issuable on exercise of the Warrants, or with respect to the
nature or extent of any such adjustment when made, or with respect to
the method employed in making such adjustment or the validity or value
(or the kind or amount) of any shares of Common Stock or other stock or
property which may be issuable on exercise of the Warrants. The
Warrant Agent shall not be responsible for any failure of the Company
to make any cash payment or to issue, transfer or deliver any shares of
Common Stock or stock certificates or other common stock or property
upon the exercise of any Warrant.
(i) Statement on Warrants. Irrespective of any adjustment in
the number or kind of shares issuable upon the exercise of the
Warrants, Warrants theretofore or thereafter issued may continue to
express the same number and kind of shares as are stated in the
Warrants initially issuable pursuant to this Agreement.
Section 9. Fractional Shares of Common Stock on Exercise of
the Warrants. The Company shall not be required to issue fractional
shares of Common Stock on exercise of the Warrants. If more than one
Warrant shall be presented for exercise in full at the same time by the
same Holder, the number of full shares of Common Stock that shall be
issuable upon such exercise thereof shall be computed on the basis of
the aggregate number of shares of Common Stock acquirable on exercise
of the Warrants so presented. If any fraction of a share of Common
Stock would, except for the provisions of this Section 9, be issuable
on the exercise of any Warrant (or specified portion thereof), the
Company shall pay an amount in cash calculated by it in accordance with
Section 8(e) to be equal to the then Current Market Value multiplied by
such fraction computed to the nearest whole cent. The Holders, by
their acceptance of the Warrant Certificates, expressly waive any and
all rights to receive any fraction of a share of Common Stock or a
stock certificate representing a fraction of a share of Common Stock.
Section 10. No Stock Rights. Prior to the exercise of the
Warrants, no Holder of a Warrant Certificate, as such, shall be
entitled to vote or be deemed the holder of shares of Common Stock or
any other securities of the Company that may at any time be issuable on
the exercise hereof, nor shall anything contained herein be construed
to confer upon any Holder of a Warrant Certificate, as such, the rights
of a stockholder of the Company or the right to vote for the election
of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate
action, to exercise any preemptive right, to receive notice of meetings
or other actions affecting stockholders (except as provided herein), or
to receive dividends or subscription rights or otherwise.
Section 11. The Warrant Agent. (a) The Company hereby
appoints the Warrant Agent to act as agent of the Company as set forth
in this Agreement. The Warrant Agent hereby accepts the appointment as
agent of the Company and agrees to perform that agency upon the terms
and conditions herein set forth, by all of which the Company and the
Holders of Warrants, by their acceptance thereof, shall be bound. No
implied duties or obligations shall be read into this Agreement against
the Warrant Agent. The Warrant Agent shall not by countersigning
Warrant Certificates or by any other act hereunder be deemed to make
any representation as to validity or authorization of the Warrants or
the Warrant Certificates (except as to its countersignature thereon) or
of any securities or other property delivered upon exercise of any
Warrant, or as to the number or kind or amount of stock or other
securities or other property deliverable upon exercise of any Warrant.
The Warrant Agent shall not have any duty to calculate or determine any
adjustments with respect either to the kind and amount of shares or
other securities or any property receivable by Holders upon the
exercise or tender of Warrants required from time to time, and the
Warrant Agent shall have no duty or responsibility in determining the
accuracy or correctness of any such calculation, other than to apply
any adjustment, notice of which is given by the Company to the Warrant
Agent to be mailed to the Holders in accordance with Section 8(i). The
Warrant Agent shall not (i) be liable for any recital or statement of
fact contained herein or in the Warrant Certificates or for any action
taken, suffered or omitted by it in good faith on the belief that any
Warrant Certificate or any other documents or any signatures are
genuine or properly authorized, (ii) be responsible for any failure on
the part of the Company to comply with any of its covenants and
obligations contained in this Agreement or in the Warrant Certificates,
or (iii) be liable for any act or omission in connection with this
Agreement except for its own negligence or willful misconduct. The
Warrant Agent is hereby authorized to accept instructions with respect
to the performance of its duties hereunder from any officer of the
Company and to apply to any such officer for instructions (which
instructions will be promptly given in writing when requested) and the
Warrant Agent shall not be liable for any action taken or suffered to
be taken by it in good faith in accordance with the instructions of any
such officer, except for its own negligence or willful misconduct, but
in its discretion the Warrant Agent may in lieu thereof accept other
evidence of such or may require such further or additional evidence as
it may deem reasonable.
(b) The Warrant Agent shall not be under any obligation or
duty to institute, appear in or defend any action, suit or legal
proceeding in respect hereof, unless first indemnified to its
satisfaction, but this provision shall not affect the power of the
Warrant Agent to take such action as the Warrant Agent may consider
proper, whether with or without such indemnity. The Warrant Agent
shall promptly notify the Company in writing of any claim made or
action, suit or proceeding instituted against it arising out of or in
connection with this Agreement.
(c) The Company will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered
all such further acts, instruments and assurances as may reasonably be
required by the Warrant Agent in order to enable it to carry out or
perform its duties under this Agreement.
(d) The Company agrees to pay to the Warrant Agent
compensation for all services rendered by it hereunder as the Company
and the Warrant Agent may agree from time to time, and to reimburse the
Warrant Agent for reasonable expenses and disbursements incurred in
connection with the execution and administration of this Agreement
(including the reasonable compensation and the expenses of its
counsel), and further agrees to indemnify the Warrant Agent for, and to
hold it harmless against any loss, liability or expense incurred
without gross negligence or bad faith on its part, arising out of or in
connection with the acceptance and administration of this Agreement,
including the reasonable costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
(e) The Warrant Agent and any stockholder, director, officer
or employee of the Warrant Agent may buy, sell and deal in any of the
Warrants or other securities of the Company or its Affiliates or become
pecuniarily interested in transactions in which the Company or its
Affiliates may be interested, or contract with or lend money to the
Company or its Affiliates or otherwise act as fully and freely as
though it were not the Warrant Agent under this Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
(f) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Warrant Agent be liable for
special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to loss of profits), even if the
Warrant Agent has been advised of the form of action.
Section 12. Resignation and Removal of Warrant Agent;
Appointment of Successor. (a) No resignation or removal of the
Warrant Agent and no appointment of a successor warrant agent shall
become effective until the acceptance of appointment by the successor
warrant agent provided herein. The Warrant Agent may resign its duties
and be discharged from all further duties and liability hereunder
(except liability arising as a result of the Warrant Agent's own
negligence, bad faith or willful misconduct) after giving written
notice to the Company. The Company may remove the Warrant Agent upon
written notice, and the Warrant Agent thereupon in like manner be
discharged from all further duties and liabilities hereunder, except as
aforesaid. Upon such resignation or removal, the Company shall appoint
in writing a new warrant agent. If the Company shall fail to make such
appointment within a period of 60 days after it has been notified in
writing of such resignation by the resigning Warrant Agent or after
such removal, then a Holder may apply to any court of competent
jurisdiction for the appointment of a new warrant agent. Any new
warrant agent, whether appointed by the Company or by such a court,
shall be a corporation doing business under the laws of the United
States or any State thereof, in good standing and having a combined
capital and surplus of not less than $50,000,000. The combined capital
and surplus of any such new warrant agent shall be deemed to be the
combined capital and surplus as set forth in the most recent annual
report of its condition published by such warrant agent prior to its
appointment, provided that such reports are published at least annually
pursuant to law or to the requirements of a Federal or state
supervising or examining authority. After acceptance in writing of
such appointment by the new warrant agent, it shall be vested with the
same powers, rights, duties and responsibilities as if it had been
originally named herein as the Warrant Agent, without any further
assurance, conveyance, act or deed; but if for any reason it shall be
necessary or expedient to execute and deliver any further assurance,
conveyance, act or deed, the same shall be done at the expense of the
Company and shall be legally and validly executed and delivered by the
resigning or removed Warrant Agent. Not later than the effective date
of any such appointment, the Company shall give notice thereof to the
resigning or removed Warrant Agent. Failure to give any notice
provided for in this Section, however, or any defect therein, shall not
affect the legality or validity of the resignation of the Warrant Agent
or the appointment of a new warrant agent, as the case may be.
(b) Any corporation into which the Warrant Agent or any new
warrant agent may be merged or any corporation resulting from any
consolidation to which the Warrant Agent or any new warrant agent shall
be a party, or any corporation succeeding to all or substantially all
of the corporate trust business of the Warrant Agent, shall be a
successor Warrant Agent under this Agreement without any further act,
provided that such corporation (i) would be eligible for appointment as
successor to the Warrant Agent under the provisions of Section 12(a) or
(ii) is a wholly owned subsidiary of the Warrant Agent. Any such
successor Warrant Agent shall promptly cause notice of its succession
as Warrant Agent to be mailed first-class mail, postage prepaid) to
each Holder at such Holder's last address as shown on the Register.
Section 13. Money and Other Property Deposited with the
Warrant Agent. Any moneys, securities or other property that at any
time shall be deposited on behalf of the Company with the Warrant Agent
pursuant to this Agreement shall be and are hereby assigned,
transferred and set over to the Warrant Agent in trust for the purpose
for which such moneys, securities or other property shall have been
deposited; but such moneys, securities or other property need not be
segregated from other funds, securities or other property except to the
extent required by law.
Section 14. Consolidations and Mergers of the Company and
Sales, Leases and Conveyances Permitted Subject to Certain Conditions.
(a) The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other
corporation, provided that in any such case, either the Company shall
be the continuing corporation, or the successor corporation shall be a
corporation organized and existing under the laws of the United States
of America or a State thereof and such successor corporation shall
expressly assume the obligations of the Company hereunder.
(b) In case of any such consolidation, merger, sale, lease or
conveyance and upon any such assumption by the successor corporation,
such successor corporation shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein, and the
predecessor corporation, except in the event of a lease, shall be
relieved of any further obligation under this Agreement and the
Warrants.
Section 15. Notices. (a) Except as otherwise provided in
Section 15(b), any notice, demand or delivery authorized by this
agreement shall be sufficiently given or made when mailed if sent by
first-class mail, postage prepaid, addressed to any Holder at such
Holder's address shown on the Register and to the Company or the
Warrant Agent as follows:
If to the Company:
IMC Global Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxx
Senior Vice President and General Counsel
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Xxxxx X. Xxxxxx
If to the Warrant Agent:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
or such other address as shall have been furnished to the party giving
or making such notice, demand or delivery.
(b) Any notice required to be given by the Company to the
Holders shall be made by mailing by registered mail, return receipt
requested, to the Holders at their respective addresses shown on the
Register. The Company hereby irrevocably authorizes the Warrant Agent,
in the name and at the expense of the Company, to mail any such notice
upon receipt thereof from the Company. Any notice that is mailed in
the manner herein provided shall be conclusively presumed to have been
duly given when mailed, whether or not the Holder receives the notice.
Section 16. Amendments. (a) The Company may from time to
time supplement or amend this Agreement without the consent of any
Holder, in order to (i) cure any ambiguity or correct or supplement any
provision herein that may be defective or inconsistent with any other
provision herein or (ii) add to the covenants and agreements of the
Company for the benefit of the Holders, or surrender any rights or
powers reserved to or conferred upon the Company in this Agreement.
Upon the delivery of a certificate from an appropriate officer of the
Company which states that the proposed supplement or amendment is in
compliance with the terms of this section, the Warrant Agent shall join
with the Company in the execution and delivery of any such supplemental
agreements unless it affects the Warrant Agent's own rights, duties or
immunities hereunder in which case such party may, but shall not be
required to, join in such execution and delivery.
(b) With the consent of the registered holders of at least a
majority in number of the Warrants at the time outstanding, the Company
and the Warrant Agent may at any time and from time to time by
supplemental agreement or amendment add any provisions to or change in
any manner or eliminate any of the provisions of this Agreement or of
any supplemental agreement or modify in any manner the rights and
obligations of the Warrant holders and of the Company; provided,
however, that no such supplemental agreement or amendment shall,
without the consent of the registered holder of each outstanding
Warrant affected thereby:
(1) alter the provisions of this Agreement so as to affect
adversely the terms upon which the Warrants are exercisable; or
(2) reduce the number of Warrants outstanding the consent of
whose holders is required for any such supplemental agreement or
amendment.
Upon the delivery of a certificate from an appropriate officer of
the Company which states that the proposed supplement or amendment is
in compliance with the terms of this section, the Warrant Agent shall
join with the Company in the execution and delivery of any such
supplemental agreements unless it affects the Warrant Agent's own
rights, duties or immunities hereunder in which case such party may,
but shall not be required to, join in such execution and delivery.
Section 17. Persons Benefiting. This Agreement shall be
binding upon and inure to the benefit of the Company and the Warrant
Agent, and their respective successors, assigns, beneficiaries,
executors and administrators, and each registered Holder of the
Warrants. Nothing in this Agreement is intended or shall be construed
to confer upon any person, other than the Company, the Warrant Agent
and the Holders of the Warrants, any right, remedy or claim under or by
reason of this Agreement or any part hereof.
Section 18. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original,
but all of which together constitute one and the same instrument.
Section 19. Surrender of Certificates. Any Warrant
Certificate surrendered for exercise or purchase or otherwise acquired
by the Company shall, if surrendered to the Company, be delivered to
the Warrant Agent, and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly canceled by such
Warrant Agent and shall not be reissued by the Company. The Warrant
Agent shall deliver such canceled Warrant Certificates to the Company.
Section 20. Termination of Agreement. This Agreement shall
terminate and be of no further force and effect on the earliest of (a)
the Expiration Date or (b) the date on which all of the Warrants have
been exercised, except that the provisions of Sections 11 and 13 shall
continue in full force and effect after such termination date.
Section 21. Governing Law. This Agreement and each Warrant
issued hereunder and all rights arising hereunder shall be construed in
accordance with and governed by the laws of the State of New York,
without giving effect to the principles of conflicts of laws thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by its officer thereunto duly authorized as of
the date first above written.
IMC GLOBAL INC.
By: /s/ Xxxxxxxxx Xxxxx
Name: Xxxxxxxxx X. Xxxxx
Title: Senior Vice President
AMERICAN STOCK TRANSFER & TRUST COMPANY
as Warrant Agent
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Vice President
EXHIBIT A
FORM OF FACE OF WARRANT CERTIFICATE
WARRANTS TO PURCHASE COMMON STOCK
OF IMC GLOBAL INC.
Certificate for Warrants
CUSIP No.
-------
This certifies that , or
registered assigns, is the registered holder of the number of Warrants
set forth above (the "Warrants"). Each Warrant entitles the holder
thereof (a "Holder"), subject to the provisions contained herein and in
the Warrant Agreement referred to below, to purchase from IMC Global
Inc., a Delaware corporation (the "Company"), one share of Common
Stock, par value $l.00 per share, of the Company ("Common Stock"), at
the exercise price (the "Exercise Price") of $44.50 per share, subject
to adjustment upon the occurrence of certain events. This Warrant
Certificate shall terminate and become void as of the close of business
on December 22, 2000; provided, however, that if the last day for the
exercise of the Warrants shall not be a Business Day, then the Warrants
may be exercised on the next succeeding Business Day (as defined in the
Warrant Agreement) following the Expiration Date.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement, dated as of December 22, 1997 (the "Warrant
Agreement"), between the Company and American Stock Transfer & Trust
Company, as warrant agent (the "Warrant Agent", which term includes any
successor Warrant Agent under the Warrant Agreement), and is subject to
the terms and provisions contained in the Warrant Agreement, to all of
which terms and provisions the Holder of this Warrant Certificate
consents by acceptance hereof. The Warrant Agreement is hereby
incorporated herein by reference and made a part hereof. Reference is
hereby made to the Warrant Agreement for a full statement of the
respective rights, limitations of rights, duties, obligations and
immunities thereunder of the Company, the Warrant Agent and the Holders
of the Warrants.
As provided in the Warrant Agreement and subject to the terms
and conditions therein set forth, the Warrants are immediately
exercisable. At 5:00 P.M. (New York City time) on the Expiration Date,
each Warrant not exercised prior thereto shall terminate and become
void and of no value; provided, however, that if the last day for the
exercise of the Warrants shall not be a Business Day, then the Warrants
may be exercised until 5:00 P.M. (New York City time) on the next
succeeding Business Day following the Expiration Date.
The Exercise Price and the number of shares of Common Stock
issuable upon the exercise of each whole Warrant are subject to
adjustment as provided in the Warrant Agreement.
In order to exercise a Warrant, the registered holder hereof
must surrender this Warrant Certificate at the office of the Warrant
Agent, with the Exercise Subscription Form on the reverse hereof duly
executed by the Holder hereof, with signature guaranteed as therein
specified, together with any required payment in full of the Exercise
Price then in effect or the share(s) of Common Stock as to which the
Warrant(s) represented by this Warrant Certificate are submitted for
exercise, all subject to the terms and conditions hereof and of the
Warrant Agreement. Any such payment of the Exercise Price shall be in
cash or by certified or official bank check payable to the order of the
Company.
The Company will pay all documentary stamp taxes, if any,
attributable to the initial issuance of Common Stock upon the exercise
of Warrants; provided, however, that the Company shall not be required
to pay any tax or other governmental charge which may be payable in
respect of any transfer involved in the issue or delivery of any
Warrant Certificates or certificates for Common Stock issued upon the
exercise of Warrants in a name other than that of the registered Holder
of such Warrants, and the Company shall not register any such transfer
or issue any such certificate until such tax or governmental charge, if
required, shall have been paid.
This Warrant Certificate and all rights hereunder are
transferable by the registered holder hereof, in whole or in part, on
the register of the Company, upon surrender of this Warrant Certificate
for registration of transfer at the principal corporate trust office of
the Warrant Agent maintained for such purpose in the City of New York,
duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Warrant Agent duly executed by
the Holder hereof, or his attorney duly authorized in writing, with
signature guaranteed as specified in the attached Form of Assignment.
Upon any partial transfer, the Company will issue and deliver to such
holder a new Warrant Certificate or Certificates with respect to any
portion not so transferred; provided, however, that the Company shall
not be required to issue and deliver Warrant Certificates representing
fractional warrants.
No service charge shall be made for any registration of
transfer or exchange of the Warrant Certificates, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
This Warrant Certificate and the Warrant Agreement are
subject to amendment as provided in the Warrant Agreement.
All terms used in this Warrant Certificate that are defined
in the Warrant Agreement shall have the meanings assigned to them in
the Warrant Agreement.
Copies of the Warrant Agreement are on file at the office of
the Warrant Agent and may be obtained by writing to the Warrant Agent
at the following address: 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Department.
This Warrant Certificate shall not be valid for any purpose
until it shall have been countersigned by the Warrant Agent.
Dated: ,
----------------- -----
IMC GLOBAL INC.
By:
-----------------------------
Name:
Title:
Countersigned:
AMERICAN STOCK TRANSFER & TRUST
COMPANY
as Warrant Agent
By:
-----------------------------
Authorized Officer
FORM OF REVERSE OF WARRANT CERTIFICATE
EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of Warrants)
To: IMC Global Inc.
The undersigned irrevocably exercises of the
Warrants for the purchase of one share per Warrant (subject to
adjustment) of Common Stock, par value $l.00 per share, of IMC Global
Inc. represented by this Warrant Certificate hereof and herewith makes
payment of $ (such payment being in cash or by certified or
official bank check payable to the order of IMC Global Inc.),
representing the Exercise Price for such Warrants so exercised. On the
terms and conditions specified in this Warrant Certificate and the
Warrant Agreement therein referred to, the undersigned hereby
surrenders this Warrant Certificate and all right, title and interest
therein to and directs that the shares of Common Stock deliverable upon
the exercise of such Warrants be registered or placed in the name and
at the address specified below and delivered thereto.
Date: ,
----------- ------
-----------------------------------
(Signature of Owner)
-----------------------------------
(Street Address)
-----------------------------------
(City) (State)(Zip Code)
Signature Guaranteed by:
-----------------------------------
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant
Certificate to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered holder of the
within Warrant Certificate hereby sells, assigns, and transfers unto
the Assignee(s) named below (including the undersigned with respect to
any Warrants constituting a part of the Warrants evidenced by the
within Warrant Certificate not being assigned hereby) all of the right
of the undersigned under the within Warrant Certificate, with respect
to the number of whole Warrants set forth below:
Social Security
or other
identifying
Name of number of Number of
ASSIGNEES Address Assignee(s) Warrants
and does hereby irrevocably constitute and appoint____________________
___________________________ the undersigned's attorney to make such
transfer on the books of _____________________ maintained for that
purpose, with full power of substitution in the premises.
Date: , 19
-------------- ----
-----------------------------------
(Signature of Owner)( )
-----------------------------------
(Street Address)
-----------------------------------
(City) (State)(Zip Code)
Signature Guaranteed by:
------------------------------------
::ODMA\PCDOCS\CHICAGO4\428147\9
