EXHIBIT 10.5
EXECUTION COPY
AMENDED AND RESTATED PARENT AGREEMENT
THIS AMENDED AND RESTATED PARENT AGREEMENT (this "Agreement"),
made as of the 1st day of July, 1993 and amended and restated as
of the 26th day of May, 1995 among IMC GLOBAL OPERATIONS INC.
(formerly IMC Fertilizer, Inc.), a Delaware corporation
("Operations"), FREEPORT- McMoRan RESOURCE PARTNERS LIMITED
PARTNERSHIP, a Delaware limited partnership ("FRP"),
FREEPORT-McMoRan INC., a Delaware corporation ("FTX"), and
IMC-AGRICO COMPANY, a Delaware general partnership (the
"Partnership").
WITNESSETH
WHEREAS, pursuant to a Contribution Agreement dated as of April
5, 1993, as amended (as so amended, the "Contribution Agreement")
between Operations and FRP, Operations and FRP agreed to cause
the formation of the Partnership to engage in the Phosphate
Chemicals Business, and Operations agreed to form IMC-Agrico GP
Company, a subsidiary of Operations ("IMC GPCo"), and FRP agreed
to form Agrico, Limited Partnership, a Delaware limited
partnership, to be non-managing general partners of the
Partnership;
WHEREAS, it was a condition precedent to the obligations of
Operations and FRP under the Contribution Agreement that each of
Operations, IMC Global Inc. (formerly IMC Fertilizer Group,
Inc.), a Delaware corporation ("Global"), FTX, FRP and the
Partnership shall have entered into the Parent Agreement, as
originally entered into as of July 1, 1993;
WHEREAS, the parties hereto have approved and consented to (i)
(a) the voluntary complete liquidation and dissolution of IMC
GPCo, in accordance with the General Corporation Law of the State
of Delaware ("Delaware Law"), (b) the admission of Operations as
a Partner in the Partnership in accordance with the terms of the
Partnership Agreement (as defined below), (c) the assumption by
Operations (A) as of the date hereof, of 80% of all obligations
of IMC GPCo incurred by IMC GPCo (x) as a general partner of the
Partnership and (y) pursuant to the terms of the Partnership
Agreement, and (B) upon the completion of the liquidation and
dissolution of IMC GPCo, of all remaining obligations of IMC
GPCo, (d) the transfer to Operations of the assets, properties,
rights and interests of IMC GPCo, and (e) the repurchase by IMC
GPCo of the preferred stock of IMC GPCo owned by IMC-Agrico MP,
Inc., a Delaware corporation ("MPCo") at its liquidation value
(collectively, the "IMC GPCo Liquidation"), in each case in
accordance with the Agreement and Plan of Complete Liquidation
and Dissolution dated as of May 26, 1995 among Operations, IMC
GPCo and MPCo (the "IMC GPCo Plan of Liquidation") and (ii) (a)
liquidation of Agrico, Inc. ("FRP GPCo"), a Delaware corporation
and the owner of a 0.2% general partnership interest in the FRP
Partner, or the merger of FRP GPCo with and into Freeport
Chemical Company, a Delaware corporation ("FCC"), and the
liquidation of FCC or the merger of FCC with and into FTX, in
each case in accordance with the FRP GPCo/FCC/FTX Merger
Documents (the "FRP GPCo/FCC/FTX Mergers"), with the result that
FTX shall become the owner of such 0.2% general partnership
interest in the FRP Partner and shall have assumed as of the date
of completion of such FRP GPCo/FCC/FTX Mergers all obligations of
FRP GPCo and FCC, (b) the repurchase by FRP GPCo of the preferred
Stock of FRP GPCo owned by MPCo at its liquidation value, and (c)
at the option of FTX AND FRP, the merger, liquidation or
dissolution of the FRP Partner under Delaware Law at some time in
the future (or the transfer by the FRP Partner of its Partnership
Interests to FRP or an Affiliate of FRP) and the admission of FRP
or an Affiliate of FRP as a Partner in the Partnership, in each
case, in accordance with this Agreement, the Amended and Restated
Partnership Agreement dated as of July 1, 1993, and further
amended and restated as of May 26, 1995, among IMC GPCo, the FRP
Partner and MPCo (the "Partnership Agreement"), and the
Amendment, Waiver and Consent Agreement dated as of May 26, 1995
among Global, Operations, IMC GPCo, MPCo, IMC-Agrico Company, a
Delaware general partnership, FTX, FRP and the FRP Partner (the
"Amendment, Waiver and Consent Agreement");
WHEREAS, the above described transactions are to be accomplished
in the following manner:
(i) with respect to the liquidation and dissolution of IMC GPCo,
80% of the interests of IMC GPCo shall be transferred to
Operations effective as of May 26, 1995 (except that 100% of IMC
GPCo's 50% common stock interest in MPCo shall be transferred to
Operations as of May 26, 1995) and the preferred stock of IMC
GPCo owned by MPCo shall be repurchased by IMC GPCo at its
liquidation value as of May 26, 1995 (the "Initial IMC GPCo
Liquidating Distribution"), with the remaining 20% of such
interests (other than IMC GPCo's common stock interest in MPCo)
to be transferred to Operations (the "Final IMC GPCo Liquidating
Distribution") in accordance with the following time schedule and
the terms of the IMC GPCo Plan of Liquidation:
(A) if (x) FTX and FRP elect by written notice to the
Partners and the Partnership, after November 30, 1995 and
on or prior to June 4, 1996, to cause the merger,
liquidation or dissolution of the FRP Partner (or the
transfer by the FRP Partner of its Partnership Interests to
FRP or an Affiliate of FRP) as contemplated by this
Agreement, the Partnership Agreement and the Amendment,
Waiver and Consent Agreement and (y) such merger,
liquidation or dissolution of the FRP Partner (or such
transfer of its Partnership Interests) is completed not
earlier than June 5, 1996 and not later than June 15, 1996,
the Final IMC GPCo Liquidating Distribution shall be
undertaken promptly after June 22, 1997;
(B) if (x) FTX and FRP elect by written notice to the
Partners and the Partnership, after November 30, 1995 and
on or prior to June 4, 1996, to cause the merger,
liquidation or dissolution of the FRP Partner (or the
transfer by the FRP Partner of its Partnership Interests to
FRP or an Affiliate of FRP) as contemplated by this
Agreement, the Partnership Agreement and the Amendment,
Waiver and Consent Agreement, but (y) such merger,
liquidation or dissolution of the FRP Partner (or such
transfer of its Partnership Interests) is not completed by
June 15, 1996, the Final IMC GPCo Liquidating Distribution
shall be undertaken after June 15, 1996 and shall be
completed no later than June 30, 1996; and
(C) if FTX and FRP do not elect, after November 30, 1995
and on or prior to June 4, 1996, to cause the merger,
liquidation or dissolution of the FRP Partner (or the
transfer by the FRP Partner of its Partnership Interests to
FRP or an Affiliate of FRP) as contemplated by the
Amendment, Waiver and Consent Agreement, the Final IMC GPCo
Liquidating Distribution shall be undertaken after June 4,
1996 and shall be completed by June 30, 1996; and
(ii) with respect to such optional merger, liquidation or
dissolution of the FRP Partner (or such transfer of its
Partnership Interests), such option may be exercised in
accordance with the terms of the Partnership Agreement and the
Amendment, Waiver and Consent Agreement: at any time after
November 30, 1995 and on or prior to June 4, 1996; provided that
if FTX and FRP exercise such option on or prior to June 4, 1996,
their right to cause such merger, liquidation or dissolution of
the FRP Partner (or such transfer of its Partnership Interests)
at that time will be forfeited unless such merger, liquidation or
dissolution of the FRP Partner (or such transfer of its
Partnership Interests) is completed not earlier than June 5, 1996
and not later than June 15, 1996; provided further that if after
November 30, 1995 and on or prior to June 4, 1996 FTX and FRP
exercise such option, but such merger, liquidation or dissolution
of the FRP Partner (or such transfer of its Partnership
Interests) is not completed on or prior to June 15, 1996, FTX and
FRP will have an additional option to cause such merger,
liquidation or dissolution of the FRP Partner (or such transfer
of its Partnership Interests) at any time after July 15, 1997;
and provided further that if after November 30, 1995 and on or
prior to June 4, 1996, FTX and FRP do not exercise their option
to cause the merger, liquidation or dissolution of the FRP
Partner (or the transfer of its Partnership Interests), FTX and
FRP will have the right to exercise such option at any time after
July 15, 1997; provided however that, notwithstanding the
provisions of this paragraph (ii), FTX and FRP may merge,
liquidate or dissolve the FRP Partner (or transfer its
Partnership Interests) in accordance with the terms of the
Amendment, Waiver and Consent Agreement at any time so long as
FTX and FRP bear, and assume liability for, any expense, cost or
loss (including any increase in taxes, other than any increase in
income taxes which arises solely from the timing of the reporting
of income, deductions and credits attributable to the normal
business activities of the Partnership) suffered by the
Partnership, any other Partner or any of their Related Persons
resulting therefrom; and
WHEREAS, the IMC GPCo Liquidation, the FRP GPCo/FCC/FTX Mergers
and such optional merger, liquidation or dissolution of the FRP
Partner (or such transfer of its Partnership Interests) make it
necessary and desirable to amend and restate certain provisions
of the Parent Agreement as originally entered into by the
parties.
NOW, THEREFORE, in consideration of the foregoing and the mutual
obligations contained herein, the parties hereto agree as
follows:
1.0 Defined Terms. Except as otherwise defined herein,
capitalized terms used in this Agreement shall have the meaning
ascribed to such terms in Exhibit A to the Amended and Restated
Partnership Agreement, dated as of July 1, 1993 and further
amended and restated as of May 26, 1995 among IMC GPCo,
Operations, the FRP Partner and MPCo, as managing partner (the
"Managing Partner"). During the period subsequent to the Initial
IMC GPCo Liquidating Distribution and prior to the Final IMC GPCo
Liquidating Distribution, the term "IMC Partner," as used herein,
shall (except as otherwise indicated in this Agreement) refer to
IMC GPCo and Operations, collectively; subsequent to the Final
IMC GPCo Liquidating Distribution, such term shall refer to
Operations; and at all such times, such term shall refer to any
other Affiliate of Operations which succeeds to the Partnership
Interests of IMC GPCo or Operations by means of the purchase,
transfer, assignment or other conveyance or succession of such
Partnership Interests in accordance with the terms of the
Partnership Agreement.
2.0 Other and/or Competing Businesses. Each of FTX, FRP,
Global and Operations agrees that neither it nor any of its
Affiliates will, directly or indirectly, anywhere in the world,
own, manage, operate, control or invest in any business that is
engaged in the Phosphate Chemicals Business without first
complying with the provisions of Section 2.08(b) of the
Partnership Agreement, it being understood that (i) purchases and
resales of phosphate chemicals in Canada by Affiliates of
Operations in volumes not materially greater than the amounts
indicated on Schedule 9.12 to the Partnership Agreement and (ii)
the conduct of the business of the Rainbow Division of
Operations, substantially as currently conducted shall not
constitute a breach or violation of this Section 2.0. If FRP
desires to expand its existing operations (or pursue other
business opportunities which are part of or related to the
Phosphate Chemicals Business) in Sri Lanka or to pursue the
opportunities described in the memorandum of understanding
between FTX and Ercros, S.A. relating to FESA and ENFERSA, it
shall first offer such opportunities to the Partnership in
accordance with the provisions of Section 2.08(b) of the
Partnership Agreement; provided that if the Partnership elects to
pursue any of such opportunities, the Partnership shall reimburse
FRP in an amount equal to the direct costs incurred by FRP in
connection with developing such opportunity prior to the date of
the Partnership's election to pursue such opportunity.
Notwithstanding the foregoing, any Person that acquires or
succeeds to (or whose Affiliate acquires or succeeds to) any of
the Partnership Interest in which Affiliates of FTX, FRP or
Operations currently have an interest (or any Person that
directly or indirectly has or acquires an interest in such
Partnership Interest) shall not be subject to the provisions of
this Section 2.0 with respect to any business conducted by such
Person or its Affiliates that is conducted substantially as
conducted on the date of such acquisition or succession.
Notwithstanding the foregoing, nothing contained in this Section
2.0 shall prevent FTX, FRP, Global, Operations or any of their
respective Affiliates from (A) owning, directly or indirectly, an
aggregate of less than five percent (5%) of the common stock of,
or other ownership interest in, any Person engaged in the
Phosphate Chemicals Business or (B) acquiring (by stock purchase,
asset purchase, merger, consolidation or otherwise) any Person
engaged in the Phosphate Chemicals Business so long as (I) the
revenues derived by such Person from its Phosphate Chemicals
Business represent (and can reasonably be expected to continue to
represent) less than ten percent (10%) of the total revenues of
such Person and (II) the Person acquiring such Person (the
"Acquiring Person") either offers to sell such Person's Phosphate
Chemicals Business to the Partnership at its fair market value
or sells such Person's Phosphate Chemicals Business to an
independent third Person, it being understood that, in the case
of this clause (B), the Acquiring Person may continue to own and
operate, directly or indirectly, such acquired Person's Phosphate
Chemicals Business if it has offered to sell such Phosphate
Chemicals Business to the Partnership in accordance with this
sentence and (x) if any Affiliate of the FRP Partner is the
Acquiring Person, two (2) Policy Committee Representatives or
Alternates of the IMC Partner (or any combination thereof) fail,
on behalf of the Partnership, to accept such offer within thirty
(30) days of such offer to sell, or (y) if any Affiliate of IMC
GPCo or Operations is the Acquiring Person, two (2) Policy
Committee Representatives or Alternates of the FRP Partner (or
any combination thereof) fail, on behalf of the Partnership to
accept such offer within thirty (30) days of such offer to sell.
Each party acknowledges and agrees that the covenants contained
in this Section 2.0 have been negotiated in good faith by the
parties hereto, and are reasonable and are not more restrictive
or broader than necessary to protect the interests of the parties
hereto, and would not achieve their intended purpose if they were
on different terms or for periods of time shorter than the
periods of time provided herein or were applied in more
restrictive geographical areas than are provided herein. Each
party further acknowledges and agrees that the business of the
Partnership is highly competitive, that no party hereto would
enter into this Agreement but for the covenants contained in this
Section 2.0 and that such covenants are essential to protect the
interests of the parties hereunder. If any provision of this
Section 2.0 is held to be unenforceable because of the scope or
area of its applicability, the court making such determination
shall have the power to modify such scope and area or either of
them, and such provision shall then be applicable in such
modified form.
3.0 Interests in IMC GPCo, FRP GPCo and the FRP Partner;
Appointment of CEOs.
(a) At any time that the IMC Partner (which for purposes of this
Section 3.0 and Section 4.0 of this Agreement shall mean, during
the IMC GPCo Liquidation Period, either of IMC GPCo or
Operations) is a Special Purpose Partner, neither Global nor
Operations shall, without the prior written consent of FRP, cause
or permit such IMC Partner to issue to any Person other than
Global or Operations or their respective Affiliates any capital
stock or other equity interests other than its capital stock or
other equity interests issued and outstanding on the date such
IMC Partner became a Special Purpose Partner (which, in the case
of IMC GPCo, shall be July 1, 1993); and Provided, in each case,
that FRP's written consent shall not be unreasonably withheld,
but the granting of such consent may be conditioned upon, among
other things (I) such IMC Partner's compliance with the
applicable provisions of this Section 3.0 with respect to the
issuance of such capital stock and (ii) FRP's being satisfied, in
its reasonable discretion, that the issuance of such capital
stock is being undertaken in a transaction and under
circumstances that will not result in any material liability of
such IMC Partner.
(b) (i) Without the prior written consent of Operations, neither
FRP nor FTX shall cause or permit FRP GPCo, prior to the
completion of the FRP GPCo/FCC/FTX Mergers, to issue to any party
other than FTX or its Affiliates (other than FRP) any capital
stock of FRP GPCo other than its capital stock issued and
outstanding on July 1, 1993, and (ii) at any time that the FRP
Partner is a Special Purpose Partner, neither FRP nor FTX shall,
without the prior written consent of Operations, cause or permit
the FRP Partner to issue to any Person other than FRP or FTX or
their respective Affiliates any partnership interests or other
equity interests in the FRP Partner other than the partnership
interests or other equity interests issued and outstanding on the
date such FRP Partner became a Special Purpose Partner (which in
the case of Agrico, Limited Partnership, shall be July 1, 1993);
provided, in each case, that Operations' written consent shall
not be unreasonably withheld, but the granting of such consent
may be conditioned upon, among other things (i) FRP GPCo's or the
FRP Partner's, as the case may be, compliance with the applicable
provisions of this Section 3.0 with respect to the issuance of
such capital stock or partnership or other equity interests and
(ii) Operations' being satisfied, in its reasonable discretion,
that the issuance of such capital stock or partnership or other
equity interests is being undertaken in a transaction and under
circumstances that will not result in any material liability of
FRP GPCo or the FRP Partner, as the case may be.
(c) Global and Operations will, and will cause their Affiliates
to, use all commercially reasonable efforts to assure that the
Chief Executive Officer from time to time of their Ultimate
Parent is appointed to serve as the CEO of the IMC Partner. FTX
will, and will cause its Affiliates to, use all commercially
reasonable efforts to assure that the Chief Executive Officer of
its Ultimate Parent is appointed to serve as the CEO of FRP GPCo
(until completion of the FRP GPCo/FCC/FTX Mergers) and any future
general partner (or controlling stockholder) of the FRP Partner
other than FTX. Such efforts will in each case include without
limitation voting, and causing its Affiliates to vote, all
capital stock of IMC GPCo and/or Operations or of FRP GPCo or
such other future general partner (or controlling stockholder) of
the FRP Partner other than FTX, as the case may be, in favor of
such appointment.
(d) Except in compliance with this Section 3.0(d):
(i) at any time that the IMC Partner is a Special Purpose
Partner, neither Global nor Operations shall sell, transfer
or otherwise dispose of any capital stock of or other
equity interest in such IMC Partner to any Person other
than an Affiliate of Operations or Global, as the case may
be;
(ii) prior to the completion of the FRP GPCo/FCC/FTX
Mergers, FTX shall not sell, transfer or otherwise dispose
of any capital stock of FRP GPCo to any Person other than
an Affiliate of FTX (other than FRP); and
(iii) at any time that the FRP Partner is a Special Purpose
Partner, neither FTX nor FRP shall sell, transfer or
otherwise dispose of any partnership interest or other
equity interest in the FRP Partner to any Person other than
an Affiliate of FRP or FTX, as the case may be.
If (with respect to actions relating to (i) the capital stock of
or other equity interests in the IMC Partner, at any time that
such IMC Partner is a Special Purpose Partner, (ii) the capital
stock of or other equity interests in FRP GPCo, prior to the
completion of the FRP GPCo/FCC/FTX Mergers, (iii) the partnership
interest or other equity interests in the FRP Partner, at any
time that the FRP Partner is a Special Purpose Partner, Global,
Operations, such IMC Partner, FRP, FRP GPCo, the FRP Partner or
FTX or any of their respective Affiliates (in any case, the
"Soliciting Person") desires to sell or otherwise dispose of to
any third party (other than an Affiliate of such Soliciting
Person), or to solicit bids from any third party (other than an
Affiliate of such Soliciting Person) to purchase or otherwise
acquire, directly or indirectly, all or any portion of the
capital stock of or other equity interests in such IMC Partner or
FRP GPCo, or any partnership interest or other equity interests
in the FRP Partner, or to issue (other than to an Affiliate of
such Soliciting Person) any capital stock of or other equity
interests
in such IMC Partner or FRP GPCo or any partnership interest or
other equity interests in the FRP Partner (the "Subject
Interest"), such Soliciting Person shall (i) if the Soliciting
Person is Global, Operations, such IMC Partner or their
Affiliates, notify FRP in writing of its desire to sell (or the
desire of such IMC Partner to issue) such Subject Interest or
(ii) if the Soliciting Person is FTX, FRP, FRP GPCo, the FRP
Partner or their Affiliates, notify Operations in writing of its
desire to sell (or the desire of the FRP Partner or FRP GPCo to
issue) such Subject Interest. The notice referred to in the
preceding sentence is hereinafter referred to as the "Notice of
Intent to Transfer", and the Person receiving the Notice of
Intent to Transfer is hereinafter referred to as the "Notified
Person". For a period (the "No-Shop Interval") of thirty (30)
days following the date it gives Notice of Intent to Transfer,
and during the duration of any Negotiation Interval (as defined
below), neither the Soliciting Person nor any of its Affiliates,
officers, directors, employees, representatives or agents will,
without the prior written consent of the Notified Person,
commence or continue any discussions, negotiations or exchanges
of information with any Person other than the Notified Person
with respect to the issuance or sale of the Subject Interest.
During the No-Shop Interval, both the Soliciting Person and the
Notified Person shall co- operate with each other by exchanging
all due diligence materials they deem to be reasonably necessary
to determine the price and terms of any potential offer. If the
Notified Person makes a bona fide offer to purchase the Subject
Interest prior to the end of the No-Shop Interval, then the
Soliciting Person and the Notified Person shall negotiate in good
faith for the purchase and sale of the Subject Interest and the
No-Shop Interval shall be extended for fifteen (15) days (the
"Negotiation Interval"); provided that a decision to accept or
reject shall be in the sole discretion of the Soliciting Person.
If the Notified Person fails to make a bona fide offer to
purchase the Subject Interest (the making or failure to make such
offer being in its sole discretion) prior to the expiration of
the No-Shop Interval, or if the Soliciting Person and the
Notified Person fail to execute a letter of intent relating to
the purchase and sale of the Subject Interest or terminate
negotiations prior to the expiration of the Negotiation Interval,
then the Soliciting Person may, but shall not be obligated to,
immediately commence discussions, negotiations or exchanges of
information with, and/or issue or sell its Subject Interest to,
any third party; provided that if the Notified Person made a bona
fide offer during the No-Shop Interval, the Soliciting Person
shall not so issue or sell the Subject Interest to a third party
unless (i) definitive, binding agreements relating to such
issuance or sale are executed within two hundred twenty (220)
days of the expiration of the Negotiation Interval, (ii) the cash
value of the consideration received in connection with such sale
is at least equal to 95% of the cash value of such offer made by
the Notified Person and (iii) the transferee (and, where
appropriate to create the same protections as existed prior to
such transfer, the ultimate parent entity and the direct parent
of such transferee) of such Subject Interest agrees in writing to
be bound by the terms of this Agreement as if it had originally
been a party hereto.
The cash value of such issuance or sale and the cash value of
such offer by the Notified Person, respectively, shall be
determined by agreement between the Soliciting Person and the
Notified Person (i) in the case of the cash value of such
issuance or sale, within ten (10) days following the execution of
definitive, binding agreements by the parties relating thereto
and (ii) in the case of the cash value of such offer by the
Notified Person, within ten (10) days following the earliest to
occur of (A) the termination of negotiations between the
Soliciting Person and the Notified Person and (B) the expiration
of the Negotiation Interval, provided that if such agreement is
not reached during either of such ten (10) day periods, then, in
either such case, such cash value shall be determined by means of
the Appraisal Procedure, with the expense thereof to be paid
fifty percent (50%) by the Soliciting Person and fifty percent
(50%) by the Notified Person and with the determination made
thereby being final, unappealable, binding on both the Soliciting
Person and the Notified Person and enforceable in a court of law
or equity. After the expiration of such two hundred twenty (220)
day period, such Subject Interest shall again be subject to the
terms of this Section 3.0. The failure of either the Soliciting
Person or the Notified Person to exercise its rights under this
Section 3.0 shall not be deemed to be a waiver of its respective
rights under this Section 3.0 with respect to subsequent Subject
Interests.
(e) The restrictions contained in this Section 3.0 shall not
apply to bona fide pledges or other transfers as security, which
shall be subject to Section 4.0 below.
(f) Notwithstanding any other provision of this Agreement, no
transfer described in this Section 3.0 (whether to an Affiliate
of the transferor or otherwise) may be made unless (i) such
transfer is pursuant to a written agreement pursuant to which the
transferee (and, where appropriate to create the same protections
as existed prior to such transfer, the ultimate parent entity and
the direct parent of such transferee) agrees to be bound by all
of the terms of this Agreement as if it were originally a party
hereto, and (ii) such transfer does not cause a termination of
the Partnership for Federal income tax purposes.
4.0 Liens. None of Operations, Global, FRP or FTX may (i)
with respect to interests in the capital stock of or other equity
interest in the IMC Partner, at any time that such IMC Partner is
a Special Purpose Partner, (ii) with respect to interests in the
capital stock of or other equity interests in FRP GPCo, prior to
the completion of the FRP GPCo/FCC/FTX Mergers), and (iii) with
respect to partnership interests or other equity interests in the
FRP Partner, at any time that the FRP Partner is a Special
Purpose Partner, except with the consent of the others (which
consent may be granted or withheld in such Person's sole
discretion), create or permit to exist, directly or indirectly,
any Lien on its partnership interest or other equity interests in
the FRP Partner or any portion thereof, or in its capital stock
of or other equity interests in such IMC Partner or FRP GPCo or
any portion thereof (except (i) Liens for current taxes not
delinquent or taxes being contested in good faith and by
appropriate proceedings, (ii) Liens arising in the ordinary
course of business for sums not due or sums being contested in
good faith and by appropriate proceedings and (iii) Liens
pursuant to bona fide credit arrangements provided that a Person
providing credit pursuant to such arrangements shall acknowledge
that, if such Person acquires ownership of any such interest or
capital stock, such interest or capital stock shall nevertheless
be subject to all of the terms hereof). Any attempt by any of
Global, Operations, FRP or FTX so to create or permit to exist,
directly or indirectly, any Lien (other than the excepted Liens
described in this Section 4.0 above) on its partnership interest
or other equity interests in the FRP Partner or any portion
thereof or in its capital stock of or other equity interests in
such IMC Partner or FRP GPCo, or any portion thereof shall be
null, void ab initio and of no force and effect. Notwithstanding
anything to the contrary contained herein, if any Person obtains
a Lien on a partnership interest or other equity interests in the
FRP Partner or the capital stock of or other equity interests in
such IMC Partner or FRP GPCo during a period during which such a
Lien could not be granted to such Person in accordance with the
terms of this Section 4.0 and forecloses on such Lien, any sale
or other disposition to any Person other than the holder of such
Lien in conjunction with or following such foreclosure of the
partnership interest or other equity interests in the FRP Partner
or the capital stock of or other equity interests in such IMC
Partner or FRP GPCo upon which such Person foreclosed shall be
subject to the terms of Section 3.0 hereof (including, without
limitation, that the Person shall have the obligations of FTX,
FRP, Global and Operations under such Section 3.0 and such Person
shall perform such obligations in the context of a transfer to
any other Person in conjunction with or following a foreclosure
as if such was a transfer to which Section 3.0 applied).
5.0 Standstill With Respect to Operations and Global. Until
the date that is five years following the earlier of (a) the date
the Partnership ceases to exist or (b) the earliest date upon
which neither FRP nor any of its Affiliates is a Partner, none of
FRP, FTX, any successor to FTX as Administrative Managing General
Partner of FRP, the chief executive officer of FTX as of July 1,
1993 nor any Person controlled by any of them shall, directly or
indirectly, without the prior written consent of Operations and
Global, (i) acquire, or offer or agree to acquire, any shares of
common stock of Operations or Global, or securities convertible
or exchangeable into, or rights to acquire, such common stock
(collectively, the "IMC Common Shares") (provided that this
clause (i) shall not restrict the chief executive officer of FTX
as of July 1, 1993, or any benefit or similar plan (with respect
to assets that are under independent management) that is
maintained for employees of FRP, of FTX or any successor to FTX
as the Administrative Managing General Partner of FRP or of any
Person controlled by either of them from acquiring up to 2% of
the outstanding common stock of either of Operations or Global
solely for investment), (ii) solicit proxies or consents with
respect to the common stock of Operations or Global, become a
participant in any election contest relating to the election of
directors of Operations or Global or initiate, propose or
otherwise solicit holders of the common stock of Operations or
Global with respect to any proposal, (iii) form, join or
participate in a group within the meaning of Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended, with respect to
the common stock of Operations or Global, (iv) arrange or
participate in the arranging of financing for the purchase of
shares of the common stock of Operations or Global, (v) propose,
disclose any intent to propose or contact any officers,
employees, directors, stockholders or agents of Operations or
Global or any other Person or entity with respect to any
acquisition of shares of the common stock of Operations or Global
or acquisition, business combination, recapitalization or similar
transaction with respect to Operations or Global or their
respective Affiliates or any material amount of their assets, or
request any waiver, amendment or termination of the provisions of
this Section 5.0 or (vi) attempt in any way to control Operations
or Global; provided that, notwithstanding clauses (i) through
(vi) of this Section 5.0, FRP, FTX, any successor to FTX as the
Administrative Managing General Partner of FRP or representatives
of any either of them may make any proposals or communications to
Operations or Global or their respective senior officers or to
representatives of Operations or Global which do not require
public disclosure to be made.
6.0 Standstill With Respect to FRP and FTX. Until the date
that is five years following the earlier of (a) the date the
Partnership ceases to exist or (b) the earliest date upon which
neither Operations nor any of its Affiliates is a Partner, none
of Operations, Global nor their respective chief executive
officers as of July 1, 1993 nor any Person controlled by either
of them shall, directly or indirectly, without the prior written
consent of the Administrative Managing General Partner of FRP,
(i) (A) acquire, or offer or agree to acquire, any partnership
interests or depositary units representing partnership interests
of FRP, or securities convertible or exchangeable into, or rights
to acquire, such partnership interests or depositary units
representing partnership interests (collectively, the
"Partnership Units") or (B) acquire, or offer or agree to
acquire, any shares of common stock of FTX, or securities
convertible or exchangeable into, or rights to acquire, such
common stock (collectively, the "FTX Common Shares") (provided
that this clause (i) shall not restrict the chief executive
officer of Global or Operations as of July 1, 1993, or any
benefit or similar plan (with respect to assets that are under
independent management) that is maintained for employees of
Operations or of Global or of any Person controlled by either of
them from acquiring up to 2% of either of the outstanding
Partnership Units or FTX Common Shares solely for investment),
(ii) solicit proxies or consents with respect to the Partnership
Units or the FTX Common Shares, become a participant in any
election contest relating to the removal or election of a general
partner of FRP or the election of directors of FTX or initiate,
propose or otherwise solicit holders of the Partnership Units or
the FTX Common Shares with respect to any proposal, (iii) form,
join or participate in a group within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended, with
respect to the Partnership Units or the FTX Common Shares, (iv)
arrange or participate in the arranging of financing for the
purchase of Partnership Units or FTX Common Shares, (v) propose,
disclose any intent to propose or contact any officers,
employees, directors, stockholders or agents of FRP or FTX or any
other Person or entity with respect to any acquisition of
Partnership Units or FTX Common Shares or acquisition, business
combination, recapitalization or similar transaction with respect
to FRP or FTX or their respective Affiliates or any material
amount of their respective assets, or request any waiver,
amendment or termination of this Section 6.0 or (vi) attempt in
any way to control FRP or FTX; provided that, notwithstanding
clauses (i) through (vi) of this Section 6.0, Operations, Global
or representatives of either of them may make any proposals or
communications to FRP or FTX or the Administrative Managing
General Partner of FRP or their respective senior officers or to
representatives of FRP or FTX or the Administrative Managing
General Partner of FRP which do not require public disclosure to
be made.
7.0 Access. On and after the Closing Date, Operations and
FRP will give each other and their respective agents reasonable
access to its and its Affiliates' properties, books, records,
employees and auditors to the extent necessary to permit
Operations or FRP, as the case may be, to determine any matter
relating to its rights and obligations under the Contribution
Agreement or to any period ending on or before the Closing Date;
provided that any such access by Operations or FRP shall not
unreasonably interfere with the conduct of the business of the
Person granting such access. The Person granted such access will
hold, and will use all commercially reasonable efforts to cause
its respective officers, directors, partners, employees,
accountants, counsel, consultants, advisors and agents to hold,
in confidence, unless compelled to disclose by judicial or
administrative process or by other requirements of law, all
confidential documents and information concerning the Person
granting such access or its Contributed Business provided to it
pursuant to this Section 7.0.
8.0 Release of Guaranties. As promptly as practical after
the Closing Date, each of Operations and FRP shall use all
commercially reasonable efforts to cause the Partnership to have
each of Operations and FRP and their respective Affiliates
released from its financial obligations under any letters of
credit, surety bonds or guaranties outstanding as of July 1, 1993
pursuant to which Operations or FRP, as the case may be, has
guaranteed the obligations of its Contributed Business to third
parties.
9.0 Tax Information and Other Reports.
(a) Each of Operations and FRP shall provide to the Partnership
such information, if any, as may be required by the Partnership
for purposes of preparing all necessary federal, state and local
Partnership income tax returns and information returns.
(b) Operations and FRP shall cause the Managing Partner to
provide to each of the shareholders of the Managing Partner (A)
unaudited financial statements of the Managing Partner within 30
days after the end of each of the first three quarters of its
fiscal year, and (B) audited financial statements, including
notes, of the Managing Partner within 90 days after the end of
its fiscal year.
10.0 Certain Actions.
(a) The parties hereto shall not take any action with respect to
(i) the Initial IMC GPCo Liquidating Distribution, (ii) the Final
IMC GPCo Liquidating Distribution, (iii) the FRP GPCo/FCC/FTX
Mergers, (iv) the optional merger, liquidation or dissolution of
the FRP Partner (or the transfer of its Partnership Interests)
contemplated by the Amendment, Waiver and Consent Agreement or
(v) any related transactions in violation of the provisions of
this Agreement, the Partnership Agreement, the Amendment, Waiver
and Consent Agreement or the IMC GPCo Plan of Liquidation (in
each case, taking into account the consent, waiver and other
provisions of the Amendment Waiver and Consent Agreement).
(b) As a condition to the effectiveness of the transactions
described in Section 10.0(a) of this Agreement, each Partner
hereby agrees to bear, and assume liability for, any expense,
cost or loss (including any increase in taxes, other than any
increase in income taxes which arises solely from the timing of
the reporting of income, deductions and credits attributable to
the normal business activities of the Partnership) suffered by
the Partnership, any other Partner or any of their Related
Persons arising from violation of Section 10.0(a) of this
Agreement.
11.0 Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns. Except as set forth below:
(i) Each of Operations and Global shall be relieved of all
obligations under this Agreement on and after the date that
such Person and its Affiliates cease to own a direct or
indirect interest in the Partnership or (prior to the
completion of the Final IMC GPCo Liquidating Distribution)
IMC GPCo; and
(ii) FRP and FTX shall be relieved of all obligations under
this Agreement on and after the date that such Person and
its Affiliates cease to own a direct or indirect interest
in the FRP Partner or the Partnership; provided, that (x)
the provisions of Sections 2.0, 7.0 and 9.0 shall continue
to apply to each such Person for a period of two years
after it ceases to own such an interest, (y) the provisions
of Sections 5.0 and 6.0 shall continue to apply for the
periods set forth therein and (z) the provisions of
Sections 14.0, 15.0, 16.0 and 22.0 shall continue to apply.
12.0 Notices. All communications, notices and consents
provided for herein shall be in writing and be given in person
(or air freight delivery) or by means of telecopy (with request
for assurance of receipt in a manner typical with respect to
communications of that type) or by mail, and shall become
effective (x) on delivery if given in person or by air freight
delivery, (y) on the date of transmission if sent by telecopy or
(z) three business days after being deposited in the mails, with
proper postage for first-class registered or certified air mail
prepaid. Notices shall be addressed as follows:
(i) if to Operations at:
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Corporate Secretary
(ii) If to IMC GPCo at:
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Corporate Secretary
(iii) if to the Partnership at:
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Corporate Secretary
(iv) if to FRP at:
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: General Counsel
(v) if to Global at:
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Corporate Secretary
and (vi) if to FTX at:
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: General Counsel
or at such other address as any party hereto may from time to
time designate by notice duly given in accordance with the
provisions of this Section to the other parties hereto.
13.0 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of
Delaware without regard to the conflicts of law rules of such
state.
14.0 Choice of Forum. All suits, actions or proceedings
arising out of or relating to this Agreement shall be brought in
a state or federal court located in the State of Delaware, which
courts shall be an appropriate forum for all such suits, actions
or proceedings. Each party hereby waives any objection which it
may now or hereafter have to the laying of venue in any such
court of any such suit, action or proceeding.
15.0 Consent to Jurisdiction. Each party hereby
irrevocablysubmits to the jurisdiction of any state or federal
court located in the State of Delaware in any such suit, action
or proceeding referred to in Section 14.0 above. Operations
hereby designates and appoints The Corporation Trust Company,
with an office on the date hereof at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, or any successor thereof, as its
authorized agent to accept and acknowledge on its behalf service
of any and all process which may be served in any such suit,
action or proceeding in any state or federal court in the State
of Delaware and agrees that service of process upon The
Corporation Trust Company, or any successor thereof, shall be
deemed in every respect effective service of process upon
Operations in any such suit, action or proceeding. FRP hereby
designates and appoints The Corporation Trust Company, with an
office on the date hereof at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, or any successor thereof, as its authorized agent
to accept and acknowledge on its behalf service of any and all
process which may be served in any such suit, action or
proceeding in any state or federal court in the State of Delaware
and agrees that service of process upon The Corporation Trust
Company, or any successor thereof, shall be deemed in every
respect effective service of process upon FRP in any such suit,
action or proceeding. The Partnership hereby designates and
appoints The Corporation Trust Company, with an office on the
date hereof at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or
any successor thereof, as its authorized agent to accept and
acknowledge on its behalf service of any and all process which
may be served in any such suit, action or proceeding in any state
or federal court in the State of Delaware and agrees that service
of process upon The Corporation Trust Company, or any successor
thereof, shall be deemed in every respect effective service of
process upon the Partnership in any such suit, action or
proceeding. FTX hereby designates and appoints The Corporation
Trust Company, with an office on the date hereof at 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or any successor thereof, as
its authorized agent to accept and acknowledge on its behalf
service of any and all process which may be served in any such
suit, action or proceeding in any state or federal court in the
State of Delaware and agrees that service of process upon The
Corporation Trust Company, or any successor thereof, shall be
deemed in every respect effective service of process upon FTX in
any such suit, action or proceeding. Global hereby designates
and appoints The Corporation Trust Company, with an office on the
date hereof at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or
any successor thereof, as its authorized agent to accept and
acknowledge on its behalf service of any and all process which
may be served in any such suit, action or proceeding in any state
or federal court in the State of Delaware and agrees that service
of process upon The Corporation Trust Company, or any successor
thereof, shall be deemed in every respect effective service of
process upon Global in any such suit, action or proceeding. Said
designation and appointment by each of Global, Operations, FTX,
FRP and the Partnership shall be irrevocable during the term of
this Agreement, and each party shall pay all costs and expenses
of its respective designation and appointment as and when due and
payable.
16.0 Waiver of Jury Trial. EACH OF GLOBAL, OPERATIONS,
FTX, FRP AND THE PARTNERSHIP HEREBY WAIVES ANY RIGHT TO A TRIAL
BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH SUIT, ACTION
OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY.
17.0 Entire Agreement; Amendments. This Agreement
(including the exhibits hereto) together with the other
Transaction Agreements (including any exhibits or schedules
thereto) and the Amendment, Waiver and Consent Agreement embody
the entire agreement and understanding between the parties with
respect to the subject matter hereof and thereof, and supersede
any agreements, representations, warranties or understandings,
oral or written, between the parties with respect to the subject
matter of this Agreement, the other Transaction Agreements
entered into prior to the date hereof and the Amendment, Waiver
and Consent Agreement. This Agreement may be amended or modified
only by an instrument in writing executed by all of the parties
hereto.
18.0 Execution in Counterparts. This Agreement may be
signed in counterparts. Any single counterpart or set of
counterparts signed, in either case, by all the parties hereto
shall constitute a full and original agreement for all purposes.
19.0 Remedies and Waiver. No failure or delay in exercising
any right hereunder shall operate as a waiver of or impair any
such right. No single or partial exercise of any such right shall
preclude any other or further exercise thereof or the exercise of
any other right. Any waiver must be given in writing to be
effective, and no waiver shall be deemed a waiver of any other
right.
20.0 Headings. The headings of Articles and Sections have
been included herein for convenience only and shall not
constitute a part of this Agreement for any other purpose.
21.0 Third Party Beneficiaries. This Agreement is solely
for the benefit of the parties hereto and their respective
Affiliates, and no provision of this Agreement shall be deemed to
confer upon third parties, other than such respective Affiliates,
any remedy, claim, liability, reimbursement, claim of action or
other right in excess of those existing without reference to this
Agreement.
22.0 Further Assurances. Each of Operations and FRP agrees
to, and to cause IMC GPCo and the FRP Partner, respectively, to,
execute and deliver such other documents, certificates,
agreements and other writings and to take such other actions as
may be necessary or desirable in order to consummate or implement
expeditiously the transactions contemplated by the Transaction
Agreements and to vest in the Partnership good title to the
Assets, subject only to Permitted Liens.
23.0 Public Announcements. Except as may be required by
applicable law or any listing agreement with any national
securities exchange, none of Global, Operations, FTX or FRP nor
any Affiliate of any thereof will issue any press release or make
any public statement with respect to the business of the
Partnership or its financial performance or condition without the
prior written consent of the other parties unless either (i) a
draft of the proposed press release has been provided to each
party hereto at least twenty-four (24) hours prior to its
proposed release in order to permit such party to comment thereon
or (ii) such press release or other public statement contains
factual information (or discussion or analysis of or comment
based upon such factual information) previously provided to such
Person by the Managing Partner; provided that none of Global,
Operations, FTX or FRP nor any of their Affiliates will present
projections or forward-looking information that is attributed to
any of the other parties hereto, the Partners, or any of their
Affiliates without the prior written consent of the parties
hereto and the Partners.
24.0 Partnership Agreement. Each of Operations and FRP
agrees to be bound by Sections 5.07(d) and 9.03 of the
Partnership Agreement.
* * * * *
IN WITNESS WHEREOF, the parties have signed this Agreement on the
date first written above.
IMC GLOBAL OPERATIONS INC. (formerly IMC
Fertilizer, Inc.)
By: XXXXX XXXX
Name Printed: Xxxxx Xxxx
Title: Vice President
FREEPORT-McMoRan RESOURCE PARTNERS, LIMITED
PARTNERSHIP
By: Freeport McMoRan Inc., its
general partner
By:
Name Printed:
Title:
IMC-AGRICO COMPANY
By: IMC-AGRICO MP, INC., its
general partner
By: XXXXXX X. XXXXXXXXX
Name Printed: Xxxxxx X. Xxxxxxxxx
Title: Vice President
By: IMC-AGRICO GP, COMPANY, its
general partner
By: XXXXXX X. XXXXXXXXX
Name Printed: Xxxxxx X. Xxxxxxxxx
Title: Vice President
IN WITNESS WHEREOF, the parties have signed this Agreement on the
date first written above.
IMC GLOBAL OPERATIONS INC. (formerly IMC
Fertilizer, Inc.)
By:
Name Printed:
Title:
FREEPORT-McMoRan RESOURCE PARTNERS, LIMITED PARTNERSHIP
By: Freeport McMoRan Inc., its
general partner
By: XXXXXXX X. XXXXXXXX
Name Printed: Xxxxxxx x. Xxxxxxxx
Title: Senior Vice President
IMC-AGRICO COMPANY
By: IMC-AGRICO MP, INC., its
general partner
By:
Name Printed:
Title:
By: IMC-AGRICO GP, COMPANY, its general partner
By:
Name Printed:
Title:
By: AGRICO, LIMITED PARTNERSHIP, its general partner
By: Agrico, Inc., its general
partner
By: XXXXXXX X. XXXXXXXX
Name Printed: Xxxxxxx X. Xxxxxxxx
Title: Vice President
FREEPORT-McMoRan INC.
By: XXXXXXX X. XXXXXXXX
Name Printed: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
IMC GLOBAL INC. (formerly IMC Fertilizer Group, Inc.) (solely
for the purposes of Sections 2.0, 3.0(a), (c), (d), (e) and (f),
4.0 and 6.0)
By:
Name Printed:
Title:
By: AGRICO, LIMITED PARTNERSHIP, its general partner
By: Agrico, Inc., its general partner
By:
Name Printed:
Title:
FREEPORT-McMoRan INC.
By:
Name Printed:
Title:
IMC GLOBAL INC. (formerly IMC Fertilizer Group, Inc.) (solely
for the purposes of Sections 2.0, 3.0(a), (c), (d), (e) and (f),
4.0 and 6.0)
By: XXXXX XXXX
Name Printed: Xxxxx Xxxx
Title: Vice President
