EXHIBIT 99.3
EXHIBIT A
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of November 13, 1995 (this
Agreement") between IMC Global Inc., a Delaware corporation ("Parent"),
and The Vigoro Corporation, a Delaware corporation (the "Company").
WHEREAS, Parent, Bull Merger Company, a Delaware corporation
and a wholly-owned subsidiary of Parent ("Sub"), and the Company are
concurrently entering into an Agreement and Plan of Merger dated as of
November 13, 1995 (the "Merger Agreement"; capitalized terms used
without definition herein have the meanings ascribed thereto in the
Merger Agreement), whereby, upon the terms and subject to the
conditions set forth in the Merger Agreement, each issued and
outstanding Common Share, $.01 par value, of the Company ("Company
Common Shares"), not owned directly or indirectly by Parent or the
Company, will be converted into shares of Common Stock, $1.00 par
value, of Parent ("Parent Common Stock");
WHEREAS, in connection with the execution and delivery of the
Merger Agreement, Parent has requested that the Company grant to Parent
an option to purchase up to 3,959,330 authorized and unissued Company
Common Shares upon the terms and subject to the conditions hereinafter
set forth; and
WHEREAS, in order to induce Parent and Sub to enter into the
Merger Agreement and to consummate the Merger, the Company desires to
grant to Parent the requested option;
NOW, THEREFORE, in consideration of the premises,
representations, warranties and agreements herein contained, the
parties hereto agree as follows:
1. The Option; Exercise; Adjustments. (a) Upon the terms
and subject to the conditions herein set forth, the Company hereby
grants to Parent an irrevocable option (the "Option") to purchase up to
3,959,330 authorized and unissued Company Common Shares (the "Optioned
Shares") at the purchase price per Optioned Share specified in Section
3. Subject to the conditions set forth in Section 2, the Option may be
exercised by Parent, in whole at any time or in part from time to time,
after the date hereof and prior to the termination of the Option in
accordance with Section 19. In the event Parent shall elect to
exercise the Option, in whole or in part, Parent shall send written
notice to the Company (an "Option Exercise Notice") specifying the
total number of Optioned Shares Parent elects to purchase and a date
(which shall not be later than 20 business days nor earlier than two
business days after the date such Option Exercise Notice is given) for
the closing of such purchase (a "Closing Date"). Parent may revoke any
such election at any time prior to the specified Closing Date by
written notice to the Company.
1. (b) In the event of any change in the number of issued
and outstanding Company Common Shares by reason of any stock dividend,
stock split, combination of shares, reclassification, recapitalization,
merger, consolidation, conversion, exchange of shares or exercise of
rights or warrants, or any other change in the corporate or capital
structure of the Company (including, without limitation, the
declaration or distribution of an extraordinary dividend payable in
cash or securities) which would have the effect of diluting or
otherwise adversely affecting Parent's rights and privileges under this
Agreement, the number and kind of Optioned Shares and the consideration
payable in respect of such Optioned Shares shall be appropriately
adjusted to restore to Parent its rights, privileges and economic
benefits under this Agreement. Without limiting the generality of the
foregoing, in any such event, at the election of Parent, the Option
shall represent the right to purchase, in lieu of the Optioned Shares,
whatever securities, cash or other property the Optioned Shares would
have been converted into or otherwise exchanged for, together with any
securities, cash or other property which would have been distributed
with respect to the Optioned Shares, had Parent acquired the Optioned
Shares prior to such event and elected, to the fullest extent that it
would have been permitted to do so, to receive all such securities,
cash or other property.
(c) In the event that Parent exercises the Option hereunder
after the Company has paid Parent a fee (the "Fee") under Section
5.7(b), 5.7(c), 5.7(d) or 5.7(e) of the Merger Agreement, Parent shall
at each closing hereunder, remit to the Company an amount, in cash,
equal to the lesser of (i) the dollar amount by which the average of
the per share closing prices on the New York Stock Exchange, Inc.
("NYSE") of the Company Common Shares (as reported in the New York
Stock Exchange Composite Transactions) during the 20 consecutive
trading days (or such fewer number of trading days after the date
hereof, as the case may be) ending on the trading day prior to the date
on which the exercise relating to such closing occurs exceeds the
Exercise Price then in effect, multiplied by the number of Optioned
Shares as to which the Option was then exercised (it being understood
that the operation of this clause shall not reduce any Stock Option
Gain Amount previously paid or credited to the Company) or (ii) the
amount of the Fee paid to Parent; provided, however, that in the event
of more than one exercise of the Option, the aggregate amount to be
remitted to the Company pursuant to all exercises of the Option shall
not exceed the amount of the Fee received.
2. Conditions to Exercise of Option and Delivery of
Optioned Shares. (a) Parent's right to exercise the Option is subject
to the following conditions:
(i) No preliminary or permanent injunction or other
order issued by any federal or state court of competent jurisdiction in
the United States of America invalidating the grant or prohibiting the
exercise of the Option or the delivery of the Optioned Shares shall be
in effect;
(ii) One or more of the following events shall occur on
or after the date hereof and be continuing or Parent shall become aware
on or after the date hereof that any of such events shall have occurred
prior to the date hereof and which have not been previously disclosed
publicly: (A) any person, corporation, partnership or other entity or
group (such person, corporation, partnership or other entity or group
being hereinafter referred to, singularly or collectively, as a
"Person"), other than Parent or any of its Affiliates (as defined in
Rule 405 under the Securities Act of 1933, as amended (the "Securities
Act") (or any group which shall include or may reasonably be deemed to
include Parent or any of its Affiliates, a "Parent Group") shall
acquire or become the beneficial owner of 30% or more of the
outstanding Company Common Shares; (B) any new group (other than a
Parent Group) shall be formed which, at the time of the formation
thereof, shall beneficially own 30% or more of the outstanding Company
Common Shares; (C) any Person (other than Parent or any of its
Affiliates or any Parent Group) shall have commenced a tender or
exchange offer for 30% or more of the then outstanding Company Common
Shares or publicly announced any bona fide merger, consolidation or
other business combination (involving 30% or more of then outstanding
Company Common Shares or 30% or more of the equity interests in the
surviving entity) with, or the acquisition of all or substantially all
of the assets, of the Company, or any other similar business
combination involving the Company; (D) the Company shall enter into, or
shall announce that it proposes to enter into, an agreement, including,
without limitation, an agreement in principle, providing for a merger,
consolidation or other business combination (involving 30% or more of
then outstanding Company Common Shares or 30% or more of the equity
interests in the surviving entity) involving the Company or a
"significant subsidiary" (as defined in Rule 1.02(v) of Regulation S-X
promulgated by the Securities and Exchange Commission (the "SEC")) of
the Company or the acquisition of a substantial interest in, or a
substantial portion of the properties, assets or business of, the
Company or a significant subsidiary of the Company (other than the
transactions permitted by Section 4.1(b) of the Merger Agreement); or
(E) any Person (other than Parent or any of its Affiliates or any
Parent Group) shall be granted any option or right, conditional or
otherwise, to acquire or otherwise become the beneficial owner of
Company Common Shares which, together with all Company Common Shares
beneficially owned by such Person, shall result or would result in such
Person being the beneficial owner of 30% or more of the outstanding
Company Common Shares. For purposes of this subparagraph (ii), the
terms "group" and "beneficial owner" shall have the meaning attributed
thereto for the purposes of Section 13(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"); and
(iii) Parent shall not be in material breach of the
Merger Agreement.
(b) Parent's obligation to purchase Optioned Shares
after the exercise of the Option, in whole or in part, and the
Company's obligation to deliver such Optioned Shares, are subject to
the conditions that:
(i) No preliminary or permanent injunction or other
order issued by any federal or state court of competent jurisdiction in
the United States of America prohibiting the delivery of such Optioned
Shares shall be in effect;
(ii) The purchase of such Optioned Shares shall not
violate Rule 10b-13 under the Exchange Act; and
(iii) All applicable waiting periods under the ▇▇▇▇-
▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), shall have expired or been terminated.
3. Exercise Price for Optioned Shares. At any Closing
Date, the Company shall deliver to Parent a certificate or certificates
representing the Optioned Shares then being purchased in the
denominations designated by Parent in its applicable Option Exercise
Notice, and Parent shall purchase such Optioned Shares from the Company
at a price per Optioned Share equal to $57.21 (the "Exercise Price"),
payable in Parent Common Stock and/or cash, at Parent's option, as
specified in such Option Exercise Notice. Any cash payment by Parent
shall be made by wire transfer of immediately available funds to a bank
in the United States of America designated in writing by the Company or
by check payable in immediately available funds. Any payment in Parent
Common Stock shall be valued on the basis of the average of the per
share closing prices on the NYSE of Parent Common Stock (as reported in
the New York Stock Exchange Composite Transactions) during the 20
consecutive trading days ending on the third trading day preceding the
applicable Closing Date. Any payment in Parent Common Stock shall be
made by delivery of a certificate or certificates representing the
Parent Common Stock then being delivered in respect of such payment in
the denominations designated by the Company. After payment of the
Exercise Price for the Optioned Shares covered by any Stock Exercise
Notice, the Option shall be deemed exercised to the extent of the
Optioned Shares specified in such Option Exercise Notice as of the date
such Option Exercise Notice is given to the Company. Any Parent Common
Stock delivered in respect of such payment shall be duly authorized,
validly issued, fully paid and nonassessable and free of preemptive
rights.
4. Representations and Warranties of the Company. The
Company represents and warrants to Parent that: (a) the execution and
delivery of this Agreement by the Company and the consummation by the
Company of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of the
Company, and this Agreement has been duly executed and delivered by the
Company and (assuming the valid authorization, execution and delivery
hereof by Parent and the validity and binding effect hereof on Parent)
constitutes the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms; (b) the Company has
taken all necessary corporate action to reserve the Optioned Shares for
issuance upon exercise of the Option, and the Optioned Shares, when
issued and delivered by the Company to Parent upon exercise of the
Option as provided herein, will be duly authorized, validly issued,
fully paid and nonassessable and free of preemptive rights and will, as
soon as practicable after the issuance thereof, have been listed on
the NYSE; and (c) except as otherwise required by the HSR Act, except
for other routine filings and except as required by Section 8 or as set
forth in the Merger Agreement, including the Company Letter, the
execution and delivery of this Agreement by the Company do not, and the
consummation by the Company of the transactions contemplated hereby and
compliance with the provisions hereof will not, require the consent,
approval or authorization of, or any filing or registration with, any
governmental authority or other person and will not result in any
violation of, or default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or the loss of a material benefit under,
or result in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of the Company or any
of its subsidiaries under: (i) any provision of the Certificate of
Incorporation or By-Laws of the Company or the comparable charter or
organization documents or by-laws of any of its subsidiaries; (ii) any
loan or credit agreement, note, bond, mortgage, indenture, lease,
agreement, instrument, permit, concession, franchise or license
applicable to the Company or any of its subsidiaries; or (iii) any
judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to the Company or any of its subsidiaries or any of their
respective properties or assets, other than, in the case of clause (ii)
or (iii), any such violations, defaults, rights, liens, security
interests, charges or encumbrances that, individually or in the
aggregate, could not reasonably be expected to have a material adverse
effect on the Company and its subsidiaries taken as a whole and would
not materially impair the ability of the Company to perform its
obligations hereunder or prevent the consummation of any of the
transactions contemplated hereby.
5. Representations and Warranties of Parent. Parent
represents and warrants to the Company that: (a) the execution and
delivery of this Agreement by Parent and the consummation by Parent of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Parent, and this Agreement
has been duly executed and delivered by Parent and (assuming the valid
authorization, execution and delivery hereof by the Company and the
validity and binding effect hereof on the Company) constitutes the
valid and binding obligation of Parent enforceable against Parent in
accordance with its terms; and (b) Parent is acquiring the Option and,
if and to the extent that it exercises the Option, will be acquiring
the Optioned Shares issuable upon such exercise for its own account and
not with a view to the distribution or resale thereof in a manner which
would be in violation of the Securities Act and will not sell or
otherwise dispose of the Optioned Shares except pursuant to an
effective registration under the Securities Act or a valid exemption
from registration under the Securities Act. A legend to such effect
may be inscribed on all certificates representing the Optioned Shares.
6. Closing. Any closing hereunder shall take place on
the Closing Date specified by Parent in the applicable Option Exercise
Notice at 10:00 A.M., local time, or on the first business day
thereafter on which all of the conditions specified in Section 2 are
satisfied, at the principal office of the Company, or at such other
time and place as the parties hereto may agree.
7. Listing of Optioned Shares; HSR Filing. The
Company shall promptly file an application to list on the NYSE, upon
official notice of issuance, any Optioned Shares issued hereunder and
shall use its reasonable best efforts to obtain approval of such
listing; provided, however, that if the Company shall be unable to
effect such listing on the NYSE by any Closing Date, the Company shall
nevertheless be obligated to deliver Optioned Shares upon such Closing
Date. In addition, the Company shall use its reasonable best efforts
to effect promptly all necessary filings by the Company under the HSR
Act.
8. Parent Registration Rights. (a) If at any time
within three years after the latest Closing Date the Company shall file
under the Securities Act any registration statement (other than a
registration statement on Form ▇-▇, ▇▇▇▇ ▇-▇ or any successor form)
covering Company Common Shares or Other Securities (as hereinafter
defined) for its own account or for the account of any holder of
Company Common Shares or Other Securities, the Company shall permit
Parent to include in such registration statement any or all of the
Optioned Shares (or, in the case of any adjustment pursuant to Section
1(b), the other securities (the "Other Securities") issuable upon
exercise of the Option) which have been or are to be acquired upon the
exercise of the Option; provided, however, that if the managing
underwriters in any proposed registered public offering shall advise
the Company that, in their opinion, the number of Optioned Shares
(and/or Other Securities, if applicable) to be included in such
registration statement at the request of Parent exceeds the number of
Company Common Shares (and/or Other Securities, if applicable) which
can be sold in such offering, the Company may exclude from such
registration statement all or any portion, as appropriate, of the
Optioned Shares (and/or Other Securities, if applicable) requested to
be included by Parent.
(b) At any time within three years after the latest
Closing Date, upon the request of Parent, the Company shall promptly
file and use its reasonable best efforts to cause to be declared
effective a registration statement under the Securities Act (and all
applicable state securities laws) with respect to any or all of the
Optioned Shares (and/or Other Securities, if applicable) which have
been or are to be acquired upon the exercise of the Option and to cause
such registration statement to remain effective for a period of not
less than 30 days thereafter (or any shorter period within which all of
the Optioned Shares (and/or Other Securities, if applicable) covered by
such registration statement shall have been sold or withdrawn from sale
or longer period required by any underwriting agreement pursuant to
Section 8(e)); provided, however, that the Company shall not be
required to have declared effective more than two registration
statements pursuant to this paragraph (b) (and not more than one in any
consecutive 12-months' period) and shall be entitled to delay the
effectiveness of any such registration statement if the commencement of
the offering contemplated thereby would, in the good faith judgment of
the Board of Directors of the Company, require premature disclosure of
any material corporate development or otherwise interfere with or
adversely affect any pending or proposed offering of securities by the
Company.
(c) In connection with any registration of the Optioned
Shares pursuant to Section 8(a) or 8(b), the Company shall indemnify
and hold harmless Parent, its Affiliates, any underwriters involved in
the sale of Optioned Shares and their respective controlling persons,
directors, officers, agents and representatives from and against any
and all losses, claims, damages, liabilities and expenses (including,
without limitation, all out-of-pocket expenses, investigation expenses,
expenses incurred with respect to any judgment or settlement and fees
and disbursements of counsel and accountants) arising out of or based
upon any untrue statement or alleged untrue statement contained in, or
any omission or alleged omission from, each registration statement (and
any related prospectus) relating to any such registration; provided,
however, that the Company shall not be liable in any such case to
Parent or any such Affiliate, controlling person, director, officer,
agent or representative to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in such
registration statement (or any related prospectus) in reliance upon,
and in conformity with, written information with respect to Parent or
any such Affiliate, controlling person, director, officer, agent or
representative furnished by Parent to the Company for use in the
preparation of such registration statement.
(d) Any registration effected in accordance with this
Section 8 shall be at the Company's expense, except for underwriting
discounts and commissions and the fees and disbursements of counsel to
Parent.
(e) At the request of Parent, Company shall enter into
an underwriting agreement with such underwriter or underwriters (or
their representative or representatives) designated by Parent and
reasonably acceptable to Company providing for the offer and sale of
the Optioned Shares and containing terms and conditions customary in
secondary offerings of common stock of issuers comparable to the
Company on the registration form utilized for such offering. The
Company shall cooperate with Parent and such underwriter(s) or
representative(s), and will permit them and their respective counsel
and representative(s) to make such "due diligence" investigation to be
made of its business, properties, financial condition, results and
affairs as they shall reasonably request, in connection with the
registration, offer and sale of the Optioned Shares.
9. Company Registration Rights. (a) If Parent
delivers any shares of Parent Common Stock in payment for Optioned
Shares upon the exercise of the Option, in whole or in part, and Parent
within three years after the latest Closing Date at which shares of
Parent Common Stock are delivered files under the Securities Act any
registration statement (other than a registration statement on Form S-
4, Form S-8 or any successor form) covering shares of Parent Common
Stock for its own account or for the account of any stockholder of
Parent, Parent will permit the Company to include in such registration
statement any or all of the shares of Parent Common Stock so acquired;
provided, however, that if the managing underwriters in any proposed
registered public offering shall advise Parent that, in their opinion,
the number of shares of Parent Common Stock to be included in such
registration statement at the request of the Company exceeds the number
of shares which can be sold in such offering, Parent may exclude from
such registration statement all or any portion, as appropriate, of the
shares of Parent Common Stock requested to be included by the Company.
(b) At any time within three years after the latest
Closing Date at which shares of Parent Common Stock are delivered, upon
the request of the Company, Parent shall promptly file and use its
reasonable best efforts to cause to be declared effective a
registration statement under the Securities Act (and all applicable
state securities laws) with respect to any or all of the shares of
Parent Common Stock acquired in payment for Optioned Shares upon the
exercise of the Option, in whole or in part, and to cause such
registration statement to remain effective for a period of not less
than 30 days thereafter (or any shorter period within which the shares
of Parent Common Stock covered by such registration statement shall
have been sold or withdrawn from sale or longer period required by any
underwriting agreement pursuant to Section 9(e)); provided, however,
that Parent shall not be required to have declared effective more than
two registration statements pursuant to this paragraph (b) (and not
more than one in any consecutive 12-months' period) and shall be
entitled to delay the effectiveness of any such registration statement
if the commencement of the offering contemplated thereby would, in the
good faith judgment of the Board of Directors of Parent, require
premature disclosure of any material corporate development or otherwise
interfere with or adversely affect any pending or proposed offering of
securities by Parent.
(c) In connection with any registration of shares of
Parent Common Stock pursuant to Section 9(a) or 9(b), Parent shall
indemnify and hold harmless the Company, its Affiliates, any
underwriters involved in the sale of Optioned Shares and their
respective controlling persons, directors, officers, agents and
representatives from and against any and all losses, claims, damages,
liabilities and expenses (including, without limitation, all out-of-
pocket expenses, investigation expenses, expenses incurred with respect
to any judgment or settlement and fees and disbursements of counsel and
accountants) arising out of or based upon any untrue statement or
alleged untrue statement contained in, or any omission or alleged
omission from, each registration statement (and any related prospectus)
relating to any such registration; provided, however, that Parent shall
not be liable in any such case to the Company or any such Affiliate,
controlling person, director, officer, agent or representative to the
extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based
upon any untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement (or any related
prospectus) in reliance upon, and in conformity with, written
information with respect to the Company or any such Affiliate,
controlling person, director, officer, agent or representative
furnished by the Company to Parent for use in the preparation of such
registration statement.
(d) Any registration effected in accordance with this
Section 9 shall be at Parent's expense, except for underwriting
discounts and commissions and the fees and disbursements of counsel to
the Company.
(e) At the request of Company, Parent shall enter into
an underwriting agreement with such underwriter or underwriters (or
their representative or representatives) designated by Company and
reasonably acceptable to Parent providing for the offer and sale of the
Parent Common Stock and containing terms and conditions customary in
secondary offerings of common stock of issuers comparable to Parent on
the registration form utilized for such offering. Parent shall
cooperate with Company and such underwriter(s) or representative(s),
and will permit them and their respective counsel and representative(s)
to make such "due diligence" investigation to be made of its business,
properties, financial condition, results and affairs as they shall
reasonably request, in connection with the registration, offer and sale
of the Parent Common Stock.
10. Expenses. Each party hereto shall pay its own
expenses in connection with this Agreement, except as otherwise
provided in Sections 8 and 9.
11. Further Assurances. The Company and Parent shall
execute and deliver all such further documents and instruments and take
all such further action as may be necessary, desirable or proper in
order to consummate the transactions contemplated hereby.
12. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given when delivered
personally, one day after being sent by overnight courier or when
telecopied (with a confirmatory copy sent by overnight courier) to the
other party hereto at the following addresses (or at such other address
for any party as shall be specified by like notice):
(a) if to Parent, to
IMC Global Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President and
General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Company, to
The Vigoro Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Altheimer & ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Gold
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
13. Interpretation. When reference is made in this
Agreement to a Section, such reference shall be to a Section of this
Agreement unless otherwise indicated. The headings contained in this
Agreement are for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
14. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the
same agreement, and shall become effective when a counterpart shall
have been signed by each of the parties hereto and delivered to the
other party.
15. Entire Agreement; No Third-Party Beneficiaries.
This Agreement, the Merger Agreement, the Company Letter, the Parent
Letter and the Confidentiality Agreements (and the schedules and
attachments to the foregoing) constitute the entire agreement of the
parties hereto and thereto and supersede all prior agreements and
understandings, both written and oral, among such parties with respect
to the subject matter hereof and thereof. This Agreement, except for
the provisions of Sections 8(c) and 9(c), is not intended to confer
upon any person other than the parties hereto any rights or remedies
hereunder.
16. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of
Delaware, regardless of the laws that might otherwise govern under
applicable principles of conflict of laws of such state.
17. Assignment. Neither this Agreement or the Option
nor any of the rights, interests or obligations hereunder or thereunder
shall be assigned by either of the parties hereto without the prior
written consent of the other party, except that Parent, in its sole
discretion, may assign any or all of its rights, interests and
obligations (other than its obligations under Section 9) hereunder or
thereunder to any direct or indirect wholly-owned subsidiary of Parent,
but no such assignment shall relieve Parent of any of its obligations
hereunder or thereunder. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective successors and
assigns.
18. Severability. If any term or provision of this
Agreement is invalid, illegal or incapable of being enforced by any
rule of law, or public policy, all other terms, provisions and
conditions of this Agreement shall nevertheless remain in full force
and effect so long as the economic and legal substance of the
transactions contemplated hereby and by the Merger Agreement are not
affected in any manner materially adverse to either party hereto. Upon
any determination that any term or other provision hereof is invalid,
illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the
original intent of such parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated by this
Agreement and by the Merger Agreement may be consummated as originally
contemplated to the fullest extent possible.
19. Termination. The Option shall terminate upon the
earlier of (i) the Effective Time (as defined in the Merger Agreement)
and (ii) the 135th day after the termination of the Merger Agreement in
accordance with its terms; provided, however, that no such termination
shall affect any of the rights of Parent or its successors or assigns
in respect of any previous exercise of the Option or the acquisition of
Optioned Shares pursuant to any such exercise, nor shall any such
termination affect any of the rights of the Company under Section 9
hereof.
20. Enforcement of this Agreement. The parties hereto
agree that irreparable damage would occur in the event that any of the
terms or provisions of this Agreement were not performed in accordance
with their specific wording or were otherwise breached. It is
accordingly agreed that each of the parties hereto shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions hereof in any court of
the United States of America or any state having jurisdiction, such
remedy being in addition to any other remedy to which either party may
be entitled at law or in equity.
IN WITNESS WHEREOF, Parent and the Company have caused
this Agreement to be executed and attested by their respective officers
thereunto duly authorized, all as of the date first written above.
THE VIGORO CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chairman of the Board
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
President and Chief Executive
Officer
IMC GLOBAL INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman and Chief Executive
Officer
Attest: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President and
General Counsel
