EXHIBIT 10.30
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").
W I T N E S S E T H
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 irrevocably
submits 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
----------------------------
