EXHIBIT 99.4
EXHIBIT B
VOTING AGREEMENT
VOTING AGREEMENT, dated as of November 13, 1995, by and among IMC
Global Inc., a Delaware corporation ("Parent"), on the one hand, and
Great American Management and Investment, Inc., in its capacity as
stockholder ("Stockholder") of The Vigoro Corporation, a Delaware
corporation (the "Company"), on the other hand (this "Agreement");
WHEREAS, concurrently herewith, Parent, Bull Merger Company, a Delaware
corporation and wholly owned subsidiary of Parent, and the Company are
entering into an Agreement and Plan of Merger (the "Merger Agreement";
capitalized terms used without definition herein having the meanings
ascribed thereto in the Merger Agreement);
WHEREAS, concurrently herewith, Parent and the Company are entering
into a Stock Option Agreement (the "Stock Option Agreement");
WHEREAS, Stockholder is as of the date hereof the beneficial owner of
Company Common Shares (collectively, the "Shares");
WHEREAS, approval of the Merger Agreement by the Company's stockholders
is a condition to the consummation of the Merger;
WHEREAS, as a condition to its entering into the Merger Agreement,
Parent has required that Stockholder agree, and Stockholder has agreed,
to enter into this Agreement; and
WHEREAS, Stockholder has been informed that the Board of Directors of
the Company has approved the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as
follows:
Section 1. Agreement to Vote, Restrictions on Dispositions, Etc.
a. Stockholder hereby agrees to attend the Company Stockholder
Meeting, in person or by proxy, and to vote (or cause to be voted) all
Shares, and any other voting securities of the Company, owned by
Stockholder whether issued heretofore or hereafter, that such person
owns or has the right to vote, for approval and adoption of the Merger
Agreement (as amended from time to time) and the Merger, and the
transactions contemplated by the Merger Agreement, such agreement to
vote to apply also to any adjournment of the Company Stockholder
Meeting. Stockholder agrees not to grant any proxies or enter into any
voting agreement or arrangement inconsistent with this Agreement or the
Limited Irrevocable Proxy of even date herewith executed by Stockholder
in favor of Parent ("Irrevocable Proxy").
b. Stockholder hereby agrees that, without the prior written consent
of Parent, Stockholder shall not, directly or indirectly, sell, offer
to sell, grant any option for the sale of or otherwise transfer or
dispose of, or enter into any agreement to sell, any Shares and any
other voting securities of the Company that Stockholder owns
beneficially or otherwise. Stockholder agrees that Parent may instruct
the Company to enter stop transfer orders with the transfer agent(s)
and the registrar(s) of the Company Common Shares against the transfer
of Shares and any other voting securities of the Company that
Stockholder owns beneficially or otherwise. If requested by Parent,
Stockholder agrees to surrender to the transfer agent(s) and
registrar(s) of the Company Common Shares certificates representing
Company Common Shares registered in the name of Stockholder, in
exchange for certificates representing Company Common Shares containing
a legend to the effect of the following:
The shares represented by this certificate are subject to restrictions
on transfer and disposition as set forth in the Voting Agreement dated
as of November 13, 1995 among IMC Global Inc., a Delaware corporation,
and Great American Management and Investment, Inc. A copy of such
agreement may be obtained from the Secretary of the Company.
Upon the termination of this Agreement pursuant to Section 6,
Stockholder shall have the right to unilaterally instruct the transfer
agent(s) and registrar(s) of the Company Common Shares to deliver to
the Stockholder certificates representing Company Common Shares
registered in the name of the Stockholder and not bearing the foregoing
legend in exchange for certificates representing Company Common Shares
registered in the name of the Stockholder and bearing such legend.
c. Stockholder agrees to vote (or cause to be voted) all Shares, and
any other voting securities of the Company, owned by Stockholder
whether issued heretofore or hereafter, that such person owns or has
the right to vote, (i) against any recapitalization, merger,
consolidation, sale of assets or other business combination or similar
transaction involving the Company or any of its Subsidiaries,
securities or assets which is not endorsed in writing by Parent and
(ii) any other action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or which could
result in any of the conditions to the Company's obligations under the
Merger Agreement not being fulfilled.
d. Stockholder agrees not to directly or indirectly solicit, or
authorize any person to solicit, any inquiries or proposals from any
person other than Parent relating to the merger or consolidation of the
Company with any person other than Parent or its Subsidiaries, or the
acquisition of the Company's or any of its Subsidiaries' voting
securities by, or the direct or indirect acquisition or disposition of
a significant amount of assets of the Company or any of its
Subsidiaries otherwise than in the ordinary course of business of the
Company or such Subsidiary, from or to any person other than Parent or
its Subsidiaries or directly or indirectly enter into or continue any
discussions, negotiations or agreements relating to, or vote (or cause
to be voted) in favor of, any such transaction. Nothing contained
herein shall be construed to limit or otherwise affect any Affiliate or
representative of Stockholder who shall serve as a director of the
Company from taking any action permitted by Section 4.2 of the Merger
Agreement in his or her capacity as such director.
e. Stockholder agrees to promptly notify Parent in writing of the
nature and amount of any acquisition by Stockholder after the date
hereof of any voting securities of the Company.
Section 2. Securities Act Covenants, Representations and Warranties.
Stockholder hereby agrees, represents and warrants to Parent as
follows:
a. Stockholder will not make any sale, transfer or other disposition
of Parent Common Stock received by Stockholder in the Merger in
violation of the Securities Act.
b. Stockholder has been advised that the offering, sale and delivery
of shares of Parent Common Stock pursuant to the Merger will be
registered under the Securities Act on a registration statement on Form
S-4. Stockholder has also been advised, however, that to the extent
Stockholder is considered an Affiliate of the Company at the time the
Merger Agreement is submitted for a vote of the stockholders of the
Company, any public offering or sale by Stockholder of any shares of
Parent Common Stock received by Stockholder in the Merger will, under
current law, require either (i) the further registration under the
Securities Act of any shares of Parent Common Stock to be sold by
Stockholder, (ii) compliance with Rule 145 promulgated by the SEC under
the Securities Act or (iii) the availability of another exemption from
such registration under the Securities Act.
c. Stockholder has read this Agreement and the Merger Agreement and
has discussed their requirements to the extent Stockholder believed
necessary, with Stockholder's counsel or counsel for the Company.
d. Stockholder understands that stop transfer instructions will be
given to Parent's transfer agents with respect to Parent Common Stock
and that a legend will be placed on the certificates for the shares of
Parent Common Stock issued to Stockholder, or any substitutions
therefor, to the extent Stockholder is considered an Affiliate of the
Company at the time the Merger Agreement is submitted for a vote of the
stockholders of the Company.
Section 3. Additional Representations and Warranties of Stockholder.
Stockholder represents and warrants to Parent as follows: Stockholder
has all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly
executed and delivered by Stockholder. Assuming the due authorization,
execution and delivery of this Agreement by Parent, this Agreement
constitutes the valid and binding agreement of Stockholder enforceable
against Stockholder in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general application which may
affect the enforcement of creditors' rights generally and by general
equitable principles. The Company Common Shares of Stockholder are the
only voting securities of the Company owned (beneficially or of record)
by Stockholder and are owned free and clear of all liens, charges,
encumbrances, restrictions and commitments of any kind. Other than the
Irrevocable Proxy, Stockholder has not appointed or granted any
irrevocable proxy, which appointment or grant is still effective, with
respect to the Shares. The execution and delivery of this Agreement by
Stockholder does not (a) conflict with or violate any agreement, law,
rule, regulation, order, judgment or decision or other instrument
binding upon it, nor require any consent, notification, regulatory
filing or approval or (b) result in any breach of or constitute a
default (or an event that with notice or lapse of time or both would
become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation
of a lien or encumbrance on any of the Shares owned by Stockholder
pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to
which Stockholder is a party or by which Stockholder or the Shares
owned by Stockholder are bound or affected. Stockholder acknowledges
that the restrictions imposed upon it are so imposed only in
Stockholder's capacity as a stockholder of the Company.
Section 4. Further Assurances. Each party shall execute and deliver
such additional instruments and other documents and shall take such
further actions (including, without limitation, in the case of
Stockholder, any amendments to this Agreement which Parent may
reasonably request) as may be necessary or appropriate to effectuate,
carry out and comply with all of their obligations under this
Agreement. Without limiting the generality of the foregoing, neither
of the parties hereto shall enter into any agreement or arrangement (or
alter, amend or terminate any existing agreement or arrangement) if
such action would materially impair the ability of either party to
effectuate, carry out or comply with all the terms of this Agreement.
Section 5. Representations and Warranties of Parent. Parent
represents and warrants to Stockholder as follows: Each of this
Agreement and the Merger Agreement has been approved by the Board of
Directors of Parent. Each of this Agreement and the Merger Agreement
has been duly executed and delivered by a duly authorized officer of
Parent. Assuming the due authorization, execution and delivery of this
Agreement by Stockholder and the Merger Agreement by the Company, each
of this Agreement and the Merger Agreement constitutes a valid and
binding agreement of Parent, enforceable against Parent in accordance
with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws of
general application which may affect the enforcement of creditors'
rights generally and by general equitable principles.
Section 6. Effectiveness and Termination. It is a condition precedent
to the effectiveness of this Agreement that the Merger Agreement shall
have been executed and delivered and be in full force and effect. This
Agreement shall automatically terminate and be of no further force or
effect: (i) upon the close of business on August 14, 1996, if the
Merger shall not have been effected by such time, or (ii) upon the
earlier termination of the Merger Agreement in accordance with its
terms, or (iii) immediately prior to the Company Stockholder Meeting,
if Parent has: (a) pursuant to the exercise of the Option (as defined
in the Stock Option Agreement), acquired Optioned Shares (as defined in
the Stock Option Agreement); provided that, if, prior to the
acquisition of Optioned Shares, a record date has been established for
the vote of stockholders of the Company with respect to any matter
described in paragraph a or b of Section 1, this Agreement shall remain
in effect with respect to such vote; and (b) the full legal right and
authority to vote all such Optioned Shares at the Company Stockholder
Meeting for approval and adoption of the Merger Agreement and the
Merger, and the transactions contemplated by the Merger Agreement.
Notwithstanding anything contained in clause (iii) above to the
contrary, this Voting Agreement shall not terminate if the Option has
been exercised for less than all of the Optioned Shares; provided,
however, that from and after any partial exercise of the Option, this
Agreement shall relate to the number of Shares equal to (i) the total
number of Shares initially subject hereto less (ii) the aggregate
number of Optioned Shares as to which the Option shall have been
exercised. Upon any termination of this Agreement, except for any
rights either party may have in respect of any breach by either party
of its obligations hereunder, none of the parties hereto shall have any
further obligation or liability hereunder. The provisions of Section 1
of this Agreement shall terminate and be of no further force or effect
from and after the Effective Time of the Merger.
Section 7. Covenants of Stockholder Not to Enter Into Inconsistent
Agreements. Stockholder hereby agrees that, except as contemplated by
this Agreement, the Irrevocable Proxy and the Merger Agreement,
Stockholder shall not enter into any voting agreement or grant an
irrevocable proxy or power of attorney with respect to the Shares which
is inconsistent with this Agreement.
Section 8. Miscellaneous.
a. Notices, Etc. All notices, requests, demands or other
communications required by or otherwise given with respect to this
Agreement shall be in writing and shall be deemed to have been duly
given to either party when delivered personally (by courier service or
otherwise), when delivered by telecopy and confirmed by return
telecopy, or seven days after being mailed by first-class mail, postage
prepaid in each case to the applicable addresses set forth below:
If to Parent:
IMC Global Inc.
0000 Xxxxxxx xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Facsimile: 708/205-4894
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx and
Xxxxx X. Xxxxxx
Facsimile: 312/853-7036
If to Stockholder:
Great American Management
and Investment, Inc.
0
Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile:__________
with a copy to:
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Gold
Facsimile: 312/715-4800
or to such other address as such party shall have designated by notice
so given to each other party.
b. Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing signed by Parent and Stockholder.
c. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties and
their respective successors and assigns, including without limitation
any corporate successor by merger or otherwise. Notwithstanding any
transfer of Company Common Shares, the transferor shall remain liable
for the performance of all obligations of the transferor under this
Agreement.
d. Entire Agreement. This Agreement (together with the Merger
Agreement, the Stock Option Agreement, the Irrevocable Proxy and the
Confidentiality Agreements dated July 7, 1995 among Parent, the Company
and the Stockholder) embodies the entire agreement and understanding
among the parties relating to the subject matter hereof and supersedes
all prior agreements and understandings relating to such subject
matter. There are no representations, warranties or covenants by the
parties hereto relating to such subject matter other than those
expressly set forth in this Agreement, the Merger Agreement, the Stock
Option Agreement, the Irrevocable Proxy or such Confidentiality
Agreements.
e. Severability. If any term of this Agreement or the application
thereof to either party or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such term to the other parties or circumstances shall
not be affected thereby and shall be enforced to the greatest extent
permitted by applicable law; provided that in such event the parties
shall negotiate in good faith in an attempt to agree to another
provision (in lieu of the term or application held to be invalid or
unenforceable) that will be valid and enforceable and will carry out
the parties' intentions hereunder.
f. Specific Performance. The parties acknowledge that money damages
are not an adequate remedy for violations of this Agreement and that
either party may, in its sole discretion, apply to a court of competent
jurisdiction for specific performance or injunction or such other
relief as such court may deem just and proper in order to enforce this
Agreement or prevent any violation hereof and, to the extent permitted
by applicable law, each party waives any objection to the imposition of
such relief.
g. Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or
beginning of the exercise of any thereof by either party shall not
preclude the simultaneous or later exercise of any other such rights,
power or remedy by such party.
h. No Waiver. The failure of either party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon
compliance by the other party hereto with its obligations hereunder,
and any custom or practice of the parties at variance with the terms
hereof, shall not constitute a waiver by such party of its right to
exercise any such or other right, power or remedy or to demand such
compliance.
i. No Third Party Beneficiaries. This Agreement is not intended to be
for the benefit of and shall not be enforceable by any person or entity
who or which is not a party hereto.
j. Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the Court of Chancery in the State of
Delaware in any action, suit or proceeding arising in connection with
this Agreement, and agrees that any such action, suit or proceeding
shall be brought only in such court (and waives any objection based on
forum non conveniens or any other objection to venue therein) provided,
however, that such consent to jurisdiction is solely for the purpose
referred to in this paragraph (j) and shall not be deemed to be in
general submission to the jurisdiction of said Court or in the State of
Delaware other than for such purposes. Each party hereto waives any
right to a trial by jury in connection with any such action, suit or
proceeding.
k. Governing Law. This Agreement and all disputes hereunder shall be
governed by and construed and enforced in accordance with the internal
laws of the State of Delaware without regard to principles of conflicts
of law.
l. Name, Captions, Gender. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and
shall not affect the interpretation or construction hereof. Whenever
the context may require, any pronoun used herein shall include the
corresponding masculine, feminine or neuter forms.
m. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one instrument. Each counterpart
may consist of a number of copies each signed by less than all, but
together signed by all, the parties hereto.
n. Expenses. Each party shall bear its own expenses incurred in
connection with this Agreement and the transactions contemplated
hereby.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
IMC GLOBAL INC.
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Chairman and Chief Executive
Officer
GREAT AMERICAN MANAGEMENT
AND INVESTMENT, INC.
By: /s/ Xxx X. Xxxxx
Xxx X. Xxxxx
Senior Vice President
LIMITED IRREVOCABLE PROXY
The undersigned stockholder of The Vigoro Corporation, a Delaware
corporation (the "Company"), hereby irrevocably appoints IMC Global,
Inc., a Delaware corporation ("Parent"), the attorney-in-fact and proxy
of the undersigned, within the limitations of this Proxy, with respect
to shares of Common Stock, $.01 par value per share, of the Company
owned of record or beneficially by the undersigned (the "Shares").
Upon the execution hereof, all prior proxies given by the undersigned
with respect to the Shares are hereby revoked and no subsequent proxies
will be given. This Proxy is irrevocable (to the extent permitted
under Delaware law), and coupled with an interest and is granted in
consideration of the Company and Parent entering into the Agreement and
Plan of Merger dated November 13, 1995 among Parent, Bull Merger Co.
and the Company (the "Merger Agreement"). The attorney and proxy named
above will be empowered at any time prior to the earliest of (i) the
effectiveness of the Merger as defined in the Merger Agreement, (ii)
August 14, 1996, (iii) notice from Parent that Parent elects to
terminate this Proxy or (iv) the termination of the Voting Agreement
(as defined in the Merger Agreement) in accordance with its terms, to
exercise all voting and other rights to the extent specified in the
succeeding paragraph; provided, however, that, in the event that the
number of Shares subject to the Voting Agreement is reduced pursuant to
the provisions of Section 6 thereof, then this Proxy shall thereafter
be deemed to relate only to such number of Shares then remaining
subject to the Voting Agreement. Upon the occurrence of the earliest
of the foregoing events described in clauses (i), (ii), (iii) or (iv)
above, this Proxy shall expire and be of no further force or effect.
The attorney and proxy named above may only exercise this proxy to vote
the Shares subject hereto in favor of approval of the Merger Agreement
and the Merger at any annual, special or other meeting of the holders
of capital stock of the Company and any adjournments thereof
(including, without limitation, the power to execute and deliver
written consents with respect to the Shares) or for the purpose of
voting against a business combination of the Company or any of its
subsidiaries and affiliates with any party other than Parent or any of
its subsidiaries and affiliates and may not exercise this Proxy on any
other matters. The undersigned stockholder may vote the Shares on all
other matters. The undersigned will, upon request, execute and deliver
any additional documents deemed by the above-named attorney-in-fact and
proxy to be necessary or desirable to effect the limited irrevocable
proxy created hereby.
GREAT AMERICAN MANAGEMENT
AND INVESTMENT, INC.
/s/ Xxx X. Xxxxx
Company Common Shares
Owned: 4,068,929
Dated: November 13, 1995
