Exhibit 99.2
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) and 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
discussion, 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 generally 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
termination of this Agreement, except for any rights either party may have in
respect of any breach by either party of its obligations hereunder, non 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.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: 708/205-4894
with a copy to:
Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: 312/853-7036
If to Stockholder:
Great American Management
and Investment, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
with a copy to:
Altheimer & ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman & Executive Officer
GREAT AMERICAN MANAGEMENT
AND INVESTMENT, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice-President