Schedule 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FywHDCKculVktxQte3s3QOUnKs6mRxKSgDU2Zf/Ytyn/GM5eJl5HuGv/m/P4J/L8 1zynSXdIzamYkyxiIjhvnQ== 0001193125-04-182898.txt : 20041101 0001193125-04-182898.hdr.sgml : 20041101 20041101172838 ACCESSION NUMBER: 0001193125-04-182898 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20041101 DATE AS OF CHANGE: 20041101 GROUP MEMBERS: CARGILL FERTILIZER, INC. GROUP MEMBERS: CARGILL INCORPORATED GROUP MEMBERS: GNS I (U.S.) CORP. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MOSAIC CO CENTRAL INDEX KEY: 0001285785 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE CHEMICALS [2870] IRS NUMBER: 200891589 FISCAL YEAR END: 0531 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-80123 FILM NUMBER: 041111012 BUSINESS ADDRESS: STREET 1: 15407 MCGINTY RD CITY: MINNETONKA STATE: MN ZIP: 55391 BUSINESS PHONE: 9527426395 MAIL ADDRESS: STREET 1: 15407 MCGINTY RD CITY: MINNETONKA STATE: MN ZIP: 53391 FORMER COMPANY: FORMER CONFORMED NAME: GLOBAL NUTRITION SOLUTIONS INC DATE OF NAME CHANGE: 20040401 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CARGILL INC CENTRAL INDEX KEY: 0000884100 IRS NUMBER: 410177680 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 15407 MCGINTY RD. CITY: MINNETONKA STATE: MN ZIP: 55391 BUSINESS PHONE: 9529843557 MAIL ADDRESS: STREET 1: PO BOX 5653 CITY: MINNEAPOLIS STATE: MN ZIP: 55440-5653 SC 13D 1 dsc13d.htm SCHEDULE 13D Schedule 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Schedule 13D

Under the Securities Exchange Act of 1934

(Amendment No. )

The Mosaic Company

(Name of Issuer)

Common Stock $.01 per share

(Title of Class of Securities)

61945A 10 7

(CUSIP Number)

Robert L. Lumpkins

c/o Cargill, Incorporated

15615 McGinty Road West

Wayzata, Minnesota 55391

(952) 742-7575

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

October 22, 2004

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Secs. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨


CUSIP No. 61945A 107		Page 2 of 8


1.	Names of reporting persons: Cargill, Incorporated I.R.S. Identification Nos. of above persons (entities only): 41-0177680
2.	Check the appropriate box if a member of a group (a) x (b) ¨
3.	SEC use only:
4.	Source of funds: WC, OO
5.	Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e):	¨
6.	Citizenship or place of organization: Delaware

Number of

beneficially

owned by

each

reporting

person

with:

7. Sole voting power:

250,582,987 *

8. Shared voting power:

9. Sole dispositive power:

250,582,987 *

10. Shared dispositive power:


11.	Aggregate amount beneficially owned by each reporting person: 250,582,987 *
12.	Check if the aggregate amount in Row (11) excludes certain shares:	¨
13.	Percent of class represented by amount in Row (11): 66.5%
14.	Type of reporting person: CO

*	Includes 29,202,747 shares of Common Stock held by GNS I (U.S.) Corp. and 210,569,242 shares of Common Stock held by Cargill Fertilizer, Inc., both are wholly owned subsidiaries of Cargill, Incorporated.


CUSIP No. 61945A 107		Page 3 of 8


1.	Names of reporting persons: GNS I (U.S.) Corp. I.R.S. Identification Nos. of above persons (entities only): 20-1026546
2.	Check the appropriate box if a member of a group (a) x (b) ¨
3.	SEC use only:
4.	Source of funds: WC, OO
5.	Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e):	¨
6.	Citizenship or place of organization: Delaware

Number of

beneficially

owned by

each

reporting

person

with:

7. Sole voting power:

29,202,747

8. Shared voting power:

9. Sole dispositive power:

29,202,747

10. Shared dispositive power:


11.	Aggregate amount beneficially owned by each reporting person: 29,202,747
12.	Check if the aggregate amount in Row (11) excludes certain shares:	¨
13.	Percent of class represented by amount in Row (11): 7.7%
14.	Type of reporting person: CO


CUSIP No. 61945 A67		Page 4 of 8


1.	Names of reporting persons: Cargill Fertilizer, Inc. I.R.S. Identification Nos. of above persons (entities only): 59-1445393
2.	Check the appropriate box if a member of a group (a) x (b) ¨
3.	SEC use only:
4.	Source of funds: WC, OO
5.	Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e):	¨
6.	Citizenship or place of organization: Delaware

Number of

beneficially

owned by

each

reporting

person

with:

7. Sole voting power:

210,569,242 **

8. Shared voting power:

9. Sole dispositive power:

210,569,242 **

10. Shared dispositive power:


11.	Aggregate amount beneficially owned by each reporting person: 210,569,242 **
12.	Check if the aggregate amount in Row (11) excludes certain shares:	¨
13.	Percent of class represented by amount in Row (11): 55.9%
14.	Type of reporting person: CO

Excludes 5,458,955 shares of Class B Common Stock, par value $.01 per share, of The Mosaic Company. At any time that shares of Mosaic’s 7.50% Mandatory Convertible Preferred Shares (“Mosaic 7.50% Preferred Stock”) is converted into one or more shares of Mosaic Common Stock, 1.98507454 shares of Mosaic Class B Common Stock will automatically convert into a number of shares of Mosaic Common Stock equal to 1.98507454 multiplied by the then applicable conversion rate of the Mosaic 7.50% Preferred Stock.


		Page 5 of 8


Item 1.		Security and Issuer:

		Common Stock, $.01 par value, of The Mosaic Company (“Mosaic”), 12800 Whitewater Drive, Suite 200, Minnetonka, MN 55343

Item 2.		Identity and Background:

		This Schedule 13D is being filed jointly by the Reporting Persons, as a group. The agreement among the Reporting Persons relating to the joint filing of this Schedule 13D is attached as Exhibit 1 hereto.

		Cargill, Incorporated (“Cargill”), is incorporated under the laws of the State of Delaware. The principal business of Cargill and its subsidiaries is as an international provider of food, agriculture and risk management products and services. The principal office of Cargill is 15615 McGinty Road West, Wayzata, MN 55391.

		GNS I (U.S.) Corp. (“GNS I”) is incorporated under the laws of the State of Delaware, and is a wholly owned subsidiary of Cargill. The principal address of GNS I is 15615 McGinty Road West, Wayzata, MN 55391.

		Cargill Fertilizer, Inc. (“CFI”) is incorporated under the laws of the State of Delaware, and is a wholly owned subsidiary of Cargill. The principal address of CFI is 15615 McGinty Road West, Wayzata, MN 55391.

		Exhibit 2 hereto sets forth the (a) name (b) residence or business address, (c) titles and (d) citizenship of each of the directors and executive officers of the Reporting Persons.

		During the last five years, none of the Reporting Persons, nor any of the persons listed on Exhibit 2 hereto has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Item 3.		Source and Amount of Funds or Other Consideration:

		On October 22, 2004, pursuant to the terms of an Agreement and Plan of Merger and Contribution dated as of January 26, 2004, as amended June 15, 2004 and October 18, 2004, among IMC Global Inc. (“IMC”), Mosaic (f/k/a Global Nutrition Solutions, Inc.), GNS Acquisition Corp., Cargill and CFI (the “Merger and Contribution Agreement”), Cargill, GNS I and CFI (together the “Cargill Contributing Corporations”) contributed to Mosaic the outstanding equity interests in certain entities owning all or substantially all of Cargill’s fertilizer businesses (the “Contributed Subsidiaries”). The Cargill Contributing Corporations received 66.5% of the outstanding shares of Mosaic’s Common Stock and 5,458,955 shares of Mosaic’s Class B Common Stock. All capitalized terms not defined herein shall have the meaning assigned to them in the Agreement, which is attached hereto as Exhibit 3 to this Schedule 13D.


		Page 6 of 8


Item 4.	Purpose of Transaction:

	On October 22, 2004, pursuant to the Merger and Contribution Agreement, (i) GNS Acquisition Corp., a wholly owned subsidiary of Mosaic, merged with and into IMC (the “Merger”), with IMC surviving the Merger as a wholly owned subsidiary of Mosaic, and (ii) the Cargill Contribution Corporations contributed to Mosaic equity interests of the Contributed Subsidiaries (the “Contribution”). Pursuant to the Merger, each outstanding share of IMC’s common stock, par value $1.00 per share, was converted into and became the right to receive one share of Mosaic Common Stock. In addition, in the Merger each outstanding share of IMC’s 7.50% Mandatory Convertible Preferred Shares, par value $1.00 per share, was converted into and became the right to receive one share of Mosaic 7.50% Preferred Stock. Pursuant to the Contribution, the Cargill Contributing Corporations contributed to Mosaic equity interests of the Contributed Subsidiaries in exchange for the issuance of shares of Mosaic capital stock, as described in Item 3 above. IMC and Cargill have combined Cargill’s fertilizer businesses with IMC’s businesses to create Mosaic, a new combined public company, that is anticipated will be a more efficient, full-service global fertilizer company better able to deliver high-quality, competitively priced products and services to customers worldwide.

Item 5.	Interest in Securities of the Issuer:

	(a)	Cargill may be deemed to be a beneficial owner of 250,582,987 shares of Common Stock held directly by it and indirectly by GNS I and CFI, both wholly owned subsidiaries of Cargill. The aggregate number of shares beneficially held by the Reporting Persons is 250,582,987 shares, or 66.5%, based on 376,816,522 shares of Common Stock outstanding as reported by Mosaic as of October 22, 2004. CFI also is the beneficial owner of 5,458,955 shares of Mosaic Class B Common Stock which are convertible into Mosaic Common Stock. At any time that shares of Mosaic 7.50% Preferred Stock are converted into one or more shares of Mosaic Common Stock, 1.98507454 shares of Mosaic Class B Common Stock will automatically convert into a number of shares of Mosaic Common Stock equal to 1.98507454 multiplied by the then applicable conversion rate of the Mosaic 7.50% Preferred Stock.

	(b)	Cargill has sole power to vote or to dispose of the 10,810,998 shares of Common Stock it holds directly.

		GNS I has sole power to vote or to dispose of the 29,202,747 shares of Common Stock it holds directly.

		CFI has sole power to vote or to dispose of the 210,569,242 shares of Common Stock it holds directly.


		Page 7 of 8


	(c)	The shares being disclosed on this Schedule 13D were part of the initial issuance of shares by Mosaic on October 22, 2004. None of the Reporting Persons has effected any other transaction in Mosaic shares in the past 60 days. To the knowledge of the Reporting Persons, none of the persons listed on Exhibit 2 hereto has effectuated any transactions in Mosaic shares in the past 60 days.

	(d)	No person other than the Reporting Persons is known to have the right to receive or the power to direct the receipt of the dividends from, or the proceeds from the sale of Mosaic shares held directly or indirectly by the Reporting Persons except for the right and power of Cargill as the parent company of GNS I and CFI.

Item 6.	Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

	Mosaic, Cargill, GNS I and CFI are party to an Investor Rights Agreement, dated January 26, 2004, as amended October 22, 2004. During a four-year standstill period commencing on October 22, 2004, the parties have agreed to take certain actions with respect to the composition of the Board of Directors and all committees of the Board, the nomination and election of Directors, and the designation of the Chairman of the Board, the Chief Executive Officer and President of Mosaic. Also during the four-year standstill period, Cargill has agreed not to acquire any shares of Mosaic common stock (other than through the conversion of Mosaic Class B Common Stock). During the three-year period commencing on October 22, 2004, Cargill has agreed not to sell, transfer or otherwise dispose of any voting securities of Mosaic to any person that is not an affiliate of Cargill, unless the sale, transfer or other disposition is approved in advance by the members of the Mosaic Board who have been designated by IMC.

	Pursuant to a Registration Rights Agreement, dated January 26, 2004, after October 22, 2007, Cargill (and its affiliates that own Mosaic Common Stock) have the right to request that Mosaic file up to five registration statements with the SEC for an offering of their shares of Mosaic Common Stock. The market value of the shares of Mosaic Common Stock to be included in any demand registration must be at least $10 million. Mosaic will not be obligated to effect a demand registration within 270 calendar days of the effective date of the immediately preceding demand registration.

	Mosaic 7.50% Preferred Stock issued to IMC’s preferred stockholders as part of the Merger will convert into Mosaic Common Stock under the circumstances described in the certificate of designations establishing such class of stock. The shares of Mosaic Class B Common Stock issued to the Reporting Persons will convert into Mosaic Common Stock at the same time the Mosaic 7.50% Preferred Stock converts into Mosaic Common Stock. The principal differences between the Mosaic Common Stock and the Mosaic Class B Common Stock are that shares of Mosaic Class B Common Stock will be owned only by the Reporting Persons, will not be publicly traded and will not be entitled to dividends.


		Page 8 of 8


Item 7.	Material to be Filed as Exhibits:

	1.	Joint Filing Agreement

	2.	Directors and Executive Officers of the Reporting Persons

	3.	Agreement and Plan of Merger and Contribution dated as of January 26, 2004, as amended, among IMC, The Mosaic Company, GNS Acquisition Corp, Cargill, Incorporated and CFI (Incorporated herein by reference to Exhibit 2.1 to Mosaic’s Current Report on Form 8-K filed on October 28, 2004).

	4.	Investor Rights Agreement (Incorporated herein by reference to Exhibit 10.1 to Mosaic’s Registration Statement on Form 8-A filed on October 22, 2004).

	5.	Registration Rights Agreement.

	6.	Certificate of Designations of 7.50% Mandatory Convertible Preferred Shares (Incorporated herein by reference to Exhibit 3.2 to Mosaic’s Registration Statement on Form 8-A filed on October 22, 2004).

	7.	Certificate of Designation of Class B Common Stock.

Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: November 1, 2004

CARGILL, INCORPORATED

/s/ Robert L. Lumpkins

Signature

Robert L. Lumpkins

Vice Chairman and CFO

EX-1 2 dex1.htm JOINT FILING AGREEMENT Joint Filing Agreement

EXHIBIT 1

JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a Schedule 13D (including amendments thereto) with respect to the Common Stock of The Mosaic Company and further agree that this Joint Filing Agreement be included as an exhibit to such joint filing.

Date: November 1, 2004


CARGILL, INCORPORATED

By:		/s/ Robert L. Lumpkins
		Robert L. Lumpkins Vice Chairman and CFO

GNS I (U.S.), INC.

By:		/s/ Robert L. Lumpkins
		Robert L. Lumpkins Chief Executive Officer, President and Treasurer

CARGILL FERTILIZER, INC.

By:		/s/ Robert L. Lumpkins
		Robert L. Lumpkins Chief Executive Officer

EX-2 3 dex2.htm DIRECTORS AND EXECUTIVE OFFICERS OF THE REPORTING PERSONS Directors and Executive Officers of the Reporting Persons

EXHIBIT 2

Directors and Executive Officers of the Reporting Persons

Cargill, Incorporated


(a)		Michael H. Armacost
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director
(d)		US Citizen

(a)		F. Guillaume Bastiaens
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director, Vice Chairman
(d)		Citizen of Belgium

(a)		Martha MacMillan Bennett
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director
(d)		US Citizen

(a)		Susan M. Cargill
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director
(d)		US Citizen

(a)		Arthur D. Collins, Jr.
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director
(d)		US Citizen

(a)		S. Curtis Johnson
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director
(d)		US Citizen

(a)		Richard M. Kovacevich
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director
(d)		US Citizen

(a)		John H. MacMillan, IV
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director
(d)		US Citizen


(a)		William B. MacMillan
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director
(d)		US Citizen

(a)		Gergory R. Page
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director, President and Chief Operating Officer
(d)		US Citizen

(a)		David W. Raisbeck
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director, Executive Vice President
(d)		US Citizen

(a)		Warren R. Staley
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director, Chairman of the Board and Chief Executive Officer
(d)		US Citizen

(a)		Lucy C. MacMillan Stitzer
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director
(d)		US Citizen

(a)		Michael W. Wright
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director
(d)		US Citizen

(a)		Robert L. Lumpkins
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director, Vice Chairman and Chief Financial Officer
(d)		US Citizen



(a)		David M. Larson
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Executive Vice President
(d)		US Citizen

(a)		Robbin S. Johnson
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Senior Vice President, Director of Corporate Affairs
(d)		US Citizen

(a)		David W. Rogers
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Senior Vice President
(d)		Citizen of the United Kingdom

(a)		William A. Buckner
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President
(d)		Citizen of Canada

(a)		Paul D. Conway
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President
(d)		Citizen of the United Kingdom

(a)		Martin G. Dudley
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President
(d)		US Citizen

(a)		Richard D. Frasch
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President
(d)		US Citizen

(a)		John E. Geisler
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President
(d)		US Citizen

(a)		James N. Haymaker
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President
(d)		US Citizen

(a)		David W. MacLennan
(b)		15615 McGinty Road West, Wayzata, MN 55391


(c)		Corporate Vice President
(d)		US Citizen

(a)		John D. March
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President
(d)		US Citizen

(a)		Robert R. Parmelee
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President
(d)		US Citizen

(a)		K. Scott Portnoy
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President
(d)		US Citizen

(a)		James T. Prokopanko
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President
(d)		Citizen of Canada

(a)		Jerry R. Rose
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President
(d)		US Citizen

(a)		Lee B. Skold
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President
(d)		US Citizen

(a)		Steven C. Euller
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President, General Counsel and Corporate Secretary
(d)		US Citizen

(a)		Ronald L. Christenson
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President and Chief Technology Officer
(d)		US Citizen

(a)		Rita J. Heise
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President, Information and Technology


(d)		US Citizen

(a)		Galen G. Johnson
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President and Controller
(d)		US Citizen

(a)		Bonnie E. Raquet
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President, Public Affairs
(d)		US Citizen

(a)		Frank L. Sims
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President, Transportation and Product Assurance
(d)		US Citizen

(a)		Nancy P. Siska
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President, Human Resources
(d)		US Citizen

(a)		William W. Veazey
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Corporate Vice President, Finance
(d)		US Citizen

GNS I (U.S.), Inc.


(a)		Fredric W. Corrigan
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director
(d)		US Citizen

(a)		Robert L. Lumpkins
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director, Chief Executive Officer, President and Treasurer
(d)		US Citizen

(a)		Richard L. Mack
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Vice President and Secretary
(d)		US Citizen

(a)		Mark J. Isaacson
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Vice President and Assistant Secretary
(d)		US Citizen

Cargill Fertilizer, Inc.


(a)		F. Guillaume Bastiaens
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director
(d)		Citizen of Belgium

(a)		Donald R. Clark
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director
(d)		US Citizen

(a)		Fredric W. Corrigan
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director
(d)		US Citizen

(a)		Richard L. Lumpkins
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director, Chief Executive Officer
(d)		US Citizen

(a)		Henricus M. Mathot
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director, Vice Chairman of the Board
(d)		Citizen of the Netherlands

(a)		Steven L. Pinney
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director and President
(d)		US Citizen

(a)		Corrine D. Ricard
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Director, Senior Vice President
(d)		US Citizen

(a)		H. Gray Gordon
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Senior Vice President
(d)		US Citizen

(a)		John M. Bryant
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Vice President
(d)		US Citizen


(a)		Sean M. Butler
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Vice President
(d)		US Citizen

(a)		Gary N. Davis
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Vice President
(d)		US Citizen

(a)		Patrice H. Halbach
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Vice President
(d)		US Citizen

(a)		Greg A. Lefor
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Vice President, Secretary, Treasurer and Accounting Manager
(d)		US Citizen

(a)		Edgar O. Morris
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Vice President
(d)		US Citizen

(a)		Thomas E. Myers, III
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Vice President
(d)		US Citizen

(a)		Anne E. Carlson
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Assistant Secretary
(d)		US Citizen

(a)		James R. Clemens
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Assistant Secretary
(d)		US Citizen

(a)		Lillian I. Lundeen
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Assistant Secretary
(d)		US Citizen


(a)		Jeanne Y. Smith
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Assistant Secretary
(d)		US Citizen

(a)		William W. Veazey
(b)		15615 McGinty Road West, Wayzata, MN 55391
(c)		Assistant Treasurer
(d)		US Citizen

EX-5 4 dex5.htm REGISTRATION RIGHTS AGREEMENT Registration Rights Agreement

EXHIBIT 5

REGISTRATION RIGHTS AGREEMENT

This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of January 26, 2004 by and between Global Nutrition Solutions, Inc., a Delaware corporation (the “Company”), and Cargill, Incorporated, a Delaware corporation (“Cargill”).

RECITALS

WHEREAS, concurrently with the execution of this Agreement, IMC Global Inc., a Delaware corporation (“IMC”), the Company, GNS Acquisition Corp., a Delaware corporation and a direct wholly owned subsidiary of the Company, Cargill and Cargill Fertilizer, Inc., a Delaware corporation and a direct wholly owned subsidiary of Cargill, have entered into an Agreement and Plan of Merger and Contribution (the “Merger and Contribution Agreement”) providing for, among other things, (i) the contribution (the “Contribution”) to the Company by Cargill and certain of its subsidiaries of equity interests in certain entities owning all or substantially all of the assets, liabilities and obligations of the Cargill Fertilizer Businesses (as defined in the Merger and Contribution Agreement) and (ii) in consideration for the Contribution, the issuance by the Company to Cargill of a number of shares (the “Shares”) of common stock, $0.01 par value per share, of the Company (the “Common Stock”) equal to 66.5% of the aggregate number of shares of Common Stock issuable on the Effective Date (as hereinafter defined) plus 5,458,955 shares (the “Class B Shares”) of the Company’s Class B common stock, $0.01 par value per share;

WHEREAS, the parties hereto hereby desire to set forth the rights of the holders of the Registrable Securities (as hereinafter defined) to, and the Company’s obligations to, cause the registration of the resale of the Registrable Securities pursuant to the Securities Act (as hereinafter defined); and

WHEREAS, Section 10.03 of the Merger and Contribution Agreement provides that, as a condition to Cargill’s obligations to effect the Contribution and the other transactions contemplated by the Merger and Contribution Agreement, Cargill and the Company shall have executed and delivered this Agreement and this Agreement shall remain in full force and effect.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. Definitions. Unless otherwise provided in this Agreement, capitalized terms used herein shall have the following meanings:

“Agreement” has the meaning set forth in the first paragraph above.

“Cargill” has the meaning set forth in the first paragraph above.

“Class B Shares” has the meaning set forth in the Recitals.

“Commission” has the meaning set forth in Section 2.2.

“Common Stock” has the meaning set forth in the Recitals.

“Company” has the meaning set forth in the first paragraph above.

“Contribution” has the meaning set forth in the Recitals.

“Demand Registration” has the meaning set forth in Section 2.1.

“Effective Date” has the meaning set forth in Section 2.03 of the Merger and Contribution Agreement.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Final Prospectus” has the meaning set forth in Section 7.1.

“Investor Rights Agreement” has the meaning set forth in Section 10.4.

“Merger and Contribution Agreement” has the meaning set forth in the Recitals.

“Person” means any individual, corporation, association, limited liability company, partnership, trust or estate, unincorporated organization, joint venture, a government or any agency or political subdivision thereof, or any other entity of whatever nature.

“Piggyback Registration” has the meaning set forth in Section 3.1.

“Qualified Holders” means the holders of a majority of the Registrable Securities then outstanding.

“Registrable Securities” means (a) the Shares, (b) any shares of Common Stock issued or issuable upon conversion of the Class B Shares and (c) any shares of Common Stock issued or issuable with respect to any of the securities referred to in clauses (a) and (b) by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (i) they have been distributed to the public pursuant to an offering registered under the Securities Act, (ii) they have been sold to the public through a broker, dealer or market maker in compliance with Rule 144 under the Securities Act (or any similar rule then in force) or (iii) at the time of any Demand Registration or Piggyback Registration they constitute, together with all other Registrable Securities held by the holder thereof, less than any of the thresholds described in Rule 144(e)(1)(i), (ii) or (iii) (irrespective of whether the holder thereof is an “affiliate” as defined in Rule 144). For purposes of this Agreement, a Person shall be deemed to be the holder of Registrable Securities, and the Registrable Securities shall be deemed to be outstanding and in existence, whenever such Person has the right to acquire such Registrable Securities upon conversion or exercise of any securities held by such Person, whether or not such acquisition has actually been effected, and such Person shall be entitled to exercise the rights of a holder of such Registrable Securities hereunder.

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“Securities Act” means the Securities Act of 1933, as amended.

“Shares” has the meaning set forth in the Recitals.

“Shelf Registration” has the meaning set forth in Section 2.2.

“Suspension Period” has the meaning set forth in Section 5.2.

“Violation” has the meaning set forth in Section 7.1.

Demand Registrations.

2.1 Requests for Registration. At any time following the three-year anniversary of the Effective Date, the Qualified Holders may, subject to Section 2.2, request registration under the Securities Act of all or any portion of their Registrable Securities on Form S-3 or any similar short-form registration statement (a “Demand Registration”). If for any reason the Company is not eligible to file a Demand Registration on Form S-3 or any similar short-form registration statement, then the Company shall effect such Demand Registration using such form as the Company is then eligible to use. Each request for a Demand Registration shall specify the approximate number of Registrable Securities requested to be registered and the intended method of distribution. Within ten days after receipt of any such request, the Company shall give written notice of such requested registration to all other holders of Registrable Securities and, subject to Section 2.3, shall include as part of such Demand Registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 15 days after the receipt of the Company’s notice by such holders.

2.2 Limitations on Demand Registrations. The holders of the Registrable Securities shall be entitled to request five (5) Demand Registrations with respect to Registrable Securities; provided, that, the aggregate offering price of Registrable Securities requested to be registered in any Demand Registration must be equal to at least $10 million. The holders of a majority of the Registrable Securities which are included in a Demand Registration may require the Company to file such Demand Registration with the Securities and Exchange Commission (the “Commission”) in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect) (a “Shelf Registration”).

2.3 Priority on Demand Registrations. If a Demand Registration is an underwritten offering and the managing underwriters advise the Company in writing, with a copy to be delivered to the Qualified Holders, that, in their opinion, the number of Registrable Securities requested to be included in such offering exceeds the number of securities which can be sold therein without adversely affecting the marketability of the offering and within a price range acceptable to the holders of a majority of the Registrable Securities requesting registration, the Company shall first include in such registration, prior to the inclusion of any securities which are not Registrable Securities, the Registrable Securities requested to be included which in the opinion of such underwriters can be sold without adversely affecting the marketability of the offering, pro rata among the respective holders thereof on the basis of the amount of Registrable Securities owned by each such requesting holder.

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2.4 Restrictions on Registration. The Company shall not be obligated to effect any Demand Registration within 270 days after (i) the effective date of a previous Demand Registration or (ii) the effective date of a registration of Common Stock (other than a Demand Registration) in which the holders of Registrable Securities were given piggyback rights pursuant to Section 3 and in which there was no reduction in the number of Registrable Securities requested to be included. The Company may postpone for up to 90 days the filing or the effectiveness of a registration statement for a Demand Registration if the Company furnishes to the Qualified Holders a certificate signed by the Chief Financial Officer of the Company stating that such Demand Registration would reasonably be expected to have a material adverse effect on any proposal or plan by the Company or any of its subsidiaries to engage in any financing, acquisition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer, reorganization or other significant transaction; provided, that, in such event, the holders of Registrable Securities initially requesting such Demand Registration shall be entitled to withdraw such request and, if such request is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder; and provided, further, that the Company may not exercise this deferral right more than once in any 12-month period.

2.5 Selection of Underwriters. The Company shall have the right to select the investment banker(s) and manager(s) to administer the offering in connection with any Demand Registration, subject to the approval of the holders of a majority of the Registrable Securities included in such Demand Registration (which approval shall not be unreasonably withheld or delayed).

Piggyback Registrations.

3.1 Right to Piggyback. At any time following the three-year anniversary of the Effective Date, whenever the Company proposes to register any of its securities under the Securities Act (other than pursuant to a Demand Registration which shall be governed by Section 2, and registrations related solely to employee benefit plans or a Rule 145 transaction) and the registration form to be used may be used for the registration of Registrable Securities (a “Piggyback Registration”), the Company shall give prompt written notice to all holders of Registrable Securities of its intention to effect such a registration and, subject to the terms hereof, shall include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 21 days after such holders receive the Company’s notice.

3.2 Priority on Primary Registrations. If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold therein without adversely affecting the marketability of the offering, the Company shall include in such registration (a) first, the securities the Company proposes to sell, (b) second, the Registrable Securities requested to be included in such registration, pro rata among the respective holders thereof on the basis of the amount of Registrable Securities owned by each such holder and (c) third, other securities requested to be included in such registration.

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3.3 Priority on Other Registrations. If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company’s securities other than holders of Registrable Securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company shall include in such registration (a) first, the securities requested to be included therein by the holders requesting such registration, (b) second, the Registrable Securities requested to be included in such registration, pro rata among the holders of such securities on the basis of the number of Registrable Securities owned by each such holder and (c) third, other securities requested to be included in such registration; provided, however, that in no event shall the Company grant to any third party, after the date hereof, registration rights that have a higher priority than the demand registration rights granted herein (“Superior Registration Rights”), nor shall the Company succeed to, whether by merger, operation of law or otherwise, or comply with any obligation of IMC originally incurred on or after the date hereof, which would result in the Company being required to provide Superior Registration Rights to any third party.

3.4 Selection of Underwriters. The Company shall have the right to select the investment banker(s) and manager(s) to administer the offering in connection with any Piggyback Registration.

4. Holdback Agreements. Each holder of Registrable Securities shall not effect any public sale or distribution (including sales pursuant to Rule 144) of equity securities of the Company, or any securities convertible into or exchangeable or exercisable for such securities, or engage in any hedging transactions relating to the same, during the 30 days prior to and the 90-day period beginning on the effective date of any underwritten Demand Registration or any underwritten Piggyback Registration, in each case pursuant to which such holder’s Registrable Securities are included (except as part of such underwritten registration), unless the underwriters managing the registered public offering agree otherwise.

5. Registration Procedures. Whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall use commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:

5.1 prepare and file with the Commission a registration statement and such amendments and supplements as may be necessary with respect to such Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective;

5.2 notify each holder of Registrable Securities of the effectiveness of each registration statement filed hereunder and prepare and file with the Commission such

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amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of not less than 120 days (or until the distribution described in the registration statement has been completed) (or, in the case of a Shelf Registration, a period ending on the earlier of (i) the date on which all Registrable Securities have been sold pursuant to the Shelf Registration or have otherwise ceased to be Registrable Securities, and (ii) the 24-month anniversary of the effective date of such Shelf Registration) and comply with the provisions of the Securities Act with respect to the disposition of securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement; provided, however, that at any time, upon written notice to the participating holders of Registrable Securities and for a period not to exceed forty-five (45) days thereafter (the “Suspension Period”), the Company may suspend the use or effectiveness of any registration statement (and the holders of Registrable Securities participating in such offering hereby agree not to offer or sell any Registrable Securities pursuant to such registration statement during the Suspension Period) if the Company reasonably believes that the Company may, in the absence of such suspension hereunder, be required under state or federal securities laws to disclose any corporate development the disclosure of which could reasonably be expected to have a material adverse effect upon the Company, its stockholders, a potentially significant transaction or event involving the Company, or any negotiations, discussions, or proposals directly relating thereto. No more than two (2) such Suspension Periods shall occur in any twelve (12) month period. In the event that the Company shall exercise its rights hereunder, the applicable time period during which the registration statement is to remain effective shall be extended by a period of time equal to the duration of the Suspension Period. The Company may extend the Suspension Period for an additional consecutive thirty (30) days with the consent of the holders of at least a majority of the Registrable Securities proposed to be sold by the holders participating in such offering. If so directed by the Company, the holders of Registrable Securities shall use their commercially reasonable efforts to deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such holders’ possession, of the prospectus relating to such Registrable Securities current at the time of receipt of such notice;

5.3 furnish to each seller of Registrable Securities such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;

5.4 use commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided, however, that the Company shall not be required to (a) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (b) subject itself to taxation in any such jurisdiction or (c) consent to general service of process in any such jurisdiction);

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5.5 promptly notify each seller of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Company shall prepare a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the sellers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading, in which event the period mentioned in Section 5.2 shall be extended by the length of the period from and including the date when each seller of such Registrable Securities shall have received such notice to the date on which each such seller has received the copies of the supplemented or amended prospectus contemplated under this Section 5.5;

5.6 cause all such Registrable Securities to be listed on each securities exchange and/or quotation system on which similar securities issued by the Company are then listed and/or quoted;

5.7 provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;

5.8 enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including effecting a stock split or a combination of shares);

5.9 make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;

5.10 otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;

5.11 in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, the Company shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order; and

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5.12 use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities.

6. Registration Expenses. All expenses incident to the Company’s performance of or compliance with this Agreement (whether with respect to a Demand Registration or Piggyback Registration), including, without limitation, all registration and filing fees, fees of any transfer agent and registrar, fees and expenses of compliance with securities or blue sky laws, printing expenses, fees and disbursements of counsel for the Company, fees and disbursements of one counsel chosen by the holders of a majority of the Registrable Securities included in such registration, fees and expenses of the Company’s independent certified public accountants, fees and expenses of underwriters (excluding discounts and commissions attributable to the Registrable Securities included in such registration), the Company’s internal expenses and the expenses and fees for listing the securities to be registered on each securities exchange or quotation system on which similar securities issued by the Company are then listed or quoted, shall be borne by the Company.

7. Indemnification.

7.1 In connection with any Demand Registration or Piggyback Registration, the Company agrees to indemnify, to the extent permitted by law, each holder of Registrable Securities, the partners or officers, directors and equity holders of such holder, and each Person who controls such holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities (joint or several) and expenses incurred by such party arising out of, based upon or caused by any of the following statements, omissions or violations (each, a “Violation”): (i) any untrue or alleged untrue statement of material fact contained in any registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto, (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities laws or any rule or regulation promulgated under the Securities Act, Exchange Act or any state securities laws; and the Company will reimburse each such holder, each of its partners, officers, directors and equity holders, and each Person controlling such holder for any legal or other expenses reasonably incurred, as such expenses are incurred, by any of them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company shall not be liable in any such case for any such loss, claim, damage, liability or action (x) to the extent that it is caused by a Violation that occurs in reliance upon and in conformity with any information furnished in writing to the Company by such holder, and stated to be specifically for use in such registration, or (y) insofar as it relates to any untrue or alleged untrue statement of material fact, or any omission or alleged omission of a material fact required to be stated in the registration statement or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, made in a preliminary prospectus on file with the Commission at the time the registration statement becomes effective or the amended prospectus is filed with the Commission pursuant to Rule 424(b) (the “Final Prospectus”), if a copy of the Final Prospectus was not furnished to the Person

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asserting the loss, liability, claim or damage at or prior to the time such action is required by the Securities Act, and if the Final Prospectus would have cured the defect giving rise to the loss, liability, claim or damage.

7.2 In connection with any Demand Registration or Piggyback Registration in which a holder of Registrable Securities is participating, each such holder agrees to indemnify, to the extent permitted by law, the Company, its directors, officers, any other holder selling securities in such Demand Registration or Piggyback Registration, and each Person who controls the Company (within the meaning of the Securities Act) against all losses, claims, damages, liabilities (joint or several) and expenses arising out of, based upon or caused by any Violation, but only (i) to the extent that such Violation is caused by any information furnished in writing by such holder, and stated to be specifically for use in such registration, or (ii) insofar as they relate to any untrue or alleged untrue statement of material fact, or any omission or alleged omission of a material fact required to be stated in the registration statement or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, made in a preliminary prospectus on file with the Commission at the time the registration statement becomes effective or the Final Prospectus is filed with the Commission, if a copy of the Final Prospectus was not furnished to the Person asserting the loss, liability, claim or damage at or prior to the time such action is required by the Securities Act, and if the Final Prospectus would have cured the defect giving rise to such loss, liability, claim or damage; and such holder will reimburse the Company and each such Person for any legal or other expenses reasonably incurred, as such expenses are incurred, by any of them in connection with investigating or defending any such loss, claim, damage, liability or expense; provided, that, the obligation to indemnify shall be individual, not joint and several, for each holder and shall be limited to the net amount of proceeds received by such holder from the sale of Registrable Securities pursuant to such registration statement.

7.3 Any Person entitled to indemnification hereunder shall (a) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party’s ability to defend such claim), and (b) unless in the written opinion of legal counsel to such indemnified or indemnifying parties a conflict of interest between such indemnified and indemnifying parties exists with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall be obligated to pay the fees and expenses of one counsel (but not more than one) for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment (with written advice of counsel) of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim.

7.4 The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified

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party or any partner, officer, director or controlling Person of such indemnified party and shall survive the transfer of securities. The Company also agrees to make such provisions, as are reasonably requested by any indemnified party, for contribution to such party in the event the Company’s indemnification is unavailable for any reason.

8. Participation in Underwritten Registrations. No Person may participate in any registration hereunder which is underwritten unless such Person (a) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Company and (b) completes and executes all questionnaires, powers of attorney and other documents reasonably required under the terms of such underwriting arrangements; provided, that, no holder of Registrable Securities included in any underwritten registration shall be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding such holder and such holder’s intended method of distribution) or to undertake any indemnification obligations to the Company or the underwriters with respect thereto, except to the extent of the indemnification provided in Section 7.

9. Rule 144 Reporting. With a view to making available the benefits of certain rules and regulations of the Commission which may at any time permit the sale of any Registrable Securities to the public without registration after the third anniversary of the Effective Date, the Company agrees to use commercially reasonable efforts to:

9.1 File, as and when applicable, with the Commission in a timely manner all reports and other documents required of the Company under the Exchange Act;

9.2 After the third anniversary of the Effective Date, if the Company is not required to file reports pursuant to the Exchange Act, upon the request of any holder of Registrable Securities, the Company shall make publicly available the information specified in subparagraph (c)(2) of Rule 144 of the Securities Act; and

9.3 After the third anniversary of the Effective Date, so long as a holder owns any Registrable Securities, to furnish to the holder, upon request and at such holder’s expense, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 of the Securities Act and such other reports and documents of the Company and other information in the possession of or reasonably by the Company as the holder may reasonably request in availing itself of any rule or regulation of the Commission allowing the holder to sell any such securities without registration.

10. Miscellaneous.

10.1 Effective Date. This Agreement shall not be effective (and the parties hereto shall not be bound by any obligations hereunder) until the Effective Date. In the event that the Merger and Contribution Agreement is terminated without consummation of the transactions contemplated therein, this Agreement shall automatically terminate without any action on the part of either party to this Agreement and neither party hereto shall have any liability or obligation to the other party under this Agreement.

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10.2 No Inconsistent Agreements. The Company shall not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates the rights granted to the holders of Registrable Securities in this Agreement.

10.3 Remedies. Any Person having rights under any provision of this Agreement shall be entitled to enforce such rights specifically to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. The parties hereto agree and acknowledge that money damages are not an adequate remedy for any breach of the provisions of this Agreement and that any party may apply for specific performance and for other injunctive relief in order to enforce or prevent violation of the provisions of this Agreement.

10.4 Amendments and Waivers. Except as otherwise provided herein, the provisions of this Agreement may be amended or waived only upon the prior written consent of (a) the Company and (b) the holders of a majority of the Registrable Securities then outstanding; provided, that the amendment or waiver of any material provision of this Agreement by the Company shall require the approval of a majority of the IMC Independent Directors (as such term is defined in the Investor Rights Agreement, dated as of January 26, 2004, between Cargill and the Company (the “Investor Rights Agreement”)), if any.

10.5 Successors, Assigns and Subsequent Holders. (a) All covenants and agreements in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and the permitted assigns of the parties hereto.

(b) The rights to cause the Company to register Registrable Securities pursuant to this Agreement may be assigned (but only with all related obligations) by a holder of Registrable Securities to a transferee of such securities if (x) such transfer involves at least 20% of the Registrable Securities held by the holder on the date hereof, (y) such transfer involves the transfer of at least 10 million shares of Registrable Securities, or (z) the transfer is to (i) a subsidiary, parent, partner, limited partner, member, retired member, retired partner or stockholder of such holder or (ii) such holder’s family member or trust for the benefit of such holder (provided, that all such transferees who would not qualify individually for assignment of registration rights under clause (x) or (y) of this Section 10.5(b) have a single attorney-in-fact for the purpose of exercising any rights, receiving notices or taking any action under this Agreement).

(c) No assignment or transfer pursuant to this Section 10.5 shall be effective unless and until (i) the Company is furnished with written notice of the name and address of such transferee or assignee and the securities with respect to which such registration rights are being assigned, (ii) such transferee or assignee agrees in writing to be bound by and subject to the terms and conditions of this Agreement and (iii) such assignment or transfer was made in accordance with the terms of the Investor Rights Agreement (to the extent such Agreement is then in effect).

10.6 Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter contained herein, and supersedes and preempts all prior agreements, negotiations, discussions and understandings among the parties hereto with respect to such subject matter.

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10.7 Severability. Wherever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law and in such a way as to, as closely as possible, achieve the intended economic effect of such provision and this Agreement as a whole, but if any provision contained herein is, for any reason, held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or any other provisions hereof, unless such a construction would be unreasonable.

10.8 Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be deemed given upon delivery (a) when delivered personally, (b) if transmitted by facsimile when confirmation of transmission is received, (c) if sent by registered or certified mail, postage prepaid, return receipt requested or (d) if sent by reputable overnight courier service (providing proof of delivery); and shall be addressed as follows:

To the Company:


[To be determined by management of the Company]

To Cargill: Cargill, Incorporated Mailstop: Lake 15407 McGinty Road West Wayzata, MN 55391 Attention: Robert L. Lumpkins Facsimile: (952) 742-6027		with a copy to: Dorsey & Whitney LLP 50 South Sixth Street Minneapolis, Minnesota 55402 Attention: Robert A. Rosenbaum, Esq. Facsimile: (612) 340-7800

and

Cargill, Incorporated Law Department/24 15407 McGinty Road West Wayzata, MN 55391 Attention: Richard Mack Facsimile: (952) 742-6349

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10.9 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. In furtherance of the foregoing, the internal law of the State of Delaware shall control the interpretation and construction of this Agreement, even though under that jurisdiction’s choice of law or conflict of law analysis, the substantive law of some other jurisdiction would ordinarily apply.

10.10 Submission to Jurisdiction; Waiver of Jury Trial. (a) Each of the parties hereby irrevocably submits in any suit, action or proceeding arising out of or related to this Agreement, or any of the transactions contemplated hereby or thereby, to the exclusive jurisdiction of any state or federal court located in the State of Delaware, and, to the extent permissible by law, waives any and all claims and objections that any such court is an inconvenient forum.

(b) EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN OR AMONG ANY OF THE PARTIES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OF THE TRANSACTION DOCUMENTS, OR ANY OTHER INSTRUMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THEREWITH. ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

10.11 Attorneys’ Fees. Except as otherwise specifically provided herein, in the event of any action or suit based upon or arising out of any actual or alleged breach by any party of any provision of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses of such action or suit from the losing party, in addition to any other relief ordered by the court.

10.12 Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which will be considered an original instrument, but all of which together will be considered one and the same agreement, and will become binding when one or more counterparts have been signed by and delivered to each of the parties.

[Signature page follows]

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IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights Agreement to be executed the day and year first above written.


GLOBAL NUTRITION SOLUTIONS, INC.

By:		/s/ Fredric W. Corrigan
Name:		Fredric W. Corrigan
Title:		CEO and President

CARGILL, INCORPORATED

By:		/s/ Robert L. Lumpkins
Name:		Robert L. Lumpkins
Title:		Vice Chairman and CFO

Signature Page

to the

Registration Rights Agreement

EX-7 5 dex7.htm CERTIFICATE OF DESIGNATION Certificate of Designation

EXHIBIT 7

CERTIFICATE OF DESIGNATIONS

CLASS B COMMON STOCK

THE MOSAIC COMPANY

Pursuant to Section 151 of the

General Corporation Law of the State of Delaware

The Mosaic Company, a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify that the following resolution was duly adopted by the Board of Directors of the Corporation (the “Board of Directors”).

RESOLVED, that pursuant to the authority conferred upon the Board of Directors by the provisions of the Corporation’s Restated Certificate of Incorporation (the “Restated Certificate of Incorporation”), and pursuant to a resolution of the Board of Directors dated October 21, 2004, the Board of Directors hereby fixes the number, designation, relative rights, preferences and limitations of the Class B Common Stock as follows (certain capitalized terms being herein used as defined in Section 7 below):

1. Designation and Number of Shares. Out of the shares of Common Stock of the Corporation authorized by the Restated Certificate of Incorporation, 5,458,955 shall be, and be designated as, Class B Common Stock, $0.01 par value per share (“Class B Common”). The number of authorized shares of Class B Common may be increased or decreased by further resolution adopted by the Board of Directors and by filing of a certificate pursuant to the provisions of the General Corporation Law of the State of Delaware, as may be amended from time to time (the “General Corporation Law”) stating that such increase or decrease, as the case may be, has been so authorized.

2. Ranking. Class B Common shall rank, with respect to distributions upon the liquidation, winding up or dissolution of the Corporation (i) pari passu to (a) the Common Stock, par value $0.01 per share, of the Corporation (“Common Stock”); and (b) to each other class or series of stock of the Corporation, the terms of which expressly provide that the class or series

will rank pari passu with Class B Common as to distributions upon the liquidation, winding up or dissolution of the Corporation; (ii) junior to (a) the 7.50% Mandatory Convertible Preferred Shares, par value $0.01 per share, of the Corporation (“7.50% Preferred”); and (b) any other equity security, the terms of which expressly provide that such class or series will rank senior to Class B Common as to distributions upon liquidation, winding up or dissolution of the Corporation.

3. Dividends. The Holders of shares of Class B Common shall have no rights to receive dividends, except as expressly required by applicable law.

4. Voting Rights.

(i) On all matters to be voted on by the holders of Common Stock, the Holders of shares of Class B Common shall be entitled to one vote for each share thereof held of record. On all such matters on which the Holders of shares of Class B Common are so entitled to vote, the holders of Common Stock and the Holders of Class B Common shall vote as a single class. Except as expressly set forth in this Section 4(i), in Section 4(ii) or as otherwise required by the General Corporation Law, the Holders of shares of Class B Common shall have no voting rights.

(ii) So long as any shares of Class B Common are outstanding the affirmative vote or consent of the Holders of at least 66²/3% of the outstanding shares of Class B Common will be required for any amendment, alteration or repeal of the Restated Certificate of Incorporation (or any certificate supplemental thereto, including any Certificate of Designation or any similar document relating to any series of stock) that will adversely affect the powers, preferences, privileges or rights of Class B Common.

5. Mandatory Conversion.

(i) Each time that a share of 7.50% Preferred is converted into one or more shares of Common Stock pursuant to the provisions of the Certificate of Designations of 7.50% Mandatory Convertible Preferred Shares of the Corporation (such Certificate of Designations, as may be amended from time to time, the “7.50% Preferred Certificate of Designation”), 1.98507454 shares of Class B Common then outstanding will automatically convert, without any further action on the part of the Corporation or the Holder thereof (subject to Section 5(ii)) into a number of newly issued shares of Common Stock equal to the Class B Conversion Rate (as defined in Section 6 below).

(ii) In the event that less than all outstanding shares of 7.50% Preferred are converted into shares of Common Stock, the Corporation shall, within five (5) Business Days of such conversion, provide Cargill, Incorporated (“Cargill”) with written notification of such conversion. Within ten (10) Business Days of receipt of such notice, Cargill shall provide the Corporation with written instructions identifying the shares of Class B Common to be converted into shares of Common Stock in accordance with Section 5(i).

(iii) The Corporation shall make such arrangements as it deems appropriate for the issuance of certificates, if any, representing Common Stock, and for the payment of

cash in lieu of fractional shares of Common Stock, if any, in exchange for and contingent upon surrender of certificates representing the shares of Class B Common (if such shares are held in certificated form). The Corporation may defer the payment of dividends on the Common Stock issuable upon conversion of shares of Class B Common and the voting thereof until, and make such payment and voting contingent upon, the surrender of the certificates representing the shares of Class B Common, provided that the Corporation shall give the Holders of the shares of Class B Common such notice of any such actions as the Corporation deems appropriate and upon such surrender such Holders shall be entitled to receive such dividends declared and paid on such Common Stock subsequent to the date of conversion. Amounts payable in cash in respect of the shares of Class B Common or in respect of such Common Stock shall not bear interest. Transfer or similar taxes in connection with the issuance of Common Stock to any person other than the Holder will be paid by the Holder.

(iv) Upon conversion of any share of Class B Common as described in this Section 5, such share of Class B Common shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each certificate representing each share of Class B Common so converted shall, insofar as it relates to such share, cease to have any rights with respect thereto, except the right to receive the shares of Common Stock issuable upon surrender of such certificate.

6. Definition of Conversion Rate; Anti-dilution Adjustments.

(i) The “Class B Conversion Rate” is equal to (a) the Conversion Rate (as defined in the 7.50% Preferred Certificate of Designations applicable to the conversion of shares of 7.50% Preferred at the time of such conversion), multiplied by (b) 1.98507454 (and in each case rounded upward or downward to the nearest 1/10,000th of a share).

(ii) In the event of:

(a) any consolidation or merger of the Corporation with or into another person (other than a merger or consolidation in which the Corporation is the surviving corporation and in which the Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Corporation or another corporation); or

(b) any sale, transfer, lease or conveyance to another person of the property of the Corporation as an entirety or substantially as an entirety; or

(c) any statutory exchange of securities of the Corporation with another person (other than in connection with a merger or acquisition)

(any such event, a “Reorganization Event”) each share of Class B Common outstanding immediately prior to such Reorganization Event shall, after such Reorganization Event, be convertible solely into the kind and amount of securities, cash and other property receivable in such Reorganization Event (without any interest thereon, and without any right to dividends or distribution thereon that have a record date that is prior to the Reorganization Date) by a holder of the number of shares of Common Stock (including

fractional shares for this purpose) into which such share of Class B Common in the case of any conversion of a share of Class B Common would have been converted pursuant to Section 5 if the conversion date had occurred immediately prior to such Reorganization Event assuming in each case that such holder of such shares of Common Stock (1) is not a person with which the Corporation consolidated or into which the Corporation merged or which merged into the Corporation or to which such sale or transfer was made, as the case may be (any such person, a “Constituent Person”), or an Affiliate (as defined below) of a Constituent Person to the extent such Reorganization Event provides for different treatment of Common Stock held by Affiliates of the Corporation and non-Affiliates, and (2) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Reorganization Event (provided that if the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Common Stock held immediately prior to such Reorganization Event by other than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised (“Non-electing Share”), then for the purpose of this Section 6(ii) the kind and amount of securities, cash and other property receivable upon such Reorganization Event by each Non-electing Share shall be deemed to be the kind and amount so receivable per share by a plurality of the Non-electing Shares).

In the event of such a Reorganization Event, the person formed by such consolidation, merger or exchange or the person which acquires the assets of the Corporation shall execute and deliver to the Transfer Agent an agreement supplemental hereto providing that the Holder of each share of Class B Common shall have the rights provided by this Section 6(ii). Such supplemental agreement shall provide for adjustments which, for events subsequent to the effective date of such supplemental agreement, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 6. The above provisions of this Section 6(ii) shall similarly apply to successive Reorganization Events.

7. Definitions.

(i) “Affiliate” has the same meaning as given to that term in Rule 405 of the Securities Act of 1933, as amended, or any successor rule thereunder.

(ii) “Business Day” means any day other than a Saturday or Sunday or any other day on which banks in The City of New York are authorized or required by law or executive order to close.

(iii) The “Closing Price” of the Common Stock or any other securities, as the case may be, on any date of determination means the closing sale price (or, if no closing price is reported the last reported sale price) per share on the New York Stock Exchange (the “NYSE”) on such date or, if such security is not quoted for trading on the NYSE on any such date, as reported in the composite transactions for the principal United States securities exchange on which such security is so listed or quoted, or if such security is not so listed or quoted on a United States national or regional securities exchange, as reported by the Nasdaq National Market, or, if such security is not so reported, the last quoted bid

price for such security in the over-the-counter market as reported by the National Quotation Bureau or similar organization, or, if such bid price is not available, the market value of such security on such date as determined by a nationally recognized independent investment banking firm retained for this purpose by the Corporation.

(iv) “Holder” means the person in whose name any shares of Class B Common are registered in the books and records of the Corporation.

(v) “Trading Day” means a day on which the Common Stock (A) is not suspended from trading on any national or regional securities exchange or association or over-the-counter market at the close of business and (B) has traded at least once on the national or regional securities exchange or association or over-the-counter market that is the primary market for the trading of the Common Stock.

(vi) “Transfer Agent” shall be the American Stock Transfer & Trust Company unless and until a successor is selected by the Corporation, and then such successor.

8. Fractional Shares. No fractional Common Stock shall be issued upon the conversion of any shares of Class B Common. In lieu of any fraction of a share of Common Stock that would otherwise be issuable in respect of the aggregate number of shares of Class B Common surrendered by the same Holder upon a conversion as described in Section 5, such Holder shall have the right to receive an amount in cash (computed to the nearest cent) equal to the same fraction of the Closing Price of the Common Stock determined as of the second Trading Day immediately preceding the effective date of conversion.

9. Miscellaneous.

(i) Procedures for conversion of shares of Class B Common, in accordance with Section 5 not held in certificated form will be governed by arrangements among the depositary, participants and persons that may hold beneficial interests through participants designed to permit conversion without the physical movement of certificates. Payments, transfers, deliveries, exchanges and other matters relating to beneficial interests in global security certificates may be subject to various policies and procedures adopted by the depositary from time to time.

(ii) For the purposes of Section 6, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Corporation will not pay any dividend or make any distribution with respect to shares held in treasury.

(iii) If the Corporation shall take any action affecting the Common Stock, other than action described in Section 6, that in the opinion of the Board of Directors would materially adversely affect the conversion rights of the Holders of the shares of Class B Common, then (x) the Class B Conversion Rate, and (y) the number of shares of Common Stock to be delivered on conversion may each be adjusted, to the extent permitted by law, in such manner, if any, and at such time, as the Board of Directors may determine to be equitable in the circumstances.

(iv) The Corporation covenants that it will at all times reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued Common Stock for the purpose of effecting conversion of Class B Common, the full number of shares of Common Stock deliverable upon the conversion of all outstanding shares of Class B Common not theretofore converted. For purposes of this Section 9(iv), the number of shares of Common Stock that shall be deliverable upon the conversion of all outstanding shares of Class B Common shall be computed as if at the time of computation all such outstanding shares were held by a single Holder.

(v) The Corporation covenants that any shares of Common Stock issued upon conversion of shares of Class B Common shall be validly issued, fully paid and non-assessable.

(vi) The Corporation shall endeavor to list the shares of Common Stock required to be delivered upon conversion of shares of Class B Common, prior to such delivery, upon each national securities exchange or quotation system, if any, upon which the outstanding shares of Common Stock are listed at the time of such delivery.

(vii) The Corporation will pay any and all documentary stamp or similar issue or transfer taxes payable in respect of the issue or delivery of shares of Common Stock or other securities or property on conversion of shares of Class B Common pursuant thereto; provided, however, that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issue or delivery of shares of Common Stock or other securities or property in a name other than that of the Holder of Class B Common to be converted and no such issue or delivery shall be made unless and until the person requesting such issue or delivery has paid to the Corporation the amount of any such tax or established, to the reasonable satisfaction of the Corporation, that such tax has been paid.

(viii) Shares of Class B Common are not redeemable.

(ix) All shares of Class B Common shall be deemed outstanding except, from the date of registration of transfer, all shares of Class B Common held of record by the Corporation or any subsidiary of the Corporation.

(x) Whenever possible, each provision hereof shall be interpreted in a manner as to be effective and valid under applicable law, but if any provision hereof is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating or otherwise adversely affecting the remaining provisions hereof. If a court of competent jurisdiction should determine that a provision hereof would be valid or enforceable if a period of time were extended or shortened or a particular percentage were increased or decreased, then such court may make such change as shall be necessary to render the provision in question effective and valid under applicable law.

(xi) Shares of Class B Common may be issued in fractions of a share which shall entitle the Holder, in proportion to such Holder’s fractional shares, to exercise voting rights, participate in distributions and have the benefit of all other rights of Holders of Class B Common.

(xii) Subject to applicable escheat laws, any monies set aside by the Corporation in respect of any payment with respect to shares of Class B Common and unclaimed at the end of two years from the date upon which such payment is due and payable shall revert to the general funds of the Corporation, after which reversion the Holders of such shares shall look only to the general funds of the Corporation for the payment thereof. Any interest accrued on funds so deposited shall be paid to the Corporation from time to time.

(xiii) Except as may otherwise be required by law, the shares of Class B Common shall not have any voting powers, preemptive or other subscription rights, preferences and relative, participating, optional or other special rights, other than those, if any, specifically set forth in this Certificate of Designations.

(xiv) The headings of the various subdivisions hereof are for convenience of reference only and shall not affect the interpretation of any of the provisions hereof.

(xv) If any of the voting powers, preferences and relative participating, optional and other special rights of Class B Common and qualifications, limitations and restrictions thereof set forth herein is invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all other voting powers, preferences and relative participating, optional and other special rights of Class B Common and qualifications, limitations and restrictions thereof set forth herein that can be given effect without the invalid, unlawful or unenforceable voting powers, preferences and relative participating, optional and other special rights of Class B Common and qualifications, limitations and restrictions thereof shall, nevertheless, remain in full force and effect, and no voting powers, preferences and relative participating, optional or other special rights of Class B Common and qualifications, limitations and restrictions thereof herein set forth shall be deemed dependent upon any other such voting powers, preferences and relative participating, optional or other special rights of Class B Common and qualifications limitations and restrictions thereof unless so expressed herein.

(xvi) Shares of Class B Common that have been issued and reacquired in any manner, including shares purchased or exchanged or converted, shall (upon compliance with any applicable provisions of the laws of Delaware) have the status of authorized but unissued shares of Common Stock of the Corporation.

(xvii) If any certificates of shares of Class B Common shall be mutilated, lost, stolen or destroyed, the Corporation shall issue, in exchange and in substitution for and upon cancellation of the mutilated certificates of shares of Class B Common, or in lieu of and substitution for certificates of Class B Common lost, stolen or destroyed, a new certificate of Class B Common and of like tenor and representing an equivalent amount of shares of Class B Common, but only upon receipt of evidence of such loss, theft or destruction of such certificate of Class B Common and indemnity, if requested, satisfactory to the Corporation and the Transfer Agent. The Corporation is not required

to issue any certificates representing shares of Class B Common on or after the date on which all outstanding shares of Class B Common have been converted into Common Stock pursuant to Section 5 or Section 9(xviii). In place of the delivery of a replacement certificate following such date, the Transfer Agent, upon delivery of the evidence and indemnity described above, will deliver shares of Common Stock pursuant to the terms of Class B Common evidenced by the certificate.

(xviii) In the event that, upon conversion of the last share of 7.50% Preferred outstanding into Common Stock and the consequent conversion of shares of Class B Common into Common Stock pursuant to Section 5, any share of Class B Common remains outstanding, any such remaining outstanding share of Class B Common shall be deemed automatically converted into a number of newly issued shares of Common Stock equal to the Class B Conversion Rate.

IN WITNESS WHEREOF, The Mosaic Company has caused this Certificate of Designations to be signed by Fredric W. Corrigan, its Chief Executive Officer, this 21st day of October, 2004.


By:		/s/ Fredric W. Corrigan
Name:		Fredric W. Corrigan
Title:		Chief Executive Officer

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