-----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, MTpyTa4zHoUp2+OXVhdtwQoclPwZe0zLCstwRlvnDgQriJ0wQ7zMUWwKwa3d+AZq eaZsrOSiJGQ2QnZhFRzY3A== 0000820626-98-000011.txt : 19980416 0000820626-98-000011.hdr.sgml : 19980416 ACCESSION NUMBER: 0000820626-98-000011 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19980401 ITEM INFORMATION: ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980415 SROS: CSX SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: IMC GLOBAL INC CENTRAL INDEX KEY: 0000820626 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE CHEMICALS [2870] IRS NUMBER: 363492467 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-09759 FILM NUMBER: 98594212 BUSINESS ADDRESS: STREET 1: 2100 SANDERS RD CITY: NORTHBROOK STATE: IL ZIP: 60062 BUSINESS PHONE: 8472729200 MAIL ADDRESS: STREET 1: 2345 WAUKEGAN ROAD - SUITE E-200 CITY: BANNOCKBURN STATE: IL ZIP: 60015-5516 FORMER COMPANY: FORMER CONFORMED NAME: IMC FERTILIZER GROUP INC DATE OF NAME CHANGE: 19920703 8-K 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): April 1, 1998 IMC GLOBAL INC. (Exact name of registrant as specified in its charter) DELAWARE 1-9759 36-3492467 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) 2100 Sanders Road 60062 Northbrook, Illinois (Zip Code) (Address of principal executive offices) (847) 272-9200 (Registrant's telephone number, including area code) Item 2. ACQUISITION OR DISPOSITION OF ASSETS. On April 1, 1998, IMC Global Inc. ("IMC") acquired (i) Harris Chemical Group, Inc. ("HCG") pursuant to an Agreement and Plan of Merger dated as of December 11, 1997 by and among IMC and IMC Merger Sub Inc. (the "Merger Agreement") and (ii) all of the outstanding shares of capital stock of Harris Chemical Australia Pty Ltd. ("HCA" and together with HCG, "Harris") pursuant to a Sale and Purchase Agreement Penrice Group of Companies dated as of December 11, 1997 among Prudential Asset Management Asia Limited, DGHA Persons and Trust, Search Investment NV, Marsupial L.L.C., Marsupial - II L.L.C., Soda Ash (L) BHD, Manager Shareholders named therein, HCA and IMC (the "Penrice Agreement" and together with the Merger Agreement, the "Acquisition Agreements"). As contemplated by the Merger Agreement, IMC Merger Sub Inc., a wholly owned subsidiary of IMC, was merged with and into HCG with HCG being the surviving corporation and continuing as a wholly owned subsidiary of IMC under the name "IMC Inorganic Chemicals Inc." Under the Penrice Agreement, IMC acquired, directly or indirectly, all outstanding capital stock of HCA, which will continue under the name "Penrice Holding." Pursuant to the Acquisition Agreements, IMC acquired Harris for an aggregate purchase price of $450 million in cash and the assumption of approximately $950 million of Harris debt. IMC funded the cash portion of the acquisition through its borrowing capabilities. Harris is a producer and marketer of inorganic chemical and extractive mineral products with primary manufacturing sites in North America, Europe and Australia. IMC intends to continue to put the Harris assets it is acquiring to the same use. Its principal products are salt, sodium -based chemicals including soda ash and sodium bicarbonate, sulfate of potash, boron chemicals and other inorganic chemicals. Harris projects 1998 annual sales to be approximately $850 million. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits (a) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED. The financial statements of Harris will be filed by amendment as soon as practicable and in any event not later than 60 days after the date upon which this Form 8K is required to be filed. (b) PRO FORMA FINANCIAL INFORMATION The pro forma financial information will be filed by amendment as soon as practicable and in any event not later than 60 days after the date upon which this Form 8K is required to be filed. (c) Exhibits The exhibits accompanying this report are listed in the accompanying Exhibit Index. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. IMC GLOBAL INC. (Registrant) By: ____________ _________ Marschall I. Smith Senior Vice President and General Counsel Dated: April 15, 1998 EXHIBIT INDEX The following exhibits are filed herewith as noted below. Exhibit No. Exhibit 2.1 Agreement and Plan of Merger, dated as of December 11, 1997, by and among Harris Chemical Group, Inc., IMC Global Inc. and IMC Merger Sub Inc. 2.2 Sale and Purchase Agreement Penrice Group of Companies dated as of December 11, 1997 among Prudential Asset Management Asia Limited, DGHA Persons and Trust, Search Investment NV, Harris Chemical Australia Pty Limited, Marsupial L.L.C., Marsupial - II L.L.C., Soda Ash (L) BHD, Manager Shareholders and IMC Global Inc. 99 Press Release of IMC dated April 1, 1998.
EX-2.1 2 AGREEMENT AND PLAN OF MERGER EXHIBIT 2.1 AGREEMENT AND PLAN OF MERGER by and among HARRIS CHEMICAL GROUP, INC., IMC GLOBAL INC. and IMC MERGER SUB INC. Dated as of December 11, 1997 TABLE OF CONTENTS Page ARTICLE 1 DEFINITIONS 1.1 Definitions 1 ARTICLE 2 FORMATION OF NEWCO AND THE MERGER 2.1 Reserved 4 2.2 The Merger 4 2.3 Closing 5 2.4 Effective Time 5 2.5 Effects of the Merger 5 2.6 Termination 5 2.7 Effect of Termination 6 ARTICLE 3 EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES 3.1 Effect on Capital Stock 6 3.2 Treatment of Options 8 3.3 Exchange of Certificates 8 ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE COMPANY 4.1 Organization of the Company and the Subsidiaries; Authority. 11 4.2 Capitalization of the Company; Ownership. 11 4.3 Subsidiaries of the Company. 11 4.4 Ability to Carry Out the Agreement. 12 4.5 Consents and Approvals. 12 4.6 Financial Statements. 12 4.7 Title to Properties; Absence of Liens. 13 4.8 Litigation. 14 4.9 Compliance with Law. 14 4.10 Contracts. 14 4.11 Brokers and Intermediaries. 15 4.12 Tax Matters. 15 4.13 Employee Benefits. 16 4.14 Intellectual Property. 17 4.15 Environmental Matters. 18 4.16 Absence of Certain Changes. 18 4.17 Employees, Labor Matters, etc. 20 4.18 Affiliate Transactions. 21 4.19 Availability of Assets and Legality of Use. 21 4.20 Insurance. 21 4.21 HCNA SEC Documents. 21 4.22 Disclaimer of Other Representations and Warranties; Knowledge; Disclosure. 22 4.23 Consent of Stockholders. 23 ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE BUYER 5.1 Organization and Authority of the Buyer. 23 5.2 Ability to Carry Out the Agreement. 23 5.3 Consents and Approvals. 24 5.4 Financial Ability to Perform. 24 5.5 Brokers and Intermediaries. 24 ARTICLE 6 CERTAIN COVENANTS AND AGREEMENTS OF THE COMPANY AND THE BUYER 6.1 Access and Information. 24 6.2 Regulatory Filings. 24 6.3 Conduct of Business. 25 6.4 Dividends; Changes in Stock. 25 6.5 Satisfaction of Conditions to the Merger. 25 6.6 Employee Matters. 26 6.7 Tax Matters. 27 6.8 Announcement. 27 6.9 Notice to Stockholders. 28 6.10 No Solicitation. 28 6.11 Certain Litigation. 28 6.12 Subsequent Financial Statements. 28 6.13 Name of Surviving Corporation. 28 6.14 Insurance. 29 ARTICLE 7 CONDITIONS PRECEDENT OF THE COMPANY 7.1 Representations and Warranties. 29 7.2 Agreements. 29 7.3 Buyer Certificate. 29 7.4 No Injunction. 29 7.5 Consents. 29 7.6 Miscellaneous Closing Deliveries. 30 7.7 Penrice Condition. 30 ARTICLE 8 CONDITIONS PRECEDENT OF THE BUYER 8.1 Representations and Warranties. 30 8.2 Agreements. 30 8.3 The Company's Certificate. 31 8.4 No Injunction. 31 8.5 Consents. 31 8.6 No Material Adverse Change. 31 8.7 Miscellaneous Closing Deliveries. 31 8.8 Penrice Condition. 31 ARTICLE 9 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES; CERTAIN ACKNOWLEDGMENTS 9.1 Nonsurvival of Representations and Warranties. 31 9.2 Information. 32 ARTICLE 10 INDEMNIFICATION 10.1 Indemnification. 32 ARTICLE 11 MISCELLANEOUS 11.1 Expenses. 34 11.2 Applicable Law. 34 11.3 Notices. 34 11.4 Entire Agreement. 36 11.5 Amendments. 36 11.6 Headings; References. 36 11.7 Counterparts. 36 11.8 Parties in Interest; Assignment. 36 11.9 Severability; Enforcement. 36 11.10 Waiver. 36 11.11 Relationship Between the Parties. 37 11.12 WAIVER OF CONSEQUENTIAL DAMAGES AND JURY TRIAL. 37 11.13 Approval of Company Stockholders. 37 11.14 Liquidated Damages. 37 AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER dated as of December 11, 1997 (herein, together with the Schedules and Exhibits attached hereto, referred to as the "Agreement") by and among Harris Chemical Group, Inc., a Delaware corporation (the "Company"), IMC Global Inc., a Delaware corporation ("Buyer") and IMC Merger Sub Inc., a Delaware corporation ("Newco"). W I T N E S S E T H: WHEREAS, the respective Boards of Directors of the Buyer, Newco and the Company have approved the business combination transaction provided for herein in which Newco will merge with and into the Company with the Company continuing as the surviving corporation (the "Merger"). WHEREAS, the Buyer and the Company desire to make certain representations, warranties and agreements in connection with the Merger and also to prescribe various conditions to the Merger; NOW, THEREFORE, in consideration of the premises and the representations, warranties and agreements herein contained, the parties agree as follows: ARTICLE 1 DEFINITIONS 1.1 Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth below: "Accounting Principles" means the accounting principles, policies and procedures of the Company and its Subsidiaries, as employed by each such company, which are in conformity with GAAP. "Active Employees" shall have the meaning set forth in Section 6.6(a). "Affiliate" means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, such other Person. "Agreement" shall have the meaning set forth in the forepart of this Agreement. "Affiliate Transactions" shall have the meaning set forth in Section 4.18. "Applicable Interest Rate" shall have the meaning ascribed thereto in Section 3.1(b). "Certificate of Merger" shall have the meaning set forth in Section 2.4. "Claims" shall have the meaning set forth in Section 10.1(a). "Closing" shall have the meaning set forth in Section 2.3. "Closing Date" shall have the meaning set forth in Section 2.3. "Code" means the Internal Revenue Code of 1986, as amended or, if appropriate, any predecessor statute. "Company Benefit Plans" shall have the meaning set forth in Section 4.13. "Company Common Stock" means, collectively, the Class A common stock of the Company, par value $.01 per share, the Class B common stock of the Company, par value $.01 per share, the Class C common stock of the Company, par value $.01 per share, and the Class D common stock of the Company, par value $.01 per share. "Company Convertible Preferred Stock" means the Convertible Preferred Stock of the Company, par value $.01 per share. "Company Group" means any "affiliated group" (as defined in Section 1504(a) of the Code without regard to the limitations contained in Section 1504(b) of the Code) that, at any time on or before the Effective Time, includes or has included the Company or any predecessor of or successor to the Company (or another such predecessor or successor), or any other group of corporations which, at any time on or before the Effective Time, files or has filed Returns on a combined, consolidated or unitary basis with the Company or any predecessor of or successor to the Company (or another such predecessor or successor). "Company Non-Convertible Preferred Stock" means the NonConvertible Preferred Stock of the Company, par value $.01 per share. "Company Stock" means, collectively, Company Common Stock, Company Convertible Preferred Stock, and Company Non-Convertible Preferred Stock. "Company Stock Option" shall have the meaning set forth in Section 3.2. "Confidentiality Agreement" shall have the meaning set forth in Section 6.1. "Control" (including, with correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise. "DGCL" shall mean the Delaware General Corporation Law. "Dissenting Shares" shall have the meaning set forth in Section 3.1(d). "DOJ" shall mean the Department of Justice. "Effective Time" shall have the meaning set forth in Section 2.4. "Encumbrances" shall have the meaning set forth in Section 4.7. "Environmental Law" means any federal, state, local or foreign statute, law or regulation, in effect on the date hereof relating to pollution or protection of the environment, health or safety. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "Exchange Agent" shall have the meaning set forth in Section 3.3(a). "Exchange Fund" shall have the meaning set forth in Section 3.3(a). "Final Termination Date" shall have the meaning set forth in Section 2.6(b). "FTC" shall mean the Federal Trade Commission. "GAAP" shall mean U.S. generally accepted accounting principles. "Governmental Entity" shall mean any federal, state, local or foreign government or any court, administrative agency or commissions or other governmental authority or agency, domestic or foreign. "Hazardous Materials" means any hazardous materials, hazardous wastes, hazardous constituents, hazardous or toxic substances, petroleum products (including crude oil or any fraction thereof), defined or regulated as such in or under any Environmental Law. "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. "Information Memorandum" shall have the meaning set forth in Section 4.22. "Intellectual Property" shall have the meaning set forth in Section 4.14(a). "Losses" shall have the meaning set forth in Section 10.1. "Material Adverse Effect" means a material adverse effect (either individually or in the aggregate) on the financial condition or operations of any of (i) the Company and the Subsidiaries, taken as a whole or (ii) any Significant Business, taken as a whole. "Merger Consideration" shall mean the cash payable upon the Merger as provided in Section 3.1(b) after giving effect to any adjustment provided for in Section 11.1(a) hereof. "Penrice Agreement" shall mean the agreement referred to in Section 7.7 and Section 8.8 hereof. "Person" means an individual, corporation, partnership, trust or unincorporated organization or a government or any agency or political subdivision thereof. "Property" and "Properties" shall have the meaning set forth in Section 4.15. "Reference Balance Sheet Date" shall have the meaning set forth in Section 4.6. "Reference Statement of Operations" shall have the meaning ascribed thereto in Section 4.6. "Reference Balance Sheet" shall have the meaning set forth in Section 4.6. "Retirement Plan" shall have the meaning set forth in Section 4.13(b)(i). "Returns" means all returns, reports, estimates, information returns and statements of any nature with respect to Taxes. "Significant Business" means (i) the businesses of North American Salt Company, Salt Union Limited and GSL Corporation, taken as a whole or (ii) the businesses of North American Chemical Company, Matthes & Weber GmbH, Societa Chimica Larderello S.p.A. and Penrice Soda Products Pty Ltd, taken as a whole. "Stock Plan" shall have the meaning set forth in Section 3.2. "Stockholders" means the holders of shares of Company Stock set forth on Schedule 4.2. "Stockholders Agreement" means the Stockholders Agreement dated as of October 18, 1993, as amended among the Company and the persons listed as stockholders on the Schedule of Stockholders attached to the Stockholders Agreement. "Subsidiary" (including "Subsidiaries") means any corporation, joint venture, partnership, limited liability company or other entity of which the Company, directly or indirectly, owns or controls capital stock (or other equity interests) representing more than fifty percent (50%) of the general voting power under ordinary circumstances of such entity. "Surviving Corporation" shall have the meaning set forth in Section 2.2. "Tax" or "Taxes" means any federal, state, local or foreign income, gross receipts, profits, franchise, transfer, sales, use, payroll, occupation, property (real or personal), excise and similar taxes (including interest, penalties or additions to such taxes). "WARN" shall have the meaning set forth in Section 6.6. ARTICLE 2 FORMATION OF NEWCO AND THE MERGER 2.1 Reserved. 2.2 The Merger. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, Newco shall be merged with and into the Company at the Effective Time. At the Effective Time the separate existence of Newco shall cease, and the Company shall continue as the surviving corporation under the laws of the State of Delaware and shall continue under the name "IMC Inorganic Chemicals Inc." as a wholly owned subsidiary of Buyer (the Company as a surviving corporation in the Merger is sometimes referred to herein as the "Surviving Corporation"). 2.3 Closing. The closing of the merger provided for herein (the "Closing") will take place at the offices of Winthrop, Stimson, Putnam & Roberts at One Battery Park Plaza, New York, New York at 10:00 a.m. (local time) on the date which is two (2) business days following the satisfaction of the conditions provided in Sections 7.5 and 8.5, or at such other time and place as the Company and the Buyer shall agree (the date of the Closing being the "Closing Date"). 2.4 Effective Time. As soon as practicable following the satisfaction or waiver of the conditions set forth in Articles 7 and 8, the parties shall file with the Secretary of State of the State of Delaware a certificate of merger (the "Certificate of Merger") executed in accordance with the relevant provisions of the DGCL and shall make all other filings or recordings required under the DGCL. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware, or at such other time as is permissible in accordance with the DGCL and as the Buyer and the Company shall agree and as specified in the Certificate of Merger (the time the Merger becomes effective being the "Effective Time"). 2.5 Effects of the Merger. At the Effective Time: (a) The separate existence of Newco shall cease and Newco shall be merged with and into the Company with the Company continuing as the surviving corporation. At the Effective Time, and without any further action on the part of Newco or the Company, the Certificate of Incorporation and By- laws of Newco as in effect at the Effective Time shall be the Certificate of Incorporation and By- laws of the Surviving Corporation following the Merger until thereafter changed or amended as provided therein or by applicable law. The directors of Newco at the Effective Time shall be the directors of the Surviving Corporation following the Merger and until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as may be the case. The officers of the Company immediately prior to the Effective Time shall be the officers of the Surviving Corporation until their respective successors are duly elected and qualified. (b) The Merger shall have all the effects set forth in the appropriate provisions of the DGCL and as set forth in this Agreement. 2.6 Termination. This Agreement may be terminated and abandoned at any time prior to the Effective Time: (a) by the mutual written consent of the Buyer and the Company; (b) by either the Buyer or the Company, if the transactions contemplated hereby are not consummated on or before June 30, 1998 (or such later date as may be agreed upon in writing by the parties hereto) (the "Final Termination Date"); (c) by the Buyer, if the Company shall have breached any of its representations, warranties or obligations hereunder, but only if such breach is continuing on the Final Termination Date and only if such breach shall have a Material Adverse Effect; or (d) by the Company, if the Buyer shall have breached in any material respect any of its representations or warranties or obligations hereunder, but only if such breach is continuing on the Final Termination Date and only if such breach shall have a material adverse effect on Buyer's ability to perform its obligations under the Agreement. 2.7 Effect of Termination. In the event of termination of this Agreement by either the Company or the Buyer as provided in Section 2.6, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of the Company or the Buyer or their respective officers or directors, except with respect to Sections 4.11, 5.5, 10.1 and 11.1. Notwithstanding the immediately preceding sentence, no termination of this Agreement under paragraphs (c) and (d) of Section 2.6 shall constitute a waiver of any rights of the party exercising such right of termination. ARTICLE 3 EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES 3.1 Effect on Capital Stock. As of the Effective Time, by virtue of the Merger and without any action on the part of the Company, the Buyer, or Newco: (a) Capital Stock of Newco. The shares of common stock of Newco, par value $.01 per share ("Newco Common Stock"), which are issued and outstanding immediately prior to the Effective Time, shall be converted into and become shares of Company Common Stock at a rate of one (1) share of Company Common Stock for each share of Newco Common Stock. (b) Capital Stock of Company. (i) Subject to Section 3.1(c), (d) and (e), each share of Company Common Stock shall be converted into and become a right to receive $246.90 in cash plus, if the Effective Time shall not have occurred on or before April 1, 1998, an amount, measured on a month by month basis, equal to the result of the following formula: X((P/365)Y), where X is the number of days after March 31, 1998 that the Closing shall occur, P is the Applicable Interest Rate and Y is $246.90. As used herein, the term "Applicable Interest Rate" shall mean, for the period from April 1, 1998 through April 30, 1998, 15%, for the period from May 1, 1998 through May 31, 1998, 17% and for the period commencing June 1, 1998, 19%; (ii) Each share of Company Convertible Preferred Stock shall be converted into the right to receive (A) an amount in cash equal to accrued and unpaid dividends in respect thereof as of the Closing Date, and (B) the right to receive, for each share of Company Common Stock into which such share of Company Convertible Preferred Stock is convertible, $246.90 in cash plus, if the Effective Time shall not have occurred on or before April 1, 1998, an amount, measured on a month by month basis, equal to the result of the following formula: X((P/365)Y), where X is the number of days after March 31, 1998 that the Closing shall occur, P is the Applicable Interest Rate and Y is $246.90; and (iii) Each share of Company Nonconvertible Preferred Stock shall be converted into the right to receive in cash the liquidation value thereof plus any accrued and unpaid dividends in respect thereof as of the Closing Date. (c) Cancellation of Treasury Stock and Certain Company Stock. Any shares of Company Stock that are owned immediately prior to the Effective Time by any of the parties hereto or by any other wholly owned subsidiary of the Company, including any such common stock which constitutes treasury stock in the hands of the holder thereof, shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor, and each holder of a certificate representing any such shares shall cease to have any rights with respect thereto. (d) Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, shares of Company Stock issued and outstanding immediately prior to the Effective Time held by a holder (if any) who has the right to demand payment for and an appraisal of such shares in accordance with Section 262 of the DGCL (or any successor provision) ("Dissenting Shares") shall not be converted into a right to receive Merger Consideration (but shall have the rights set forth in Section 262 of the DGCL (or any successor provision)) unless such holder fails to perfect or otherwise loses such holder's right to such payment or appraisal, if any. If, after the Effective Time, such holder fails to perfect or loses any such right to appraisal, each such share of such holder shall be treated as a share that had been converted as of the Effective Time into the right to receive Merger Consideration, without interest, in accordance with this Section 3.1. The Company shall give Buyer (i) prompt notice of any demands for appraisal of Company Stock received by the Company and (ii) the opportunity to participate in and direct all negotiations and proceedings with respect to any such demands. The Company shall not, without the prior written consent of Buyer, make any payment with respect to, or settle, offer to settle or otherwise negotiate, any such demands. (e) Cancellation and Retirement of Company Stock. As of the Effective Time, all shares of Company Stock (other than shares referred to in Section 3.1(d)) issued and outstanding immediately prior to the Effective Time, shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate representing any such shares of Company Stock shall, to the extent such certificate represents such shares, cease to have any rights with respect thereto, except the right to receive the Merger Consideration allocable to the shares represented by such certificate set forth above, to be paid in consideration therefor, without interest, upon surrender of such certificate in accordance with Section 3.3. 3.2 Treatment of Options (a) Immediately prior to the Effective Time, each outstanding stock option to purchase shares of Company Stock (a "Company Stock Option") granted under the Harris Chemical Group, Inc. 1995 Stock Option Plan (the "Stock Plan"), whether or not then exercisable, shall be canceled by the Company, and at the Effective Time, the holder thereof shall be entitled to receive from the Company in consideration for such cancellation a cash value equal to (A) the product of (x) the number of shares of Company Stock previously subject to such Company Stock Option and (y) the excess, if any, of the cash value of the Merger Consideration allocable to each such share over the exercise price per share, previously specified in such Company Stock Option, reduced by (B) the amount of withholding or other taxes required by law to be withheld. Prior to the Effective Time, the Company shall use its best efforts to obtain all necessary consents or releases from holders of Company Stock Options and to take all such other lawful action as may be necessary to give effect to the transactions contemplated by this Section 3.2(a). (b) Except as provided herein or as otherwise agreed by Buyer and the Company, the Stock Plan and any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of Company shall terminate as of the Effective Time. (c) Prior to the Effective Time, the Board of Directors (or, if appropriate, any committee administering the Stock Plan) shall adopt such resolutions or take such actions as are necessary to carry out the terms of this Section 3.2. 3.3 Exchange of Certificates. (a) Exchange Agent. Prior to the Effective Time, Company shall appoint Chase Manhattan Bank to act as exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. As of the Effective Time, Buyer shall have deposited with the Exchange Agent, for the benefit of the holders of shares of Company Stock, for exchange in accordance with this Article 3, the aggregate amount of cash payable, pursuant to Section 3.1 hereof in exchange for outstanding shares of Company Stock (the "Exchange Fund"). (b) Exchange Procedures. (i) At the Effective Time or as soon as reasonably practicable thereafter, the Exchange Agent shall mail (or at the request of a holder of Company Stock, hand deliver) to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Stock whose shares were converted into the right to receive cash pursuant to Section 3.1: (A) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the certificates representing such shares of Company Stock shall pass, only upon delivery of the certificates representing such shares of Company Stock, to the Exchange Agent and shall be in such form and have such other provisions as the Exchange Agent may reasonably specify), and (B) instructions for use in effecting the surrender of the certificates representing such shares of Company Stock, in exchange for cash. (ii) Upon surrender to the Exchange Agent of a certificate or certificates representing shares of Company Stock and acceptance thereof by the Exchange Agent, the holder thereof shall be entitled to the amount of cash into which the number of shares of Company Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Stock and if such certificates are presented to the Company for transfer, they shall be canceled against delivery of the Merger Consideration allocable to the Shares represented by such certificate or certificates. If any Merger Consideration is to be remitted to a name other than that in which the certificate for the Company Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed, or otherwise in proper form for transfer and that the Person requesting such exchange shall pay to the Company, or its transfer agent, any transfer or other taxes required by reason of the payment of Merger Consideration to a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Company or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.3(b), each certificate for shares of Company Stock shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration allocable to the shares represented by such certificate as contemplated by Section 3.1. No interest wil be paid or will accrue on any amount payable as Merger Consideration. Subject to completion of the documentation referred to above, the Merger Consideration shall be paid at the Effective Time to holders of Company Stock (c) No Further Ownership Rights in Company Stock. Merger Consideration paid upon the surrender for exchange of certificates representing shares of Company Stock in accordance with the terms of this Article 3 shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Stock represented by such certificates. (d) Termination of Exchange Fund. Any portion of the Exchange Fund (including any interest and other income received by the Exchange Agent in respect of all such funds) which remains undistributed to the holders of the certificates representing shares of Company Stock for six months after the Effective Time shall be delivered to the Company, upon demand, and any holders of shares of Company Stock prior to the Merger who have not theretofore complied with this Article 3 shall thereafter look only to the Company and only as general creditors thereof for payment of their claim for Merger Consideration to which such holders may be entitled. (e) No Liability. No party to this Agreement shall be liable to any Person in respect of any amount from the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Stock shall not have been surrendered in exchange for Merger Consideration prior to five years after the Effective Time (or immediately prior to such earlier date on which any Merger Consideration would otherwise escheat to or become the property of any Governmental Entity), any such amount shall, to the extent permitted by applicable law, become the property of the Company, free and clear of all claims or interest of any Person previously entitled thereto. (f) Investment of Exchange Fund. The Exchange Agent shall invest the cash included in the Exchange Fund as directed by the Buyer, provided that such investment shall be (i) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof having maturities of not more than six months from the Effective Time, (ii) certificates of deposit, eurodollar time deposits and bankers' acceptances with maturities not exceeding six months and overnight bank deposits with any commercial bank, depository institution or trust company incorporated or doing business under the laws of the United States of America, any state thereof or the District of Columbia, provided that such commercial bank, depository institution or trust company has, at the time of investment, (A) capital and surplus exceeding $250 million and (B) outstanding short-term debt securities which are rated at least A-1 by Standard & Poor's Rating Group Division of The McGraw-Hill Companies, Inc. or at least P-1 by Moody's Investors Services, Inc. or carry an equivalent rating by a nationally recognized rating agency if both of the two named rating agencies cease to publish ratings of investment, (iii) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (i) and (ii) above entered into with any financial institution meeting the qualifications specified in clause (ii) above, (iv) commercial paper having a rating in the highest rating categories from Standard & Poor's Rating Group Division of The McGraw-Hill Companies, Inc. or Moody's Investors Services, Inc. or carrying an equivalent rating by a nationally recognized rating agency if both of the two named rating agencies cease to publish ratings of investments and in each case maturing within six months of the Effective Time and (v) money market mutual or similar funds having assets in excess of $1 billion. Any interest and other income resulting from such investments shall be paid to the Surviving Corporation. (g) Lost Certificates. In the event any certificate or certificates representing shares of Company Stock shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate or certificates to be lost, stolen or destroyed, the Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate the Merger Consideration deliverable in respect thereof as determined in accordance with this Article 3, provided that the Person to whom the Merger Consideration is paid shall, as a condition precedent to the payment thereof, indemnify Buyer in an agreement reasonably satisfactory to it against any claim that may be made against Buyer or the Company with respect to the certificate claimed to have been lost, stolen or destroyed. ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE COMPANY Except as otherwise set forth in any Schedule attached hereto, the Company represents and warrants to the Buyer with respect to itself and its Subsidiaries: 4.1 Organization of the Company and the Subsidiaries; Authority. The Company and each Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all the requisite corporate power and authority to carry on its business as now being conducted and to own and use the properties owned and used by it. Except as disclosed on Schedule 4.1, the Company and each of its Subsidiaries is qualified to do business in each jurisdiction in which the nature of its business requires it to be so qualified, except to the extent the failure to so qualify has not had, and would not reasonably be expected to have, a Material Adverse Effect. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of the Company. The Board of Directors of the Company has unanimously adopted resolutions approving this Agreement and the Merger, determined that the terms of the Merger are fair to, and in the best interests of, the Company's stockholders and recommended that the Company's stockholders approve and adopt this Agreement. Assuming the due authorization, execution and delivery hereof by the Buyer, this Agreement has been duly executed and delivered by the Company and constitutes the valid, binding and enforceable obligation of the Company, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or by general equitable principles. 4.2 Capitalization of the Company; Ownership. The authorized, issued and outstanding capital stock of the Company is set forth on Schedule 4.2. All of the issued and outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable. Except as disclosed on Schedule 4.2, there are no outstanding options, warrants or other rights of any kind to acquire any additional shares of capital stock of the Company or securities convertible into or exchangeable for, or which otherwise confer on the holder thereof any right to acquire, any such additional shares, nor is the Company committed to issue any such option, warrant, right or security. As of December 31, 1997, the aggregate of (i) the liquidation value of the Company Non-Convertible Preferred Stock plus (ii) the accrued and unpaid dividends in respect of the Company Non- Convertible Preferred Stock plus (iii) the accrued and unpaid dividends in respect of the Company Convertible Preferred Stock is equal to $6,687,710. 4.3 Subsidiaries of the Company. Schedule 4.3 sets forth the Subsidiaries of the Company and the Company's equity interest in each such Subsidiary. Except as set forth on Schedule 4.3, all outstanding capital stock or other equity interests of each Subsidiary owned by the Company is owned free and clear of any and all liens, claims, security interests or options, except for restrictions on transfer under federal and state securities laws. All shares of capital stock of each Subsidiary which is a corporation have been validly issued and are fully paid and nonassessable. There are no outstanding options, warrants or other rights of any kind to acquire any additional shares of capital stock of any Subsidiary or securities convertible into or exchangeable for any additional shares of capital stock of any Subsidiary, nor is any Subsidiary committed to issue any such option, warrant, right or security. There are no outstanding options, warrants or other rights of any kind to acquire any additional equity interests of any Subsidiary, nor is any Subsidiary committed to issue any such option, warrant or right. Except as set forth on Schedule 4.3, the Company does not have, directly or indirectly, any equity interest in any other corporation, joint venture, partnership, limited liability company or other entity. 4.4 Ability to Carry Out the Agreement. Except as disclosed on Schedule 4.4, neither the Company nor any Subsidiary is subject to or bound by any provision of: (i) any law, statute, rule, regulation, or judicial or administrative decision, (ii) any articles or certificate of incorporation or by-laws, (iii) any mortgage, deed of trust, lease, note, stockholders' agreement, partnership agreement, bond, indenture, license, permit, trust, or other material instrument or agreement, or (iv) any judgment, order, writ, injunction, or decree of any court, governmental body, administrative agency or arbitrator, that would prevent or be violated by or under which there would be a conflict, breach or default as a result of, nor is there required any consent of any Person under any contract or agreement required to be disclosed on and actually disclosed on Schedule 4.10 which has not been obtained for the execution, delivery and performance by the Company of this Agreement and the transactions contemplated hereby, other than any violations, defaults or failures to obtain consents which have not had and are not reasonably likely to have a Material Adverse Effect or a material adverse effect on the ability of the Company to perform its obligations under this Agreement. 4.5 Consents and Approvals. Except as disclosed on Schedule 4.5, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity, is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby, the failure of which to obtain would have a Material Adverse Effect. No state anti-takeover statutes are applicable to the Merger, this Agreement or the transactions contemplated hereby. The Company has not adopted or executed, and is not a party or subject to, any "Shareholder Rights Plan" or similar instrument, plan or agreement. 4.6 Financial Statements. (a) Attached hereto as Schedule 4.6 are copies of (i) the audited balance sheet for the Company on a consolidated basis with the Subsidiaries as of March 29, 1997, (ii) the interim balance sheet for the Company on a consolidated basis with the Subsidiaries (the "Reference Balance Sheet") as of in the case of the U.S. operations, September 27, 1997 and, in the case of the European operations, September 30, 1997 (the "Reference Balance Sheet Date"), (iii) the audited statements of operations (including the profit and loss and income statements) for the Company on a consolidated basis with the Subsidiaries for the fiscal year ended March 29, 1997, and (iv) interim Statements of Operations for the Company on a consolidated basis with the Subsidiaries ("Reference Statement of Operations"). Each of the Reference Balance Sheet and the Reference Statement of Operations is attached hereto as part of Schedule 4.6 and has been prepared in conformity with the Accounting Principles and fairly present (subject, in the case of the unaudited statements, to normal audit adjustments, none of which were or are expected, individually or in the aggregate, to be material in amount) the consolidated financial position of the Company and its Subsidiaries as at the dates thereof and the consolidated results of their operations for the periods then ended. (b) Except for liabilities or obligations reflected or reserved against in the Reference Balance Sheet or reflected in the Schedules hereto, to the knowledge of the Company, neither the Company nor any of the Subsidiaries has any material liabilities, whether absolute, accrued, contingent or otherwise, that would be required by the Accounting Principles to be reflected on the balance sheets of the Company and the Subsidiaries, that is not reflected or reserved against in the Reference Balance Sheet or the Schedules hereto, except for liabilities or obligations incurred in the ordinary course of business consistent with past practice since the Reference Balance Sheet Date. 4.7 Title to Properties; Absence of Liens. Except as disclosed on Schedule 4.7(a), the Company and each Subsidiary: (i) has good and marketable title to all of its owned real properties; (ii) possesses a valid leasehold interest in its leased real properties; and (iii) has title to, or subsisting leasehold interests in, all of its personal properties and assets used solely in the business of the Company or such Subsidiary or reflected on the Reference Balance Sheet (except for property and assets disposed of since the Reference Balance Sheet Date or acquired since the Reference Balance Sheet Date and required by the Accounting Principles to be recorded on the balance sheets of the Company or the Subsidiaries), free and clear of any liens, security interests and other encumbrances ("Encumbrances"), except for (a) Encumbrances set forth on Schedule 4.7(b), (b) Encumbrances reflected in the Reference Balance Sheet or created in the ordinary course of business subsequent to the Reference Balance Sheet Date and which are not material, (c) Encumbrances securing indebtedness of less than $1,000,000 of record or otherwise that do not and will not materially interfere with the present use by the Company or the Subsidiaries of the property subject thereto or affected thereby or which otherwise have not had a Material Adverse Effect, (d) Encumbrances for taxes, assessments or governmental charges, or landlords', mechanics', workmen's, materialmen's or similar liens, in each case that are not delinquent or which are being contested in good faith, (e) Encumbrances that are reflected in the title reports or surveys, if any, delivered or otherwise made available to the Buyer in connection with the transactions contemplated hereby and (f) Encumbrances incurred in the ordinary course of business (such Encumbrances listed in clauses (a) - (f) above being referred to herein as "Permitted Encumbrances"). Neither the whole nor any part of the owned real properties or any real property leased, used or occupied by the Company is subject to any pending suit for condemnation or other taking by any public authority or other Person, and, to the knowledge of the Company, no such condemnation or other taking is threatened or contemplated. 4.8 Litigation. Except as disclosed on Schedule 4.8, there is no action, suit or proceeding pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary at law, in equity or otherwise, in, before, or by any court or governmental agency or authority which is reasonably likely to have a Material Adverse Effect. 4.9 Compliance with Law. Except as disclosed on Schedule 4.9, to the knowledge of the Company, the business of the Company and the Subsidiaries is being conducted in all material respects in compliance with all laws, ordinances and regulations and other requirements of any governmental entity applicable to the Company and the Subsidiaries. All governmental approvals, permits and licenses required by the Company and each Subsidiary in connection with the conduct of their respective businesses have been obtained and are in full force and effect and are being complied with in all material respects. 4.10 Contracts. (a) Schedule 4.10 sets forth each written contract or agreement outstanding as of the date hereof to which the Company or any Subsidiary is a party and which (i) involves future payment or receipt of in excess of $1,000,000 or future performance or receipt of services or delivery or receipt of goods and materials, in each case with an aggregate value in excess of $1,000,000, including but not limited to sale and purchase agreements, distributorship agreements and loan agreements, notes and other financing documents but excluding rock salt sales agreements which have a term of less than twelve (12) months; (ii) is a guarantee in respect of indebtedness of any Person (other than the Company or its Subsidiaries) which may involve future payment in excess of $1,000,000 or is a mortgage, security agreement or other collateral arrangement securing indebtedness of any Person (other than the Company or its Subsidiaries) in excess of $1,000,000 and creating Encumbrances on properties and assets of the Company or its Subsidiaries with an aggregate value in excess of $1,000,000; (iii) is a lease providing for monthly rental payments in excess of $25,000 (exclusive of charges for taxes, insurance, utilities, maintenance and repair); (iv) is an employment or consulting contract pursuant to which the Company or its Subsidiaries may reasonably be expected to make payment in excess of $250,000 in 1997 or thereafter; (v) is a technology license agreement material to the business of the Company and its Subsidiaries, taken as a whole or any Significant Business; (vi) (A) limits the Company's or any Subsidiary's freedom to compete in any line of business or in any geographical area or with any person or entity, or (B) prohibits the Company or any of its Subsidiaries from disclosing any confidential information where such prohibition on disclosure is likely to have a Material Adverse Effect; (vii) is a contract or commitment to sell, lease or otherwise dispose of any material asset other than in the ordinary course of business consistent with past practice; (viii) is any other material agreement, contract, commitment or series of related agreements, contracts or commitments which, in any case, is subject to change of control provisions or involves payments or receipts of more than $1,000,000 over the life of such agreements, contracts or commitments; or (ix) any contract or agreement (or other obligation) of any third party pursuant to which the third party has agreed to assume, retain or otherwise indemnify the Company against any liability. (b) Except as set forth in Schedule 4.10, each of the leases, contracts and other agreements listed in Schedules 4.7, 4.10, 4.13, 4.17 and 4.18 constitutes a valid and binding obligation of the parties thereto and is in full force and effect other than as to certain provisions thereof, the aggregate effect of which would not deprive any party thereto of the practical realization of the benefits thereof and except as limited by (A) applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and other laws affecting creditors' rights generally, (B) general equitable principles, (C) requirements of reasonableness, good faith and fair dealing, and (D) additionally, in the case of indemnities and exculpatory provisions (including certain waivers), public policy, and (except for those leases, contracts and other agreements which by their terms will expire prior to the Effective Time) will, subject to the qualification referred to above, continue in full force and effect after the Effective Time, in each case without breaching the terms thereof or resulting in the forfeiture or impairment of any rights thereunder and without the consent, approval or act of, or the making of any filing with, any other party. There is no default by the Company or any of the Subsidiaries or, to the knowledge of the Company, by any third party, under any contract or agreement required to be described in and actually described on Schedule 4.10. 4.11 Brokers and Intermediaries. Other than Chase Securities Inc., neither the Company nor any Subsidiary has employed any broker, finder, advisor or intermediary in connection with the transactions contemplated by this Agreement which would be entitled to a broker's, finder's or similar fee or commission in connection therewith or upon the consummation thereof. Any such fees due to Chase Securities Inc. shall be paid by the Company. If the Company receives an opinion from Chase Securities Inc. as to the fairness, from a financial point of view, of the consideration to be received by the Company's stockholders in the Merger, a copy of such opinion shall be delivered to Buyer after the Effective Time. 4.12 Tax Matters. Except as disclosed on Schedule 4.12, (a) all Returns required to be filed in respect of the business of the Company and its Subsidiaries on or prior to the Closing Date have been or will be filed when due in timely fashion and were or will be correct and complete in all material respects; (b) all Taxes shown on such Returns that are due on or prior to the Closing Date have been or will be paid when due in timely fashion or adequate accruals have been or will be established for the payment of such Taxes; (c) to the knowledge of the Company, there is no action, suit, proceeding, investigation, audit or claim now pending regarding any Taxes relating to the income, properties or operations of the businesses of the Company and its Subsidiaries; (d) there are no agreements for the extension of the time for assessment of any Taxes relating to the income, properties or operations of the businesses of the Company and its Subsidiaries; (e) all Taxes relating to the income, properties or operations of the business of the Company and its Subsidiaries, which Taxes the Company or any Subsidiary is required by law to withhold or collect have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable; and (f) there are no Tax sharing or allocation agreements involving the Company or any Subsidiary and any other entity other than the tax sharing agreement among the Company and certain of its subsidiaries dated September 24, 1993. Except as disclosed on Schedule 4.12, neither the Company nor any Subsidiary has been a member of any Company Group other than the Company Group of which the Company is now a member (other than Company Groups of which it may have been a member prior to it becoming a member of a Company Group which includes the Company). As a result of the transactions contemplated by this Agreement, none of the Company nor any Subsidiary will be obligated to make a payment to an individual that would be a "parachute payment" to a "disqualified individual" as those terms are defined in Section 280G of the Code, without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future. Neither the Company nor any Subsidiary has filed a consent under Section 341(f) of the Code, concerning collapsible corporations. 4.13 Employee Benefits. (a) Schedule 4.13 sets forth all employee benefit plans (as defined in Section 3(3) of ERISA) and all bonus, deferred compensation, incentive compensation, severance or termination pay, change in control compensation and death benefit plans, agreements or arrangements, maintained or contributed to by, and applicable to, employees of the Company or any Subsidiary (the "Company Benefit Plans") and all material fringe benefit plans or programs maintained by the Company or any Subsidiary and applicable to employees of any Company or any Subsidiary. Except as provided in Schedule 4.13, true copies of each Company Benefit Plan have been delivered to Buyer. (b) All Company Benefit Plans have been administered in substantial compliance with their terms and with the requirements of all applicable laws, including for U.S. plans, but not limited to, ERISA and the Code. Without limiting the generality of the foregoing: (i) with respect to any Company Benefit Plan that is an "employee pension benefit plan" as such term is defined in Section 3(2) of ERISA (each a "Retirement Plan"), neither the Company nor any Subsidiary nor, to the knowledge of the Company, any trustee or administrator of such Retirement Plan, has engaged in a "prohibited transaction," as defined in Section 4975 of the Code, or a transaction prohibited by Section 406 of ERISA, that could give rise to any material tax or penalty under such Section 4975; (ii) except as disclosed on Schedule 4.13, no Retirement Plan is subject to Title IV of ERISA or to the minimum funding requirements of Section 412 of the Code or Part 3 of Title I of ERISA; and (iii) each Retirement Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service, and to the Company's knowledge nothing has occurred and no condition exists that could reasonably be expected to cause the loss of such qualification. (c) Neither the Company nor the Subsidiaries nor any other current or former member of the same controlled group of organizations as the Company and the Subsidiaries (within the meaning of Section 414(b), (c), (m) or (o) of the Code) has taken any action, nor has any event occurred, which has resulted or will likely result in any liability under Title IV of ERISA, including any withdrawal liability with respect to any "multiemployer plan" as defined in Section 4001(a) of ERISA, which liability will become a liability of the Buyer or any Affiliate of the Buyer (including but not limited to the Companies and their Subsidiaries) following the Closing. (d) Except as disclosed in Schedule 4.13, neither the Company nor any Subsidiary has any current or projected liability in respect of post-employment or post-retirement health, medical, or life insurance benefits for retired, former, or current employees, except as required to avoid excise tax under Section 4980B of the Code. 4.14 Intellectual Property. (a) Set forth on Schedule 4.14 hereto is a list of all material patents, trademarks, trade names, service marks and copyrights that are owned or licensed by the Company or any of the Subsidiaries and, except as set forth on Schedule 4.14, are necessary for the operation of the Company's businesses as presently conducted (the "Intellectual Property"). Except as disclosed on Schedule 4.14, (i) to the knowledge of the Company, the Company or its respective Subsidiaries owns or possesses, or owns or possesses licenses or other valid rights to use, all Intellectual Property used by it and set forth on Schedule 4.14; and (ii) to the knowledge of the Company, the conduct of the business of the Company and each Subsidiary as now being conducted does not infringe or conflict with, nor has it been alleged to infringe or conflict with, any patents, trademarks, trade names or copyrights or other intellectual property rights of others. (b) To the knowledge of the Company, there is no claim or liability for trademark, trade name, patent or copyright infringement as to any products manufactured or sold in the businesses of the Company and the Subsidiaries. (c) To the knowledge of the Company, except as set forth on Schedule 4.14, on the date hereof (i) there are no pending re-examination, opposition, interference, cancellation or other administrative proceedings with respect to any of the Intellectual Property, and (ii) no order, holding, decision or judgment has been rendered by any court of law or authority, and no agreement, consent or pending litigation in a court of law exists to which the Company or any Subsidiary is a party, which would prevent the Company, any Subsidiary or the Buyer from using any of the Intellectual Property. 4.15 Environmental Matters. Except as set forth on Schedule 4.15, to the knowledge of the Company, each of the representations and warranties set forth in subsections (a) through (e) of this Section 4.15 is true and correct with respect to each parcel of real property owned or leased by the Company or any of the Subsidiaries (individually, a "Property" and collectively, the "Properties"): (a) The Properties do not contain, by activities or operations of the Company or any Subsidiary, in, on, or under, including, without limitation, the soil and groundwater thereunder, any Hazardous Materials, except in compliance in all material respects with all applicable Environmental Laws; (b) The Properties and all operations and facilities at the Properties are in compliance in all material respects with all applicable Environmental Laws and all governmental approvals, permits and licenses required for the Properties, and all operations and facilities of the Company or the Subsidiaries under applicable Environmental Laws have been obtained and are in full force and effect and are being complied with in all material respects; (c) Neither the Company nor any Subsidiary, nor any of their respective Affiliates has received any written governmental complaint, notice of violation, alleged violation, or investigation or notice of potential liability or of potential responsibility regarding environmental protection or any health or safety matters or permit compliance with regard to the Properties; (d) Hazardous Materials have not been generated, stored, transported, treated or disposed of on the Properties or transferred from the Properties to any other location except in compliance in all material respects with all applicable Environmental Laws in effect at the time of such activities; (e) There are no governmental, administrative actions or judicial proceedings pending or threatened under any applicable Environmental Laws to which the Company or any Subsidiary is named as a party with respect to the Properties or any Hazardous Materials transferred from the Properties, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, under any applicable Environmental Law with respect to any of the Properties; and (f) The water use rights of the Company and its Subsidiaries are sufficient to conduct their respective businesses as currently conducted in all material respects. Anything in this Agreement to the contrary notwithstanding, this Section 4.15 shall be the exclusive representation and warranty relating to environmental matters. 4.16 Absence of Certain Changes. (a) Except as set forth in Schedule 4.16(a), since the Reference Balance Sheet Date, there has been: (i) no material adverse change in the assets, business, financial condition or operations of the Company and its Subsidiaries taken as a whole or any Significant Business and no fact or condition exists or to the Company's knowledge is threatened which might reasonably be expected to cause such a material adverse change in the future; and (ii) no damage, destruction, loss or claim, whether or not covered by insurance, or condemnation or other taking which has a Material Adverse Effect. (b) Except as set forth in Schedule 4.16(b) or as expressly permitted by this Agreement, between the Reference Balance Sheet Date and the date hereof, neither the Company nor any Subsidiary has: (i) purchased, sold, leased, transferred or assigned or agreed to purchase, sell, lease, transfer or assign, any of its assets, tangible or intangible involving more than $1,000,000 except in the ordinary course of business consistent with past practice; (ii) entered into any contract, lease, sublease, license or sublicense (or series of related contracts, leases, subleases, licenses and sublicenses) involving more than $1,000,000 except in the ordinary course of business consistent with past practices; (iii) accelerated, terminated, modified, or canceled any contract, lease, sublease, license or sublicense (or series of related contracts, leases, subleases, licenses and sublicenses) involving more than $1,000,000 to which the Company or any Subsidiary is a party or by which such company is bound, except in the ordinary course of business consistent with past practices; (iv) imposed any Encumbrances (except for Permitted Encumbrances) upon any of its real property; (v) made any capital expenditure (or series of related capital expenditures) involving more than $1,000,000, except in the ordinary course of business consistent with past practice; (vi) made any capital investment in, any loan to, or any acquisition of the securities or assets of any other person (or series of related capital investments, loans, and acquisitions) involving more than $1,000,000, except in the ordinary course of business consistent with past practice; (vii) created, incurred, assumed, or guaranteed any indebtedness for borrowed money (including capitalized lease obligations) involving more than $250,000 singly or $1,000,000 in the aggregate, except in the ordinary course of business consistent with past practice; (viii) granted any license or sublicense of any rights under or with respect to any material Intellectual Property; (ix) issued, sold, or otherwise disposed of any of its capital stock or any capital stock of any subsidiary, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion or exercise) any of its capital stock or any capital stock of any Subsidiary; (x) declared, set aside, or paid any dividend or distribution with respect to its capital stock or redeemed, purchased, or otherwise acquired any of its capital stock (other than dividends on the Company Convertible Preferred Stock and Company Non- Convertible Preferred Stock); (xi) made any loan to, or entered into any other transaction with, any of its directors, officers, or employees outside the ordinary course of business giving rise to any claim or right on its part against the person or on the part of the person against such Company; (xii) entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement outside the ordinary course of business consistent with past practice; (xiii) granted any increase in the base compensation of any of its directors, officers, and key employees; (xiv) adopted any (A) bonus, (B) profitsharing, (C) incentive compensation, (D) pension, (E) retirement, (F) medical, hospitalization, life, or other insurance or (G) severance plan; (xv) made any other material change in employment terms for any of its directors, officers, and employees outside the ordinary course of business consistent with past practice; (xvi) made or pledged to make any capital contribution (other than to a wholly owned subsidiary) or made or pledged to make any charitable contribution or contributions in excess of $10,000, individually, or $100,000 in the aggregate; or (xvii) contractually committed to do any of the foregoing. 4.17 Employees, Labor Matters, etc. Except as set forth on Schedule 4.17, neither the Company nor any Subsidiary is a party to or bound by any collective bargaining or other labor agreement, and there are no labor unions or other organizations representing or, to the knowledge of the Company, purporting to represent or attempting to represent any employees employed by the Company or any Subsidiary. Except as set forth on Schedule 4.17, since the Reference Balance Sheet Date, there has not occurred or, to the knowledge of the Company, been threatened any material strike, slowdown, picketing, work stoppage, concerted refusal to work overtime or other similar labor activity with respect to any employees of the Company or any Subsidiary. Except as set forth on Schedule 4.17, there are no material labor disputes currently subject to any grievance procedure, arbitration or litigation and there is no representation petition pending or, to the knowledge of the Company, threatened with respect to any employee of the Company or any Subsidiary. To the knowledge of the Company, the Company and all its Subsidiaries have complied in all material respects with all applicable laws pertaining to the employment or termination of employment of its employees, including, without limitation, all such applicable laws relating to labor relations, equal employment opportunities, fair employment practices, prohibited discrimination or distinction and other similar employment activities. 4.18 Affiliate Transactions. Schedule 4.18 contains a list of all contracts, agreements, transactions or commitments between any officer, employee or director of the Company or any Subsidiary, any family member of any of the foregoing or any other Affiliate of any of the foregoing (other than the Company or a Subsidiary), on the one hand, and the Company or any Subsidiary, on the other hand, other than (i) compensation paid as part of the employment relationship for services rendered (including directors' fees), (ii) contributions by the Company or any Subsidiary or payments of benefits under any defined benefit programs of the Company or any Subsidiary (collectively, the "Affiliate Transactions"), that are currently in effect or that will bind the Company or any Subsidiary after the Closing, (iii) the Stockholders Agreement or (iv) any stock option grant pursuant to the Stock Plan. Except as set forth in Schedule 4.18, no severance, "change-in control", termination or other similar payment will be or become due at the Effective Time. 4.19 Availability of Assets and Legality of Use. Except as set forth in Schedule 4.19, the assets owned or leased by the Company constitute all the assets used in its business and in all material respects are in sufficient condition to operate the businesses consistent with past practices. 4.20 Insurance. Schedule 4.20 sets forth a list and brief description (including nature of coverage, limits, deductibles, premiums and the loss experience for the most recent three years with respect to each type of coverage) of all policies of insurance maintained, owned or held by the Company during the period from April 1, 1995 (current insurance in the case of property and casualty insurance) up to and including the date hereof. The Company has complied with each of such insurance policies in all material respects and has not failed to give any notice or present any claim, with respect to claims in excess of $1,000,000 thereunder in a due and timely manner. 4.21 HCNA SEC Documents. (a) The Company has furnished or made available, (or, in the case of future filings will furnish) to Buyer a true and complete copy of each report, schedule, registration statement and definitive proxy statement filed by Harris Chemical North America, Inc., a wholly owned Subsidiary ("HCNA"), with the SEC since January 1, 1996 (as such documents have since the time of this Agreement been amended, the "HCNA SEC Documents") which are all the documents (other than preliminary material) that HCNA was required to file with the SEC since such date. (b) As of their respective dates, the HCNA SEC Documents complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such HCNA SEC Documents, and none of the HCNA SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Except as set forth in Schedule 4.21, there are no material changes to any of the statements contained in the HCNA SEC Documents. (c) The financial statements of HCNA included in the HCNA SEC Documents comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of the unaudited statements, as permitted by Form 10-Q of the SEC) and fairly present (subject, in the case of the unaudited statements, to normal, recurring adjustments) the consolidated financial position of HCNA and its consolidated subsidiaries as at the dates thereof and the consolidated results of their operations and cash flows for the periods then ended. 4.22 Disclaimer of Other Representations and Warranties; Knowledge; Disclosure. (a) Neither the Company nor any Subsidiary makes, or has made, any representations or warranties relating to the Company, any Subsidiary, or the business of the Company or any Subsidiary or otherwise in connection with the transactions contemplated hereby other than those expressly set forth herein which are made by the Company. Without limiting the generality of the foregoing, neither the Company nor any Subsidiary has made, nor shall be deemed to have made, any representations or warranties in the Information Memorandum relating to the businesses of the Companies and their Subsidiaries prepared by Chase Securities Inc. on behalf of the Company and supplied to the Buyer prior to the date hereof (the "Information Memorandum") or in any presentation of the businesses of the Company and the Subsidiaries in connection with the transactions contemplated hereby, and no statement contained in the Information Memorandum or made in any such presentation shall be deemed a representation or warranty hereunder or otherwise. It is understood that any cost estimates, projections or other predictions, any data, any financial information or any memoranda or offering materials or presentations, including but not limited to the Information Memorandum, are not and shall not be deemed to be or to include representations or warranties of the Company or any Subsidiary. No Person has been authorized by the Company or any Subsidiary to make any representation or warranty relating to the Company or any Subsidiary, the business of any Company or any Subsidiary or otherwise in connection with the transactions contemplated hereby and, if made, such representation or warranty must not be relied upon as having been authorized by the Company or any Subsidiary. (b) Whenever a representation or warranty made by the Company herein refers to the knowledge of the Company, such knowledge shall be deemed to consist only of the actual knowledge on the date hereof and on the Closing Date, as applicable, of those persons listed on Schedule 4.22. (c) Notwithstanding anything to the contrary contained in this Agreement or in any of the Schedules, any information disclosed in one Schedule shall be deemed to be disclosed in all Schedules. Certain information set forth in the Schedules is included solely for informational purposes and may not be required to be disclosed pursuant to this Agreement. The disclosure of any information shall not be deemed to constitute an acknowledgment that such information is required to be disclosed in connection with the representations and warranties made by the Company in this Agreement or that it is material, nor shall such information be deemed to establish a standard of materiality. 4.23 Consent of Stockholders. As of the date hereof, the Company has obtained the written consent of its stockholders (as described in Section 11.13) approving this Agreement and the transactions contemplated hereby pursuant to Section 228 of the DGCL. ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE BUYER The Buyer represents and warrants to the Company that: 5.1 Organization and Authority of the Buyer. The Buyer is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, with the corporate power and authority to enter into this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of the Buyer. This Agreement has been duly executed and delivered by the Buyer and constitutes the valid, binding and enforceable obligation of the Buyer, subject to applicable bankruptcy, reorganization, insolvency, moratorium and other laws affecting creditors' rights generally from time to time in effect and to general equitable principles. 5.2 Ability to Carry Out the Agreement. The Buyer is not subject to or bound by any provision of: (i) any law, statute, rule, regulation or judicial or administrative decision, (ii) any articles or certificate of incorporation or by-laws, (iii) any mortgage, deed of trust, lease, note, stockholders' agreement, partnership agreement, bond, indenture, license, permit, trust, or other material instrument or agreement, or (iv) any judgment, order, writ, injunction or decree of any court, governmental body, administrative agency or arbitrator, that would prevent or be violated by or under which there would be a conflict, breach or default as a result of, nor is the consent required of any Person under any material agreement which has not been obtained for the execution, delivery and performance by the Buyer of this Agreement and the transactions contemplated hereby other than any violations, defaults or failures to obtain consents which have not had a material adverse effect on the ability of the Buyer to perform its obligations under this Agreement. 5.3 Consents and Approvals. Except as disclosed on Schedule 5.3, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity, is required by or with respect to the Buyer or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Buyer or the consummation by the Buyer of the transactions contemplated hereby, the failure of which to obtain would have a material adverse effect on the ability of the Buyer to enter into this Agreement and to consummate the transactions contemplated hereby. 5.4 Financial Ability to Perform. The Buyer has, or has access to, sufficient funds to pay the aggregate Merger Consideration on the terms and conditions contemplated by this Agreement. The Buyer acknowledges and agrees that the Buyer's performance of its obligations under this Agreement is not in any way contingent upon the availability of financing to the Buyer. 5.5 Brokers and Intermediaries. The Buyer has not employed any broker, finder, advisor or intermediary other than Salomon Smith Barney in connection with the transactions contemplated by this Agreement which would be entitled to a broker's, finder's, or similar fee or commission in connection therewith or upon the consummation thereof. Any such fees due Salomon Smith Barney shall be paid by Buyer. ARTICLE 6 CERTAIN COVENANTS AND AGREEMENTS OF THE COMPANY AND THE BUYER 6.1 Access and Information. The Company and its Subsidiaries shall permit the Buyer and its representatives after the date of this Agreement to have reasonable access during normal business hours, upon reasonable advance notice, to the properties, contracts, books and records of the Company and its Subsidiaries for the purpose of verifying the representations and warranties of the Company hereunder, provided that such access shall be conducted by the Buyer and its representatives in such a manner as not to interfere unreasonably with the businesses or operations of the Company or any Subsidiary. All information provided to the Buyer pursuant hereto shall be subject to that certain confidentiality agreement dated March 21, 1997 executed by the Buyer (the "Confidentiality Agreement"). The Buyer shall notify the Company promptly upon its discovery of any information which constitutes or would indicate a material breach by the Company of any representation, warranty or agreement of the Company hereunder. 6.2 Regulatory Filings. Each of the parties hereto will furnish to the other party hereto such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions to any Governmental Entity. The Buyer and the Company agree to file any information required by the HSR Act, the Canadian Competition Act, the Investment Canada Act, the requirements of the German Federal Cartel Office, the Italian Merger Control Regulation and each other governmental entity having jurisdiction over the transaction and each party agrees promptly to supplement such information and promptly use reasonable best efforts to effect compliance with the conditions specified in Sections 7.5 and 8.5 hereof prior to the Final Termination Time. 6.3 Conduct of Business. Prior to the Closing, and except as otherwise expressly contemplated by this Agreement, the Company shall operate the businesses conducted by it in all material respects in the ordinary and usual course and cause the business operated by its Subsidiaries to be operated in all material respects in the ordinary and usual course. Without limiting the generality of the foregoing, and except as expressly contemplated by this Agreement, the Company shall not, and shall not permit any Subsidiary to, without the prior written consent of the Buyer, engage in any act or transaction referred to in clauses (i) through (xvii) of Section 4.16, except that for purposes of this Section 6.3 all references in Section 4.16 to $1,000,000 shall be deemed to be $500,000. 6.4 Dividends; Changes in Stock. The Company shall not, nor shall it permit any of its Subsidiaries to (other than in the case of wholly owned Subsidiaries): (a) declare or pay any dividends on or make other distributions in respect of any of its capital stock (other than dividends on the Company's Non-Convertible Preferred Stock and Convertible Preferred Stock payable in shares of the Company's Non-Convertible Preferred Stock as provided in Article Third, Section 1(a) of the Certificate of Designation for such Convertible Preferred Stock and Article Third, Section 1(a) of the Certificate of Designation for such Non- Convertible Preferred Stock); (b) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, (c) repurchase, redeem or otherwise acquire (other than as required pursuant to the Stockholders Agreement), or permit any subsidiary to purchase or otherwise acquire, any share of its capital stock, or issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any share of its capital stock of any class or any securities convertible into, or any rights, warrants or options to acquire, any such shares or convertible securities, or (d) enter into any transaction with any person listed on Schedule 4.22 which results in an increase in amounts otherwise currently being paid by the Company or any Subsidiary to or for the benefit of any such person, in each case except as otherwise provided for or permitted by this Agreement. 6.5 Satisfaction of Conditions to the Merger. (a) Each of the Buyer and the Company will take all reasonable actions necessary to comply promptly with all legal requirements which may be imposed on itself with respect to the Agreement. (b) Subject to the terms and conditions of this Agreement, each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including full cooperation with the other party and including the provision of information and making of all necessary filings in connection with, among other things, the approvals under the HSR Act. (c) Each of the Buyer and the Company will, and will cause its Subsidiaries to, take all reasonable actions necessary to obtain (and will cooperate with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity required to be obtained by the Buyer and the Company or any of their Subsidiaries in connection with the Merger or the taking of any action contemplated thereby or by this Agreement. 6.6 Employee Matters. (a) The Buyer shall ensure that all persons who were employed by the Company or any Subsidiary immediately preceding the Closing, including those on vacation, leave of absence or disability, will be employed by the Buyer or an Affiliate of the Buyer (including but not limited to the Surviving Corporation or any Subsidiary) at the same base rate of pay and in a comparable position on and after the Closing Date, except as otherwise provided in this Section 6.6. Except as expressly provided in this Agreement the foregoing shall not constitute any commitment, contract, understanding or guarantee (express or implied) on the part of the Buyer of a post-Effective Time employment relationship. Employment of any of the employees by the Buyer will be "at will" except as otherwise disclosed in this Agreement and may be terminated by the Buyer at any time for any reason (subject to any legally binding agreement other than this Agreement, or any applicable laws or collective bargaining agreement, or any other arrangement or commitment). The Buyer shall not, at any time prior to 180 days after the Closing Date, effectuate a "plant closing" or "mass layoff" as those terms are defined in the Worker Adjustment and Retraining Notification Act of 1988 ("WARN") affecting in whole or in part any facility, site of employment, operating unit or employee of the Company or any Subsidiary without complying fully with the requirements of WARN. For purposes of this Section 6.6, the term "Active Employees" shall mean any employees who are actively employed by the Company or any Subsidiary as of the Closing Date, including those on vacation and leave of absence (including maternity leave). (b) During the period from the Closing Date through the second anniversary of the Closing Date and subject to subparagraph (c) below, the Buyer shall maintain, or cause to be maintained the employee benefit plans, policies and arrangements described on Schedule 4.13, or take such other actions described therein so as to provide benefits to the Active Employees which are in the aggregate substantially equivalent to, and provided pursuant to substantially equivalent terms and conditions as, the Company Benefit Plans as in effect immediately prior to the Closing Date, provided, however, that, subject to the Buyer's obligation to provide benefits to the Active Employees which are in the aggregate substantially equivalent to, and provided pursuant to substantially equivalent terms and conditions as, the Company Benefit Plans as in effect immediately prior to the Closing Date, the Buyer shall not be obligated to maintain any specific employee benefit plan, policy or arrangement. The Buyer shall cause each of its employee benefit plans, policies and arrangements covering the Active Employees on or after the Closing Date (each a "Buyer Benefit Plan"), to recognize for eligibility and vesting purposes all service of the Active Employees counted for such purposes under the corresponding Company Benefit Plan. In addition, if such Buyer Benefit Plan is a "group health plan" within the meaning of Section 5000(b)(1) of the Code, the Buyer shall cause such plan to give credit to the Active Employees for amounts paid under the corresponding Company Benefit Plan toward any applicable deductibles, co-payments and out- of pocket limits as though such amounts had been paid in accordance with the terms and conditions of such Buyer Benefit Plan. (c) Buyer shall be responsible for and assume and honor the obligations referred to in Schedule 6.6. 6.7 Tax Matters. (a) The Buyer shall be liable for, and shall pay when due, any transfer, gains, documentary, sales, use, registration, stamp, value added or other similar Taxes payable by reason of the transactions specified by this Agreement or attributable to the sale, transfer or delivery of the Shares hereunder (other than any capital gains or other income tax payable by any stockholder of the Company), and the Buyer shall, at its own expense, file all necessary Tax returns and other documentation with respect to all such Taxes. (b) After the Closing Date, Buyer shall, and shall cause the Company to, provide each party hereto and each stockholder thereof with such cooperation and information relating to the Company and each Subsidiary as such party reasonably may request in filing any Return, amended Return or claim for refund, determining any Tax liability or a right to refund of Taxes, or conducting or defending any audit or other proceeding in respect of Taxes. Buyer shall cause the Company and each Subsidiary to retain all Returns, schedules and work papers, and all material records and other documents relating thereto, until the expiration of the statute of limitations (and, to the extent notified by any party, any extensions thereof) of the taxable years to which such Returns and other documents relate and until the final determination of any Tax in respect of such years. Any information obtained under this Section 6.7(b) shall be kept confidential, except as may be otherwise necessary in connection with filing any Return, amended Return, or claim for refund, determining any Tax liability or right to refund of Taxes, or in conducting or defending any audit or other proceeding in respect of Taxes. Notwithstanding the foregoing, neither Buyer, nor any of its affiliates, shall be required unreasonably to prepare any document, or determine any information not then in its possession, in response to a request under this Section 6.7(b). 6.8 Announcement. Neither the Company nor the Buyer will issue any press release or otherwise make any public statement with respect to this Agreement and the transactions contemplated hereby without the prior consent of the other (which consent shall not be unreasonably withheld), except as may be required by applicable law or stock exchange regulation. Notwithstanding anything in this Section 6.8 to the contrary, the Buyer and the Company will, to the extent practicable, consult with each other before issuing, and provide each other the opportunity to review and comment upon, any such press release or other public statements with respect to this Agreement and the transactions contemplated hereby whether or not required by law. 6.9 Notice to Stockholders. The Company will, as promptly as practicable following the date of this Agreement, give notice to any holders of Company Stock who have not heretofore consented in writing to the Merger. 6.10 No Solicitation. The Company shall, and shall direct and use its best efforts to cause its officers, directors, employees, representatives and agents to, immediately cease any discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal (as hereinafter defined). The Company shall not, nor shall it authorize or permit any of its Subsidiaries or any officer, director, employee, investment banker, attorney or other adviser or representative of the Company or any of its Subsidiaries to, (i) solicit, initiate, or encourage the submission of, any Acquisition Proposal, (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information for the purpose of facilitating the making of, or take any other action to facilitate any inquiries or the making of, any proposal that constitutes, or can reasonably be expected to lead to, any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of which the Company or any of its Subsidiaries had knowledge at the time of such violation of the restrictions set forth in the immediately preceding sentence by any officer, director, employee, investment banker, attorney, employee, or other adviser or representative of the Company or any of its Subsidiaries, whether or not such Person is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 6.10 by the Company and its Subsidiaries. For purposes of this Agreement, "Acquisition Proposal" means any proposal for a merger or other business combination involving the Company or any of its Subsidiaries or any proposal or offer to acquire in any manner, directly or indirectly, an equity interest in the Company or any of its Subsidiaries, any voting securities of the Company or any of its Subsidiaries or a substantial portion of the assets of the Company. Anything contained herein to the contrary notwithstanding, this Section 6.10 shall have no force and effect after April 30, 1998. 6.11 Certain Litigation. The Company agrees that it shall not settle any litigation commenced after the date hereof against the Company or any of its directors by any stockholder of the Company relating to the Merger or this Agreement without the prior written consent of Buyer, which consent shall not be unreasonably withheld. 6.12 Subsequent Financial Statements. Prior to the Effective Time, the Company shall deliver to the Buyer, not later than 45 days after the end of each quarterly period and in the form customarily prepared by the Company, the unaudited internal financial statements of the Company, including an income statement, for the monthly period then ended and for the period from the beginning of the current fiscal year to the end of such monthly period. 6.13 Name of Surviving Corporation. Buyer shall have the right to use the Harris name on a non-exclusive royalty free basis in connection with the operation of the business of the Subsidiaries of the Company for a period of one year from the Effective Time, whereupon such right to use such name shall cease. 6.14 Insurance. The Company shall use commercially reasonable efforts to keep or cause the insurance policies set forth on Schedule 4.20 (or insurance policies comparable thereto), to be kept in full force and effect through the Effective Time. ARTICLE 7 CONDITIONS PRECEDENT OF THE COMPANY The obligation of the Company to consummate the transactions described in Article 2 hereof is subject to the fulfillment of each of the following conditions prior to or at the Closing: 7.1 Representations and Warranties. None of the representations and warranties of the Buyer contained or referred to herein that is qualified as to materiality shall be untrue or incorrect in any respect and at the Effective Time such representations and warranties shall be true and correct as though made at the Effective Time, except for changes specifically permitted by this Agreement or resulting from any transaction expressly consented to in writing by the Company; none of such representations or warranties that are not so qualified shall be untrue or incorrect in any material respect and at the Effective Time such representations and warranties shall be true and correct in all material respects as though made at the Effective Time, except for changes specifically permitted by this Agreement or resulting from any transaction expressly consented to in writing by the Company. 7.2 Agreements. The Buyer shall have performed and complied in all material respects with all its undertakings and agreements required by this Agreement to be performed or complied with by the Buyer prior to or at the Closing. 7.3 Buyer Certificate. The Company shall have been furnished with a certificate of an authorized officer of the Buyer, dated the Closing Date, certifying to the effect that the conditions contained in Sections 7.1 and 7.2 have been fulfilled and confirming the acknowledgement set forth in Section 9.2. 7.4 No Injunction. No injunction, restraining order or decree of any nature of any court or governmental or regulatory authority shall exist against the Buyer, the Company, any Subsidiary or any of their respective Affiliates, or any of the principals, officers or directors of any of them, that restrains, prevents or materially changes the transactions contemplated hereby. 7.5 Consents. All material consents, approvals and authorizations of Governmental Entities, and all material filings with and notifications of Governmental Entities or other entities which regulate the businesses of the Company, the Subsidiaries or the Buyer, necessary on the part of the Company, any Subsidiary or the Buyer, or their respective Affiliates, to the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby are listed on Schedule 7.5, and shall have been obtained or effected (and all applicable waiting periods, if any, including any extensions thereof, under any applicable law, statute, regulation or rule, including but not limited to the HSR Act, if applicable, shall have expired or terminated, as applicable). 7.6 Miscellaneous Closing Deliveries. The Company shall have received each of the following: (a)all documents, instruments and other closing deliveries specified herein; and (b)such evidence as the Company may reasonably request in order to establish (i) the corporate power and authority of the Buyer to consummate the transactions contemplated by this Agreement and (ii) compliance with the conditions of Closing set forth herein. 7.7 Penrice Condition. The transactions contemplated by the Sale and Purchase Agreement-Penrice Group of Companies dated the date hereof shall have been consummated. ARTICLE 8 CONDITIONS PRECEDENT OF THE BUYER The obligation of the Buyer to consummate the transactions described in Article 2 hereof is subject to the fulfillment of each of the following conditions prior to or at the Closing: 8.1 Representations and Warranties. (x) None of the representations and warranties of the Company contained or referred to herein that are qualified as to Material Adverse Effect shall be untrue or incorrect in any respect and at the Effective Time such representations and warranties shall be true and correct at the Effective Time as though made at the Effective Time, except for changes therein specifically permitted by this Agreement or resulting from any transaction expressly consented to in writing by the Buyer; (y) none of such representations or warranties that is not so qualified shall be untrue or incorrect in such a manner as to cause a Material Adverse Effect and at the Effective Time such representations and warranties shall be true and correct as though made at the Effective Time except for changes (i) specifically permitted by this Agreement or (ii)resulting from any transaction expressly consented to in writing by the Buyer or (iii)those that do not have a Material Adverse Effect (it being understood that for purposes of this clause (y) qualifications in the representations and warranties as to a materiality shall be disregarded). 8.2 Agreements. The Company shall have performed and complied in all respects with all of its undertakings and agreements required by this Agreement to be performed or complied with by it prior to or at the Closing provided that the non compliance of an undertaking or agreement, other than in the case of uncured or unremedied non-compliance with Section 6.3 (insofar as it relates to Section 4.16(b)(ix), (b)(x) and (b)(xvi)), Section 6.4 and Section 6.11 hereof, at any time shall not constitute a failure of the condition contained in this Section 8.2 if such non-compliance is not a material breach of such undertaking or agreement or if such non-compliance, both alone and in conjunction with all other such non-compliances, has not had a Material Adverse Effect. 8.3 The Company's Certificate. The Buyer shall have been furnished with a certificate of an authorized officer of the Company, dated the Closing Date, certifying to the effect that the conditions contained in Sections 8.1, 8.2 and 8.6 have been fulfilled. 8.4 No Injunction. No injunction, restraining order or decree of any court or governmental or regulatory authority shall exist against the Buyer, the Company, any Subsidiary or any of their respective Affiliates, or any of the principals, officers or directors of any of them, that restrains, prevents or materially changes the transactions contemplated hereby. 8.5 Consents. All material consents, approvals and authorizations of Governmental Entities, and all material filings with and notifications of Governmental Entities or other entities which regulate the businesses of the Company, the Subsidiaries or the Buyer, necessary on the part of the Company, any Subsidiary or the Buyer, or their respective Affiliates, to the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby are listed on Schedule 7.5, and shall have been obtained or effected (and all applicable waiting periods, if any, including any extensions thereof, under any applicable law, statute, regulation or rule, including but not limited to the HSR Act, if applicable, shall have expired or terminated, as applicable). 8.6 No Material Adverse Change. Since the Reference Balance Sheet Date, except as set forth on Schedule 8.6, there shall have been no material adverse change in the financial condition or results of operations of either (i) the Company and its Subsidiaries, taken as a whole or (ii) any Significant Business. 8.7 Miscellaneous Closing Deliveries. The Buyer shall have received each of the following: (a) all documents, instruments and other closing deliveries specified herein; and (b) such evidence as the Buyer may reasonably request in order to establish (i) the corporate power and authority of the Company to consummate the transactions contemplated by this Agreement and (ii) compliance with the conditions of Closing set forth herein. 8.8 Penrice Condition. The transactions contemplated by the Sale and Purchase Agreements - Penrice Group of Companies dated the date hereof shall have been consummated. ARTICLE 9 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES; CERTAIN ACKNOWLEDGMENTS 9.1 Nonsurvival of Representations and Warranties. None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time and all such representations and warranties will be extinguished on consummation of the Merger and neither Company, any Subsidiary nor any officer, director or employee or stockholder shall be under any liability whatsoever with respect to any such representation or warranty after such time. This Section 9.1 shall not limit any covenant or agreement of the parties which by its terms contemplates performance after the Effective Time. 9.2 Information. On or immediately prior to the Closing Date, the Buyer shall provide to the Company a certificate pursuant to which the Buyer will acknowledge each of the following: (a) The Buyer has received all materials relating to the business of the Company and each Subsidiary which it has requested and has been afforded the opportunity to obtain any additional information necessary to verify the accuracy of any such information or of any representation or warranty made by the Company hereunder or to otherwise evaluate the merits of the transactions contemplated hereby; and (b) The Company and its representatives have answered to the Buyer's satisfaction all inquiries that the Buyer or its representatives have made concerning the business of the Company and each Subsidiary or otherwise relating to the transactions contemplated hereby. ARTICLE 10 INDEMNIFICATION 10.1 Indemnification. (a) The Company will indemnify, defend and hold harmless, and after the Effective Time, Buyer will indemnify, defend and hold harmless, the present and former officers and directors of the Company and its Affiliates and the Stockholders (each an "Indemnified Party") against all losses, claims, demands, actions, causes of action, damages or liabilities arising out of actions or omissions occurring at or prior to the Effective Time (individually, a "Claim" and collectively, "Claims") to the fullest extent provided in the charters and by-laws of the Company and its Subsidiaries, as the case may be, immediately prior to the Effective Time. Without limiting the foregoing, the Company, and after the Effective Time, Buyer, shall advance expenses incurred with respect to Claims, including attorney's fees, as they are incurred, to the fullest extent permitted under applicable law, provided that the person on whose behalf the expenses are advanced provides an undertaking (which need not be secured) to repay such advances if it is ultimately determined by a court of competent jurisdiction that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. (b) The certificate of incorporation and the by- laws of the Surviving Corporation (and its Subsidiaries referred to above) shall contain the provisions with respect to indemnification and exculpation from liability set forth in the Company's and such Subsidiaries' certificates of incorporation and by-laws on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of seven years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who on or prior to the Effective Time were directors, officers, employees or agents of Company, unless such modification is required by law. (c) The Buyer or the Surviving Corporation shall maintain in effect for six years from the Effective Time policies of directors' and officers' liability insurance containing terms and conditions which are not less advantageous to the insured than any such policies of the Company or any such Subsidiary currently in effect on the date of this Agreement (the "Company Insurance"), with respect to matters occurring prior to the Effective Time, to the extent available, and having the maximum available coverage under any such Company Insurance policies; provided that (i) the Surviving Corporation and such Subsidiaries following the Merger shall not be required to spend in excess of 150% of the amount spent on current annual premiums for the Company Insurance (the "Premium Limit") per year therefor; provided further that if the Surviving Corporation and such Subsidiaries following the Merger would be required to spend in excess of the Premium Limit per year to obtain insurance having the maximum available coverage under Company Insurance policies, the Surviving Corporation and such Subsidiaries will be required to spend up to such amount to maintain or procure insurance coverage pursuant hereto, subject to availability of such (or similar) coverage and (ii) such policies may in the sole discretion of the Surviving Corporation be one or more "tail" policies for all or any portion of the full six year period, provided that such "tail" policies, contain terms and conditions and provide coverage no less advantageous to the insiders than the terms, conditions and coverage in the Company Insurance. Buyer agrees that in the event that the Surviving Corporation and such Subsidiaries would be required to spend in excess of the Premium Limit per year to obtain insurance having the maximum available coverage under Company Insurance policies, the Surviving Corporation will notify the officers and directors who are the beneficiaries thereof and permit such officers and directors to pay any excess amount over the Premium Limit which may be necessary to maintain such policies. The annual premium for Company Insurance for calendar year 1997 was not greater than $100,000. (d) Any Indemnified Party wishing to claim indemnification under this Section 10.1, upon learning of any claim, action, suit, proceeding or investigation which may give rise to a right to indemnification under this Section 10.1, shall promptly notify Buyer thereof. In the event of any such claim, action, suit, proceeding or investigation, (i) Buyer or the Surviving Corporation shall have the right to assume the defense thereof (with counsel engaged by Buyer or the Surviving Corporation to be reasonably acceptable to the Indemnified Party) and Buyer shall not be liable to such Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof provided there is no conflict of interests between the Indemnified Party and the Surviving Corporation or Buyer in the Indemnified Party's good faith judgment based upon advice of counsel, (ii) the Indemnified Party will cooperate in the defense of any such matter and (iii) Buyer shall not be liable for any settlement effected without its prior written consent. (e) This Section 10.1 shall survive the closing of the transactions contemplated hereby, is intended to benefit the Company, the Surviving Corporation and each of the Indemnified Parties (each of whom shall be entitled to enforce this Section 10.1 against the Company or the Surviving Corporation, as the case may be) and shall be binding on all successors and assigns of the Surviving Corporation. (f) In the event the Surviving Corporation or any such Subsidiary or the Buyer, as the case may be, or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any person, then, in each such case, the Buyer shall cause proper provision to be made so that such resulting or surviving corporation or entity or such transferee assumes the obligations set forth in this Section 10.1. (g) Buyer shall cause the Company to satisfy all of the Company's obligations under this Article 10. ARTICLE 11 MISCELLANEOUS 11.1 Expenses. (a) The Company shall pay the fees and expenses of its counsel, accountants, investment banking firms, and other experts and consultants and shall pay all other expenses incurred by it in connection with the negotiation, preparation and execution of this Agreement and the consummation of the transactions contemplated hereby. Schedule 11.1 which shall be delivered promptly after the date hereof will contain an estimate of the fees and expenses of the counsel, accountants, investment banking firms, change of control payments (other than severance payments) and other experts and consultants retained by the Company in connection with the Merger and the transactions contemplated by the Penrice Agreement. If such fees in the aggregate exceed $22.5 million (exclusive of the closing related obligations payable under the Management Services Agreement with D.G. Harris and A.J. Petrocelli referred to in Schedule 6.6), then the aggregate Merger Consideration shall be reduced pro-rata by the amount of such excess. (b) The Buyer shall pay the fees and expenses of its counsel, accountants, investment banking firms, and other experts and consultants and shall pay all other expenses incurred by it in connection with the negotiation, preparation and execution of this Agreement and the consummation of the transactions contemplated hereby. 11.2 Applicable Law. The rights and duties of the Buyer and the Company under this Agreement shall, pursuant to the New York General Obligations Law Section 5-1401, be governed by the law of the State of New York except to the extent the laws of the State of Delaware shall apply to the Merger. 11.3 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given or made as follows: (a) if sent by registered or certified mail in the United States return receipt requested, upon receipt; (b) if sent by reputable overnight air courier (such as DHL or Federal Express), two business days after being so sent; (c) if sent by telecopy transmission, with a copy mailed on the same day in the manner provided in clauses (a) or (b) above, when transmitted and receipt is confirmed by telephone; or (d) if otherwise actually personally delivered, when delivered and shall be sent or delivered as follows: If to the Company, to: Harris Chemical Group, Inc. c/o D. George Harris & Associates, Inc. 399 Park Avenue, 32nd Floor New York, New York 10022 Telephone: (212) 207-6400 Telecopy: (212) 207- 6470 Attention: Donald G. Kilpatrick, Esq. with a copy to: Winthrop, Stimson, Putnam & Roberts One Battery Park Plaza New York, New York 10004-1490 Telephone: (212) 858-1000 Telecopy: (212) 858-1500 Attention: Kenneth E. Adelsberg, Esq. If to the Buyer or Newco, to: IMC Global Inc. 2100 Sanders Road Northbrook, IL 60062 Telephone: (847) 272-9200 Telecopy: (847) 205-4894 Attention: Marschall I. Smith, Esq. with a copy to: Sidley & Austin One First National Plaza Chicago, IL 60603 Telephone: (312) 853-7000 Telecopy: (312) 853-7036 Attention: Thomas M. Thesing, Esq. Such names and addresses may be changed by such notice. 11.4 Entire Agreement. This Agreement (including the Schedules attached hereto, all of which are a part hereof) and the Confidentiality Agreement contains the entire understanding of the parties hereto with respect to the subject matter contained herein, supersedes and cancels all prior agreements, negotiations, correspondence, undertakings and communications of the parties, oral or written, respecting such subject matter, including but not limited to the Confidential Memorandum. There are no restrictions, promises, representations, warranties, agreements or undertakings of any party hereto with respect to the transactions under this Agreement other than those set forth herein or made hereunder. 11.5 Amendments. This Agreement may be amended only by a written instrument executed by the parties or their respective successors or assigns. 11.6 Headings; References. The article, section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All references herein to "Articles," "Sections," "Schedules" or "Exhibits" shall be deemed to be references to Articles or Sections hereof or Schedules or Exhibits hereto unless otherwise indicated. 11.7 Counterparts. This Agreement may be executed in one or more counterparts and each counterpart shall be deemed to be an original. 11.8 Parties in Interest; Assignment. This Agreement shall inure to the benefit of and be binding upon the Company and Buyer and their respective successors. Except as provided in or contemplated by Section 6.6 and Article 10 (each of which shall confer upon the employees and other Persons referred to therein for whose benefit it is intended the right to enforce such Section or Article, as applicable notwithstanding any general releases that any such person may execute in connection with a termination of employment), nothing in this Agreement, express or implied, is intended to confer upon any Person not a party to this Agreement any rights or remedies under or by reason of this Agreement. No party to this Agreement may assign or delegate all or any portion of its rights, obligations or liabilities under this Agreement without the prior written consent of the other party to this Agreement. 11.9 Severability; Enforcement. Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or unenforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provisions shall be interpreted to be only so broad as is enforceable. 11.10 Waiver. Any of the conditions to Closing set forth in this Agreement may be waived in writing at any time prior to or at the Closing hereunder by the party entitled to the benefit thereof. The failure of any party hereto to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of or non-compliance with this Agreement shall be held to be a waiver of any other or subsequent breach or non-compliance. 11.11 Relationship Between the Parties. The parties agree that this is an arm's length transaction in which the parties' rights, undertakings and obligations are limited to those which are set forth in this Agreement. 11.12 WAIVER OF CONSEQUENTIAL DAMAGES AND JURY TRIAL. THE PARTIES TO THIS AGREEMENT EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO RECOVER CONSEQUENTIAL, EXEMPLARY, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES IN ANY ARBITRATION, LAWSUIT, LITIGATION OR PROCEEDING ARISING OUT OF OR RESULTING FROM ANY CONTROVERSY OR CLAIM ARISING OUT OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF THE FOREGOING WAIVERS, (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (iii) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.12. 11.13 Approval of Company Stockholders. Prior to or simultaneously with the execution of this Agreement, holders of 90% or more of the Company Common Stock shall have entered into an amendment of the Stockholders Agreement to amend Section 1K thereof in the manner attached hereto as Annex 11.13. Each of the stockholders listed on Schedule 11.13 is the beneficial owner of the number of shares of Company Common Stock set forth opposite such stockholder's name and such stockholder owns all such shares free and clear of all liens, charges, encumbrances, restrictions and commitments of any kind. Such stockholders have executed a written consent, which has been delivered to Buyer upon execution of this Agreement. 11.14 Liquidated Damages. The parties hereto agree that, if the Effective Date shall not have occurred under the circumstances described below, because it is impossible to adequately measure actual damages, in lieu of actual damages, the Company shall be entitled to liquidated damages in the amount of $40 million (the "Liquidated Damages"), which amount the parties hereby agree to be a reasonable amount under the circumstances of the transaction contemplated hereby. The Company agrees and acknowledges that, in the absence of the Buyer's fraud or willful misconduct, such Liquidated Damages are in full satisfaction of, and shall be in lieu of, any other claim, right, or other cause of action which the Company might have with respect to the circumstances described below, and the Company agrees that, in the absence of the Buyer's fraud or willful misconduct, upon payment of such Liquidated Damages, the Company shall release Buyer from any and all such claims. The Liquidated Damages shall be payable to the Company by Buyer on the Final Termination Date if (x) the Effective Time shall not have occurred on or before the Final Termination Date, (y) the conditions set forth in Sections 8.1, 8.2, 8.4, 8.5 and 8.6 shall not have been breached in any material respect as of the Final Termination Date (other than, in the case of Sections 8.4 and 8.5, with respect to antitrust matters) and (z) the Penrice closing contemplated by Section 8.8 shall not have occurred under circumstances where liquidated damages are not payable under the Penrice Agreement. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written. HARRIS CHEMICAL GROUP, INC. By: Name: Title: IMC GLOBAL INC. By: Name: Title: IMC MERGER SUB INC. By: Name: Title: EX-2.1 3 SALE AND PURCHASE AGREEMENT EXHIBIT 2.2 PRUDENTIAL ASSET MANAGEMENT ASIA LIMITED DGHA PERSONS AND TRUSTS SEARCH INVESTMENT NV HARRIS CHEMICAL AUSTRALIA PTY LIMITED MARSUPIAL L.L.C. MARSUPIAL-II L.L.C. SODA ASH (L) BHD MANAGER SHAREHOLDERS AND IMC GLOBAL INC. SALE AND PURCHASE AGREEMENT PENRICE GROUP OF COMPANIES ANDERSEN LEGAL Lawyers Level 12 141 Walker Street North Sydney NSW 2060 Tel: (61+2) 9964 6600 Fax: (61+2) 9964 6650 Ref: KMS:HAR08004 TABLE OF CONTENTS Clause Page 1. INTERPRETATION 2 1.1 Definitions 2 1.2 General 5 1.3 Vendor Obligations 6 1.4 Reasonableness of costs 6 1.5 Schedules and Annexures 7 2. CONDITION PRECEDENT TO AGREEMENT 7 2.1 Ministerial Consent 7 2.2 Reasonable Best Efforts 7 3. AGREEMENT TO SELL AND BUY 7 3.1 Sale and Purchase 7 3.2 No Encumbrances 7 3.3 Title, Property and Risk 7 3.4 Rights Under HCA Equity Documents 7 3.5 DGHA Repurchase Agreement 8 4. PURCHASE PRICE 8 4.1 Total Purchase Price 8 5. CONDITIONS PRECEDENT TO CLOSING 9 5.1 Conditions Precedent to Obligations of Vendors 9 5.2 Conditions Precedent to Obligations of the Buyer 10 5.3 Termination Rights 12 5.4 Effect of Termination 12 5.5 Consequences of Termination 13 5.6 Termination of Merger 13 5.7 Partly Paid Company Shares 13 6. CLOSING 13 6.1 Time and Place of Closing 13 6.2 Obligations of each Vendor at Closing 13 6.3 Obligations of the Buyer at Closing 15 6.4 Interdependency 15 7. SUPERANNUATION 15 8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 15 8.1 Organisation of the Company and the Subsidiaries; Authority15 8.2 Capitalisation of the Company; Ownership 16 8.3 Subsidiaries of the Company 16 8.4 Ability to Carry Out the Agreement 16 8.5 Consents and Approvals 17 8.6 Financial Statements 17 8.7 Title to Properties; Absence of Liens 18 8.8 Litigation 18 8.9 Compliance with Law 19 8.10 Contracts 19 8.11 Brokers and Intermediaries 20 8.12 Tax Matters 20 8.13 Employee Benefits/Superannuation 21 8.14 Intellectual Property 22 8.15 Environmental Matters 23 8.16 Absence of Certain Changes 24 8.17 Employees, Labour Matters, etc 25 8.18 Affiliate Transactions 26 8.19 Availability of Assets and Legality of Use 26 8.20 Insurance 26 8.21 Disclaimer of Other Representations and Warranties; Knowledge; Disclosure 26 9. REPRESENTATIONS AND WARRANTIES OF VENDORS 27 9.1 Representations and Warranties of DGHA Persons 27 9.2 Representations and Warranties of Prudential 29 9.3 Representations and Warranties of Search 31 9.4 Representations and Warranties of the Manager Shareholders32 9.5 Disclaimer of Other Representations and Warranties; Knowledge; Disclosure 33 9.6 Representations and Warranties 34 10. REPRESENTATIONS AND WARRANTIES OF THE BUYER 34 10.1 Organisation and Authority of the Buyer 34 10.2 Ability to Carry Out the Agreement 34 10.3 Consent and Approvals 35 10.4 Financial Ability to Perform 35 10.5 Brokers and Intermediaries 35 10A. BUYER'S OPTION 35 10A.1 Exercise of Option 35 11. CERTAIN COVENANTS AND AGREEMENTS OF THE COMPANY AND THE BUYER 35 11.1 Access and Information 35 11.2 Regulatory Filings 36 11.3 Conduct of Business 36 11.4 Dividends; Changes in Stock 36 11.5 Satisfaction of Conditions 36 11.6 Employee Matters 37 11.7 Tax Matters 37 11.8 Announcement 38 12. NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES; CERTAIN ACKNOWLEDGMENTS 38 12.1 Non-survival of Representations and Warranties 38 12.2 Information 38 13. COSTS AND STAMP DUTY 39 13.1 Costs Generally 39 14. LIQUIDATED DAMAGES 39 15. NOTICES 39 15.1 Method of Giving Notices 39 15.2 Time of Receipt 40 15.3 Address of Parties 40 16. GENERAL 41 16.1 Amendment 41 16.2 Waiver 41 16.3 Entire agreement 42 16.4 Severability 42 16.5 No Assignment 42 16.6 Further Assurance 42 16.7 Counterparts 42 16.8 Attorneys 42 17. LAW AND JURISDICTION 42 17.1 Governing Law 42 17.2 Submission to Jurisdiction 43 17.3 Status of Prudential 43 SALE AND PURCHASE AGREEMENT made as of 11 December, 1997 PARTIES: PRUDENTIAL ASSET MANAGEMENT ASIA LIMITED, a British Virgin Islands company having its registered office at PO Box 71, Craigmuir Chambers, Road Town, Tortola, British Virgin Islands, in its capacity as general partner of Prudential Asia Private Equity Limited Partnership, a Cayman Islands exempted limited partnership (PAPE); PRUDENTIAL ASSET MANAGEMENT ASIA LIMITED, in its capacity as manager of certain assets of and attorney-in-fact for The Prudential Insurance Company of America (PICA) (Prudential Asset Management Asia Limited, collectively in its capacity as general partner of PAPE and as manager of certain assets of and attorneyin- fact for PICA, is referred to herein as Prudential); DGHA PERSONS AND TRUSTS described in Schedule 1 (DGHA Persons); SEARCH INVESTMENT NV of Desguinlei 50, bus 6, B-2018, Antwerpen, Belgium (Search); HARRIS CHEMICAL AUSTRALIA PTY LIMITED (ACN 072 639 902) of c/- D. George Harris & Associates, Inc., 32nd Floor, 399 Park Avenue, New York, New York, United States of America (Company); MARSUPIAL L.L.C. of c/- D. George Harris & Associates, Inc., 32nd Floor, 399 Park Avenue, New York, New York, United States of America (Marsupial); MARSUPIAL-II L.L.C. of c/- D. George Harris & Associates, Inc., 32nd Floor, 399 Park Avenue, New York, New York, United States of America (Marsupial-II); SODA ASH (L) BHD (a company incorporated in Malaysia with registration No. LL00648) of c/- Prudential Asset Management Asia Limited, a British Virgin Islands company having its registered office at PO Box 71, Craigmuir Chambers, Road Tow, Tortola, British Virgin Islands (Soda Ash); MANAGER SHAREHOLDERS described in Schedule 2 (Manager Shareholders); and IMC GLOBAL INC. (a corporation organised under the laws of Delaware) of 2100 Sanders Road, Northbrook, Illinois, United States of America (Buyer) or at the Buyer's option, IMC Australia Merger Sub (a corporation organised under the laws of Delaware) of 2100 Sanders Road, Northbrook, Illinois, United States of America. WHEREAS Each Vendor is the registered holder of the Sale Stock with the power to dispose of the legal and beneficial interests in the relevant Sale Stock. Each Vendor has agreed to sell and the Buyer has agreed to buy the Sale Stock on the terms and conditions set out in this agreement. THE PARTIES AGREE AND DECLARE AS FOLLOWS: 1. INTERPRETATION 1.1 Definitions In this agreement, unless the context otherwise requires: Accounting Principles means the accounting principles, policies and procedures of the Company and its Subsidiaries, as employed by each such Company, which are in conformity with GAAP; Affiliate means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, such other Person; Affiliate Transactions shall have the meaning set forth in clause 8.18; Agreement and Plan of Merger means the agreement and plan of merger dated on or around the date hereof among Harris Chemical Group, Inc., Buyer and a wholly owned subsidiary of the Buyer; Business Day means a day on which banks are open for general banking business in New York and Sydney; Closing shall have the meaning set forth in clause 6.1; Closing Date shall have the meaning set forth in clause 6.1; Commissioner means the Commissioner of Taxation or any person acting on his behalf; Company Benefits shall have the meaning set forth in clause 11.6; Company Shares means shares of $1.00 par value in the capital of the Company; Confidentiality Agreement shall have the meaning set forth in clause 11.1; Control (including, with correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise; Deed of Consent means the deed of consent dated 12 December 1996 among the Company, Search, Penrice Soda Products Pty Ltd and Chase Securities Australia Limited; Deed of Covenant means the deed of covenant dated 12 December 1996 among Marsupial, Marsupial-II, Soda Ash, Search and the Company; DGHA Management Agreement means the management agreement dated 29 March 1996 among the Company, Penrice Soda Products Pty Ltd and D. George Harris & Associates, Inc.; Effective Time shall have the meaning given in the Agreement and Plan of Merger; Employees shall have the meaning set forth in clause 8.17; Employment Share Plan means the employee share plan adopted by the Company on 29 March 1996 as amended; Encumbrances shall have the meaning set forth in clause 8.7; Environmental Law means any federal, state, local or foreign statute, law or regulation, in effect on the date hereof relating to pollution or protection of the environment, health or safety; Final Termination Date shall be June 30, 1998 or such later date as may be agreed upon in writing by the parties to the Agreement and Plan of Merger and by the parties to this agreement; GAAP shall mean generally accepted accounting principles in Australia; Governmental Entity shall mean any federal, state, local or foreign government or any court, administrative agency or commissions or other governmental authority or agency, domestic or foreign; Hazardous Materials means any hazardous materials, hazardous wastes, hazardous constituents, hazardous or toxic substances, petroleum products (including crude oil or any fraction thereof), defined or regulated as such in or under any Environmental Law; HCA Equity Documents means the HCA Shareholders Agreement; Employee Share Plan; PAMA Option Agreement, Upstream Letter; DGHA Management Agreement; HCG Services Agreement; Deed of Consent and Deed of Covenant; HCA Shareholders Agreement means the shareholders agreement dated 29 March 1996 as amended among the Company, Marsupial, Marsupial-II, Soda Ash and Search; HCG Services Agreement means the services agreement dated 29 March 1996 among the Company, Penrice Soda Products Pty Ltd and Harris Chemical Group, Inc.; IMC Australia Merger Sub means an entity that is wholly owned by the Buyer; Information Memorandum shall have the meaning set forth in clause 8.21; Intellectual Property shall have the meaning set forth in clause 8.14; Manager Company Shares means 552 partly paid A preference Company Shares; Marsupial means Marsupial LLC; Marsupial-II means Marsupial-II LLC; Material Adverse Effect shall have the meaning ascribed to such term in the Agreement and Plan of Merger; Marsupial Membership Interest means a membership interest as defined in the Amended and Restated Limited Liability Company Agreement establishing Marsupial; Marsupial-II Membership Interest means a membership interest as defined in the Amended and Restated Limited Liability Company Agreement establishing Marsupial-II; Merger shall have the meaning given in the Agreement and Plan of Merger; PAMA Option Agreement means the PAMA option agreement dated 29 March 1996 among Soda Ash, Marsupial, Marsupial-II, Harris Chemical Group, Inc. and D. George Harris & Associates, Inc.; Permitted Encumbrances shall have the meaning set forth in clause 8.7; Person means an individual, corporation, partnership, trust or unincorporated organisation or a government or any agency or political subdivision thereof; Property and Properties shall have the meaning set forth in clause 8.15; Purchase Price means US$54,000,000.00; Records means originals and copies, in machine readable or printed form, of all books, files, reports, records, correspondence, documents and other material of the Company and the Subsidiaries; Reference Balance Sheet shall have the meaning set forth in clause 8.6; Reference Balance Sheet Date shall have the meaning set forth in clause 8.6; Returns means all returns, reports, estimates, information returns and statements of any nature with respect to Taxes; Sale Stock means in respect of the Manager Shareholders the Manager Company Shares, in respect of Search the Search Company Shares, in respect of the DGHA Persons the Marsupial Membership Interests and the Marsupial-II Membership Interests and in respect of Prudential as general partner of PAPE, 211 Soda Ash Shares and 211/261 of the Soda Ash Indebtedness and, in respect of Prudential as the manager of certain assets of, and attorney-in-fact for, PICA, 50 Soda Ash Shares and 50/261 of the Soda Ash Indebtedness; Search Company Shares means 8,272 B preference Company Shares; Significant Business shall have the meaning ascribed to such term in the Agreement and Plan of Merger; Soda Ash means Soda Ash (L) BHD; Soda Ash Indebtedness means all indebtedness owed by Soda Ash to Prudential as general partner of PAPE and as manager of certain assets of, and attorney-in-fact for, PICA, as of Closing; Soda Ash Shares means 261 shares of US$1.00 each in the capital of Soda Ash ; Stockholder Entity means each of Marsupial, Marsupial-II and Soda Ash; Subsidiaries means each of the subsidiaries of the Company and any corporation, joint venture, partnership or other entity of which the Company, directly or indirectly, owns or controls shares (or other equity interests) representing more than fifty per cent (50%) of the general voting power under ordinary circumstances of such entity and Subsidiary means any of those subsidiaries; Superannuation Fund means the Penrice Soda Products Superannuation Fund established by trust deed dated 8 June 1989; Superannuation Law means any law relating to superannuation which applies or has at any time applied to or in respect of the Company including the Superannuation Guarantee (Administration) Act 1992 (Cth) and the Superannuation Industry (Supervision) Act 1993 (Cth); Tax means any present or future tax, levy, impost, deduction, charge, duty or withholding of whatever kind, whether direct or indirect and whether arising under the Tax Act or otherwise, including income tax, capital gains tax, recoupment tax, land tax, sales tax, payroll tax, tax instalment deduction, fringe benefits tax, group tax, profit tax, interest tax, property tax, undistributed profits tax, withholding tax, municipal rates, stamp duty, import duty (and any related interest, penalty, fine or expense in connection with any of them) levied or imposed by any Governmental Entity; Tax Act means the Income Tax Assessment Act 1936 (Cth); Tax Assessment means any assessment of any Tax by any Tax Authority; Tax Authority means in respect of any Tax, the person who administers the imposition and collection of that Tax and includes the Commissioner; Upstream Letter means the letter dated on or about 12 December 1996 among Prudential, Search Capital Partners Limited and the DGHA Persons; and Vendor means Prudential, as general partner of PAPE, in respect of 211 Soda Ash Shares, Prudential as the manager of certain assets of, and attorney-in-fact for, PICA, in respect of 50 Soda Ash Shares, DGHA Persons in respect of the Marsupial Membership Interests and the Marsupial-II Membership Interests, Search in respect of the Search Company Shares and the Manager Shareholders in respect of the Manager Company Shares. 1.2 General In this agreement, unless the context otherwise requires: (a) a reference to any legislation or legislative provision includes any statutory modification or reenactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision; (b) the singular includes the plural and vice versa; (c) a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa; (d) a reference to any gender includes all genders; (e) a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure, or exhibit of or to this agreement; (f) a reference to a party is a reference to a party to this agreement and includes that party's executors, administrators, successors and permitted assigns; (g) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; (h) a reference to a bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration (as defined in section 9 of the Corporations Law), being placed in receivership and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction, and to the procedures, circumstances and events which constitute any of those conditions or matters (i) where an expression is defined anywhere in this agreement, it has the same meaning throughout; (j) a reference to any instrument (such as a deed, agreement or document) is to that instrument (or, if required by the context, to a part of it) as amended, novated, substituted or supplemented at any time and from time to time provided that no such amendment, novation, substitution or supplement shall have any affect for purposes of this agreement unless approved in writing by all parties hereto; (k) subsidiary has the meaning given to it in Division 6 of Part 1.2 of the Corporations Law; (l) including and similar expressions are not and must not be treated as words of limitation; (m) a reference to dollars or $ is to the currency of Australia; (n) the table of contents and headings are for convenience only and do not affect interpretation; and (o) the Soda Ash Shares and the Soda Ash Indebtedness are held by Prudential in its capacity as General Partner of PAPE and in its capacity as Manager of certain assets of and attorney-in-fact for PICA. 1.3 Vendor Obligations (a) An agreement, representation or warranty in favour of two or more Persons is for the benefit of them jointly and severally. (b) An agreement, representation or warranty on the part of the Vendor binds each of them severally and not jointly and severally. No Vendor is responsible for the obligations of any of the other Vendors. 1.4 Reasonableness of costs Where any costs are to be incurred by one party and borne by another under this agreement, those costs must be reasonable and proper. 1.5 Schedules and Annexures The schedules and annexures form part of this agreement. 2. CONDITION PRECEDENT TO AGREEMENT 2.1 Ministerial Consent This agreement (other than clause 13) shall be of no force or effect unless and until: (a) the Buyer has obtained the consent of the Minister under Section 87 of the Mining Act 1971 (SA). (b) The Treasurer of the Commonwealth of Australia ceasing to have power under the Foreign Acquisitions and Takeovers Act 1975 to make any order prohibiting the implementation of the transactions contemplated by this agreement by reason either of the lapse of time or the Treasurer having decided (and notified the affected party accordingly) that the government of the Commonwealth of Australia has no objection to the transactions contemplated by this agreement. 2.2 Reasonable Best Efforts The Buyer shall use its reasonable best efforts to procure the fulfilment of the conditions in clause 2.1. If the conditions are not fulfilled by the Closing Date, then the provisions of clauses 5.4 and 5.5 shall apply. 3. AGREEMENT TO SELL AND BUY 3.1 Sale and Purchase The Vendor agrees to sell and transfer to the Buyer and the Buyer agrees to buy from the Vendor, on the terms and conditions of this agreement, the Sale Stock. 3.2 No Encumbrances The Sale Stock must be transferred free from any Encumbrance or third party interest and with all benefits, rights and entitlements (including dividend rights) attached or accruing to them on and from the date of this agreement and otherwise on the terms and conditions of this agreement. 3.3 Title, Property and Risk The title to, property in and risk in respect of the Sale Stock: (a) until Closing remains solely with the Vendor; and (b) passes to the Buyer on and from Closing 3.4 Rights Under HCA Equity Documents Each of the Vendors, Marsupial, Marsupial-II and Soda Ash hereby waives any rights it may have under the HCA Equity Documents in connection with the disposal of the Sale Stock to the Buyer as contemplated by this agreement. 3.5 DGHA Repurchase Agreement The Company and Marsupial-II agree, and Marsupial, Soda Ash, Search, the DGHA Persons and Prudential acknowledge, that the provisions of clause 2(c) of the DGHA Repurchase Agreement dated 29 March 1996 among the Company and Marsupial II (DGHA Repurchase Agreement) will apply to the transactions contemplated by this agreement notwithstanding that any Exit Event (as defined in the DGHA Repurchase Agreement) may occur in the period set out in clause 2(b) of the DGHA Repurchase Agreement. 4. PURCHASE PRICE 4.1 Total Purchase Price The consideration payable for the Sale Stock is as follows: (a) to DGHA Persons in respect of the Marsupial Membership Interests in the aggregate amount of US$3,938,081 payable to each such person in accordance with the percentage interest indicated across from that name on Schedule 1 plus, if the Closing shall not have occurred on or before 1 April, 1998 a proportional amount, measured on a month by month basis, equal to the result of the following formula: X((P/365)Y), where X is the number of days after 31 March, 1998 that the Closing shall occur, P is the Applicable Interest Rate and Y is US$3,938,081. As used herein, the term "Applicable Interest Rate" shall mean, for the period from 1 April, 1998 through April 30, 1998, 15%, for the period from 1 May, 1998 through 31 May, 1998, 17% and for the period commencing 1 June, 1998, 19%; (b) to DGHA Persons in respect of the Marsupial-II Membership Interests in the aggregate amount of US$3,805,841 payable to each such person in accordance with the percentage interest indicated across from that name on Schedule 1 plus, if the Closing shall not have occurred on or before 1 April, 1998, a proportional amount, measured on a month by month basis, equal to the result of the following formula: X((P/365)Y), where X is the number of days after 31 March, 1998 that the Closing shall occur, P is the Applicable Interest Rate and Y is US$3,805,841; (c) to Prudential in respect of the Soda Ash Shares and the Soda Ash Indebtedness, US$33,639,901 plus, if the Closing shall not have occurred on or before 1 April, 1998, an amount, measured on a month by month basis, equal to the result of the following formula: X((P/365)Y), where X is the number of days after 31 March, 1998 that the Closing shall occur, P is the Applicable Interest Rate and Y is US$33,639,901; (d) to Search in respect of the Search Company Shares, US$10,035,677 plus, if the Closing shall not have occurred on or before 1 April, 1998, an amount, measured on a month by month basis, equal to the result of the following formula: X((P/365)Y), where X is the number of days after 31 March, 1998 that the Closing shall occur, P is the Applicable Interest Rate and Y is US$10,035,677; and (e) to the Manager Shareholders in respect of the Manager Company Shares in the aggregate US$669,692 payable to each such person in accordance with the shareholding indicated across from that name on Schedule 2 plus, if the Closing time shall not have occurred on or before April 1, 1998, a proportional amount, measured on a month by month basis, equal to the result of the following formula: X((P/365)Y), where X is the number of days after March 31, 1998 that the Closing shall occur, P is the Applicable Interest Rate and Y is US$669,692. For the avoidance of doubt the parties acknowledge that this payment is additional to that set forth in clause 6.3(b). 5. CONDITIONS PRECEDENT TO CLOSING 5.1 Conditions Precedent to Obligations of Vendors The obligation of the Vendors to consummate the transactions described in clause 6 hereof is subject to the fulfilment of each of the following conditions prior to or at the Closing: (a) Representations and Warranties None of the representations and warranties of the Buyer contained or referred to herein that is qualified as to materiality shall be untrue or incorrect in any respect and at the Effective Time such representations and warranties shall be true and correct as though made at the Effective Time, except for changes specifically permitted by this agreement or resulting from any transaction expressly consented to in writing by the Company; none of such representations or warranties that are not so qualified shall be untrue or incorrect in any material respect and at the Effective Time such representations and warranties shall be true and correct in all material respects as though made at the Effective Time, except for changes specifically permitted by this agreement or resulting from any transaction expressly consented to in writing by the Company. (b) Agreements The Buyer shall have performed and complied in all material respects with all its undertakings and agreements required by this agreement to be performed or complied with by the Buyer prior to or at the Closing. (c) No Injunction No injunction, restraining order or decree of any nature of any court or governmental or regulatory authority shall exist against the Buyer, the Company, any Subsidiary or any of their respective Affiliates, or any of the principals, officers or directors of any of them, that restrains, prevents or materially changes the transactions contemplated hereby. (d) Consents All material consents, approvals and authorisations of Governmental Entities, and all material filings with and notifications of Governmental Entities or other entities which regulate the businesses of the Company, the Subsidiaries or the Buyer, necessary on the part of the Company, any Subsidiary or the Buyer, or their respective Affiliates, to the execution and delivery of this agreement and the consummation of the transactions contemplated hereby are listed on Schedule 5.1(d), and shall have been obtained or effected (and all applicable waiting periods, if any, including any extensions thereof, under any applicable law, statute, regulation or rule, if applicable, shall have expired or terminated, as applicable). (e) Miscellaneous Closing Deliveries The Vendors shall have received each of the following: (i) all documents, instruments and other closing deliveries specified herein; and (ii) such evidence as the Vendor may reasonably request in order to establish: (A) the corporate power and authority of the Buyer to consummate the transactions contemplated by this agreement; and (B) compliance with the conditions of Closing set forth herein; and (iii) a certificate pursuant to section 206(6) of the Corporations Law in connection with the provision of financial assistance by the Company as contemplated by this agreement; and (f) Closing of Merger Closing under the Agreement and Plan of Merger taking place simultaneously with Closing under this agreement. 5.2 Conditions Precedent to Obligations of the Buyer The obligation of the Buyer to consummate the transactions described in clause 6 hereof is subject to fulfilment of each of the following conditions prior to or at the Closing: (a) Representations and Warranties (x) None of the representations and warranties of the Company contained or referred to herein that are qualified as to Material Adverse Effect shall be untrue or incorrect in any respect and at the Effective Time such representations and warranties shall be true and correct at the Effective Time as though made at the Effective Time, except for changes therein specifically permitted by this agreement or resulting from any transaction expressly consented to in writing by the Buyer; (y) none of such representations or warranties that is not so qualified shall be untrue or incorrect in such a manner as to cause a Material Adverse Effect and at the Effective Time such representations and warranties shall be true and correct as though made at the Effective Time except for changes: (i) specifically permitted by this agreement; or (ii) resulting from any transaction expressly consented to in writing by the Buyer; or (iii) that do not have a Material Adverse Effect. (it being understood that for purposes of this clause (y) qualifications in the representation and warranties as to materiality shall be disregarded). (b) Agreements The Company shall have performed and complied in all respects with all of its undertakings and agreements required by this agreement to be performed or complied with by it prior to or at the Closing provided that the non-compliance of an undertaking or agreement, other than in the case of uncured or unremedied noncompliance with clause 11.4 at any time shall not constitute a failure of the condition contained in this clause 5.2(b) if such non-compliance is not a material breach of such undertaking or agreement or if such noncompliance, both alone and in conjunction with all other such non- compliances, has not had a Material Adverse Effect. (c) The Company's Certificate The Buyer shall have been furnished with a certificate of an authorised officer of the Company, dated the Closing Date, certifying to the effect that the conditions contained in clauses 5.2(a), (b) and (f) have been fulfilled. (d) No Injunction No injunction, restraining order or decree of any court or governmental or regulatory authority shall exist against the Buyer, the Company, any Subsidiary or any of their respect Affiliates, or any of the principals, officers or directors or any of them, that restrains, prevents or materially changes the transactions contemplated hereby. (e) Consents All material consents, approvals and authorisations of Governmental Entities, and all material filings with and notifications of Governmental Entities or other entities which regulate the businesses of the Company, the Subsidiaries or the Buyer necessary on the part of the Company, any Subsidiary or the Buyer, or their respective Affiliates, to the execution and delivery of this agreement and the consummation of the transactions contemplated hereby are listed on Schedule 5.2(e), and shall have been obtained or effected (and all applicable waiting periods, if any, including any extensions thereof, under any applicable law, statute, regulation or rule, shall have expired or terminated, as applicable). (f) No Material Adverse Change Since the Reference Balance Sheet Date, except as set forth on Schedule 5.2(f), there shall have been no material adverse change in the financial condition or results of operations of any Significant Business. (g) Miscellaneous Closing Deliveries The Buyer shall have received each of the following: (i) all documents, instruments and other closing deliveries specified herein; and (ii) such evidence as the Buyer may reasonably request in order to establish (A) the corporate power and authority of the Company to consummate the transactions contemplated by this agreement; and (B) compliance with the conditions of Closing set forth herein; and (iii) a certificate pursuant to section 206(6) of the Corporations Law in connection with the provision of financial assistance by the Company as contemplated by this agreement. (h) HCA Equity Documents The Buyer shall have received confirmation that the HCA Equity Documents have been terminated with effect on and from Closing; (i) Closing of Merger Closing under the Agreement and Plan of Merger taking place simultaneously with Closing under this agreement; and (j) Vendors' Certificate The Buyer shall have been furnished with a certificate of an authorised signatory of each Vendor, dated the Closing Date, certifying to the effect that the condition contained in clause 9.6 has been fulfilled. 5.3 Termination Rights This agreement may be terminated and abandoned at any time prior to the Effective Time: (a) by the mutual written consent of the Buyer and all of the Vendors; (b) by the Buyer or the Vendors, who together hold a majority of the direct or indirect equity interest in the Company, if the transactions contemplated hereby are not consummated on the Final Termination Date; (c) by the Buyer, if the Company or any Vendor shall have breached any of its representations, warranties or obligations hereunder, but only if such breach is continuing on the Final Termination Date and only if such breach shall have a Material Adverse Effect; and (d) by the Vendors acting unanimously, if the Buyer or IMC Australia Merger Sub shall have breached any of its representations or warranties or obligations hereunder, but only if such breach is continuing on the Final Termination Date and only if such breach shall have a material adverse effect on the Buyer's ability to perform its obligations under the agreement. 5.4 Effect of Termination In the event of termination of this agreement by either the Vendors or the Buyer as provided in clause 5.3, this agreement shall forthwith become void and there shall be no liability or obligation on the part of the Vendors or the Buyer or their respective officers or directors, except with respect to clauses 5.5, 8.11, 10.5, 13 and 14. No termination of this Agreement under paragraphs (c) and (d) of clause 5.3 shall constitute a waiver of any rights of the party exercising such right of termination. 5.5 Consequences of Termination If this agreement is terminated under clause 5.3 then, in addition to any other rights, powers or remedies provided by law: (a) each party is released from its obligations to further perform this agreement except those imposing on it obligations of confidentiality; (b) each party retains the rights it has against any other party in respect of any past breach; and (c) the Buyer must return to each Vendor or to the Vendor's representative all documents and other materials in any medium in its possession, power or control which contain information relating to the Company, or any Subsidiary, or any Stockholder Entity. 5.6 Termination of Merger This agreement will terminate and shall forthwith become void in the event that the Agreement and Plan of Merger terminates for any reason and the provisions of clauses 5.4 and 5.5 will apply in that instance. 5.7 Partly Paid Company Shares Marsupial, Marsupial-II, Soda Ash and Search agree to cause the rights attaching to the partly paid A preference Company Shares to be amended with effect on and from Closing so that the obligation to pay up all unpaid amounts is deferred for a period of 5 years, and must (without limitation): (a) convene a shareholders meeting of the Company accordingly; and (b) vote in favour of a resolution effecting such amendment. 6. CLOSING 6.1 Time and Place of Closing The closing of the sale and purchase of Sale Stock provided for herein (Closing) will occur at the offices of Andersen Legal at Level 12, 141 Walker Street, North Sydney at 10.00am (local time) on the date which is two (2) Business Days following satisfaction of the conditions precedent in clauses 2.1, 5.1 and 5.2 or at any other time or place agreed in writing by the parties (the date of the Closing being the Closing Date). 6.2 Obligations of each Vendor at Closing (a) At Closing each Vendor (as appropriate) must deliver to the Buyer or its solicitors executed transfers and other appropriate transfer documentation in favour of the Buyer of all the Sale Stock together with the share certificates or stock certificates (as the case may be) or other evidence of or for the Sale Stock and any consents which the Buyer reasonably requires to obtain registration of those transfers; and (b) At Closing each Vendor (as appropriate) must use reasonable best efforts to cause: (i) the board of directors of the Company to direct that (subject to the payment of stamp duty) the transfer of the Search Company Shares and the Manager Company Shares is registered; (ii) the board of directors of Soda Ash to direct that the transfer of the Soda Ash Shares is registered; (iii) the delivery to the Buyer or its solicitors of the Records of each Company and Subsidiary (which, with the exception of common seals and company registers, may be done by leaving them at the premises occupied by the relevant Company or Subsidiary in the custody of any employee of the Company or any Subsidiary); (iv) the delivery to the Buyer or its solicitors of duly completed and signed bank authorities authorised by the board of directors of each Company and Subsidiary directed to the Company's bankers authorising the operation of each of the Company's and the Subsidiary's bank accounts by nominees of the Buyer (v) subject to the articles of association of each Company, Subsidiary and Soda Ash, the appointment to the board of directors of each Company, Subsidiary and Soda Ash, of the Buyer's nominees and the resignation from those boards, on terms that the persons resigning have no claim against the relevant Company or Subsidiary or Soda Ash for past services, loss of office or wrongful termination, of the then-existing directors but so that a properly constituted board of directors is in existence at all times; (vi) the amendment of the Amended and Restated Limited Liability Company Agreement of, respectively, Marsupial and Marsupial-II so as to cause the Buyer to own all of the Marsupial Membership Interests and Marsupial-II Membership Interests upon consummation of the Closing; and (vii) the appointment as secretary and public officer of each Company and Subsidiary of the Buyer's nominees and the resignation from those positions of the then-existing secretary and public officer in such form as the Buyer requires. (c) The Buyer may, not later than fourteen (14) Business Days prior to the Closing Date, give written notice to Prudential requiring Prudential to capitalise the Soda Ash Indebtedness with effect on and from Closing and, upon receipt of such notice, Prudential must take all steps necessary to convert the Soda Ash Indebtedness to share capital or amounts paid in respect of share capital in Soda Ash in a manner which will have no adverse tax consequences to Soda Ash and the provisions of this agreement applying to the transfer of Soda Ash Shares will be deemed to apply also to any share capital in Soda Ash issued in connection with the conversion of the Soda Ash Indebtedness. 6.3 Obligations of the Buyer at Closing At Closing, the Buyer must: (a) pay by telegraphic transfer in immediately available funds to each Vendor the Purchase Price as set out in clause 4.1; and (b) pay in immediately available funds an aggregate amount of US$1,910,808 to the Manager Shareholders (to be apportioned as agreed separately by way of letter) plus, if the Closing time shall not have occurred on or before 1 April, 1998, an amount, measured on a month by month basis, equal to the result of the following formula: X((P/365)Y), where X is the number of days after 31 March, 1998 that the Closing shall occur, P is the Applicable Interest Rate and Y is US$1,910,808 in consideration for the Manager Shareholders hereby agreeing to relinquish and waive all rights in relation to the issue by the Company of B ordinary Company Shares. 6.4 Interdependency The obligations of the parties in respect of Closing are interdependent. All things or actions required to be done at Closing will be treated as having taken place simultaneously and (unless the Vendor and the Buyer agree in writing to the contrary) no delivery or payment will be treated as having been made until all deliveries and payments due to be made at Closing have been made. Closing will be taken for all purposes not to have occurred unless and until all those deliveries and payments have been made unless all of the parties agree in writing to the contrary. 7. SUPERANNUATION Each Vendor must do everything reasonably required by the Buyer to put the Buyer or its nominee in the same position at Closing as regards control of or influence over the administration of the Superannuation Fund as such Vendor is in on the date of this agreement. 8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY Except as otherwise set forth in any Schedule hereto, the Company represents and warrants to the Buyer with respect to itself and its Subsidiaries: 8.1 Organisation of the Company and the Subsidiaries; Authority The Company and each Subsidiary is a corporation duly organised, validly existing and in good standing under the laws of its jurisdiction of organisation and has all the requisite corporate power and authority to carry on its business as now being conducted and to own and use the properties owned and used by it. Except as disclosed on Schedule 8.1, the Company and each of its Subsidiaries is qualified to do business in each jurisdiction in which the nature of its business requires it to be so qualified, except to the extent the failure to so qualify has not had, and would not reasonably be expected to have, a Material Adverse Effect. The execution and delivery of this agreement and the consummation of the transactions contemplated hereby have been duly authorised by all requisite corporate action on the part of the Company. Assuming the due authorisation, execution and delivery hereof by the parties hereto other than the Company, this agreement has been duly executed and delivered by the Company and constitutes the valid, binding and enforceable obligation of the Company, except as such enforceability may be limited by bankruptcy, insolvency, reorganisation or similar laws affecting creditors' rights generally or by general equitable principles. 8.2 Capitalisation of the Company; Ownership The authorised and issued capital of the Company is set forth on Schedule 8.2(a). Except as disclosed on Schedule 8.2(a), all of the issued shares of the Company are duly authorised, validly issued and fully paid . Except as disclosed on Schedule 8.2(a) there are no outstanding options, warrants or other rights of any kind to acquire any additional shares of the Company or securities convertible into or exchangeable for, or which otherwise confer on the holder thereof any right to acquire any such additional shares, nor is the Company committed to issue any such option, warrant, right or security. The legal ownership of the issued capital of the Company is as set forth on Schedule 8.2(b). 8.3 Subsidiaries of the Company Schedule 8.3 sets forth the Subsidiaries of the Company and the Company's equity interest in each such Subsidiary. Except as set forth on Schedule 8.3, all issued share capital or other equity interests of each Subsidiary owned by the Company is owned free and clear of any and all liens, claims, security interests or options, except for restrictions on transfer under federal and state securities laws. All shares of each Subsidiary which is a corporation have been validly issued and are fully paid. There are no outstanding options, warrants or other rights of any kind to acquire any additional shares of any Subsidiary or securities convertible into or exchangeable for any additional shares of any Subsidiary, nor is any Subsidiary committed to issue any such option, warrant, right or security. There are no outstanding options, warrants or other rights of any kind to acquire any additional equity interests of any Subsidiary, nor is any Subsidiary committed to issue any such option, warrant or right. Except as set forth on Schedule 8.3, the Company does not have, directly or indirectly, any equity interest in any other corporation, joint venture, partnership, limited liability company or other entity. 8.4 Ability to Carry Out the Agreement Except as disclosed on Schedule 8.4, neither the Company nor any Subsidiary is subject to or bound by any provision of: (a) any law, statute, rule, regulation, or judicial or administrative decision; (b) any articles or certificate or incorporation or by- laws; (c) any mortgage, deed of trust, lease, note, stockholders' agreement, partnership agreement, bond, indenture, license, permit, trust, other material instrument or agreement; or (d) any judgment, order, writ, injunction, or decree of any court, governmental body, administrative agency or arbitrator, that would prevent or be violated by or under which there would be a conflict, breach or default as a result of, nor is there required any consent of any Person under any contract or agreement required to be disclosed on and actually disclosed on Schedule 8.4 which has not been obtained for, the execution, delivery and performance by the Company of this agreement and the transactions contemplated hereby, other than any violations, defaults or failures to obtain consents which have not had and are not reasonably likely to have a Material Adverse Effect or a material adverse effect on the ability of the Company to perform its obligations under this agreement. 8.5 Consents and Approvals Except as set forth on Schedule 8.5, no consent, approval, order or authorisation of, or registration, declaration or filing with, any Governmental Entity, is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this agreement by the Company or the consummation by the Company of the transactions contemplated hereby, the failure of which to obtain would have a Material Adverse Effect. 8.6 Financial Statements (a) Attached hereto as Schedule 8.6 are copies of: (i) the audited balance sheet for the Company on a consolidated basis with the Subsidiaries as of 30 June 1997 (ii) the interim balance sheet for the Company on a consolidated basis with the Subsidiaries (the Reference Balance Sheet) as of 30 September 1997 (the Reference Balance Sheet Date); (iii) the audited profit and loss and income statements for the Company on a consolidated basis with the Subsidiaries for the fiscal year ended 30 June 1997; and (iv) interim profit and loss and income statements for the Company on a consolidated basis with the Subsidiaries. Each of the Reference Balance Sheet and the profit and loss and income statements is attached hereto as part of Schedule 8.6 and, except as disclosed on Schedule 8.6, has been prepared in conformity with the Accounting Principles and fairly present (subject, in the case of the unaudited statements, to normal, audit adjustments, none of which were or are expected, individually or in the aggregate, to be material in amount) the consolidated financial position of the Company and its Subsidiaries as at the dates thereof and the consolidated results of their operations for the periods then ended. (b) Except for liabilities or obligations reflected or reserved against in the Reference Balance Sheet or reflected in the Schedules hereto, to the knowledge of the Company, neither the Company nor any of the Subsidiaries has any material liabilities, whether absolute, accrued, contingent or otherwise, that would be required by the Accounting Principles to be reflected on the balance sheets of the Company and the Subsidiaries, that is not reflected or reserved against in the Reference Balance Sheet or the Schedules hereto, except for liabilities or obligations incurred in the ordinary course of business consistent with past practice since the Reference Balance Sheet Date. 8.7 Title to Properties; Absence of Liens Except as disclosed on Schedule 8.7(a) the Company and each Subsidiary: (a) has good and marketable title to all of its owned real properties; (b) possesses a valid leasehold interest in its leased real properties; and (c) has title to, or subsisting leasehold interests in, all of its personal properties and assets used solely in the business of the Company or such Subsidiary or reflected on the Reference Balance Sheet (except for property and assets disposed of since the Reference Balance Sheet Date or acquired since the Reference Balance Sheet Date and required by the Accounting Principles to be recorded on the balance sheets of the Company or the Subsidiaries), free and clear of any liens, security interests and other encumbrances (Encumbrances), except for: (i) Encumbrances set forth on Schedule 8.7(b (ii) Encumbrances reflected in the Reference Balance Sheet or created in the ordinary course of business subsequent to the Reference Balance Sheet Date and which are not material; (iii) Encumbrances securing indebtedness of less than $250,000 of record or otherwise that do not and will not materially interfere with the present use by the Company or the Subsidiaries of the property subject thereto or affected thereby or which otherwise have not had a Material Adverse Effect; (iv) Encumbrances for taxes, assessments or governmental charges, or landlords', mechanics', workmen's, materialmen's or similar liens, in each case that are not delinquent or which are being contested in good faith; (v) Encumbrances that are reflected in the title reports or surveys, if any, delivered or otherwise made available to the Buyer in connection with the transactions contemplated hereby; and (vi) Encumbrances incurred in the ordinary course of business (such Encumbrances listed in clauses (i) to (vi) above being referred to herein as Permitted Encumbrances). Neither the whole nor any part of the owned real properties or any real property leased, used or occupied by the Company is subject to any pending suit for condemnation or other taking by any public authority or other Person, and, to the knowledge of the Company, no such condemnation or other taking is threatened or contemplated. 8.8 Litigation Except as disclosed on Schedule 8.8 there is no action, suit or proceeding pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary at law, in equity or otherwise, in, before, or by any court or governmental agency or authority which is reasonably likely to have a Material Adverse Effect. 8.9 Compliance with Law Except as disclosed on Schedule 8.9, to the knowledge of the Company, the business of the Company and the Subsidiaries is being conducted in all material respects in compliance with all laws, ordinances and regulations and other requirements of any governmental entity applicable to the Company and the Subsidiaries. All governmental approvals, permits and licenses required by the Company and each Subsidiary in connection with the conduct of their respective businesses have been obtained and are in full force and effect and are being complied with in all material respects. 8.10 Contract (a) Schedule 8.10 sets forth each written contract or agreement outstanding as of the date hereof to which the Company or any Subsidiary is a party and which: (i) involves future payment or receipt of in excess of $250,000 or future performance or receipt of services or delivery or receipt of goods and materials, in each case with an aggregate value in excess of $250,000 including but not limited to sale and purchase agreements, distributorship agreements and loan agreements, notes and other financing documents but excluding soda ash, salt and quarry stone sales agreements which have a term of less than twelve (12) months; (ii) is a guarantee in respect of indebtedness of any Person (other than the Company or its Subsidiaries) which may involve future payment in excess of $250,000 or is a mortgage, security agreement or other collateral arrangement securing indebtedness of any Person (other than the Company or its Subsidiaries) in excess $250,000 and creating Encumbrances on properties and assets of the Company or its Subsidiaries with an aggregate value in excess of $250,000; (iii) is a lease providing for monthly rental payments in excess of $5,000 (exclusive of charges for taxes, insurance, utilities, maintenance and repair); (iv) is an employment or consulting contract pursuant to which the Company or its Subsidiaries may reasonably be expected to make payment in excess of $100,000 in 1997 or thereafter; (v) is a technology license agreement material to the business of the Company and its Subsidiaries, taken as a whole or any Significant Business; (vi) (A) limits the Company's or any Subsidiary's freedom to compete in any line of business or in any geographical area or with any person or entity; or (B) prohibits the Company or any of its Subsidiaries from disclosing any confidential information where such prohibition is likely to have a Material Adverse Effect; (vii) is a contract or commitment to sell, lease or otherwise dispose of any material asset other than in the ordinary course of business consistent with past practice; or (viii) is any other material agreement, contract, commitment or series of related agreements, contracts or commitments which, in any case, is subject to change of control provisions or involves payments or receipts of more than $250,000 over the life of such agreements, contracts or commitments; or (ix) any contract or agreement (or other obligation) of any third party pursuant to which the third party has agreed to assume, retain or otherwise indemnify the company against any liability. (b) Except as set forth in Schedule 8.10, each of the leases, contracts and other agreements listed in Schedules 8.7(a), 8.7(b), 8.13, 8.17, 8.18(a) and 8.18(b) constitutes a valid and binding obligation of the parties thereto and is in full force and effect other than as to certain provisions thereof, the aggregate effect of which would not deprive any party thereto of the practical realisation of the benefits thereof and except as limited by: (i) applicable bankruptcy, insolvency, reorganisation, fraudulent conveyance and other laws affecting creditors rights generally; (ii) general equitable principles; (iii) requirements of reasonableness, good faith and fair dealing; and (iv) additionally, in the case of indemnities and exculpatory provisions (including certain waivers), public policy, and (except for those leases, contracts and other agreements which by their terms will expire prior to the Effective Time) will subject to the qualification referred to above, continue in full force and effect after the Effective Time, in each case without breaching the terms thereof or resulting in the forfeiture or impairment of any rights thereunder and without the consent, approval or act of, or the making of any filing with, any other party. There is no default by the Company or any of the Subsidiaries or, to the knowledge of the Company, by any third party, under any contract or agreement required to be described in and actually described on Schedule 8.10. 8.11 Brokers and Intermediaries Other than Chase Securities Inc. neither the Company nor any Subsidiary has employed any broker, finder, adviser or intermediary in connection with the transactions contemplated by this agreement which would be entitled to a broker's, finder's or similar fee or commission in connection therewith or upon the consummation thereof. Any such fees due to Chase Securities Inc shall be paid by the Company. 8.12 Tax Matters Except as disclosed on Schedule 8.12: (a) all Returns required to be filed in respect of the business of the Company and its Subsidiaries on or prior to the Closing Date have been or will be filed when due in timely fashion and were or will be correct and complete in all material respects (b) all Taxes shown on such Returns that are due on or prior to the Closing Date have been or will be paid when due in timely fashion or adequate accruals have been or will be established for the payment of such Taxes; (c) to the knowledge of the Company, there is no action, suit, proceeding, investigation, audit or claim now pending regarding any Taxes relating to the income, properties or operations of the businesses of the Company and its Subsidiaries; (d) there are no agreements for the extension of the time for assessment of any Taxes relating to the income, properties or operations of the businesses of the Company and its Subsidiaries; (e) all Taxes relating to the income, properties or operations of the business of the Company and its Subsidiaries, which Taxes the Company or any Subsidiaries are required by law to withhold or collect have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable; (f) The Company has paid, or the Reference Balance Sheet contains full provision for, all Taxes which the Company and the Subsidiaries are or may become liable to pay for the period up to and including the Reference Balance Sheet Date; and (g) the only liabilities for Taxes of the Company and the Subsidiaries arising in respect of the period after the Reference Balance Sheet Date and ending on the Closing Date will be liabilities arising out of the normal business and trading activities of the Company and the Subsidiaries. 8.13 Employee Benefits/Superannuation Except as set forth in Schedule 8.13: (a) other than contributions to the Superannuation Fund, neither the Company nor its Subsidiaries has made or has been under any obligation (whether legally binding or established by custom) to make any payments or other forms of contribution to any fund which provides retirement benefits, pensions, authorities, lump sum payments or other like benefits in respect of any of the employees, directors or sub-contractors of any Company or Subsidiary; (b) other than the Superannuation Fund there are no superannuation, retirement or provident schemes or other arrangements providing for any payment to directors, employees or sub-contractors on their retirement or death or on the occurrence of any permanent or temporary disability in operation by or in relation to the Company or its Subsidiaries or its directors, employees or sub-contractors; (c) there are no contributions for which payment is overdue on the part of the Company, its Subsidiaries or any employee due to the Superannuation Fund pursuant to the governing rules of the Superannuation Fund; (d) all contributions by the Company or its Subsidiaries in order to satisfy the requirements of a Superannuation Law in respect of each employee of the Company or its Subsidiaries for the current contribution period, as defined in that Superannuation Law, if the current contribution period was deemed to have ended on Closing, have been paid or accrued and will be paid on or before Closing by the Company or its Subsidiaries; (e) in respect of its employees, neither the Company nor any Subsidiary is liable to pay or be potentially liable to pay any superannuation guarantee shortfall or penalty to the Commissioner or the Insurance and Superannuation Commissioner pursuant to a Superannuation Law; (f) there are no outstanding disputes, questions, demands, objections or appeals in relation to the Superannuation Fund between the trustees of the Superannuation Fund; (g) neither the Company nor any Subsidiary has any current or projected liability in respect of post- employment or post-retirement health, medical or life insurance benefits for retired, former or current employees; (h) from its date of establishment, the Superannuation Fund has satisfied the superannuation conditions of the Occupational Superannuation Standards Act 1987 and the Superannuation Industry (Supervision) Act 1993 and all other relevant law governing superannuation funds; and (i) the assets of the Superannuation Fund are sufficient, having regard to appropriate actuarial valuation methods and assumptions, to provide prospective benefits to the extent to which they will relate to periods of service or membership prior to the Closing Date 8.14 Intellectual Property (a) Set forth on Schedule 8.14 hereto is a list of all material patents, trademarks, trade names, service marks and copyrights that are owned or licensed by the Company or any of the Subsidiaries and, except as set forth on Schedule 8.14, are necessary for the operation of the Company's businesses as presently conducted (the Intellectual Property). Except as disclosed on Schedule 8.14: (i) to the knowledge of the Company, the Company or its respective Subsidiaries owns or possesses, or owns or possesses licenses or other valid rights to use, all Intellectual Property used by it and set forth on Schedule 8.14; and (ii) to the knowledge of the Company, the conduct of the business of the Company and each Subsidiary as now being conducted does not infringe or conflict with, nor has it been alleged to infringe or conflict with, any patents, trademarks, trade names or copyrights or other intellectual property rights of others. (b) To the knowledge of the Company, there is no claim or liability for trademark, trade name, patent or copyrights infringement as to any products manufactured or sold in the businesses of the Company and the Subsidiaries. (c) To the knowledge of the Company, except as set forth on Schedule 8.14, on the date hereof: (i) there are no pending re-examination, opposition, interference, cancellation or other administrative proceedings with respect to any of the Intellectual Property; and (ii) no order, holding, decision or judgment has been rendered by any court of law or authority, and no agreement, consent or pending litigation in a court of law exists to which the Company or any Subsidiary is a party, which would prevent the Company, any Subsidiary or the Buyer from using any of the Intellectual Property. 8.15 Environmental Matters Except as set forth on Schedule 8.15, to the knowledge of the Company, each of the representations and warranties set forth in subsections (a) through (f) of this clause 8.15 is true and correct with respect to each parcel of real property owned or leased by the Company or any of the Subsidiaries (individually, a Property and collectively, the Properties): (a) the Properties do not contain, by activities or operations of the Company or any Subsidiary, in, on, or under, including, without limitation, the soil and groundwater thereunder, any Hazardous Materials, except in compliance in all material respects with all applicable Environmental Laws; (b) the Properties and all operations and facilities at the Properties are in compliance in all material respects with all applicable Environmental Laws and all governmental approvals, permits and licenses required for the Properties, and all operations and facilities of the Company or the Subsidiaries under applicable Environmental Laws have been obtained and are in full force and effect and are being complied with in all material respects; (c) neither the Company nor any Subsidiary, nor any of their respective Affiliates has received any written governmental complaint, notice of violation, alleged violation, or investigation or notice of potential liability or of potential responsibility regarding environmental protection or any health or safety matters or permit compliance with regard to the Properties; (d) Hazardous Materials have not been generated, stored, transported, treated or disposed of on the Properties or transferred from the Properties to any other location by the Company or a Subsidiary except in compliance in all material respects with all applicable Environmental Laws in effect at the time of such activities; (e) there are no governmental, administrative actions or judicial proceedings pending or threatened under any applicable Environmental Laws to which the Company or any Subsidiary is named as a party with respect to the Properties or any Hazardous Materials transferred from the Properties, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, under any applicable Environmental Law with respect to any of the Properties; and (f) the water use rights of the Company and its Subsidiaries are sufficient to conduct their respective businesses as correctly conducted. Anything in this agreement to the contrary notwithstanding, this clause 8.15 shall be the exclusive representation and warranty relating to environmental matters. 8.16 Absence of Certain Changes Except as set forth in Schedule 8.16 or as expressly permitted by this agreement, between the Reference Balance Sheet Date and the date hereof, neither the Company nor any Subsidiary has: (a) purchased, sold, leased, transferred or assigned or agreed to purchase, sell, lease, transfer or assign, any of its assets, tangible or intangible involving more than $250,000 except in the ordinary course of business consistent with past practice; (b) entered into any contract, lease, sublease, license or sublicense (or series of related contracts, leases, subleases, licenses and sublicenses) involving more than $250,000 except in the ordinary course of business consistent with past practices; (c) accelerated, terminated, modified, or cancelled any contract, lease, sublease, license or sublicense (or series of related contracts, leases, subleases, licenses and sublicenses) involving more than $250,000 to which the Company or any Subsidiary is a party or by which such company is bound, except in the ordinary course of business consistent with past practices; (d) imposed any Encumbrances (except for Permitted Encumbrances) upon any of its real property; (e) made any capital expenditure or series of related capital expenditures) involving more than $250,000 except in the ordinary course of business consistent with past practice; (f) made any capital investment in, any loan to, or any acquisition of the securities or assets of any other person (or series of related capital investments, loans, and acquisitions) involving more than $250,000, except in the ordinary course of business consistent with past practice; (g) created, incurred, assumed, or guaranteed any indebtedness for borrowed money (including capitalised lease obligations) involving more than $75,000 singly or $250,000 in the aggregate, except in the ordinary course of business consistent with past practice; (h) granted any license or sublicense of any rights under or with respect to any material Intellectual Property; (i) issued, sold, or otherwise disposed of any of its shares or any shares of any subsidiary, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion or exercise) any of its shares or any shares of any Subsidiary; (j) declared, set aside, or paid any dividend or distribution with respect to its shares or redeemed, purchased, or otherwise acquired any of its shares; (k) made any loan to, or entered into any other transaction with, any of its directors, officers, or employees outside the ordinary course of business giving rise to any claim or right on its part against the person or on the part of the person against such company; (l) entered into any employment contract or enterprise bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement outside the ordinary course of business consistent with past practice; (m) granted any increase in the base compensation of any of its directors, officers, and key employees; (n) adopted any (A) bonus, (B) profit-sharing, (C) incentive compensation, (D) pension, (E) retirement, (F) medical, hospitalisation, life, or other insurance or (G) severance plan; (o) made any other material change in employment terms for any of its directors, officers, and employees outside the ordinary course of business consistent with past practice; (p) made or pledged to make any capital contribution (other than to a wholly owned subsidiary) or made or pledged to make any charitable contribution or contributions in excess of $10,000, individually, or $100,000 in the aggregate; or (q) contractually committed to do any of the foregoing; (r) no material adverse change in the assets, business, financial condition or operations of the Company or any Significant Subsidiary and no fact or condition exists or to the Company's knowledge is threatened which might reasonably be expected to cause such a material adverse change in the future; or (s) no damage, destruction, loss or claim, whether or not covered by insurance, or condemnation or other taking has a Material Adverse Effect. 8.17 Employees, Labour Matters, etc Schedule 8.17 sets forth the names of all employees of the Company and its Subsidiaries (Employees) and addresses. Except as set forth on Schedule 8.17, neither the Company nor any Subsidiary is a party to or bound by any enterprise bargaining or other industrial agreement. Except as set forth on Schedule 8.16, since the Reference Balance Sheet Date, there has not occurred or, to the knowledge of the Company, been threatened any material strike, slowdown, picketing, work stoppage, concerted refusal to work overtime or other similar labour activity with respect to any employees of the Company or any Subsidiary. Except as set forth on Schedule 8.17, there are no material labour disputes currently subject to any grievance procedure, arbitration or litigation pending or, to the knowledge of the Company, threatened with respect to any employee of the Company or any Subsidiary. To the knowledge of the Company, the Company and all its Subsidiaries have complied in all material respects with all applicable laws pertaining to the employment or termination of employment of its employees, including, without limitation, all such applicable laws relating to labour relations, equal employment opportunities, fair employment practices, prohibited discrimination or distinction and other similar employment activities. 8.18 Affiliate Transactions Schedule 8.18(a) contains a list of all contracts, agreements, transactions or commitments between any officer, employee or director of the Company or any Subsidiary, any family member of any of the foregoing or any other Affiliate of any of the foregoing (other than the Company or a Subsidiary), on the one hand, and the Company or any Subsidiary, on the other hand, to the Company's knowledge other than: (a) compensation paid as part of the employment relationship for services rendered (including directors' fees); (b) superannuation contributions by the Company or any Subsidiary (collectively, the Affiliate Transactions), that are currently in effect or that will bind the Company or any Subsidiary after the Closing; or (c) the HCA Equity Documents. Except as set forth in Schedule 8.18(b), no severance, "change-in-control", termination or other similar payment will be or become due at the Effective Time. 8.19 Availability of Assets and Legality of Use Except as set forth in Schedule 8.19, the assets owned or leased by the Company constitute all the assets used in its business and in all material respects are in sufficient condition to operate the businesses consistent with past practices. 8.20 Insurance Schedule 8.20 sets forth a list and brief description (including nature of coverage, limits, deductibles, premiums and the loss experience for the most recent three years with respect to each type of coverage) of all policies of insurance maintained, owned or held by the Company during the period from 1 April 1995 (current insurance in the case of property and casualty insurance) up to and including on the date hereof. The Company has complied with each of such insurance policies in all material respects and has not failed to give any notice or present any claim, with respect to claims in excess of $250,000 thereunder in a due and timely manner. The Company maintains policies of fire and casualty, liability (general, products and other liability), workers' compensation and other forms of insurance and bonds in commercially reasonable amounts and against commercially reasonable risks and losses. 8.21 Disclaimer of Other Representations and Warranties; Knowledge; Disclosure (a) Neither the Company nor any Subsidiary makes, or has made, any representations or warranties relating to the Company, any Subsidiary, or the business of the Company or any Subsidiary or otherwise in connection with the transactions contemplated hereby other than those expressly set forth herein which are made by the Company. Without limiting the generality of the foregoing, neither the Company nor any Subsidiary has made, or shall be deemed to have made, any representations or warranties in the Information Memorandum relating to the businesses of the Companies and their Subsidiaries prepared by Chase Securities Inc. on behalf of the Company and supplied to the Buyer prior to the date hereof (the Information Memorandum) or in any presentation of the businesses of the Company and the Subsidiaries in connection with the transactions contemplated hereby, and no statement contained in the Information Memorandum or made in any such presentation shall be deemed a representation or warranty hereunder or otherwise. It is understood that any cost estimates, projections or other predictions, any data, any financial information or any memoranda or offering materials or presentations, including but not limited to the Information Memorandum, are not and shall not be deemed to be or to include representations or warranties of the Company or any Subsidiary. No Person has been authorised by the Company or any Subsidiary to make any representation or warranty relating to the Company or any Subsidiary, the business of any Company or any Subsidiary or otherwise in connection with the transactions contemplated hereby and, if made, such representation or warranty must not be relied upon as having been authorised by the Company or any Subsidiary. (b) Whenever a representation or warranty made by the Company herein refers to the knowledge of the Company, such knowledge shall be deemed to consist only of the actual knowledge on the date hereof and on the Closing Date, as applicable, of those persons listed on Schedule 8.21. (c) Certain information set forth in the Schedules is included solely for informational purposes and may not be required to be disclosed pursuant to this agreement. The disclosure of any information shall not be deemed to constitute an acknowledgement that such information is required to be disclosed in connection with the representations and warranties made by the Company in this agreement or that it is material, nor shall such information be deemed to establish a standard of materiality. 9. REPRESENTATIONS AND WARRANTIES OF VENDORS Except as otherwise set forth in any Schedule hereto, the Vendors severally represent and warrant to the Buyer as follows. 9.1 Representations and Warranties of DGHA Persons Except as otherwise set forth in any Schedule hereto, the DGHA Persons represent and warrant to the Buyer: (a) Organisation of Marsupial, Marsupial-II; Authority Each of Marsupial and Marsupial-II Entity is a company duly organised, validly existing and in good standing under the laws of its jurisdiction of organisation and has all the requisite corporate power and authority to carry on its business as now being conducted and to own and use the properties owned and used by it. Except as disclosed on Schedule 9.1(a), each of Marsupial and Marsupial-II is qualified to do business in each jurisdiction in which the nature of its business requires it to be so qualified, except to the extent the failure to so qualify has not had, and would not reasonably be expected to have, a Material Adverse Effect. The execution and delivery of this agreement and the consummation of the transactions contemplated hereby have been duly authorised by all requisite corporate action on the part of the DGHA Persons. Assuming the due authorisation, execution and delivery hereof by the parties hereto other than the DGHA Persons, this agreement has been duly executed and delivered by the DGHA Persons and constitutes the valid, binding and enforceable obligation of the DGHA Persons, except as such enforceability may be limited by bankruptcy, insolvency, reorganisation or similar laws affecting creditors' rights generally or by general equitable principles. (b) Capitalisation of Marsupial, Marsupial-II Attached hereto as Schedule 9.1(b) is a copy of the Amended and Restated Limited Liability Company Agreement of, respectively, Marsupial and Marsupial-II. Except as set forth in said agreements, there are no membership interests in such companies and there are no outstanding options, warrants or other rights of any kind to acquire any interests of any such company or securities convertible into or exchangeable for or which otherwise confer on the holder thereof any right to acquire any such additional interests, nor is any such company committed to issue any such option, warrant, right or security. The DGHA Persons are the beneficial owners of 100% of the Membership Interests in Marsupial and Marsupial-II and own all such Membership Interests free and clear of all liens, charges, encumbrances, restrictions and commitments of any kind. (c) No Trading By Stockholder Entities Except as set forth on Schedule 9.1(c), neither Marsupial nor Marsupial-II have any assets, liabilities or employees. Except as set forth on Schedule 9.1(c), neither Marsupial nor Marsupial-II has carried on business or otherwise traded between the date of its incorporation and the Closing Date. (d) Ability to Carry Out the Agreement Except as disclosed on Schedule 9.1(d), none of the DGHA Persons, Marsupial or Marsupial-II is subject to or bound by any provision of: (i) any law, statute, rule, regulation, or judicial or administrative decision; (ii) any articles or certificate or incorporation or by laws; (iii) any mortgage, deed of trust, lease, note, stockholders' agreement, partnership agreement, bond, indenture, license, permit, trust; or (iv) any judgment, order, writ, injunction, or decree of any court, governmental body, administrative agency or arbitrator, that would prevent or be violated by or under which there would be a default as a result of, nor is there required any consent of any Person under any contract or agreement required to be disclosed on and actually disclosed on Schedule 9.1(d)which has not been obtained for, the execution, delivery and performance by the DGHA Persons of this agreement and the transactions contemplated hereby, other than any violations, defaults or failures to obtain consents which have not had and are not reasonably likely to have a Material Adverse Effect or a material adverse effect on the ability of the DGHA Persons to perform its obligations under this agreement. (e) Brokers and Intermediaries None of the DGHA Persons, Marsupial or Marsupial-II has employed any broker, finder, adviser or intermediary in connection with the transactions contemplated by this agreement which would be entitled to a broker's, finder's or similar fee or commission in connection therewith or upon the consummation thereof. (f) Tax Matters Except as disclosed on Schedule 9.1(f): (i) all Returns required to be filed in respect of the business of Marsupial and Marsupial-II on or prior to the Closing Date have been or will be filed when due in timely fashion and were or will be correct and complete in all material respects; (ii) all Taxes shown on such Returns that are due on or prior to the Closing Date have been or will be paid when due in timely fashion or adequate accruals have been or will be established for the payment of such Taxes; (iii) to the knowledge of the DGHA Persons, there is no action, suit, proceeding, investigation, audit or claim now pending regarding any Taxes relating to the income, properties or operations of the business of Marsupial or Marsupial-II; (iv) there are no agreements for the extension of the time for assessment of any Taxes relating to the income, properties or operations of the businesses of Marsupial or Marsupial-II; and (v) all Taxes relating to the income, properties or operations of the business of Marsupial or Marsupial-II, which Taxes Marsupial or MarsupialII is required by law to withhold or collect have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable. 9.2 Representations and Warranties of Prudential Except as otherwise set forth in any Schedule hereto, Prudential represents and warrants to the Buyer: (a) Organisation of Soda Ash; Authority Soda Ash is a corporation duly organised, validly existing and in good standing under the laws of its jurisdiction of organisation and has all the requisite corporate power and authority to carry on its business as now being conducted and to own and use the properties owned and used by it. Except as disclosed on Schedule 9.2(a), Soda Ash is qualified to do business in each jurisdiction in which the nature of its business requires it to be so qualified, except to the extent the failure to so qualify has not had, and would not reasonably be expected to have, a Material Adverse Effect. The execution and delivery of this agreement and the consummation of the transactions contemplated hereby have been duly authorised by all requisite corporate action on the part of Prudential. Assuming the due authorisation, execution and delivery hereof by the parties hereto other than Prudential, this agreement has been duly executed and delivered by Prudential and constitutes the valid, binding and enforceable obligation of Prudential, except as such enforceability may be limited by bankruptcy, insolvency, reorganisation or similar laws affecting creditors' rights generally or by general equitable principles. (b) Capitalisation of Soda Ash The authorised, issued and outstanding capital stock of Soda Ash is set forth on Schedule 9.2(b). All of the issued and outstanding shares of capital stock of Soda Ash are duly authorised, validly issued, fully paid and non-assessable. Except as disclosed on Schedule 9.2(b), there are no outstanding options, warrants or other rights of any kind to acquire any additional shares of capital stock of Soda Ash or securities convertible into or exchangeable for or which otherwise confer on the holder thereof any right to acquire any such additional shares, nor is Soda Ash committed to issue any such option, warrant, right or security. Prudential is the beneficial owner of 100% of the issued capital of Soda Ash and owns all such shares free and clear of all liens, charges, encumbrances, restrictions and commitments of any kind. (c) No Trading By Soda Ash Except as set forth on Schedule 9.2(c) Soda Ash has no assets, liabilities or employees. Except as set forth on Schedule 9.2(c), Soda Ash has not carried on business or otherwise traded between the date of its incorporation and the Closing Date. (d) Ability to Carry Out the Agreement Except as disclosed on Schedule 9.2(d), none of Prudential or Soda Ash is subject to or bound by any provision of: (i) any law, statute, rule, regulation, or judicial or administrative decision; (ii) any articles or certificate or incorporation or by laws; and (iii) any mortgage, deed of trust, lease, note, stockholders' agreement, partnership agreement, bond, indenture, license, permit, trust; or any judgement, order, writ, injunction, or decree of any court, governmental body, administrative agency or arbitrator, that would prevent or be violated by or under which there would be a default as a result of, nor is there required any consent of any Person under any contract or agreement required to be disclosed on and actually disclosed on Schedule 9.2(d) which has not been obtained for, the execution, delivery and performance by Prudential of this agreement and the transactions contemplated hereby, other than any violations, defaults or failures to obtain consents which have not had and are not reasonably likely to have a Material Adverse Effect or a material adverse effect on the ability of Prudential to perform its obligations under this agreement. (e) Brokers and Intermediaries None of Prudential or Soda Ash has employed any broker, finder, adviser or intermediary in connection with the transactions contemplated by this agreement which would be entitled to a broker's finder's or similar fee or commission in connection therewith or upon the consummation thereof. (f) Tax Matters Except as disclosed on Schedule 9.2(f): (i) all Returns required to be filed in respect of the business of Soda Ash on or prior to the Closing Date have been or will be filed when due in timely fashion and were or will be correct and complete in all material respects; (ii) all Taxes shown on such Returns that are due on or prior to the Closing Date have been or will be paid when due in timely fashion or adequate accruals have been or will be established for the payment of such Taxes; (iii) to the knowledge of Prudential, there is no action, suit, proceeding, investigation, audit or claim now pending regarding any Taxes relating to the income, properties or operations of the business of Soda Ash; (iv) there are no agreements for the extension of the time for assessment of any Taxes relating to the income, properties or operations of the businesses of Soda Ash; and (v) all Taxes relating to the income, properties or operations of the business of Soda Ash, which Taxes Soda Ash is required by law to withhold or collect have been duly withheld or collected, and have been timely paid over to the proper authorises to the extent due and payable. 9.3 Representations and Warranties of Search Except as otherwise set forth in any Schedule hereto, Search represents and warrants to the Buyer: (a) Organisation of Search; Authority Search is a corporation duly organised, validly existing and in good standing under the laws of its jurisdiction of organisation and has all the requisite corporate power and authority to carry on its business as now being conducted and to own and use the properties owned and used by it. The execution and delivery of this agreement and the consummation of the transactions contemplated hereby have been duly authorised by all requisite corporate action on the part of Search. Assuming the due authorisation, execution and delivery hereof by the parties hereto other than Search, this agreement has been duly executed and delivered by Search and constitutes the valid, binding and enforceable obligation of Search, except as such enforceability may be limited by bankruptcy, insolvency, reorganisation or similar laws affecting creditors' rights generally or by general equitable principles. Search is the beneficial owner of the Search Company Shares and owns all such shares free and clear of all liens, charges, encumbrances, restrictions and commitments of any kind. (b) Ability to Carry Out the Agreement Except as disclosed on Schedule 9.3(b), Search is not subject to or bound by any provision of: (i) any law, statute, rule, regulation, or judicial or administrative decision; (ii) any articles or certificate or incorporation or by laws; and (iii) any mortgage, deed of trust, lease, note, stockholders' agreement, partnership agreement, bond, indenture, license, permit, trust; or any judgement, order, writ, injunction, or decree of any court, governmental body, administrative agency or arbitrator, that would prevent or be violated by or under which there would be a default as a result of, nor is there required any consent of any Person under any contract or agreement required to be disclosed on and actually disclosed on Schedule 9.3(b) which has not been obtained for, the execution, delivery and performance by Search of this agreement and the transactions contemplated hereby, other than any violations, defaults or failures to obtain consents which have not had and are not reasonably likely to have a Material Adverse Effect or a material adverse effect on the ability of Search to perform its obligations under this agreement. (c) Brokers and Intermediaries Search has not employed any broker, finder, adviser or intermediary in connection with the transactions contemplated by this agreement which would be entitled to a broker's finder's or similar fee or commission in connection therewith or upon the consummation thereof. 9.4 Representations and Warranties of the Manager Shareholders Except as otherwise set forth in any Schedule hereto, each of the Manager Shareholders represents and warrants to the Buyer: (a) Authority; Manager Shareholders Each of the Manager Shareholders represents and warrants to the Buyer that the execution and delivery of this agreement and the consummation of the transactions contemplated hereby have been duly authorised by all requisite corporate or other action on the part of the Manager Shareholders. Assuming the due authorisation, execution and delivery hereof by parties hereto other than the Manager Shareholders, this agreement has been duly executed and delivered by the Manager Shareholders and constitutes the valid, binding and enforceable obligations of the Manager Shareholders, except as such enforceability may be limited by bankruptcy, insolvency, reorganisation or similar laws affecting creditors' rights generally or by general equitable principles. Each of the Manager Shareholders set forth on Schedule 2 is the beneficial owner of the Manager Company Shares as set forth on Schedule 2 and owns all such shares free and clear of all liens, charges, encumbrances, restrictions and commitments of any kind. (b) Ability to Carry Out the Agreement Except as disclosed on Schedule 9.4(b), none of the Manager Shareholders is subject to or bound by any provision of: (i) any law, statute, rule, regulation, or judicial or administrative decision; (ii) any articles or certificate or incorporation or by laws; and (iii) any mortgage, deed of trust, lease, note, stockholders' agreement, partnership agreement, bond, indenture, license, permit, trust; or any judgement, order, writ, injunction, or decree of any court, governmental body, administrative agency or arbitrator, that would prevent or be violated by or under which there would be a default as a result of, nor is there required any consent of any Person under any contract or agreement required to be disclosed on and actually disclosed on Schedule 9.4(b) which has not been obtained for the execution, delivery and performance by each of the Manager Shareholders of this agreement and the transactions contemplated hereby, other than any violations, defaults or failures to obtain consents which have not had and are not reasonably likely to have a Material Adverse Effect or a material adverse effect on the ability of each of the Manager Shareholders to perform its obligations under this agreement. (c) Brokers and Intermediaries Other than Chase Securities Inc., none of the Manager Shareholders has employed any broker, finder, adviser or intermediary in connection with the transactions contemplated by this agreement which would be entitled to a broker's finder's or similar fee or commission in connection therewith or upon the consummation thereof. Any such fees due to Chase Securities Inc shall be paid by the Company. 9.5 Disclaimer of Other Representations and Warranties; Knowledge; Disclosure (a) None of Vendors makes, or has made, any representations or warranties relating to the Stockholder Entities, the Company, any Subsidiary, or the business of the Stockholder Entities, the Company or any Subsidiary or otherwise in connection with the transactions contemplated hereby other than those expressly set forth herein which are made by the Vendors. Without limiting the generality of the foregoing, none of the Vendors has made, or shall be deemed to have made, any representations or warranties in the Information Memorandum relating to the businesses of the Stockholder Entities, the Company and its Subsidiaries prepared by Chase Securities Inc. on behalf of the Company and supplied to the Buyer prior to the date hereof (the Information Memorandum) or in any presentation of the businesses of the Stockholder Entities, the Company and the Subsidiaries in connection with the transactions contemplated hereby, and no statement contained in the Information Memorandum or made in any such presentation shall be deemed a representation or warranty hereunder or otherwise. It is understood that any cost estimates, projections or other predictions, any data, any financial information or any memoranda or offering materials or presentations, including but not limited to the Information Memorandum, are not and shall not be deemed to be or to include representations or warranties of the Vendors. No Person has been authorised by the Vendors to make any representation or warranty relating to the Company or any Subsidiary, the business of any Stockholder Entity, Company or any Subsidiary or otherwise in connection with the transactions contemplated hereby and, if made, such representation or warranty must not be relied upon as having been authorised by the Vendors. (b) Whenever a representation or warranty made by the Vendors herein refers to the knowledge of the Vendors, such knowledge shall be deemed to consist only of the actual knowledge on the date hereof and on the Closing Date, as applicable, of those persons listed on Schedule 9.5. (c) Notwithstanding anything to the contrary contained in this agreement or in any of the Schedules, any information disclosed in one Schedule shall be deemed to be disclosed in all Schedules. Certain information set forth in the Schedules is included solely for informational purposes and may not be required to be disclosed pursuant to this agreement. The disclosure of any information shall not be deemed to constitute an acknowledgement that such information is required to be disclosed in connection with the representations and warranties made by the Company in this agreement or that it is material, nor shall such information be deemed to establish a standard of materiality. 9.6 Representations and Warranties The representations and warranties of the Vendors made hereunder shall be true in all material respects at and as of the Closing Date, with the same force and effect as though made at and as of the Closing Date, except for changes permitted or contemplated by this agreement and except to the extent that any representation and warranty is made as of a specified date, in which case such representation and warranty shall be true in all material respects as of such date. 10. REPRESENTATIONS AND WARRANTIES OF THE BUYER The Buyer represents and warrants to the Vendor that: 10.1 Organisation and Authority of the Buyer The Buyer is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, with the corporate power and authority to enter into this agreement and to perform its obligations hereunder. The execution and delivery of this agreement and the consummation of the transactions contemplated hereby have been duly authorised by all requisite corporate action on the part of the Buyer. This agreement has been duly executed and delivered by the Buyer and constitutes the valid, binding and enforceable obligation of the Buyer, subject to applicable bankruptcy, reorganisation, insolvency, moratorium and other laws affecting creditors' rights generally from time to time in effect and to general equitable principles. 10.2 Ability to Carry Out the Agreement The Buyer is not subject to or bound by any provision of: (a) any law, statute, rule, regulation or judicial or administrative decision; (b) any articles or certificate of incorporation or by- laws; (c) any mortgage, deed of trust, lease, note, stockholders' agreement, partnership agreement, bond, indenture, or other material instrument or agreement; and (d) any judgment, order, writ, injunction or decree of any court, governmental body, administrative agency or arbitrator, that would prevent or be violated by or under which there would be a conflict, breach or default as a result of, nor is the consent required of any Person under any material agreement which has not been obtained for, the execution, delivery and performance by the Buyer of this agreement and the transactions contemplated hereby other than any violations, defaults or failures to obtain consents which have not had a material adverse effect on the ability of the Buyer to perform its obligations under this agreement. 10.3 Consent and Approvals Except as disclosed on Schedule 10.3, no consent, approval, order or authorisation of, or registration, declaration or filing with, any Governmental Entity, is required by or with respect to the Buyer or any of its Subsidiaries in connection with the execution and delivery of this agreement by the Buyer or the consummation by the Buyer of the transactions contemplated hereby, the failure of which to obtain would have a material adverse effect on the ability of the Buyer to enter into this agreement and to consummate the transactions contemplated hereby. 10.4 Financial Ability to Perform The Buyer has, or has access to, sufficient funds to pay the aggregate Purchase Price on the terms and conditions contemplated by this agreement. The Buyer acknowledges and agrees that the Buyer's performance of its obligations under this agreement is not in any way contingent upon the availability of financing to the Buyer. 10.5 Brokers and Intermediaries The Buyer has not employed any broker, finder, adviser or intermediary other than Salomon Smith Barney in connection with the transactions contemplated by this agreement which would be entitled to a broker's, finder's, or similar fee or commission in connection therewith or upon the consummation thereof. Any such fees due Salomon Smith Barney shall be paid by Buyer. 10A. BUYER'S OPTION 10A.1 Exercise of Option If the Buyer exercises the option in respect of IMC Australia Merger Sub, the representations and warranties set forth in clause 10 will be deemed to apply (as appropriate) to IMC Australia Merger Sub in addition to the Buyer. 11. CERTAIN COVENANTS AND AGREEMENTS OF THE COMPANY AND THE BUYER 11.1 Access and Information The Company and its Subsidiaries shall permit the Buyer and its representatives after the date of this agreement to have reasonable access during normal business hours, upon reasonable advance notice, to the properties, contracts, books and records of the Company and its Subsidiaries for the purpose of verifying the representations and warranties of the Company hereunder, provided that such access shall be conducted by the Buyer and its representatives in such a manner as not to interfere unreasonably with the businesses or operations of the Company or any Subsidiary. All information provided to the Buyer pursuant hereto shall be subject to that certain confidentiality agreement dated 21 March 1997 executed by the Buyer (the Confidentiality Agreement). The Buyer shall notify the Company promptly upon its discovery of any information which constitutes or would indicate a material breach by the Company of any representation, warranty or agreement of the Company hereunder. 11.2 Regulatory Filings Each of the parties hereto will furnish to the other party hereto such necessary information and reasonable assistance as such other party may reasonably request in connection with its preparation of necessary filings or submissions to any Governmental Entity. 11.3 Conduct of Business Prior to the Closing, and except as otherwise expressly contemplated by this agreement, the Company shall operate the businesses conducted by it in all material respects in the ordinary and usual course and cause the business operated by its Subsidiaries to be operated in all material respects in the ordinary and usual course. 11.4 Dividends; Changes in Stock The Company shall not, nor shall it permit any of its Subsidiaries to (other than in the case of wholly owned Subsidiaries): (a) declare or pay any dividends on or make other distributions in respect of any of its capital stock or shares (other than as contemplated by clause 6.3(b)); (b) split, combine or reclassify any of its capital stock or shares or issue or authorise or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or shares; (c) repurchase, redeem or otherwise acquire (other than as required pursuant to the HCA Equity Documents), or permit any subsidiary to purchase or otherwise acquire, any share of its capital stock or shares issue) deliver or sell, or authorise or propose the issuance, delivery or sale of, any share of its capital stock or shares of any class or any securities convertible into, or any rights, warrants or options to acquire, any such shares or convertible securities; or (d) enter into any transaction with any person listed on Schedule 8.21 which results in an increase in amounts otherwise currently being paid by the Company or any Subsidiary to or for the benefit of any such person, in each case except as otherwise provided for or permitted by this agreement. 11.5 Satisfaction of Conditions (a) Each of the Buyer and the Vendor will take all reasonable actions necessary to comply promptly with all legal requirements which may be imposed on itself with respect to the agreement. (b) Subject to the terms and conditions of this agreement, each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this agreement, including full cooperation with the other party. (c) Each of the Buyer and the Vendor will, and will cause the Stockholder Entities and the Company and its Subsidiaries to, take all reasonable actions necessary to obtain (and will cooperate with each other in obtaining) any consent, authorisation, order or approval of, or any exemption by, any Governmental Entity required to be obtained by the Buyer and the Company or any of their Subsidiaries in connection with the taking of any action contemplated by this agreement. 11.6 Employee Matters (a) The Buyer shall not, at any time prior to 180 days after the Closing Date, terminate the employment of any employee of the Company or any Subsidiary without complying fully with the requirements of any applicable law, award, enterprise bargaining agreement or arrangement with respect to such termination. (b) During the period from the Closing Date through the second anniversary of the Closing Date, the Buyer shall maintain, or cause to be maintained the employee benefit plans, policies and arrangements described on Schedule 11.6 (the Company Benefits), and take such other actions described therein so as to provide benefits to the Employees which are in the aggregate substantially equivalent to, and provided pursuant to substantially equivalent terms and conditions as, the Company Benefits as in effect immediately prior to the Closing Date, provided, however, that, subject to the Buyer's obligations to provide benefits to the Employees which are in the aggregate substantially equivalent to, and provided pursuant to substantially equivalent terms and conditions as, the Company Benefits as in effect immediately prior to the Closing Date, the Buyer shall not be obligated to maintain any specific employee benefit plan, policy or arrangement to the extent so doing would be in violation of applicable law. 11.7 Tax Matters (a) Notwithstanding clause 13.1, the Buyer shall be liable for, and shall pay when due, any transfer, gains, documentary, sales, use, registration, stamp, value added or other similar Taxes payable in respect of this agreement or by reason of any instrument or transactions contemplated by this agreement or attributable to the sale, transfer or delivery of the Sale Stock hereunder, (other than any capital gains tax or income tax payable by any Vendor or Stockholder Entity) and the Buyer shall, at its own expense, file all necessary Tax returns and other documentation with respect to all such Taxes. (b) After the Closing Date, the Buyer shall, and shall cause the Company and each Stockholder Entity to, provide each party hereto with such co-operation and information relating to the Company, each Subsidiary and each Stockholder Entity as such party reasonably may request in filing any Return, amended Return or claim for refund, determining any Tax liability or a right to refund of Taxes, or conducting or defending any audit or other proceeding in respect of Taxes. The Buyer shall cause the Company, each Subsidiary and each Stockholder Entity to retain all Returns, schedules and work papers, and all material records and other documents relating thereto, until the expiration of the statute of limitations (and, to the extent notified by any party, any extensions thereof) of the taxable years to which such Returns and other documents relate and until the final determination of any Tax in respect of such years. Any information obtained under this clause 11.7 shall be kept confidential, except as may be otherwise necessary in connection with filing any Return, amended Return, or claim for refund, determining any Tax liability or right to refund of Taxes, or in conducting or defending any audit or other proceeding in respect of Taxes. Notwithstanding the foregoing, neither the Buyer, nor any of its affiliates, shall be required unreasonably to prepare any document, or determine any information not then in its possession, in response to a request under this clause 11.7. 11.8 Announcement None of the parties will issue any press release or otherwise make any public statement with respect to this agreement and the transactions contemplated hereby without the prior consent of the other parties to this agreement (which consent shall not be unreasonably withheld), except as may be required by applicable law or stock exchange regulation. Notwithstanding anything in this clause 11.8 to the contrary, each party will, to the extent practicable, consult with the other parties to this agreement before issuing, and provide each other party the opportunity to review and comment upon, any such press release or other public statements with respect to this agreement and the transactions contemplated hereby whether or not required by law. 12. NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES; CERTAIN ACKNOWLEDGMENTS 12.1 Non-survival of Representations and Warranties None of the representations and warranties in this agreement or in any instrument delivered pursuant to this agreement shall survive the Effective Time and all such representations and warranties will be extinguished on Closing and none of the Company, any Subsidiary, any Stockholder Entity, any Vendor or any officer, director or employee, stockholder or shareholder shall be under any liability whatsoever with respect to any such representation or warranty after such time. This clause 12 shall not limit any covenant or agreement of the parties which by its terms contemplates performance after the Effective Time. 12.2 Information On or immediately prior to the Closing Date, the Buyer shall provide to the Company a certificate pursuant to which the Buyer will acknowledge each of the following: (a) the Buyer has received all materials relating to the business of the Company and each Subsidiary which it has requested and has been afforded the opportunity to obtain any additional information necessary to verify the accuracy of any such information or of any representation or warranty made by the Company hereunder or to otherwise evaluate the merits of the transactions contemplated hereby; and (b) the Company and its representatives have answered to the Buyer's satisfaction all enquiries that the Buyer or its representatives have made concerning the business of the Company and each Subsidiary or otherwise relating to the transactions contemplated hereby. 13. COSTS AND STAMP DUTY 13.1 Costs Generally (a) The Company must bear and is responsible for all costs incurred by or on behalf of the Vendor in connection with the preparation, execution, Closing and carrying into effect of this agreement. (b) The Buyer must bear and is responsible for its own costs in connection with the preparation, execution, Closing and carrying into effect of this agreement. 14. LIQUIDATED DAMAGES The parties hereto agree that, if the Effective Date shall not have occurred under the circumstances described below, because it is impossible to adequately measure actual damages, in lieu of actual damages, the Company shall be entitled to liquidated damages in the amount of US$5 million (the Liquidated Damages), which amount the parties hereby agree to be a reasonable amount under the circumstances of the transaction contemplated hereby. The Company agrees and acknowledges that, in the absence of the Buyer's fraud or wilful misconduct, such Liquidated Damages are in full satisfaction of, and shall be in lieu of, any other claim, right, or other cause of action which the Company might have with respect to the circumstances described below, and the Company agrees that, in the absence of the Buyer's fraud or wilful misconduct, upon payment of such Liquidated Damages, the Company shall release Buyer from any and all such claims. The Liquidated Damages shall be payable to the Company by Buyer on the Final Termination Date if (x) the Effective Time shall not have occurred on or before the Final Termination Date, (y) the conditions set forth in Sections 5.2(a), 5.2(b), 5.2(d), 5.2(e), 5.2(f), 5.2(g)(iii), 5.2(h) and 5.2(j) (save that for the purposes of this section, the reference in 5.2(j) to the Closing Date shall be deemed to be a reference to the Final Termination Date) shall not have been breached in any material respect as of the Final Termination Date (other than, in the case of Sections 5.2(d) and 5.2(e), with respect to antitrust matters) and (z) the closing contemplated by Section 5.2(i) shall not have occurred and the conditions set forth in Sections 8.1, 8.2, 8.4, 8.5 and 8.6 of the Agreement and Plan of Merger shall not have been breached in any material respect as of the Final Termination Date (other than, in the case of Sections 8.4 and 8.5, with respect to antitrust matters). 15. NOTICES 15.1 Method of Giving Notices A notice, consent, approval or other communication (each a Notice under this clause) under this agreement must be signed by or on behalf of the person giving it addressed to the person to whom it is to be given and: (a) delivered to that person's address; (b) sent by pre-paid air mail to that person's address; or (c) transmitted by facsimile to that person's address. 15.2 Time of Receip A Notice given to a person in accordance with this clause is treated as having been given and received: (a) if delivered to a person's address, by 3:00 pm on the day of delivery if a Business Day, otherwise on the next Business Day; (b) if sent by pre-paid air mail, by the third Business Day after posting; or (c) if transmitted by facsimile to a person's address and a correct and complete transmission report is received, by 3:00 pm on the day of transmission if a Business Day, otherwise on the next Business Day. References to days and times are references in all cases to days and times at the address of the recipient. 15.3 Address of Parties For the purposes of this clause the address of a person is the address set out below or another address of which that person may from time to time give notice to each other person: Prudential Asset Management Asia Limited Address: PO Box 71, Craigmuir Chambers, Road Town, Tortola British Virgin Islands Facsimile: (809) 494 3547 Attention: with a copy to: Prudential Asset Management Asia Hong Kong Limited Address: 32nd floor, Alexandra House, 18 Chater Road, Hong Kong Facsimile: (852) 2877 3748 Attention: Monica Tsui Soda Ash (L) Bhd Address: Suite 114A, 1st floor, Hotel Labuan, Jalan Merdeka PO Box 80107, 87011 Labuan, Malaysia DGHA Persons and Trusts Address: c/- D George Harris & Associates Inc., 32nd floor, 399 Park Avenue, New York, United States of America Facsimile: (212) 207 6470 Attention: Donald G Kilpatrick Marsupial LLC Address: c/- D George Harris & Associates Inc., 32nd floor, 399 Park Avenue, New York, United States of America Facsimile: (212) 207 6470 Attention: Donald G Kilpatrick Marsupial-II LLC Address: c/- D George Harris & Associates Inc., 32nd floor, 399 Park Avenue, New York, United States of America Facsimile: (212) 207 6470 Attention: Donald G Kilpatrick Search Investment NV Address: c/- 9th Floor World-wide House, 19 Des Voeux Road, Central, Hong Kong Facsimile: (852) 2810 1572 Attention: Simon Cox Manager Shareholders Address: Solvay Road, Osborne, South Australia Facsimile: (618) 8248 8250 Attention: David Reid Buyer Address: 2100 Sanders Road, Northbrook, Illinois, United States of America Facsimile: (847) 205 4894 Attention: Marshall I Smith, Esq. Company Address: Solvay Road, Osborne, South Australia Facsimile: (618) 8248 8250 Attention: Chief Executive Officer 16. GENERAL 16.1 Amendment This agreement may only be amended or supplemented in writing, signed by the parties. 16.2 Waiver The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver. 16.3 Entire agreement This agreement and the Agreement and Plan of Merger constitute the entire agreement between the parties in relation to its subject matter. No understanding, arrangement or provision not expressly set out in this agreement will bind the parties. Accordingly, all correspondence, negotiations and other communications between the parties which precede this agreement are superseded by and merged in it. 16.4 Severability Any provision in this agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable, and is otherwise capable of being severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction, unless it materially alters the nature or any material term of this agreement. 16.5 No Assignment No party may assign or transfer any of its rights or obligations under this agreement without the prior consent in writing of all the other parties, other than as contemplated by this agreement. 16.6 Further Assurance Each party must do, sign, execute and deliver and must use its reasonable best efforts to procure that each of its employees and agents does, signs, executes and delivers, all deeds, documents, instruments and acts reasonably required of it or them by notice from another party to effectively carry out and give full effect to this agreement and the rights and obligations of the parties under it, both before and after Closing. 16.7 Counterparts This agreement may be executed in any number of counterparts and all of those counterparts taken together constitute one and the same instrument. 16.8 Attorneys Each attorney who executes this agreement on behalf of a party declares that the attorney has no notice of the revocation or suspension by the grantor or in any manner of the power of attorney under the authority of which the attorney executes this agreement and has no notice of the death of the grantor. 17. LAW AND JURISDICTION 17.1 Governing Law This agreement is governed by the law in force in New South Wales. 17.2 Submission to Jurisdiction The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts which may hear appeals from those courts in respect of any proceedings in connection with this agreement. 17.3 Status of Prudential Notwithstanding any other provision of this agreement, the parties hereby: (a) acknowledge that PAPE is an exempted limited partnership established and registered under the laws of the Cayman Islands, including, but not limited to, the Exempted Limited Partnership Law, 1991 of the Cayman Islands (the ELP Law); and (b) agree that, in accordance with such Cayman Islands laws, which laws shall be deemed by express choice of the parties to be incorporated into and form a part of this agreement for such purpose, the limited partners of PAPE shall not be liable, except as otherwise provided in the ELP Law, for any liabilities or obligations incurred by Prudential, as the general partner of PAPE, under this agreement or pursuant to any claim, action or dispute relating to this agreement or any related documents or matters. EXECUTED as an agreement. SIGNED BY, FOR AND ON BEHALF of PRUDENTIAL ASSET MANAGEMENT ASIA LIMITED as the General Partner of Prudential Asia Private Equity Limited Partnership in the presence of: Signed by Witness Signed Title SIGNED BY, FOR AND ON BEHALF of PRUDENTIAL ASSET MANAGEMENT ASIA LIMITED as the manager of certain assets of and attorneyin-fact for The Prudential Insurance Company of America in the presence of: Signed by Witness Signed Title For and on behalf of DGHA Persons and the Trusts who hereby accept the above terms and conditions and the above obligations to other parties to this agreement and undertake that the signatory below has capacity and authority to sign on their behalf and the signatory represents personally that he has such authority on behalf of the DGHA Persons and that he has no notice of revocation of any such authority and that he has the authority to execute this letter on behalf of such Trusts and to bind such Trusts and the trustees of such Trust and that no action may be taken by any such Trust in contravention of this letter. Donald G. Kilpatrick SIGNED BY, FOR AND ON BEHALF of SEARCH INVESTMENT NV by its authorised representative: Signed Title THE COMMON SEAL of HARRIS CHEMICAL AUSTRALIA PTY LIMITED (ACN 072 639 902) was affixed in the manner required by its articles of association: Director/Secretary Director Name Please Print Name Please Print MARSUPIAL L.L.C. by Name: Position: MARSUPIAL-II L.L.C. by Name: Position: SIGNED by SODA ASH (L) BHD (a Company incorporated in Malaysia with Registration No. LL00648) by its authorised representative: PLEASE PRINT NAME SIGNED for and on behalf of CHAND RAJIV KHANNA by its duly appointed attorney who warrants that the attorney has received no notice of revocation of the appointment in the presence of: Witness Attorney Name Please Print Name Please Print Date of Power of Attorney SIGNED for and on behalf of ANN ELIZABETH KHANNA by its duly appointed attorney who warrants that the attorney has received no notice of revocation of the appointment in the presence of: Witness Attorney Name Please Print Name Please Print Date of Power of Attorney SIGNED for and on behalf of GILBERT CALABY as trustees of the Calaby Family Trust by its duly appointed attorney who warrants that the attorney has received no notice of revocation of the appointment in the presence of: Witness Attorney Name Please Print Name Please Print Date of Power of Attorney SIGNED for and on behalf of SUSAN MARGARET CALABY as trustees of the Calaby Family Trust by its duly appointed attorney who warrants that the attorney has received no notice of revocation of the appointment in the presence of: Witness Attorney Name Please Print Name Please Print Date of Power of Attorney SIGNED for and on behalf of GRAEME N M GAUNT by its duly appointed attorney who warrants that the attorney has received no notice of revocation of the appointment in the presence of: Witness Attorney Name Please Print Name Please Print Date of Power of Attorney SIGNED for and on behalf of SANDRA M J GAUNT by its duly appointed attorney who warrants that the attorney has received no notice of revocation of the appointment in the presence of: Witness Attorney Name Please Print Name Please Print Date of Power of Attorney SIGNED for and on behalf of RICHARD W ZIEBARTH by its duly appointed attorney who warrants that the attorney has received no notice of revocation of the appointment in the presence of: Witness Attorney Name Please Print Name Please Print Date of Power of Attorney SIGNED for and on behalf of ELIZABETH ZIEBARTH by its duly appointed attorney who warrants that the attorney has received no notice of revocation of the appointment in the presence of: Witness Attorney Name Please Print Name Please Print Date of Power of Attorney SIGNED by DAVID ALEXANDER REID in the presence of: Witness Name Please Print Name Please Print IMC GLOBAL INC. by: Name: Position: Senior Vice President EX-99 4 PRESS RELEASE EXHIBIT 99 FOR IMMEDIATE RELEASE NEWS RELEASE Investor Contact: News Media Contact: David A. Prichard Thomas C. Pasztor 847.205.4843 847.205.4801 IMC GLOBAL COMPLETES ACQUISITION OF HARRIS CHEMICAL GROUP, INC. NORTHBROOK, IL, April 1, 1998 - IMC Global Inc. (NYSE: IGL) announced today that it has completed its previously announced acquisition of privately held Harris Chemical Group, Inc. (HCG) and its Australian affiliate, Penrice Soda Products Pty. Ltd., for $1.4 billion. Under the acquisition's terms, IMC Global purchased all of Harris Chemical's equity for $450 million in cash and assumed approximately $950 million of debt. The acquisition makes IMC Global the world's third- largest producer of salt and soda chemicals. Salt products are primarily used for road de-icing, food processing, water softeners and industrial applications. Soda chemicals are principally used in the manufacture of glass and numerous industrial and specialty chemical products. Other products acquired from Harris Chemical include sodium bicarbonate, boron chemicals, magnesium chloride and additional sulphate of potash capacity. "We will now quickly begin integrating the Harris organization into our Company," said Robert E. Fowler, Jr., president and chief executive officer of IMC Global. "This acquisition has added new dimensions for growth and expansion to our Company, including a new core business in salt and our first producing assets outside of North America. It will add approximately $850 million of revenues and more than $200 million of EBITDA annually, even before cost savings." Fowler noted that cost-reduction initiatives should result in savings of at least $50 million on an annualized basis by the year 2000. In addition to these savings, approximately $20 million should be saved annually in interest expense after IMC Global refinances Harris' high- cost debt. The acquisition is expected to be accretive to earnings in a relatively short period and make important contributions to earnings per share in calendar years 1999 and 2000, said Fowler. "As you look at the Harris portfolio, some impressive characteristics become clear," said Fowler. "Operations are low-cost and have numerous high-return and fast-payback investments. We clearly intend to use IMC Global's strong financial position to capitalize on these opportunities. In addition, the acquisition includes a highly skilled and dedicated work force, a seasoned operating management team, and well-placed assets with strong market positions and customer bases. By every measure, Harris is an excellent fit for IMC Global." IMC Global is one of the world's leading producers and suppliers of agricultural products and services, salt and industrial chemicals. With 1997 revenues and EBITDA of nearly $3 billion and $530 million, respectively, the Company is among the world's largest producers and marketers of phosphate and potash crop nutrients and animal feed 7ingredients. It also is one of the nation's leading distributors of agricultural products and services through its FARMARKET and Rainbow distribution networks. The Company is the world's third- largest producer of salt and soda chemicals, and produces sodium bicarbonate, boron chemicals and magnesium chloride. -----END PRIVACY-ENHANCED MESSAGE-----