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$250,000,000
AGCO CORPORATION
9 1/2% SENIOR NOTES DUE 2008
PURCHASE AGREEMENT
April 11, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, STEARNS & CO. INC.
SUNTRUST EQUITABLE SECURITIES CORPORATION,
As Representatives of the Several Purchasers,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. AGCO Corporation, a Delaware corporation (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"PURCHASERS") U.S. $250,000,000 principal amount of its 9 1/2% Senior Notes Due
2008 (the "OFFERED SECURITIES"). The Offered Securities will be guaranteed by
certain subsidiaries of the Company (the "SUBSIDIARY GUARANTORS"). The Offered
Securities will be issued under an indenture, dated as of April 17, 2001 (the
"INDENTURE"), between the Company, the Subsidiary Guarantors and SunTrust Bank,
as trustee (the "TRUSTEE"). The United States Securities Act of 1933 is herein
referred to as the "SECURITIES ACT."
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities to be offered by the Purchasers have
been prepared by the Company. Such preliminary offering circular (the
"PRELIMINARY OFFERING CIRCULAR") and offering circular (the "OFFERING
CIRCULAR"), as supplemented as of the date of this Agreement, together
with any other document approved by the Company for use in connection
with the contemplated resale of the Offered Securities are hereinafter
collectively referred to as the "OFFERING DOCUMENT." Unless stated to
the contrary, all references herein to the Offering Document are to the
Offering Document as of the date hereof and are not meant to include
any amendment or supplement thereto subsequent to such date. On the
date of this Agreement, the Offering Document does not include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished
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to the Company by any Purchaser through Credit Suisse First Boston
Corporation ("CSFBC") specifically for use therein, it being understood
and agreed that the only such information is that described as such in
Section 7(b) hereof. Except as disclosed in the Offering Document, on
the date of this Agreement, the Company's Annual Report on Form 10-K
most recently filed with the Securities and Exchange Commission (the
"COMMISSION") and all subsequent reports incorporated by reference in
the Offering Document (collectively, the "EXCHANGE ACT REPORTS") which
have been filed by the Company with the Commission or sent to
shareholders pursuant to the Securities Exchange Act of 1934 (the
"EXCHANGE ACT") do not include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. Such documents, when they were filed with the
Commission, conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Offering Document; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification; except to the extent that the failure to be so qualified
or in good standing would not have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries, taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(c) Each subsidiary of the Company is listed on Schedule B-1
hereto. Each subsidiary of the Company incorporated within the United
States is listed on Schedule B-2 hereto (the "U.S. SUBSIDIARIES"). Each
material foreign subsidiary of the Company is listed on Schedule B-3
hereto (the "FOREIGN SUBSIDIARIES" and, together with the U.S.
Subsidiaries, the "SUBSIDIARIES"). Each Subsidiary has been duly
incorporated and is an existing corporation in good standing under the
laws of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Offering Document; and each Subsidiary is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification; all of the
issued and outstanding capital stock of the Company and of each
Subsidiary has been duly authorized and validly issued and is fully
paid and nonassessable; and the capital stock (other than directors'
qualifying shares) of each Subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects, except for any lien or encumbrance on such capital stock to
secure the Company's obligations under the Bank Credit Agreement (as
defined in the Offering Circular).
(d) The Indenture has been duly authorized; the Offered
Securities have been duly authorized; and when the Offered Securities
are delivered and paid for pursuant to this Agreement on the Closing
Date (as defined below) and duly authenticated by the Trustee in
accordance with the terms of the Indenture, the Indenture will have
been duly executed and delivered, such Offered Securities will have
been duly executed, authenticated, issued and delivered, will be
entitled to the benefits provided by the Indenture and will conform in
all material respects to the description thereof contained in the
Offering Document and the Indenture, when executed and delivered by the
Trustee, and such Offered Securities will constitute valid and legally
binding obligations of the Company and the Subsidiary Guarantors, as
applicable, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(e) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Purchaser for a brokerage commission, finder's fee or other like
payment in connection with the offer and sale of the Offered
Securities.
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(f) Assuming that the representations, warranties and
agreements of the Purchasers contained herein are true, no consent,
approval, authorization, or order of, or filing with, any governmental
agency or body or any court is required by the Company for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement dated the date hereof, between the
Company and the Purchasers (the "REGISTRATION RIGHTS AGREEMENT"),
except for the order of the Commission declaring the Exchange Offer
Registration Statement or the Shelf Registration Statement (each as
defined in the Registration Rights Agreement) effective and as may be
required by the securities or "Blue Sky" laws of the various states in
connection with the offer and sale of the Offered Securities.
(g) The Company and its subsidiaries are not (i) in violation
of any of the terms and provisions of any statute, rule, regulation or
order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary or any
of their properties, or (ii) in default under any agreement or
instrument to which the Company or any subsidiary is a party or by
which the Company or any subsidiary is bound or to which any of the
properties of the Company or any subsidiary is subject, or (iii) in
violation of the charter or by-laws of the Company or any such
subsidiary, except, in the case of clauses (i) and (ii), as would not,
individually or in the aggregate, have a Material Adverse Effect.
(h) The execution, delivery and performance by the Company and
the Subsidiary Guarantors of the Indenture, this Agreement and the
Registration Rights Agreement, as applicable, and the issuance and sale
by it of the Offered Securities and compliance by the Company with the
terms and provisions thereof will not result (i) in a violation of any
of the terms and provisions of any statute, rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
properties, (ii) in a default under any agreement or instrument to
which the Company or any subsidiary is a party or by which the Company
or any subsidiary is bound or to which any of the properties of the
Company or any subsidiary is subject, or (iii) in a violation of the
charter or by-laws of the Company or any subsidiary, and the Company
has full power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement.
(i) This Agreement and the Registration Rights Agreement have
been duly authorized, executed and delivered by the Company.
(j) Except as disclosed in the Offering Document and for liens
and encumbrances under the Bank Credit Agreement or which, in the
aggregate, do not exceed $10 million, the Company and its subsidiaries
have good and marketable title to all real properties and all other
properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof
or materially interfere with the use made or to be made thereof by
them; and except as disclosed in the Offering Document, the Company and
its subsidiaries hold any leased real or personal property under valid
and enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by them.
(k) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(l) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
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(m) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(n) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries (i) is in violation of any statute,
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "ENVIRONMENTAL LAWS"), (ii) to its
knowledge owns or operates any real property contaminated with any
substance that is subject to any environmental laws, (iii) is liable
for any off-site disposal or contamination pursuant to any
environmental laws, or (iv) is subject to any claim or, to its
knowledge, any threatened claim, relating to any environmental laws,
which violation, contamination, liability or claim would individually
or in the aggregate have a Material Adverse Effect; and the Company is
not aware of any pending investigation which might lead to such a
claim.
(o) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting or, to its
knowledge threatened against, the Company, any of its subsidiaries or
any of their respective properties that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under the Indenture, this Agreement, or the Registration Rights
Agreement, or which are otherwise material in the context of the sale
of the Offered Securities.
(p) The financial statements of the Company and Ag-Chem
Equipment Co., Inc. ("AG-CHEM") included and incorporated by reference
in the Offering Document present fairly in all material respects the
financial position of the Company and its consolidated subsidiaries and
Ag-Chem and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and,
except as otherwise disclosed in the Offering Document, such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent
basis; and the assumptions used in preparing the pro forma financial
statements included in the Offering Document provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(q) Except as disclosed in the Offering Document, since the
date of the latest audited financial statements included in the
Offering Document there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the Offering Document,
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(r) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "INVESTMENT COMPANY ACT"); and the
Company is not and, after giving effect to the offering and sale of the
Offered Securities and the application of the
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proceeds thereof as described in the Offering Document, will not be an
"investment company" as defined in the Investment Company Act.
(s) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities are
listed on any national securities exchange registered under Section 6
of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system.
(t) Assuming that the representations, warranties and
agreements of the Purchasers contained herein are true, the offer and
sale by the Company of the Offered Securities in the manner
contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof,
Regulation D thereunder and Regulation S thereunder, and it is not
necessary to qualify an indenture in respect of the Offered Securities
under the United States Trust Indenture Act of 1939, as amended (the
"TRUST INDENTURE ACT").
(u) Neither the Company, nor any of its affiliates (as defined
in Rule 501(b) of Regulation D), nor any person acting on its or their
behalf (other than the Purchasers) (i) has offered or sold in the
United States or to any U.S. person (as such terms are defined in
Regulation S under the Securities Act) the Offered Securities or any
security which is or will be integrated with the sale of the Offered
Securities in a manner that would require the registration of the
Offered Securities under the Securities Act or (ii) has offered or sold
or will offer or sell the Offered Securities (A) in the United States
by means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act or (B) with
respect to any such securities sold in reliance on Rule 903 of
Regulation S ("REGULATION S") under the Securities Act, by means of any
directed selling efforts within the meaning of Rule 902(c) of
Regulation S. The Company, its affiliates and any person acting on its
or their behalf have complied and will comply with the offering
restrictions requirement of Regulation S, provided, however, that no
representation is made with respect to compliance by the Purchasers
with the offering restrictions requirement of Regulation S. The Company
has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Offered Securities except for
this Agreement.
(v) The Company is subject to Section 13 or 15(d) of the
Exchange Act.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 98.125% of the principal amount thereof
plus accrued interest from April 17, 2001 to the Closing Date (as hereinafter
defined), the respective principal amounts of Offered Securities set forth
opposite the names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Offered Securities to be offered and sold by the Purchasers in reliance on
Regulation S (the "REGULATION S SECURITIES") in the form of one or more
permanent global securities in registered form without interest coupons (the
"REGULATION S GLOBAL SECURITIES") which will be deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") for the respective accounts
of the DTC participants for Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System ("EUROCLEAR"), and Cedelbank societe
anonyme ("CEDELBANK") and registered in the name of Cede & Co., as nominee for
DTC. The Company will deliver against payment of the purchase price the Offered
Securities to be purchased by each Purchaser hereunder and to be offered and
sold by each Purchaser in reliance on Rule 144A under the Securities Act (the
"144A SECURITIES") in the form of one permanent global security in definitive
form without interest coupons (the "RESTRICTED GLOBAL SECURITIES") which will be
deposited with the Trustee as custodian for DTC and registered in the name of
Cede & Co., as nominee for DTC. The Regulation S Global Securities and the
Restricted Global Securities shall be assigned separate CUSIP numbers. The
Restricted Global Securities shall include
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the legend regarding restrictions on transfer set forth under "Transfer
Restrictions" in the Offering Document. Until the termination of the restricted
period (as defined in Regulation S) with respect to the offering of the Offered
Securities, interests in the Regulation S Global Securities may only be held by
the DTC participants for Euroclear and Cedelbank. Interests in any permanent
global securities will be held only in book-entry form through Euroclear,
Cedelbank or DTC, as the case may be, except in the limited circumstances
described in the Offering Document.
Payment for the Regulation S Securities and the 144A Securities shall
be made by the Purchasers in Federal (same day) funds by official check or
checks or wire transfer to an account at a bank acceptable to CSFBC drawn to the
order of AGCO Corporation at the office of King & Spalding, 191 Peachtree
Street, Atlanta, Georgia at 10:00 A.M., (New York time), on April 17, 2001, or
at such other time not later than seven full business days thereafter as CSFBC
and the Company determine, such time being herein referred to as the "Closing
Date", against delivery to the Trustee as custodian for DTC of (i) the
Regulation S Global Securities representing all of the Regulation S Securities
for the respective accounts of the DTC participants for Euroclear and Cedelbank
and (ii) the Restricted Global Securities representing all of the 144A
Securities. The Regulation S Global Securities and the Restricted Global
Securities will be made available for checking at the above office of King &
Spalding at least 24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the
Company that it is an "accredited investor" within the meaning of
Regulation D under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may
not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with
Regulation S or pursuant to an exemption from the registration
requirements of the Securities Act. Each Purchaser severally represents
and warrants that it has not offered or sold, and will not offer or
sell, any Offered Securities except (i) to persons whom it reasonably
believes to the Qualified Institutional Buyers as defined in and
pursuant to Rule 144A under the Securities Act, (ii) to a limited
number of other institutional investors (each, an "Institutional
Accredited Investor") whom it believes to be "accredited investors" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) or (iii) to non-U.S. persons outside the United States
to whom it reasonably believes offers and sales of the Offered
Securities may be made in reliance upon Regulation S under the
Securities Act. Each Purchaser severally represents and agrees that it
has offered and sold the Offered Securities, and will offer and sell
the Offered Securities (i) as part of its distribution, at any time and
(ii) otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 or Rule
144A under the Securities Act ("RULE 144A"). Accordingly, neither such
Purchaser nor its affiliates, nor any persons acting on its or their
behalf, have engaged or will engage in any directed selling efforts
with respect to the Offered Securities, and such Purchaser, its
affiliates and all persons acting on its or their behalf have complied
and will comply with the offering restrictions requirement of
Regulation S. Each Purchaser severally agrees that, at or prior to
confirmation of sale of the Offered Securities, other than a sale
pursuant to Rule 144A, such Purchaser will have sent to each
distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases the Offered Securities from it during
the restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the later of the date of the
commencement of the offering and the closing date, except in either
case in accordance with Regulation S (or Rule 144A if available) under
the Securities Act. Terms used above have the meanings given to them by
Regulation S."
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Terms used in this subsection (b) have the meanings given to them by
Regulation S and Rule 144A.
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for any such arrangements with the other Purchasers or
affiliates of the other Purchasers or with the prior written consent of
the Company.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United
States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act,
including, but not limited to (i) any advertisement, article, notice or
other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or (ii) any seminar or
meeting whose attendees have been invited by any general solicitation
or general advertising. Each Purchaser severally agrees, with respect
to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or
otherwise prior to settlement of such resale a notice to the effect
that the resale of such Offered Securities has been made in reliance
upon the exemption from the registration requirements of the Securities
Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees
that (i) it has not offered or sold, and prior to the date six months
after the date of issue of the Offered Securities, will not offer or
sell any Offered Securities to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Act 1986 with respect
to anything done by it in relation to the Offered Securities in, from
or otherwise involving the United Kingdom; and (iii) it has only issued
or passed on and will only issue or pass on in the United Kingdom any
document received by it in connection with the issue of the Offered
Securities to a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on.
5. Certain Agreements of the Company. The Company agrees with the
several Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without CSFBC's consent, which consent
shall not be unreasonably withheld. If, at any time prior to the
completion of the resale of the Offered Securities by the Purchasers,
any event occurs as a result of which the Offering Document as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, the Company promptly will notify CSFBC of
such event and promptly will prepare, at its own expense, an amendment
or supplement which will correct such statement or omission. Neither
CSFBC's consent to, nor the Purchasers' delivery to offerees or
investors of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to CSFBC copies of any
preliminary offering circular, the Offering Document and all amendments
and supplements to such documents, in each case as soon as available
and in such quantities as CSFBC reasonably requests, one of which will
include the independent accountants' reports therein manually signed by
such independent accountants. At any time when the Company is not
subject to Section 13 or 15(d) of the Exchange Act, the Company will
promptly furnish or cause to be furnished to CSFBC (and, upon request,
to each of the other Purchasers) and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders and
purchasers, copies of the information required to be delivered to
holders and
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prospective purchasers of the Offered Securities pursuant to Rule
144A(d)(4) under the Securities Act (or any successor provision
thereto) in order to permit compliance with Rule 144A in connection
with resales by such holders of the Offered Securities. The Company
will pay the expenses of printing and distributing to the Purchasers
all such documents.
(c) The Company will arrange for the qualification of the
Offered Securities for offer and sale under the securities or "Blue
Sky" laws of such states and jurisdictions as CSFBC may reasonably
request and will pay filing fees, reasonably attorneys' fees and
disbursements in connection therewith and will continue such
qualifications in effect so long as required for the resale of the
Offered Securities by the Purchasers, provided that the Company will
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such state.
(d) To the extent that the Company's periodic reports under
the Exchange Act are not readily available in the Commission's EDGAR
system (or any successor thereto) or the Company no longer files
periodic reports under Section 13 or 15(d) of the Exchange Act, during
the period of seven years hereafter, the Company will furnish to CSFBC
and, upon request, to each of the other Purchasers, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to shareholders for such year; and the Company will furnish to
CSFBC and, upon request, to each of the other Purchasers (i) as soon as
available, a copy of each report and any definitive proxy statement of
the Company filed with the Commission under the Exchange Act or mailed
to stockholders, and (ii) from time to time, such other information
concerning the Company as CSFBC may reasonably request.
(e) During the period of two years after the Closing Date, the
Company will, upon request, furnish to CSFBC, each of the other
Purchasers and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined
in Rule 144 under the Securities Act) to, resell any of the Offered
Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the
Company will not be or become, an open-end investment company, unit
investment trust or face-amount certificate company that is, or is
required to be, registered under Section 8 of the Investment Company
Act.
(h) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, the Indenture and
the Registration Rights Agreement, including (i) the fees and expenses
of the Trustee and its counsel; (ii) all expenses in connection with
the execution, issue, authentication, packaging and initial delivery of
the Offered Securities and, as applicable, the Exchange Securities (as
defined in the Registration Rights Agreement), the preparation and
printing of this Agreement, the Registration Rights Agreement, the
Offered Securities, the Indenture, the Offering Document and amendments
and supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Offered Securities and as
applicable, the Exchange Securities; (iii) the cost of qualifying the
Offered Securities for trading in The Portal(SM) Market ("PORTAL") and
any expenses incidental thereto; (iv) the cost of any advertising
approved by the Company in connection with the issue of the Offered
Securities; (v) any reasonable expenses (including fees and
disbursements of counsel) incurred in connection with qualification of
the Offered Securities or the Exchange Securities for sale under the
laws of such jurisdictions in the United States and Canada as CSFBC
designates and the printing of memoranda relating thereto, and (vi)
expenses incurred in distributing preliminary offering circulars and
the Offering Document (including any amendments and supplements
thereto) to the Purchasers. The Company will also pay or reimburse the
Purchasers (to the extent incurred by them) for all travel expenses of
the Purchasers and the Company's officers and employees and any other
expenses of the Purchasers and the Company in connection with attending
or hosting meetings with prospective purchasers of the
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Offered Securities from the Purchasers. In addition to the foregoing,
the Company will pay to the Purchasers on the Closing Date the sum of
$1,000 as a non-accountable reimbursement of the Purchasers' other
expenses. Such amount may be deducted from the purchase price for the
Offered Securities set forth in Section 3 hereof.
(i) In connection with the offering, until CSFBC shall have
notified the Company and the other Purchasers of the completion of the
resale of the Offered Securities (which it agrees to do promptly
thereafter), neither the Company nor any of its affiliates has or will,
either alone or with one or more other persons, bid for or purchase for
any account in which it or any of its affiliates has a beneficial
interest any Offered Securities or attempt to induce any person to
purchase any Offered Securities; and neither it nor any of its
affiliates will make bids or purchases for the purpose of creating
actual, or apparent, active trading in, or of raising the price of, the
Offered Securities.
(j) Other than notes evidencing indebtedness under the Bank
Credit Agreement or any of the Company's or its subsidiaries'
securitization facilities, for a period of 180 days after the date of
the initial offering of the Offered Securities by the Purchasers, the
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any United States
dollar-denominated debt securities issued or guaranteed by the Company
and having a maturity of more than one year from the date of issue
except issuances of Offered Securities pursuant to the exchange of
exchangeable securities. The Company will not at any time offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, any securities under circumstances where such offer, sale,
pledge, contract or disposition would cause the exemption afforded by
Section 4(2) of the Securities Act or the safe harbor of Regulation S
thereunder to cease to be applicable to the offer and sale of the
Offered Securities.
(k) The Company will use its reasonable best efforts to cause
the Offered Securities to be eligible for trading in PORTAL.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the
date of this Agreement, of Arthur Andersen LLP, the Company's
independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information relating to the Company contained in or
incorporated by reference into the Offering Document.
(b) The Purchasers shall have received a letter, dated the
date of this Agreement, of KPMG LLP, the independent public accountants
for Ag-Chem, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information relating to Ag-Chem contained in or incorporated by
reference into the Offering Document.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of CSFBC,
be likely to prejudice materially the success of the proposed issue,
sale or distribution of the Offered Securities, whether in the primary
market or in respect of dealings in the secondary market, or (ii) (A)
any change, or any development or event involving a prospective change,
in the condition (financial or other), business, properties, prospects
or results of operations of the Company or its subsidiaries which, in
the judgment of a majority in interest of the Purchasers including
CSFBC, is material and adverse and
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makes it impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Offered Securities; (B) any
downgrading in the rating of any debt securities or preferred stock of
the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Securities Act), or any public announcement that any such organization
has under surveillance or review its rating of any debt securities or
preferred stock of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (C) any suspension or limitation
of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (D) any banking moratorium declared
by U.S. Federal or New York authorities; or (E) any outbreak or
escalation of major hostilities in which the U.S. is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Purchasers including CSFBC, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the offering
or sale of and payment for the Offered Securities.
(d) The Purchasers shall have received an opinion, dated the
Closing Date, of Troutman Sanders LLP, counsel for the Company, that:
(i) The Company is a validly existing corporation in
good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and
conduct its business as described in the Offering Document and
the Exchange Act Reports; and the Company is duly qualified to
do business as a foreign corporation in good standing in the
jurisdictions set forth in an exhibit to the opinion;
(ii) Each U.S. Subsidiary of the Company is a validly
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and
authority to own its properties and conduct its business as
described in the Offering Document and the Exchange Act
Reports; and each U.S. Subsidiary is duly qualified to do
business as a foreign corporation in good standing in the
jurisdictions set forth in an exhibit to the opinion;
(iii) (A) The Indenture has been duly authorized,
executed and delivered and constitutes a valid and legally
binding obligation of the Company and each Subsidiary
Guarantor enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights, to general equity
principles and to the possible unenforceability of certain
provisions purporting to waive certain rights of guarantors;
(B) the Offered Securities have been duly authorized and
executed by the Company and when duly authenticated by the
Trustee in accordance with the terms of the Indenture and paid
for in accordance with the terms of this Agreement, will
constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles; and (C) the Offered Securities are entitled to the
benefits of the Indenture;
(iv) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by this Agreement and the Registration Rights
Agreement in connection with the issuance or sale of the
Offered Securities by the Company, except such as may be
required under state securities laws and except for the order
of the Commission declaring the Exchange Offer Registration
Statement or the Shelf Registration Statement effective;
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(v) Except as set forth on an exhibit to the opinion,
there are, to our knowledge, no pending or threatened,
actions, suits or proceedings against or affecting the Company
or any of its Subsidiaries or to which any of their respective
properties is subject that, if determined adversely to the
Company or any of its Subsidiaries, would individually or in
the aggregate have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company and
each Subsidiary Guarantor to perform its obligations under the
Indenture, this Agreement or the Registration Rights
Agreement, as applicable, or which are otherwise material in
the context of the sale of the Offered Securities.
(vi) The execution, delivery and performance by the
Company and the Subsidiary Guarantors, as applicable, of the
Indenture, this Agreement and the Registration Rights
Agreement, as applicable, and the issuance and sale by the
Company of the Offered Securities and compliance by it with
the terms and provisions thereof will not result in any (A)
violation of the certificate or articles of incorporation or
by-laws of the Company or any Subsidiary, (B) violation of any
existing statute, rule or regulation applicable to the Company
or any Subsidiary, (C) violation of any judicial or
administrative decree, judgment or order to which, to our
knowledge, the Company or any of its Subsidiaries is subject,
or (D) breach of any agreement or instrument listed on an
exhibit to the opinion. The Company has full power and
authority to authorize, issue and sell the Offered Securities
as contemplated by this Agreement.
(vii) The Company is not an "investment company" or
an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act.
(viii) The statements in the Offering Document under
the caption "Description of the Notes," insofar as they
purport to constitute a summary of the terms of the Offered
Securities, and under the captions "Certain United States
Federal Income Tax Consequences" and "Transfer Restrictions,"
insofar as they purport to describe the provisions of the law
and documents referred to therein, accurately and fairly
summarize in all material respects the matters referred to
therein.
(ix) Each Exchange Act Report, when filed with the
Commission, complied as to form in all material respects to
the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder.
(x) In our capacity as counsel for the Company in
connection with the Purchase Agreement and the offer and sale
of the Offered Securities and purchase of the Offered
Securities by the Purchasers, we have participated in
conferences with officers and other representatives of the
Company, independent public accountants for the Company and
representatives of the Purchasers and their counsel during
which the contents of the Offering Document and related
matters were discussed and reviewed. On the basis of the
information that was developed in the course of the
performance of the services referred to above, considered in
light of our understanding of applicable law, no facts have
come to our attention which would cause us to believe that the
Offering Circular, or any amendment or supplement thereto, or
any Exchange Act Report, as of the date of the Offering
Document and as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading (except the financial
statements or other financial data contained in the Offering
Circular and the Exchange Act Reports as to which no opinion
is expressed);
(xi) This Agreement and the Registration Rights
Agreement have each been duly authorized, executed and
delivered by the Company; and
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(xii) Based upon the representations, warranties and
agreements of the Company in Sections 2(u) and 5(j) and the
representations, warranties and agreements of the Purchasers
in Section 4 of the Purchase Agreement, it is not necessary in
connection with (i) the offer, sale and delivery of the
Offered Securities by the Company to the several Purchasers
pursuant to this Agreement or (ii) the initial resales of the
Offered Securities by the several Purchasers in the manner
contemplated by this Agreement, to register the Offered
Securities under the Securities Act or to qualify the
Indenture in respect thereof under the Trust Indenture Act,
provided that no opinion is expressed as to any subsequent
resales of the Offered Securities.
(e) The Purchasers shall have received opinions, dated the
Closing Date, of local counsel for each Foreign Subsidiary that each
Foreign Subsidiary has been duly incorporated and is an existing
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own its properties
and conduct its business as described in the Offering Document and the
Exchange Act Reports; and each Foreign Subsidiary is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which such Foreign Subsidiaries ownership or lease of
property or the conduct of its business requires such qualification,
except to the extent that the failure to be so qualified or in good
standing would not have a Material Adverse Effect.
(f) The Purchasers shall have received from King & Spalding,
counsel for the Purchasers, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the validity of
the Offered Securities, the Offering Circular, the exemption from
registration for the offer and sale of the Offered Securities by the
Company to the several Purchasers and the resales by the several
Purchasers as contemplated hereby and other related matters as CSFBC
may require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(g) The Purchasers shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, and that, subsequent to the dates of the most recent financial
statements in the Offering Document and the Exchange Act Reports, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth
in or contemplated by the Offering Document and the Exchange Act
Reports or as described in such certificate.
(h) The Purchasers shall have received a letter, dated the
Closing Date, of Arthur Andersen LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than three days prior to
the Closing Date for the purposes of this subsection.
(i) The Offered Securities have been designated for trading on
PORTAL.
The Company will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder.
7. Indemnification and Contribution.
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(a) The Company will indemnify and hold harmless each
Purchaser, its partners, directors and officers and each person, if
any, who controls such Purchaser within the meaning of Section 15 of
the Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which such Purchaser may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering Document, or
any amendment or supplement thereto, or any related preliminary
offering circular or the Exchange Act Reports, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, including
any losses, claims, damages or liabilities arising out of or based upon
the Company's failure to perform its obligations under Section 5(a) of
this Agreement, and will reimburse each Purchaser for any legal or
other expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent (i) that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company by any Purchaser
through CSFBC specifically for use therein, it being understood and
agreed that the only such information consists of the information
described as such in subsection (b) below or (ii) results from the fact
that such Purchaser (or any person who controls, is under common
control with, or is controlled by such Purchaser) sold Offered
Securities to a person to whom there was not sent or given, at or prior
to the written confirmation of such sale, a copy of the Final Offering
Circular if the loss, claim, damage, liability or action of such
Purchaser (or any person who controls, is under common control with, or
is controlled by such Purchaser) results from an untrue statement or
alleged untrue statement or an omission or alleged omission contained
in the Preliminary Offering Circular that was corrected in the Final
Offering Circular.
(b) Each Purchaser will severally and not jointly indemnify
and hold harmless the Company, its directors and officers and each
person, if any, who controls the Company within the meaning of Section
15 of the Securities Act, against any losses, claims, damages or
liabilities to which the Company may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering Document, or
any amendment or supplement thereto, or any related preliminary
offering circular, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such
Purchaser through CSFBC specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it
being understood and agreed that the only such information furnished by
any Purchaser consists of the following information in the Offering
Document furnished on behalf of each Purchaser: under the caption "Plan
of Distribution" paragraphs three, five, eight, nine and ten and the
third sentence of paragraph seven; provided, however, that the
Purchasers shall not be liable for any losses, claims, damages or
liabilities arising out of or based upon the Company's failure to
perform its obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of written notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party in writing will
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not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any
such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that
it may elect by written notice, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided, however,
that if the parties against whom any loss, claim, damage or liability
arises include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that the
defenses available to it create a conflict of interest for the counsel
selected by the indemnifying party under the code of professional
responsibility applicable to such counsel, the indemnified party shall
have the right to select one separate counsel to assume such legal
defenses and otherwise to participate in the defenses of such loss,
claim, damage or liability on behalf of the indemnified party. After
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any
legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation unless (i) the indemnified party shall have employed such
counsel in connection with the assumption of legal defenses in
accordance with the proviso to the next preceding sentence, or (ii) the
indemnifying party shall have authorized in writing the employment of
separate counsel for the indemnified party at the expense of the
indemnifying party. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action and does not
include a statement as to or an admission of fault, culpability or
failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Purchasers on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and
the Purchasers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Purchasers on
the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company bear to the total discounts and commissions received by the
Purchasers from the Company under this Agreement. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company or the Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection
(d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the
amount by which the total discounts and commissions paid to such
Purchaser exceeds the amount of any damages which such Purchaser has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The Purchasers'
obligations in this subsection (d) to contribute are several in
proportion to their respective purchase obligations and not joint.
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(e) The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Purchaser within the meaning of the Securities
Act or the Exchange Act; and the obligations of the Purchasers under
this Section 7 shall be in addition to any liability which the
respective Purchasers may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFBC may make arrangements satisfactory
to the Company for the purchase of such Offered Securities by other persons,
including any of the Purchasers, but if no such arrangements are made by the
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to CSFBC and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Purchaser or the
Company, except as provided in Section 9. As used in this Agreement, the term
"Purchaser" includes any person substituted for a Purchaser under this Section.
Nothing herein will relieve a defaulting Purchaser from liability for its
default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Purchaser, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Purchasers is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Purchasers pursuant to Section 7 shall remain
in effect. If the purchase of the Offered Securities by the Purchasers is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (C), (D) or (E) of Section 6(c)(ii), the Company will reimburse the
Purchasers for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to
the Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 4205 River Green Parkway,
Duluth, Georgia 30096, Attention: General Counsel; provided, however, that any
notice to a Purchaser pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as if such
holders were parties thereto.
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12. Representation of Purchasers. CSFBC will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by CSFBC will be binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
AGCO CORPORATION
By /s/ Norman L. Boyd
-----------------------------------------
Title: Senior Vice President of Corporate
Development
The foregoing Purchase Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, STEARNS & CO., INC.
SUNTRUST EQUITABLE SECURITIES CORPORATION
Acting on behalf of themselves
and as the Representatives of
the several Purchasers
By CREDIT SUISSE FIRST BOSTON CORPORATION
BY:/s/ William S. Oglesby
-----------------------------------------
TITLE: Managing Director
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SCHEDULE A
PRINCIPAL AMOUNT OF
OFFERED SECURITIES
MANAGER
-------
Credit Suisse First Boston Corporation $ 175,000,00
Bear, Stearns & Co. Inc.................................. 56,250,000
SunTrust Equitable Securities Corporation................ 18,750,000
-------------
Total.......................... $ 250,000,000
=============
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SCHEDULE B-1
FOREIGN SUBSIDIARIES:
AGCO Argentina S.A.
Indamo SA
Motores de San Luis S.A.
Terramec SA
Araus SA
Deutz de Argentina
AGCO Australia Ltd.
AGCO Export Corp. (FSC)
AGCO do Brasil Comercio e Industria Ltda.
AGCO Canada, Ltd.
Agricredit Acceptance Canada, Ltd.
Dronningborg Industries AS
AGCO Danmark AS
AGCO France S.A.
AGCO S.A.
AGCO GmbH & Co.
AGCO Vertriebs GmbH
AGCO Verwaltungs GmbH
Fendt GmbH
Kemptener Maschinenfabrik GmbH
Wohnungsbau GmbH
MF SpA
Farmec SpA
Fendt Italiana
AGCO Holding BV
Massey Ferguson Europa B.V.
MF Europa BV
Eikmaskin AS
AGCO de Mexico SA de CV
Massey Ferguson de Mexico SA de DV
AGCO Romania SRL
AGCO Iberia SA
AGCO AB
Dronningberg Ukraine
AGCO Services Limited
AGCO Limited
AGCO International Limited
AGCO Manufacturing Ltd.
MF Works Pension Trust Ltd.
MF Executive Pension Trust Ltd.
MF 2nd Pension Trust Ltd.
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U.S. SUBSIDIARIES:
AGCO Funding Corporation
AGCO Ventures LLC
Agri Acquisition Corp.
Massey Ferguson Corp.
Hesston Ventures Corporation
Hay & Forage Industries
AGCO Acceptance Corporation
21
SCHEDULE B-2
AGCO Funding Corporation
AGCO Ventures LLC
Agri Acquisition Corp.
Massey Ferguson Corp.
Hesston Ventures Corporation
Hay & Forage Industries
AGCO Acceptance Corporation
22
SCHEDULE B-3
AGCO Argentina S.A.
Motores de San Luis S.A.
AGCO do Brasil Comercio e Industria Ltda.
AGCO Canada, Ltd.
Agricredit Acceptance Canada, Ltd.
AGCO France S.A.
AGCO S.A.
AGCO GmbH & Co.
AGCO Vertriebs GmbH
AGCO Verwaltungs GmbH
Fendt GmbH
AGCO Holding BV
Massey Ferguson Europa B.V.
AGCO Services Limited
AGCO Limited
AGCO International Limited
AGCO Manufacturing Ltd.