EXHIBIT 1.1
(EURO)200,000,000
AGCO CORPORATION
6.875 % SENIOR SUBORDINATED NOTES DUE 2014
UNDERWRITING AGREEMENT
April 15, 2004
April 15, 2004
Morgan Stanley & Co. Bear, Stearns International Limited
International Limited c/o Bear Stearns & Co.
c/o Morgan Stanley & Co. Incorporated 383 Madison Avenue
1585 Broadway New York, New York 10179
New York, New York 10036
Dear Sirs and Mesdames:
AGCO Corporation, a Delaware corporation (the "COMPANY"), proposes to
issue and sell to the several Underwriters named in Schedule I hereto (the
"UNDERWRITERS") (euro)200,000,000 of its 6.875% Senior Subordinated Notes Due
2014 (the "SECURITIES") to be issued pursuant to the provisions of an Indenture
to be dated as of April 23, 2004 (the "INDENTURE") between the Company and
SunTrust Bank, as Trustee (the "TRUSTEE").
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Securities, and such registration statement has been declared effective by the
Commission under the Securities Act of 1933, as amended the ("SECURITIES ACT").
The registration statement as amended at the time it became effective, including
the information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act, is
hereinafter referred to as the "REGISTRATION STATEMENT"; the prospectus in the
form first used to confirm sales of Securities (including any related prospectus
supplement) is hereinafter referred to as the "PROSPECTUS." If the Company has
filed an abbreviated registration statement to register additional 6.875% Senior
Subordinated Notes Due 2014 pursuant to Rule 462(b) under the Securities Act
(the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term
"REGISTRATION STATEMENT" shall be deemed to include such Rule 462 Registration
Statement (including, in the case of all references to the Registration
Statement and the Prospectus, documents incorporated therein by reference).
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective under the
Securities Act; no stop order suspending the effectiveness of the
Registration Statement is in effect, and, to the knowledge of the
Company, no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (ii)
the Registration Statement, when it became effective, did not contain
and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iv)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing (to the extent that good standing is a concept recognized
by such jurisdiction) in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable
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and are owned directly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity.
(g) The Securities have been duly authorized and, when
executed and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture and the Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any subsidiary, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets or property of the Company or any
of its subsidiaries, and no consent, approval, authorization or order
of, or qualification or filing with, any governmental body or agency,
any lender or any other person is required for the performance by the
Company of its obligations under this Agreement, except such consents
received prior to the date hereof and such as may be required by the
securities or Blue Sky laws of the various states or international
jurisdictions in connection with the offer and sale of the Securities.
(i) The consolidated financial statements of the Company and
its subsidiaries, together with related notes and schedules, as set
forth in the Registration Statement and the Prospectus present fairly,
in all material respects, the consolidated financial position, the
results of operations and cash flows of the Company and the
Subsidiaries, on a consolidated basis, as of the indicated dates and
for the indicated periods. Such financial
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statements comply as to form in all material respects with the rules of
the Commission with respect thereto and have been prepared in
accordance with generally accepted accounting principles in the United
States ("GAAP"), consistently applied throughout the periods involved,
and all adjustments necessary for a fair presentation of results for
such periods have been made; any schedules included in the Registration
Statement present fairly the information required to be stated therein.
No other financial statements or supporting schedules are required to
be included in the Registration Statement. The pro forma financial
information and related notes thereto included in the Registration
Statement and the Prospectus present fairly the information shown
therein, have been prepared in accordance with the Securities Act and
the rules of the Commission with respect to pro forma financial
information, have been prepared on a basis consistent with the
historical financial statements of the Company and have been compiled
on the pro forma bases described therein, and (A) the assumptions
underlying the pro forma adjustments are reasonable, (B) such
adjustments are appropriate to give effect to the transactions or
circumstances referred to therein and have been properly applied to the
historical amounts in the compilation of such statements and (C) such
statements fairly present the pro forma results of operations and
information purported to be shown therein for the respective periods
therein specified based on the assumptions identified therein. Except
(X) as disclosed in the Prospectus, (Y) as reflected in the Company's
audited balance sheet at December 31, 2003 or liabilities described in
any notes thereto (or liabilities for which neither accrual nor
footnote disclosure is required pursuant to GAAP) or (Z) for
liabilities incurred in the ordinary course of business since December
31, 2003 consistent with past practice, neither the Company nor any
subsidiary has any material liabilities or obligations of any nature.
Except as set forth in the Prospectus, neither the Company nor any
subsidiary has engaged in or effected any transaction or arrangement
that would constitute an "off-balance sheet arrangement" (as defined in
Item 303 of Regulation S-K of the Commission). The financial
information included in the Prospectus included under the captions
"Summary -- AGCO Corporation Summary Historical Financial Data,"
"Summary - Summary Unaudited Pro Forma Combined Financial Data,"
"Capitalization," "Selected Consolidated Financial Data" and
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," (and any amendment or supplement thereto)
present fairly in accordance with GAAP the information shown therein
(except for non-GAAP financial measures and ratios which have been
presented in compliance with Regulation G) and have been compiled on a
basis consistent with that of the audited and unaudited financial
statements from which they were derived.
(j) Since the respective dates as of which information is
given in the Prospectus and exclusive of any amendments or supplements
thereto
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subsequent to the date of this Agreement, (i) there has not occurred
any material adverse change, or any development that might reasonably
be expected to result in a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole; (ii)
there have been no transactions entered into by the Company or any of
its subsidiaries, other than those in the ordinary course of business,
which are material to the Company and its subsidiaries, taken as a
whole, and (iii) except for regular dividends on the common stock of
the Company in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(k) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened, to which the Company or
any of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject other than
proceedings accurately described in all material respects in the
Registration Statement or the Prospectus and proceedings that would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole, or any statutes or regulations that are required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required.
(l) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(m) The Company is not, and after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus will not be, required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(n) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms
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and conditions of such permits, licenses or approvals would not, singly
or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(o) To the Company's knowledge, KPMG LLP ("KPMG"), independent
auditors who have certified certain of the financial statements of the
Company and its subsidiaries contained in the Prospectus and the
Registration Statement, are and were during the periods covered by
their reports included in the Prospectus and the Registration Statement
independent public accountants within the meaning of the Securities
Act, Regulation S-X of the Commission and Rule 101 of the Code of
Professional Ethics of the American Institute of Certified Public
Accountants. KPMG (i) based solely on representations made by KPMG, is,
to the Company's knowledge, a registered public accounting firm (as
defined in Section 2(a)(12) of the Sarbanes-Oxley Act of 2002) ("SOX")
and (ii) is, with respect to the Company, in compliance with
subsections (g) through (l) of Section 10A of the Exchange Act.
(p) The Company and each of its subsidiaries maintain
disclosure controls and procedures (as defined in Rule 13a-15(e) of the
Commission) that are designed to ensure that information required to be
disclosed by the Company in the reports it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the Commission's rules and forms.
(q) The Company and each of its subsidiaries maintain internal
control over financial reporting (as defined in Rule 13a-15(f) of the
Commission) sufficient to provide reasonable assurance regarding the
(A) reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with GAAP, (B)
maintenance of records that in reasonable detail accurately and fairly
reflect transactions and dispositions of the assets of the Company and
its subsidiaries, (C) recording of transactions as necessary to permit
preparation of financial statements in accordance with GAAP and that
receipts and expenditures of the Company and its subsidiaries are being
made only in accordance with authorizations of management and directors
of the Company or the applicable subsidiary, and (D) prevention or
timely detection of unauthorized acquisition, use or disposition of the
Company's or its subsidiaries' assets that could have a material effect
on the financial statements.
(r) The Company's management evaluates, with the participation
of the Company's principal executive and principal financial officers,
or persons performing similar functions, (A) the effectiveness of the
Company's and its subsidiaries' disclosure controls and procedures as
of the end of each fiscal quarter, (B) the Company's and its
subsidiaries'
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internal control over financial reporting as of the end of each fiscal
year, and (C) any change in the Company's or its subsidiaries' internal
control over financial reporting that occurred during each of the
Company's fiscal quarters that has materially affected, or is
reasonably likely to materially affect, the Company's or any
subsidiaries' internal control over financial reporting.
(s) Except as disclosed in the Prospectus, the Company has
not, since July 30, 2002, extended or maintained credit, arranged for
the extension of credit, or renewed an extension of credit, in the form
of a personal loan to or for any director or executive officer of the
Company; and any such credit that was outstanding on July 30, 2002 or
that is currently outstanding was in place on or before July 30, 2002,
and there has been no material modification of any term of such credit
or any renewal or such credit on or after July 30, 2002.
(t) The Company is in compliance with all U.S. laws, and,
specifically, has not directly or indirectly used any proceeds of any
debt or equity offerings, and has not permitted any person or entity to
which the Company made such proceeds available to use them, to finance
the activities of any person or entity that is subject to sanctions
under, or otherwise in a manner that places the Company, any affiliate
thereof or any director, officer, employee or agent of any of the
foregoing in violation of any law, regulation, order or license
relating to any program administered by the Office of Foreign Assets
Control ("OFAC") of the United States Department of the Treasury,
including, without limitation, any program the regulations of which are
codified in Chapter 5 of Subtitle B of Title 31 of the Code of Federal
Regulations.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the principal amount of Securities set forth in Schedule I hereto
opposite its name at 100% of their principal amount plus accrued interest, if
any, from April 23, 2004 to the date of payment and delivery.
The Company hereby agrees that, without the prior written consent of
Morgan Stanley & Co. International Limited and Bear, Stearns International
Limited on behalf of the Underwriters, it will not, during the period ending 90
days after the date of the Prospectus, offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the SEC a
registration statement under the Securities Act relating to (except for any
registration statement or amendment thereto relating to the Company's
outstanding 1.75% Convertible Senior Subordinated Notes due 2033), any
additional debt securities, issued or guaranteed by the Company and having a
maturity of more than one year
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from the date of issue, or publicly disclose the Company's intention to make any
offer, sale, pledge, disposition or filing.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Securities as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Securities are to be offered to the public initially at
100% of their principal amount (the "PUBLIC OFFERING PRICE") plus accrued
interest, if any, from April 15, 2004 to the date of payment and delivery and to
certain dealers selected by you at a price that represents a discount and
commission not in excess of 1.75% of their principal amount.
4. Payment and Delivery. Payment for the Securities shall be made to
the Company in Federal or other funds immediately available in New York City
against delivery of such Securities for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on April 23, 2004, or at such
other time on the same or such other date, not later than May 7, 2004, as shall
be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "CLOSING DATE."
The Securities shall be registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Closing Date. The Securities shall be delivered to you on the
Closing Date for the respective accounts of the several Underwriters, with any
transfer taxes payable in connection with the transfer of the Securities to the
Underwriters duly paid.
5. Conditions to the Underwriters' Obligations. The obligations of the
Company to sell the Securities to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Securities on the Closing Date
are subject to the condition that the Registration Statement shall have become
effective on or prior to the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized
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statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 5(a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date. The officer signing
and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
the opinions of counsel for the Company, dated the Closing Date, to the
effect set forth on Exhibit A. Such opinions shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date
an opinion of Alston & Bird LLP, counsel for the Underwriters, dated
the Closing Date, to the effect set forth on Exhibit B.
(e) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from KPMG LLP, 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 contained in or
incorporated by reference into the Registration Statement and the
Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
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(a) To furnish to you, without charge, three copies of the
Registration Statement (including exhibits thereto and documents
incorporated by reference) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto
but including documents incorporated by reference) and to furnish to
you in New York City, without charge, prior to 3:00 p.m. New York City
time on the business day next succeeding the date of this Agreement and
during the period mentioned in Section 6(c) below, as many copies of
the Prospectus, any documents incorporated by reference, and any
supplements and amendments thereto or to the Registration Statement as
you may reasonably request. The terms "supplement" and "amendment" or
"amend" as used in this Agreement shall include all documents
subsequently filed by the Company with the Commission pursuant to the
Exchange Act that are deemed to be incorporated by reference in the
Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement a reasonable amount of time prior to
the filing of the proposed amendment or supplement and not to file any
such proposed amendment or supplement to which your counsel reasonably
objects, and to file with the Commission within the applicable period
specified in Rule 424(b) under the Securities Act any prospectus
required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which
Securities may have been sold by you on behalf of the Underwriters and
to any other dealers upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with applicable
law.
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(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to maintain such qualifications in effect
as long as may be required for distribution of the Securities by the
Underwriters.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering
the twelve-month period ending December 31, 2004 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) To promptly use the net proceeds received from the sales
of the Securities in the manner specified in the Prospectus under "Use
of Proceeds." The Company shall comply with all U.S. laws and,
specifically, shall not directly or indirectly use any of the net
proceeds from the sale of the Securities, and shall prohibit any person
or entity to which the Company makes such net proceeds available from
using them, to finance the activities of any person or entity that is
subject to sanctions under, or otherwise in a manner that places the
Company, any affiliate thereof or any director, officer, employee or
agent of any of the foregoing (including any Underwriter, any affiliate
thereof and each director, officer, employee and agent thereof) in
violation of any law, regulation, order or license relating to any
program administered by the Office of Foreign Assets Control ("OFAC")
of the United States Department of the Treasury, including, without
limitation, any program the regulations of which are codified in
Chapter 5 of Subtitle B of Title 31 of the Code of Federal Regulations.
(g) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the
Securities under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments
and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof
to the Underwriters and dealers, in the quantities herein above
specified, (ii) all costs and expenses related to the transfer and
delivery of the Securities to the Underwriters, including any transfer
or other taxes payable thereon, (iii) the cost of printing or producing
any Blue Sky or legal investment memorandum in connection with the
offer and sale of the Securities under state and foreign securities
laws and all expenses in connection with the qualification of the
Securities for offer and sale under state and foreign securities laws
as provided in Section 6(d)
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hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection with such qualification
and in connection with the Blue Sky or legal investment memorandum,
(iv) all filing fees incurred in connection with the review and
qualification of the offering of the Securities by the National
Association of Securities Dealers, Inc., (v) all costs and expenses
incident to listing the Securities on the Luxembourg Stock Exchange,
(vi) the cost of printing certificates representing the Securities,
(vii) the costs and charges of any transfer agent, registrar or
depositary, (viii) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection with
the marketing of the offering of the Securities, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of
the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered with the prior approval of the Company in connection
with the road show, (ix) the document production charges and expenses
associated with printing this Agreement and (x) all other costs and
expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section. It
is understood, however, that except as provided in this Section,
Section 7 entitled "Indemnity and Contribution", and the last paragraph
of Section 9 below, the Underwriters will pay all of their costs and
expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Securities by them and
any advertising expenses connected with any offers they may make.
(h) To use its reasonable best efforts to have the Securities
approved for listing on the Luxembourg Stock Exchange and to use its
reasonable best efforts to maintain such listing for as long as any of
the Securities remain outstanding and the maintenance of such listing
is reasonably practicable.
7. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of any Underwriter within the
meaning of Rule 405 under the Securities Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(or any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading,
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except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law to have been delivered, at
or prior to the written confirmation of the sale of Securities to such person
and if the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities, unless such
failure is the result of noncompliance by the Company with Section 6(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY")
shall promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties
13
and that all such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing jointly by Morgan Stanley & Co.
International Limited and Bear, Stearns International Limited, in the case of
parties indemnified pursuant to Section 7(a), and by the Company, in the case of
parties indemnified pursuant to Section 7(b). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding 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 claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause 7(d)(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 7(d)(i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that 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 Underwriters on the other hand
in connection with the offering of the Securities shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the
Securities (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Securities. The relative fault of the
Company on the one hand and the Underwriters on the other hand shall be
determined by reference
14
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 by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective number of Securities they have purchased hereunder, and not
joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 7(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
7 and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter, any person controlling any Underwriter or
any affiliate of any Underwriter or by or on behalf of the Company, its officers
or directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Securities.
8. Termination. The Underwriters may terminate this Agreement by notice
given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National Market,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter
15
market, (iii) a material disruption in securities settlement, payment or
clearance services in the United States shall have occurred, (iv) any moratorium
on commercial banking activities shall have been declared by Federal or New York
State authorities or (v) there shall have occurred any outbreak or escalation of
hostilities, or any change in financial markets or any calamity or crisis that,
in your judgment, is material and adverse and which, singly or together with any
other event specified in this clause (v), makes it, in your judgment,
impracticable or inadvisable to proceed with the offer, sale or delivery of the
Securities on the terms and in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Securities that it has or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of
Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the aggregate principal amount set
forth opposite their respective names in Schedule I bears to the aggregate
principal amount of Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the aggregate principal amount which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the aggregate principal amount of Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 9 by an amount in excess of one-ninth of the aggregate
principal amount of Securities without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Securities and the aggregate principal amount of Securities with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of Securities to be purchased, and arrangements satisfactory to
you and the Company for the purchase of such Securities are not made within 36
hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company. In any such case
either you or the Company shall have the right to postpone the Closing Date, but
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the
16
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
AGCO Corporation
By: _______________________
Name:
Title:
17
Accepted as of the date hereof
Morgan Stanley & Co. International Limited
Bear, Stearns International Limited
Acting severally on behalf of themselves and
the several Underwriters named in
Schedule I hereto.
By: Morgan Stanley & Co. International Limited
By: ______________________________________
Name:
Title:
18
SCHEDULE I
PRINCIPAL AMOUNT OF
SECURITIES TO BE
UNDERWRITER PURCHASED
Morgan Stanley & Co. International Limited ...... (euro) 75,000,000
Bear, Stearns International Limited ............. (euro) 75,000,000
Rabo Securities USA, Inc. ....................... (euro) 10,000,000
Tokyo-Mitsubishi International plc .............. (euro) 10,000,000
SunTrust Capital Markets, Inc. .................. (euro) 10,000,000
HSBC Securities ................................. (euro) 5,000,000
SPP Capital Partners, LLC........................ (euro) 15,000,000
Total:............................ (euro) 200,000,000