AGCO CORPORATION 1.25% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2036 UNDERWRITING AGREEMENT
Exhibit 1.1
$175,000,000
AGCO CORPORATION
1.25% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2036
November 28, 2006
November 28, 2006
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Rabo Securities USA, Inc.
Lazard Capital Markets LLC
Xxxxxxx, Sachs & Co.
Rabo Securities USA, Inc.
Lazard Capital Markets LLC
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
AGCO Corporation, a Delaware corporation (the “Company”), proposes to issue and sell to the
several underwriters named in Schedule I hereto (the “Underwriters”), for whom you are acting as
managers (the “Managers”), the principal amount of its debt securities identified in Schedule II
hereto (the “Firm Securities”), to be issued under the indenture specified in Schedule II hereto
(the “Indenture”) between the Company and the Trustee identified in such Schedule (the “Trustee”).
The Company also proposes to issue and sell to the several Underwriters up to the principal amount
of its debt securities set forth in Schedule II hereto (the “Additional Securities”) if and to the
extent that you, as Managers of the offering, shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such debt securities granted to the Underwriters in Section 2
hereof. The Firm Securities and the Additional Securities are hereinafter collectively referred to
as the “Securities.” The Securities will be convertible into cash and shares of Common Stock, par
value $0.01 per share, of the Company (the “Underlying Securities”), together with the rights (the
“Rights”) evidenced by such Underlying Securities, to the extent provided in the Rights Agreement
dated April 27, 1994, as amended as of March 1, 1999 and April 23, 2004 (the “Rights Agreement”),
between the Company and SunTrust Bank, successor to Trust Company Bank and Chemical Bank, as rights
agent. If the firm or firms listed in Schedule I hereto include only the Managers listed in
Schedule II hereto, then the terms “Underwriters” and “Managers” as used herein shall each be
deemed to refer to such firm or firms.
The Company has filed with the Securities and Exchange Commission (the “Commission”) two
registration statements, including in each case a prospectus, on Form S-3 (the file numbers of
which are set forth in Schedule II hereto), relating to securities of the Company (the “Shelf
Securities”), including the Securities and the Underlying Securities, to be issued from time to
time by the Company. Such registration statements as amended to the date of this Agreement,
including the information (if any) deemed to be part of such registration statements at the time of
effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the
“Securities Act”), are hereinafter
referred to collectively as the “Registration Statement”, and the related prospectus covering
the Shelf Securities dated November 27, 2006 in the form first used to confirm sales of the
Securities (or in the form first made available to the Underwriters by the Company to meet requests
of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the
“Basic Prospectus.” The Basic Prospectus, as supplemented by the prospectus supplement
specifically relating to the Securities in the form first used to confirm sales of the Securities
(or in the form first made available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the
Prospectus.” The term “preliminary prospectus” means any preliminary form of the Prospectus. For
purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under
the Securities Act, and “Time of Sale Prospectus” means the preliminary prospectus together with
the free writing prospectuses, if any, each identified in Schedule II hereto. As used herein, the
terms “Registration Statement,” “preliminary prospectus,” “Time of Sale Prospectus” and
“Prospectus” shall include the documents, if any, incorporated by reference therein. The terms
“supplement,” “amendment,” and “amend” as used herein with respect to the Registration Statement,
the Time of Sale Prospectus, any preliminary prospectus or any free writing prospectus shall
include all documents subsequently filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be
incorporated by reference therein.
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; 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. If the
Registration Statement is an automatic shelf registration statement as defined in Rule 405 under
the Securities Act, the Company is a well-known seasoned issuer (as defined in Rule 405 under the
Securities Act) eligible to use the Registration Statement as an automatic shelf registration
statement and the Company has not received notice that the Commission objects to the use of the
Registration Statement as an automatic shelf registration statement.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or 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) each part of the Registration Statement, when such
part became effective, did not contain, and each such part, 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 as of the date
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hereof does 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, (iv)
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, (v) the Time of Sale Prospectus does not contain, and
at the time of each sale of the Securities in connection with the offering when the Prospectus is
not yet available to prospective purchasers and at the Closing Date (as defined in Section 4), the
Time of Sale Prospectus, as then amended or supplemented by the Company, 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, (vi) each issuer free writing prospectus (as defined in Rule 433(h) under the
Securities Act), if any, when considered together with the Time of Sale Prospectus, does 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 and (vii) 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, the Time of Sale
Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the
Company in writing by or on behalf of any Underwriter through the Managers expressly for use
therein.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder and does not and will not conflict with the information
contained in the Registration Statement, the Time of Sale Prospectus or the Prospectus. Except for
the free writing prospectuses, if any, identified in Schedule II hereto forming part of the Time of
Sale Prospectus, and electronic road shows, if any, each furnished to you before first use, the
Company has not prepared, used or referred to, and will not, without your prior consent, prepare,
use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the
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corporate power and authority to own its property and to conduct its business as described in
the Time of Sale 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 in good standing would
not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly incorporated or organized, is validly
existing as a corporation or other entity in good standing under the laws of the jurisdiction of
its incorporation or organization, has the corporate power and authority to own its property and to
conduct its business as described in the Time of Sale 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 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 and
are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The Securities have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement, will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors’ rights and remedies generally and equitable principles of general
applicability, including principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or in equity) (collectively,
the “enforceability exceptions”), and will be entitled to the benefits of the Indenture.
(h) The Underlying Securities issuable upon conversion of the Securities have been duly
authorized and reserved and, when issued upon conversion of the Securities in accordance with the
terms of the Securities, will be validly issued, fully paid and non-assessable, and the issuance of
the Underlying Securities will not be subject to any preemptive or similar rights.
(i) The Indenture has been duly authorized, executed and delivered by, and, assuming the due
authorization, execution and delivery thereof by the other parties thereto, is a valid and binding
agreement of, the Company,
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enforceable against the Company in accordance with its terms, subject to the enforceability
exceptions.
(j) 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, and no
consent, approval, authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations under this Agreement, the
Indenture or the Securities, 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 in connection with the offer
and sale of the Securities.
(k) Subsequent to the respective dates as of which information is given in the Time of Sale
Prospectus, 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, from that set forth in the Time of Sale Prospectus.
(l) 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 Time of Sale Prospectus and proceedings which,
if determined adversely to the Company or any of its subsidiaries, would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of
the Company to perform its obligations under this Agreement or to consummate the transactions
contemplated by the Time of Sale Prospectus.
(m) 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.
(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
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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 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) Other than as disclosed by the Company in its filings with the Commission, the Company and
its subsidiaries are conducting business in compliance with all other applicable statutes, rules,
regulations, standards, guides and orders administered or issued by any governmental or regulatory
authority in the jurisdictions in which the Company or its subsidiaries are conducting business,
except where the failure to be so in compliance would not, individually or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) Subsequent to the respective dates as of which information is given in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) 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 (ii) 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, except in each case
as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus,
respectively.
(q) 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.
(r) The Company and each of its subsidiaries maintain disclosure controls and procedures 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.
(s) The Company and each of its subsidiaries maintain a system of internal accounting controls
designed to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
6
differences. Except as described in the Time of Sale Prospectus, since the end of the
Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s
internal control over financial reporting (whether or not remediated) and (ii) no change in the
Company’s internal control over financial reporting that has materially and adversely affected, or
is reasonably likely to materially and adversely affect, the Company’s internal control over
financial reporting.
(t) KPMG LLP, who have certified certain financial statements of the Company and its
subsidiaries, are the independent registered public accounting firm for the Company as required by
the Exchange Act and the rules and regulations of the Commission thereunder.
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 respective principal amount of Firm Securities set forth in Schedule
I hereto opposite its name at the purchase price set forth in Schedule II hereto (the “Purchase
Price”).
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to sell to the Underwriters the Additional Securities,
and the Underwriters shall have the right to purchase, severally and not jointly, up to the
aggregate principal amount of Additional Securities set forth in Schedule II hereto at the Purchase
Price. You may exercise this right on behalf of the Underwriters in whole or from time to time in
part by giving written notice not later than 30 days after the date of this Agreement. Any
exercise notice shall specify the aggregate principal amount of Additional Securities to be
purchased by the Underwriters and the date on which such Securities are to be purchased. Each
purchase date must be at least one business day, if written notice is given prior to the closing
date for the Firm Securities, or two business days, if written notice is given on or after the
closing date for the Firm Securities, in each case, after the written notice is given and may not
be earlier than the closing date for the Firm Securities nor later than ten business days after the
date of such notice. Additional Securities may be purchased as provided in Section 4 hereof solely
for the purpose of covering over-allotments made in connection with the offering of the Firm
Securities. On each day, if any, that Additional Securities are to be purchased (an “Option
Closing Date”), each Underwriter agrees, severally and not jointly, to purchase the principal
amount of Additional Securities (subject to such adjustments to eliminate fractional Securities as
you may determine) that bears the same proportion to the total aggregate principal amount of
Additional Securities to be purchased on such Option Closing Date as the principal amount of Firm
Securities set forth in Schedule I hereto opposite the name of such Underwriter bears to the total
aggregate principal amount of Firm Securities.
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3. 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 upon the terms set
forth in the Prospectus and in Schedule II hereto.
4. Payment and Delivery. Payment for the Firm Securities shall be made to the Company in
Federal or other funds immediately available in New York City on the closing date and time set
forth in Schedule II hereto, or at such other time on the same or such other date, not later than
the fifth business day thereafter, as may be designated in writing by you. The time and date of
such payment are hereinafter referred to as the “Closing Date.”
Payment for any Additional Securities shall be made to the Company in Federal or other funds
immediately available in New York City on the date specified in the corresponding notice described
in Section 2 or at such other time on the same or on such other date, in any event not later than
the tenth business day thereafter, as may be designated in writing by you.
The Firm Securities and the Additional 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 or the applicable Option Closing Date, as the case may be, 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, against payment of the Purchase Price
therefor.
5. Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters
are subject to the following 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
securities of the Company by any “nationally recognized 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 Time of Sale Prospectus provided to prospective purchasers of the Securities
(exclusive
8
of any amendments or supplements thereto) 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 Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate of the Company,
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 an opinion of Xxxxxxxx Xxxxxxx
LLP, outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit
A-1. Such opinion 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 Xxxxxxx Xxxxxx,
General Counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A-2.
Such opinion shall be rendered to the Underwriters at the request of the Company and shall so
state.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Bird LLP,
counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory to the
Managers.
(f) 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, an independent registered public accounting firm,
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 the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided
that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date
hereof.
(g) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between you
and certain officers and directors of the Company relating to sales and certain other dispositions
of shares of Common Stock or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date.
9
The several obligations of the Underwriters to purchase Additional Securities hereunder are
subject to the delivery to you on the applicable Option Closing Date of such documents as you may
reasonably request with respect to the good standing of the Company, the due authorization and
issuance of the Additional Securities to be sold on such Option Closing Date and other matters
related to the issuance of such Additional Securities.
6. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, a signed copy of the Registration Statement (including
exhibits thereto and documents incorporated by reference therein) and to deliver to each of the
Underwriters during the period mentioned in Section 6(e) or 6(f) below, as many copies of the Time
of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus during the period mentioned in Section 6(e) or 6(f) below, to furnish to you a
copy of each such proposed amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer to any proposed free
writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a
time when the Prospectus is not yet available to prospective purchasers and any event shall occur
or condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration Statement then on file, or
if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time
of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of
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Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when
delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as
amended or supplemented, will no longer conflict with the Registration Statement, or so that the
Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) 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 (or in lieu thereof the notice referred
to in Rule 173(a) of the Securities Act) 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 (or in lieu thereof the notice referred to in Rule
173(a) of the Securities Act) 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, forthwith to 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 (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is
delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will
comply with applicable law.
(g) 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.
(h) To make generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(i) 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 Time of Sale
Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or
referred to by the Company and amendments and supplements to any of the foregoing, including the
filing fees payable to the Commission relating to the Securities (within the time required
11
by Rule 456 (b)(1), if applicable), all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove
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 securities laws and all expenses in connection with the qualification of
the Securities for offer and sale under state securities laws as provided in Section 6(g) 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 any 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 Underlying Securities on the New York Stock Exchange and any
other national securities exchanges and foreign stock exchanges, (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 preparation or
dissemination of any electronic roadshow, 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 8 entitled “Indemnity and Contribution” and the last paragraph of
Section 10 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.
(j) To prepare a final term sheet relating to the offering of the Securities containing only
information that describes the final terms of the offering in a form reasonably acceptable to the
Managers and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under
the Securities Act following the date the final terms have been established for the offering of the
Securities.
The Company also covenants with each Underwriter that, without the prior written consent of
the Manager identified in Schedule II with the authorization to release this lock-up on behalf of
the Underwriters, it will not,
12
during the restricted period set forth in Schedule II hereto, (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly
or indirectly, any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not
apply to (a) the Securities to be sold hereunder, (b) the issuance by the Company of shares of
Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding
on the date hereof or (c) the issuance by the Company of additional awards under the Company’s
existing equity compensation plans, provided that such awards do not vest or become exercisable
during the period ending 90 days after the date of the Prospectus Supplement.
7. Representation and Covenant of the Underwriters. Each Underwriter severally represents and
covenants with the Company that, other than one or more term sheets relating to the Securities
containing customary information and conveyed to purchasers of the Securities, it has not taken and
will not take any action that would result in the Company being required to file with the
Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter
that otherwise would not be required to be filed by the Company thereunder, but for the action of
the Underwriter.
8. 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, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act,
any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act, or the Prospectus or any amendment or supplement thereto, or caused by
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, 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 or on behalf of any Underwriter through you expressly for use therein.
13
(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 or on behalf of any Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free
writing prospectus or the Prospectus or any amendment or supplement 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 8(a) or 8(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 and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by the Manager
authorized to appoint counsel under this Section set forth in Schedule II hereto, in the case of
parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties
indemnified pursuant to Section 8(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
14
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 8(a) or 8(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 8(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 8(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 bear to the
aggregate initial public offering price of the Securities set forth in the Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the other hand 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 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 8 are several in proportion to the
respective principal amount 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 8 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 8(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 8(d) 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.
15
Notwithstanding the provisions of this Section 8, 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 8 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 8 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.
9. 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 Global 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 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 Time of Sale Prospectus or the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, 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
16
agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Securities to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Securities set forth opposite their respective
names in Schedule I bears to the aggregate principal amount of Firm Securities set forth opposite
the names of all such non-defaulting Underwriters, or in such other proportions as you may specify,
to purchase the Securities 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 10 by an amount in excess of one-ninth of such 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 Firm Securities and the aggregate
principal amount of Firm Securities with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Firm Securities to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such Firm 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, in the Time of Sale
Prospectus, in the Prospectus or in any other documents or arrangements may be effected. If, on an
Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional
Securities and the aggregate principal amount of Additional Securities with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of Additional Securities to
be purchased on such Option Closing Date, the non-defaulting Underwriters shall have the option to
(i) terminate their obligation hereunder to purchase the Additional Securities to be sold on such
Option Closing Date or (ii) purchase not less than the principal amount of Additional Securities
that such non-defaulting Underwriters would have been obligated to purchase in the absence of such
default. 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 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.
17
11. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Securities, represents the entire agreement between the Company and
the Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the
Securities.
(b) The Company acknowledges that in connection with the offering of the Securities: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the Underwriters owe the Company only those duties and
obligations set forth in this Agreement and prior written agreements (to the extent not superseded
by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Securities.
12. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
14. 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.
15. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to you at the address set forth in
Schedule II hereto; and if to the Company shall be delivered, mailed or sent to the address set
forth in Schedule II hereto.
| Very truly yours, AGCO CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President Corporate Development and General Counsel |
|||
18
| Accepted as of the date hereof | ||||
| Xxxxxx Xxxxxxx & Co. Incorporated Xxxxxxx, Sachs & Co. Rabo Securities USA, Inc. Lazard Capital Markets LLC |
||||
| Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto. |
||||
| Xxxxxx Xxxxxxx & Co. Incorporated | ||||
By:
|
/s/ Xxxxxxx X. Xxxx | |||
| Name: Xxxxxxx X. Xxxx Title: Managing Director |
||||
SCHEDULE I
| Principal Amount of Firm Securities To |
||||
| Underwriter | Be Purchased | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
$ | 83,125,000 | ||
Xxxxxxx, Sachs & Co. |
83,125,000 | |||
Rabo Securities USA, Inc. |
4,375,000 | |||
Lazard Capital Markets LLC |
4,375,000 | |||
Total: |
$ | 175,000,000 | ||
I-1
SCHEDULE II
Managers:
|
Xxxxxx Xxxxxxx
& Co. Incorporated and Xxxxxxx, Sachs & Co. Rabo Securities USA, Inc. Lazard Capital Markets LLC |
|||
Manager authorized to release
lock-up under Section 6:
|
Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx, Sachs & Co. must both agree to the release | |||
Manager authorized to appoint
counsel under Section 8(c):
|
Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx, Sachs & Co. must both agree to the appointment | |||
Registration Statement File Nos.:
|
333-104352 and 333-138964 | |||
Time of Sale Prospectus
|
1. Preliminary Prospectus dated
November 27, 2006 relating to the
Shelf Securities
|
|||
2. Final term sheet for the
Securities
|
||||
Lock-up Restricted Period:
|
90 days | |||
Title of Securities to be purchased:
|
1.25% Convertible Senior Subordinated Notes Due 2036 | |||
Principal Amount of Firm Securities:
|
$175,000,000 | |||
Principal Amount of Additional
Securities:
|
$26,250,000 | |||
Purchase Price:
|
97.625% of the principal amount of the Securities plus accrued interest, if any, from December 4, 2006 | |||
Initial Public Offering Price:
|
100% of the principal amount of the Securities plus accrued interest, if any, from December 4, 2006 | |||
Indenture
|
Indenture dated December 4, 2006 between the Company and the Trustee | |||
II-1
Trustee
|
Union Bank of California | |
Closing Date and Time:
|
December 4, 2006 at 10:00 a.m. (New York City time) | |
Closing Location:
|
Xxxxxx & Bird LLP 0000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx 00000-0000 |
|
Address for Notices to Underwriters:
|
Xxxxxx Xxxxxxx & Co.
Incorporated 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Convertible Syndicate Desk with a copy to the Legal Department |
|
| Xxxxxxx, Sachs & Co. 00 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Syndicate Desk |
||
| Rabo Securities USA, Inc. 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
||
| Lazard Capital Markets LLC 00 Xxxxxxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
||
Address for Notices to the Company:
|
0000 Xxxxx Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx 00000 Attention: Chief Financial Officer with a copy to the General Counsel |
II-2
