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Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
DATED AS OF DECEMBER 23, 2003
BETWEEN
AGCO CORPORATION
AND
MORGAN STANLEY & CO. INCORPORATED,
AS REPRESENTATIVE OF THE INITIAL PURCHASERS
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REGISTRATION RIGHTS AGREEMENT dated as of December 23, 2003 between
AGCO
Corporation, a Delaware corporation (the
"COMPANY"), and Morgan Stanley & Co.
Incorporated, as representative of the
several initial purchasers listed on
Schedule I (the "INITIAL PURCHASERS") to
the Purchase Agreement dated December
17, 2003 (the "PURCHASE AGREEMENT") with
the Company. In order to induce the
Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed
to provide the registration rights set
forth in this Agreement. The execution of
this Agreement is a condition to the
closing under the Purchase Agreement.
The
Company agrees with the Initial Purchasers, (i) for their benefit
as
Initial Purchasers and (ii) for the benefit
of the beneficial owners (including
the Initial Purchasers) from time to time
of the Securities (as defined herein)
and the beneficial owners from time to time
of the Underlying Common Stock (as
defined herein) issued upon conversion of
the Securities (each of the foregoing
a "HOLDER" and together the "Holders"), as
follows:
Section 1.
Definitions. Capitalized terms used herein without definition
shall have their respective meanings set
forth in the Purchase Agreement. As
used in this Agreement, the following terms
shall have the following meanings:
"AFFILIATE" means with respect to
any specified person, an "affiliate," as
defined in Rule 144, of such person.
"AMENDMENT
EFFECTIVENESS DEADLINE" has the meaning set forth in Section
2(c) hereof.
"BUSINESS
DAY" means any day, except a Saturday, Sunday or legal holiday
on which banking institutions in The City
of New York are authorized or
obligated by law or executive order to
close.
"COMMON
STOCK" means the shares of common stock, $0.01 par value per
share, of the Company, together with the
Rights evidenced by such common stock
to the extent provided in the Rights Plan,
and any other shares of common stock
as may constitute "Common Stock" for
purposes of the Indenture, including the
Underlying Common Stock.
"CONVERSION PRICE" has the meaning assigned such term in the
Indenture.
"DEFERRAL
NOTICE" has the meaning set forth in Section 3(h) hereof.
"DEFERRAL
PERIOD" has the meaning set forth in Section 3(h) hereof.
"EFFECTIVENESS DEADLINE" has the meaning set forth in 1)
hereof.
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"EFFECTIVENESS PERIOD" means the period commencing on the first
date that
a Shelf Registration Statement is declared
effective under the Securities Act
hereof and ending on the date that all
Securities and the Underlying Common
Stock have ceased to be Registrable
Securities.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and
the rules and regulations of the SEC
promulgated thereunder.
"FILING
DEADLINE" has the meaning set forth in 1) hereof.
"HOLDER"
has the meaning set forth in the second paragraph of this
Agreement.
"INDENTURE" means the Indenture dated as of December 23, 2003
between the
Company and SunTrust Bank, as trustee,
pursuant to which the Securities are
being issued.
"INITIAL
PURCHASERS" means the Initial Purchasers named in Schedule I to
the Purchase Agreement.
"INTEREST
PAYMENT DATE" means each June 30 and December 31.
"ISSUE
DATE" means the first date of original issuance of the
Securities.
"LIQUIDATED DAMAGES AMOUNT" has the meaning set forth in Section
2(d)
hereof.
"MATERIAL
EVENT" has the meaning set forth in Section 3(h) hereof.
"NOTICE
AND QUESTIONNAIRE" means a written notice delivered to the
Company
containing substantially the information
called for by the Selling
Securityholder Notice and Questionnaire
attached as Annex A to the Offering
Memorandum of the Company dated December
17, 2003 relating to the Securities.
"NOTICE
HOLDER" means, on any date, any Holder that has delivered a
properly completed Notice and Questionnaire
to the Company on or prior to such
date.
"PURCHASE
AGREEMENT" has the meaning set forth in the preamble hereof.
"PROSPECTUS" means a prospectus relating to a Shelf
Registration
Statement, as amended or supplemented, and
all materials incorporated by
reference in such Prospectus.
"RECORD
HOLDER" means with respect to any Interest Payment Date
relating
to any Securities or Underlying Common
Stock as to which any Liquidated Damages
Amount has accrued, the registered holder
of such Security
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or Underlying Common Stock on the June 15
or December 15 immediately preceding
the Interest Payment Date.
"REGISTRABLE SECURITIES" means the Securities until such Securities
have
been converted into or exchanged for the
Underlying Common Stock and, at all
times subsequent to any such conversion,
the Underlying Common Stock and any
securities into or for which such
Underlying Common Stock has been converted or
exchanged, and any security issued with
respect thereto upon any stock dividend,
split or similar event until, in the case
of any such security, (A) the earliest
of (i) its effective registration under the
Securities Act and resale in
accordance with a Shelf Registration
Statement, (ii) expiration of the holding
period that would be applicable thereto
under Rule 144(k) or (iii) its sale to
the public pursuant to Rule 144 (or any
similar provision then in force, but not
Rule 144A) under the Securities Act, and
(B) as a result of the event or
circumstance described in any of the
foregoing clauses (i) through (iii), the
legend with respect to transfer
restrictions required under the Indenture is
removed or removable in accordance with the
terms of the Indenture or such
legend, as the case may be.
"REGISTRATION DEFAULT" has the meaning set forth in Section 2(d)
hereof.
"REGISTRATION DEFAULT PERIOD" has the meaning set forth in Section
2(d)
hereof.
"RIGHTS
PLAN" means the Stockholders Right Plan dated April 27, 1994 of
the Company.
"RULE 144"
means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar
rule or regulation hereafter adopted
by the SEC.
"RULE
144A" means Rule 144A under the Securities Act, as such Rule may
be
amended from time to time, or any similar
rule or regulation hereafter adopted
by the SEC.
"SEC"
means the Securities and Exchange Commission.
"SECURITIES" means the 1 -3/4% Convertible Senior Subordinated
Notes Due
2033 of the Company to be purchased
pursuant to the Purchase Agreement,
including any Securities purchased by the
Initial Purchasers upon exercise of
their option to purchase additional
Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the
rules and regulations promulgated by the
SEC thereunder.
"SHELF
REGISTRATION STATEMENT" has the meaning set forth in 1) hereof,
including amendments to such registration
statement, all exhibits and all
materials incorporated by reference in such
registration statement.
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"SPECIAL
COUNSEL" means Alston & Bird LLP or one such other
successor
counsel as shall be specified by the
Holders of a majority of the Registrable
Securities, but which may, with the written
consent of the Initial Purchasers
(which shall not be unreasonably withheld),
be another nationally recognized law
firm experienced in securities law matters
designated by the Company. For
purposes of determining Holders of a
majority of the Registrable Securities in
this definition, Holders of Securities
shall be deemed to be the Holders of the
number of shares of Underlying Common Stock
into which such Securities are or
would be convertible as of the date the
consent is requested.
"TRUSTEE"
means SunTrust Bank, the Trustee under the Indenture.
"UNDERLYING COMMON STOCK" means the Common Stock into which the
Securities
are convertible or issued upon any such
conversion.
Section 2. Shelf
Registration. 1) The Company shall prepare and file or
cause to be prepared and filed with the
SEC, as soon as practicable but in any
event by the date (the "FILING DEADLINE")
90 days after the Issue Date, a
registration statement for an offering to
be made on a delayed or continuous
basis pursuant to Rule 415 of the
Securities Act registering the resale from
time to time by Holders thereof of the
Registrable Securities (a "SHELF
REGISTRATION STATEMENT"). The Shelf
Registration Statement shall be on Form S-3
or another appropriate form permitting
registration of the Registrable
Securities for resale by the Holders in
accordance with the methods of
distribution elected by the Holders and set
forth in the Shelf Registration
Statement. The Company shall use its best
efforts to cause a Shelf Registration
Statement to be declared effective under
the Securities Act as promptly as is
practicable but in any event by the date
(the "EFFECTIVENESS DEADLINE") that is
180 days after the Issue Date, and to keep
a Shelf Registration Statement
continuously effective under the Securities
Act until the expiration of the
Effectiveness Period. Each Holder that
became a Notice Holder on or prior to the
date ten Business Days prior to the initial
Shelf Registration Statement is
declared effective shall be named as a
selling securityholder in the initial
Shelf Registration Statement and the
related Prospectus in such a manner as to
permit such Holder to deliver the
Prospectus to purchasers of Registrable
Securities in accordance with applicable
law. None of the Company's security
holders (other than the Notice Holders)
shall have the right to include any of
the Company's securities in a Shelf
Registration Statement unless the Holders
have first had an opportunity to include
all Registrable Securities held by the
Holders in such Shelf Registration
Statement .
(a) If a Shelf Registration Statement covering resales of the
Registrable Securities ceases to be
effective for any reason at any time during
the Effectiveness Period (other than
because all securities registered
thereunder shall have been resold pursuant
thereto or shall have otherwise
ceased to be Registrable Securities), the
Company shall use its reasonable best
efforts to obtain the prompt withdrawal of
any order suspending the
effectiveness thereof, and in any event
shall within 45 days of such cessation
of effectiveness amend the Shelf
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Registration Statement in a manner
reasonably expected to obtain the withdrawal
of the order suspending the effectiveness
thereof, or file an additional Shelf
Registration Statement so that all
Registrable Securities outstanding as of the
date of such filing are covered by a Shelf
Registration Statement. If a new
Shelf Registration Statement is filed, the
Company shall use its reasonable best
efforts to cause the new Shelf Registration
Statement to become effective as
promptly as is practicable after such
filing and to keep the new Shelf
Registration Statement continuously
effective until the end of the Effectiveness
Period.
(b) The Company shall amend and supplement the Prospectus and amend
the
Shelf Registration Statement if required by
the rules, regulations or
instructions applicable to the registration
form used by the Company for such
Shelf Registration Statement or file a new
Shelf Registration Statement, if
required by the Securities Act, or any
other documents necessary to name a
Notice Holder as a selling securityholder
pursuant to Section 2(c) below.
(c)
Each Holder may sell Registrable Securities pursuant to a Shelf
Registration Statement and related
Prospectus only in accordance with this
Section 2(c) and Section 3(h). Each Holder
wishing to sell Registrable
Securities pursuant to a Shelf Registration
Statement and related Prospectus
shall deliver a Notice and Questionnaire to
the Company at least three (3)
Business Days prior to any intended
distribution of Registrable Securities under
the Shelf Registration Statement. No Holder
shall be entitled to be named as a
selling securityholder in the Shelf
Registration Statement, and no Holder shall
be entitled to use the Prospectus that is
part of the Shelf Registration
Statement for offers and resales of
Registrable Securities at any time, unless
such Holder has returned a properly
completed and signed Notice and
Questionnaire to the Company by the
deadline for response set forth herein. From
and after the date the initial Shelf
Registration Statement is declared
effective, the Company shall, as promptly
as practicable after the date a Notice
and Questionnaire is delivered, and in any
event upon the later of (x) 20
Business Days after such date or (y) five
Business Days after the expiration of
any Deferral Period in effect when the
Notice and Questionnaire is delivered or
put into effect within 20 Business Days of
such delivery date:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement (and
if the
Company
shall have received a Notice and Questionnaire from another
Holder
before
such post-effective amendment has been declared effective by
the
SEC, the
Company shall have thirty (30) Business Days to file another
post-effective amendment with the SEC with respect to such Holder)
or
prepare
and, if required by applicable law, file a supplement to the
related
Prospectus or a supplement or amendment to any document
incorporated therein by reference or file a new Shelf
Registration
Statement or any other required
document so that the Holder delivering
such
Notice and Questionnaire is named as a selling securityholder in
a
Shelf
Registration Statement and the related Prospectus in such a
manner
as to
permit such Holder to deliver such Prospectus to purchasers of
the
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Registrable Securities in accordance with applicable law and, if
the
Company
shall file a post-effective amendment to a Shelf Registration
Statement or shall
file a new Shelf Registration Statement, the Company
shall use
its reasonable best efforts to cause such post-effective
amendment
or new Shelf Registration Statement to be declared effective
under the
Securities Act as promptly as is practicable, but in any event
by the
date (the "AMENDMENT EFFECTIVENESS DEADLINE") that is 45 days
after
the date
such post-effective amendment or new Shelf Registration
Statement
is
required by this clause to be filed;
(ii) provide such Holder copies of any documents filed pursuant
to Section
2(c)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any new Shelf
Registration
Statement
or post-effective amendment filed pursuant to Section 2(c)(i);
provided that if such Notice and
Questionnaire is delivered during a Deferral
Period, the Company shall so inform the
Holder delivering such Notice and
Questionnaire and shall take the actions
set forth in clauses (i), (ii) and
(iii) above upon expiration of the Deferral
Period in accordance with Section
3(h). Notwithstanding anything contained
herein to the contrary, (i) the Company
shall be under no obligation to name any
Holder that is not a Notice Holder as a
selling securityholder in any Shelf
Registration Statement or related Prospectus
and (ii) the Amendment Effectiveness
Deadline shall be extended by up to ten
Business Days from the expiration of a
Deferral Period (and the Company shall
incur no obligation to pay liquidated
damages during such extension if such
Deferral Period shall be in effect on the
Amendment Effectiveness Deadline).
(d) The parties hereto agree that the Holders of Registrable
Securities
will suffer damages, and that it would not
be feasible to ascertain the extent
of such damages with precision, if, other
than as permitted hereunder:
(i) a Shelf Registration Statement has not been filed on or
prior
to the
Filing Deadline,
(ii) a Shelf Registration Statement has not been declared
effective
under the Securities Act on or prior to the Effectiveness
Deadline,
(iii) the Company has failed to perform its obligations set
forth
in Section 2(c)(i)
within the time period required therein,
(iv) a new Shelf Registration Statement or a post-effective
amendment
to a Shelf Registration Statement filed pursuant to Section
2(c)(i)
has not become effective under the Securities Act on or prior
to
the
Amendment Effectiveness Deadline,
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(v) the aggregate duration of Deferral Periods in any period
exceeds
the number of days permitted in respect of such period pursuant
to
Section
3(h) hereof, or
(vi) the number of Deferral Periods in any period exceeds the
number
permitted in respect of such period pursuant to Section 3(h)
hereof.
Each event described in any of the
foregoing clauses (i) through (vi) is
individually referred to herein as a
"REGISTRATION DEFAULT." For purposes of
this Agreement, each Registration Default
set forth above shall begin and end on
the dates set forth in the table set forth
below:
<TABLE>
<CAPTION>
Type of
Registration
Default by
Clause
Beginning Date
Ending Date
------
--------------
-----------
<S>
<C>
<C>
(i)
Filing Deadline
the date a Shelf Registration
Statement is filed
(ii)
Effectiveness Deadline the date a Shelf
Registration
Statement becomes effective
under the Securities Act
(iii)
the date by which the the date
the Company performs
Company is required to its obligations
set forth in
perform its obligations Section 2(c)(i)
under Section 2(c)(i)
(iv)
the Amendment
the date the applicable
Effectiveness Deadline post-effective
amendment to a
Shelf Registration Statement
or a new Shelf Registration
Statement becomes effective
under the Securities Act
(v)
the date on which the termination of the Deferral
aggregate duration of Period
that caused the limit
Deferral Periods in any on the aggregate
duration of
period exceeds the number Deferral Periods to be
of days permitted by
exceeded
Section 3(h)
(vi)
the date of commencement termination of the
Deferral
of a Deferral Period that Period that caused the number
causes the number of of
Deferral Periods to exceed
Deferral Periods to
the number permitted by
exceed the number
Section 3(h)
permitted by Section 3(h)
</TABLE>
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For purposes of this Agreement,
Registration Defaults shall begin on the dates
set forth in the table above and shall
continue until the ending dates set forth
in the table above.
Commencing
on (and including) any date that a Registration Default has
begun and ending on (but excluding) the
next date on which there are no
Registration Defaults that have occurred
and are continuing (a "REGISTRATION
DEFAULT PERIOD"), the Company shall pay, as
liquidated damages and not as a
penalty, to Record Holders of Registrable
Securities an amount (the "LIQUIDATED
DAMAGES AMOUNT") accruing for each day in
the Registration Default Period, (i)
in respect of any Security, at a rate per
annum equal to 0.5% of the aggregate
principal amount of such Security and (ii)
in respect of each share of
Underlying Common Stock that has been
issued upon conversion of a Security, at a
rate per annum equal to 0.5% on the
Conversion Price on such date (the
"LIQUIDATED DAMAGES AMOUNT"), as the case
may be; provided that in the case of a
Registration Default Period that is in
effect solely as a result of a
Registration Default of the type described
in clause (iii) or (iv) of the
preceding paragraph, such Liquidated
Damages Amount shall be paid only to the
Holders (as set forth in the succeeding
paragraph) that have delivered a
properly completed Notices and
Questionnaires that caused the Company to incur
the obligations set forth in Section 2(c)
the non-performance of which is the
basis of such Registration Default. In
calculating the Liquidated Damages Amount
on shares of Underlying Common Stock on any
date on which no Securities are
outstanding, the Conversion Price used
shall be based on the Conversion Price
that would be in effect if the Securities
were still outstanding.
Notwithstanding the foregoing, no
Liquidated Damages Amount shall accrue as to
any Registrable Security from and after the
earlier of (x) the date such
security is no longer a Registrable
Security and (y) expiration of the
Effectiveness Period. The rate of accrual
of the Liquidated Damages Amount with
respect to any period shall not exceed the
rate provided for in this paragraph
notwithstanding the occurrence of multiple
concurrent Registration Defaults.
The
Liquidated Damages Amount shall accrue from the first day of
the
applicable Registration Default Period, and
shall be payable on each Interest
Payment Date during the Registration
Default Period (and on the Interest Payment
Date next succeeding the end of the
Registration Default Period if the
Registration Default Period does not end on
a Interest Payment Date) to the
Record Holders of the Registrable
Securities entitled thereto; provided that any
Liquidated Damages Amount accrued with
respect to any Security or portion
thereof redeemed by the
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Company on a redemption date, purchased by
the Company on a repurchase date or
converted into Underlying Common Stock on a
conversion date prior to the
Interest Payment Date, shall, in any such
event, be paid instead to the Holder
who submitted such Security or portion
thereof for redemption, purchase or
conversion on the applicable redemption
date, repurchase date or conversion
date, as the case may be, on such date (or
promptly following the conversion
date, in the case of conversion), unless
the redemption date or the repurchase
date, as the case may be, falls after June
15 or December 15 and on or prior to
the corresponding Interest Payment Date;
and provided further, that, in the case
of a Registration Default of the type
described in clause (iii) or (iv) of the
first paragraph of this Section 2(d) such
Liquidated Damages Amount shall be
paid only to the Holders entitled thereto
pursuant to such first paragraph by
check mailed to the address set forth in
the Notice and Questionnaire delivered
by such Holder. The Trustee shall be
entitled, on behalf of registered holders
of Securities or Underlying Common Stock,
to seek any available remedy for the
enforcement of this Agreement, including
for the payment of such Liquidated
Damages Amount. Notwithstanding the
foregoing, the parties agree that the sole
damages payable for a violation of the
terms of this Agreement with respect to
which liquidated damages are expressly
provided shall be such liquidated
damages. Nothing shall preclude any Holder
from pursuing or obtaining specific
performance or other equitable relief with
respect to this Agreement.
All of the
Company's obligations set forth in this Section 2(d) that are
outstanding with respect to any Registrable
Security at the time such security
ceases to be a Registrable Security shall
survive until such time as all such
obligations with respect to such security
have been satisfied in full
(notwithstanding termination of this
Agreement pursuant to Section 8(k)).
The
parties hereto agree that the liquidated damages provided for in
this
Section 2(d) constitute a reasonable
estimate of the damages that may be
incurred by Holders of Registrable
Securities by reason of the failure of a
Shelf Registration Statement to be filed or
declared effective or available for
effecting resales of Registrable Securities
in accordance with the provisions
hereof.
Section 3.
Registration Procedures. In connection with the registration
obligations of the Company under Section 2
hereof, the Company shall:
(a) Before filing any Shelf Registration Statement or Prospectus or
any
amendments or supplements thereto with the
SEC, furnish to the Initial
Purchasers and the Special Counsel of such
offering, if any, copies of all such
documents proposed to be filed at least
three Business Days prior to the filing
of such Shelf Registration Statement or
amendment thereto or Prospectus or
supplement thereto.
(b) Subject to Section 3(h), prepare and file with the SEC such
amendments and post-effective amendments to
each Shelf Registration Statement as
may be necessary to keep such Shelf
Registration Statement continuously
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effective during the Effectiveness Period;
cause the related Prospectus to be
supplemented by any required prospectus
supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar
provisions then in force) under the
Securities Act; and use its reasonable best
efforts to comply with the
provisions of the Securities Act applicable
to it with respect to the
disposition of all securities covered by
such Shelf Registration Statement
during the Effectiveness Period in
accordance with the intended methods of
disposition by the sellers thereof set
forth in such Shelf Registration
Statement as so amended or such Prospectus
as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders,
the
Initial Purchasers and the Special Counsel,
2) when any Prospectus, prospectus
supplement, Shelf Registration Statement or
post-effective amendment to a Shelf
Registration Statement has been filed with
the SEC and, with respect to a Shelf
Registration Statement or any
post-effective amendment, when the same has been
declared effective, 3) of any request,
following the effectiveness of the
initial Shelf Registration Statement under
the Securities Act, by the SEC or any
other federal or state governmental
authority for amendments or supplements to
any Shelf Registration Statement or related
Prospectus or for additional
information, 4) of the issuance by the SEC
or any other federal or state
governmental authority of any stop order
suspending the effectiveness of any
Shelf Registration Statement or the
initiation or threatening of any proceedings
for that purpose, 5) of the receipt by the
Company of any notification with
respect to the suspension of the
qualification or exemption from qualification
of any of the Registrable Securities for
sale in any jurisdiction or the
initiation or threatening of any proceeding
for such purpose, 6) of the
occurrence of, but not the nature of or
details concerning, a Material Event and
7) of the determination by the Company that
a post-effective amendment to a
Shelf Registration Statement will be filed
with the SEC, which notice may, at
the discretion of the Company (or as
required pursuant to Section 3(h)) state
that it constitutes a Deferral Notice, in
which even
