1.25% CONVERTIBLE SENIOR
SUBORDINATED NOTES DUE 2036
Morgan Stanley
& Co. Incorporated
Goldman, Sachs & Co.
Rabo Securities USA, Inc.
Lazard Capital Markets LLC
c/o Morgan
Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
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
3
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
5
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 d
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