UNDERWRITING AGREEMENT

 

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                                                                     Exhibit 1.1

 

 

                                12,800,000 SHARES

 

 

                                AGCO CORPORATION

 

 

                          COMMON STOCK, $0.01 PAR VALUE

 

 

                              UNDERWRITING AGREEMENT

 

 

April 1, 2004

 

 

 

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                                                     April 1, 2004

 

 

 

 

Morgan Stanley & Co. Incorporated                     Goldman, Sachs & Co.

1585 Broadway                                          85 Broad Street

New York, New York 10036                              New York, New York 10004

 

 

 

Dear Sirs and Mesdames:

 

         AGCO Corporation, a Delaware corporation (the "COMPANY"), proposes to

issue and sell to the several Underwriters named in Schedule I hereto (the

"UNDERWRITERS") 12,800,000 shares of its common stock, $0.01 par value (the

"FIRM SHARES"). The Company also proposes to issue and sell to the several

Underwriters not more than an additional 1,920,000 shares of its common stock,

$0.01 par value (the "ADDITIONAL SHARES"), 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 shares of common stock granted to the

Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares are

hereinafter collectively referred to as the "SHARES." The shares of common

stock, $0.01 par value, of the Company are hereinafter referred to as the

"COMMON STOCK."

 

         The Company has filed with the Securities and Exchange Commission (the

"COMMISSION") a registration statement, including a prospectus, relating to the

Shares, and such registration statement has been declared effective by the

Commission under the Securities Act of 1933, as amended the ("SECURITIES ACT").

The registration statement as amended at the time it became effective, including

the information (if any) deemed to be part of the registration statement at the

time of effectiveness pursuant to Rule 430A under the Securities Act, is

hereinafter referred to as the "REGISTRATION STATEMENT"; the prospectus in the

form first used to confirm sales of Shares (including any related prospectus

supplement) is hereinafter referred to as the "PROSPECTUS." If the Company has

filed an abbreviated registration statement to register additional shares of

Common Stock pursuant to Rule 462(b) under the Securities Act (the "RULE 462

REGISTRATION STATEMENT"), then any reference herein to the term "REGISTRATION

STATEMENT" shall be deemed to include such Rule 462 Registration Statement

(including, in the case of all references to the Registration Statement and the

Prospectus, documents incorporated therein by reference).

 

         1. Representations and Warranties. The Company represents and warrants

to and agrees with each of the Underwriters that:

 

 

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                  (a) The Registration Statement has become effective under the

         Securities Act; no stop order suspending the effectiveness of the

         Registration Statement is in effect, and, to the knowledge of the

         Company, no proceedings for such purpose are pending before or

         threatened by the Commission.

 

                  (b) (i) Each document, if any, filed or to be filed pursuant

         to the Securities Exchange Act of 1934, as amended (the "EXCHANGE

         ACT"), and incorporated by reference in the Prospectus complied or will

         comply when so filed in all material respects with the Exchange Act and

         the applicable rules and regulations of the Commission thereunder, (ii)

         the Registration Statement, when it became effective, did not contain

         and, as amended or supplemented, if applicable, will not contain any

         untrue statement of a material fact or omit to state a material fact

         required to be stated therein or necessary to make the statements

         therein not misleading, (iii) the Registration Statement and the

         Prospectus comply and, as amended or supplemented, if applicable, will

          comply in all material respects with the Securities Act and the

         applicable rules and regulations of the Commission thereunder and (iv)

         the Prospectus does not contain and, as amended or supplemented, if

         applicable, will not contain any untrue statement of a material fact or

         omit to state a material fact necessary to make the statements therein,

         in the light of the circumstances under which they were made, not

         misleading, except that the representations and warranties set forth in

         this paragraph do not apply to statements or omissions in the

         Registration Statement or the Prospectus based upon information

         relating to any Underwriter furnished to the Company in writing by such

         Underwriter through you expressly for use therein.

 

                  (c) The Company has been duly incorporated, is validly

         existing as a corporation in good standing under the laws of the

         jurisdiction of its incorporation, has the corporate power and

         authority to own its property and to conduct its business as described

         in the Prospectus and is duly qualified to transact business and is in

         good standing (to the extent that good standing is a concept recognized

         by such jurisdiction) in each jurisdiction in which the conduct of its

         business or its ownership or leasing of property requires such

         qualification, except to the extent that the failure to be so qualified

         or be in good standing would not have a material adverse effect on the

         Company and its subsidiaries, taken as a whole.

 

                  (d) Each subsidiary of the Company has been duly incorporated,

         is validly existing as a corporation in good standing under the laws of

         the jurisdiction of its incorporation, has the corporate power and

         authority to own its property and to conduct its business as described

         in the Prospectus and is duly qualified to transact business and is in

         good standing in each jurisdiction in which the conduct of its business

         or its ownership or leasing of property requires such qualification,

         except to the extent that the failure

 

 

 

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         to be so qualified or be in good standing would not have a material

         adverse effect on the Company and its subsidiaries, taken as a whole;

         all of the issued shares of capital stock of each subsidiary of the

          Company have been duly and validly authorized and issued, are fully

         paid and non-assessable and are owned directly by the Company, free and

         clear of all liens, encumbrances, equities or claims.

 

                  (e) This Agreement has been duly authorized, executed and

         delivered by the Company.

 

                  (f) The authorized capital stock of the Company conforms as to

         legal matters to the description thereof contained in the Prospectus.

 

                  (g) The shares of Common Stock outstanding prior to the

         issuance of the Shares have been duly authorized and are validly

         issued, fully paid and non-assessable, and there are no authorized or

         outstanding options, warrants or other rights to purchase, or equity or

         debt securities convertible into or exchangeable or exercisable for,

         any shares of Common Stock except as described in the Prospectus.

 

                  (h) The Shares have been duly authorized and, when issued and

         delivered in accordance with the terms of this Agreement, will be

         validly issued, fully paid and non-assessable, and the issuance of such

         Shares will not be subject to any preemptive or similar rights.

 

                  (i) The Shares have been approved for listing on the New York

         Stock Exchange, subject only to official notice of issuance.

 

                  (j) The execution and delivery by the Company of, and the

         performance by the Company of its obligations under, this Agreement

         will not contravene any provision of applicable law or the certificate

         of incorporation or by-laws of the Company or any agreement or other

         instrument binding upon the Company or any of its subsidiaries that is

         material to the Company and its subsidiaries, taken as a whole, or any

         judgment, order or decree of any governmental body, agency or court

         having jurisdiction over the Company or any subsidiary, or result in

         the creation or imposition of any lien, charge or encumbrance upon any

         assets or property of the Company or any of its subsidiaries, and no

         consent, approval, authorization or order of, or qualification or

         filing with, any governmental body or agency, any lender or any other

         person is required for the performance by the Company of its

         obligations under this Agreement, except such consents received prior

         to the date hereof and such as may be required by the securities or

         Blue Sky laws of the various states or international jurisdictions in

         connection with the offer and sale of the Shares.

 

 

 

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                  (k) The consolidated financial statements of the Company and

         its subsidiaries, together with related notes and schedules, as set

         forth in the Registration Statement and the Prospectus present fairly,

         in all material respects, the consolidated financial position, the

         results of operations and cash flows of the Company and the

         Subsidiaries, on a consolidated basis, as of the indicated dates and

         for the indicated periods. Such financial statements comply as to form

         in all material respects with the rules of the Commission with respect

         thereto and have been prepared in accordance with generally accepted

         accounting principles in the United States ("GAAP"), consistently

         applied throughout the periods involved, and all adjustments necessary

         for a fair presentation of results for such periods have been made; any

         schedules included in the Registration Statement present fairly the

         information required to be stated therein. No other financial

         statements or supporting schedules are required to be included in the

         Registration Statement. The pro forma financial information and related

         notes thereto included in the Registration Statement and the Prospectus

          present fairly the information shown therein, have been prepared in

         accordance with the Securities Act and the rules of the Commission with

         respect to pro forma financial information, have been prepared on a

         basis consistent with the historical financial statements of the

         Company and have been compiled on the pro forma bases described

         therein, and (A) the assumptions underlying the pro forma adjustments

         are reasonable, (B) such adjustments are appropriate to give effect to

         the transactions or circumstances referred to therein and have been

         properly applied to the historical amounts in the compilation of such

         statements and (C) such statements fairly present the pro forma results

         of operations and information purported to be shown therein for the

         respective periods therein specified based on the assumptions

         identified therein. Except (X) as disclosed in the Prospectus, (Y) as

         reflected in the Company's audited balance sheet at December 31, 2003

         or liabilities described in any notes thereto (or liabilities for which

         neither accrual nor footnote disclosure is required pursuant to GAAP)

         or (Z) for liabilities incurred in the ordinary course of business

         since December 31, 2003 consistent with past practice, neither the

         Company nor any subsidiary has any material liabilities or obligations

         of any nature. Except as set forth in the Prospectus, neither the

         Company nor any subsidiary has engaged in or effected any transaction

         or arrangement that would constitute an "off-balance sheet arrangement"

         (as defined in Item 303 of Regulation S-K of the Commission). The

         financial information included in the Prospectus included under the

         captions "Summary--AGCO Corporation Summary Historical Financial Data,"

         "Summary - Summary Unaudited Pro Forma Combined Financial Data,"

         "Capitalization," "Selected Consolidated Financial Data" and

         "Management's Discussion and Analysis of Financial Condition and

         Results of Operations," (and any amendment or supplement thereto)

         present fairly in accordance with GAAP the information shown therein

         (except for non-GAAP financial measures and ratios which have been

         presented in compliance with Regulation G) and have been compiled on a

 

 

 

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         basis consistent with that of the audited and unaudited financial

         statements from which they were derived.

 

                  (l) Since the respective dates as of which information is

         given in the Prospectus and exclusive of any amendments or supplements

         thereto subsequent to the date of this Agreement, (i) there has not

         occurred any material adverse change, or any development that might

         reasonably be expected to result in a prospective material adverse

         change, in the condition, financial or otherwise, or in the earnings,

         business or operations of the Company and its subsidiaries, taken as a

         whole; (ii) there have been no transactions entered into by the Company

         or any of its subsidiaries, other than those in the ordinary course of

         business, which are material to the Company and its subsidiaries, taken

         as a whole, and (iii) except for regular dividends on the common stock

         of the Company in amounts per share that are consistent with past

         practice, there has been no dividend or distribution of any kind

         declared, paid or made by the Company on any class of its capital

         stock.

 

                  (m) There are no legal or governmental proceedings pending or,

          to the knowledge of the Company, threatened, to which the Company or

         any of its subsidiaries is a party or to which any of the properties of

         the Company or any of its subsidiaries is subject other than

         proceedings accurately described in all material respects in the

         Registration Statement or the Prospectus and proceedings that would not

         have a material adverse effect on the Company and its subsidiaries,

         taken as a whole, or any statutes or regulations that are required to

         be described in the Registration Statement or the Prospectus or to be

         filed as exhibits to the Registration Statement that are not described

         or filed as required.

 

                  (n) 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.

 

                  (o) The Company is not, and after giving effect to the

         offering and sale of the Shares 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.

 

                  (p) 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

 

 

 

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         conduct their respective businesses and (iii) are in compliance with

         all terms and conditions of any such permit, license or approval,

         except where such noncompliance with Environmental Laws, failure to

         receive required permits, licenses or other approvals or failure to

         comply with the terms 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.

 

                   (q) To the Company's knowledge, KPMG LLP ("KPMG"), independent

         auditors who have certified certain of the financial statements of the

         Company and its subsidiaries contained in the Prospectus and the

         Registration Statement, are and were during the periods covered by

         their reports included in the Prospectus and the Registration Statement

         independent public accountants within the meaning of the Securities

         Act, Regulation S-X of the Commission and Rule 101 of the Code of

         Professional Ethics of the American Institute of Certified Public

         Accountants. KPMG (i) based solely on representations made by KPMG, is,

         to the Company's knowledge, a registered public accounting firm (as

          defined in Section 2(a)(12) of the Sarbanes-Oxley Act of 2002) ("SOX")

         and (ii) is, with respect to the Company, in compliance with

         subsections (g) through (l) of Section 10A of the Exchange Act.

 

                  (r) The Company and each of its subsidiaries maintain

         disclosure controls and procedures (as defined in Rule 13a-15(e) of the

         Commission) that are designed to ensure that information required to be

         disclosed by the Company in the reports it files or submits under the

         Exchange Act is recorded, processed, summarized and reported within the

         time periods specified in the Commission's rules and forms.

 

                  (s) The Company and each of its subsidiaries maintain internal

         control over financial reporting (as defined in Rule 13a-15(f) of the

         Commission) sufficient to provide reasonable assurance regarding the

         (A) reliability of financial reporting and the preparation of financial

         statements for external purposes in accordance with GAAP, (B)

         maintenance of records that in reasonable detail accurately and fairly

         reflect transactions and dispositions of the assets of the Company and

         its subsidiaries, (C) recording of transactions as necessary to permit

         preparation of financial statements in accordance with GAAP and that

         receipts and expenditures of the Company and its subsidiaries are being

         made only in accordance with authorizations of management and directors

         of the Company or the applicable subsidiary, and (D) prevention or

         timely detection of unauthorized acquisition, use or disposition of the

         Company's or its subsidiaries' assets that could have a material effect

         on the financial statements.

 

                  (t) The Company's management evaluates, with the participation

         of the Company's principal executive and principal financial

 

 

 

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          officers, or persons performing similar functions, (A) the

         effectiveness of the Company's and its subsidiaries' disclosure

         controls and procedures as of the end of each fiscal quarter, (B) the

         Company's and its subsidiaries' internal control over financial

         reporting as of the end of each fiscal year, and (C) any change in the

         Company's or its subsidiaries' internal control over financial

         reporting that occurred during each of the Company's fiscal quarters

         that has materially affected, or is reasonably likely to materially

         affect, the Company's or any subsidiaries' internal control over

         financial reporting.

 

                   (u) Except as disclosed in the Prospectus, the Company has

         not, since July 30, 2002, extended or maintained credit, arranged for

         the extension of credit, or renewed an extension of credit, in the form

         of a personal loan to or for any director or executive officer of the

         Company; and any such credit that was outstanding on July 30, 2002 or

         that is currently outstanding was in place on or before July 30, 2002,

         and there has been no material modification of any term of such credit

         or any renewal or such credit on or after July 30, 2002.

 

                   (v) The Company is in compliance with all U.S. laws, and,

         specifically, has not directly or indirectly used any proceeds of any

         debt or equity offerings, and has not permitted any person or entity to

         which the Company made such proceeds available to use them, to finance

         the activities of any person or entity that is subject to sanctions

         under, or otherwise in a manner that places the Company, any affiliate

         thereof or any director, officer, employee or agent of any of the

         foregoing in violation of any law, regulation, order or license

         relating to any program administered by the Office of Foreign Assets

         Control ("OFAC") of the United States Department of the Treasury,

         including, without limitation, any program the regulations of which are

         codified in Chapter 5 of Subtitle B of Title 31 of the Code of Federal

         Regulations.

 

         2. Agreements to Sell and Purchase. The Company hereby agrees to sell

to the several Underwriters, and each Underwriter, upon the basis of the

representations and warranties herein contained, but subject to the conditions

hereinafter stated, agrees, severally and not jointly, to purchase from the

Company the respective numbers of Firm Shares set forth in Schedule I hereto

opposite its name at $20.39 a share (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 Shares, and the Underwriters shall have the

right to purchase, severally and not jointly, up to 1,920,000 Additional Shares

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 of each election

to exercise the option not later than 30 days after the date of this Agreement.

Any exercise notice shall specify the number of Additional Shares to be

purchased by

 

 

 

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the Underwriters and the date on which such shares are to be purchased. Each

purchase date must be at least one business day after the written notice is

given and may not be earlier than the closing date for the Firm Shares nor later

than ten business days after the date of such notice. Additional Shares 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 Shares. On each

day, if any, that Additional Shares are to be purchased, each Underwriter

agrees, severally and not jointly, to purchase the number of Additional Shares

(subject to such adjustments to eliminate fractional shares as you may

determine) that bears the same proportion to the total number of Additional

Shares to be purchased on such date as the number of Firm Shares set forth in

Schedule I hereto opposite the name of such Underwriter bears to the total

number of Firm Shares.

 

         The Company hereby agrees that, without the prior written consent of

Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co. on behalf of the

Underwriters, it will not, during the period ending 90 days after the date of

the Prospectus, (i) 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 sec