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EXHIBIT 1.1
(EURO)200,000,000
AGCO CORPORATION
6.875 % SENIOR SUBORDINATED NOTES DUE 2014
UNDERWRITING AGREEMENT
April 15, 2004
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April 15, 2004
Morgan Stanley & Co.
Bear, Stearns International Limited
International Limited
c/o Bear Stearns &
Co.
c/o Morgan Stanley & Co. Incorporated
383
Madison Avenue
1585 Broadway
New York, New York 10179
New York, New York 10036
Dear Sirs and Mesdames:
AGCO Corporation, a Delaware corporation (the "COMPANY"), proposes
to
issue and sell to the several Underwriters
named in Schedule I hereto (the
"UNDERWRITERS") (euro)200,000,000 of its
6.875% Senior Subordinated Notes Due
2014 (the "SECURITIES") to be issued
pursuant to the provisions of an Indenture
to be dated as of April 23, 2004 (the
"INDENTURE") between the Company and
SunTrust Bank, as Trustee (the
"TRUSTEE").
The Company has filed with the Securities and Exchange Commission
(the
"COMMISSION") a registration statement,
including a prospectus, relating to the
Securities, and such registration statement
has been declared effective by the
Commission under the Securities Act of
1933, as amended the ("SECURITIES ACT").
The registration statement as amended at
the time it became effective, including
the information (if any) deemed to be part
of the registration statement at the
time of effectiveness pursuant to Rule 430A
under the Securities Act, is
hereinafter referred to as the
"REGISTRATION STATEMENT"; the prospectus in the
form first used to confirm sales of
Securities (including any related prospectus
supplement) is hereinafter referred to as
the "PROSPECTUS." If the Company has
filed an abbreviated registration statement
to register additional 6.875% Senior
Subordinated Notes Due 2014 pursuant to
Rule 462(b) under the Securities Act
(the "RULE 462 REGISTRATION STATEMENT"),
then any reference herein to the term
"REGISTRATION STATEMENT" shall be deemed to
include such Rule 462 Registration
Statement (including, in the case of all
references to the Registration
Statement and the Prospectus, documents
incorporated therein by reference).
1. Representations and Warranties. The Company represents and
warrants
to and agrees with each of the Underwriters
that:
(a) The Registration Statement has become effective under the
Securities Act; no stop order suspending the effectiveness of
the
Registration Statement is in effect, and, to the knowledge of
the
Company, no proceedings for such purpose are pending before or
threatened by the Commission.
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(b) (i) Each document, if any, filed or to be filed pursuant
to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE
ACT"), and incorporated by reference in the Prospectus complied or
will
comply when so filed in all material respects with the Exchange Act
and
the applicable rules and regulations of the Commission thereunder,
(ii)
the Registration Statement, when it became effective, did not
contain
and, as amended or supplemented, if applicable, will not contain
any
untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary to make the
statements
therein not misleading, (iii) the Registration Statement and
the
Prospectus comply and, as amended or supplemented, if applicable,
will
comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and
(iv)
the Prospectus does not contain and, as amended or supplemented,
if
applicable, will not contain any untrue statement of a material
fact or
omit to state a material fact necessary to make the statements
therein,
in the light of the circumstances under which they were made,
not
misleading, except that the representations and warranties set
forth in
this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such
Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as
described
in the Prospectus and is duly qualified to transact business and is
in
good standing (to the extent that good standing is a concept
recognized
by such jurisdiction) in each jurisdiction in which the conduct of
its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified
or be in good standing would not have a material adverse effect on
the
Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the
laws of
the jurisdiction of its incorporation, has the corporate power
and
authority to own its property and to conduct its business as
described
in the Prospectus and is duly qualified to transact business and is
in
good standing in each jurisdiction in which the conduct of its
business
or its ownership or leasing of property requires such
qualification,
except to the extent that the failure to be so qualified or be in
good
standing would not have a material adverse effect on the Company
and
its subsidiaries, taken as a whole; all of the issued shares of
capital
stock of each subsidiary of the Company have been duly and
validly
authorized and issued, are fully paid and non-assessable
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and are owned directly by the Company, free and clear of all
liens,
encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered
by
the Company and is a valid and binding agreement of the
Company,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors'
rights
generally and general principles of equity.
(g) The Securities have been duly authorized and, when
executed and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to
the
benefits of the Indenture and will be valid and binding obligations
of
the Company, enforceable in accordance with their terms, subject
to
applicable bankruptcy, insolvency or similar laws affecting
creditors'
rights generally and general principles of equity.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement,
the Indenture and the Securities will not contravene any provision
of
applicable law or the certificate of incorporation or by-laws of
the
Company or any agreement or other instrument binding upon the
Company
or any of its subsidiaries that is material to the Company and
its
subsidiaries, taken as a whole, or any judgment, order or decree of
any
governmental body, agency or court having jurisdiction over the
Company
or any subsidiary, or result in the creation or imposition of any
lien,
charge or encumbrance upon any assets or property of the Company or
any
of its subsidiaries, and no consent, approval, authorization or
order
of, or qualification or filing with, any governmental body or
agency,
any lender or any other person is required for the performance by
the
Company of its obligations under this Agreement, except such
consents
received prior to the date hereof and such as may be required by
the
securities or Blue Sky laws of the various states or
international
jurisdictions in connection with the offer and sale of the
Securities.
(i) The consolidated financial statements of the Company and
its subsidiaries, together with related notes and schedules, as
set
forth in the Registration Statement and the Prospectus present
fairly,
in all material respects, the consolidated financial position,
the
results of operations and cash flows of the Company and the
Subsidiaries, on a consolidated basis, as of the indicated dates
and
for the indicated periods. Such financial
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statements comply as to form in all material respects with the
rules of
the Commission with respect thereto and have been prepared in
accordance with generally accepted accounting principles in the
United
States ("GAAP"), consistently applied throughout the periods
involved,
and all adjustments necessary for a fair presentation of results
for
such periods have been made; any schedules included in the
Registration
Statement present fairly the information required to be stated
therein.
No other financial statements or supporting schedules are required
to
be included in the Registration Statement. The pro forma
financial
information and related notes thereto included in the
Registration
Statement and the Prospectus present fairly the information
shown
therein, have been prepared in accordance with the Securities Act
and
the rules of the Commission with respect to pro forma financial
information, have been prepared on a basis consistent with the
historical financial statements of the Company and have been
compiled
on the pro forma bases described therein, and (A) the
assumptions
underlying the pro forma adjustments are reasonable, (B) such
adjustments are appropriate to give effect to the transactions
or
circumstances referred to therein and have been properly applied to
the
historical amounts in the compilation of such statements and (C)
such
statements fairly present the pro forma results of operations
and
information purported to be shown therein for the respective
periods
therein specified based on the assumptions identified therein.
Except
(X) as disclosed in the Prospectus, (Y) as reflected in the
Company's
audited balance sheet at December 31, 2003 or liabilities described
in
any notes thereto (or liabilities for which neither accrual nor
footnote disclosure is required pursuant to GAAP) or (Z) for
liabilities incurred in the ordinary course of business since
December
31, 2003 consistent with past practice, neither the Company nor
any
subsidiary has any material liabilities or obligations of any
nature.
Except as set forth in the Prospectus, neither the Company nor
any
subsidiary has engaged in or effected any transaction or
arrangement
that would
constitute an "off-balance sheet arrangement" (as defined in
Item 303 of Regulation S-K of the Commission). The financial
information included in the Prospectus included under the
captions
"Summary -- AGCO Corporation Summary Historical Financial
Data,"
"Summary - Summary Unaudited Pro Forma Combined Financial
Data,"
"Capitalization," "Selected Consolidated Financial Data" and
"Management's Discussion and Analysis of Financial Condition
and
Results of Operations," (and any amendment or supplement
thereto)
present fairly in accordance with GAAP the information shown
therein
(except for non-GAAP financial measures and ratios which have
been
presented in compliance with Regulation G) and have been compiled
on a
basis consistent with that of the audited and unaudited
financial
statements from which they were derived.
(j) Since the respective dates as of which information is
given in the Prospectus and exclusive of any amendments or
supplements
thereto
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subsequent to the date of this Agreement, (i) there has not
occurred
any material adverse change, or any development that might
reasonably
be expected to result in a prospective material adverse change, in
the
condition, financial or otherwise, or in the earnings, business
or
operations of the Company and its subsidiaries, taken as a whole;
(ii)
there have been no transactions entered into by the Company or any
of
its subsidiaries, other than those in the ordinary course of
business,
which are material to the Company and its subsidiaries, taken as
a
whole, and (iii) except for regular dividends on the common stock
of
the Company in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any
kind
declared, paid or made by the Company on any class of its
capital
stock.
(k) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened, to which the Company
or
any of its subsidiaries is a party or to which any of the
properties of
the Company or any of its subsidiaries is subject other than
proceedings accurately described in all material respects in
the
Registration Statement or the Prospectus and proceedings that would
not
have a material adverse effect on the Company and its
subsidiaries,
taken as a whole, or any statutes or regulations that are required
to
be described in the Registration Statement or the Prospectus or to
be
filed as exhibits to the Registration Statement that are not
described
or filed as required.
(l) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any
amendment
thereto, or filed pursuant to Rule 424 under the Securities
Act,
complied when so filed in all material respects with the Securities
Act
and the applicable rules and regulations of the Commission
thereunder.
(m) The
Company is not, and after giving effect to the
offering and sale of the Securities and the application of the
proceeds
thereof as described in the Prospectus will not be, required to
register as an "investment company" as such term is defined in
the
Investment Company Act of 1940, as amended.
(n) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws
and
regulations relating to the protection of human health and safety,
the
environment or hazardous or toxic substances or wastes, pollutants
or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all
permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)
are
in compliance with all terms and conditions of any such permit,
license
or approval, except where such noncompliance with Environmental
Laws,
failure to receive required permits, licenses or other approvals
or
failure to comply with the terms
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and conditions of such permits, licenses or approvals would not,
singly
or in the aggregate, have a material adverse effect on the Company
and
its subsidiaries, taken as a whole.
(o) To the Company's knowledge, KPMG LLP ("KPMG"), independent
auditors who have certified certain of the financial statements of
the
Company and its subsidiaries contained in the Prospectus and
the
Registration Statement, are and were during the periods covered
by
their reports included in the Prospectus and the Registration
Statement
independent public accountants within the meaning of the
Securities
Act, Regulation S-X of the Commission and Rule 101 of the Code
of
Professional Ethics of the American Institute of Certified
Public
Accountants.
KPMG (i) based solely on representations made by KPMG, is,
to the Company's knowledge, a registered public accounting firm
(as
defined in Section 2(a)(12) of the Sarbanes-Oxley Act of 2002)
("SOX")
and (ii) is, with respect to the Company, in compliance with
subsections (g) through (l) of Section 10A of the Exchange Act.
(p) The Company and each of its subsidiaries maintain
disclosure controls and procedures (as defined in Rule 13a-15(e) of
the
Commission) that are designed to ensure that information required
to be
disclosed by the Company in the reports it files or submits under
the
Exchange Act is recorded, processed, summarized and reported within
the
time periods specified in the Commission's rules and forms.
(q) The Company and each of its subsidiaries maintain internal
control over financial reporting (as defined in Rule 13a-15(f) of
the
Commission) sufficient to provide reasonable assurance regarding
the
(A) reliability of financial reporting and the preparation of
financial
statements for external purposes in accordance with GAAP, (B)
maintenance of records that in reasonable detail accurately and
fairly
reflect transactions and dispositions of the assets of the Company
and
its subsidiaries, (C) recording of transactions as necessary to
permit
preparation of financial statements in accordance with GAAP and
that
receipts and expenditures of the Company and its subsidiaries are
being
made only in accordance with authorizations of management and
directors
of the Company or the applicable subsidiary, and (D) prevention
or
timely detection
of unauthorized acquisition, use or disposition of the
Company's or its subsidiaries' assets that could have a material
effect
on the financial statements.
(r) The Company's management evaluates, with the participation
of the Company's principal executive and principal financial
officers,
or persons performing similar functions, (A) the effectiveness of
the
Company's and its subsidiaries' disclosure controls and procedures
as
of the end of each fiscal quarter, (B) the Company's and its
subsidiaries'
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internal control over financial reporting as of the end of each
fiscal
year, and (C) any change in the Company's or its subsidiaries'
internal
control over financial reporting that occurred during each of
the
Company's fiscal quarters that has materially affected, or is
reasonably likely to materially affect, the Company's or any
subsidiaries' internal control over financial reporting.
(s) Except as disclosed in the Prospectus, the Company has
not, since July 30, 2002, extended or maintained credit, arranged
for
the extension of credit, or renewed an extension of credit, in the
form
of a personal loan to or for any director or executive officer of
the
Company; and any such credit that was outstanding on July 30, 2002
or
that is currently outstanding was in place on or before July 30,
2002,
and there has been no material modification of any term of such
credit
or any renewal or such credit on or after July 30, 2002.
(t) The Company is in compliance with all U.S. laws, and,
specifically, has not directly or indirectly used any proceeds of
any
debt or equity offerings, and has not permitted any person or
entity to
which the Company made such proceeds available to use them, to
finance
the activities of any
person or entity that is subject to sanctions
under, or otherwise in a manner that places the Company, any
affiliate
thereof or any director, officer, employee or agent of any of
the
foregoing in violation of any law, regulation, order or license
relating to any program administered by the Office of Foreign
Assets
Control ("OFAC") of the United States Department of the
Treasury,
including, without limitation, any program the regulations of which
are
codified in Chapter 5 of Subtitle B of Title 31 of the Code of
Federal
Regulations.
2. Agreements to Sell and Purchase. The Company hereby agrees to
sell
to the several Underwriters, and each
Underwriter, upon the basis of the
representations and warranties herein
contained, but subject to the conditions
hereinafter stated, agrees, severally and
not jointly, to purchase from the
Company the principal amount of Securities
set forth in Schedule I hereto
opposite its name at 100% of their
principal amount plus accrued interest, if
any, from April 23, 2004 to the date of
payment and delivery.
The Company hereby agrees that, without the prior written consent
of
Morgan Stanley & Co. International
Limited and Bear, Stearns International
Limited on behalf of the Underwriters, it
will not, during the period ending 90
days after the date of the Prospectus,
offer, sell, contract to sell, pledge or
otherwise dispose of, directly or
indirectly, or file with the SEC a
registration statement under the Securities
Act relating to (except for any
registration statement or amendment thereto
relating to the Company's
outstanding 1.
