EXHIBIT 10.2
$175,000,000
AGCO CORPORATION
1.75% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2033
PURCHASE AGREEMENT
December 17, 2003
Xxxxxx Xxxxxxx & Co. Incorporated
Rabo Securities USA, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
AGCO Corporation, a Delaware corporation (the "COMPANY"), proposes to
issue and sell to the several purchasers named in Schedule I hereto (the
"INITIAL PURCHASERS") $175,000,000 principal amount of its 1.75% Convertible
Senior Subordinated Notes due 2033 (the "FIRM SECURITIES") to be issued pursuant
to the provisions of an Indenture (the "INDENTURE") to be entered into between
the Company and SunTrust Bank, as Trustee (the "TRUSTEE"). The Company also
proposes to issue and sell to the Initial Purchasers not more than an additional
$26,250,000 principal amount of its 1.75% Convertible Senior Subordinated Notes
due 2033 (the "ADDITIONAL SECURITIES") if and to the extent that you, as Manager
of the offering, shall have determined to exercise, on behalf of the Initial
Purchasers, the right to purchase such 1.75% Convertible Senior Subordinated
Notes due 2033 granted to the Initial Purchasers 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 shares of common
stock, $0.01 par value, of the Company (the "UNDERLYING SECURITIES").
The Securities and the Underlying Securities will be offered without
being registered under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), to qualified institutional buyers in compliance with the exemption from
registration provided by Rule 144A under the Securities Act.
The Initial Purchasers and their direct and indirect transferees will
be entitled to the benefits of a Registration Rights Agreement (the
"REGISTRATION RIGHTS AGREEMENT") to be entered into between the Company and the
Initial Purchasers.
In connection with the sale of the Securities, the Company has prepared
a preliminary offering memorandum (the "PRELIMINARY MEMORANDUM") and will
prepare a final offering memorandum (the "FINAL MEMORANDUM" and, with the
Preliminary Memorandum, each a "MEMORANDUM") including or incorporating by
reference a description of the terms of the Securities and the Underlying
Securities, the terms of the offering and a description of the Company. As used
herein, the term "Memorandum" shall include in each case the documents
incorporated by reference therein. The terms "SUPPLEMENT", "AMENDMENT" and
"AMEND" as used herein with respect to a Memorandum shall include all documents
deemed to be incorporated by reference in the Preliminary Memorandum or Final
Memorandum that are filed subsequent to the date of
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such Memorandum with the Securities and Exchange Commission (the "COMMISSION")
pursuant to the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT").
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you that:
(a) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in either
Memorandum 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 and (ii) the Preliminary Memorandum does
not contain and the Final Memorandum, on the date of this Agreement and
on the Closing Date (as defined in Section 4), 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 either Memorandum based upon
information relating to any Initial Purchaser furnished to the Company
in writing by such Initial Purchaser through you expressly for use
therein.
(b) 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 each Memorandum 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.
(c) 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 each Memorandum 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 and are owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims.
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(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The authorized capital stock of the Company conforms
as to legal matters to the description thereof contained in the Final
Memorandum.
(f) The shares of common stock outstanding prior to the
issuance of the Securities 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 of the Company except as described in the
Final Memorandum.
(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 Initial Purchasers in
accordance with the terms of this Agreement, will be valid and binding
obligations of the Company, enforceable in accordance with their terms,
subject to the effects of applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and general principles of
equity, and will be entitled to the benefits of the Indenture and the
Registration Rights Agreement pursuant to which such Securities are to
be issued.
(h) The Underlying Securities issuable upon conversion of
the Securities have been duly authorized and reserved and, when issued
and delivered 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) Each of the Indenture and the Registration Rights
Agreement, as of the Closing Date, will have been duly authorized,
executed and delivered by, and will be 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 and except as rights
to indemnification and contribution under the Registration Rights
Agreement may be limited under applicable law.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement ,
the Indenture, the Registration Rights Agreement 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
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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 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 , the Indenture, the Registration
Rights Agreement 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 and by Federal and state securities laws with
respect to the Company's obligations under the Registration Rights
Agreement.
(k) The consolidated financial statements of the Company
and its subsidiaries, together with related notes and schedules,
included or incorporated by reference in each Memorandum 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
pro forma financial information and related notes thereto included in
each Memorandum 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 each Memorandum, (Y) as
reflected in the Company's unaudited balance sheet at September 30,
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 September 30, 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 each Memorandum,
neither the Company nor any subsidiary has engaged in or effected any
transaction or
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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 each Memorandum included under the
captions "Summary--AGCO Summary Financial Data," "Capitalization,"
"Selected Consolidated Financial Data," "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and
"Business" (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.
(l) Since the respective dates as of which information is
given in each Memorandum 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 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 each
Memorandum and proceedings that 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 , the Indenture, the Registration Rights Agreement or the
Securities or to consummate the transactions contemplated by the Final
Memorandum.
(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
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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) 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 each
Memorandum, are and were during the periods covered by their reports
included in each Memorandum 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 Xxxxxxxx-Xxxxx 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
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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.
(s) Except as disclosed in each Memorandum, 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 not, and after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Memorandum will not be, required to
register as an "investment company" as such term are defined in the
Investment Company Act of 1940, as amended.
(u) Neither the Company nor any affiliate (as defined in
Rule 501(b) of Regulation D under the Securities Act, an "AFFILIATE")
of the Company has directly, or through any agent, (i) sold, offered
for sale, solicited offers to buy or otherwise negotiated in respect
of, any security (as defined in the Securities Act) which is or will be
integrated with the sale of the Securities in a manner that would
require the registration under the Securities Act of the Securities or
(ii) offered, solicited offers to buy or sold the Securities by any
form of general solicitation or general advertising (as those terms are
used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(v) It is not necessary in connection with the offer,
sale and delivery of the Securities to the Initial Purchasers in the
manner contemplated by this Agreement to register the Securities under
the Securities Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended.
(w) The Securities satisfy the requirements set forth in
Rule 144A(d)(3) under the Securities Act.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Initial Purchasers, and each Initial Purchaser, 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
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principal amount of the Firm Securities set forth on Schedule I hereto opposite
its name at a purchase price of 100% of the principal amount thereof (the
"PURCHASE PRICE") plus accrued interest, if any, to the Closing Date.
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 Initial Purchasers the Additional Securities, and the Initial Purchasers
shall have the right to purchase, severally and not jointly, up to $26,250,000
of their respective principal amount of Additional Securities at the Purchase
Price plus accrued interest, if any, to the date of payment and delivery. You
may exercise this right on behalf of the Initial Purchasers in whole or from
time to time in part by giving written notice of each election to exercise this
option not later than 30 days after the date of this Agreement. Any exercise
notice shall specify the principal amount of Additional Securities to be
purchased by the Initial Purchasers and the date on which such Additional
Securities 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 Securities nor later than ten business days after the date of
such notice. Additional Securities may be purchased as provided in Section 4
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 Initial Purchaser 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 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 opposite the name of
such Initial Purchaser bears to the total principal amount of Firm Securities.
The Company hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Initial Purchasers, it will
not, during the period ending 90 days after the date of the Final Memorandum,
(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 securities convertible into or
exercisable or exchangeable for common stock or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the common stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of common stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the sale of the Securities under this Agreement,
(B) the contemplated issuance by the Company of approximately $250 million of
common stock in an underwritten public offering as discussed in "Use of
Proceeds" in the Final Memorandum, (C) the issuance by the Company of any shares
of common stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof of which the Initial Purchaser has been
advised in writing, or (D) the
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issuance by the Company of additional options under the Company's existing stock
option plans, provided that such options are not exercisable during the period
ending 90 days after the date of the Final Memorandum.
3. Terms of Offering. You have advised the Company that the Initial
Purchasers will make an offering of the Securities purchased by the Initial
Purchasers hereunder on the terms to be set forth in the Final Memorandum, as
soon as practicable after this Agreement is entered into as in your judgment is
advisable.
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
against delivery of such Firm Securities for the respective accounts of the
several Initial Purchasers at 10:00 a.m., New York City time, on December 23,
2003, or at such other time on the same or such other date, not later than
December 23, 2003, as shall 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 against delivery
of such Additional Securities for the respective accounts of the several Initial
Purchasers at 10:00 a.m., New York City time, 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 January 15, 2004, as shall be
designated in writing by you.
The Securities shall be in definitive form or global form, as specified
by you, and registered in such names and in such denominations as you shall
request in writing not later than one full business day prior to the Closing
Date or the applicable Option Closing Date, as the case may be. The Securities
shall be delivered to you on the Closing Date or an Option Closing Date, as the
case may be, for the respective accounts of the several Initial Purchasers, with
any transfer taxes payable in connection with the transfer of the Securities to
the Initial Purchasers duly paid, against payment of the Purchase Price therefor
plus accrued interest, if any, to the date of payment and delivery.
5. Conditions to the Initial Purchasers' Obligations. The several
obligations of the Initial Purchasers to purchase and pay for the Firm
Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization,"
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as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act; and
(ii) there shall not have occurred any change, or
any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Preliminary
Memorandum provided to prospective purchasers of the
Securities that, in your judgment, is material and adverse and
that makes it, in your judgment, impracticable to market the
Securities on the terms and in the manner contemplated in the
Final Memorandum.
(b) The Initial Purchasers shall have received on the
Closing Date a certificate, dated the Closing Date and signed by an
executive officer of the Company, to the effect set forth in Section
5(a)(i) and to the effect that the representations and warranties of
the Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date. The
officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the
Closing Date the opinions of counsel for the Company, dated the Closing
Date, to the effect set forth in Exhibit A. Such opinions shall be
rendered to the Initial Purchasers at the request of the Company and
shall so state therein.
(d) The Initial Purchasers shall have received on the
Closing Date an opinion of Xxxxxx & Bird LLP, counsel for the Initial
Purchasers, dated the Closing Date, to the effect set forth in Exhibit
B.
(e) The Initial Purchasers shall have received on each of
the date hereof and the Closing Date a letter, dated the date hereof or
the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchasers, from KPMG LLP, independent
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into each
Memorandum; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(f) The "lock-up" agreements, each substantially in the
form of Exhibit C hereto, between you and executive officers and
directors of the Company relating to sales and certain other
dispositions of shares of common stock or
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certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date.
The several obligations of the Initial Purchasers to purchase
Additional Securities hereunder are subject to the delivery to you on the
applicable Option Closing Date of such documents as you may reasonably request
with respect to the good standing of the Company, the due authorization
,execution and authentication of the Additional Securities to be sold on such
Option Closing Date and other matters related to the execution and
authentication of such Additional Securities.
6. Covenants of the Company. In further consideration of the agreements
of the Initial Purchasers contained in this Agreement, the Company covenants
with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge,
prior to 3:00 p.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned
in Section 6(c), as many copies of the Final Memorandum, any documents
incorporated by reference therein and any supplements and amendments
thereto as you may reasonably request.
(b) Before amending or supplementing either Memorandum,
to furnish to you a copy of each such proposed amendment or supplement
and not to use any such proposed amendment or supplement to which you
reasonably object.
(c) If, during such period after the date hereof and
prior to the date on which all of the Securities shall have been sold
by the Initial Purchasers, any event shall occur or condition exist as
a result of which it is necessary to amend or supplement the Final
Memorandum in order to make the statements therein, in the light of the
circumstances when the Final Memorandum is delivered to a purchaser,
not misleading, or if, in the opinion of counsel for the Initial
Purchasers, it is necessary to amend or supplement the Final Memorandum
to ensure that the Securities are exempt from the registration
requirements of the Securities Act, forthwith to prepare and furnish,
at its own expense, to the Initial Purchasers, either amendments or
supplements to the Final Memorandum so that the statements in the Final
Memorandum as so amended or supplemented will not, in the light of the
circumstances when the Final Memorandum is delivered to a purchaser, be
misleading or so that the Securities will be exempt from the
registration requirements of the Securities Act.
(d) To endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to maintain such qualifications in effect
for as long as may be required for distribution of the Securities by
the Initial Purchasers.
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(e) To use the net proceeds received from the sale of the
Securities in the manner specified in each Memorandum under "Use of
Proceeds." In connection therewith, the Company shall comply with all
U.S. laws and, specifically, shall not directly or indirectly use any
of the net proceeds from the sale of the Securities, and shall prohibit
any person or entity to which the Company makes such net proceeds
available from using 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 (including the
Initial Purchasers, any affiliate thereof and each director, officer,
employee and agent thereof) 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.
(f) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the issuance and sale of the Securities
and all other fees or expenses in connection with the preparation of
each Memorandum and all amendments and supplements thereto, including
all printing costs associated therewith, and the delivering of copies
thereof to the Initial Purchasers, in the quantities herein above
specified, (ii) all costs and expenses related to the transfer and
delivery of the Securities to the Initial Purchasers, including any
transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or legal investment memorandum in connection
with the offer and sale of the Securities under state securities laws
and all expenses in connection with the qualification of the Securities
for offer and sale under state securities laws as provided in Section
6(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Initial Purchasers in connection with
such qualification and in connection with the Blue Sky or legal
investment memorandum, (iv) any fees charged by rating agencies for the
rating of the Securities, (v) all document production charges in
connection with the printing of this Agreement, (vi) the fees and
expenses, if any, incurred in connection with the admission of the
Securities for trading in PORTAL or any appropriate market system,
(vii) the costs and charges of the Trustee and any transfer agent,
registrar or depositary, (viii) the cost of the preparation, issuance
and delivery of the Securities, (ix) the costs and expenses of the
Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the
Securities, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in
12
connection with the road show presentations with the prior approval of
the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (x) all other
costs and expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise made in this
Section. It is understood, however, that except as specifically
provided in this Section, Section 8, and the last paragraph of Section
10, the Initial Purchasers will pay all of their costs and expenses,
including fees and disbursements of their counsel, transfer taxes
payable on resale of any of the Securities by them and any advertising
expenses connected with any offers they may make.
(g) Neither the Company nor any Affiliate will sell,
offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act) which could
be integrated with the sale of the Securities in a manner which would
require the registration under the Securities Act of the Securities.
(h) Not to solicit any offer to buy or offer or sell the
Securities or the Underlying Securities by means of any form of general
solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities
Act.
(i) While any of the Securities or the Underlying
Securities remain "restricted securities" within the meaning of the
Securities Act, to make available, upon request, to any seller of such
Securities the information specified in Rule 144A(d)(4) under the
Securities Act, unless the Company is then subject to Section 13 or
15(d) of the Exchange Act.
(j) If requested by you, to use its best efforts to
permit the Securities to be designated PORTAL securities in accordance
with the rules and regulations adopted by the National Association of
Securities Dealers, Inc. relating to trading in the PORTAL Market.
(k) During the period of two years after the Closing Date
or any Option Closing Date, if later, the Company will not, and will
not permit any of its affiliates (as defined in Rule 144 under the
Securities Act) to resell any of the Securities or the Underlying
Securities which constitute "restricted securities" under Rule 144 that
have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M
under the Exchange Act in connection with the distribution of the
Securities contemplated hereby.
13
7. Offering of Securities; Restrictions on Transfer. Each Initial
Purchaser, severally and not jointly, represents and warrants that such Initial
Purchaser is a qualified institutional buyer as defined in Rule 144A under the
Securities Act (a "QIB") and an "accredited investor" within the meaning of Rule
501(a) of the Securities Act. Each Initial Purchaser, severally and not jointly,
agrees with the Company that (a) it will solicit offers for, offer and sell the
Securities only to persons inside the United States, (b) it will not solicit
offers for, or offer or sell, such Securities by any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Securities Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act and (c) it will solicit offers
for such Securities only from, and will offer such Securities only to, persons
that it reasonably believes to be, QIBs that, prior to their purchase of the
Securities, deliver to such Initial Purchaser a letter containing the
representations and agreements confirming their status as QIBs and other
relevant matters.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Initial Purchaser, each person, if any, who controls any
Initial Purchaser within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, and each affiliate of any Initial Purchaser
within the meaning of Rule 405 under the Securities Act from and against any and
all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in either Memorandum (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Initial Purchaser furnished to the Company in
writing by such Initial Purchaser through you expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect to any
preliminary offering memorandum shall not inure to the benefit of any Initial
Purchaser from whom the person asserting any such losses, claims, damages or
liabilities purchased Securities, or any person controlling such Initial
Purchaser, if a copy of the Final Memorandum (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Initial Purchaser to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Securities to such person, and if the Final
Memorandum (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities, unless such failure is the
result of noncompliance by the Company with Section 6(a) hereof.
14
(b) Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers and each
person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Initial Purchaser, but only
with reference to information relating to such Initial Purchaser furnished to
the Company in writing by such Initial Purchaser expressly for use in either
Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated, in the case of
parties indemnified pursuant to Section 8(a), and by the Company, in the case of
parties indemnified pursuant to Section 8(b). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified
15
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a)
or 8(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Initial Purchasers on
the other hand from the offering of the Securities or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Company on the one
hand and of the Initial Purchasers on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Initial
Purchasers on the other hand in connection with the offering of the Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Securities (before deducting expenses) received by the
Company and the total discounts and commissions received by the Initial
Purchasers, as set forth in the Final Memorandum, bear to the aggregate offering
price of the Securities. The relative fault of the Company on the one hand and
of the Initial Purchasers on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Initial Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Initial Purchasers'
respective obligations to contribute pursuant to this Section 8 are several in
proportion to the respective principal amount of Securities they have purchased
hereunder, and not joint.
(e) The Company and the Initial Purchasers agree that it would not
be just or equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Initial Purchasers were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in Section 8(d) shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities resold
16
by it in the initial placement of such Securities were offered to investors
exceeds the amount of any damages that such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Initial Purchaser, any person
controlling any Initial Purchaser or any affiliate of any Initial Purchaser or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Securities.
9. Termination. The Initial Purchasers may terminate this Agreement by
notice given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National Market,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in
the United States shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of hostilities, or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and which, singly or together with any other event
specified in this clause (v), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Securities on the
terms and in the manner contemplated in the Final Memorandum.
10. Effectiveness; Defaulting Initial Purchasers. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If on the Closing Date, or an Option Closing Date, as the case may be,
any one or more of the Initial Purchasers shall fail or refuse to purchase
Securities that it or they have agreed to purchase hereunder on such date, and
the aggregate principal amount of Securities which such defaulting Initial
Purchaser or Initial Purchasers agreed but failed or refused to purchase is not
more than one-tenth of the aggregate principal amount of Securities to be
purchased on such date, the other Initial Purchasers shall be obligated
severally in the proportions that the principal amount of Firm Securities set
forth
17
opposite their respective names in Schedule I bears to the aggregate principal
amount of Firm Securities set forth opposite the names of all such
non-defaulting Initial Purchasers, or in such other proportions as you may
specify, to purchase the Securities which such defaulting Initial Purchaser or
Initial Purchasers agreed but failed or refused to purchase on such date;
provided that in no event shall the principal amount of Securities that any
Initial Purchaser has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such
principal amount of Securities without the written consent of such Initial
Purchaser. If, on the Closing Date any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase Firm Securities which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Firm Securities to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such Firm
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Initial Purchaser
or of the Company. In any such case either you or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Final Memorandum or in any
other documents or arrangements may be effected. If, on an Option Closing Date,
any Initial Purchaser or Initial Purchasers shall fail or refuse to purchase
Additional Securities and the aggregate principal amount of Additional
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Additional Securities to be purchased on such
Option Closing Date, the non-defaulting Initial Purchasers shall have the option
to (a) terminate their obligation hereunder to purchase the Additional
Securities to be sold on such Option Closing Date or (b) purchase not less than
the principal amount of Additional Securities that such non-defaulting Initial
Purchasers would have been obligated to purchase in the absence of such default.
Any action taken under this paragraph shall not relieve any defaulting Initial
Purchaser from liability in respect of any default of such Initial Purchaser
under this Agreement.
If this Agreement shall be terminated by the Initial Purchasers, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Initial Purchasers, or such Initial
Purchasers as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Initial Purchasers in connection
with this Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
18
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
AGCO Corporation
By: /s/ Xxxxxx Xxxx
------------------------------------
Name: Xxxxxx Xxxx
Title: Chief Financial Officer
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Rabo Securities USA, Inc.
Acting severally on behalf of themselves
and the several Initial Purchasers named
in Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Director
19
SCHEDULE I
PRINCIPAL AMOUNT OF FIRM
INITIAL PURCHASER SECURITIES TO BE PURCHASED
Xxxxxx Xxxxxxx & Co. Incorporated......................... $ 132,475,000
Rabo Securities USA, Inc.................................. 42,525,000
Total.......................................... $ 175,000,000
=============
B-1
