1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
Table of Contents
Three Months Ended March 31,
2006
2005
$
1,169.8
$
1,256.9
963.5
1,037.4
206.3
219.5
126.6
130.6
31.6
30.7
0.1
1.0
4.1
4.2
43.9
53.0
13.6
17.0
6.5
6.8
23.8
29.2
12.6
12.3
11.2
16.9
6.1
4.6
$
17.3
$
21.5
$
0.19
$
0.24
$
0.19
$
0.23
90.5
90.3
90.7
99.7
Table of Contents
Three Months Ended March 31,
2006
2005
$
17.3
$
21.5
23.2
22.5
1.1
1.5
4.1
4.2
1.3
—
(3.0
)
(4.6
)
2.2
0.2
(29.5
)
(81.2
)
(185.4
)
(258.3
)
6.4
(16.0
)
28.8
72.5
(42.0
)
(51.7
)
1.5
(16.3
)
(191.3
)
(327.2
)
(174.0
)
(305.7
)
(23.4
)
(14.2
)
1.1
6.6
—
(22.7
)
(22.3
)
(30.3
)
21.0
41.9
0.4
0.4
21.4
42.3
6.6
(3.9
)
(168.3
)
(297.6
)
220.6
325.6
$
52.3
$
28.0
Table of Contents
Table of Contents
(unaudited, in millions, except per share data)
$
21.5
—
(2.1
)
$
19.4
$
0.24
$
0.22
$
0.23
$
0.21
1,249,058
—
(25,900
)
(2,360
)
1,220,798
1,919,837
$
—
11.00-15.12
22.31-25.50
$
—
14.19
24.15
18.09
Table of Contents
(unaudited, in millions, except per share data)
Options Outstanding
Options Exercisable
Weighted Average
Weighted
Exercisable
Weighted
Remaining
Average
as of
Average
Number of
Contractual Life
Exercise
March 31,
Exercise
Range of Exercise Prices
Shares
(Years)
Price
2006
Price
323,050
4.5
$
11.26
323,050
$
11.26
711,900
4.5
$
18.61
701,400
$
18.59
185,848
1.1
$
27.95
183,848
$
28.01
1,220,798
1,208,298
Table of Contents
(unaudited, in millions, except per share data)
Table of Contents
(unaudited, in millions, except per share data)
Trademarks
and
Customer
Patents and
Gross carrying amounts:
Tradenames
Relationships
Technology
Total
$
32.7
$
81.5
$
45.1
$
159.3
0.1
4.2
1.0
5.3
$
32.8
$
85.7
$
46.1
$
164.6
Trademarks
and
Customer
Patents and
Accumulated amortization:
Tradenames
Relationships
Technology
Total
$
4.8
$
17.7
$
13.5
$
36.0
0.3
2.1
1.7
4.1
—
0.9
0.3
1.2
$
5.1
$
20.7
$
15.5
$
41.3
Trademarks
and
Unamortized intangible assets:
Tradenames
$
88.2
0.7
$
88.9
North
South
Europe/Africa/
America
America
Middle East
Consolidated
$
174.0
$
137.0
$
385.7
$
696.7
—
10.9
8.7
19.6
$
174.0
$
147.9
$
394.4
$
716.3
Table of Contents
(unaudited, in millions, except per share data)
March 31,
December 31,
2006
2005
$
444.2
$
401.5
201.3
201.3
242.4
237.0
8.2
8.3
896.1
848.1
(6.3
)
(6.3
)
$
889.8
$
841.8
March 31,
December 31,
2006
2005
$
627.6
$
477.3
330.7
310.9
72.7
63.3
232.6
211.0
$
1,263.6
$
1,062.5
Three Months Ended
March 31,
2006
2005
$
122.8
$
135.0
27.4
28.8
(26.7
)
(27.9
)
1.2
(3.6
)
$
124.7
$
132.3
Table of Contents
(unaudited, in millions, except per share data)
Table of Contents
(unaudited, in millions, except per share data)
Three Months
Three Months
Ended March 31,
Ended March 31,
2006
2005
$
17.3
$
21.5
90.5
90.3
$
0.19
$
0.24
$
17.3
$
21.5
—
1.2
$
17.3
$
22.7
90.5
90.3
0.2
0.4
—
9.0
90.7
99.7
$
0.19
$
0.23
Three Months Ended
March 31,
2006
2005
$
17.3
$
21.5
48.9
(23.0
)
1.8
2.2
$
68.0
$
0.7
Table of Contents
(unaudited, in millions, except per share data)
Three Months Ended
March 31,
Pension benefits
2006
2005
$
1.4
$
1.5
9.6
10.3
(9.1
)
(8.7
)
4.7
4.6
$
6.6
$
7.7
Postretirement benefits
2006
2005
$
0.1
$
0.2
0.5
0.6
(0.1
)
0.1
0.2
0.4
$
0.7
$
1.3
Table of Contents
(unaudited, in millions, except per share data)
Table of Contents
(unaudited, in millions, except per share data)
Three Months Ended
North
South
Europe/Africa
Asia/
March 31,
America
America
/Middle East
Pacific
Consolidated
$
320.8
$
141.2
$
675.2
$
32.6
$
1,169.8
(5.4
)
11.2
51.3
3.7
60.8
6.4
4.0
12.3
0.5
23.2
3.5
1.5
18.3
0.1
23.4
$
392.8
$
152.3
$
666.3
$
45.5
$
1,256.9
2.6
12.5
45.4
7.5
68.0
6.3
3.2
11.9
1.1
22.5
3.9
0.8
9.5
—
14.2
$
810.0
$
426.9
$
1,225.3
$
75.6
$
2,537.8
760.3
346.1
1,091.4
79.8
2,277.6
Table of Contents
(unaudited, in millions, except per share data)
Three Months Ended
March 31,
2006
2005
$
60.8
$
68.0
(11.4
)
(9.7
)
(1.3
)
(0.1
)
(0.1
)
(1.0
)
(4.1
)
(4.2
)
$
43.9
$
53.0
As of
As of
March 31,
December 31,
2006
2005
$
2,537.8
$
2,277.6
52.3
220.6
1.6
2.0
174.7
164.7
116.6
123.8
166.6
164.3
212.2
211.5
716.3
696.7
$
3,978.1
$
3,861.2
Table of Contents
Table of Contents
(Continued)
Three Months Ended
Change Due to Currency
March 31,
Change
Translation
2006
2005
$
%
$
%
$
320.8
$
392.8
$
(72.0
)
(18.3
)%
$
2.5
0.6
%
141.2
152.3
(11.1
)
(7.3
)%
19.5
12.8
%
675.2
666.3
8.9
1.3
%
(60.1
)
(9.0
)%
32.6
45.5
(12.9
)
(28.3
)%
(1.7
)
(3.7
)%
$
1,169.8
$
1,256.9
$
(87.1
)
(6.9
)%
$
(39.8
)
(3.1
)%
Table of Contents
Three Months Ended
March 31,
2006
2005
% of
% of
$
Net Sales
(1)
$
Net Sales
$
206.3
17.6
%
$
219.5
17.5
%
126.6
10.8
%
130.6
10.4
%
31.6
2.7
%
30.7
2.5
%
0.1
—
1.0
0.1
%
4.1
0.4
%
4.2
0.3
%
$
43.9
3.8
%
$
53.0
4.2
%
(1)
Rounding may impact summation of percentages.
Table of Contents
(Continued)
Table of Contents
(Continued)
Table of Contents
(Continued)
Table of Contents
(Continued)
Table of Contents
(Continued)
Payments Due By Period
2006 to
2007 to
2009 to
2011 and
Total
2007
2009
2011
Beyond
$
896.1
$
6.3
$
39.3
$
404.4
$
446.1
235.7
52.6
99.5
47.8
35.8
1.6
1.0
0.4
0.2
—
153.4
30.4
38.0
19.9
65.1
150.7
62.1
67.8
12.5
8.3
326.4
80.3
42.7
41.6
161.8
$
1,763.9
$
232.7
$
287.7
$
526.4
$
717.1
Amount of Commitment Expiration Per Period
2006 to
2007 to
2009 to
2011 and
Total
2007
2009
2011
Beyond
$
7.7
$
7.7
$
—
$
—
$
—
77.4
62.5
11.0
3.9
—
$
85.1
$
70.2
$
11.0
$
3.9
$
—
(1)
Estimated interest payments are calculated assuming current interest rates over
minimum maturity periods specified in debt agreements. Debt may be repaid sooner or later
than such minimum maturity periods.
(2)
Unconditional purchase obligations exclude routine purchase orders entered into in
the normal course of business. As a result of the rationalization of our European combine
manufacturing operations during 2004, we entered into an agreement with a third-party
manufacturer to produce certain combine model ranges over a five-year period. The agreement
provides that we will purchase a minimum quantity of 200 combines per year, at a cost of
approximately
€
16.2 million per year (or approximately $19.6 million), through May 2009.
(3)
Other short-term and long-term obligations include estimates of future minimum
contribution requirements under our U.S. and non-U.S. defined benefit pension and
postretirement plans. These estimates are based on current legislation in the countries we
operate within and are subject to change.
Table of Contents
(Continued)
Table of Contents
(Continued)
Table of Contents
(Continued)
•
general economic and capital market conditions;
•
the worldwide demand for agricultural products;
•
grain stock levels and the levels of new and used field inventories;
•
cost of steel and other raw materials;
•
government policies and subsidies;
•
weather conditions;
•
interest and foreign currency exchange rates;
•
pricing and product actions taken by competitors;
•
commodity prices, acreage planted and crop yields;
•
farm income, land values, debt levels and access to credit;
•
pervasive livestock diseases;
•
production disruptions;
•
supply and capacity constraints;
•
our cost reduction and control initiatives;
•
our research and development efforts;
•
dealer and distributor actions;
•
technological difficulties; and
•
political and economic uncertainty in various areas of the world.
Table of Contents
(Continued)
Table of Contents
Net
Notional
Average
Fair
Amount
Contract
Value
(Sell)/Buy
Rate*
Gain/(Loss)
$
(19.6
)
1.35
$
0.6
59.9
2.19
0.8
30.0
0.57
(0.1
)
(52.9
)
1.16
0.4
5.1
0.83
—
18.9
117.73
—
(8.2
)
10.89
—
(2.5
)
6.49
—
(3.2
)
3.20
—
(1.5
)
7.78
—
$
1.7
*
per United States dollar
Table of Contents
Table of Contents
30
The filings referenced for
Exhibit
incorporation by reference are
Number
Description of Exhibit
AGCO Corporation
Amendment to Credit Agreement
Filed herewith
Form of non-qualified stock option award under 2006 LTIP
Filed herewith
Form of incentive stock option award under 2006 LTIP
Filed herewith
Form of stock appreciation right award under 2006 LTIP
Filed herewith
Form of restricted stock award under 2006 LTIP
Filed herewith
Form of performance share award under 2006 LTIP
Filed herewith
Certification of Martin Richenhagen
Filed herewith
Certification of Andrew H. Beck
Filed herewith
Certification of Martin Richenhagen and Andrew H. Beck
Furnished herewith
Table of Contents
31
AGCO CORPORATION
Registrant
/s/ Andrew H. Beck
Senior Vice President and Chief Financial Officer
(Principal Financial Officer)
EXHIBIT 10.1
FIFTH AMENDMENT TO CREDIT AGREEMENT
This FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as of March 22, 2006, by and among AGCO CORPORATION, a Delaware corporation ("AGCO"), AGCO CANADA, LTD., a Saskatchewan corporation ("Canadian Subsidiary"), AGCO LIMITED, an English corporation ("English Subsidiary One"), AGCO INTERNATIONAL LIMITED, an English corporation ("English Subsidiary Two"), AGCO HOLDING B.V., a Netherlands corporation ("Netherlands Subsidiary"), AGCO DEUTSCHLAND HOLDING LIMITED & CO. KG, a German limited partnership ("German Subsidiary"), and VALTRA HOLDING OY, a Finnish limited liability company ("Finnish Subsidiary"; AGCO, Canadian Subsidiary, English Subsidiary One, English Subsidiary Two, Netherlands Subsidiary, German Subsidiary and Finnish Subsidiary are referred to herein collectively as the "Borrowers" and individually as a "Borrower"); the lenders (the "Lenders") signatory hereto; COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", CANADIAN BRANCH, as Canadian administrative agent for the Canadian Lenders (together with any successor, in such capacity, the "Canadian Administrative Agent"); and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as administrative agent for the Lenders (together with any successor, in such capacity, the "Administrative Agent").
WITNESSETH:
WHEREAS, the Borrowers, the Administrative Agent, the Canadian Administrative Agent, the Lenders, the Issuing Banks (as defined in the Credit Agreement), SunTrust Bank and Morgan Stanley Senior Funding, Inc., as Co-Syndication Agents, and CoBank, ACB and The Bank of Tokyo-Mitsubishi, Ltd., NY Branch, as Co-Documentation Agents, are parties to that certain Credit Agreement dated as of December 22, 2003 (as amended by that certain First Amendment to Credit Agreement and Consent dated as of April 12, 2004, as further amended by that certain Second Amendment to Credit Agreement dated as of August 17, 2004, as further amended by that certain Third Amendment to Credit Agreement dated as of March 21, 2005, as further amended by that certain Fourth Amendment to Credit Agreement and Consent dated as of June 2, 2005 and as further amended, restated, supplemented or modified from time to time, the "Credit Agreement"); and
WHEREAS, the Borrowers have requested that certain terms and conditions of the Credit Agreement be amended, and the Lenders signatory hereto, the Canadian Administrative Agent and the Administrative Agent have agreed to the requested amendments on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree that all capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Credit Agreement, and further agree as follows:
SECTION 1. Amendments.
(a) Section 1.1 of the Credit Agreement, Certain Defined Terms, is hereby amended and modified by deleting the table contained in the definition of "Applicable Margin" set forth therein in its entirety and by substituting the following in lieu thereof:
Applicable
Margin for
LIBO Rate
Revolving
Loans and for
Base Rate Applicable
Revolving Margin for Base
Loans in Rate Revolving Applicable
Offshore Loans in U.S. Margin for
Senior Debt Ratio Currencies Dollars Unused Fee
----------------- ------------- --------------- ----------
Greater than or equal to 3.00 to 2.00% 0.75% 0.50%
1.00
Less than 3.00 to 1.00 but greater 1.75% 0.50% 0.425%
than or equal to 2.50 to 1.00
Less than 2.50 to 1.00 but greater 1.50% 0.25% 0.350%
than or equal to 2.00 to 1.00
Less than 2.00 to 1.00 1.25% 0.00% 0.275%
|
(b) Section 7.4 of the Credit Agreement, Restricted Payments and Purchases, is hereby amended and modified as follows: (i) by deleting "and" at the end of subsection (c)(iv) thereof and inserting "," in lieu thereof; (ii) by deleting "." at the end of subsection (c)(v) thereof and inserting "and" in lieu thereof; and (iii) by inserting the following as new subsection (c)(vi):
"(vi) purchase, redeem, retire or otherwise acquire shares of its own outstanding Stock for cash in an aggregate amount for all such shares acquired pursuant to this clause (vi) during the term of this Agreement not to exceed the sum of (A) $100,000,000, and (B) 50% of the Excess Cash
Flow for the fiscal year ending 2006 and each fiscal year thereafter on a cumulative basis (provided, however, that such percentage of the Excess Cash Flow for any fiscal year shall not be added until the Administrative Agent shall have received the annual audit report for such fiscal year pursuant to Section 6.1(c) hereof)."
(c) Section 7.18 of the Credit Agreement, Financial Covenants, is hereby amended and modified by deleting subsection (a), Total Debt Ratio, in its entirety and by substituting the following in lieu thereof:
"(a) Total Debt Ratio. AGCO shall not allow, as of the end of each fiscal quarter of AGCO, the Total Debt Ratio to exceed the ratio set forth below for the applicable fiscal quarter corresponding thereto:
Fiscal Quarters Ending: Ratio: ----------------------- ------ From December 31, 2003 5.35 to 1.00 through September 30, 2004 December 31, 2004 through 5.10 to 1.00 September 30, 2005 December 31, 2005 through 4.60 to 1.00 September 30, 2006 December 31, 2006 through 4.25 to 1.00 September 30, 2007 December 31, 2007 and 4.00 to 1.00 thereafter |
" (d) Section 7.18 of the Credit Agreement, Financial Covenants, is hereby further amended and modified by deleting subsection (b), Senior Debt Ratio, in its entirety and by substituting the following in lieu thereof:
"(b) Senior Debt Ratio. AGCO shall not allow, as of the end of each fiscal quarter of AGCO, the Senior Debt Ratio to exceed the ratio set forth below for the applicable fiscal quarter corresponding thereto:
Fiscal Quarters Ending: Ratio: ----------------------- ------ From December 31, 2003 through 3.70 to 1.00 September 30, 2004 December 31, 2004 through 3.50 to 1.00 September 30, 2005 December 31, 2005 3.00 to 1.00 March 31, 2006 through September 3.25 to 1.00 30, 2006 December 31, 2006 through 3.00 to 1.00 September 30, 2007 December 31, 2007 and thereafter 2.75 to 1.00 |
" (e) Section 7.18 of the Credit Agreement, Financial Covenants, is hereby further amended and modified by deleting subsection (c), Fixed Charge Coverage Ratio, in its entirety and by substituting the following in lieu thereof:
"(c) Fixed Charge Coverage Ratio. AGCO shall maintain, as of the end of each fiscal quarter of AGCO, a Fixed Charge Coverage Ratio for the four fiscal quarter period then ended of not less than the ratio set forth below for the applicable fiscal quarter corresponding thereto:
Fiscal Quarters Ending: Ratio: ----------------------- ------ From December 31, 2003 through 1.50 to 1.00 December 31, 2005 March 31, 2006 through December 1.50 to 1.00 31, 2006 March 31, 2007 and thereafter 1.60 to 1.00 |
" SECTION 2. Representations and Warranties. Each of AGCO and the other Borrowers represents and warrants as follows:
(a) The execution, delivery and performance by each Borrower of this Amendment and the other transactions contemplated hereby, are within such
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Borrower's charter or bylaws;
(ii) violate any Applicable Law (including, without limitation, to the extent
applicable, the Securities Exchange Act of 1934, the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of 1970 and any
similar statute); (iii) conflict with or result in the breach of, or constitute
a default under, any contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument binding on or affecting any Borrower, any of
its Subsidiaries or any of their properties (including any of the Applicable
Capital Market Transaction Documents); or (iv) except for the Liens created
under the Security Documents, result in or require the creation or imposition of
any Lien upon or with respect to any of the properties of any Borrower or any of
its Subsidiaries;
(b) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body or any other third party is required for the due execution, delivery or performance by any Borrower of this Amendment and each other Loan Document contemplated hereby to which it is or is to be a party;
(c) This Amendment and each other document required to be delivered by a Borrower hereunder has been duly executed and delivered by each Borrower thereto, and constitutes the legal, valid and binding obligation of each Borrower thereto, enforceable against such Borrower in accordance with its terms;
(d) The representations and warranties contained in Article 4 of the Credit Agreement, and in each of the other Loan Documents, are true and correct on and as of the date hereof as though made on and as of such date, other than (i) any such representations and warranties that, by their terms, expressly refer to an earlier date, and (ii) as a result of changes permitted by the terms of the Credit Agreement; and
(e) After giving effect hereto, no event has occurred and is continuing which constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
SECTION 3. Conditions Precedent to Effectiveness of this Amendment. This Amendment shall be effective as of the date first set forth above when the Administrative Agent shall have received, in form and substance satisfactory to it, each of the following:
(a) this Amendment, duly executed by the Borrowers, the Canadian Administrative Agent and the Administrative Agent, and Lender Addendum, in the form attached hereto, duly executed by all of the Multi-Currency Lenders, all of the Canadian Lenders, and the Required Lenders;
(b) an amendment fee for the account of each Lender that delivered to the Administrative Agent prior to 5:00 p.m. (New York City time) on March
22, 2006 such Lender's executed Lender Addenda to this Amendment, in an amount equal to two and one-half (2.5) basis points for each such Lender's Commitment; and
(c) the payment of such other fees, and the delivery of such other documents, instruments and information, as the Administrative Agent may reasonably request.
SECTION 4. Reference to and Effect on the Credit Agreement. Upon the effectiveness of this Amendment as set forth in Section 3 hereof, on and after the date hereof, each reference in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of like import shall mean and be a reference to the Credit Agreement as amended hereby, and each reference in the Notes and the other Loan Documents to the Credit Agreement shall mean and be a reference to the Credit Agreement as amended hereby.
SECTION 5. Reaffirmation of Guaranty. By executing this Amendment, each Guarantor hereby acknowledges, consents and agrees that all of its obligations and liability under the Guaranty Agreements to which it is a party remain in full force and effect, and that the execution and delivery of this Amendment and any and all documents executed in connection therewith shall not alter, amend, reduce or modify its obligations and liability under such Guaranty Agreements or any of the other Loan Documents to which it is a party.
SECTION 6. Costs, Expenses and Taxes. The Borrowers agree, jointly and severally, to pay on demand all costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the fees and expenses of counsel for the Administrative Agent with respect thereto).
SECTION 7. No Other Amendments. Except as otherwise expressed herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Agents or the Lenders under the Credit Agreement, or any of the other Loan Documents, nor constitute a waiver of any provision of the Credit Agreement or any of the other Loan Documents. Except for the amendments set forth above, the text of the Credit Agreement and all other Loan Documents shall remain unchanged and in full force and effect and the Borrowers hereby ratify and confirm their respective obligations thereunder. This Amendment shall not constitute a modification of the Credit Agreement or a course of dealing with the Administrative Agent at variance with the Credit Agreement such as to require further notice by the Administrative Agent to require strict compliance with the terms of the Credit Agreement and the other Loan Documents in the future, except as expressly set forth herein. The Borrowers acknowledge and expressly agree that the Agents and the Lenders reserve the right to, and do in fact, require strict compliance with all terms and provisions of the Credit Agreement and the other Loan Documents (in each case as amended hereby).
SECTION 8. Execution in Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. Delivery of a signature page hereto by facsimile transmission or via email transmission of an Adobe portable document format file (also known as a "PDF File") shall be as effective as delivery of a manually executed counterpart hereof.
SECTION 9. Delivery of Lender Addenda. Each Lender executing this Amendment shall do so by delivering to the Administrative Agent a Lender Addendum, substantially in the form of Annex I attached hereto, duly executed by such Lender.
SECTION 10. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws (without giving effect to the conflicts of laws principles thereof) of the State of New York.
SECTION 11. Final Agreement. This Amendment represents the final agreement between the Borrowers, the Administrative Agent, the Canadian Administrative Agent and the Lenders as to the subject matter hereof and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. The Amendment shall constitute a Loan Document for all purposes.
[the remainder of the page is intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
BORROWERS:
AGCO CORPORATION
By: /s/ Andrew H. Beck
------------------------------------
Title: S.V.P.
---------------------------------
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AGCO CANADA, LTD.
By: /s/ Andrew H. Beck
------------------------------------
Title:
---------------------------------
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AGCO LIMITED
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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AGCO INTERNATIONAL LIMITED
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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AGCO HOLDING B.V.
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Fifth Amendment to Credit Agreement
Signature Page 1
AGCO DEUTSCHLAND HOLDING LIMITED & CO.
KG
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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VALTRA HOLDING OY
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
GUARANTORS: VALTRA DEUTSCHLAND GMBH
(formerly known as RM 2379
VERMOGENSVERWALTUNGS GMBH)
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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AGCO VERTRIEBS GMBH
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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Fifth Amendment to Credit Agreement Signature Page 2
AGCO GMBH
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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AGCO FRANCE S.A.
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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AGCO S.A.
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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VALTRA TRACTEURS FRANCE S.A.S.
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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VALTRA INTERNATIONAL B.V.
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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Fifth Amendment to Credit Agreement Signature Page 3
MASSEY FERGUSON CORP.
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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AGCO EQUIPMENT COMPANY
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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SUNFLOWER MANUFACTURING COMPANY, INC.
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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AGCO MANUFACTURING LTD.
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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AGCO SERVICES LTD.
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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Fifth Amendment to Credit Agreement Signature Page 4
VALTRA VUOKRAUS OY
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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AGCO DO BRASIL COMERCIA E INDUSTRIA
LTDA.
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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VALTRA DO BRASIL LTDA.
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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EXPORT MARKET SERVICES LLC
By: /s/ Stephen D. Lupton
------------------------------------
Title:
---------------------------------
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Fifth Amendment to Credit Agreement
Signature Page 5
AGENTS, ISSUING BANKS COOPERATIEVE CENTRALE RAIFFEISEN-
AND SWING LINE BANK: BOERENLEENBANK B.A., "RABOBANK
NEDERLAND," NEW YORK BRANCH, as
Administrative Agent and Multi-Currency
Issuing Bank
By: /s/ Kimberly English
------------------------------------
Title: Executive Director
---------------------------------
By: /s/ Brett Delfino
------------------------------------
Title: Executive Director
---------------------------------
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COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND," CANADIAN BRANCH,
as Canadian Administrative Agent and
Canadian Issuing Bank
By: /s/ Rommel J. Domingo
------------------------------------
Title: Vice President
---------------------------------
By: /s/ Khurram Rahman-Khan
------------------------------------
Title: Executive Director
---------------------------------
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LENDERS: See each Lender Addendum attached hereto
Fifth Amendment to Credit Agreement
Signature Page 7
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LENDER ADDENDUM
Reference is made to the Credit Agreement dated as of December 22,
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2003 (as amended by that certain First Amendment to Credit Agreement and Consent dated as of April 12, 2004, as further amended by that certain Second Amendment to Credit Agreement dated as of August 17, 2004, as further amended by that certain Third Amendment to Credit Agreement dated as of March 21, 2005, as further amended by that certain Fourth Amendment to Credit Agreement and Consent dated as of June 2, 2005 and as further amended, restated, renewed, supplemented or otherwise modified from time to time, the "Credit Agreement") among AGCO Corporation, AGCO Canada Ltd., AGCO Limited, AGCO International Limited, AGCO Holding B.V., AGCO Deutschland Holding Limited & Co. KG and Valtra Holding Oy (collectively, the "Borrowers"), the lenders signatory thereto (together with any other financial institution that subsequently becomes a Lender thereunder, the "Lenders"), the Issuing Banks (as defined in the Credit Agreement), Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", Canadian Branch, as Canadian Administrative Agent, SunTrust Bank and Morgan Stanley Senior Funding, Inc., as Co-Syndication Agents, CoBank, ACB and The Bank of Tokyo-Mitsubishi, Ltd., NY Branch, as Co-Documentation Agents, and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch, as the Administrative Agent (the "Administrative Agent"). Capitalized terms used herein without definition shall have the respective meanings ascribed to those terms in the Credit Agreement.
Upon execution and delivery of this Lender Addendum by the undersigned Lender, the undersigned Lender hereby consents to and agrees with all of the terms and conditions contained in, and shall become a party to, the Fifth Amendment to Credit Agreement dated as of March 22, 2006.
THIS LENDER ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
This Lender Addendum may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page hereof by facsimile transmission or via email transmission of an Adobe portable document file (also known as a "PDF File") shall be effective as delivery of a manually executed counterpart hereof.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Lender Addendum to be duly executed and delivered by their proper and duly authorized officers effective as of the date set forth herein.
[NAME OF LENDER]
Lender Addendum Signature Page
EXHIBIT 10.2
AGCO CORPORATION
2006 LONG-TERM INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AWARD AGREEMENT
THIS AGREEMENT, entered into as of the Grant Date (as defined in Section
1), by and between the Participant and AGCO Corporation (the "Company");
WHEREAS, the Company maintains the AGCO Corporation 2006 Long-Term Incentive Plan (the "Plan"), which is incorporated into and forms a part of this Agreement, and the Participant has been selected by the committee administering the Plan (the "Committee") to receive a Non-Qualified Stock Option Award under the Plan;
NOW, THEREFORE, IT IS AGREED, by and between the Company and the Participant, as follows:
1. TERMS OF AWARD AND DEFINITIONS. The following terms used in this Agreement shall have the meanings set forth in this Section 1:
(a) COVERED SHARES. The number of "Covered Shares" shall be _________ shares of Stock.
(b) DATE OF TERMINATION. The Participant's "Date of Termination" shall be the first day occurring on or after the Grant Date on which the Participant is neither employed by the Company or any Subsidiary, a director of the Company or any Subsidiary, an independent contractor performing services for the Company or any Subsidiary nor providing services as a consultant to the Company or any Subsidiary; provided that a termination shall not be considered to have occurred while the Participant is on an approved leave of absence from the Company or a Subsidiary. If, as a result of a sale or other transaction, a Participant who is an employee ceases to be an employee of the Company or any Subsidiary (and the Participant's employer is or becomes an entity that is separate from the Company or any Subsidiary), the occurrence of such transaction shall be treated as the Participant's Date of Termination caused by the Participant being discharged by the employer.
(c) DESIGNATED BENEFICIARY. The "Designated Beneficiary" shall be the beneficiary or beneficiaries designated by the Participant in a writing filed with the Committee in such form and at such time as the Committee shall require.
(d) DISABILITY. Except as otherwise provided by the Committee, the Participant shall be considered to have a "Disability" if he is eligible for disability payments under the Company's long-term disability plan.
(e) EXERCISE PRICE. The "Exercise Price" is $__________ per share.
(f) GRANT DATE. The "Grant Date" is ____________________.
(g) GOOD CAUSE. With respect to any dismissal of the Participant from his or her employment with the Company or any Subsidiary, shall mean (i) if the Participant is a party to an employment agreement with the Company or any Subsidiary that defines "cause," "good cause" or a similar term, "Good Cause" shall mean such term as so defined, and (ii) otherwise (A) the conviction of the Participant of, or the entry of a plea of guilty, first offender probation before judgment, or nolo contendere by the Participant to, any felony; (B) fraud, misappropriation or embezzlement by the Participant; (C) the Participant's willful failure or gross negligence in the performance of his assigned duties for the Company or any Subsidiary; (D) the Participant's failure to follow reasonable and lawful directives of his supervisor or his breach of his fiduciary duty to the Company or any Subsidiary; (E) any act or omission of the Participant that has a demonstrated and material adverse impact on the Company's or any Subsidiary's business or reputation for honesty and fair dealing, other than an act or failure to act by the Participant in good faith and without reason to believe that such act or failure to act would adversely impact on the Company's or any Subsidiary's business or reputation for honesty and fair dealing; or (F) the breach by the Participant of any confidentiality or non-competition agreement in favor of the Company or any Subsidiary.
(h) IMMEDIATE FAMILY. "Immediate Family" shall mean the Participant's spouse, parents, children, stepchildren, adoptive relationships, sisters, brothers and grandchildren and, for this purpose, shall also include the Participant.
(i) PARTICIPANT. The "Participant" is ______________________.
(j) RETIREMENT. "Retirement" of the Participant shall mean the occurrence of the Participant's Date of Termination on or after the date the Participant attains age 65 or such earlier date as may be approved by the Committee in its sole discretion.
Except where the context clearly implies or indicates the contrary, a word, term, or phrase used in the Plan is similarly used in this Agreement.
2. AWARD AND EXERCISE PRICE. This Agreement specifies the terms of the
option (the "Option") granted to the Participant to purchase the number of
Covered Shares of Stock at the Exercise Price per share as set forth in Section
1. The Option is not intended to constitute an "incentive stock option" as that
term is used in Code section 422.
3. DATE OF EXERCISE.
(a) Subject to the limitations of this Agreement, the Option shall be exercisable according to the following schedule, with respect to each installment shown in the schedule on and after the Vesting Date applicable to such installment (each an "Installment"):
(b)
VESTING DATE APPLICABLE TO
INSTALLMENT INSTALLMENT
----------- --------------------------
[FIRST YEAR ANNIVERSARY OF THE GRANT DATE]
[SECOND YEAR ANNIVERSARY OF THE GRANT DATE]
[THIRD YEAR ANNIVERSARY OF THE GRANT DATE]
[FOURTH YEAR ANNIVERSARY OF THE GRANT DATE]
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(c) An Installment shall not become exercisable on the otherwise applicable Vesting Date if the Participant's Date of Termination occurs on or before such Vesting Date. Notwithstanding the foregoing provisions of this Section 3, the Option shall become exercisable with respect to all of the Covered Shares (to the extent it is not then otherwise exercisable) as follows:
(i) The Option shall become fully exercisable upon the Participant's Date of Termination, if the Participant's Date of Termination occurs by reason of the Participant's death or Disability; and
(ii) The Option shall become fully exercisable upon a Change in Control, if the Participant's Date of Termination does not occur on or before the Change in Control.
(d) Otherwise, the Option may be exercised on or after the Date of Termination only as to that portion of the Covered Shares as to which it was exercisable immediately prior to the Date of Termination, or as to which it became exercisable on the Date of Termination in accordance with this Section 3.
4. EXPIRATION. The Option shall not be exercisable after the Company's close of business on the last business day that occurs prior to the Expiration Date. The "Expiration Date" shall be earliest to occur of:
(a) The seven-year anniversary of the Grant Date;
(b) If the Participant's Date of Termination occurs by reason of death, Disability or Retirement, the one-year anniversary of such Date of Termination;
(c) If the Participant's Date of Termination occurs for reasons other than death, Disability, Retirement, or Good Cause the 90-day anniversary of such Date of Termination; or
(d) The date the Participant is dismissed from the Company for Good Cause.
5. METHOD OF OPTION EXERCISE.
(a) Subject to the Agreement and the Plan, the Option may be exercised in whole or in part by filing a written notice in substantially the form attached hereto as Exhibit 1 with the Secretary of the Company at its corporate headquarters prior to the Company's close of business on the last business day that occurs prior to the Expiration Date. Such notice shall specify the number of shares of Stock which the Participant elects to purchase, and shall be accompanied by payment of the Exercise Price for such shares of Stock indicated by the Participant's election.
(b) Payment shall be by cash or by check payable to the Company, or, alternatively as follows to the extent permitted by the Committee at the time of exercise:
(i) all or a portion of the Exercise Price may be paid by the Participant by delivery of shares of Stock owned by the Participant and acceptable to the Committee having an aggregate Fair Market Value (valued as of the date of exercise) that is equal to the amount of cash that would otherwise be required;
(ii) the Participant may pay the Exercise Price by authorizing a third party to sell shares of Stock (or a sufficient portion of the shares) acquired upon exercise of the Option and remit to the Company a sufficient portion of the sale proceeds to pay the entire Exercise Price and any tax withholding resulting from such exercise or,
(iii) the Participant may pay the Exercise Price by authorizing the Company to withhold shares of Stock (or a sufficient portion of the shares) acquired upon exercise of the Option having an aggregate Fair Market Value (valued as of the date of exercise) that is equal to the amount of cash that would be required to pay the entire Exercise Price and any tax withholding resulting from such exercise.
(c) The Option shall not be exercisable if and to the extent the Company determines that such exercise would violate applicable state or Federal securities laws or the rules and regulations of any securities exchange on which the Stock is traded. If the Company makes such a determination, it shall use all reasonable efforts to obtain compliance with such laws, rules or regulations. In making any determination hereunder, the Company may rely on the opinion of counsel for the Company.
(d) If the Company is an S-Corporation at the time a Participant seeks to exercise the Award, the Option shall not be exercisable if and to the extent the Company determines that such exercise would result in the loss of the Company's status as an S Corporation. In making any determination hereunder, the Company may rely on the opinion of counsel for the Company.
(e) As a condition to exercising the Option, the Optionee shall, if requested by the Company, execute a shareholder agreement in the form provided by the Company.
6. WITHHOLDING. To the extent necessary, the Optionee must satisfy his federal, state, and local, if any, withholding taxes imposed by reason of the exercise of the Option either by paying to the Company the full amount of the withholding obligation (i) in cash; (ii) by tendering shares of Stock which are owned by the Optionee prior to the date of exercise having a Fair Market Value equal to the withholding obligation (a "Withholding Election"); (iii) by electing, irrevocably and in writing (also a "Withholding Election"), to have the smallest number of whole shares of Stock withheld by the Company which, when multiplied by the Fair Market Value of the Stock as of the date the Option is exercised, is sufficient to satisfy the amount of withholding tax; or (iv) by any combination of the above. Optionee may make a Withholding Election only if the following conditions are met:
(a) The Withholding Election is made on or prior to the date on which the amount of tax required to be withheld is determined (the "Tax Date") by executing and delivering to the Company a properly completed Notice of Withholding Election in substantially the form attached hereto as Exhibit 2; and
(b) Any Withholding Election will be irrevocable; however, the Committee may, in its sole discretion, disapprove and give no effect to the Withholding Election.
7. TRANSFERABILITY.
(a) Except as otherwise provided in this Section 7, the Option is not transferable other than as designated by the Participant by will or by the laws of descent and distribution, and during the Participant's life, may be exercised only by the Participant.
(b) Notwithstanding the foregoing, the Participant, with the approval of the Committee, may transfer the Option for no consideration to or for the benefit of the Participant's Immediate Family (including, without limitation, to a trust for the benefit of the Participant's Immediate Family, subject to such limits as the Committee may establish, and the transferee shall remain subject to all the terms and conditions applicable to the Option prior to such transfer, specifically including the terms and conditions of the Shareholders Agreement. No such transfer which could result in the loss of the Company's status as an S Corporation will be allowed.
(c) The foregoing right to transfer the Option shall apply to the right to consent to amendments to this Agreement and, in the discretion of the Committee, shall also apply to the right to transfer ancillary rights associated with the Option.
8. HEIRS AND SUCCESSORS.
(a) This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring, whether by merger, consolidation, purchase of assets or otherwise, all or substantially all of the Company's assets and business.
(b) If any rights exercisable by the Participant or benefits deliverable to the Participant under this Agreement have not been exercised or delivered, respectively, at the time of the Participant's death, such rights shall be exercisable by the Designated Beneficiary, and such benefits shall be delivered to the Designated Beneficiary, in accordance with the provisions of this Agreement and the Plan.
(c) If a deceased Participant has failed to designate a beneficiary, or if the Designated Beneficiary does not survive the Participant, any rights that would have been exercisable by the Participant and any benefits distributable to the Participant shall be exercised by or distributed to the legal representative of the estate of the Participant.
(d) If a deceased Participant has designated a beneficiary but the Designated Beneficiary dies before the Designated Beneficiary's exercise of all rights under this Agreement or before the complete distribution of benefits to the Designated Beneficiary under this Agreement, then any rights that would have been exercisable by the Designated Beneficiary shall be exercised by the legal representative of the estate of the Designated Beneficiary, and any benefits distributable to the Designated Beneficiary shall be distributed to the legal representative of the estate of the Designated Beneficiary.
9. ADMINISTRATION. The authority to manage and control the operation and administration of this Agreement shall be vested in the Committee, and the Committee shall have all powers with respect to this Agreement as it has with respect to the Plan. Any interpretation of the Agreement by the Committee and any decision made by it with respect to the Agreement is final and binding on all persons.
10. PLAN GOVERNS. Notwithstanding anything in this Agreement to the contrary, the terms of this Agreement shall be subject to the terms of the Plan, a copy of which may be obtained by the Participant from the office of the Secretary of the Company; and this Agreement is subject to all interpretations, amendments, rules and regulations promulgated by the Committee from time to time pursuant to the Plan.
11. NOT AN EMPLOYMENT CONTRACT. The Option will not confer on the Participant any right with respect to continuance of employment or other service with the Company or any Subsidiary, nor will it interfere in any way with any right the Company or any Subsidiary would otherwise have to terminate or modify the terms of such Participant's employment or other service at any time.
12. NOTICES. Any written notices provided for in this Agreement or the Plan shall be in writing and shall be deemed sufficiently given if either hand delivered or if sent by fax or overnight courier, or by postage paid first class mail. Notices sent by mail shall be deemed received three business days after mailed but in no event later than the date of actual receipt. Notices shall be directed, if to the Participant, at the Participant's address indicated by the Company's records, or if to the Company, at the Company's principal executive office.
13. FRACTIONAL SHARES. In lieu of issuing a fraction of a share upon any exercise of the Option, the Company will be entitled to pay to the Participant an amount equal to the fair market value of such fractional share.
14. NO RIGHTS AS SHAREHOLDER. The Participant shall not have any rights of a shareholder with respect to the shares subject to the Option, until a stock certificate has been duly issued following exercise of the Option as provided herein.
15. AMENDMENT. This Agreement may be amended by written Agreement of the Participant and the Company, without the consent of any other person.
16. FORFEITURE. Notwithstanding the foregoing, if, following the Date of Termination, Participant violates any of Participant's post-termination obligations to the Company or any Subsidiary, including, without limitation, any obligation not to compete with the Company or any Subsidiary (regardless of whether such obligation is enforceable under applicable law), not to solicit employees of the Company or any Subsidiary, to maintain the confidentiality on information belonging to the Company or any Subsidiary, or not to disparage the Company or any Subsidiary or any of their affiliates, immediately upon demand by the Company the Participant shall return to the Company the proceeds from this Award to the extent received by the Participant on or after one year prior to Date of Termination.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in its name and on its behalf as of the Grant Date.
AGCO CORPORATION
EXHIBIT 1
NOTICE OF EXERCISE OF
STOCK OPTION TO PURCHASE STOCK OF
AGCO CORPORATION
Re: Exercise of Non-qualified Stock Option
Dear Sir or Madam:
Subject to acceptance hereof in writing by AGCO Corporation (the "Company") pursuant to the provisions of the AGCO Corporation 2006 Long-Term Incentive Plan, I hereby give at least ten days but not more than thirty days prior notice of my election to exercise options granted to me to purchase ______________ shares of Stock of the Company under the Non-qualified Stock Option Award Agreement (the "Award") pursuant to the AGCO Corporation 2006 Long-Term Incentive Plan dated as of ____________, ______. The purchase shall take place as of ____________, _____ (the "Exercise Date").
On or before the Exercise Date, I will pay the applicable purchase price as follows:
[ ] by delivery of cash or a certified check for $___________ for the full purchase price payable to the order of the Company.
[ ] by delivery of a certified check for $___________ representing a portion of the purchase price with the balance to consist of shares of Stock that I own and that are represented by a stock certificate I will surrender to the Company with my endorsement. If the number of shares of Stock represented by such stock certificate exceed the number to be applied against the purchase price, I understand that a new stock certificate will be issued to me reflecting the excess number of shares.
[ ] by delivery of a stock certificate representing shares of Stock that I own which I will surrender to the Company with my endorsement as payment of the purchase price. If the number of shares of Stock represented by such certificate exceed the number to be applied against the purchase price, I understand that a new certificate will be issued to me reflecting the excess number of shares.
[ ] by the Company withholding from the purchased shares a number of shares having an aggregate Fair Market Value on the date of exercise, equal to the aggregate exercise price of all options being exercised.
Or, subject to your receipt of the written approval of the Committee (as defined in the Plan), by _____________, ______ I will pay the purchase price by delivery of cash or a certified check for $__________ representing all or a portion of the purchase price with any remaining balance to consist of Stock that I have owned for at least six months and that are represented by a stock certificate I will surrender to the Company with my endorsement. If the number of shares of Stock represented by such stock certificate exceed the number to be applied against the purchase price, I understand that a new stock certificate will be issued to me reflecting the excess number of shares.
As soon as the stock certificate is registered in my name, please deliver it to me at the above address.
If the Stock being acquired is not registered for issuance to and resale by the Optionee pursuant to an effective registration statement on Form S-8 (or successor form) filed under the Securities Act of 1933, as amended (the "1933 Act"), I hereby represent, warrant, covenant, and agree with the Company as follows:
The shares of the Stock being acquired by me will be acquired for my own account without the participation of any other person, with the intent of holding the Stock for investment and without the intent of participating, directly or indirectly, in a distribution of the Stock and not with a view to, or for resale in connection with, any distribution of the Stock, nor am I aware of the existence of any distribution of the Stock;
I am not acquiring the Stock based upon any representation, oral or written, by any person with respect to the future value of, or income from, the Stock but rather upon an independent examination and judgment as to the prospects of the Company;
The Stock was not offered to me by means of any publicly disseminated advertisements or sales literature, nor am I aware of any offers made to other persons by such means;
I am able to bear the economic risks of the investment in the Stock, including the risk of a complete loss of my investment therein;
I understand and agree that the Stock will be issued and sold to me without registration under any state law relating to the registration of securities for sale, and will be issued and sold in reliance on the exemptions from registration under the 1933 Act, provided by Sections 3(b) and/or 4(2) thereof and the rules and regulations promulgated thereunder;
The Stock cannot be offered for sale, sold or transferred by me other than pursuant to: (A) an effective registration under the 1933 Act or in a transaction otherwise in compliance with the 1933 Act; and (B) evidence satisfactory to the Company of compliance with the applicable securities laws of other jurisdictions. The Company shall be entitled to rely upon an opinion of counsel satisfactory to it with respect to compliance with the above laws;
Exhibit 1 - 2
The Company will be under no obligation to register the Stock or to comply with any exemption available for sale of the Stock without registration or filing, and the information or conditions necessary to permit routine sales of securities of the Company under Rule 144 under the 1933 Act may not now be available and no assurance has been given that it or they will become available. The Company is under no obligation to act in any manner so as to make Rule 144 available with respect to the Stock;
I have and have had complete access to and the opportunity to review and make copies of all material documents related to the business of the Company, including, but not limited to, contracts, financial statements, tax returns, leases, deeds and other books and records. I have examined such of these documents as I wished and am familiar with the business and affairs of the Company. I realize that the purchase of the Stock is a speculative investment and that any possible profit therefrom is uncertain;
I have had the opportunity to ask questions of and receive answers from the Company and any person acting on its behalf and to obtain all material information reasonably available with respect to the Company and its affairs. I have received all information and data with respect to the Company which I have requested and which I have deemed relevant in connection with the evaluation of the merits and risks of my investment in the Company;
I have such knowledge and experience in financial and business matters that I am capable of evaluating the merits and risks of the purchase of the Stock hereunder and I am able to bear the economic risk of such purchase; and
The agreements, representations, warranties and covenants made by me herein extend to and apply to all of the Stock of the Company issued to me pursuant to this Award. Acceptance by me of the certificate representing such Stock shall constitute a confirmation by me that all such agreements, representations, warranties and covenants made herein shall be true and correct at that time.
I understand that the certificates representing the shares being purchased by me in accordance with this notice shall bear a legend referring to the foregoing covenants, representations and warranties and restrictions on transfer, and I agree that a legend to that effect may be placed on any certificate which may be issued to me as a substitute for the certificates being acquired by me in accordance with this notice.
Very truly yours,
AGREED TO AND ACCEPTED:
AGCO CORPORATION
By:
---------------------------------
Title:
------------------------------
Number of Shares Exercised:
------------
Number of Shares Remaining: Date:
------------ --------------------------------
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Exhibit 1 - 3
EXHIBIT 2
NOTICE OF WITHHOLDING ELECTION
NON-QUALIFIED STOCK OPTION AWARD
PURSUANT TO THE AGCO CORPORATION
2006 LONG-TERM INCENTIVE PLAN
TO: _________________________________
FROM: _______________________________
RE: Withholding Election
This election relates to the Option identified in Paragraph 3 below. I hereby certify that:
(1) My correct name and social security number and my current address are set forth at the end of this document.
(2) I am (check one, whichever is applicable).
[ ] the original recipient of the Option.
[ ] the legal representative of the estate of the original recipient of the Option.
[ ] the legal guardian of the original recipient of the Option.
[ ] an Immediate Family Member other than the original recipient of the Option.
(3) The Option to which this election relates was issued under the AGCO Corporation 2006 Long-Term Incentive Plan (the "Plan") in the name of _________________________ for the purchase of a total of _________ shares of Stock of the Company. This election relates to _______________ shares of Stock issuable upon exercise of the Option, provided that the numbers set forth above shall be deemed changed as appropriate to reflect the applicable Plan provisions.
(4) In connection with any exercise of the Option with respect to the Stock, I hereby elect one or more of the following:
[ ] to pay cash or certified check in the amount of $_______ to be applied to pay federal, state, and local, if any, taxes arising from the exercise.
[ ] to pay the full federal, state, and local, if any, taxes arising from the exercise in cash or certified check.
[ ] to have certain of the shares issuable pursuant to the exercise withheld by the Company for the purpose of having the value of the shares applied to pay federal, state, and local, if any, taxes arising from the exercise.
[ ] to tender shares held by me prior to the exercise of the Option for the purpose of having the value of the shares applied to pay such taxes.
The shares to be withheld or tendered, as applicable, shall have, as of the Tax Date applicable to the exercise, a Fair Market Value equal to the minimum statutory tax withholding requirement under federal, state, and local law in connection with the exercise.
(5) This Withholding Election is made no later than the Tax Date and is otherwise timely made pursuant to the Plan.
(6) I understand that this Withholding Election may not be revised, amended or revoked by me.
(7) The Plan has been made available to me by the Company. I have read and understand the Plan and I have no reason to believe that any of the conditions to the making of this Withholding Election have not been met.
(8) Capitalized terms used in this Notice of Withholding Election without definition shall have the meanings given to them in the Plan.
Dated:
----------------------------- ----------------------------------------
Signature
------------------------------------ ----------------------------------------
Social Security Number Name (Printed)
----------------------------------------
Street Address
----------------------------------------
City, State, Zip Code
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Exhibit 1 - 2
EXHIBIT 10.3
AGCO CORPORATION
2006 LONG-TERM INCENTIVE PLAN
INCENTIVE STOCK OPTION AWARD AGREEMENT
THIS AGREEMENT, entered into as of the Grant Date (as defined in Section
1), by and between the Participant and AGCO Corporation (the "Company");
WHEREAS, the Company maintains the AGCO Corporation 2006 Long-Term Incentive Plan (the "Plan"), which is incorporated into and forms a part of this Agreement, and the Participant has been selected by the committee administering the Plan (the "Committee") to receive a Stock Option Award under the Plan;
NOW, THEREFORE, IT IS AGREED, by and between the Company and the Participant, as follows:
1. TERMS OF AWARD AND DEFINITIONS. The following terms used in this Agreement shall have the meanings set forth in this Section 1:
(a) COVERED SHARES. The number of "Covered Shares" shall be __________ shares of Stock.
(b) DATE OF TERMINATION. The Participant's "Date of Termination" shall be the first day occurring on or after the Grant Date on which the Participant is neither employed by the Company or any Subsidiary; provided that a termination shall not be considered to have occurred while the Participant is on an approved leave of absence from the Company or a Subsidiary. If, as a result of a sale or other transaction, a Participant ceases to be an employee of the Company or any Subsidiary (and the Participant's employer is or becomes an entity that is separate from the Company or any Subsidiary), the occurrence of such transaction shall be treated as the Participant's Date of Termination caused by the Participant being discharged by the employer.
(c) DESIGNATED BENEFICIARY. The "Designated Beneficiary" shall be the beneficiary or beneficiaries designated by the Participant in a writing filed with the Committee in such form and at such time as the Committee shall require.
(d) DISABILITY. Except as otherwise provided by the Committee, the Participant shall be considered to have a "Disability" if he is eligible for disability payments under the Company's long-term disability plan.
(e) EXERCISE PRICE. The "Exercise Price" is $__________ per share.
(f) GOOD CAUSE. With respect to any dismissal of the Participant from his or her employment with the Company or any Subsidiary, shall mean (i) if the Participant is a party to an employment agreement with the Company or any Subsidiary that defines "cause," "good cause" or a similar term, "Good Cause" shall mean such term as so defined, and (ii) otherwise (A) the conviction of the Participant of, or the entry of a plea of guilty, first offender probation before judgment, or nolo contendere by the Participant to, any felony; (B) fraud, misappropriation or embezzlement by the Participant; (C) the Participant's willful failure or gross negligence in the performance of his assigned duties for the Company or any Subsidiary; (D) the Participant's failure to follow reasonable and lawful directives of his supervisor or his breach of his fiduciary duty to the Company or any Subsidiary; (E) any act or omission of the Participant that has a demonstrated and material adverse impact on the Company's or any Subsidiary's business or reputation for honesty and fair dealing, other than an act or failure to act by the Participant in good faith and without reason to believe that such act or failure to act would adversely impact on the Company's or any Subsidiary's business or reputation for honesty and fair dealing; or (F) the breach by the Participant of any confidentiality or non-competition agreement in favor of the Company or any Subsidiary.
(g) GRANT DATE. The "Grant Date" is _____________________________.
(h) IMMEDIATE FAMILY. "Immediate Family" shall mean the Participant's spouse, parents, children, stepchildren, adoptive relationships, sisters, brothers and grandchildren and, for this purpose, shall also include the Participant.
(i) PARTICIPANT. The "Participant" is _____________________________.
(j) RETIREMENT. "Retirement" of the Participant shall mean the occurrence of the Participant's Date of Termination on or after the date the Participant attains age 65 or such earlier date as may be approved by the Committee in its sole discretion.
Except where the context clearly implies or indicates the contrary, a word, term, or phrase used in the Plan is similarly used in this Agreement.
2. AWARD AND EXERCISE PRICE. This Agreement specifies the terms of the
option (the "Option") granted to the Participant to purchase the number of
Covered Shares of Stock at the Exercise Price per share as set forth in Section
1. The Option is intended to constitute an "incentive stock option" as that term
is used in Code section 422, and shall be so construed. To the extent that the
aggregate fair market value (determined at the time of grant) of Shares with
respect to which incentive stock options are exercisable for the first time by
the Participant during any calendar year under all plans of the Company and its
affiliates exceeds $100,000, the options or portions thereof which exceed such
limit (according to the order in which they were granted) shall be treated as
nonstatutory stock options. It should be understood that there is no assurance
that the option will, in fact, be treated as an incentive stock option. To the
extent an Option is not treated as an incentive stock option, it shall be
treated as a nonstatutory stock option.
3. DATE OF EXERCISE.
(a) Subject to the limitations of this Agreement, the Option shall be exercisable according to the following schedule, with respect to each installment shown in the schedule on and after the Vesting Date applicable to such installment (each an "Installment"):
VESTING DATE APPLICABLE TO
INSTALLMENT INSTALLMENT
----------- --------------------------
[FIRST YEAR ANNIVERSARY OF THE GRANT DATE]
[SECOND YEAR ANNIVERSARY OF THE GRANT DATE]
[THIRD YEAR ANNIVERSARY OF THE GRANT DATE]
[FOURTH YEAR ANNIVERSARY OF THE GRANT DATE]
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(b) An Installment shall not become exercisable on the otherwise applicable Vesting Date if the Participant's Date of Termination occurs on or before such Vesting Date. Notwithstanding the foregoing provisions of this Section 3, the Option shall become exercisable with respect to all of the Covered Shares (to the extent it is not then otherwise exercisable) as follows:
(i) If the Participant's Date of Termination occurs by reason of the Participant's death or Disability, the Option shall become fully exercisable upon the Participant's Date of Termination; and
(ii) If the Participant's Date of Termination does not occur on or before the Change in Control, the Option shall become fully exercisable upon a Change in Control.
(c) Otherwise, the Option may be exercised on or after the Date of Termination only as to that portion of the Covered Shares as to which it was exercisable immediately prior to the Date of Termination, or as to which it became exercisable on the Date of Termination in accordance with this Section 3.
4. EXPIRATION. The Option shall not be exercisable after the Company's close of business on the last business day that occurs prior to the Expiration Date. The "Expiration Date" shall be earliest to occur of:
(a) The seven-year anniversary of the Grant Date (5 years in the case of a 10% or greater shareholder);
(b) If the Participant's Date of Termination occurs by reason of death, Disability or Retirement, the one-year anniversary of such Date of Termination;
(c) If the Participant's Date of Termination occurs for reasons other than death, Disability, Retirement, or Good Cause the 90-day anniversary of such Date of Termination; or
(d) The date the Participant is dismissed from the Company for Good Cause.
5. METHOD OF OPTION EXERCISE.
(a) Subject to the Agreement and the Plan, the Option may be exercised in whole or in part by filing a written notice with the Secretary of the Company at its corporate headquarters prior to the Company's close of business on the last business day that occurs prior to the Expiration Date. Such notice shall specify the number of shares of Stock which the Participant elects to purchase, and shall be accompanied by payment of the Exercise Price for such shares of Stock indicated by the Participant's election.
(b) Payment shall be by cash or by check payable to the Company, or, alternatively, as follows to the extent permitted by the Committee at the time of exercise:
(i) all or a portion of the Exercise Price may be paid by the Participant by delivery of shares of Stock owned by the Participant and acceptable to the Committee having an aggregate Fair Market Value (valued as of the date of exercise) that is equal to the amount of cash that would otherwise be required;
(ii) the Participant may pay the Exercise Price by authorizing a third party to sell shares of Stock (or a sufficient portion of the shares) acquired upon exercise of the Option and remit to the Company a sufficient portion of the sale proceeds to pay the entire Exercise Price and any tax withholding resulting from such exercise or,
(iii) the Participant may pay the Exercise Price by authorizing the Company to withhold shares of Stock (or a sufficient portion of the shares) acquired upon exercise of the Option having an aggregate Fair Market Value (valued as of the date of exercise) that is equal to the amount of cash that would be required to pay the entire Exercise Price and any tax withholding resulting from such exercise.
(c) The Option shall not be exercisable if and to the extent the Company determines that such exercise would violate applicable state or Federal securities laws or the rules and regulations of any securities exchange on which the Stock is traded. If the Company makes such a determination, it shall use all reasonable efforts to obtain compliance with such laws, rules or regulations. In making any determination hereunder, the Company may rely on the opinion of counsel for the Company.
6. WITHHOLDING. To the extent necessary, the Optionee must satisfy his federal, state, and local, if any, withholding taxes imposed by reason of the exercise of the Option either by paying to the Company the full amount of the withholding obligation (i) in cash; (ii) by tendering shares of Stock which are owned by the Optionee prior to the date of exercise having a
Fair Market Value equal to the withholding obligation (a "Withholding Election"); (iii) by electing, irrevocably and in writing (also a "Withholding Election"), to have the smallest number of whole shares of Stock withheld by the Company which, when multiplied by the Fair Market Value of the Stock as of the date the Option is exercised, is sufficient to satisfy the amount of withholding tax; or (iv) by any combination of the above. Optionee may make a Withholding Election only if the following conditions are met:
(a) The Withholding Election is made on or prior to the date on which the amount of tax required to be withheld is determined (the "Tax Date") by executing and delivering to the Company a properly completed Notice of Withholding Election in substantially the form attached hereto as Exhibit 2; and
(b) Any Withholding Election will be irrevocable; however, the Committee may, in its sole discretion, disapprove and give no effect to the Withholding Election.
7. TRANSFERABILITY.
(a) Except as otherwise provided in this Section 7, the Option is not transferable other than as designated by the Participant by will or by the laws of descent and distribution, and during the Participant's life, may be exercised only by the Participant.
(b) Notwithstanding the foregoing, the Participant, with the approval of the Committee, may transfer the Option for no consideration to or for the benefit of the Participant's Immediate Family (including, without limitation, to a trust for the benefit of the Participant's Immediate Family or to a partnership or limited liability company for one or more members of the Participant's Immediate Family, subject to such limits as the Committee may establish, and the transferee shall remain subject to all the terms and conditions applicable to the Option prior to such transfer.
(c) The foregoing right to transfer the Option shall apply to the right to consent to amendments to this Agreement and, in the discretion of the Committee, shall also apply to the right to transfer ancillary rights associated with the Option.
8. HEIRS AND SUCCESSORS.
(a) This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring, whether by merger, consolidation, purchase of assets or otherwise, all or substantially all of the Company's assets and business.
(b) If any rights exercisable by the Participant or benefits deliverable to the Participant under this Agreement have not been exercised or delivered, respectively, at the time of the Participant's death, such rights shall be exercisable by the Designated Beneficiary, and such benefits shall be delivered to the Designated Beneficiary, in accordance with the provisions of this Agreement and the Plan.
(c) If a deceased Participant has failed to designate a beneficiary, or if the Designated Beneficiary does not survive the Participant, any rights that would have been exercisable by the Participant and any benefits distributable to the Participant shall be exercised by or distributed to the legal representative of the estate of the Participant.
(d) If a deceased Participant has designated a beneficiary but the Designated Beneficiary dies before the Designated Beneficiary's exercise of all rights under this Agreement or before the complete distribution of benefits to the Designated Beneficiary under this Agreement, then any rights that would have been exercisable by the Designated Beneficiary shall be exercised by the legal representative of the estate of the Designated Beneficiary, and any benefits distributable to the Designated Beneficiary shall be distributed to the legal representative of the estate of the Designated Beneficiary.
9. ADMINISTRATION. The authority to manage and control the operation and administration of this Agreement shall be vested in the Committee, and the Committee shall have all powers with respect to this Agreement as it has with respect to the Plan. Any interpretations of the Agreement by the Committee and any decisions made by it with respect to the Agreement are final and binding on all persons.
10. PLAN GOVERNS. Notwithstanding anything in this Agreement to the contrary, the terms of this Agreement shall be subject to the terms of the Plan, a copy of which may be obtained by the Participant from the office of the Secretary of the Company. This Agreement is subject to all interpretations, amendments, rules and regulations promulgated by the Committee from time to time pursuant to the Plan.
11. NO EMPLOYMENT CONTRACT. The Option will not confer on the Participant any right with respect to continuance of employment or other service with the Company or any Subsidiary, nor will it interfere in any way with any right the Company or any Subsidiary would otherwise have to terminate or modify the terms of such Participant's employment or other service at any time.
12. NOTICES. Any written notices provided for in this Agreement or the Plan shall be in writing and shall be deemed sufficiently given if either hand delivered or if sent by fax or overnight courier, or by postage paid first class mail. Notices sent by mail shall be deemed received three business days after mailed but in no event later than the date of actual receipt. Notices shall be directed, if to the Participant, at the Participant's address indicated by the Company's records, or if to the Company, at the Company's principal executive office.
13. FRACTIONAL SHARES. In lieu of issuing a fraction of a share upon any exercise of the Option, the Company will be entitled to pay to the Participant an amount equal to the fair market value of such fractional share.
14. NO SHAREHOLDER RIGHTS. The Participant shall not have any rights of a shareholder with respect to the shares subject to the Option, until a stock certificate has been duly issued following exercise of the Option as provided herein.
15. AMENDMENT. This Agreement may be amended by written agreement of the Participant and the Company, without the consent of any other person.
16. FORFEITURE. Notwithstanding the foregoing, if, following the Date of Termination, Participant violates any of Participant's post-termination obligations to the Company or any Subsidiary, including, without limitation, any obligation not to compete with the Company or any Subsidiary (regardless of whether such obligation is enforceable under applicable law), not to solicit employees of the Company or any Subsidiary, to maintain the confidentiality on information belonging to the Company or any Subsidiary, or not to disparage the Company or any Subsidiary or any of their affiliates, immediately upon demand by the Company the Participant shall return to the Company the proceeds from this Award to the extent received by the Participant on or after one year prior to Date of Termination.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in its name and on its behalf, all as of the Grant Date.
AGCO CORPORATION
EXHIBIT 1
NOTICE OF EXERCISE OF
STOCK OPTION TO PURCHASE STOCK OF
AGCO CORPORATION
Re: Exercise of Incentive Stock Option
Dear Sir or Madam:
Subject to acceptance hereof in writing by AGCO Corporation (the "Company") pursuant to the provisions of the AGCO Corporation 2006 Long-Term Incentive Plan, I hereby give at least ten days but not more than thirty days prior notice of my election to exercise options granted to me to purchase ______________ shares of Stock of the Company under the Incentive Stock Option Award Agreement (the "Award") pursuant to the AGCO Corporation 2006 Long-Term Incentive Plan dated as of ____________, ______. The purchase shall take place as of ____________, _____ (the "Exercise Date").
On or before the Exercise Date, I will pay the applicable purchase price as follows:
[ ] by delivery of cash or a certified check for $___________ for the full purchase price payable to the order of the Company.
[ ] by delivery of a certified check for $___________ representing a portion of the purchase price with the balance to consist of shares of Stock that I own and that are represented by a stock certificate I will surrender to the Company with my endorsement. If the number of shares of Stock represented by such stock certificate exceeds the number to be applied against the purchase price, I understand that a new stock certificate will be issued to me reflecting the excess number of shares.
[ ] by delivery of a stock certificate representing shares of Stock that I own which I will surrender to the Company with my endorsement as payment of the purchase price. If the number of shares of Stock represented by such certificate exceeds the number to be applied against the purchase price, I understand that a new certificate will be issued to me reflecting the excess number of shares.
[ ] by the Company withholding from the purchased shares a number of shares having an aggregate Fair Market Value on the date of exercise, equal to the aggregate exercise price of all options being exercised.
Or, subject to your receipt of the written approval of the Committee (as defined in the Plan), by _____________, ______ I will pay the purchase price by delivery of cash or a certified check for $__________ representing all or a portion of the purchase price with any remaining balance to consist of Stock that I have owned for at least six months and that are represented by a stock certificate I will surrender to the Company with my endorsement. If the number of shares of Stock represented by such stock certificate exceeds the number to be applied against the purchase price, I understand that a new stock certificate will be issued to me reflecting the excess number of shares.
As soon as the stock certificate is registered in my name, please deliver it to me at the above address.
If the Stock being acquired is not registered for issuance to and resale by the Optionee pursuant to an effective registration statement on Form S-8 (or successor form) filed under the Securities Act of 1933, as amended (the "1933 Act"), I hereby represent, warrant, covenant, and agree with the Company as follows:
The shares of the Stock being acquired by me will be acquired for my own account without the participation of any other person, with the intent of holding the Stock for investment and without the intent of participating, directly or indirectly, in a distribution of the Stock and not with a view to, or for resale in connection with, any distribution of the Stock, nor am I aware of the existence of any distribution of the Stock;
I am not acquiring the Stock based upon any representation, oral or written, by any person with respect to the future value of, or income from, the Stock but rather upon an independent examination and judgment as to the prospects of the Company;
The Stock was not offered to me by means of any publicly disseminated advertisements or sales literature, nor am I aware of any offers made to other persons by such means;
I am able to bear the economic risks of the investment in the Stock, including the risk of a complete loss of my investment therein;
I understand and agree that the Stock will be issued and sold to me without registration under any state law relating to the registration of securities for sale, and will be issued and sold in reliance on the exemptions from registration under the 1933 Act, provided by Sections 3(b) and/or 4(2) thereof and the rules and regulations promulgated thereunder;
The Stock cannot be offered for sale, sold or transferred by me other than pursuant to: (A) an effective registration under the 1933 Act or in a transaction otherwise in compliance with the 1933 Act; and (B) evidence satisfactory to the Company of compliance with the applicable securities laws of other jurisdictions. The Company shall be entitled to rely upon an opinion of counsel satisfactory to it with respect to compliance with the above laws;
Exhibit 1 - 2
The Company will be under no obligation to register the Stock or to comply with any exemption available for sale of the Stock without registration or filing, and the information or conditions necessary to permit routine sales of securities of the Company under Rule 144 under the 1933 Act may not now be available and no assurance has been given that it or they will become available. The Company is under no obligation to act in any manner so as to make Rule 144 available with respect to the Stock;
I have and have had complete access to and the opportunity to review and make copies of all material documents related to the business of the Company, including, but not limited to, contracts, financial statements, tax returns, leases, deeds and other books and records. I have examined such of these documents as I wished and am familiar with the business and affairs of the Company. I realize that the purchase of the Stock is a speculative investment and that any possible profit therefrom is uncertain;
I have had the opportunity to ask questions of and receive answers from the Company and any person acting on its behalf and to obtain all material information reasonably available with respect to the Company and its affairs. I have received all information and data with respect to the Company which I have requested and which I have deemed relevant in connection with the evaluation of the merits and risks of my investment in the Company;
I have such knowledge and experience in financial and business matters that I am capable of evaluating the merits and risks of the purchase of the Stock hereunder and I am able to bear the economic risk of such purchase; and
The agreements, representations, warranties and covenants made by me herein extend to and apply to all of the Stock of the Company issued to me pursuant to this Award. Acceptance by me of the certificate representing such Stock shall constitute a confirmation by me that all such agreements, representations, warranties and covenants made herein shall be true and correct at that time.
I understand that the certificates representing the shares being purchased by me in accordance with this notice shall bear a legend referring to the foregoing covenants, representations and warranties and restrictions on transfer, and I agree that a legend to that effect may be placed on any certificate which may be issued to me as a substitute for the certificates being acquired by me in accordance with this notice.
Very truly yours,
AGREED TO AND ACCEPTED:
AGCO CORPORATION
By:
---------------------------------
Title:
------------------------------
Number of Shares Exercised:
------------
Number of Shares Remaining: Date:
------------ ---------------------------------
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Exhibit 1 - 3
EXHIBIT 2
NOTICE OF WITHHOLDING ELECTION
INCENTIVE STOCK OPTION AWARD
PURSUANT TO THE AGCO CORPORATION
2006 LONG-TERM INCENTIVE PLAN
TO: _____________________________________
FROM: _____________________________________
RE: Withholding Election
This election relates to the Option identified in Paragraph 3 below. I hereby certify that:
(1) My correct name and social security number and my current address are set forth at the end of this document.
(2) I am (check one, whichever is applicable).
[ ] the original recipient of the Option.
[ ] the legal representative of the estate of the original recipient of the Option.
[ ] the legal guardian of the original recipient of the Option.
[ ] an Immediate Family Member other than the original recipient of the Option.
(3) The Option to which this election relates was issued under the AGCO Corporation 2006 Long-Term Incentive Plan (the "Plan") in the name of _________________________ for the purchase of a total of _________ shares of Stock of the Company. This election relates to _______________ shares of Stock issuable upon exercise of the Option, provided that the numbers set forth above shall be deemed changed as appropriate to reflect the applicable Plan provisions.
(4) In connection with any exercise of the Option with respect to the Stock, I hereby elect one or more of the following:
[ ] to pay cash or certified check in the amount of $_______ to be applied to pay federal, state, and local, if any, taxes arising from the exercise.
[ ] to pay the full federal, state, and local, if any, taxes arising from the exercise in cash or certified check.
[ ] to have certain of the shares issuable pursuant to the exercise withheld by the Company for the purpose of having the value of the shares applied to pay federal, state, and local, if any, taxes arising from the exercise.
[ ] to tender shares held by me prior to the exercise of the Option for the purpose of having the value of the shares applied to pay such taxes.
The shares to be withheld or tendered, as applicable, shall have, as of the Tax Date applicable to the exercise, a Fair Market Value equal to the minimum statutory tax withholding requirement under federal, state, and local law in connection with the exercise.
(5) This Withholding Election is made no later than the Tax Date and is otherwise timely made pursuant to the Plan.
(6) I understand that this Withholding Election may not be revised, amended or revoked by me.
(7) The Plan has been made available to me by the Company. I have read and understand the Plan and I have no reason to believe that any of the conditions to the making of this Withholding Election have not been met.
(8) Capitalized terms used in this Notice of Withholding Election without definition shall have the meanings given to them in the Plan.
Dated:
----------------------------- ----------------------------------------
Signature
------------------------------------ ----------------------------------------
Social Security Number Name (Printed)
----------------------------------------
Street Address
----------------------------------------
City, State, Zip Code
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Exhibit 1 - 2
EXHIBIT 10.4
AGCO CORPORATION
2006 LONG-TERM INCENTIVE PLAN
STOCK APPRECIATION RIGHTS AGREEMENT
THIS AGREEMENT, entered into as of the Grant Date (as defined in Section
1), by and between the Participant and AGCO Corporation (the "Company");
WHEREAS, the Company maintains the AGCO Corporation 2006 Long-Term Incentive Plan (the "Plan"), which is incorporated into and forms a part of this Agreement, and the Participant has been selected by the committee administering the Plan (the "Committee") to receive a stock appreciation right ("SAR") Award under the Plan;
NOW, THEREFORE, IT IS AGREED, by and between the Company and the Participant, as follows:
1. TERMS OF AWARD AND DEFINITIONS. The following terms used in this Agreement shall have the meanings set forth in this Section 1:
(a) DATE OF TERMINATION. The Participant's "Date of Termination" shall be the first day occurring on or after the Grant Date on which the Participant is neither employed by the Company or any Subsidiary, a director of the Company or any Subsidiary, an independent contractor performing services for the Company or any Subsidiary nor providing services as a consultant to the Company or any Subsidiary; provided that a termination shall not be considered to have occurred while the Participant is on an approved leave of absence from the Company or a Subsidiary. If, as a result of a sale or other transaction, a Participant who is an employee ceases to be an employee of the Company or any Subsidiary (and the Participant's employer is or becomes an entity that is separate from the Company or any Subsidiary), the occurrence of such transaction shall be treated as the Participant's Date of Termination caused by the Participant being discharged by the employer.
(b) DESIGNATED BENEFICIARY. The "Designated Beneficiary" shall be the beneficiary or beneficiaries designated by the Participant in a writing filed with the Committee in such form and at such time as the Committee shall require.
(c) DISABILITY. Except as otherwise provided by the Committee, the Participant shall be considered to have a "Disability" if he is eligible for disability payments under the Company's long-term disability plan.
(d) EXERCISE PRICE. The "Exercise Price" is $____________ per SAR.
(e) GOOD CAUSE. With respect to any dismissal of the Participant from his or her employment with the Company or any Subsidiary, shall mean (i) if the Participant is a party to an employment agreement with the Company or any Subsidiary that defines "cause," "good cause" or a similar term, "Good Cause" shall mean such term as so defined, and (ii) otherwise (A) the conviction of the Participant of, or the entry of a plea of guilty, first offender probation before judgment, or nolo contendere by the Participant to, any felony; (B) fraud, misappropriation or embezzlement by the Participant; (C) the Participant's willful failure or gross negligence in the performance of his assigned duties for the Company or any Subsidiary; (D) the Participant's failure to follow reasonable and lawful directives of his supervisor or his breach of his fiduciary duty to the Company or any Subsidiary; (E) any act or omission of the Participant that has a demonstrated and material adverse impact on the Company's or any Subsidiary's business or reputation for honesty and fair dealing, other than an act or failure to act by the Participant in good faith and without reason to believe that such act or failure to act would adversely impact on the Company's or any Subsidiary's business or reputation for honesty and fair dealing; or (F) the breach by the Participant of any confidentiality or non-competition agreement in favor of the Company or any Subsidiary.
(f) GRANT DATE. The "Grant Date" is ____________________________.
(g) IMMEDIATE FAMILY. "Immediate Family" shall mean the Participant's spouse, parents, children, stepchildren, adoptive relationships, sisters, brothers and grandchildren and, for this purpose, shall also include the Participant.
(h) PARTICIPANT. The "Participant" is __________________________.
(i) SARS. The number of "SARs" shall be _______________. The award of SARs does not entitle the Participant to any rights as a shareholder of the Company with respect to the SARs, including accounting of the payment of dividends on the Company's Stock during the period prior to the exercise of the SARs.
(j) RETIREMENT. "Retirement" of the Participant shall mean the occurrence of the Participant's Date of Termination on or after the date the Participant attains age 65 or such earlier date as may be approved by the Committee in its sole discretion.
Except where the context clearly implies or indicates the contrary, a word, term, or phrase used in the Plan is similarly used in this Agreement.
2. AWARD AND EXERCISE PRICE. This Agreement specifies the terms of the SARs
granted to the Participant and the Exercise Price per SAR as set forth in
Section 1.
3. DATE OF EXERCISE.
(a) Subject to the limitations of this Agreement, the SARs shall be exercisable according to the following schedule, with respect to each installment shown in the
schedule on and after the Vesting Date applicable to such installment (each an "Installment"):
(b)
VESTING DATE APPLICABLE TO
INSTALLMENT INSTALLMENT
----------- --------------------------
[FIRST YEAR ANNIVERSARY OF THE GRANT DATE]
[SECOND YEAR ANNIVERSARY OF THE GRANT DATE]
[THIRD YEAR ANNIVERSARY OF THE GRANT DATE]
[FOURTH YEAR ANNIVERSARY OF THE GRANT DATE]
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(c) An Installment shall not become exercisable on the otherwise applicable Vesting Date if the Participant's Date of Termination (as defined in Section 8) occur on or before such Vesting Date. Notwithstanding the foregoing provisions of this Section 3, the SARs shall become exercisable (to the extent not then otherwise exercisable) as follows:
(i) The SARs shall become fully exercisable upon the Participant's Date of Termination, if the Participant's Date of Termination occurs by reason of the Participant's death or Disability.
(ii) The SARs shall become fully exercisable upon a Change in Control, if the Participant's Date of Termination does not occur on or before the Change in Control.
(d) Otherwise, the SARs may be exercised on or after the Date of Termination only as to that portion of the Covered Shares as to which they were exercisable immediately prior to the Date of Termination, or as to which they became exercisable on the Date of Termination in accordance with this Section 3.
4. EXPIRATION. The SARs shall not be exercisable after the Company's close of business on the last business day that occurs prior to the Expiration Date. The "Expiration Date" shall be earliest to occur of:
(a) The seven-year anniversary of the Grant Date;
(b) If the Participant's Date of Termination occurs by reason of death, Disability or Retirement, the one-year anniversary of such Date of Termination;
(c) If the Participant's Date of Termination occurs for reasons other than death, Disability, Retirement, or Good Cause the 90-day anniversary of such Date of Termination; or
(d) The date the Participant is dismissed from the Company for Good Cause.
5. EXERCISE OF SARS. At any time at which the Participant may exercise the SARs in accordance with the provisions of this Agreement, such SARs may be exercised by filing a
written notice with the Secretary of the Company at its corporate headquarters. The right to exercise one or more SARs shall expire in accordance with the provisions of this Agreement. Upon the exercise of a SAR, the Participant shall receive an amount from the Company which is equal to the excess of the Fair Market Value of a share of Stock on the date of exercise over the Exercise Price of one share of Stock. Such amount shall be paid to the Participant, in shares of Stock (based on the Fair Market Value of such shares on the date of exercise).
6. WITHHOLDING. To the extent necessary, the Participant must satisfy his federal, state, and local, if any, withholding taxes imposed by reason of the exercise of the SAR either by paying to the Company the full amount of the withholding obligation (i) in cash; (ii) by tendering shares of Stock which are owned by the Participant prior to the date of exercise having a Fair Market Value equal to the withholding obligation (a "Withholding Election"); (iii) by electing, irrevocably and in writing (also a "Withholding Election"), to have the smallest number of whole shares of Stock withheld by the Company which, when multiplied by the Fair Market Value of the Stock as of the date the SAR is exercised, is sufficient to satisfy the amount of withholding tax; or (iv) by any combination of the above. Participant may make a Withholding Election only if the following conditions are met:
(a) The Withholding Election is made on or prior to the date on which the amount of tax required to be withheld is determined (the "Tax Date") by executing and delivering to the Company a properly completed Notice of Withholding Election in substantially the form attached hereto as Exhibit 1; and
(b) Any Withholding Election will be irrevocable; however, the Committee may, in its sole discretion, disapprove and give no effect to the Withholding Election.
7. TRANSFERABILITY.
(a) Except as otherwise provided in this Section 7, the SARs are not transferable other than as designated by the Participant by will or by the laws of descent and distribution, and during the Participant's life, may be exercised only by the Participant.
(b) Notwithstanding the foregoing, the Participant, with the approval of the Committee, may transfer the SARs for no consideration to or for the benefit of the Participant's Immediate Family (including, without limitation, to a trust for the benefit of the Participant's Immediate Family, subject to such limits as the Committee may establish, and the transferee shall remain subject to all the terms and conditions applicable to the SARs prior to such transfer.
(c) The foregoing right to transfer the SARs shall apply to the right to consent to amendments to this Agreement and, in the discretion of the Committee, shall also apply to the right to transfer ancillary rights associated with the SARs.
8. HEIRS AND SUCCESSORS.
(a) This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring, whether by merger, consolidation, purchase of assets or otherwise, all or substantially all of the Company's assets and business.
(b) If any rights exercisable by the Participant or benefits deliverable to the Participant under this Agreement have not been exercised or delivered, respectively, at the time of the Participant's death, such rights shall be exercisable by the Designated Beneficiary, and such benefits shall be delivered to the Designated Beneficiary, in accordance with the provisions of this Agreement and the Plan.
(c) If a deceased Participant has failed to designate a beneficiary, or if the Designated Beneficiary does not survive the Participant, any rights that would have been exercisable by the Participant and any benefits distributable to the Participant shall be exercised by or distributed to the legal representative of the estate of the Participant.
(d) If a deceased Participant has designated a beneficiary but the Designated Beneficiary dies before the Designated Beneficiary's exercise of all rights under this Agreement or before the complete distribution of benefits to the Designated Beneficiary under this Agreement, then any rights that would have been exercisable by the Designated Beneficiary shall be exercised by the legal representative of the estate of the Designated Beneficiary, and any benefits distributable to the Designated Beneficiary shall be distributed to the legal representative of the estate of the Designated Beneficiary.
9. ADMINISTRATION. The authority to manage and control the operation and administration of this Agreement shall be vested in the Committee, and the Committee shall have all powers with respect to this Agreement as it has with respect to the Plan. Any interpretation of the Agreement by the Committee and any decision made by it with respect to the Agreement is final and binding on all persons.
10. PLAN GOVERNS. Notwithstanding anything in this Agreement to the contrary, the terms of this Agreement shall be subject to the terms of the Plan, a copy of which may be obtained by the Participant from the office of the Secretary of the Company; and this Agreement is subject to all interpretations, amendments, rules and regulations promulgated by the Committee from time to time pursuant to the Plan.
11. NOT AN EMPLOYMENT CONTRACT. The SAR will not confer on the Participant any right with respect to continuance of employment or other service with the Company or any Subsidiary, nor will it interfere in any way with any right the Company or any Subsidiary would otherwise have to terminate or modify the terms of such Participant's employment or other service at any time.
12. NOTICES. Any written notices provided for in this Agreement or the Plan shall be in writing and shall be deemed sufficiently given if either hand delivered or if sent by fax or overnight courier, or by postage paid first class mail. Notices sent by mail shall be deemed
received three business days after mailed but in no event later than the date of actual receipt. Notices shall be directed, if to the Participant, at the Participant's address indicated by the Company's records, or if to the Company, at the Company's principal executive office.
13. FRACTIONAL SHARES. In lieu of issuing a fraction of a share upon any exercise of the SARs, the Company will be entitled to pay to the Participant an amount equal to the fair market value of such fractional share.
14. NO RIGHTS AS SHAREHOLDER. The Participant shall not have any rights of a shareholder with respect to the shares subject to the SAR, until a stock certificate has been duly issued following exercise of the SAR as provided herein.
15. AMENDMENT. This Agreement may be amended by written Agreement of the Participant and the Company, without the consent of any other person.
16. FORFEITURE. Notwithstanding the foregoing, if, following the Date of Termination, Participant violates any of Participant's post-termination obligations to the Company or any Subsidiary, including, without limitation, any obligation not to compete with the Company or any Subsidiary (regardless of whether such obligation is enforceable under applicable law), not to solicit employees of the Company or any Subsidiary, to maintain the confidentiality on information belonging to the Company or any Subsidiary, or not to disparage the Company or any Subsidiary or any of their affiliates, immediately upon demand by the Company the Participant shall return to the Company the proceeds from this Award to the extent received by the Participant on or after one year prior to Date of Termination.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in its name and on its behalf as of the Grant Date.
AGCO CORPORATION
EXHIBIT 1
NOTICE OF WITHHOLDING ELECTION
STOCK APPRECIATION RIGHTS AGREEMENT
PURSUANT TO THE AGCO CORPORATION
2006 LONG-TERM INCENTIVE PLAN
TO: __________________________________
FROM: __________________________________
RE: Withholding Election
This election relates to the SAR identified in Paragraph 3 below. I hereby certify that:
(1) My correct name and social security number and my current address are set forth at the end of this document.
(2) I am (check one, whichever is applicable).
[ ] the original recipient of the SAR.
[ ] the legal representative of the estate of the original recipient of the SAR.
[ ] the legal guardian of the original recipient of the SAR.
[ ] an Immediate Family Member other than the original recipient of the
SAR.
(3) The SAR to which this election relates was issued under the AGCO Corporation 2006 Long-Term Incentive Plan (the "Plan") in the name of ____________________________ for the value appreciation of a total of ____________ shares of Stock of the Company. This election relates to ________________ shares of Stock, the appreciation of which is payable upon exercise of the SAR, provided that the numbers set forth above shall be deemed changed as appropriate to reflect the applicable Plan provisions.
(4) In connection with any exercise of the SAR with respect to the Stock, I hereby elect one or more of the following:
[ ] to pay cash or certified check in the amount of $_______ to be applied to pay federal, state, and local, if any, taxes arising from the exercise.
[ ] to pay the full federal, state, and local, if any, taxes arising from the exercise in cash or certified check.
[ ] to have certain of the shares issuable pursuant to the exercise withheld by the Company for the purpose of having the value of the shares applied to pay federal, state, and local, if any, taxes arising from the exercise.
[ ] to tender shares held by me prior to the exercise of the SAR for the purpose of having the value of the shares applied to pay such taxes.
The shares to be withheld or tendered, as applicable, shall have, as of the Tax Date applicable to the exercise, a Fair Market Value equal to the minimum statutory tax withholding requirement under federal, state, and local law in connection with the exercise.
(5) This Withholding Election is made no later than the Tax Date and is otherwise timely made pursuant to the Plan.
(6) I understand that this Withholding Election may not be revised, amended or revoked by me.
(7) The Plan has been made available to me by the Company. I have read and understand the Plan and I have no reason to believe that any of the conditions to the making of this Withholding Election have not been met.
(8) Capitalized terms used in this Notice of Withholding Election without definition shall have the meanings given to them in the Plan.
Dated:
------------------------------ ----------------------------------------
Signature
------------------------------------- ----------------------------------------
Social Security Number Name (Printed)
----------------------------------------
Street Address
----------------------------------------
City, State, Zip Code
|
EXHIBIT 10.5
AGCO CORPORATION
2006 LONG-TERM STOCK INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, entered into as of the Grant Date (as defined in Section
1), by and between the Participant and AGCO Corporation (the "Company");
WHEREAS, the Company maintains the AGCO Corporation 2006 Long-Term Incentive Plan (the "Plan"), which is incorporated into and forms a part of this Agreement, and the Participant has been granted a Restricted Stock Award under the Plan by the Committee as part of the Participant's compensation for service as a member of the Board of the Company;
NOW, THEREFORE, IT IS AGREED, by and between the Company and the Participant, as follows:
1. TERMS OF AWARD AND DEFINITIONS. The following terms used in this Agreement shall have the meanings set forth in this Section 1:
(a) DESIGNATED BENEFICIARY. The "Designated Beneficiary" shall be the beneficiary or beneficiaries designated by the Participant in a writing filed with the Committee in such form and at such time as the Committee shall require.
(b) GRANT DATE. The "Grant Date" is ___________ ____, 20___.
(c) PARTICIPANT. The "Participant" is _________________________.
(d) RESTRICTED PERIOD. The "Restricted Period" is the period beginning on the Grant Date and ending at 4:00 p.m. EST on third anniversary of the Grant Date..
(e) RESTRICTED STOCK. The number of shares of "Restricted Stock" awarded under this Agreement shall be _______________ shares, which is the number of whole shares which, as of the Grant Date, have a value equivalent to $___________. Shares of "Restricted Stock" are shares of Stock granted under this Agreement and are subject to the terms of this Agreement and the Plan.
Except where the context clearly implies or indicates the contrary, a word, term, or phrase used in the Plan is similarly used in this Agreement.
2. AWARD. The Participant is hereby granted the number of shares of Restricted Stock set forth in Section 1.
3. DIVIDENDS AND VOTING RIGHTS. The Participant shall be entitled to receive any dividends paid with respect to shares of Restricted Stock that become payable during the Restricted Period; provided, however, that no dividends shall be payable to or for the benefit of the Participant with respect to record dates occurring prior to the Grant Date. The Participant shall be entitled to vote the shares of Restricted Stock during the Restricted Period; provided, however, that the Participant shall not be entitled to vote the shares with respect to record dates for such voting rights arising prior to the Grant Date.
4. TRANSFER OF SHARES.
(a) At the end of the Restricted Period, the Participant shall own the shares subject hereto free of all restrictions otherwise imposed by this Agreement.
(b) Otherwise, shares of Restricted Stock may not be sold, assigned, transferred, pledged or otherwise encumbered until the expiration of the Restricted Period or, if earlier, upon a Change in Control.
5. HEIRS AND SUCCESSORS.
(a) This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring, whether by merger, consolidation, purchase of assets or otherwise, all or substantially all of the Company's assets and business.
(b) If any rights exercisable by the Participant or benefits deliverable to the Participant under this Agreement have not been exercised or delivered, respectively, at the time of the Participant's death, such rights shall be exercisable by the Designated Beneficiary, and such benefits shall be delivered to the Designated Beneficiary, in accordance with the provisions of this Agreement and the Plan.
(c) If a deceased Participant has failed to designate a beneficiary, or if the Designated Beneficiary does not survive the Participant, any rights that would have been exercisable by the Participant and any benefits distributable to the Participant shall be exercised by or distributed to the legal representative of the estate of the Participant.
(d) If a deceased Participant has designated a beneficiary but the Designated Beneficiary dies before the Designated Beneficiary's exercise of all rights under this Agreement or before the complete distribution of benefits to the Designated Beneficiary under this Agreement, then any rights that would have been exercisable by the Designated Beneficiary shall be exercised by the legal representative of the estate of the Designated Beneficiary, and any benefits distributable to the Designated Beneficiary shall be distributed to the legal representative of the estate of the Designated Beneficiary.
6. ADMINISTRATION. The authority to manage and control the operation and administration of this Agreement shall be vested in the Committee, and the Committee shall have all powers with respect to this Agreement as it has with respect to the Plan. Any interpretation of the Agreement by the Committee and any decision made by it with respect to the Agreement is final and binding on all persons.
7. PLAN GOVERNS. Notwithstanding anything in this Agreement to the contrary, the terms of this Agreement shall be subject to the terms of the Plan, a copy of which may be obtained by the Participant from the office of the Secretary of the Company; and this Agreement is subject to all interpretations, amendments, rules and regulations promulgated by the Committee from time to time pursuant to the Plan.
8. AMENDMENT. This Agreement may be amended by written Agreement of the Participant and the Company, without the consent of any other person.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in its name and on its behalf as of the Grant Date.
AGCO CORPORATION
EXHIBIT 10.6
AGCO CORPORATION
2006 LONG-TERM STOCK INCENTIVE PLAN
PERFORMANCE SHARE AGREEMENT
THIS AGREEMENT, entered into as of the Grant Date (as defined in Section
1), by and between the Participant and AGCO Corporation (the "Company");
WHEREAS, the Company maintains the AGCO Corporation 2006 Long-Term Incentive Plan (the "Plan"), which is incorporated into and forms a part of this Agreement, and the Participant has been selected by the committee administering the Plan (the "Committee") to receive a Performance Share Award under the Plan;
NOW, THEREFORE, IT IS AGREED, by and between the Company and the Participant, as follows:
1. TERMS OF AWARD AND DEFINITIONS. The following terms used in this Agreement shall have the meanings set forth in this Section 1:
(a) DATE OF TERMINATION. The Participant's "Date of Termination" shall be the first day occurring on or after the Grant Date on which the Participant is neither employed by the Company or any Subsidiary, a director of the Company or any Subsidiary, an independent contractor performing services for the Company or any Subsidiary nor providing services as a consultant to the Company or any Subsidiary; provided that a termination shall not be considered to have occurred while the Participant is on an approved leave of absence from the Company or a Subsidiary. If, as a result of a sale or other transaction, a Participant who is an employee ceases to be an employee of the Company or any Subsidiary (and the Participant's employer is or becomes an entity that is separate from the Company or any Subsidiary), the occurrence of such transaction shall be treated as the Participant's Date of Termination caused by the Participant being discharged by the employer.
(b) DESIGNATED BENEFICIARY. The "Designated Beneficiary" shall be the beneficiary or beneficiaries designated by the Participant in a writing filed with the Committee in such form and at such time as the Committee shall require.
(c) DISABILITY. Except as otherwise provided by the Committee, the Participant shall be considered to have a "Disability" if he is eligible for disability payments under the Company's long-term disability plan.
(d) GRANT DATE. The "Grant Date" is _______________________.
(e) PARTICIPANT. The "Participant" is ____________________________.
(f) PERFORMANCE PERIOD. The "Performance Period" is the period beginning on ______________________ and ending on _________________________.
(g) PERFORMANCE SHARES. The number of "Performance Shares" shall be _____________ shares. Performance Shares granted under this Agreement are units that will be reflected in a book account maintained by the Company during the Performance Period, and that will be settled in shares of Stock to the extent provided in this Agreement and the Plan. The award of Performance Shares does not entitle the Participant to any rights as a shareholder of the Company with respect to the Performance Shares, including accounting of the payment of dividends on the Company's Stock during the Performance Period.
(h) RETIREMENT. "Retirement" of the Participant shall mean the occurrence of the Participant's Date of Termination on or after the date the Participant attains age 65 or such earlier date as approved by the Committee in its sole discretion,
Except where the context clearly implies or indicates the contrary, a word, term, or phrase used in the Plan is similarly used in this Agreement.
2. AWARD. Subject to the terms of this Agreement and the Plan, the
Participant is hereby granted the number of Performance Shares as set forth in
Section 1.
3. SETTLEMENT OF AWARDS.
(a) The Company shall deliver to the Participant one share of Stock for each Performance Share earned by the Participant, as determined in accordance with the provisions of Exhibit 1, which is attached to and forms a part of this Agreement.
(b) The earned Performance Shares payable to the Participant in accordance with the provisions of this Section 3 shall be paid solely in shares of Stock, except that cash shall be distributed in lieu of any fractional share of Stock.
4. TIME OF PAYMENT. Except as otherwise provided in this Agreement, payment of Performance Shares earned in accordance with the provisions of Section 3 will be delivered as soon as practicable after the end of the Performance Period; provided, however, that such payment shall occur within two and a half months after the later of (i) the last day of the Participant's taxable year during which the end of the Performance Period occurs or (ii) the last day of the Company's taxable year during which the end of the Performance Period occurs.
5. RETIREMENT, DISABILITY, OR DEATH DURING PERFORMANCE PERIOD. If the Participant's employment with the Company and Subsidiaries terminates during the Performance Period because of the Participant's Retirement, Disability, or death, the Participant shall be entitled to a prorated value of the Performance Shares earned in accordance with Exhibit 1, determined at the end of the Performance Period, and based on the ratio of the number of months the Participant is employed during the Performance Period to the total number of months in the Performance Period.
6. TERMINATION OF EMPLOYMENT DURING PERFORMANCE PERIOD. If the Participant's employment with the Company and the Subsidiaries terminates during the Performance Period for any reason other than the Participant's Retirement, Disability, or death, the Performance Shares granted under this Agreement will be forfeited on the date of such termination of employment; provided, however, that in such circumstances, the Committee, in its discretion, may determine that the Participant will be entitled to receive a pro rata or other portion of the Performance Shares in accordance with Exhibit 1 determined at the end of the Performance Period.
7. CHANGE IN CONTROL. If a Change in Control occurs during the Performance
Period, and the Participant's Date of Termination (as defined below) does not
occur before the Change in Control date, the Participant shall earn the
Performance Shares under any then uncompleted Performance Period at the greater
of (a) 100% of the Target level described in Exhibit 1 of that Performance
Period or (b) the level of performance dictated by the trend of the Company's
actual performance to date (based upon pro rating the completed fiscal years
within the Performance Period, and zero until there is a completed fiscal year)
versus the Performance Measures in Exhibit 1 of that Performance Period.
Notwithstanding the provisions of Section 3, the value of Performance Shares
earned in accordance with the foregoing provisions of this Section 7 shall be
delivered to the Participant in a lump sum cash payment as soon as practicable
after the occurrence of a Change in Control, with the value of a Performance
Share equal to the Fair Market Value of a share of Stock determined under the
provisions of Section 3 as of the date of the Change in Control. Distributions
to the Participant under Section 3 shall not be affected by payments under this
Section 7, except that before payments are made under Section 3, and after all
computations required under Section 3 have been made, the number of Performance
Shares earned by the Participant shall be reduced by the number of Performance
Shares with respect to which payment was made to the Participant under this
Section 7. The Participant shall not be required to repay any amounts to the
Company on account of any distribution made under this Section 7 for any reason,
including failure to achieve the Performance Measures.
8. HEIRS AND SUCCESSORS.
(a) This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring, whether by merger, consolidation, purchase of assets or otherwise, all or substantially all of the Company's assets and business.
(b) If any rights exercisable by the Participant or benefits deliverable to the Participant under this Agreement have not been exercised or delivered, respectively, at the time of the Participant's death, such rights shall be exercisable by the Designated Beneficiary, and such benefits shall be delivered to the Designated Beneficiary, in accordance with the provisions of this Agreement and the Plan.
(c) If a deceased Participant has failed to designate a beneficiary, or if the Designated Beneficiary does not survive the Participant, any rights that would have been exercisable by the Participant and any benefits distributable to the Participant shall be exercised by or distributed to the legal representative of the estate of the Participant.
(d) If a deceased Participant has designated a beneficiary but the Designated Beneficiary dies before the Designated Beneficiary's exercise of all rights under this Agreement but before the complete distribution of benefits to the Designated Beneficiary under this Agreement, then any rights that would have been exercisable by the Designated Beneficiary shall be exercised by the legal representative of the estate of the Designated Beneficiary, and any benefits distributable to the Designated Beneficiary shall be distributed to the legal representative of the estate of the Designated Beneficiary.
9. FORFEITURE. Notwithstanding the foregoing, if, following the Date of Termination, Participant violates any of Participant's post-termination obligations to the Company or any Subsidiary, including, without limitation, any obligation not to compete with the Company or any Subsidiary (regardless of whether such obligation is enforceable under applicable law), not to solicit employees of the Company or any Subsidiary, to maintain the confidentiality on information belonging to the Company or any Subsidiary, or not to disparage the Company or any Subsidiary or any of their affiliates, immediately upon demand by the Company the Participant shall return to the Company the proceeds from this Award to the extent received by the Participant on or after one year prior to Date of Termination.
10. ADMINISTRATION. The authority to manage and control the operation and administration of this Agreement shall be vested in the Committee, and the Committee shall have all powers with respect to this Agreement as it has with respect to the Plan. Any interpretation of the Agreement by the Committee and any decision made by it with respect to the Agreement is final and binding on all persons.
11. PLAN GOVERNS. Notwithstanding anything in this Agreement to the contrary, the terms of this Agreement shall be subject to the terms of the Plan, a copy of which may be obtained by the Participant from the office of the Secretary of the Company; and this Agreement is subject to all interpretations, amendments, rules and regulations promulgated by the Committee from time to time pursuant to the Plan
12. AMENDMENT. This Agreement may be amended by written Agreement of the Participant and the Company, without the consent of any other person.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in its name and on its behalf as of the Grant Date.
AGCO CORPORATION
EXHIBIT 1
AGCO CORPORATION
2006 LONG-TERM INCENTIVE PLAN
PERFORMANCE SHARE AGREEMENT
FOR: _________________________
PERFORMANCE MEASURES
I. PURPOSE. The purpose of this Exhibit 1 is to set forth the Performance Measures that will be applied to determine the amount of the award to be made under the terms of the attached Performance Share Agreement (the "Agreement"). This Exhibit 1 is incorporated into and forms a part of the Agreement.
II. REVISION OF PERFORMANCE MEASURES. The Performance Measures set forth in this Exhibit 1 may be modified by the Committee during, and after the end of, the Performance Period to reflect significant events that occur during the Performance Period.
III. PERFORMANCE GOALS. The Performance Goals shall be as follows:
[INSERT PERFORMANCE GOALS]
IV. AMOUNT OF AWARD. The amount distributable to the Participant under the Agreement shall be determined in accordance with the following schedule:
[INSERT SCHEDULE]
| 1. | I have reviewed this Quarterly Report on Form 10-Q of AGCO Corporation; | ||
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | ||
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | ||
| 4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| (a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
| (b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
| (c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by this report based on such evaluation; and | ||
| (d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions): |
| (a) | All significant deficiencies in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and | ||
| b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
| Date: May 10, 2006 | /s/ Martin Richenhagen | |||
| Martin Richenhagen | ||||
|
President and Chief Executive
Officer |
||||
32
| 1. | I have reviewed this Quarterly Report on Form 10-Q of AGCO Corporation; | ||
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | ||
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | ||
| 4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| (a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
| (b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
| (c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by this report based on such evaluations; and | ||
| (d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions): |
| (a) | All significant deficiencies in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and | ||
| b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
| Date: May 10, 2006 | /s/ Andrew H. Beck | |||
| Andrew H. Beck | ||||
| Senior Vice President and Chief Financial Officer | ||||
33
| /s/ Martin Richenhagen | ||
|
Martin Richenhagen
President and Chief Executive Officer |
||
| /s/ Andrew H. Beck | ||
|
Andrew H. Beck
Senior Vice President and Chief Financial Officer |