<PAGE> 1
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
FORM 10-Q
/x/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1996
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
------------------ --------------------
Commission file number 0-19898
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AGCO CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 58-1960019
(State of incorporation) (I.R.S. Employer Identification No.)
4830 River Green Parkway
Duluth, Georgia 30136
(Address of principal executive
offices including zip code)
Registrant's telephone number, including area code: (770) 813-9200
------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES X NO
--- ---
Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of the latest practicable date.
Common stock par value $.01 per share: 51,894,622 shares outstanding as
of March 31, 1996.
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<PAGE> 2
AGCO CORPORATION AND SUBSIDIARIES
INDEX
<TABLE>
<CAPTION>
Page
Numbers
-------
<S> <C>
PART I. FINANCIAL INFORMATION:
Item 1. Financial Statements
Condensed Consolidated Balance
Sheets - March 31, 1996 and December 31, 1995 . . . . 3
Condensed Consolidated Statements
of Income for the Three Months
Ended March 31, 1996 and 1995 . . . . . . . . . . . . 4
Condensed Consolidated Statements
of Cash Flows for the Three Months
Ended March 31, 1996 and 1995 . . . . . . . . . . . . 5
Notes to Condensed Consolidated
Financial Statements. . . . . . . . . . . . . . . . . 6
Item 2. Management's Discussion and Analysis
of Financial Condition and Results
of Operations . . . . . . . . . . . . . . . . . . . 10
PART II. OTHER INFORMATION:
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . . 16
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
2
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
AGCO CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
CONSOLIDATED EQUIPMENT OPERATIONS
------------------------- -------------------------
MARCH 31, DECEMBER 31, MARCH 31, DECEMBER 31,
1996 1995 1996 1995
---------- ---------- ---------- ----------
(Unaudited) (Unaudited)
<S> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents . . . . . . . . . . . . . . . . . . . . $ 27,207 $ 27,858 $ 24,595 $ 20,023
Accounts and notes receivable, net of allowances . . . . . . . . 753,653 785,801 753,653 785,801
Receivables from unconsolidated subsidiary and affiliates . . . . 6,041 4,029 9,690 4,029
Credit receivables, net . . . . . . . . . . . . . . . . . . . . . 197,790 185,401 - -
Inventories, net . . . . . . . . . . . . . . . . . . . . . . . . 429,704 360,969 429,704 360,969
Other current assets . . . . . . . . . . . . . . . . . . . . . . 57,625 60,442 54,266 56,950
---------- ---------- ---------- ----------
Total current assets . . . . . . . . . . . . . . . . . . . . . 1,472,020 1,424,500 1,271,908 1,227,772
Noncurrent credit receivables, net . . . . . . . . . . . . . . . . . 390,549 397,177 - -
Property, plant and equipment, net . . . . . . . . . . . . . . . . . 143,696 146,521 143,348 146,172
Investments in unconsolidated
subsidiary and affiliates . . . . . . . . . . . . . . . . . . . . 45,975 45,963 108,598 105,913
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49,822 44,510 49,822 44,510
Intangible assets, net . . . . . . . . . . . . . . . . . . . . . . . 104,158 104,244 104,158 104,244
---------- ---------- ---------- ----------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . $2,206,220 $2,162,915 $1,677,834 $1,628,611
========== ========== ========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Current portion of long-term debt . . . . . . . . . . . . . . . . $365,193 $361,376 $ - $ -
Accounts payable. . . . . . . . . . . . . . . . . . . . . . . . . 277,749 325,701 273,708 319,711
Payables to unconsolidated subsidiary and affiliates . . . . . . 26,561 4,837 26,561 9,523
Accrued expenses . . . . . . . . . . . . . . . . . . . . . . . . 218,353 233,848 208,231 223,839
Other current liabilities . . . . . . . . . . . . . . . . . . . . 12,153 13,217 12,153 13,217
---------- ---------- ---------- ----------
Total current liabilities . . . . . . . . . . . . . . . . . . 900,009 938,979 520,653 566,290
---------- ---------- ---------- ----------
Long-term debt . . . . . . . . . . . . . . . . . . . . . . . . . . . 602,533 531,336 462,533 378,336
Convertible subordinated debentures . . . . . . . . . . . . . . . . 29,926 37,558 29,926 37,558
Postretirement health care benefits. . . . . . . . . . . . . . . . . 23,799 23,561 23,799 23,561
Other noncurrent liabilities . . . . . . . . . . . . . . . . . . . . 39,296 42,553 30,266 33,938
---------- ---------- ---------- ----------
Total liabilities . . . . . . . . . . . . . . . . . . . . . . 1,595,563 1,573,987 1,067,177 1,039,683
Stockholders' Equity:
Common stock; $0.01 par value, 150,000,000 shares
authorized, 51,894,622 and 50,557,040 shares issued and
outstanding at March 31, 1996 and December 31, 1995,
respectively. . . . . . . . . . . . . . . . . . . . . . . . . . . 519 506 519 506
Additional paid-in capital . . . . . . . . . . . . . . . . . . . 315,264 307,189 315,264 307,189
Retained earnings . . . . . . . . . . . . . . . . . . . . . . . . 304,292 287,706 304,292 287,706
Unearned compensation . . . . . . . . . . . . . . . . . . . . . (19,418) (22,587) (19,418) (22,587)
Additional minimum pension liability. . . . . . . . . . . . . . . (2,619) (2,619) (2,619) (2,619)
Cumulative translation adjustment . . . . . . . . . . . . . . . . 12,619 18,733 12,619 18,733
---------- ---------- ---------- ----------
Total stockholders' equity . . . . . . . . . . . . . . . . . . 610,657 588,928 610,657 588,928
---------- ---------- ---------- ----------
Total liabilities and stockholders' equity . . . . . . . . . . $2,206,220 $2,162,915 $1,677,834 $1,628,611
========== ========== ========== ==========
<CAPTION>
FINANCE COMPANY
-------------------------
MARCH 31, DECEMBER 31,
1996 1995
----------- -----------
(Unaudited)
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents . . . . . . . . . . . . . . . . . . . . $ 2,612 $ 7,835
Accounts and notes receivable, net of allowances . . . . . . . . - -
Receivables from unconsolidated subsidiary and affiliates . . . . - 4,686
Credit receivables, net . . . . . . . . . . . . . . . . . . . . . 197,790 185,401
Inventories, net . . . . . . . . . . . . . . . . . . . . . . . . - -
Other current assets . . . . . . . . . . . . . . . . . . . . . . 3,359 3,492
---------- ----------
Total current assets . . . . . . . . . . . . . . . . . . . . . 203,761 201,414
Noncurrent credit receivables, net . . . . . . . . . . . . . . . . . 390,549 397,177
Property, plant and equipment, net . . . . . . . . . . . . . . . . . 348 349
Investments in unconsolidated
subsidiary and affiliates . . . . . . . . . . . . . . . . . . . . - -
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . - -
Intangible assets, net . . . . . . . . . . . . . . . . . . . . . . . - -
---------- ----------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . $ 594,658 $ 598,940
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Current portion of long-term debt . . . . . . . . . . . . . . . . $ 365,193 $ 361,376
Accounts payable. . . . . . . . . . . . . . . . . . . . . . . . . 4,041 5,990
Payables to unconsolidated subsidiary and affiliates . . . . . . 3,649 -
Accrued expenses . . . . . . . . . . . . . . . . . . . . . . . . 10,122 10,009
Other current liabilities . . . . . . . . . . . . . . . . . . . . - -
---------- ----------
Total current liabilities . . . . . . . . . . . . . . . . . . 383,005 377,375
---------- ----------
Long-term debt . . . . . . . . . . . . . . . . . . . . . . . . . . . 140,000 153,000
Convertible subordinated debentures . . . . . . . . . . . . . . . . - -
Postretirement health care benefits. . . . . . . . . . . . . . . . . - -
Other noncurrent liabilities . . . . . . . . . . . . . . . . . . . . 9,030 8,615
---------- ----------
Total liabilities . . . . . . . . . . . . . . . . . . . . . . 532,035 538,990
Stockholders' Equity:
Common stock; $0.01 par value, 150,000,000 shares
authorized, 51,894,622 and 50,557,040 shares issued and
outstanding at March 31, 1996 and December 31, 1995,
respectively. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1
Additional paid-in capital . . . . . . . . . . . . . . . . . . . 48,834 48,834
Retained earnings . . . . . . . . . . . . . . . . . . . . . . . . 13,820 11,150
Unearned compensation . . . . . . . . . . . . . . . . . . . . . - -
Additional minimum pension liability. . . . . . . . . . . . . . . - -
Cumulative translation adjustment . . . . . . . . . . . . . . . . (32) (35)
---------- ----------
Total stockholders' equity . . . . . . . . . . . . . . . . . . 62,623 59,950
---------- ----------
Total liabilities and stockholders' equity . . . . . . . . . . $ 594,658 $ 598,940
========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
3
<PAGE> 4
AGCO CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED AND IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
CONSOLIDATED EQUIPMENT OPERATIONS
---------------------------- ----------------------------
Three Months Ended March 31, Three Months Ended March 31,
---------------------------- ----------------------------
1996 1995 1996 1995
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Revenues:
Net sales . . . . . . . . . . . . . . . . . . . . . $453,884 $443,536 $453,884 $443,536
Finance income . . . . . . . . . . . . . . . . . . . 16,808 12,683 - -
-------- -------- -------- --------
470,692 456,219 453,884 443,536
-------- -------- -------- --------
Costs and Expenses:
Cost of goods sold . . . . . . . . . . . . . . . . . 360,144 350,338 360,144 350,338
Selling, general and administrative expenses . . . . 49,439 46,824 46,246 43,344
Engineering expenses . . . . . . . . . . . . . . . 6,979 5,885 6,979 5,885
Interest expense, net . . . . . . . . . . . . . . . 15,052 15,315 5,964 8,346
Other expense (income), net . . . . . . . . . . . . 2,466 567 2,443 620
Nonrecurring expenses . . . . . . . . . . . . . . . 5,923 2,012 5,923 2,012
-------- -------- -------- --------
440,003 420,941 427,699 410,545
-------- -------- -------- --------
Income before income taxes, equity in net earnings of
unconsolidated subsidiary and affiliates and
extraordinary loss . . . . . . . . . . . . . . . . . 30,689 35,278 26,185 32,991
Provision for income taxes . . . . . . . . . . . . . . 10,867 12,401 9,033 11,509
-------- -------- -------- --------
Income before equity in net earnings of unconsolidated
subsidiary and affiliates and extraordinary loss . . 19,822 22,877 17,152 21,482
Equity in net earnings of unconsolidated subsidiary
and affiliates . . . . . . . . . . . . . . . . . 773 507 3,443 1,902
-------- -------- -------- --------
Income before extraordinary loss . . . . . . . . . . . 20,595 23,384 20,595 23,384
Extraordinary loss, net of taxes . . . . . . . . . . . (3,503) - (3,503) -
-------- -------- -------- --------
Net income . . . . . . . . . . . . . . . . . . . . . . 17,092 23,384 17,092 23,384
Preferred stock dividends. . . . . . . . . . . . . . . - 1,213 - 1,213
-------- -------- -------- --------
Net income available for common stockholders . . . . . $ 17,092 $ 22,171 $ 17,092 $ 22,171
======== ======== ======== ========
Net income per common share:
Primary:
Income before extraordinary loss . . . . . . . . . $ 0.40 $ 0.50
Extraordinary loss . . . . . . . . . . . . . . . . (0.07) -
-------- --------
Net income . . . . . . . . . . . . . . . . . . . . $ 0.33 $ 0.50
======== ========
Fully diluted:
Income before extraordinary loss . . . . . . . . . $ 0.37 $ 0.42
Extraordinary loss . . . . . . . . . . . . . . . . (0.06) -
-------- --------
Net income . . . . . . . . . . . . . . . . . . . . $ 0.31 $ 0.42
======== ========
Weighted average number of common and
common equivalent shares outstanding:
Primary . . . . . . . . . . . . . . . . . . . . . . 51,292 44,052
======== ========
Fully diluted . . . . . . . . . . . . . . . . . . . 57,071 55,938
======== ========
Dividends declared per common share . . . . . . . . . $ 0.01 $ 0.01
======== ========
<CAPTION>
FINANCE COMPANY
----------------------------
Three Months Ended March 31,
----------------------------
1996 1995
-------- ---------
<S> <C> <C>
Revenues:
Net sales . . . . . . . . . . . . . . . . . . . . . $ - $ -
Finance income . . . . . . . . . . . . . . . . . . . 16,808 12,683
-------- ---------
16,808 12,683
-------- ---------
Costs and Expenses:
Cost of goods sold . . . . . . . . . . . . . . . . . - -
Selling, general and administrative expenses . . . . 3,193 3,480
Engineering expenses . . . . . . . . . . . . . . . - -
Interest expense, net . . . . . . . . . . . . . . . 9,088 6,969
Other expense (income), net . . . . . . . . . . . . 23 (53)
Nonrecurring expenses . . . . . . . . . . . . . . . - -
-------- ---------
12,304 10,396
-------- ---------
Income before income taxes, equity in net earnings of
unconsolidated subsidiary and affiliates and
extraordinary loss . . . . . . . . . . . . . . . . . 4,504 2,287
Provision for income taxes . . . . . . . . . . . . . . 1,834 892
-------- ---------
Income before equity in net earnings of unconsolidated
subsidiary and affiliates and extraordinary loss . . 2,670 1,395
Equity in net earnings of unconsolidated subsidiary
and affiliates . . . . . . . . . . . . . . . . . - -
-------- ---------
Income before extraordinary loss . . . . . . . . . . . 2,670 1,395
Extraordinary loss, net of taxes . . . . . . . . . . . - -
-------- ---------
Net income . . . . . . . . . . . . . . . . . . . . . . 2,670 1,395
Preferred stock dividends. . . . . . . . . . . . . . . - -
-------- ---------
Net income available for common stockholders . . . . . $ 2,670 $ 1,395
======== =========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
4
<PAGE> 5
AGCO CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED AND IN THOUSANDS)
<TABLE>
<CAPTION>
CONSOLIDATED EQUIPMENT OPERATIONS
---------------------------- ----------------------------
Three Months Ended March 31, Three Months Ended March 31,
---------------------------- ----------------------------
1996 1995 1996 1995
------- ------- ------- -------
<S> <C> <C> <C> <C>
Cash flows from operating activities:
Net income . . . . . . . . . . . . . . . . . . . . . . . . $17,092 $23,384 $17,092 $23,384
------- ------- ------- -------
Adjustments to reconcile net income to net cash provided by
(used for) operating activities:
Extraordinary loss, net of taxes. . . . . . . . . . . . . 3,503 - 3,503 -
Depreciation and amortization . . . . . . . . . . . . . . 6,093 6,074 6,060 6,053
Equity in net earnings of unconsolidated subsidiary and
affiliates, net of cash received . . . . . . . . . . . (773) (507) (3,443) (1,902)
Deferred income tax provision (benefit) . . . . . . . . . 3,622 5,672 3,840 6,244
Amortization of intangibles . . . . . . . . . . . . . . . 1,003 859 1,003 859
Amortization of unearned compensation . . . . . . . . . 3,165 579 3,165 579
Provision for losses on credit receivables . . . . . . . 851 1,122 - -
Changes in operating assets and liabilities, net of effects
from purchase of businesses:
Accounts and notes receivable, net . . . . . . . . . . 19,951 (63,035) 16,302 (58,284)
Inventories, net . . . . . . . . . . . . . . . . . . . (70,970) (55,948) (70,970) (55,948)
Other current and noncurrent assets. . . . . . . . . . (4) 562 (345) 493
Accounts payable . . . . . . . . . . . . . . . . . . . (20,384) 5,425 (23,121) 7,084
Accrued expenses . . . . . . . . . . . . . . . . . . . (12,546) (6,167) (12,662) (5,799)
Other current and noncurrent liabilities . . . . . . . 1,955 (2,554) 1,540 (2,382)
------- ------- ------- -------
Total adjustments . . . . . . . . . . . . . . . . . . (64,534) (107,918) (75,128) (103,003)
------- ------- ------- -------
Net cash (used for) provided by operating activities. . (47,442) (84,534) (58,036) (79,619)
------- ------- ------- -------
Cash flows from investing activities:
Purchase of businesses, net of cash acquired . . . . . . . (6,180) - (6,180) -
Purchase of property, plant and equipment . . . . . . . . . (5,461) (5,255) (5,439) (5,206)
Credit receivables originated . . . . . . . . . . . . . . . (80,336) (60,133) - -
Principal collected on credit receivables . . . . . . . . . 73,724 61,947 - -
------- ------- ------- -------
Net cash (used for) provided by investing activities. . (18,253) (3,441) (11,619) (5,206)
------- ------- ------- -------
Cash flows from financing activities:
Proceeds (payments) on long-term debt, net . . . . . . . . 75,016 74,756 84,199 78,406
Payment of debt issuance costs . . . . . . . . . . . . . . (9,851) - (9,851) -
Proceeds from issuance of common stock . . . . . . . . . . 458 71 458 71
Dividends paid on common stock. . . . . . . . . . . . . . . (506) (217) (506) (217)
Dividends paid on preferred stock . . . . . . . . . . . . . - (1,222) - (1,222)
(Payments) proceeds on short-term borrowings from
unconsolidated subsidiary and affiliates, net. . . . . . . - - - (3,397)
------- ------- ------- -------
Net cash provided by (used for) financing activities. . 65,117 73,388 74,300 73,641
------- ------- ------- -------
Effect of exchange rate changes on cash and cash equivalents. (73) 622 (73) 622
(Decrease) increase in cash and cash equivalents. . . . . . . (651) (13,965) 4,572 (10,562)
Cash and cash equivalents, beginning of period. . . . . . . . 27,858 25,826 20,023 21,844
------- ------- ------- -------
Cash and cash equivalents, end of period. . . . . . . . . . . $27,207 $11,861 $24,595 $11,282
======= ======= ======= =======
<CAPTION>
FINANCE COMPANY
----------------------------
Three Months Ended March 31,
----------------------------
1996 1995
------- -------
<S> <C> <C>
Cash flows from operating activities:
Net income . . . . . . . . . . . . . . . . . . . . . . . . $ 2,670 $ 1,395
------- -------
Adjustments to reconcile net income to net cash provided by
(used for) operating activities:
Extraordinary loss, net of taxes. . . . . . . . . . . . . - -
Depreciation and amortization . . . . . . . . . . . . . . 33 21
Equity in net earnings of unconsolidated subsidiary and
affiliates, net of cash received . . . . . . . . . . . - -
Deferred income tax provision (benefit) . . . . . . . . . (218) (572)
Amortization of intangibles . . . . . . . . . . . . . . . - -
Amortization of unearned compensation . . . . . . . . . - -
Provision for losses on credit receivables . . . . . . . 851 1,122
Changes in operating assets and liabilities, net of effects
from purchase of businesses:
Accounts and notes receivable, net . . . . . . . . . . - -
Inventories, net . . . . . . . . . . . . . . . . . . . - -
Other current and noncurrent assets. . . . . . . . . . 341 69
Accounts payable . . . . . . . . . . . . . . . . . . . 6,386 (6,410)
Accrued expenses . . . . . . . . . . . . . . . . . . . 116 (368)
Other current and noncurrent liabilities . . . . . . . 415 (172)
------- -------
Total adjustments . . . . . . . . . . . . . . . . . . 7,924 (6,310)
------- -------
Net cash (used for) provided by operating activities. . 10,594 (4,915)
------- -------
Cash flows from investing activities:
Purchase of businesses, net of cash acquired . . . . . . . - -
Purchase of property, plant and equipment . . . . . . . . . (22) (49)
Credit receivables originated . . . . . . . . . . . . . . . (80,336) (60,133)
Principal collected on credit receivables . . . . . . . . . 73,724 61,947
------- -------
Net cash (used for) provided by investing activities. . (6,634) 1,765
------- -------
Cash flows from financing activities:
Proceeds (payments) on long-term debt, net . . . . . . . . (9,183) (3,650)
Payment of debt issuance costs . . . . . . . . . . . . . . - -
Proceeds from issuance of common stock . . . . . . . . . . - -
Dividends paid on common stock. . . . . . . . . . . . . . . - -
Dividends paid on preferred stock . . . . . . . . . . . . . - -
(Payments) proceeds on short-term borrowings from
unconsolidated subsidiary and affiliates, net. . . . . . . - 3,397
------- -------
Net cash provided by (used for) financing activities. . (9,183) (253)
------- -------
Effect of exchange rate changes on cash and cash equivalents. - -
(Decrease) increase in cash and cash equivalents. . . . . . . (5,223) (3,403)
Cash and cash equivalents, beginning of period. . . . . . . . 7,835 3,982
------- -------
Cash and cash equivalents, end of period. . . . . . . . . . . $ 2,612 $ 579
======= =======
</TABLE>
See accompanying notes to condensed consolidated financial statements.
5
<PAGE> 6
AGCO CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
1. BASIS OF PRESENTATION
The condensed consolidated financial statements of AGCO Corporation
and subsidiaries (the "Company" or "AGCO") included herein have been prepared
by the Company pursuant to the rules and regulations of the Securities and
Exchange Commission. In the opinion of management, the accompanying unaudited
condensed consolidated financial statements reflect all adjustments, which are
of a normal recurring nature, to present fairly the Company's financial
position, results of operations and cash flows at the dates and for the periods
presented. These condensed consolidated financial statements should be read in
conjunction with the Company's audited financial statements and notes thereto
included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1995. Interim results of operations are not necessarily
indicative of results to be expected for the fiscal year.
The accompanying condensed consolidated financial statements include,
on a separate, supplemental basis, the Company's Equipment Operations and its
Finance Company. "Equipment Operations" reflect the consolidation of all
operations of the Company and its subsidiaries with the exception of Agricredit
Acceptance Company ("Agricredit"), a wholly-owned finance subsidiary, which is
included using the equity method of accounting. The results of operations of
Agricredit are included under the caption "Finance Company." All significant
intercompany transactions, including activity within and between the Equipment
Operations and Finance Company, have been eliminated to arrive at the
"Consolidated" financial statements. Certain prior period amounts have been
reclassified to conform with the current period presentation.
2. CHARGES FOR NONRECURRING EXPENSES
The results of operations for the three months ended March 31, 1996
included a charge for nonrecurring expenses of $5,923,000, or $0.07 per common
share on a fully diluted basis, related to the further restructuring of the
International Operations which was acquired in the Massey Acquisition in June
1994.
The nonrecurring charge included costs associated with the
centralization of certain parts warehousing, administrative, sales and
marketing functions. The $5,923,000 nonrecurring charge recorded through March
31, 1996 included $4,763,000 for employee related costs, consisting primarily
of severance costs, and $1,160,000 for other nonrecurring costs. Included in
the $4,763,000 of employee related costs are $421,000 of payroll costs incurred
through March 31, 1996 for personnel that have been terminated or will be
terminated in future periods. Of the total $5,923,000 charge, $2,394,000 had
been incurred at March 31, 1996. The remaining accrual of $3,529,000 consists
of employee severance costs which relate to the planned reduction of 86
employees, of which 34 employees had been terminated at March 31, 1996.
The results of operations for the three months ended March 31, 1995
included a charge for nonrecurring expenses of $2,012,000, or $0.02 per common
share on a fully diluted basis, which was a portion of the Company's
$19,500,000 charge recorded through December 31, 1995 primarily related to the
initial integration and restructuring of the International Operations. The
6
<PAGE> 7
nonrecurring charge for the three months ended March 31, 1995 included
$1,504,000 for employee severance and $508,000 for certain data processing
expenses. Substantially all of the costs associated with the $19,500,000
charge recorded through December 31, 1995 have been incurred.
3. LONG-TERM DEBT
Long-term debt consisted of the following at March 31, 1996 and
December 31, 1995 (in thousands):
<TABLE>
<CAPTION>
March 31, December 31,
1996 1995
-------- --------
<S> <C> <C>
Revolving credit facility - Equipment Operations $214,682 $378,336
Revolving credit facility - Finance Company 505,193 514,376
Senior subordinated notes 247,851 --
-------- --------
$967,726 $892,712
======== ========
</TABLE>
In March 1996, the Company issued $250,000,000 of 8 1/2% Senior
Subordinated Notes due 2006 (the "Notes") at 99.139% of their par value. The
Notes are unsecured obligations of the Company and are redeemable at the option
of the Company, in whole or in part, at any time on or after March 15, 2001
initially at 104.25% of their principal amount, plus accrued interest,
declining ratably to 100% of their principal amount plus accrued interest, on
or after March 15, 2003. The Notes include certain covenants, including
covenants restricting the incurrence of indebtedness and the making of certain
restrictive payments, including dividends. The net proceeds from the sale of
the Notes were used to repay outstanding indebtedness under the Company's
$550.0 million revolving credit facility.
In March 1996, the Company replaced its $550.0 million secured
revolving credit facility (the "Old Credit Facility") with a five-year $650.0
million unsecured credit facility (the "New Credit Facility"). Aggregate
borrowings outstanding under the New Credit Facility are subject to a borrowing
base limitation and may not at any time exceed the sum of 90% of eligible
accounts receivable and 60% of eligible inventory. Interest will accrue on
borrowings outstanding under the New Credit Facility primarily at LIBOR
plus an applicable margin, as defined. The New Credit Facility contains
certain covenants, including covenants restricting the incurrence of
indebtedness and the making of certain restrictive payments, including
dividends. In addition, the Company must maintain certain financial covenants
including, among others, a debt to capitalization ratio, an interest coverage
ratio and a ratio of debt to cash flow, as defined. At March 31, 1996,
$214,682,000 was outstanding under the New Credit Facility and available
borrowings were $425,768,000.
4. EXTRAORDINARY LOSS
During the first quarter of 1996, as part of the refinancing of the
Old Credit Facility with the New Credit Facility, the Company recorded an
extraordinary loss of $3.5 million, net of tax, for the write-off of
unamortized debt costs related to the Old Credit Facility.
7
<PAGE> 8
5. CONVERTIBLE SUBORDINATED DEBENTURES
In June 1995, the Company exchanged all of its outstanding 2,674,534
depositary shares (the "Exchange"), each representing 1/10 of a share of $16.25
Cumulative Convertible Exchangeable Preferred Stock (the "Preferred Stock"),
into $66,848,000 of its 6.5% Convertible Subordinated Debentures due 2008 (the
"Convertible Subordinated Debentures"). The effect of this transaction
resulted in a reduction to stockholders' equity and an increase to liabilities
in the amount of $66,848,000. The Convertible Subordinated Debentures are
convertible at any time at the option of the holder into shares of the
Company's common stock at a conversion rate of 157.85 shares of common stock
for each $1,000 principal amount of the debentures. In addition, on or after
June 1, 1996, the Convertible Subordinated Debentures may be redeemed at the
option of the Company initially at an amount equivalent to $1,045.50 per $1,000
principal amount of the debentures and thereafter at prices declining to an
amount equivalent to the face amount of the debentures on or after June 1,
2003, plus all accrued and unpaid interest. During the first quarter of 1996,
$7,632,000 of Convertible Subordinated Debentures were converted at the option
of the holder into 1,203,626 shares of the Company's common stock.
In April 1996, the Company announced its election, effective June 1,
1996, to redeem all of its outstanding Convertible Subordinated Debentures.
The redemption price will be 104.55% of the principal amount of the Convertible
Subordinated Debentures. The Convertible Subordinated Debentures may be
converted into the Company's common stock through the redemption date.
6. NET INCOME PER COMMON SHARE
Primary net income per common share is computed by dividing net income
available for common stockholders (net income less preferred stock dividend
requirements) by the weighted average number of common and common equivalent
shares outstanding during each period. Common equivalent shares include shares
issuable upon the assumed exercise of outstanding stock options. Fully diluted
net income per common share assumes (i) conversion of the Convertible
Subordinated Debentures into common stock after the Exchange and the
elimination of interest expense related to the Convertible Subordinated
Debentures, net of applicable income taxes and (ii) the conversion of the
Preferred Stock into common stock and the elimination of the preferred stock
dividend requirements prior to the Exchange.
7. INVENTORIES
Inventories consist primarily of farm tractors, combines, implements,
hay and forage equipment and service parts and are valued at the lower of cost
or market. Cost is determined on a first-in, first-out basis. Market is net
realizable value for finished goods and repair and replacement parts. For work
in process, production parts and raw materials, market is replacement cost.
8
<PAGE> 9
Inventory balances at March 31, 1996 and December 31, 1995 were as
follows (in thousands):
<TABLE>
<CAPTION>
March 31, December 31,
1996 1995
-------- --------
<S> <C> <C>
Finished goods . . . . . . . . . . . . . . . . . . . . . . . $175,792 $121,034
Repair and replacement parts . . . . . . . . . . . . . . . . 209,811 196,863
Work in process, production parts and raw materials . . . . . 89,087 84,505
-------- --------
Gross inventories . . . . . . . . . . . . . . . . . . . . . . 474,690 402,402
Allowance for surplus and obsolete inventories . . . . . . . (44,986) (41,433)
-------- --------
Inventories, net . . . . . . . . . . . . . . . . . . . . . . $429,704 $360,969
======== ========
</TABLE>
8. SUBSEQUENT EVENT
On April 30, 1996, the Company executed a Letter of Intent with
Iochpe-Maxion, S.A. ("Maxion"), a Brazilian company, in which the Company
agreed to purchase substantially all of the net assets of the agricultural
equipment business of Maxion for $260 million, subject to certain adjustments
(the "Maxion Acquisition"). The Maxion Acquisition is planned to be financed
with borrowings under the New Credit Facility. The closing of the Maxion
Acquisition is anticipated to occur by the end of the second quarter of 1996
and is subject to obtaining certain approvals and consents and other customary
conditions.
Maxion is the licensee for Massey Ferguson branded products
distributed in Brazil. Maxion is a leading manufacturer and distributor of
agricultural tractors and combines and industrial loader-backhoes in Brazil.
9
<PAGE> 10
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
GENERAL
The Company's operations are subject to the cyclical nature of the
agricultural industry. Sales of the Company's equipment have been affected by
changes in net cash farm income, farm land values, weather conditions, the
demand for agricultural commodities and general economic conditions. The
Company's operations are expected to be subject to such conditions in the
future. Sales are recorded by the Company when equipment and replacement parts
are shipped by the Company to its independent dealers. To the extent possible,
the Company attempts to ship products on a level basis throughout the year to
reduce the effect of seasonal demands on its manufacturing operations and to
minimize its investment in inventory. Retail sales by dealers to farmers
("settlements") are highly seasonal and are a function of the timing of the
planting and harvesting seasons. As a result, the Company's net sales and
operating results have historically been the lowest in the first quarter and
have increased in the second and third quarters.
RESULTS OF OPERATIONS
NET INCOME
The Company recorded net income for the three months ended March 31,
1996 of $17.1 million compared to $23.4 million for the three months ended
March 31, 1995. Net income per common share on a fully diluted basis was $0.31
for the first quarter of 1996 compared to $0.42 for the same period in 1995.
Net income for the three months ended March 31, 1996 included nonrecurring
expenses of $5.9 million, or $0.07 per share on a fully diluted basis, related
to the further restructuring of the Company's International Operations and an
extraordinary after-tax charge of $3.5 million, $0.06 per share, for the
write-off of unamortized debt costs related to the refinancing of the revolving
credit facility for the Company's Equipment Operations (see "Liquidity and
Capital Resources"). Net income for the three months ended March 31, 1995
included nonrecurring expenses of $2.0 million, or $0.02 per share on a fully
diluted basis, related to the Massey Acquisition (see "Charges for Nonrecurring
Expenses"). Excluding nonrecurring expenses and the extraordinary after-tax
charge, the improved results in 1996 reflected sales growth in existing product
lines and improved operating efficiencies.
RETAIL SALES
Conditions in the United States and Canadian agricultural markets
continue to be positive in 1996 compared to 1995. Industry unit retail sales
of tractors and hay and forage equipment for the three months ended March 31,
1996 increased 5% and 14%, respectively, over the same period in 1995, while
unit retail sales of combines decreased 5% compared to the prior year. The
Company believes the increase in the tractor market was primarily due to
favorable economic conditions relating to high net cash farm incomes and strong
commodity prices, and industry hay and forage equipment retail sales were
higher than the prior year primarily due to aggressive retail financing
programs of the Company's major competitors. Additionally, the Company
believes the decrease in industry combine retail sales is not necessarily
indicative of the full year outlook because it is currently not the primary
selling season.
10
<PAGE> 11
Company unit settlements of tractors in the United States and Canada
for the first quarter of 1996 increased significantly compared to 1995. The
increase in tractor settlements was attributable to the favorable industry
conditions as well as the impact of the Company's expanded dealer network,
which resulted primarily from dealers entering into crossover contracts whereby
an existing dealer carrying one of the Company's brands contracts to sell an
additional AGCO brand. In addition, the Company benefited from the successful
acceptance of improved tractor product offerings, including the new Massey
Ferguson high horsepower tractors which were introduced in the middle of 1995.
Company unit settlements of combines decreased slightly more than the industry
primarily due to the timing of custom harvester sales which were planned later
in 1996 compared to 1995. Company unit settlements of hay and forage equipment
were below the prior year primarily due to the Company choosing not to match
the aggressive retail financing programs of its major competitors.
Industry conditions in Western Europe continue to be favorable with
retail sales of tractors increasing approximately 7% for the first quarter of
1996 compared to the prior year primarily due to improved economic conditions
and strong export demand for commodities. Retail sales of Massey Ferguson
tractors outperformed the industry by increasing approximately 25% over 1995.
The Company experienced the most significant increases in the United Kingdom,
France, Spain and Scandinavia due to the Company's focus on dealer development
and the continued success of the new Massey Ferguson high horsepower tractors.
Outside North America and Western Europe, industry retail sales of tractors
also showed gains in many markets where the Company competes due to a general
improvement in economic conditions. Retail sales of Massey Ferguson tractors
were relatively flat compared to 1995; however, the Company had strong market
share gains in many markets, particularly in the Middle East and Africa.
REVENUES
Total revenues for the three months ended March 31, 1996 were $470.7
million, representing an increase of $14.5 million or 3.2% over total revenues
of $456.2 million for the same period in 1995. The increase was primarily
attributable to sales from the International Operations, which generated
increased net sales of $29.6 for the first quarter of 1996 compared to the
prior year. This increase primarily related to the strong retail sales of the
new Massey Ferguson high horsepower tractors. This increase for the
International Operations was partially offset by a net sales decrease of $19.2
million for the first quarter of 1996 compared to 1995 related to the Company's
North American Operations. This decrease was primarily due to the timing of
delivery of certain tractors sourced from certain European suppliers. Total
revenues also increased for the first quarter of 1996 compared to the same
period of 1995 due to an increase in finance income of $4.1 million associated
with the operations of Agricredit. The increase in finance income was
primarily due to the growth in Agricredit's credit receivable portfolio as a
result of Agricredit's increased penetration into the Company's dealer network.
COSTS AND EXPENSES
Cost of goods sold of the Company's Equipment Operations for the three
months ended March 31, 1996 was $360.1 million, or 79.3% of net sales, compared
to $350.3 million, or 79.0% of net sales, for the same period in 1995. Gross
profit, defined as net sales less cost of goods sold, was $93.7 million (20.7%
of net sales) for the three months ended March 31, 1996 as compared to $93.2
million (21.0% of net sales) for the same period of the prior year. Gross
margins were negatively impacted by a change in the mix of machinery sales
compared to the
11
<PAGE> 12
prior year as a result of the timing of shipments of certain high margin
tractors to the North American Operations from certain European suppliers.
Selling, general and administrative expenses for the three months
ended March 31, 1996 were $49.4 million (10.5% of total revenues) compared to
$46.8 million (10.3% of total revenues) for the same period last year. The
increase in selling, general and administrative expenses as a percentage of
total revenues was primarily due to the amortization of stock-based
compensation expense related to the Company's long-term incentive plan, which
was $3.4 million higher than the prior year as a result of the increase in the
Company's stock price in 1995. This increase was slightly offset by lower
operating expenses as a percentage of total revenues related to Agricredit.
Excluding Agricredit and the amortization related to the long-term incentive
plan, the Company's Equipment Operations had selling, general and
administrative expenses of $41.8 million (9.2% of net sales) and $42.3 million
(9.5% of net sales) for the three months ended March 31, 1996 and 1995,
respectively. The decrease as a percentage of net sales was primarily due to
the cost reduction efforts in the Company's International Operations.
Engineering expenses for the Company's Equipment Operations were $7.0
million (1.5% of net sales) for the three months ended March 31, 1996 compared
to $5.9 million (1.3% of net sales) for the same period in 1995. The increase
as a percentage of net sales was primarily due to the timing of engineering
expenses related to the development of a new Massey Ferguson utility tractor
line.
Interest expense, net for the three months ended March 31, 1996 was
$15.1 million compared to $15.3 million for the same period in the prior year.
The decrease in interest expense, net resulted from lower interest rates and
lower average borrowings in addition to higher interest income relating to the
Company's Equipment Operations. This decrease was partially offset by
increased interest expense, net relating to Agricredit due to the additional
borrowings associated with the increase in the credit receivable portfolio and
an increase in the rates charged on outstanding borrowings.
Other expense, net was $2.5 million for the three months ended March
31, 1996 compared to $0.6 million for the same period in 1995. The increase in
other expense, net was primarily due to foreign exchange losses in the
International Operations.
Nonrecurring expenses were $5.9 million for the three months ended
March 31, 1996 compared to $2.0 million for the three months ended March 31,
1995. The nonrecurring charge recorded in 1996 related to the further
restructuring of the International Operations which was acquired in the Massey
Acquisition in June 1994. The nonrecurring charge recorded in 1995 primarily
related to costs associated with the initial integration and restructuring of
the International Operations. See "Charges for Nonrecurring Expenses" for
further discussion.
The Company recorded an income tax provision of $10.9 million and
$12.4 million for the three months ended March 31, 1996 and 1995, respectively.
For both periods, the Company paid income taxes at rates below statutory rates
due to the utilization of net operating loss carryforwards. Due to the
availability of net operating loss carryforwards acquired in the Massey
Acquisition, the Company expects to continue paying taxes at effective rates
substantially below statutory rates in the near future.
12
<PAGE> 13
Equity in net earnings of unconsolidated affiliates was $0.8 million
and $0.5 million for the three months ended March 31, 1996 and 1995,
respectively. The increase in equity in net earnings of unconsolidated
affiliates related to the Company's pro-rata share in net earnings of its 49%
interest in Massey Ferguson Finance, which provides retail financing to end
users in the United Kingdom, France and Germany.
FINANCE COMPANY OPERATIONS
Agricredit, the Company's wholly owned finance subsidiary, recorded
net income of $2.7 and $1.4 million for the three months ended March 31, 1996
and 1995, respectively. Retail acceptances were approximately $73.7 million
for the three months ended March 31, 1996 and $53.9 million for the same period
in the prior year. The increase was primarily the result of Agricredit's
penetration into the Company's dealer network and its continued growth in the
Canadian market, where Agricredit began servicing dealers in late 1994.
The Company is currently holding preliminary discussions with
Cooperatieve Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland" ("Rabobank"),
regarding a possible sale of a 51% interest in Agricredit to a wholly owned
subsidiary of Rabobank (the "Agricredit Joint Venture"). The Agricredit Joint
Venture would continue the current business of Agricredit and seek to build a
broader asset-based finance business through the addition of other lines of
business. The Company has similar joint venture arrangements with Rabobank and
its affiliates with respect to its retail finance companies located in the
United Kingdom, France and Germany. There are no agreements (other than a
customary confidentiality agreement), arrangements or understandings between
the parties with respect to the proposed joint venture, and there can be no
assurance that the parties will enter into definitive agreements or that the
transaction will be consummated.
LIQUIDITY AND CAPITAL RESOURCES
The Company's financing requirements for its Equipment Operations are
subject to variations due to seasonal changes in inventory and dealer
receivable levels. In March 1996, the Company replaced its $550 million
secured revolving credit facility (the "Old Credit Facility") with a five-year
$650 million unsecured revolving credit facility (the "New Credit Facility")
(see Note 3 of the Notes to the Condensed Consolidated Financial Statements).
The New Credit Facility is the Company's primary source of financing for its
Equipment Operations and provides increased borrowing capacity over the Old
Credit Facility. Borrowings under the New Credit Facility may not exceed the
sum of 90% of eligible accounts receivable and 60% of eligible inventory. As
receivables and inventories fluctuate, borrowings under the New Credit Facility
fluctuate as well. As of March 31, 1996, approximately $214.7 million was
outstanding under the New Credit Facility and available borrowings were
approximately $425.8 million. If consummated, the Maxion Acquisition will be
financed by borrowings under the New Credit Facility (see Note 8 of the Notes
to Condensed Consolidated Financial Statements).
In March 1996, the Company issued $250.0 million of 8 1/2% Senior
Subordinated Notes due 2006 (the "Notes") at 99.139% of their par value (see
Note 3 of the Notes to the Condensed Consolidated Financial Statements). The
net proceeds from the sale of the Notes were used to repay outstanding
indebtedness under the Old Credit Facility. The sale of the Notes provided the
Company with subordinated capital and replaced a portion of its floating rate
debt with longer term fixed rate debt.
The Company's finance subsidiary, Agricredit, obtains funds from a
$545.0 million revolving credit agreement (the "Agricredit Revolving Credit
Agreement") to finance its credit receivable portfolio. Borrowings under the
Agricredit Revolving Credit Agreement are based on the amount and quality of
outstanding credit receivables and are generally issued for terms with
maturities matching anticipated credit receivable liquidations. As the credit
receivable portfolio fluctuates, borrowings under the Agricredit Revolving
Credit Agreement fluctuate as well. As of March 31, 1996, approximately $505.2
million was outstanding under the Agricredit Revolving Credit Agreement and
available borrowings were approximately $34.6 million. Funding of new
borrowings under the Agricredit Revolving Credit Agreement expires on June 30,
1997.
13
<PAGE> 14
In April 1996, the Company announced its election, effective June 1,
1996, to redeem all of its outstanding 6.5% Convertible Subordinated Debentures
due 2008 (the "Convertible Subordinated Debentures") (see Note 5 to the
Condensed Consolidated Financial Statements). The redemption price will be
104.55% of the principal amount of the Convertible Subordinated Debentures.
The Convertible Subordinated Debentures may be converted into the Company's
common stock through the redemption date. The Company expects the majority of
the Convertible Subordinated Debentures to be converted into the Company's
common stock prior to redemption by the Company.
The Company's working capital requirements for its Equipment
Operations are somewhat seasonal, with investments in working capital typically
building in the first and second quarters and then reducing in the third and
fourth quarters. As of March 31, 1996, the Company's Equipment Operations had
$751.3 million of working capital, an increase of $89.8 million over working
capital of $661.5 million as of December 31, 1995. The increase in working
capital was primarily due to normal seasonal requirements, particularly in
inventories.
Cash flow used for operating activities was $47.4 million for the
three months ended March 31, 1996 as compared to $84.5 million for the same
period last year. The decrease in cash flow used for operating activities was
primarily due to the reduction in the first quarter of 1996 of unusually high
accounts receivable levels in the International Operations at December 31, 1995
which resulted from significantly higher sales in late 1995 than in late 1994.
This impact on cash flow was offset to some extent by increases in cash flow
used for working capital requirements for inventories and payables.
Capital expenditures for the first three months of 1996 were $5.5
million compared to $5.3 million for the same period in 1995. The Company
currently anticipates that additional capital expenditures for the remainder of
1996 will range from approximately $35.0 million to $45.0 million and will
primarily be used to support the development and enhancement of new and
existing products.
Agricredit's credit receivable originations exceeded credit receivable
payments by $6.6 million for the three months ended March 31, 1996. The
increase in Agricredit's credit receivable portfolio will result in increased
finance income in future periods. The credit receivable originations were
financed through additional borrowings under the Agricredit Revolving Credit
Agreement.
In April 1996, the Company's board of directors declared a common
stock dividend of $0.01 per share for the first quarter of 1996. The
declaration and payment of future dividends will be at the sole discretion of
the board of directors and will depend upon the Company's results of
operations, financial condition, cash requirements, future prospects,
limitations imposed by the Company's credit facilities and other factors deemed
relevant by the Company's board of directors.
The Company believes that available borrowings under the New Credit
Facility, the Agricredit Revolving Credit Agreement, available cash and
internally generated funds will be sufficient to support its working capital,
capital expenditures, credit receivable originations and debt service
requirements for the foreseeable future.
14
<PAGE> 15
The Company from time to time reviews and will continue to review
acquisition and joint venture opportunities as well as changes in the capital
markets. If the Company were to consummate a significant acquisition or elect
to take advantage of favorable opportunities in the capital markets, the
Company may supplement availability or revise the terms under its credit
facilities or complete public or private offerings of equity or debt
securities.
CHARGES FOR NONRECURRING EXPENSES
The Company identified approximately $12.0 million of nonrecurring
expenses related to the further restructuring of the Company's International
Operations, acquired in June 1994 as a result of the Massey Acquisition. The
Company recorded $5.9 million during the first quarter of 1996 to recognize a
portion of these costs. These costs primarily related to the centralization of
certain parts warehousing, administrative, sales and marketing functions (see
Note 2 of the Notes to the Condensed Consolidated Financial Statements). The
Company expects to record the remaining $6.1 million of nonrecurring expenses
in 1996 and to complete the restructuring by mid-1997. Savings from the
further restructuring of the International Operations are expected to result
primarily from reduced selling, general and administrative expenses primarily
relating to the Company's parts warehousing, finance, dealer communications,
sales and marketing functions. While the Company believes that cost savings
from its restructuring plan can be attained, there can be no assurance that all
objectives of the restructuring will be achieved.
In the first quarter of 1995, the Company recorded nonrecurring
expenses of $2.0 million which was a portion of the Company's $19.5 million
charge recorded through December 31, 1995 primarily related to the initial
integration and restructuring of the International Operations. These costs
primarily related to the centralization and rationalization of the International
Operations' administrative, sales, and marketing functions. Substantially all
of the costs associated with the $19.5 million charge recorded through December
31, 1995 have been incurred.
15
<PAGE> 16
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
3.0 - Certificate of Incorporation of
AGCO Corporation.
11.0 - Statement re: Computation of Per Share
Earnings.
27.0 - Financial Data Schedule (electronic filing
purposes only).
(b) Reports on Form 8-K
The Company filed a Current Report on Form 8-K dated
March 4, 1996 disclosing the proposed unregistered offering of
$200 million of Senior Subordinated Notes due 2006.
The Company filed a Current Report on Form 8-K dated
March 21, 1996 disclosing the unregistered offering of $250
million of 8 1/2% Senior Subordinated Notes due 2006.
16
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AGCO CORPORATION
----------------
Registrant
Date: May 15, 1996 Chris E. Perkins
------------------------------------------
Chris E. Perkins
Vice President and Chief Financial Officer
17
<PAGE> 18
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description Page
- ------ ---------------------------------------------------------------- ------------
<S> <C> <C>
3.0 Certificate of Incorporation of AGCO Corporation.
11.0 Statement re: Computation of Per Share Earnings.
27.0 Financial Data Schedule (electronic filing purposes only).
</TABLE>
<PAGE> 1
PAGE 1
State of Delaware
Office of the Secretary of State
-------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "AGCO CORPORATION", FILED IN THIS OFFICE ON THE EIGHTH DAY OF MAY,
A.D. 1996, AT 10 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
-------------------------------------
Edward J. Freel, Secretary of State
2260741 8100 [SEAL] AUTHENTICATION: 7938530
960133607 DATE: 05-08-96
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AGCO CORPORATION
AGCO CORPORATION, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation") hereby certifies:
FIRST: That the Board of Directors of the Corporation duly adopted the
following resolution proposing and declaring advisable an amendment to the
Certificate of Incorporation of the Corporation increasing the number of
authorized shares of Common Stock, par value $.01 per share, of the Corporation
from Seventy-Five Million (75,000,000) to One Hundred and Fifty Million
(150,000,000):
"RESOLVED, that the Company amend its Certificate of
Incorporation by deleting in its entirety the first paragraph
of the Fourth Article of the Certificate of Incorporation and
substituting in lieu thereof the following:
4. The total number of shares of all classes of
stock which the corporation is authorized to issue is
151,000,000, of which 1,000,000 shares, having a par value of
$.01 per share, will be preferred stock and 150,000,000 shares,
having a par value of $.01 per share will be common stock.
SECOND: That the amendment has been adopted by an affirmative vote of a
majority of the stockholders of the Corporation in accordance with the
provision of Section 242(b)(2) of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Corporation has caused its duly authorized
officers to execute this Certificate as of this 29th day of April, 1996.
AGCO CORPORATION
By: /s/ Allen W. Ritchie
--------------------
Allen W. Ritchie
President
Attest: /s/ Michael F. Swick
--------------------
Michael F. Swick
Secretary
<PAGE> 3
PAGE 1
State of Delaware
Office of the Secretary of State
---------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "AGCO CORPORATION", FILED IN THIS OFFICE ON THE THIRD DAY OF MAY,
A.D. 1994, AT 3:15 O'CLOCK P.M.
/S/ WILLIAM T. QUILLEN
--------------------------------------
William T. Quillen, Secretary of State
2260741 8100 AUTHENTICATION: 7159110
944114283 DATE: 06-23-94
<PAGE> 4
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AGCO CORPORATION
AGCO CORPORATION, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation") hereby certifies:
FIRST: That the Board of Directors of the Corporation duly adopted the
following resolution proposing and declaring advisable an amendment to the
Certificate of Incorporation of the Corporation increasing the number of
authorized shares of Common Stock, par value $.01 per share, of the Company from
Twenty Million (20,000,000) to Seventy-Five Million (75,000,000):
"RESOLVED, that the Company amend its Certificate of
Incorporation. . . by deleting in its entirety the first paragraph of
the Fourth Article of the Certificate of Incorporation and substituting
in lieu thereof the following:
4. The total number of shares of all classes of stock
which the corporation is authorized to issue is 76,000,000
shares; of which 1,000,000 shares, having a par value of $.01
per share, will be preferred stock and 75,000,000 shares, having
a par value of $.01 per share will be common stock."
SECOND: That the amendment has been adopted by an affirmative vote of a
majority of the shareholders of the Corporation in accordance with the
provisions of Section 242(b)(2) of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Corporation has caused its duly authorized
officers to execute this Certificate as of this 3rd day of May, 1994.
AGCO CORPORATION
By: /s/ MICHAEL F. SWICK
-------------------------------
Michael F. Swick,
Vice President
Attest: /s/ LYNNETTE D. SCHOENFELD
--------------------------------
Lynnette D. Schoenfeld,
Assistant Secretary
<PAGE> 5
PAGE 1
State of Delaware
Office of the Secretary of State
---------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "AGCO CORPORATION", FILED IN THIS OFFICE ON THE THIRD DAY OF
MAY, A.D. 1994, AT 9 O'CLOCK A.M.
/S/ WILLIAM T. QUILLEN
--------------------------------------
William T. Quillen, Secretary of State
2260741 8100 AUTHENTICATION: 7159282
944114300 DATE: 06-23-94
<PAGE> 6
CERTIFICATE OF DESIGNATIONS
OF
JUNIOR CUMULATIVE PREFERRED STOCK
($.01 Par Value)
OF
AGCO CORPORATION
---------------
Pursuant to Section 151(g) of the General Corporation Law
of the State of Delaware
---------------
The undersigned duly authorized officers of AGCO Corporation, a Delaware
corporation (the "Corporation"), DO HEREBY CERTIFY that the following resolution
was duly adopted on January 26, 1994, by the Board of Directors of the
Corporation pursuant to authority conferred on the Board of Directors by the
provisions of the Certificate of Incorporation of the Corporation (as amended)
and in accordance with the provisions of the Delaware General Corporation Law,
creating a series of its Preferred Stock, par value $0.01 per share, designated
as the Junior Cumulative Preferred Stock:
RESOLVED that, pursuant to the authority conferred upon the Board of
Directors of AGCO Corporation (the "Corporation") by the Corporation's
Certificate of Incorporation, as amended (the "Certificate of Incorporation"),
there is hereby established a series of the authorized preferred stock of the
Corporation having a par value of $.01 per share, which series shall be
designated as "Junior Cumulative Preferred Stock," shall consist of three
hundred thousand (300,000) shares and shall have the following designations,
preferences, limitations and relative rights:
1. Certain Definitions. Unless the context otherwise requires,
the terms defined in this Paragraph 1 shall have, for all purposes of
this resolution, the meanings herein specified:
(a) "Board of Directors" shall mean the Board of Directors of
the Corporation and, to the extent permitted by law, any committee of
the Board of Directors
<PAGE> 7
authorized to exercise the powers of the Board of Directors.
(b) "Common Stock" shall mean the common stock, par value $.01
per share, of the Corporation, which term shall include, where appropriate,
in the case of a reclassification, recapitalization or other changes in
such Common Stock, or in the case of a consolidation or merger of this
Corporation with or into another corporation, such consideration to which a
holder of a share of Common Stock would have been entitled upon the
occurrence of such event.
(c) "Junior Preferred Stock" shall mean the three hundred
thousand (300,000) shares of Junior Cumulative Preferred Stock, par value
$.01 per share, of the Corporation.
(d) "Convertible Exchangeable Preferred Stock" shall mean the
$16.25 Cumulative Convertible Exchangeable Preferred Stock, par value $.01
per share, of the Corporation.
(e) "Junior Stock" shall mean the Common Stock and any other
class or series of stock of the Corporation not entitled to receive any
dividends unless all dividends required to have been paid or declared and
set apart for payment on the Junior Preferred Stock and any Parity Stock
shall have been so paid or declared and set apart for payment and, for
purposes of Paragraph 3 below, shall mean any class or series of stock of
the Corporation not entitled to receive any assets upon liquidation,
dissolution or winding up of the affairs of the Corporation until the
Junior Preferred Stock and any Parity Stock shall have received the entire
amount to which such stock is entitled upon such liquidation, dissolution
or winding up.
(f) "Parity Stock" shall mean any class or series of stock of
the Corporation entitled to receive payment of dividends on a parity with
the Junior Preferred Stock or entitled to receive assets upon liquidation,
dissolution or winding up of the affairs of the Corporation on a parity
with the Junior Preferred Stock.
(g) "Rights Declaration Date" shall mean April 27, 1994.
(h) "Semiannual Dividend Payment Date" shall mean the first day
of March and September in each year.
2
<PAGE> 8
(i) "Senior Stock" shall mean the Convertible Exchangeable
Preferred Stock and any class or series of stock of the Corporation ranking
senior to the Junior Preferred Stock and to any Parity Stock in respect of
the right to receive dividends or in respect of the right to participate in
any distribution upon liquidation, dissolution or winding up of the affairs
of the Corporation.
2. Dividend and Distributions. (A) Subject to the prior preferences
and other rights of any Senior Stock, the holders of shares of Junior
Preferred Stock shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available therefor, semiannual
dividends payable in cash at the rate hereinafter fixed in this Paragraph 2
on each Semiannual Dividend Payment Date, commencing on the first
Semiannual Dividend Payment Date after the first issuance of any shares or
fractions of a share of Junior Preferred Stock. Semiannual dividends on
the Junior Preferred Stock shall be payable to holders of record of the
Junior Preferred Stock on the respective date not exceeding 50 days
preceding such Semiannual Dividend Payment Date as shall be fixed for this
purpose by the Board of Directors, in an amount per share (rounded to the
nearest cent) equal to the greater of (i) $.05 or (ii) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions
other than a dividend payable in shares of Common Stock or a subdivision of
the outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding Semiannual
Dividend Payment Date, or, with respect to the first Semiannual Dividend
Payment Date, since the first issuance of any share or fraction of a share
of Junior Preferred Stock. In the event the Corporation shall at any time
after the Rights Declaration Date (a) declare any dividend on Common Stock
payable in shares of Common Stock, (b) subdivide the outstanding Common
Stock, or (c) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the amount to which holders of shares of
Junior Preferred Stock were entitled immediately prior to such event under
clause (ii) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
3
<PAGE> 9
(B) No dividend or other distribution may be declared or paid
on the Common Stock (other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock)
unless, coincidentally with the declaration of such dividend or such
other distribution, the dividend payable on the Junior Preferred Stock
pursuant to clause (ii) of subparagraph (A) above is declared and the
consideration sufficient for the payment thereof set apart from funds
legally available therefor so as to be available then and on the next
Semiannual Dividend Payment Date for the payment in full thereof and for
no other purpose. In the event no dividend or distribution shall have
been declared on the Common Stock during the period between any
Semiannual Dividend Payment Date and the next subsequent Semiannual
Dividend Payment Date, a dividend of $.05 per share on the Junior
Preferred Stock shall nevertheless be payable on such subsequent
Semiannual Dividend Payment Date.
(C) Dividends on each outstanding share of Junior Preferred
Stock shall begin to accrue and be cumulative from the Semiannual
Dividend Payment Date next following the respective date of issuance of
such share unless the date of such issuance is a Semiannual Dividend
Payment Date, in which case dividends shall accrue and be cumulative
from the date of issuance.
(D) The holders of shares of the Junior Preferred Stock shall
not be entitled to receive any dividends thereon other than the cash
dividends specified in this Paragraph 2. Unpaid dividends shall be
cumulative and shall accrue, whether or not declared by the Board of
Directors, until the date such dividends are paid. Accrued but unpaid
dividends on the Junior Preferred Stock shall not bear interest.
Dividends on account of arrears for any past dividend periods may be
declared and paid at any time, without reference to any Semiannual
Dividend Payment Date, to holders of record of the Junior Preferred
Stock on such date, not more than 50 days preceding the payment date
thereof, as may be fixed by the Board of Directors.
(E) So long as any shares of Junior Preferred Stock shall be
outstanding, the Corporation shall not declare or pay on any Junior
Stock any dividend in cash or property of any sort, nor shall the
Corporation make any distribution on any Junior Stock, or set aside any
assets for any such purposes, nor shall any Junior Stock be purchased,
redeemed or otherwise acquired by the Corporation or any of its
subsidiaries, nor shall any
4
<PAGE> 10
monies be paid, set aside for payment or made available for a sinking
fund for the purchase or redemption of any Junior Stock, unless and
until all dividends to which the holders of the Junior Preferred Stock
and any Parity Stock shall have been entitled for all current and all
previous dividend periods shall have been paid or declared and the
consideration sufficient for the payment thereof set apart so as to be
available for the payment thereof and for no other purpose; provided,
however, that nothing contained in this subparagraph (E) shall prevent
the payment of dividends solely in Junior Stock or the repurchase,
redemption or other acquisition solely through the issuance of Junior
Stock.
3. Distributions Upon Liquidation, Dissolution or Winding Up.
Subject to the prior payment in full of the preferential amounts to
which any Senior Stock is entitled, in the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, the holders of shares of the Junior Preferred Stock shall
be entitled to receive from the assets of the Corporation available for
distribution to the shareholders the sum of $200 per share, together
with the amount of all cumulative dividends accrued and unpaid thereon
to and including the date of such liquidation, dissolution or winding
up, before any payment or distribution shall be made to the holders of
any Junior Stock of the Corporation, which payment shall be made pari
passu to any such payment made to the holders, if any, of any Parity
Stock. The holders of the Junior Preferred Stock shall be entitled to no
other or further distribution of or participation in any remaining
assets of the Corporation after receiving the liquidation price
described above. If, upon distribution of the Corporation's assets in
liquidation, dissolution or winding up, the assets of the Corporation to
be distributed among the holders of the Junior Preferred Stock and to
all holders of any Parity Stock shall be insufficient to permit payment
in full to such holders of the preferential amounts to which they are
entitled, then the entire assets of the Corporation to be distributed to
holders of the Junior Preferred Stock and such Parity Stock shall be
distributed pro rata to such holders based upon the aggregate of the
full preferential amounts to which the shares of Junior Preferred Stock
and such Parity Stock would otherwise respectively be entitled. Neither
the consolidation or merger of the Corporation with or into any other
corporation or corporations nor the sale, transfer, or lease of all or
substantially all the assets of the Corporation shall itself be deemed
to be a liquidation, dissolution or winding up of the Corporation within
the meaning of this Paragraph 3.
5
<PAGE> 11
4. Voting Rights. (A) Except as otherwise expressly
provided in this Paragraph 4 or as otherwise required by law, the
holders of shares of Junior Preferred Stock shall vote together with
the holders of the Common Stock (and the holders of any other class
or series of the Corporation's stock entitled to vote with the
holders of the Common Stock) as a single class for the election of
directors and on all other matters coming before any meeting of the
shareholders of the Corporation or otherwise to be acted upon by the
shareholders of the Corporation, subject to any voting rights granted
or which may be granted to holders of any other class or series of
the preferred stock of the Corporation. Each share of Junior
Preferred Stock shall entitle the holder thereof to one vote on all
matters submitted to a vote of the shareholders of the Corporation.
(B) In addition to the voting rights set forth above,
if and when dividends payable on the Junior Preferred Stock shall be
in arrears in an amount equivalent to or exceeding three (3) full
semiannual dividends thereon, whether or not consecutive, the holders
of shares of the Junior Preferred Stock, voting separately as a
class, shall be entitled to elect two directors to the Board of
Directors. Directors so elected shall thereupon become additional
directors of the Corporation and the authorized number of directors
of the Corporation shall thereupon be automatically increased by such
number. During such times that the holders of the Junior Preferred
Stock, voting as a class, shall be entitled to elect such additional
directors as provided herein, the holders of the Junior Preferred
Stock shall not be entitled to participate in the election of any
other directors with the holders of shares of the Common Stock or any
other class or classes of stock who are entitled to vote for the
election of directors.
Such right of the holders of shares of the Junior
Preferred Stock who are entitled to vote in such manner to elect
such additional directors may be exercised until all dividends in
default on the Junior Preferred Stock shall have been paid or
declared and the consideration sufficient for the payment in full
thereof set apart so as to be available for the payment thereof and
for no other purpose; when said dividends shall have been so paid or
declared and set apart, such right to elect two directors shall
terminate, subject to the vesting of such voting rights in the event
of any such future default or defaults in the payment of dividends.
Whenever the holders of shares of the Junior Preferred Stock who are
entitled to vote in such manner shall be divested of such
6
<PAGE> 12
voting rights by reason of the payment or the declaration and setting
apart of consideration sufficient for the payment in full of the
dividends then in default, the terms of office of the directors
elected as such by the holders of shares of the Junior Preferred
Stock shall forthwith terminate and the number of the directors of
the Corporation shall be reduced correspondingly.
At any time after such voting rights shall so have
vested in the holders of shares of the Junior Preferred Stock who
are entitled to vote in such manner, the Secretary of the
Corporation may, and upon the written request of the holders of
record of not less than 75% of the outstanding shares of Junior
Preferred Stock, addressed to him at the principal office of the
Corporation, shall, call a special meeting of the holders of
shares of the Junior Preferred Stock who are entitled to vote in
such manner for the election of the directors to be elected by
them, such meeting to be held within 10 days after the earlier of
such call or the delivery of such request and at the place and
upon the notice provided by the By-laws of the Corporation for
the holding of meetings of shareholders, except that the
Secretary of the Corporation shall not be required to call such a
special meeting if the request for such call is received less
than 45 days prior to the date fixed for the next annual meeting
of shareholders.
5. Consolidation, Merger, Etc. In case the Corporation shall
enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Junior Preferred Stock
shall at the same time be similarly exchanged or changed in an amount
per share (subject to the provision for adjustment hereinafter set
forth) equal to 100 times the aggregate amount of stock, securities,
cash and/or any other property (payable in kind), as the case may be,
into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount set forth
in the preceding sentence with respect to the exchange or change of
shares of Junior Preferred Stock
7
<PAGE> 13
shall be adjusted by multiplying such amount (as such amount
may have been previously adjusted by reason of the prior
occurrence(s) of any such events)) by a fraction the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding
immediately prior to such event.
6. Reacquired Shares. Any shares of Junior Preferred
Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired and cancelled promptly
after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of preferred
stock and may be reissued as part of a new series of preferred
stock to be created by amendment of the Certificate of
Incorporation adopted by resolution of the Board of Directors,
subject to the conditions and restrictions on issuance set forth
herein.
7. Preemptive Rights. The holders of shares of the
Junior Preferred Stock shall not have any preemptive right to
subscribe for or purchase any shares of stock or any other
securities which may be issued by the Corporation.
8. No Redemption. The shares of Junior Preferred
Stock shall not be redeemable.
9. Amendment. Without the consent of the
holders of at least 75% of the shares of Junior Preferred
Stock at the time outstanding, either in writing or by vote at a
meeting called for that purpose at which the holders of the
Junior Preferred Stock shall vote as a class, neither the
Certificate of Incorporation nor any resolution of the Board of
Directors establishing and designating a series of preferred
stock and determining the relative rights and preferences thereof
shall be changed so as to alter in an adverse manner the
designations, preferences, limitations and rights of holders of
the Junior Preferred Stock.
10. Fractional Shares. The Junior Preferred Stock may
be issued in fractions of a share which shall entitle the
holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of
holders of Junior Preferred Stock.
11. EXCLUSION of OTHER RIGHTS. Except as may
otherwise be required by law, the shares of Junior
8
<PAGE> 14
Preferred Stock shall not have any designations, preferences,
limitations or relative rights, other than those specifically set forth in
the Certificate of Incorporation.
12. Headings of Subdivisions. The headings of the various
subdivisions hereof are for convenience of reference only and shall not
affect the interpretation of any of the provisions hereof.
13. Severability of Provisions. If any right, preference or
limitation of the Junior Preferred Stock set forth in this resolution (as
such resolution may be amended from time to time) is invalid, unlawful or
incapable of being enforced by reason of any rule of law or public policy,
all other rights, preferences and limitations set forth in this Paragraph
(as so amended) which can be given effect without the invalid, unlawful or
unenforceable right, preference or limitation shall, nevertheless, remain
in full force and effect, and no right, preference or limitation herein set
forth shall be deemed dependent upon any other such right, preference or
limitation unless so expressed herein.
9
<PAGE> 15
IN WITNESS WHEREOF, this Certificate has been signed by Michael F.
Swick and attested to by Lynette D. Schoenfeld, of the Corporation, all as of
the 2 day of May, 1994.
AGCO CORPORATION
By: /s/ Michael F. Swick
-------------------------
Michael F. Swick
Vice President
Attest:
By: /s/ Lynette D. Schoenfeld
-----------------------------
Lynette D. Schoenfeld
Assistant Secretary
10
<PAGE> 16
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
CORRECTION OF "AGCO CORPORATION", FILED IN THIS OFFICE ON THE SECOND DAY OF
SEPTEMBER, A.D. 1993, AT 10 O'CLOCK A.M.
/s/ William T. Quillen
---------------------------------------
William T. Quillen, Secretary of State
2260741 8100 AUTHENTICATION: 7159109
944114283 DATE: 06-23-94
<PAGE> 17
CERTIFICATE OF CORRECTION TO
CERTIFICATE OF AMENDMENT OF THE
CERTIFICATE OF INCORPORATION OF
AGCO CORPORATION FILED IN THE OFFICE OF
THE SECRETARY OF STATE OF DELAWARE
ON MARCH 19, 1992 AND RECORDED IN THE OFFICE OF
THE RECORDER OF DEEDS FOR NEW CASTLE COUNTY, DELAWARE
AGCO Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
1. The name of the corporation is AGCO Corporation.
2. A Certificate of Amendment of the Certificate of Incorporation of
the Corporation was filed with the Secretary of State of Delaware on March 19,
1992, and recorded in the office of the Recorder of Deeds of New Castle County,
Delaware, and said certificate requires correction as permitted by subsection
(f) of Section 103 of The General Corporation Law of the State of Delaware.
3. The inaccuracy of said Certificate of Amendment is that said
Certificate omitted the following language which should have been contained at
the end of the paragraph headed "First" thereof:
Upon the effectiveness of the Registration Statement on Form
S-1, File No. 33-60978, relating to Common Stock of the Corporation,
each common share of the Corporation, par value $.01 per share, shall
be reclassified into 3,434 common shares of the Corporation, par value
$.01 per share, without any action by the holders thereof.
<PAGE> 18
IN WITNESS WHEREOF, this Certificate has been made under the seal of
the Corporation and has been signed by the undersigned, Robert J. Ratliff and
Michael F. Swick, President and Secretary, respectively, of the Corporation,
this 1st day of September, 1993.
(CORPORATE SEAL) /s/ Robert J. Ratliff
----------------------------
Robert J. Ratliff
President
ATTEST:
/s/ Michael F. Swick
- --------------------------
Michael F. Swick
Secretary
<PAGE> 19
PAGE 1
State of Delaware
Office of the Secretary of State
---------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "AGCO CORPORATION", FILED IN THIS OFFICE ON THE FOURTEENTH DAY
OF MAY, A.D. 1993, AT 11:45 O'CLOCK A.M.
/s/ William T. Quillen
--------------------------------------
William T. Quillen, Secretary of State
2260741 8100 AUTHENTICATION: 7159108
944114283 DATE: 06-23-94
<PAGE> 20
CERTIFICATE OF DESIGNATIONS
OF
$16.25 CUMULATIVE CONVERTIBLE EXCHANGEABLE PREFERRED STOCK
($.01 Par Value)
OF
AGCO CORPORATION
---------------
Pursuant to Section 151(g) of the General Corporation Law
of the State of Delaware
---------------
The undersigned duly authorized officers of AGCO Corporation, a Delaware
corporation (the "Corporation"), DO HEREBY CERTIFY that the following
resolution was duly adopted on April 8, 1993, by the Board of Directors of the
Corporation pursuant to authority conferred on the Board of Directors by the
provisions of the Certificate of Incorporation of the Corporation (as amended)
and in accordance with the provisions of the Delaware General Corporation Law,
with certain of the designations and the preferences, rights and other terms
(but excluding voting rights) relating to dividends, redemption, dissolution,
any distribution of assets of the Corporation and the conversion into, the
exchange for, shares of another class of securities of the Corporation and
certain wording in the following resolution having been fixed by the Executive
Committee of the Board of Directors on May 11, 1993, pursuant to authority
delegated to it by the Board of Directors:
RESOLVED, that, pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation of the Corporation, as amended
(the "Certificate of Incorporation"), 368,000 of the authorized shares of
preferred stock of the Corporation, par value $.01 per share (the "Preferred
Stock"), are hereby designated "$16.25 Cumulative Convertible Exchangeable
<PAGE> 21
Preferred Stock", of which the voting powers, designations, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, shall be as follows:
1. Number of Shares and Designation. 368,000 shares of the preferred
stock, par value $.01 per share, of the Corporation are hereby constituted as
a series of the preferred stock designated as $16.25 Cumulative Convertible
Exchangeable Preferred Stock (the "Convertible Exchangeable Preferred Stock").
2. Definitions. For purposes of the Convertible Exchangeable Preferred
Stock, the following terms shall have the meanings indicated:
"Board of Directors" shall mean the board of directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Convertible
Exchangeable Preferred Stock.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in the City of New York are authorized
or obligated by law or executive order to close.
"Closing Price" of the Common Stock on any day shall mean on such day
the reported last sales price, regular way, for the Common Stock or, in
case no sale takes place on such day, the average of the reported closing
bid and asked prices, regular way, for the Common Stock in either case as
reported on the New York Stock Exchange, on the principal national
securities exchange on which the Common Stock is listed or admitted to
trading on any national securities exchange, on the National Market System
of the National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ National Market System") or, if the Common Stock
is not quoted on the NASDAQ National Market System, the average of the
closing bid and asked prices for the Common Stock on such day in the
over-the-counter market as reported by NASDAQ or, if bid and asked prices
for the Common Stock on each such date shall not have been reported by
NASDAQ, the average of bid and asked prices of the Common Stock for such
day as furnished by any New York Stock Exchange member firm regularly
making a market in the Common Stock selected for such purpose by the Board
of Directors or, if no such quotations are available, the fair market
value of the Common Stock furnished by any New York Stock Exchange member
firm selected from time to time by the Board of Directors for that
purpose.
"Common Stock" shall mean the Common Stock of the corporation, par
value $.01 per share.
-2-
<PAGE> 22
"Conversion Price" shall mean the conversion price per share of
Common Stock into which the Convertible Exchangeable Preferred Stock is
convertible, as such Conversion Price may be adjusted pursuant to Section
7 hereof. The initial Conversion Price will be $19.
"Corporate Change" shall have the meaning set forth in Section 8
hereof.
"Current Market Price" per share of Common Stock on any date shall
mean the average of the daily Closing Prices for the 30 consecutive
Trading Dates commencing 45 Trading Dates before the date of
determination.
"dividend payment date" shall have the meaning set forth in
paragraph (a) of Section 3 hereof.
"dividend payment record date" shall have the meaning set forth in
paragraph (a) of Section 3 hereof
"Dividend Periods" shall mean quarterly dividend periods commencing on
the first day of March, June, September and December of each year and
ending on and including the day preceding the first day of the next
succeeding Dividend Period (other than the initial Dividend Period which
shall commence on the Issue Date and end on and include August 31, 1993).
"Issue Date" shall mean the first date on which shares of Convertible
Exchangeable Preferred Stock are issued.
"Ownership Change" shall have the meaning set forth in Section 8
hereof.
"Person" shall mean any individual, firm, partnership, corporation or
other entity, and shall include any successor (by merger or otherwise) of
such entity.
"Securities" shall have the meaning set forth in paragraph (d)(iii)
of Section 7 hereof.
"Trading Date" with respect to Common Stock means (i) if the Common
Stock is listed or admitted for trading on the New York Stock Exchange or
another national securities exchange, a day on which the New York Stock
Exchange or such other national securities exchange is open for business,
(ii) if the Common Stock is quoted on the NASDAQ National Market System,
or a any similar system of automated dissemination of quotations
of securities prices, a day on which trades may be made on such system,
(iii) if not quoted as described in clause (ii), days on which quotations
are reported by the National Quotation Bureau Incorporated or (iv)
otherwise, any Business Day.
-3-
<PAGE> 23
"Transaction" shall have the meaning set forth in paragraph (e) of
Section 7 hereof.
"Transfer Agent" means Chemical Bank or such other agent or agents of
the Corporation as may be designated by the Board of Directors as the
transfer agent for the Convertible Exchangeable Preferred Stock.
3. Dividends. (a) The holders of shares of the Convertible Exchangeable
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available therefor, cumulative cash
dividends at an annual rate of 6-1/2% of the liquidation preference per share
(an amount equivalent to $16.25 per annum per share) of Convertible
Exchangeable Preferred Stock. Such dividends shall be cumulative from the
Issue Date, whether or not in any Dividend Period or Periods there shall be
funds of the Corporation legally available for the payment of such dividends
and whether or not such dividends are declared, and shall be payable quarterly,
when, as and if declared by the Board of Directors, on March 1, June 1,
September 1, and December l in each year (each a "dividend payment date"),
commencing on September 1, 1993. If September 1, 1993 or any other dividend
payment date shall be on a day other than a Business Day, then the dividend
payment date shall be on the next succeeding Business Day. Each such dividend
shall be payable in arrears to the holders of record of shares of the
Convertible Exchangeable Preferred Stock, as they appear on the stock records
of the Corporation at the close of business on those dates (each such date, a
"dividend payment record date"), not less than 10 days nor more than 60 days
preceding the dividend payment dates thereof, as shall be fixed by the Board
of Directors. Dividends on the Convertible Exchangeable Preferred Stock shall
accrue (whether or not declared) on a dally basis from the Issue Date and
accrued dividends for each Dividend Period shall accumulate to the extent not
paid on the dividend payment date first following the Dividend Period for which
they accrue. As used herein, the term "accrued" with respect to dividends
includes both accrued and accumulated dividends. Accrued and unpaid dividends
for any past Dividend Periods may be declared and paid at any time, without
reference to any regular dividend payment date, to holders of record on such
date, not exceeding 45 days preceding the payment date thereof, as may be fixed
by the Board of Directors.
(b) The amount of dividends payable for each full Dividend Period for the
Convertible Exchangeable Preferred Stock shall be computed by dividing the
annual dividend rate by four (rounded down to the nearest cent). The amount of
dividends payable for the initial Dividend Period on the Convertible
Exchangeable Preferred Stock, or any other period shorter or longer than a
full Dividend Period on the Convertible Exchangeable Preferred Stock shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
Holders of shares of Convertible Exchangeable Preferred Stock called for
redemption on a redemption date falling between the close of business on a
-4-
<PAGE> 24
dividend payment record date and the opening of business on the corresponding
dividend payment date shall, in lieu of receiving such dividend on the dividend
payment date fixed therefor, receive such dividend payment together with all
other accrued and unpaid dividends on the date fixed for redemption (unless
such holder converts such shares in accordance with Section 7 hereof). Holders
of shares of Convertible Exchangeable Preferred Stock shall not be entitled to
any dividends, whether payable in cash, property or securities, in excess of
cumulative dividends, as herein provided, on the Convertible Exchangeable
Preferred Stock. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on the Convertible
Exchangeable Preferred Stock which be in arrears.
(c) So long as any shares of the Convertible Exchangeable Preferred Stock
are outstanding, no dividends, except as described in the next succeeding
sentence, shall be declared or paid or set apart for payment on any class or
series of stock of the Corporation ranking, as to dividends, on a parity with
the Convertible Exchangeable Preferred Stock, for any period unless full
cumulative dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for such
payment on the Convertible Exchangeable Preferred Stock for all Dividend
Periods terminating on or prior to the date of payment, or setting apart for
payment, of such full cumulative dividends on such parity stock. When
dividends are not paid in full or a sum sufficient for such payment is not
set apart, as aforesaid, upon the shares of the Convertible Exchangeable
Preferred Stock and any other class or series of stock ranking on a
parity as to dividends with the Convertible Exchangeable Preferred Stock,
all dividends declared upon shares of the Convertible Exchangeable Preferred
Stock and all dividends declared upon such other stock shall be declared pro
rata so that the amounts of dividends per share declared on the Convertible
Exchangeable Preferred Stock and such other stock shall in all cases bear to
each other the same ratio that accrued dividends per share on the shares of the
Convertible Exchangeable Preferred Stock and on such other stock bear to each
other.
(d) So long as any shares of the Convertible Exchangeable Preferred Stock
are outstanding, no other stock of the Corporation ranking on a parity with the
Convertible Exchangeable Preferred Stock as to dividends or upon liquidation,
dissolution or winding up shall be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available for a sinking
fund or otherwise for the purchase or redemption of any shares of any such
stock) by the Corporation (except by conversion into or exchange for stock of
the Corporation ranking junior to the Convertible Exchangeable Preferred Stock
as to dividends and upon liquidation, dissolution or winding up) unless (i) the
full cumulative dividends, if any, accrued on all outstanding shares of the
Convertible Exchangeable Preferred Stock shall have been paid or set apart for
payment for all past Dividend Periods and (11) sufficient funds shall have
-5-
<PAGE> 25
been set apart for the payment of the dividend for the current Dividend Period
with respect to the Convertible Exchangeable Preferred Stock.
(e) So long as any shares of the Convertible Exchangeable Preferred Stock
are outstanding, no dividends (other than dividends or distributions paid in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, Common Stock or other stock ranking junior to the Convertible Exchangeable
Preferred Stock as to dividends and upon liquidation, dissolution or winding
up) shall be declared or paid or set apart for payment and no other
distribution shall be declared or made or set apart for payment, in each case
upon the Common Stock or any other stock of the Corporation ranking junior to
the Convertible Exchangeable Preferred Stock as to dividends or upon
liquidation, dissolution or winding up, nor shall any Common Stock nor any
other such stock of the Corporation ranking junior to the Convertible
Exchangeable Preferred Stock as to dividends or upon liquidation, dissolution
or winding up be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund or
otherwise for the purchase or redemption of any shares of any such stock) by
the Corporation (except by conversion into or exchange for stock of the
Corporation ranking junior to the Convertible Exchangeable Preferred Stock as
to dividends and upon liquidation, dissolution or winding up) unless, in each
case (i) the full cumulative dividends, if any, accrued on all outstanding
shares of the Convertible Exchangeable Preferred Stock and any other stock of
the Corporation ranking on a parity with the Convertible Exchangeable Preferred
Stock as to dividends shall have been paid or set apart for payment for all
past Dividend Periods and all past dividend periods with respect to such other
stock and (ii) sufficient funds shall have been set apart for the payment of
the dividend for the current Dividend Period with respect to the Convertible
Exchangeable Preferred Stock and for the current dividend period with respect
to any other stock of the Corporation ranking on a parity with the Convertible
Exchangeable Preferred Stock as to dividends.
4. Liquidation Preference. (a) In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
before any payment or distribution of the assets of the Corporation (whether
capital or surplus) shall be made to or set apart for the holders of Common
Stock or any other series or class or classes of stock of the Corporation
ranking junior to the Convertible Exchangeable Preferred Stock upon
liquidation, dissolution or winding up, the holders of the shares of
Convertible Exchangeable Preferred Stock shall be entitled to receive $250 per
share plus an amount per share equal to all dividends (whether or not earned
or declared) accrued and unpaid thereon to the date of final distribution to
such holders; but such holders shall not be entitled to any further payment.
No payment on account of any liquidation, dissolution or winding up of the
Corporation shall be made to the holders of any class or
-6-
<PAGE> 26
series of stock ranking on a parity with the Convertible Exchangeable Preferred
Stock in respect of the distribution of assets upon dissolution, liquidation or
winding up unless there shall likewise be paid at the same time to the holders
of the Convertible Exchangeable Preferred Stock like proportionate amounts
determined ratably in proportion to the full amounts to which the holders of
all outstanding shares of Convertible Exchangeable Preferred Stock and the
holders of all outstanding shares of such parity stock are respectively
entitled with respect to such distribution. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of the Corporation, or
proceeds thereof, distributable among the holders of the shares of Convertible
Exchangeable Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any other shares of
stock ranking, as to liquidation, dissolution or winding up, on a parity with
the Convertible Exchangeable Preferred Stock, then such assets, or the
proceeds thereof, shall be distributed among the holders of shares of
Convertible Exchangeable Preferred Stock and any such other stock ratably in
accordance with the respective amounts which would be payable on such shares of
Convertible Exchangeable Preferred Stock and any such other stock if all
amounts payable thereon were paid in full. For the purposes of this Section 4,
(i) a consolidation or merger of the Corporation with one or more corporations
or other entities, (ii) a sale, lease, exchange or transfer of all or any part
of the Corporation assets or (iii) a statutory share exchange shall not be
deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary.
(b) Subject to the rights of the holders of shares of any series or class
or classes of stock ranking on a parity with or prior to the Convertible
Exchangeable Preferred Stock upon liquidation, dissolution or winding up, upon
any liquidation, dissolution or winding up of the Corporation, after payment
shall have been made in full to the holders of Convertible Exchangeable
Preferred Stock, as provided in this Section 4, any other series or class or
classes of stock ranking junior to the Convertible Exchangeable Preferred Stock
upon liquidation, dissolution or winding up shall, subject to the respective
terms and provisions (if any) applying thereto, be entitled to receive any and
all assets remaining to be paid or distributed, and the holders of Convertible
Exchangeable Preferred Stock shall not be entitled to share therein.
(c) Written notice of any liquidation, dissolution or winding up of the
Corporation, stating the payment date or dates when and the place or places
where the amounts distributable in such circumstances shall be payable, shall
be given by first class mail, postage prepaid, not less than 30 days prior to
any payment date stated therein, to the holders of record of the Convertible
Exchangeable Preferred Stock at their respective addresses as the same shall
appear on the books of the Transfer Agent.
-7-
<PAGE> 27
5. Redemption at the Option of the Corporation. (a) Convertible
Exchangeable Preferred Stock may not be redeemed by the corporation prior to
June 1, 1996, an or after which the Corporation, at its option, may redeem the
shares of Convertible Exchangeable Preferred Stock, in whole or in part, out
of funds legally available therefor, at any time or from time to time,
subject to the notice provisions and provisions for partial redemption
described below, during the twelve-month periods beginning on June 1 in each of
the following years at the following redemption prices per share plus an
amount equal to accrued and unpaid dividends, if any, to (and including) the
date fixed for redemption, whether or not earned or declared.
<TABLE>
<CAPTION>
Redemption
Year Price
---- ----------
<S> <C> <C>
1996 $261.375
1997 $259.750
1998 $258.125
1999 $256.500
2000 $254.875
2001 $253.250
2002 $251.625
2003 and thereafter $250.000
</TABLE>
(b) In the event the Corporation shall redeem shares of Convertible
Exchangeable Preferred Stock, notice of such redemption shall be given by first
class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the redemption date, to each holder of record of the shares to be
redeemed, at such shareholder's address as the same appears on the stock
records of the Corporation. Each such notice shall state: (i) the redemption
date; (ii) the number of shares of Convertible Exchangeable Preferred Stock to
be redeemed and, if less than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (iii) the
redemption price; (iv) the place or places where certificates for such shares
are to be surrendered for payment of the redemption price; (v) the then current
conversion price; and (vi) that dividends on the shares to be redeemed shall
cease to accrue on such redemption date. Notice having been mailed as
aforesaid, from and after the redemption date, unless the Corporation
shall be in default in providing money for the payment of the redemption price
(including any accrued and unpaid dividends to (and including) the date fixed
for redemption), (i) dividends on the shares of the Convertible Exchangeable
Preferred Stock so called for redemption shall cease to accrue, (ii) said
shares shall be deemed no longer outstanding, and (iii) all rights of the
holders thereof as stockholders of the Corporation (except the right to receive
from the Corporation the moneys payable upon redemption without interest
thereon) shall cease. The Corporation's obligation to provide moneys in
accordance with the preceding sentence shall be deemed fulfilled if, on or
before the redemption date, the Corporation shall deposit with a bank or trust
company having an office in the
<PAGE> 28
Borough of Manhattan, City of New York, and having a capital and surplus of at
least $50,000,000, funds necessary for such redemption, in trust for the
account of the holders of the shares to be redeemed (and so as to be and
continue to be available therefor), with irrevocable instructions and authority
to such bank or trust company that such funds be applied to the redemption of
the shares of Convertible Exchangeable Preferred Stock so called for
redemption. Any interest accrued on such funds shall be paid to the
Corporation from time to time. Any funds so deposited and unclaimed at the
end of three years from such redemption date shall be released or repaid to the
Corporation, after which, subject to any applicable laws relating to escheat or
unclaimed property, the holder or holders of such shares of Convertible
Exchangeable Preferred Stock so called for redemption shall look only to the
Corporation for payment of the redemption price.
Upon surrender in accordance with said notice of the certificates for any
such shares so redeemed (properly endorsed or assigned for transfer, if the
Board of Directors shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation at the applicable redemption price
aforesaid. If fewer than all the outstanding shares of Convertible Exchangeable
Preferred Stock are to be redeemed, shares to be redeemed shall be selected by
the Corporation from outstanding shares of Convertible Exchangeable Preferred
Stock not previously called for redemption by lot or pro rata (as near as may
be) or by any other method determined by the Corporation in its sole discretion
to be equitable. If fewer than all the shares represented by any certificate
are redeemed, a new certificate shall be issued representing the unredeemed
shares without cost to the holder thereof.
Notwithstanding the foregoing, if notice of redemption has been given
pursuant to this Section 5 and any holder of shares of Convertible Exchangeable
Preferred Stock shall, prior to the close of business on (i) the redemption
date, or (ii) if the Corporation shall so elect and state in the notice of
redemption, the date (which date shall be the date fixed for redemption or, an
earlier date not less than 30 days after the date of mailing of the redemption
notice) on which the Corporation irrevocably deposits with a designated bank or
trust company as paying agent, money sufficient to pay, on the redemption date,
the redemption price, give written notice to the Corporation pursuant to
Section 7(b) hereof of the conversion of any or all of the shares to be
redeemed held by such holder (accompanied by a certificate or certificates for
such shares, duly endorsed or assigned to the Corporation), then the
conversion of such shares to be redeemed shall become effective as provided in
Section 7.
6. Shares to be Retired. All shares of Convertible Exchangeable
Preferred Stock purchased, redeemed, exchanged or converted by the Corporation
shall be retired and canceled and
-9-
<PAGE> 29
shall be restored to the status of authorized but unissued shares of Preferred
Stock, without designation as to series and may thereafter be reissued.
7. Conversion. Holders of shares of Convertible Exchangeable
Preferred Stock shall have the right to convert all or a portion of such shares
(including fractions of such shares) into shares of Common Stock, as follows:
(a) Subject to and upon compliance with the provisions of this Section
7, a holder of shares of Convertible Exchangeable Preferred Stock shall
have the right, at such holder's option, at any time to convent any of such
shares (or fractions thereof) into the number of fully paid and
nonassessable shares of Common Stock (calculated as to each conversion to
the nearest 1/100th of a share) obtained by dividing the aggregate
liquidation preference of the shares to be converted by the Conversion
Price and by surrender of such shares, such surrender to be made in the
manner provided in paragraph (b) of this Section 7; provided, however,
that the right to convert shares called for redemption pursuant to Section
5 hereof shall terminate at the close of business and (i) the date fixed
for such redemption, or (ii) if the Corporation shall so elect and state
in the notice of redemption, the date (which date shall be the date fixed
for redemption or an earlier date not less than 30 days after the date of
mailing of the redemption notice) on which the Corporation irrevocably
deposits with a designated bank or trust company as paying agent, money
sufficient to pay, on the redemption date, the redemption price, unless
the Corporation shall default in making payment of the amount payable upon
such redemption; and provided, however, that the right to convert shares
after a written notice of exchange is delivered by the Corporation
pursuant to Section 11 hereof shall terminate at the close of business on
the date fixed for such exchange, unless the Corporation shall default in
making payment of the amount payable upon such exchange. Subject to the
following provisions of this Section 7(a), any share of Convertible
Exchangeable Preferred Stock may be converted, at the option of its
holder, in part into Common Stock under the procedures set forth above. If
a part of a share of Convertible Exchangeable Preferred Stock is converted,
then the Corporation will convert such share into the appropriate number
of shares of Common Stock (subject to paragraph (c) of this Section 7) and
issue a fractional share of Convertible Exchangeable Preferred Stock
evidencing the remaining interest of such holder.
(b) In order to exercise the conversion right, the holder of each
share of Convertible Exchangeable Preferred Stock (or fraction
thereof) to be converted shall surrender the certificate representing such
share, duly endorsed or assigned to the Corporation or in blank, at the
office of the Transfer Agent in the Borough of Manhattan, City of New
York,
-10-
<PAGE> 30
accompanied by written notice to the Corporation that the holder thereof
elects to convert Convertible Exchangeable Preferred Stock or a specified
portion thereof. Unless the shares issuable on conversion are to be
issued in the same name as the name in which such share of Convertible
Exchangeable Preferred Stock is registered, each share surrendered for
conversion shall be accompanied by instruments of transfer, in form
satisfactory to the Corporation, duly executed by the holder or such
holder's duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory to the
Corporation demonstrating that such taxes have been paid or are not
required to be paid).
Holders of shares of Convertible Exchangeable Preferred Stock at the
close of business an a dividend payment record date shall be entitled to
receive the dividend payable on such shares on the corresponding dividend
payment date (except that holders of shares called for redemption on a
redemption date falling between the close of business on such dividend
payment record date and the opening of business on the corresponding
dividend payment date shall, in lieu of receiving such dividend on the
dividend payment date fixed therefor, receive such dividend payment
together with all other accrued and unpaid dividends on the date fixed for
redemption, unless such holder converts such shares called for redemption
pursuant to the provisions of this Section 7) notwithstanding the
conversion thereof following such dividend payment record date and prior
to such dividend payment date. However, shares of Convertible
Exchangeable Preferred Stock surrendered for conversion during the period
between the close of business on any dividend payment record date and the
opening of business on the corresponding dividend payment date (except
shares called for redemption or exchange on a redemption date or exchange
date during such period) must be accompanied by payment of an amount equal
to the dividend payment with respect to such shares of Convertible
Exchangeable Preferred Stock presented for conversion on such dividend
payment date. A holder of shares of Convertible Exchangeable Preferred
Stock on a dividend payment record date who (or whose transferee) tenders
any such shares for conversion into shares of Common Stock on the
corresponding dividend payment date will receive the dividend payable
by the Corporation on such shares of Convertible Exchangeable Preferred
Stock on such date and the converting holder need not include payment
in the amount of such dividend upon surrender of shares of Convertible
Exchangeable Preferred Stock for conversion or the dividend payment
date. Except as provided above, the Corporation shall make no payment
or allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends on the shares of Common Stock issued
upon such conversion.
-11-
<PAGE> 31
As promptly as practicable after the surrender of certificates for
shares of Convertible Exchangeable Preferred Stock as aforesaid, the
Corporation shall issue and shall deliver at such office to such holder,
or on such holder's written order, a certificate or certificates for the
number of shares of Common Stock issuable upon the conversion of such
shares in accordance with the provisions of this Section 7, and any
fractional interest in respect of a share of Common Stock arising upon
such conversion shall be settled as provided in paragraph (c) of this
Section 7.
Each conversion shall be deemed to have been effected immediately prior
to the close of business on the date on which the certificates for shares
of Convertible Exchangeable Preferred Stock shall have been surrendered
and such notice received by the corporation as aforesaid, and the
person or persons in whose name or names any certificate or certificates
for shares of Common Stock shall be issuable upon such conversion shall be
deemed to have become the holder or holders of record of the shares
represented thereby at such time on such date and such conversion shall be
at the Conversion Price in effect at such time on such date, unless, the
stock transfer books of the Corporation shall be closed on that date, in
which event such person or persons shall be deemed to have become such
holder or holders of record at the close of business on the next
succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date upon
which such shares shall have been surrendered and such notice received by
the Corporation. All shares of Common Stock delivered upon conversion of
the Convertible Exchangeable Preferred Stock will upon delivery be duly
and validly issued and fully paid and nonassessable.
(c) In connection with the conversion of any shares of Convertible
Exchangeable Preferred Stock, fractions of such shares may be converted;
however, no fractional shares or scrip representing fractions of shares of
Common Stock shall be issued upon conversion of the Convertible
Exchangeable Preferred Stock. Instead of any fractional interest in a
share of Common Stock which would otherwise be deliverable upon the
conversion of a share of Convertible Exchangeable Preferred Stock (or
fraction thereof), the Corporation shall pay to the holder of such share
an amount in cash (computed to the nearest cent) equal to the Closing
Price of Common Stock on the Trading Date immediately preceding the date
of conversion multiplied by the fraction of a share of Common Stock
represented by such fractional interest. If more than one share (or
fraction thereof) shall be surrendered for conversion at one time by the
same holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate number
of shares of Convertible Exchangeable Preferred Stock so surrendered.
-12-
<PAGE> 32
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) In case the Corporation shall after the Issue Date (A) pay
a dividend or make a distribution on its Common Stock in shares of
its Common Stock, (B) subdivide or split its outstanding Common
Stock into a greater number of shares, (C) combine its outstanding
Common Stock into a smaller number of shares or (D) issue
any shares of capital stock by reclassification of its Common Stock,
the Conversion Price in effect immediately prior thereto shall be
adjusted so that the holder of any share of Convertible Exchangeable
Preferred Stock thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock of the
Corporation which such holder would have owned or have been entitled
to receive after the occurrence of any of the events described above
had such share been surrendered for conversion immediately prior to
the occurrence of such event or the record date therefor, whichever
is earlier. An adjustment made pursuant to this subparagraph (i)
shall become effective immediately after the close of business on the
record date for determination of stockholders entitled to receive
such dividend or distribution in the case of a dividend or
distribution (except as provided in paragraph (h) below) and shall
become effective immediately after the close of business on the
effective date in the case of a subdivision, split, combination or
reclassification. Any shares of Common Stock issuable in payment of
a dividend shall be deemed to have been issued immediately prior to
the close of business on the record date for such dividend for
purposes of calculating the number of outstanding shares of Common
Stock under clauses (ii) and (iii) below.
(ii) In case the Corporation shall issue after the Issue Date
rights or warrants to all holders of Common Stock entitling them
(for a period expiring within 45 days after the issuance date) to
subscribe for or purchase Common Stock at a price per share less
than the Current Market Price per share of Common Stock at the
record date for the determination of stockholders entitled to
receive such rights or warrants, then the Conversion Price in effect
immediately prior thereto shall be adjusted to equal the price
determined by multiplying (A) the Conversion Price in effect
immediately prior to the date of issuance of such rights or warrants
by (B) a fraction, the numerator of which shall be the sum of (1)
the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants (without giving effect to any
such issuance) and (2) the number of shares which the aggregate
proceeds from the exercise of such rights or warrants
-13-
<PAGE> 33
for Common Stock would purchase at such Current Market Price, and the
denominator of which shall be the sum of (1) the number of shares of
Common Stock outstanding on the date of issuance of such rights or
warrants (without giving effect to any such issuance) and (2) the
number of additional shares of Common Stock offered for subscription
or purchase. Such adjustment shall be made successively whenever any
such rights or warrants are issued, and shall become effective
immediately after such record date. In determining whether any rights
or warrants entitle the holders of Common Stock to subscribe for or
purchase shares of Common Stock at less than such Current Market
Price, there shall be taken into account any consideration received by
the Corporation upon issuance and upon exercise of such rights or
warrants, the value of such consideration, if other than cash, to be
determined by the Board of Directors.
(iii) In case the Corporation shall pay a dividend or make a
distribution to all holders of its Common Stock after the Issue Date
of any shares of capital stock of the Corporation or its subsidiaries
(other than Common Stock) or evidences of its indebtedness or assets
(excluding cash dividends payable solely in cash that may from time to
time be fixed by the Board of Directors, or dividends or distributions
in connection with the liquidation, dissolution or winding up of the
Corporation) or rights or warrants to subscribe for or purchase any of
its securities or those of its subsidiaries (excluding those referred
to in subparagraph (ii) above) (any of the foregoing being hereinafter
in this subparagraph (iii) called the "Securities"), then in each such
case, the Conversion Price shall be adjusted so that it shall equal
the price determined by multiplying (A) the Conversion Price in effect
on the record date mentioned below by (B) a fraction, the numerator of
which shall be the Current Market Price per share of the Common Stock
on the record date mentioned below less the then fair market value (as
determined by the Board of Directors, whose determination shall, if
made in good faith, be conclusive) as of such record date of the
portion of the capital stock or assets or evidences of indebtedness
so distributed or of such rights or warrants applicable to one share
of Common Stock, and the denominator of which shall be the Current
Market Price per share of the Common Stock on such record date;
provided, however, that in the event the then fair market value (as
so determined) of the portion of Securities so distributed applicable
to one share of Common Stock is equal to or greater than the Current
Market Price per share of Common Stock on the record date mentioned
above, in lieu of the foregoing adjustment, adequate provision shall
be
-14-
<PAGE> 34
made so that each holder of shares of Convertible Exchangeable
Preferred Stock shall have the right to receive the amount and
kind of Securities such holders would have received had such holder
converted each such share of Convertible Exchangeable Preferred Stock
immediately prior to the record date for the distribution of the
Securities. Such adjustment shall become effective immediately,
except as provided in paragraph (h) below, after the record date for
the determination of stockholders entitled to receive such
distribution.
(iv) Notwithstanding anything in subparagraphs (ii) and (iii)
above, if such rights or warrants shall by their terms provide for an
increase or increases with the passage of time or otherwise in the
price payable to the Corporation upon the exercise thereof, the
Conversion Price upon any such increase becoming effective shall
forthwith be readjusted (but to no greater extent than originally
adjusted by reason of such issuance or sale) to reflect the same.
Upon the expiration or termination of such rights or warrants, if any
such rights or warrants shall not have been exercised, then the
Conversion Price shall forthwith be readjusted and thereafter be the
rate which it would have been had an adjustment been made on the basis
that (A) the only rights or warrants so issued or sold were those so
exercised and they were issued or sold for the consideration actually
received by the Corporation upon such exercise plus the consideration,
if any, actually received by the Corporation for the granting of all
such options, rights or warrants whether or not exercised and (B) the
Corporation issued and sold a number of shares of Common Stock equal
to those actually issued upon exercise of such rights, and such shares
were issued and sold for a consideration equal to the aggregate
exercise price in effect under the exercise rights actually exercised
at the respective dates of their exercise. For purposes of
subparagraphs (ii) and (iii), the aggregate consideration received by
the Corporation in connection with the issuance of shares of Common
Stock or of rights or warrants shall be deemed to be equal to the sum
of the aggregate offering price (before deduction of underwriting
discounts or commissions and expenses payable to third parties) of
all such securities plus the minimum aggregate amount, if any, payable
upon the exercise of such rights or warrants into shares of Common
Stock.
(v) In case the Corporation shall, by dividend or otherwise, at
any time distribute to all holders of the Common Stock cash
(excluding any cash that is distributed as part of a distribution
referred to in subparagraph (iii) above or in connection with a
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transaction to which paragraph (e) of this Section 7 applies) in an
aggregate amount that, together with (A) the aggregate amount of
any other distributions to all holders of the Common Stock made
exclusively in cash within the 12 months preceding the date fixed for
the determination of stockholders entitled to such distribution and in
respect of which no Conversion Price adjustment pursuant to
subparagraph (iii) above or this subparagraph (v) has been made
previously and (B) the aggregate of any cash plus the fair market
value (as determined by the Board of Directors, whose determination
shall, if made in good faith, be conclusive) as of such date of
determination of consideration payable in respect of any tender or
exchange offer by the Corporation or a Subsidiary for all or any
portion of the Common Stock consummated within 12 months preceding
such date of determination and in respect of which no Conversion Price
adjustment pursuant to subparagraph (vi) below has been made
previously, exceeds 12.5% of the product of the Current Market Price
per share of Common Stock on such date of determination times the
number of shares of Common Stock outstanding on such date, then in
each such case the Conversion Price shall be reduced so that it shall
equal the price obtained by multiplying the Conversion Price in effect
immediately prior to the close of business on such date of
determination by a fraction of which the numerator shall be the
Current Market Price per share of Common Stock on such date less the
amount of cash to be distributed at such time applicable to one share
of Common Stock and the denominator shall be such Current Market
Price, such reduction to become effective immediately prior to the
opening of business on the day after such date; provided, however,
that in the event the portion of the cash so distributed applicable
to one share of Common Stock is equal to or greater than the Current
Market Price per share of Common Stock on the record date mentioned
above, in lieu of the foregoing adjustment, adequate provision shall
be made so that each holder of shares of Convertible Exchangeable
Preferred Stock shall have the right to receive the amount of cash
such holder would have received had such holder converted each such
share of Convertible Exchangeable Preferred Stock immediately prior
to the record date for such distribution.
(vi) In case a tender or exchange offer made by the Corporation
or any Subsidiary for all or any portion of the Common Stock shall be
consummated and such tender or exchange offer shall involve an
aggregate consideration having a fair market value (as determined by
the Board of Directors, whose determination shall, if made in good
faith, be conclusive) as of the last time (the "Expiration Time") that
tenders or exchanges may be made
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<PAGE> 36
pursuant to such tender or exchange offer (as it shall have been
amended) that, together with (A) the aggregate of the cash plus the
fair market value (as determined by the Board of Directors, whose
determination shall, if made in good faith, be conclusive) as of the
Expiration Time of the other consideration paid in respect of any
other tender or exchange offer by the Corporation or a Subsidiary for
all or any portion of the Common Stock consummated within the 12
months preceding the Expiration Time and in respect of which no
Conversion Price adjustment pursuant to this subparagraph (iii) has
been made previously and (B) the aggregate amount of any distributions
to all holders of the Common Stock made exclusively in cash within the
12 months preceding the Expiration Time and in respect of which no
Conversion Price adjustment pursuant to subparagraphs (iii) or (v)
above has been made previously, exceeds 12.5% of the product of the
Current Market Price per share of Common Stock immediately prior to
the Expiration Time times the number of shares of Common Stock
outstanding (including any tendered or exchanged shares) at the
Expiration Time, then in each such case the Conversion Price shall be
reduced so that it shall equal the price obtained by multiplying the
Conversion Price in effect immediately prior to the Expiration Time by
a fraction of which the numerator shall be (x) the product of the
Current Market Price per share of Common Stock immediately prior to
the Expiration Time times the number of shares of Common Stock
outstanding (including any tendered or exchanged shares) at the
Expiration Time minus (y) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders upon
consummation of such tender or exchange offer and the denominator shall
be the product of (A) such Current Market Price times (B) such number
of outstanding shares at the Expiration Time minus the number of shares
accepted for payment in such tender or exchange offer (the "Purchased
Shares"), such reduction to become effective immediately prior to the
opening of business on the day following the Expiration Time;
provided, however, that if the number of Purchased Shares or the
aggregate consideration payable therefor have not been finally
determined by such opening of business, the adjustment required by
this subparagraph (vi) shall, pending such final determination, be
made based upon the preliminarily announced results of such tender or
exchange offer, and, after such final determination shall have been
made, the adjustment required by this subparagraph (vi) shall be made
based upon the number of Purchased Shares and the aggregate
consideration payable therefor as so finally determined.
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(vii) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which
by reason of this subparagraph (vii) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment; and provided, however, that any adjustment shall be
required and shall be made in accordance with the provisions of this
Section 7 (other than this subparagraph (vii)) not later than such time
as may be required in order to preserve the tax-free nature of a
distribution to the holder of shares of Common Stock. All
calculations under this Section 7 shall be made to the nearest cent
(with $.005 being rounded upward) or to the nearest 1/100th of a share
(with .005 of a share being rounded upward), as the case may be.
Anything in this paragraph (d) to the contrary notwithstanding, the
Corporation shall be entitled, to the extent permitted by law, to make
such reductions in the Conversion Price, in addition to those required
by this paragraph (d), as it in its discretion shall determine to be
advisable in order that any stock dividends, subdivision of shares,
distribution of rights or warrants to purchase stock or securities, or
a distribution of other assets or any other transaction which could be
treated as any of the foregoing transactions pursuant to Section 305
of the Internal Revenue Code of 1986, as amended, hereafter made by
the Corporation to its stockholders shall not be taxable for such
stockholders.
(e) In case the Corporation shall be a party to any transaction
(including without limitation a merger, consolidation, sale of all or
substantially all of the Corporation's assets or recapitalization of the
Common Stock and excluding any transaction as to which paragraph (d)(i) of
this Section 7 applies) (each of the foregoing being referred to as a
"Transaction"), in each case as a result of which shares of Common Stock
shall be converted into the right to receive stock, securities or other
property (including cash or any combination thereof), then the Convertible
Exchangeable Preferred Stock will thereafter no longer be subject to
conversion into Common Stock pursuant to Section 7, but instead shall be
convertible into the kind and amount of shares of stock and other
securities and property receivable (including cash),upon the consummation
of such Transaction by a holder of that number of shares or fraction there
of of Common Stock into which one share of Convertible Exchangeable
Preferred Stock was convertible immediately prior to such Transaction.
The Corporation shall not be a party to any Transaction unless the terms
of such Transaction are consistent with the provisions of this paragraph
(e) and it shall not consent or agree to the occurrence of any Transaction
until the Corporation has entered into an
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<PAGE> 38
agreement with the successor or purchasing entity, as the case may be, for
the benefit of the holders of the Convertible Exchangeable Preferred
Stock which will contain provisions enabling the holders of the
Convertible Exchangeable Preferred Stock which remains outstanding after
such Transaction to convert into the consideration received by holders of
Common Stock at the Conversion Price immediately after such Transaction.
In the event that at any time, as a result of an adjustment made pursuant
to this Section 7, the Convertible Exchangeable Preferred Stock shall
become subject to conversion into any securities other than shares of
Common Stock, thereafter the number of such other securities so issuable
upon conversion of the shares of Convertible Exchangeable Preferred Stock
shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to the
shares of Convertible Exchangeable Preferred Stock contained in this
Section 7. The provisions of this paragraph (e) shall similarly apply to
successive Transactions.
(f) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on the Common Stock that would cause an adjustment to
the Conversion Price of the Convertible Exchangeable Preferred Stock
pursuant to the terms of any of the paragraphs above (including such
an adjustment that would occur but for the terms of the first sentence
of subparagraph (d)(vii) above); or
(ii) the Corporation shall authorize the granting to the holders
of the Common Stock of rights or warrants to subscribe for or purchase
any shares of any class or any other rights or warrants; or
(iii) there shall be any reclassification or change of the Common
Stock (other than an event to which paragraph (d)(i) of this Section
7 applies) or any consolidation, merger or statutory share exchange to
which the Corporation is a party and for which approval of any
stockholders of the Corporation is required, or the sale or transfer
of all or substantially all of the assets of the Corporation or any
Corporate Change or Ownership Change (each as defined in Section 8
below); or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then, except as provided otherwise in Section 8, the Corporation shall
cause to be filed with the Transfer Agent and shall cause to be mailed
to the holders of shares of the
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<PAGE> 39
Convertible Exchangeable Preferred Stock at their addresses as shown on
the stock records of the Corporation, as promptly as possible, but
at least 30 days prior to the applicable date hereinafter specified, a
notice stating (A) the date on which a record is to be taken for the
purpose of such dividend, distribution or granting of rights or warrants,
or, if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend, distribution or
rights or warrants are to be determined or (B) the date on which such
reclassification, change, consolidation, merger, statutory share exchange,
sale, transfer, dissolution, liquidation or winding up is expected to
become effective or occur, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable upon
such reclassification, change, consolidation, merger, statutory share
exchange, sale, transfer, dissolution, liquidation or winding up. Failure
to give such notice or any defect therein shall not affect the legality or
validity of the proceedings described in this Section 7.
(g) Whenever the Conversion Price is adjusted as herein provided,
the Corporation shall promptly file with the Transfer Agent an officers'
certificate signed by the President or a Vice President and the Chief
Financial Officer or the Treasurer setting forth the Conversion Price
after such adjustment, the method of calculation thereof and setting forth
a brief statement of the facts requiring such adjustment and upon which
such adjustments are based. Promptly after delivery of such certificate,
the Corporation shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price, the facts
requiring such adjustment and upon which such adjustments are based and
the date on which such adjustment becomes effective and shall mail such
notice of such adjustment of the Conversion Price to the holder of each
share of Convertible Exchangeable Preferred Stock at such holder's last
address as shown on the stock records of the Corporation.
(h) In any case in which paragraph (d) of this Section 7 provides
that an adjustment shall become effective immediately after a record date
for an event and the date fixed for conversion pursuant to Section 7
occurs after such record date but before the occurrence of such event,
the Corporation may defer until the actual occurrence of such event (i)
issuing to the holder of any share of Convertible Exchangeable
Preferred Stock surrendered for conversion the additional shares of
Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock issuable upon
such conversion
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<PAGE> 40
before giving effect to such adjustment and (ii) paying to such holder any
amount in cash in lieu of any fraction pursuant to paragraph (c) of this
Section 7.
(i) For purposes of this Section 7, the number of shares of Common
Stock at any time outstanding shall not include any shares of Common
Stock then owned or held by or for the account of the Corporation or any
corporation controlled by the Corporation.
(j) Notwithstanding any other provision herein to the contrary, the
issuance of any shares of Common Stock pursuant to any plan providing for
the reinvestment of dividends or interest payable on securities of the
Corporation and the investment of additional optional amounts in shares of
Common Stock under any such plan shall not be deemed to constitute an
issuance of Common Stock. There shall be no adjustment of the Conversion
Price in case of the issuance of any stock of the Corporation in a
reorganization, acquisition or other similar transaction except as
specifically set forth in this Section 7. If any action or transaction
would require adjustment of the Conversion Price pursuant to more than one
paragraph of this Section 7, only one adjustment shall be made and such
adjustment shall be the amount of adjustment which has the highest
absolute value.
(k) In case the Corporation shall take any action affecting the Common
Stock, other than action described in this Section 7, which in the
opinion of the Board of Directors would materially adversely affect the
conversion rights of the holders of the shares of Convertible Exchangeable
Preferred Stock, the Conversion Price for the Convertible Exchangeable
Preferred Stock may be adjusted, to the extent permitted by law, in such
manner, if any, and at such time, as the Board of Directors may determine
to be equitable in the circumstances.
(l) The Corporation covenants that it will at all times reserve and
keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of Common Stock or its issued shares of
Common Stock held in its treasury, or both, for the purpose of effecting
conversion of the Convertible Exchangeable Preferred Stock, the full
number of shares of Common Stock deliverable upon the conversion of all
outstanding shares of Convertible Exchangeable Preferred Stock not
theretofore converted. For purposes of this paragraph (1), the number of
shares of Common Stock which shall be deliverable upon the conversion
of all outstanding shares of Convertible Exchangeable Preferred
Stock shall be computed as if at the time of computation all such
outstanding shares were held by a single holder.
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Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value of the shares of Common Stock
deliverable upon conversion of the Convertible Exchangeable Preferred
Stock, the Corporation will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Corporation may
validly and legally issue fully paid and nonassessable shares of Common
Stock at such adjusted Conversion Price.
The Corporation will endeavor to make the shares of Common Stock
required to be delivered upon conversion of the Convertible Exchangeable
Preferred Stock eligible for trading upon the NASDAQ National Market
System or upon any national securities exchange upon which the Common
Stock shall then be traded, prior to such delivery.
Prior to the delivery of any securities which the Corporation shall be
obligated to deliver upon conversion of the Convertible Exchangeable
Preferred Stock, the Corporation will endeavor to comply with all federal
and state laws and regulations thereunder requiring the registration of
such securities with, or any approval of or consent to the delivery
thereof by, any governmental authority.
(m) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or
delivery of the shares of Convertible Exchangeable Preferred Stock (or any
other securities issued on account of the Convertible Exchangeable
Preferred Stock pursuant hereto) or shares of Common Stock on conversion
of the Convertible Exchangeable Preferred Stock pursuant hereto; provided,
however, that the Corporation shall not be required to pay any tax which
may be payable in respect of any transfer involved in the issue or
delivery of shares of Convertible Exchangeable Preferred Stock (or any
other securities issued on account of the Convertible Exchangeable
Preferred Stock pursuant hereto) or shares of Common Stock in a name other
than the name in which the shares of Convertible Exchangeable Preferred
Stock with respect to which such Common Stock shares are issued were
registered and the Corporation shall not be required to make any
issue or delivery unless and until the person requesting such issue or
delivery has paid to the Corporation the amount of any such tax or has
established, to the reasonable satisfaction of the Corporation, that such
tax has been paid or is not required to be paid.
(n) The Corporation shall not take any action which results in
adjustment of the number of shares of Common Stock issuable upon
conversion of a share of Convertible Exchangeable Preferred Stock if the
total number of shares of Common Stock issuable after such action upon
conversion of the Convertible Exchangeable Preferred Stock then
outstanding, together with the total number of shares of
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<PAGE> 42
Common Stock then outstanding, would exceed the total number of shares of
Common Stock then authorized under the Corporation's Certificate of
Incorporation. Subject to the foregoing, the Corporation shall take
all such actions as it may deem reasonable under the circumstances to
provide for the issuance of such number of shares of Common Stock as would
be necessary to allow for the conversion from time to time, and taking
into account adjustments as herein provided, of outstanding shares of the
Convertible Exchangeable Preferred Stock in accordance with the terms and
provisions of the Corporation's Certificate of Incorporation.
8. Conversion Rights Upon Corporate Change or Ownership Change. (a) If a
Corporate Change (as defined below) should occur with respect to the
Corporation, each holder of shares of the Convertible Exchangeable Preferred
Stock shall have the right, at the holder's option, for a period of 45 days
after the mailing of a notice by the Corporation that a Corporate Change has
occurred, to convert all, but not less than all, of such holder's shares of the
Convertible Exchangeable Preferred Stock into the kind and amount of cash,
securities, property or other assets receivable upon such Corporate Change by a
holder of the number of shares of Common Stock into which such holder's
Convertible Exchangeable Preferred Stock would have been convertible
immediately prior to the Corporate Change at an adjusted conversion price equal
to the Special Conversion Price. The Corporation or successor corporation, as
the case may be, may at its option, in lieu of providing such consideration
upon any such conversion, provide the holders who have elected to convert under
this Section 8(a) with cash equal to the Market Value of the Common Stock
multiplied by the number of shares of Common Stock into which such holder's
Convertible Exchangeable Preferred Stock would have been convertible
immediately prior to the Corporate Change at an adjusted conversion price equal
to the Special Conversion Price, but only if the Corporation, in its notice to
the holder that a Corporate Change has occurred, has notified such holder of
the Corporation's election to provide such holder with cash in lieu of such
consideration; provided, however, that any such election by the Corporation
shall apply to all shares of the Convertible Exchangeable Preferred Stock for
which the special conversion was elected. Shares of the Convertible
Exchangeable Preferred Stock that are not converted as provided above will
remain convertible into the kind and amount of cash, securities, property or
other assets that the holders of the shares of the Convertible Exchangeable
Preferred Stock would have owned immediately after the Corporate Change if the
holders had converted the shares of the Convertible Exchangeable Preferred
Stock immediately before the effective date of the Corporate Change. The
Corporation will notify the holders of the Convertible Exchangeable Preferred
Stock of any pending Corporate Change as soon as practicable and in any event
at least 30 days in advance of the effective date of such Corporate Change. In
the event of a pending Corporate Change, the Corporation (or any successor
corporation) shall, unless it has determined to provide
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<PAGE> 43
the holders who have elected to convert under this Section 8(a) with cash as
provided above, take all action necessary to provide for sufficient amounts of
cash, securities, property or other assets for the conversion of the
Convertible Exchangeable Preferred Stock as provided herein.
(b) If an Ownership Change (as defined below) should occur with respect to
the Corporation, each holder of a share of the Convertible Exchangeable
Preferred Stock shall have the right, at the holder's option, for a period of
45 days after the mailing of a notice by the Corporation that an Ownership
Change has occurred, to convert all, but not less than all, of such holder's
shares of the Convertible Exchangeable Preferred Stock into Common Stock at an
adjusted conversion price per share equal to the Special Conversion Price. The
Corporation may, at its option, in lieu of providing Common Stock upon any such
conversion, provide the holders who have elected to convert under this Section
8(b) with cash equal to the Market Value of the Common Stock multiplied by the
number of shares of Common Stock into which such shares of Convertible
Exchangeable Preferred Stock would have been convertible immediately prior to
such Ownership Change at an adjusted conversion price equal to the Special
Conversion Price, but only if the Corporation, in its notice to the holder
that an Ownership Change has occurred, has notified such holder of the
Corporation's election to provide such holder with cash in lieu of such Common
Stock; provided, however, that any such election by the Corporation shall
apply to all shares of the Convertible Exchangeable Preferred Stock for which
the special conversion was elected.
(c) The special conversion right provided in this Section 8 arising upon
an ownership Change will only be applicable with respect to the first Ownership
Change that occurs after the date hereof.
(d) If a Corporate Change or an Ownership Change shall occur, then, as
soon as practicable and in any event within 30 days after the occurrence of
such Corporate Change or Ownership Change, the Corporation shall mail to each
registered holder of a share of Convertible Exchangeable Preferred Stock a
notice (the "Special Conversion Notice") setting forth details regarding the
special conversion right of the holders to convert their shares of Convertible
Exchangeable Preferred Stock as a result of such Corporate Change or Ownership
Change, as the case may be, including, if applicable, notice of the
Corporation's or the successor corporation's election to provide such holder
with cash in lieu of Common Stock or other consideration. A holder of a share
of Convertible Exchangeable Preferred Stock must exercise such conversion right
within the 45-day period after the mailing of the Special Conversion Notice by
the Corporation or such special right shall expire. The conversion date for
shares so converted shall be the 45th day after the mailing of the Special
Conversion Notice. Within five Business Days thereafter, the Corporation shall
deliver a certificate for the Common Stock
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together with a check for any fractional shares issuable or the cash,
securities, property or other assets receivable by a holder. Exercise of such
conversion right shall be irrevocable and no dividend on the shares of
Convertible Exchangeable Preferred Stock tendered for conversion shall accrue
from and after the conversion date.
(e) The Special Conversion Notice shall state:
(i) the event constituting the Corporate Change or Ownership
Change;
(ii) the last date upon which holders may submit shares of
Convertible Exchangeable Preferred Stock for conversion;
(iii) the Special Conversion Price;
(iv) the Conversion Price then in effect under Section 7 and the
continuing conversion rights, if any, under Section 7;,
(v) the name and address of any paying agent and conversion
agent;
(vi) that holders who wish to convert shares of Convertible
Exchangeable Preferred Stock must satisfy the requirements of Section
7 and must exercise such conversion right within the 45-day period
after the mailing of such notice by the Corporation;
(vii) that exercise of such conversion right shall be irrevocable
and no dividends on shares of Convertible Exchangeable Preferred Stock
tendered for conversion shall accrue from and after the conversion
date;
(viii) whether or not the Corporation has elected to exercise its
option to pay cash (specifying the amount thereof per share) for all
shares of Convertible Exchangeable Preferred Stock tendered for
conversion; and
(ix) that the consideration to be received shall be delivered
within five Business Days after the last date upon which holders may
submit Convertible Exchangeable Preferred Stock for conversion.
(f) (i) As used herein, a "Corporate Change" with respect to the
Corporation shall be deemed to have occurred at such time as the Corporation is
a party to a business combination, including a merger or consolidation or the
sale of all or substantially all of its assets and as a result of such business
combination, the Convertible Exchangeable Preferred Stock (or the depository
shares representing the Convertible Exchangeable Preferred Stock) or the Common
Stock thereafter is not listed on
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the New York Stock Exchange or the American Stock Exchange, or admitted for
quotation on the NASDAQ National Market System. A Corporate Change will not,
however, be deemed to occur with respect to any transaction in which the
consideration received by the holders of Common Stock of the Corporation
consists solely of Marketable Stock.
(ii) As used herein, an "Ownership Change" with respect to the
Corporation shall be deemed to have occurred at such time as any "person"
(as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) becomes the beneficial owner (as defined below), directly
or indirectly, of more than 50% of the outstanding Common Stock pursuant to a
transaction that does not constitute a Corporate Change with respect to the
Corporation.
(iii) As used herein, a person shall be deemed to have "beneficial
ownership" with respect to, and shall be deemed to "beneficially own" any
securities of the Corporation in accordance with Section 13 of the Exchange Act
and the rules and regulations (including Rule 13d-3, Rule 13d-5, and any
successor rules) promulgated by the Securities and Exchange Commission
thereunder; provided, however, that a person shall be deemed to have beneficial
ownership of all securities that any such person has a right to acquire whether
such right is exercisable immediately or only after the passage of time and
without regard to the 60-day limitation referred to in Rule 13d-3.
(iv) As used herein, the "Market Value" of a share of the Common Stock or
any other Marketable Stock shall be the average of the Closing Price of the
Common Stock or such other Marketable Stock for the five Trading Days ending on
the last Trading Day preceding the date of the Corporate Change or Ownership
Change.
(v) As used herein, the term "Marketable Stock" shall mean Common Stock or
common stock of any corporation that is the successor to all or substantially
all of the business or assets of the Corporation as a result of a Corporate
Change that is (or will, upon distribution thereof, be) listed on the New York
Stock Exchange or the American Stock Exchange, or approved for quotation on
the NASDAQ National Market System.
(vi) As used herein, the "Special Conversion Price" shall mean the higher
of the Market Value of the Common Stock or $10 per share (which amount will,
each time the Conversion Price is adjusted, be adjusted so that the ratio of
such amount to the Conversion Price, after giving effect to any such adjustment,
shall always be the same as the ratio of $10 to the initial Conversion Price,
without giving effect to any such adjustment.
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9. Ranking. Any class or classes of stock of the
Corporation shall be deemed to rank:
(i) prior to the Convertible Exchangeable Preferred
Stock, as to dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, if the holders of such
class shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding
up, as the case may be, in preference or priority to the
holders of Convertible Exchangeable Preferred Stock.
(ii) on a parity with the Convertible Exchangeable
Preferred Stock, as to dividends or as to the distribution of
assets upon liquidation, dissolution or winding up, whether or
not the dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from those of
the Convertible Exchangeable Preferred Stock, if the holders of
such class of stock and the Convertible Exchangeable Preferred
Stock shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding
up, as the case may be, in proportion to their respective
amounts of accrued and unpaid dividends per share or
liquidation prices, without preference or priority of one over
the other; and
(iii) junior to the Convertible Exchangeable Preferred
Stock, as to dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, if such stock shall be
Common Stock or if the holders of Convertible Exchangeable
Preferred Stock shall be entitled to receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding
up, as the case may be, in preference or priority to the
holders of shares of such stock.
10. Voting. (a) Except as herein provided or
as otherwise from time to time required by law, holders of
Convertible Exchangeable Preferred Stock shall have no voting
rights. Whenever, at any time or times, dividends payable on the
shares of Convertible Exchangeable Preferred Stock at the time
outstanding shall be cumulatively in arrears for such number of
Dividend Periods (whether or not consecutive) which shall in the
aggregate contain not less than 540 days, the holders of Convertible
Exchangeable Preferred Stock shall have the exclusive right, voting
separately as a class with holders of shares of any one or more other
series of preferred stock ranking on a parity with the Convertible
Exchangeable Preferred Stock as to dividends or on the distribution
of assets upon liquidation, dissolution or winding up and upon which
like voting rights have been conferred and are exercisable (the
Convertible Exchangeable Preferred Stock and any such other
preferred stock, collectively for purposes of this Section 10, the
"Defaulted Preferred Stock"), to elect two directors of the
Corporation at the Corporation's next annual meeting of
stockholders and at each subsequent annual meeting of stockholders;
provided, however, that if such voting rights shall
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become vested more than 90 days or less than 20 days before the date prescribed
for the annual meeting of stockholders, thereupon the holders of the shares of
Defaulted Preferred Stock shall be entitled to exercise their voting rights at
a special meeting of the holders of shares of Defaulted Preferred Stock as set
forth in paragraphs (b) and (c) of this Section 10. At elections for such
directors, each holder of Convertible Exchangeable Preferred Stock shall be
entitled to one vote for each share held (the holders of shares of any other
series of Defaulted Preferred Stock ranking on such a parity being entitled to
such number of votes, if any, for each share of stock held as may be granted to
them). Upon the vesting of such right of the holders of Defaulted Preferred
Stock, the maximum authorized number of members of the Board of Directors shall
automatically be increased by two and the two vacancies so created shall be
filled by vote of the holders of outstanding Defaulted Preferred Stock as
hereinafter set forth. The right of holders of Defaulted Preferred Stock,
voting separately as a class, to elect members of the Board of Directors as
aforesaid shall continue until such time as all dividends accumulated on
Defaulted Preferred Stock shall have been paid, or declared and funds set aside
for payment in full, at which time such right shall terminate, except as herein
or by law expressly provided, subject to revesting in the event of each and
every subsequent default of the character above mentioned.
(b) Whenever such voting right shall have vested, such right
may be exercised initially either at a special meeting of the holders of shares
of Defaulted Preferred Stock called as hereinafter provided, or at any annual
meeting of stockholders held for the purpose of electing directors, and
thereafter at such meetings or by the written consent of such holders pursuant
to Section 228 of the General Corporation Law of the State of Delaware.
(c) At any time when such voting right shall have vested in
the holders of shares of Defaulted Preferred Stock entitled to vote thereon,
and if such right shall not already have been initially exercised, an officer
of the Corporation shall, upon the written request of 10% of the holders of
record of shares of such Defaulted Preferred Stock then outstanding, addressed
to the Treasurer of the Corporation, call a special meeting of holders of
shares of such Defaulted Preferred Stock. Such meeting shall be held at the
earliest practicable date upon the notice required for annual meetings of
stockholders at the place for holding annual meetings of stockholders of the
Corporation or, if none, at a place designated by the Treasurer of the
Corporation. If such meeting shall not be called by the proper officers of the
Corporation within 30 days after the personal service of such written request
upon the Treasurer of the Corporation, or within 30 days after mailing the
same within the United States, by registered mail, addressed to the Treasurer
of the Corporation at its principal office (such mailing to be evidenced by
the registry receipt issued by the postal authorities), then the holders of
record of 10% of the shares of Defaulted Preferred Stock then
-28-
<PAGE> 48
outstanding may designate in writing any person to call such meeting at the
expense of the Corporation, and such meeting may be called by such person so
designated upon the notice required for annual meetings of stockholders and
shall be held at the same place as is elsewhere provided in this paragraph.
Any holder of shares of Defaulted Preferred Stock then outstanding that would
be entitled to vote at such meeting shall have access to the stock books of the
Corporation for the purpose of causing a meeting of stockholders to be called
pursuant to the provisions of this paragraph. Notwithstanding the provisions
of this paragraph, however, no such special meeting shall be called or held
during a period within 45 days immediately preceding the date fixed for the
next annual meeting of stockholders.
(d) The directors elected pursuant to this Section 10 shall serve
until the next annual meeting or until their respective successors shall
be elected and shall qualify; any director elected by the holders of Defaulted
Preferred Stock may be removed by, and shall not be removed otherwise than by,
the vote of the holders of a majority of the outstanding shares of the Defaulted
Preferred Stock who were entitled to participate in such election of directors,
voting as a separate class, at a meeting called for such purpose or by written
consent as permitted by law and the Certificate of Incorporation and By-laws of
the Corporation. If the office of any director elected by the holders of
Defaulted Preferred Stock, voting as a class, becomes vacant by reason of
death, resignation, retirement, disqualification or removal from office or
otherwise, the remaining director elected by the holders of Defaulted Preferred
Stock, voting as a class, may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred. Upon any termination
of the right of the holders of Defaulted Preferred Stock to vote for directors
as herein provided, the term of office of all directors then in office elected
by the holders of Defaulted Preferred Stock, voting as a class, shall terminate
immediately. Whenever the terms of office of the directors elected by the
holders of Defaulted Preferred Stock, voting as a class, shall so terminate and
the special voting powers vested in the holders of Defaulted Preferred Stock
shall have expired, the number of directors shall be such number as may be
provided for in the By-laws irrespective of any increase made pursuant to the
provisions of this Section 10.
(e) So long as any shares of the Convertible Exchangeable Preferred
Stock remain outstanding, the consent of the holders of at least two-thirds of
the shares of Convertible Exchangeable Preferred Stock outstanding at the time
given in person or by proxy either in writing (as permitted by law and the
Certificate of Incorporation and By-laws of the Corporation) or at any special
or annual meeting, shall be necessary to permit, effect or validate any one or
more of the following:
-29-
<PAGE> 49
(i) the authorization, creation or issuance, or any increase in the
authorized or issued amount, of any class or series of stock, or any
security convertible into stock of such class or series, ranking prior to
the Convertible Exchangeable Preferred Stock as to dividends or the
distribution of assets upon liquidation, dissolution or winding up;
(ii) the amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the Certificate of
Incorporation of the Corporation (including this Certificate) which would
adversely affect any right, preference, privilege or voting power of the
Convertible Exchangeable Preferred Stock or of the holders thereof;
provided, however, that any increase in the amount of authorized preferred
stock or the creation and issuance of other series of preferred stock, or
any increase in the amount of authorized shares of such series or of any
other series of preferred stock, in each case ranking on a parity with or
junior to the Convertible Exchangeable Preferred Stock with respect to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to adversely affect such
rights, preferences, privileges or voting powers; or
(iii) the authorization of any reclassification of the Convertible
Exchangeable Preferred Stock.
The foregoing voting provisions shall not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding shares of Convertible Exchangeable Preferred
Stock shall have been redeemed or sufficient funds shall have been deposited in
trust to effect such redemption, scheduled to be consummated within three
months after such time.
11. Exchange. (a) The Convertible Exchangeable Preferred Stock shall be
exchangeable, in whole but not in part, at the option of the Corporation on any
dividend payment date beginning June 1, 1995, for the Corporation's 6-1/2%
Convertible Subordinated Debentures due 2008 (the "Debentures") as described in
the Corporation's Registration Statement on Form S-3 (Registration No.
33-60978) (the "Registration Statement"), as filed with the Securities and
Exchange Commission (and as subsequently amended). Holders of outstanding
shares of Convertible Exchangeable Preferred Stock will be entitled to receive
$250.00 principal amount of Debentures in exchange for each share of
Convertible Exchangeable Preferred Stock held by them at the time of exchange;
provided, however, that the Debentures will be issuable in denominations of
$1,000 and integral multiples thereof. If the exchange results in an amount
-30-
<PAGE> 50
of Debentures that is not an integral multiple of $1,000, the amount in excess
of the closest integral multiple of $1,000 will be paid in cash by the
Corporation.
(b) The Corporation will mail to each record holder of the Convertible
Exchangeable Preferred Stock written notice of its intention to exchange the
Convertible Exchangeable Preferred Stock for the Debentures no less than 30 nor
more than 60 days prior to the date of the exchange (the "Exchange Date").
The notice shall specify the effective date of the exchange and the place where
certificates for shares of Convertible Exchangeable Preferred Stock are to be
surrendered for Debentures and shall state that dividends on Convertible
Exchangeable Preferred Stock will cease to accrue on the Exchange Date.
Prior to giving notice of intention to exchange, the Corporation shall
execute and deliver to a bank or trust company selected by the Corporation to
act as Trustee with respect to the Debentures (which may but need not be the
bank named in the Registration Statement referred to above) an Indenture
substantially in the form filed as an Exhibit to the Registration Statement
with such changes as may be required by law, stock exchange rule, NASDAQ
National Market System rule or customary usage.
(c) If the Corporation has caused the Debentures to be authenticated
on or prior to the Exchange Date and has complied with the other provisions of
this Section 11, then, notwithstanding that any certificates for shares of
Convertible Exchangeable Preferred Stock have not been surrendered for
exchange, on the Exchange Date dividends shall cease to accrue on the
Convertible Exchangeable Preferred Stock and at the close of business on the
Exchange Date the holders of the Convertible Exchangeable Preferred Stock shall
cease to be stockholders with respect to the Convertible Exchangeable Preferred
Stock and shall have no interest in or other claims against the Corporation by
virtue thereof and shall have no voting or other rights with respect to the
Convertible Exchangeable Preferred Stock, except the right to receive the
Debentures issuable upon such exchange and the right to accumulated and unpaid
dividends, without interest thereon, upon surrender (and endorsement, if
required by the Corporation) of their certificates, and the shares evidenced
thereby shall no longer be deemed outstanding for any purpose.
The Corporation will cause the Debentures to be authenticated on or before
the Exchange Date.
(d) Notwithstanding the foregoing, if notice of exchange has been given
pursuant to this Section 11 and any holder of shares of Convertible
Exchangeable Preferred Stock shall, prior to the close of business on the
Exchange Date, give written notice to the Corporation pursuant to Section 7
above of the conversion of any or all of the shares held by the holder
(accompanied by a certificate or certificates for such shares, duly endorsed or
-31-
<PAGE> 51
assigned to the Corporation), then the exchange shall not become effective as
to the shares to be converted and the conversion shall become effective as
provided in Section 7 above.
(e) The Debentures will be delivered to the persons entitled thereto upon
surrender to the Corporation or its agent appointed for that purpose of the
certificates for the shares of Convertible Exchangeable Preferred Stock being
exchanged therefor.
(f) Notwithstanding the other provisions of this Section 11, if on the
Exchange Date the Corporation has not paid full cumulative dividends on the
Convertible Exchangeable Preferred Stock (or set aside a sum therefor) the
Corporation may not exchange the Convertible Exchangeable Preferred Stock for
the Debentures and any notice previously given pursuant to this Section 11
shall be of no effect.
(g) The Corporation will endeavor to list the Debentures, prior to
delivery, upon each national securities exchange or the NASDAQ National Market
System or any similar system of automated dissemination of securities prices,
if any, upon which the Convertible Exchangeable Preferred Stock is listed at
the time of delivery. In addition, prior to the effective date of the
exchange, the Corporation will arrange for the qualification of the Debentures
under the applicable securities and blue sky laws.
12. Record Holders. The Corporation and the Transfer Agent may deem and
treat the record holder of any shares of Convertible Exchangeable Preferred
Stock as the true and lawful owner thereof for all purposes, and neither the
Corporation nor the Transfer Agent shall be affected by any notice to the
contrary.
13. Notice. Except as may otherwise be provided for herein, all notices
referred to herein shall be in writing, and all notices hereunder shall be
deemed to have been given upon receipt, in the case of a notice of conversion
given to the Corporation as contemplated in Section 7(b) hereof, or, in all
other cases, upon the earlier of receipt of such notice or three Business Days
after the mailing of such notice if sent by registered mail (unless first-class
mail shall be specifically permitted for such notice under the terms of this
Certificate) with postage prepaid, addressed: if to the Corporation, to its
offices at 5295 Triangle Parkway, Norcross, Georgia 30092-2537 (Attention:
Michael J. Swick, Esq.) or other agent of the Corporation designated as
permitted by this Certificate, or, if to any holder of the Convertible
Exchangeable Preferred Stock, to such holder at the address of such holder of
the Convertible Exchangeable Preferred Stock as listed in the stock record
books of the Corporation (which may include the records of any transfer agent
for the Convertible Exchangeable Preferred Stock); or to
-32-
<PAGE> 52
such other address as the Corporation or holder, as the case may be, shall have
been designated by notice similarly given.
-33-
<PAGE> 53
IN WITNESS of, this Certificate has been signed by Allen W. Ritchie and
attested to by Lynette Schoenfeld, of the Corporation, all as of the 12th day
of May, 1993.
AGCO CORPORATION
By: /s/ Allen W. Ritchie
---------------------
Senior Vice President
Attest:
By: /s/ Lynette Schoenfeld
-----------------------
Assistant Secretary
-34-
<PAGE> 54
PAGE 1
State of Delaware
Office of the Secretary of State
----------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
RETIREMENT OF "AGCO CORPORATION", FILED IN THIS OFFICE ON THE TWENTY-FOURTH DAY
OF APRIL, A.D. 1992, AT 10 O'CLOCK A.M.
/s/ William T. Quillen
---------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: 7159107
2260741 8100
DATE: 06-23-94
944114283
<PAGE> 55
CERTIFICATE OF RETIREMENT OF STOCK
AGCO Corporation, a corporation organized and existing under the General
Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of AGCO Corporation, a
resolution was duly adopted which identified shares of the capital stock of
said corporation, which, to the extent hereinafter set forth, had the status of
retired shares, and which retired shares had capital applied in connection with
their acquisition.
SECOND: The shares of capital stock of the corporation, which are
retired, are identified as being seven hundred fifty-six (756) shares of the
Series A Cumulative 8% Preferred Stock with a par value of one one-hundredth of
one dollar ($.01) per share.
THIRD: That the Certificate of Incorporation of the corporation prohibits
the reissuance of the shares of Series A Cumulative 8% Preferred Stock when so
retired; and, pursuant to the provisions of Section 243 of the General
Corporation Law of the State of Delaware, upon the effective date of the filing
of this Certificate as therein provided, the Certificate of Incorporation of
said corporation shall be amended so as to effect a reduction in the authorized
number of shares of the Series A Cumulative 8% Preferred Stock to the extent of
seven hundred fifty-six (756) shares, being the total number of shares retired
with a par value of one one-hundredth of one dollar ($.01) per share and an
aggregate par value of seven and fifty-six one-hundredths dollars ($7.56).
FOURTH: This Certificate of Retirement of Stock shall be effective on
April 24, 1992.
IN WITNESS WHEREOF, said AGCO Corporation has caused this Certificate to
be signed by Allen W. Ritchie, its Vice President and attested to by David R.
Lindskog, its Secretary, this 24th day of April, 1992.
AGCO Corporation
By: /s/ A. W. Ritchie
------------------
Vice President
ATTEST:
By: /s/ David R. Lindskog
----------------------
Secretary
<PAGE> 56
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
---------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "AGCO CORPORATION", FILED IN THIS OFFICE ON THE SIXTEENTH DAY OF
APRIL, A.D. 1992, AT 4 O'CLOCK P.M.
/s/ William T. Quillen
--------------------------------------
William T. Quillen, Secretary of State
2260741 8100 AUTHENTICATION: 7159106
944114283 DATE: 06-23-94
<PAGE> 57
CERTIFICATE OF DECREASE
OF
AUTHORIZED NUMBER OF SHARES
OF
SERIES A CUMULATIVE 8% PREFERRED STOCK
AGCO Corporation, a corporation organized and existing under the General
Corporation Law of the State of Delaware.
DOES HEREBY CERTIFY:
That the Certificate of Incorporation of said corporation was filed in the
office of the Secretary of State of the State of Delaware on April 22, 1991 and
filed for recording in the office of the Recorder of Deeds for New Castle
County, Delaware on April 25, 1991, and a Certificate of Designation of the
Designations, Preferences and Rights of the Series A Cumulative 8% Preferred
Stock was filed in said office of the Secretary of State on April 26, 1991 and
filed for recording in the office of the Recorder of Deeds.
That the Board of Directors of said corporation at a meeting held on March
18, 1992 duly adopted a resolution authorizing and directing a decrease in the
authorized number of shares of Series A Cumulative 8% Preferred Stock of the
corporation, from 4,500 shares to 756 shares, in accordance with the provisions
of Section 151 of the General
<PAGE> 58
Corporation Law of the State of Delaware, the shares eliminated from such
Series A Cumulative 8% Preferred Stock to resume the status of preferred stock,
the designations and the powers, preferences and rights and the qualifications,
limitations or restrictions in respect of which shall be determined by the
Board of Directors in accordance with Article 4 of the Certificate of
Incorporation of the corporation.
IN WITNESS WHEREOF, said AGCO Corporation has caused this certificate to
be signed by Allen W. Ritchie, its Vice President and attested to by David R.
Lindskog, its Secretary, this 16th day of April, 1992.
AGCO Corporation
By: /s/ A. W. Ritchie
-------------------------
ATTEST:
By: /s/ David R. Lindskog
-------------------------
Secretary
<PAGE> 59
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
---------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "AGCO CORPORATION", FILED IN THIS OFFICE ON THE NINETEENTH DAY OF
MARCH, A.D. 1992, AT 1 O'CLOCK P.M.
/s/ William T. Quillen
--------------------------------------
William T. Quillen, Secretary of State
2260741 8100 AUTHENTICATION: 7159105
944114283 DATE: 06-23-94
<PAGE> 60
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AGCO CORPORATION
AGCO CORPORATION, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (hereinafter
called the "Corporation"), hereby certifies:
FIRST: That the Board of Directors of said Corporation, at a duly
constituted meeting, adopted a resolution proposing and declaring advisable the
following amendment to the first paragraph of the Fourth Article of the
Certificate of Incorporation of said Corporation:
"4. The total number of shares of all classes of stock which
the corporation is authorized to issue is 21,000,756
shares; of which 1,000,756 shares, having a par value of $.01
per share, will be preferred stock and 20,000,000 shares,
having a par value of $.01 per share, will be common stock."
SECOND: That in lieu of a meeting and vote of the stockholders, a
majority of the stockholders have given their written consent to said amendment
in accordance with the provisions of Section 228 of the General Corporation Law
of the State of Delaware and written notice has been given as provided in said
Section.
THIRD: that the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections in accordance with the applicable
provisions of Sections 242 and 228 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, AGCO CORPORATION has caused this certificate to be
duly executed by the President and
<PAGE> 61
attested by the Secretary of the Corporation thereunto duly authorized this
19th day of March, 1991.
/s/ Robert J. Ratliff
---------------------
Robert J. Ratliff
President
ATTEST:
/s/ David R. Lindskog
- ---------------------
David R. Lindskog
Secretary
-2-
<PAGE> 62
PAGE 1
State of Delaware
Office of the Secretary of State
------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
OWNERSHIP, WHICH MERGES: "HESSTON CORPORATION", A KANSAS CORPORATION, WITH AND
INTO "AGCO CORPORATION" UNDER THE NAME OF "AGCO CORPORATION", A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND
FILED IN THIS OFFICE THE TWENTY-EIGHTH DAY OF FEBRUARY, A.D. 1992, AT 12:01
O'CLOCK P.M.
/s/ William T. Quillen
--------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: 7159104
2260741 8100M
Date: 06-23-94
944114283
<PAGE> 63
CERTIFICATE OF OWNERSHIP AND MERGER
OF
HESSTON CORPORATION
(a Kansas corporation)
INTO
AGCO CORPORATION
(a Delaware corporation)
AGCO CORPORATION, a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY pursuant to
the General Corporation Law of the State of Delaware:
FIRST: The Corporation was incorporated on the April 22, 1991,
pursuant to the General Corporation Law of the State of Delaware, the
provisions of which permit the merger of a parent corporation organized and
existing under the laws of Delaware and a subsidiary corporation organized and
existing under the laws of another jurisdiction.
SECOND; The Corporation, as the owner of all of the outstanding shares
of the stock of Hesston Corporation, a corporation organized under the laws of
the State of Kansas, the laws of which permit a merger of a corporation of that
jurisdiction with a corporation of another jurisdiction, hereby merges into
itself, Hesston Corporation, a wholly owned subsidiary of the Corporation.
THIRD: The following is a copy of the resolution adopted the 18th day
of December, 1991, by the Board of Directors of the Corporation to merge
Hesston Corporation into the Corporation:
<PAGE> 64
RESOLVED, that the Corporation merge, and it hereby does merge,
into itself, Hesston Corporation, a wholly-owned subsidiary of the
Corporation.
IN WITNESS WHEREOF, AGCO CORPORATION has caused this Certificate to be
signed by Robert J. Ratliff, its President, and attested by David R. Lindskog,
its Secretary, this 31st day of January, 1992.
BY: /s/ R. J. Ratliff
-----------------------------------
President
ATTEST:
BY: /s/ David R. Lindskog
---------------------------------
David R. Lindskog
Secretary
-2-
<PAGE> 65
PAGE 1
State of Delaware
Office of the Secretary of State
----------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
OWNERSHIP, WHICH MERGES: "GLEANER-ALLIS CORPORATION", A DELAWARE CORPORATION,
WITH AND INTO "AGCO CORPORATION" UNDER THE NAME OF "AGCO CORPORATION", A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS
RECEIVED AND FILED IN THIS OFFICE THE TWENTY-EIGHTH DAY OF FEBRUARY, A.D. 1992,
AT 12 O'CLOCK P.M.
/s/ William T. Quillen
---------------------------------------
William T. Quillen, Secretary of State
2260741 8100M AUTHENTICATION: 7159103
944114283 DATE: 06-23-94
<PAGE> 66
EXHIBIT 2.28
CERTIFICATE OF OWNERSHIP AND MERGER
OF
GLEANER-ALLIS CORPORATION
INTO
AGCO CORPORATION
AGCO CORPORATION, a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY pursuant to
Section 253 of the General Corporation Law of the State of Delaware:
FIRST: The Corporation was incorporated on the 22nd day of April, 1991,
pursuant to the General Corporation Law of the State of Delaware.
SECOND; The Corporation owns all of the outstanding shares
of Gleaner-Allis Corporation, a corporation incorporated on the 22nd day of
December, 1971, pursuant to the General Corporation Law of the State of
Delaware.
THIRD: The laws of the State of Delaware permit the merger of a
subsidiary corporation of such state into a parent of a subsidiary corporation
of such state into a parent corporation of such state.
FOURTH: The following is a copy of the resolution adopted the 24th day
of February, 1992, by the Board of Directors of the Corporation to merge
Gleaner-Allis Corporation into the Corporation:
<PAGE> 67
RESOLVED, that the Corporation merge, and it hereby does merge,
into itself, Gleaner-Allis Corporation, a wholly-owned subsidiary of
the Corporation.
IN WITNESS WHEREOF, AGCO CORPORATION has caused this Certificate to be
signed by Robert J. Ratliff, its President, and attested by David R. Lindskog,
its Secretary, this 26th day of February, 1992.
AGCO CORPORATION
BY: /s/ R. J. Ratliff
-----------------------------------
President
ATTEST:
BY: /s/ David R. Lindskog
---------------------------------
David R. Lindskog
Secretary
-2-
<PAGE> 68
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
---------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
OWNERSHIP, WHICH MERGES: "AGCO GLEANER CORPORATION", A DELAWARE CORPORATION,
"GLEANER COMBINE CORPORATION", A DELAWARE CORPORATION, WITH AND INTO "AGCO
CORPORATION" UNDER THE NAME OF "AGCO CORPORATION", A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS
OFFICE THE TWENTY-FIFTH DAY OF SEPTEMBER, A.D. 1991, AT 4 O'CLOCK P.M.
/s/ William T. Quillen
---------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: 7159102
2260741 8100M
DATE: 06-23-94
944114283
<PAGE> 69
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
GLEANER COMBINE CORPORATION
AND
AGCO GLEANER CORPORATION
INTO
AGCO CORPORATION
AGCO CORPORATION, a corporation organized and existing under the laws of
the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY pursuant to
Section 253 of the General Corporation Law of the State of Delaware that:
FIRST: The Corporation was incorporated on the 22nd day of April 1991,
pursuant to the General Corporation Law of the State of Delaware.
SECOND: The Corporation owns all of the outstanding shares of Gleaner
Combine Corporation, a corporation incorporated on the 13th day of June 1990,
pursuant to the General Corporation Law of the State of Delaware.
THIRD: The Corporation owns all of the outstanding shares of AGCO Gleaner
Corporation, a corporation incorporated on the 23rd day of March 1990,
<PAGE> 70
pursuant to the General Corporation Law of the State of Delaware.
FOURTH: The laws of the State of Delaware permit the merger of a
subsidiary corporation of such state into a parent corporation of such state.
FIFTH: The Corporation, by the following resolutions duly adopted in a
meeting of the Board of Directors of the Corporation on September 18, 1991,
determined to and did merge into itself Gleaner Combine Corporation and AGCO
Gleaner Corporation:
RESOLVED, that the Corporation
merge, and it hereby does merge, into
itself, Gleaner Combine Corporation and
AGCO Gleaner Corporation, two wholly-
owned subsidiaries of the Corporation;
and be it further
RESOLVED, that the Certificate of
Ownership and Merger related to the
merger described in the foregoing
resolution and attached hereto as
Exhibit A be, and such Certificate of
Ownership of Merger hereby is, approved,
adopted and confirmed; and be it further
RESOLVED, that the appropriate
officers of the Corporation be, and each
of them hereby is, authorized to execute
the aforesaid Certificate of Ownership
and Merger and to cause the same to be
filed as required under the laws of the
State of Delaware, and to execute,
deliver and file any and all instruments
and documents, pay any and all fees, and
do any and all acts and things which may
-2-
<PAGE> 71
be necessary or desirable in order to
effectuate the intent of the foregoing
resolutions.
IN WITNESS WHEREOF, AGCO CORPORATION has caused this Certificate to be
signed by Robert J. Ratliff, its President, and attested by David R. Lindskog,
its Secretary, this 18th day of September 1991.
AGCO CORPORATION
By: /s/ Robert J. Ratliff
----------------------
President
ATTEST:
By: /s/ David R. Lindskog
----------------------
Secretary
-3-
<PAGE> 72
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
---------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES: "AGCO HOLDING CORPORATION", A DELAWARE CORPORATION,
"GLEANER COMBINE HOLDING CORPORATION", A DELAWARE CORPORATION, WITH AND INTO
"AGCO CORPORATION" UNDER THE NAME OF "AGCO CORPORATION", A CORPORATION ORGANIZED
AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN
THIS OFFICE THE TWENTY-FIFTH DAY OF SEPTEMBER, A.D. 1991, AT 9 O'CLOCK A.M.
/s/ William T. Quillen
---------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: 7159101
2260741 8100M
DATE: 06-23-94
944114283
<PAGE> 73
CERTIFICATE OF MERGER
OF
GLEANER COMBINE HOLDING CORPORATION
AND
AGCO HOLDING CORPORATION
INTO
AGCO CORPORATION
* * * * *
The undersigned corporation organized and existing under the laws of
the State of Delaware
DOES HEREBY CERTIFY:
FIRST: That the name of each of the constituent corporations of the
merger is as follows:
NAME
AGCO Corporation
Gleaner Combine Holding Corporation
AGCO Holding Corporation
Each of such constituent corporations of the merger was incorporated
under the General Corporation Law of the State of Delaware and is presently
existing under and by virtue of said General Corporation Law.
SECOND: That an Agreement and Plan of Merger among the parties to
the merger has been approved, adopted, certified, executed and acknowledged by
each of the constituent corporations in accordance with the requirements
<PAGE> 74
of Section 251 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the surviving corporation of the merger is
AGCO Corporation.
FOURTH: That the Certificate of Incorporation of AGCO Corporation, a
Delaware Corporation, shall be the Certificate of Incorporation of the
surviving corporation.
FIFTH: That the executed Agreement and Plan of Merger is on file at
the principal place of business of the surviving corporation. The address of
the principal place of business of the surviving corporation is 5295 Triangle
Parkway, Norcross, Georgia 30092.
SIXTH: That a copy of the Agreement and Plan of Merger will be
furnished by the surviving corporation, on request and without cost, to any
stockholder of any constituent corporation.
Dated: September 18, 1991
AGCO CORPORATION
By: /s/ Robert J. Ratliff
----------------------
Name: Robert J. Ratliff
Title: President
ATTEST:
By: /s/ David R. Lindskog
----------------------
Name: David R. Lindskog
Title: Secretary
<PAGE> 75
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
---------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "AGCO HOLDING CORPORATION", CHANGING ITS NAME FROM "AGCO HOLDING
CORPORATION" TO "AGCO CORPORATION", FILED IN THIS OFFICE ON THE TENTH DAY OF
JULY, A.D. 1991, AT 3:30 O'CLOCK P.M.
/s/ William T. Quillen
---------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: 7159100
2260741 8100
DATE: 06-23-94
944114283
<PAGE> 76
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AGCO HOLDING CORPORATION
AGCO HOLDING CORPORATION, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware
(hereinafter called the "Corporation"), hereby certifies:
FIRST: That the Board of Directors of said corporation, by their
unanimous written consent, adopted a resolution proposing and declaring
advisable the following amendment of the Certificate of Incorporation of said
corporation:
"1. The name of the corporation is:
AGCO Corporation."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given their unanimous written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation
Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections 242 and 228 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, AGCO HOLDING CORPORATION has caused this
certificate to be duly executed by the President
<PAGE> 77
and attested by the Secretary of the Corporation thereunto duly authorized this
19th day of June, 1991.
BY: /s/ Robert J. Ratliff
-----------------------------------
President
ATTEST:
BY: /s/ David R. Lindskog
---------------------------------
David R. Lindskog
Secretary
<PAGE> 78
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
---------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "AGCO HOLDING CORPORATION", FILED IN THIS OFFICE ON THE
TWENTY-SIXTH DAY OF APRIL, A.D. 1991, AT 2 O'CLOCK P.M.
/s/ William T. Quillen
---------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: 7159099
2260741 8100
DATE: 06-23-94
944114283
<PAGE> 79
CERTIFICATE OF DESIGNATION
SETTING FORTH THE PREFERENCES,
RIGHTS AND LIMITATIONS OF
SERIES A CUMULATIVE 8% PREFERRED STOCK
OF AGCO HOLDING CORPORATION
AGCO HOLDING CORPORATION, a Delaware corporation (the
"Corporation"), certifies that pursuant to the authority contained in Article 4
of its Certificate of Incorporation, and in accordance with the provisions of
Section 151 of the General Corporation Law of the State of Delaware, its Board
of Directors has adopted the following resolution creating a series of its
Preferred Stock, par value $0.01 per share, designated as the Series A
Cumulative 8% Preferred Stock:
RESOLVED that, pursuant to the authority expressly granted to and
vested in the Board of Directors of this Corporation by Article 4 of the
Certificate of Incorporation of the Corporation and pursuant to Section 151 of
the General Corporation Law of the State of Delaware, said Board of Directors
hereby creates and establishes and authorizes the issuance of a first series of
the Preferred Stock of the Corporation, such first series to consist of Four
Thousand Five Hundred (4,500) shares of the Corporation's authorized and
unissued Preferred Stock, each share having a par value of $0.01, and said
Board of Directors hereby fixes the designation and the powers, preferences and
<PAGE> 80
rights, and the qualifications, limitations or restrictions of the shares of
such series as follows:
(a) Designation of Series.
The designation of the series of Preferred Stock created by this
resolution shall be "Series A Cumulative 8% Preferred Stock" (the "Series A
Preferred Stock").
(b) Dividends on Preferred Stock. The holders of the Series A
Preferred Stock shall be entitled to receive, as and when declared by the Board
of Directors, out of the funds and other assets of the Corporation legally
available therefor, and the Corporation shall be bound to pay thereon,
preferential dividends at an annual rate of eight hundred dollars ($800) per
whole share and the pro rata portion of $800 with respect to any fractional
share, payable annually on July 1 in each year, commencing July 1, 1991 (each
such date being hereinafter referred to as a "Dividend Payment Date"), by
issuing additional Series A Preferred Stock at a value of $10,000 per whole
share ("Secondary Securities") to holders of record at the close of the final
business day of the month immediately preceding the Dividend Payment Date. The
Corporation may, in its sole discretion, pay in cash all or any of the dividend
due on any Dividend Payment Date in lieu of issuing Secondary Securities. Each
issuance of Secondary Securities shall be made pro rata with respect to the
outstanding aggregate Series A Preferred Stock held by
-2-
<PAGE> 81
each holder thereof. Dividends upon the Series A Preferred Stock shall be
cumulative from the date of the issuance of the Series A Preferred Stock
(whether or not in any year there shall be assets of the Corporation legally
available for the payment of such dividends), so that if, at any time, dividends
upon the outstanding Series A Preferred Stock shall not have been paid or
declared and a sum sufficient for the payment thereof set apart for such
payment, the amount of the deficiency shall be fully paid, in Secondary
Securities or at the Corporation's option in cash, but without interest, or
dividends in such amount declared and a sum sufficient for the payment thereof
set apart for such payment, before any sum or sums shall be paid or set aside
pursuant to any class or series of stock ranking junior to the Series A
Preferred Stock as to dividends.
All dividends on the Series A Preferred Stock for any year and on any
class or series of stock ranking on a parity with the Series A Preferred Stock
as to dividends shall be declared or created pro rata so that the amounts of
dividends per share for such year on the Series A Preferred Stock and on any
class or series of stock ranking on a parity with the Series A Preferred Stock
as to dividends that were declared during such year shall in all cases bear to
each other the same proportions that the respective
-3-
<PAGE> 82
dividend rates of such stock for such year bear to each other.
For the purposes of this resolution, unless otherwise specified, the
phrase "set apart for payment," in respect of the payment of dividends, shall
not be construed as requiring deposit of any funds in trust or in any special
account, but shall merely mean that, out of the funds available for the payment
of dividends, a sum sufficient for the payment of dividends on the Series A
Preferred Stock shall be reserved by appropriate notation on the books of the
Corporation.
(c) Redemption of Preferred Stock. The Corporation may at any time,
or from time to time, as shall be permitted under the laws of Delaware, redeem
the whole or any part of the Series A Preferred Stock by paying therefor Ten
Thousand Dollars ($10,000.00) per whole share and the pro rata portion of
$10,000.00 for any fractional share, and all then accrued unpaid dividends
thereon through the date fixed for such redemption.
In order to facilitate the redemption of any shares of Series A
Preferred Stock that may be chosen for redemption as provided in this Section
(c), the Board of Directors shall be authorized to exercise its discretion to
cause the transfer books of the Corporation to be closed as to such shares not
more than 20 days prior to the designated
-4-
<PAGE> 83
redemption date. Written notice of redemption shall be mailed to the
registered holders of Series A Preferred Stock at least 5, but not more than
20, days prior to the designated redemption date. Any notice mailed in the
manner prescribed by the Board of Directors to the holder at his or her
address, as the same shall appear on the books of the Corporation, shall be
conclusively presumed to have been given, whether or not the holder receives
the notice. If less than all of the outstanding Series A Preferred Stock is to
be redeemed, the redemption shall be made pro rata. From and after the date
fixed in any such notice as the date of redemption, all dividends on the Series
A Preferred Stock called for redemption shall cease to accrue and all rights of
the holders thereof as stockholders of the Corporation, except the right to
receive the redemption price, shall cease and terminate; provided, however,
that if the Corporation defaults in or delays in the payment of the redemption
price, dividends on the Series A Preferred Stock shall continue to accrue and
be added to the redemption price as computed above until payment is made in
full.
Any dividends which have accrued on the Series A Preferred Stock, but
have not been paid to the holders thereof, shall be paid on the date of
redemption.
Any stock so redeemed or purchased for retirement as aforesasid under
this section shall be cancelled and shall
-5-
<PAGE> 84
not be reissued and the authorized capital stock shall be reduced by the amount
of Series A Preferred Stock so redeemed or purchased and such stock shall be
retired from time to time in the manner provided by law.
(d) Priority of the Series A Preferred Stock in the Event of
Dissolution. The Series A Preferred Stock shall be preferred over the Common
Stock of the Corporation and any class or series of stock ranking junior to the
Series A Preferred Stock as to assets in the event of any liquidation,
dissolution or winding-up of the Corporation, whether voluntary or involuntary,
and, in that event, the holders of the Series A Preferred Stock shall be
entitled to receive, out of the assets of the Corporation available for
distribution to its stockholders, Ten Thousand Dollars ($10,000.00) per whole
share held by them and the pro rata portion of $10,000.00 for any fractional
share, together with the amount equal to all dividends accrued and unpaid
thereon to the date of final distribution, before any distribution of the
assets shall be made to the holders of the Common Stock of the Corporation or
any other class or series of stock ranking junior to the Series A Preferred
Stock as to distribution of assets. Upon any liquidation, dissolution or
winding-up of the Corporation, whether voluntary or involuntary, after payment
shall have been made in full on the Series A Preferred Stock as provided in the
preceding
-6-
<PAGE> 85
(e) Limitations and Voting Rights.
1. So long as any shares of the Series A Preferred Stock of the
Corporation shall be outstanding, the Corporation shall not, without the
affirmative vote of the holders of a majority of the aggregate number of the
then outstanding shares of Series A Preferred Stock voting as a separate class,
and, if required, the affirmative vote of any other series of preferred stock
ranking, as to payment of dividends and distribution of assets, on a parity
with the Series A Preferred Stock, if any (such stock and the Series A
Preferred Stock sometimes collectively referred to herein as "Parity Preferred
Stock"): (A) alter or change the powers, preferences or rights given to the
holders of any of the Parity Preferred Stock, or (B) authorize, create or issue
any class of stock ranking, either as to payment of dividends or distribution
of assets or redemption, senior to, or on a parity with, any of the Parity
Preferred Stock, or (C) authorize the merger or consolidation of the
Corporation if the effect of such merger or consolidation would be to alter or
change the powers, preferences or rights given to the holders of any of the
Parity Preferred Stock so as to materially alter any of the Parity Preferred
Stock or to authorize, create or issue any class of stock ranking, either as to
payment of dividends or redemption or distribution of assets, senior to, or on
a parity with the Parity
-8-
<PAGE> 86
Preferred Stock, or (D) sell, lease, convey, transfer or otherwise
dispose of all or substantially all of the Corporation's property or
assets, or (E) voluntarily liquidate or dissolve, or (F) merge with another
corporation in a manner in which this Corporation is not the surviving
corporation.
So long as any shares of the Series A Preferred Stock of the
Corporation shall be outstanding, the Corporation shall not, without the
affirmative vote of the holders of a majority of the aggregate number of the
then outstanding shares of Series A Preferred Stock voting as a separate class
increase the authorized amount of Series A Preferred Stock beyond 4,500 shares.
Otherwise, and except as provided by the General Corporation Law of the
State of Delaware, as amended, nothing contained in this Section (e) shall
require any vote or consent of the holders of the shares of Parity Preferred
Stock in connection with the authorization or issuance of any one or more
additional series of preferred stock or any other class of capital stock of the
Corporation.
If the Board of Directors of the Corporation proposes to alter or
change the powers, preferences or special rights of the Series A Preferred
Stock so as to affect the holders thereof in any manner whatsoever, but shall
not so affect all of the Parity Preferred Stock, then
<PAGE> 87
only the approval of the holders of a majority of the Series A
Preferred Stock then outstanding shall be required.
2. Other than as specifically provided in this Section (e) or
as may be provided by law, holders of the Parity Preferred Stock shall
not be entitled to vote in any election of directors or on any matter which
may come before the holders of Common Stock at a regular or special meeting
of stockholders.
(f) PREEMPTIVE RIGHTS. No holder of shares of Series A
Preferred Stock, as such, shall be entitled as a matter of right to
subscribe for or purchase any part of any new or additional issue of
shares, or securities convertible into shares of any kind whatsoever,
whether now or hereafter authorized, and whether issued for cash, property,
services, by way of dividends, or otherwise.
IN WITNESS WHEREOF, AGCO HOLDING CORPORATION has caused this
Certificate to be executed by Scott I. Oakford, its Vice President, and
attested to by David R. Lindskog, its Secretary, this 26th day of April,
1991.
AGCO HOLDING CORPORATION
ATTEST: By: /s/ Scott Oakford
-------------------
Scott I. Oakford
By: /s/
------------------------
<PAGE> 88
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
---------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "AGCO HOLDING CORPORATION", FILED IN THIS OFFICE ON THE
TWENTY-SECOND DAY OF APRIL, A.D. 1991, AT 12:45 O'CLOCK P.M.
/s/ William T. Quillen
---------------------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: 7159098
2260741 8100
DATE: 06-23-94
944114283
<PAGE> 89
CERTIFICATE OF INCORPORATION
OF
AGCO HOLDING CORPORATION
The undersigned, in order to form a corporation pursuant to the
provisions of the General Corporation Law of Delaware, does hereby certify as
follows:
1. The name of the corporation is AGCO Holding Corporation.
2. The address of the corporation's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, and
the name of the registered agent thereat is The Corporation Trust Company.
3. The nature of the business of the corporation and the purposes to
be conducted or promoted by it are as follows:
(a) To acquire all or any part of the stock or other
securities, goodwill, rights, property or assets of any kind
and to undertake or assume all or any part of the obligations or
liabilities of any corporation, association, partnership, syndicate,
entity, or person located in or organized under the laws of any state,
territory or possession of the United States of America or any foreign
country, and to pay for the same in cash, stock, bonds, debentures,
notes, or other securities, secured or unsecured, of this or any other
corporation or otherwise, in any manner permitted by law, and to
conduct in any lawful manner all or any part of any business so
acquired.
(b) To engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law
of Delaware.
4. The total number of shares of all classes of stock which the
corporation is authorized to issue is 11,000 shares; of which 9,000 shares,
having a par value of $.01 per share, will be Preferred Stock and 2,000 shares,
having a par value of $.01 per share, will be Common Stock.
<PAGE> 90
The designations and the powers, preferences and rights and the
qualifications, limitations or restrictions in respect of the shares of each
class of stock will be as follows:
(a) Voting Rights. The holders of the Common Stock shall have the
exclusive voting power for all purposes and the holders of the Preferred Stock
shall have no voting rights or voice whatsoever in the affairs or management of
the corporation or the right to notice of any meeting of stockholders, except
as may be set forth in the resolution or resolutions of the Board of Directors
referred to in Section 4(b) below, or as specifically required by law. The
amount of the authorized Preferred Stock may be increased or decreased solely by
the affirmative vote of a majority of the outstanding shares of Common Stock.
On all matters to be voted or acted upon by the stockholders, each
holder of the Common Stock will be entitled to one vote for each share of such
stock held of record in the holder's name on the books of the corporation at
the time determined according to law.
(b) Terms of Preferred Stock. Except as otherwise provided herein or
by law, the Board of Directors of the corporation is expressly authorized to
provide for the issuance of all or any shares of Preferred Stock in one or more
classes or series, and to fix for each such class or series such voting powers,
full or limited, or no voting powers, and such distinctive designations,
preferences and relative, participating, optional or other special rights, and
such qualifications, limitations or restrictions thereof, as shall be stated
and expressed in the resolution or resolutions adopted by the Board of
Directors providing for the issuance of such class or series and as may be
permitted by the General Corporation Law of the State of Delaware, including,
without limitation, the authority to provide that any such class or series may
be (i) subject to redemption at such time or times and at such price or
prices; (ii) entitled to receive dividends (which may be cumulative or
non-cumulative) at such rates, on such conditions, and at such time, and
payable in preference to, or in such relation to, the dividends payable on any
other class or classes or any other series; (iii) entitled to such rights upon
the dissolution of, or upon any distribution of the assets of, the corporation;
or (iv) convertible into, or exchangeable for, shares of any other class or
classes of stock, or of any other series of the same or any other class or
classes of stock, of the corporation at such price or prices or at such rates
of exchange and with such adjustments, all as may be stated in such resolution
or resolutions.
<PAGE> 91
IN WITNESS WHEREOF, I have hereunto set my hand this 22nd day of April,
1991.
/s/ Susan A. Keller
------------------------------------
Sole Incorporator
-4-
<PAGE> 1
Exhibit 11
AGCO CORPORATION AND SUBSIDIARIES
STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS (1)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-------------------------
PRIMARY EARNINGS PER SHARE 1996 1995
------- -------
<S> <C> <C>
Weighted average number of common shares outstanding . . . . . . . . . . 50,757 43,482
Shares issued upon assumed exercise of outstanding
stock options . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535 570
------- -------
Weighted average number of common and common
equivalent shares outstanding . . . . . . . . . . . . . . . . . . . . 51,292 44,052
======= =======
Income before extraordinary loss . . . . . . . . . . . . . . . . . . . . $20,595 $23,384
Extraordinary loss . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,503 -
------- -------
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $17,092 $23,384
Preferred stock dividends . . . . . . .. . . . . . . . . . . . . . . . . - 1,213
------- -------
Net income available for common stockholders . . . . . . . . . . . . . . $17,092 $22,171
======= =======
Net income per common share:
Income before extraordinary loss . . . . . . . . . . . . . . . . . . . $ 0.40 $ 0.50
Extraordinary loss . . . . . . . . . . . . . . . . . . . . . . . . . . (0.07) -
------- -------
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 0.33 $ 0.50
======= =======
FULLY DILUTED EARNINGS PER SHARE
Weighted average number of common shares outstanding . . . . . . . . . . 50,757 43,482
Shares issued upon assumed conversion of the Cumulative Convertible
Exchangeable Preferred Stock . . . . . . . . . . . . . . . . . . . . . - 11,808
Shares issued upon assumed conversion of the Convertible
Subordinated Debentures . . . . . . . . . . . . . . . . . . . . . . . 5,778 -
Shares issued upon assumed exercise of outstanding
stock options (2) . . . . . . . . . . . . . . . . . . . . . . . . . . 536 648
------- -------
Weighted average number of common and common
equivalent shares outstanding . . . . . . . . . . . . . . . . . . . . 57,071 55,938
======= =======
Income before extraordinary loss . . . . . . . . . . . . . . . . . . . . $20,595 $23,384
Extraordinary loss . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,503 -
------- -------
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,092 23,384
Interest expense on Convertible Subordinated Debentures, net of
applicable income taxes . . . . . . . . . . . . . . . . . . . . . . . . 398 -
------- -------
Net income available for common stockholders . . . . . . . . . . . . . . $17,490 $23,384
======= =======
Net income per common share:
Income before extraordinary loss . . . . . . . . . . . . . . . . . . . $ 0.37 $ 0.42
Extraordinary loss . . . . . . . . . . . . . . . . . . . . . . . . . . (0.06) -
------- -------
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 0.31 $ 0.42
======= =======
</TABLE>
(1) All numbers of shares in this exhibit are weighted on the basis of the
number of days the shares were outstanding or assumed to be outstanding
during each period. All share data has been restated to reflect the
two-for-one stock split, effected January 31, 1996.
(2) Based on the treasury stock method using the higher of the average or period
end market price.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF AGCO CORPORATION FOR THE THREE MONTHS ENDED MARCH 31,
1996, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> MAR-31-1996
<CASH> 27,207
<SECURITIES> 0
<RECEIVABLES> 1,341,992
<ALLOWANCES> 0
<INVENTORY> 429,704
<CURRENT-ASSETS> 1,472,020
<PP&E> 143,696
<DEPRECIATION> 0
<TOTAL-ASSETS> 2,206,220
<CURRENT-LIABILITIES> 900,009
<BONDS> 632,459
0
0
<COMMON> 519
<OTHER-SE> 610,138
<TOTAL-LIABILITY-AND-EQUITY> 2,206,220
<SALES> 453,884
<TOTAL-REVENUES> 470,692
<CGS> 360,144
<TOTAL-COSTS> 360,144
<OTHER-EXPENSES> 6,979
<LOSS-PROVISION> 2,161
<INTEREST-EXPENSE> 15,052
<INCOME-PRETAX> 30,689
<INCOME-TAX> 10,867
<INCOME-CONTINUING> 20,595
<DISCONTINUED> 0
<EXTRAORDINARY> (3,503)
<CHANGES> 0
<NET-INCOME> 17,092
<EPS-PRIMARY> 0.33
<EPS-DILUTED> 0.31
</TABLE>
