As filed with the Securities and Exchange Commission on May 29, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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AGCO CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 58-1960019
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4830 River Green Parkway
Duluth, Georgia 30136
(Address, including zip code, of registrant's principal executive offices)
AGCO Corporation Long-Term Incentive Plan
(Full title of plan)
Michael F. Swick, Esq.
Vice President-General Counsel
AGCO Corporation
4830 River Green Parkway
Duluth, Georgia 30136
(Name and address of agent for service)
(770) 813-9200
(Telephone number, including area code, of agent for service)
Copies to:
John J. Kelley III
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
(404) 572-4600
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered Per Share Offering Price Fee
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Common Stock,
par value $.01 per share 1,950,000 shares(1) $29.8125(2) $58,134,375(2) $20,047
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of additional
shares which may be offered and issued to prevent dilution resulting from stock
splits, stock dividends or similar transactions as provided in the AGCO
Corporation Long-Term Incentive Plan.
(2) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low sales
prices per share of Common Stock of AGCO Corporation as reported on the New York
Stock Exchange on May 28, 1996.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents have been previously filed by AGCO Corporation
(the "Company") with the Securities and Exchange Commission and are hereby
incorporated by reference into this Registration Statement as of their
respective dates:
(a) Annual Report on Form 10-K for the year ended December 31, 1995;
(b) Quarterly Report on Form 10-Q for the quarter ended March 31, 1996;
(c) Current Report on Form 8-K dated March 4, 1996;
(d) Current Report on Form 8-K dated March 21, 1996; and
(e) the description of the Common Stock of the Company included in
the Company's Registration Statement on Form 8-A, dated March
17, 1992.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the date of this Registration Statement and prior to the
filing of a post-effective amendment to this Registration Statement that
indicates that all securities offered hereunder have been sold or that
deregisters all such securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law, as amended,
provides in regard to indemnification of directors and officers as follows:
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SECTION 145. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND
AGENTS; INSURANCE
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
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(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding even though
less than a quorum, or (2) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this section. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
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(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
Article XI of the Company's Bylaws provides in regard to
indemnification of directors and officers as follows:
1. Definitions. As used in this article, the term "person" means any
past, present or future director or officer of the corporation or a
designated officer of an operating division of the corporation.
2. Indemnification Granted. The corporation shall indemnify, to the
full extent and under the circumstances permitted by the Delaware General
Corporation Law of the State of Delaware in effect from time to time, any
person as defined above, made or threatened to be made a party to any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative by reason of the fact that he is
or was a director, officer of the corporation or designated officer of an
operating division of the corporation, or is or was an employee or agent of
the corporation as a director, officer, employee or agent of another
company or other enterprise in which the corporation should own, directly
or indirectly, an equity interest or of which it may be a creditor.
This right of indemnification shall not be deemed exclusive of any
other rights to which a person indemnified herein may be entitled by Bylaw,
agreement, vote of stockholders or disinterested directors or otherwise,
and shall continue as to a person who has ceased to be a director, officer,
designated officer, employee or agent and shall inure to the benefit of the
heirs, executors, administrators and other legal representatives of such
person. It is not intended that the provisions of this article be
applicable to, and they are not to be construed as granting indemnity with
respect to, matters as to which indemnification would be in contravention
of the laws of Delaware or of the United States of America whether as a
matter of public policy or pursuant to statutory provisions.
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3. Miscellaneous. The board of directors may also on behalf of the
corporation grant indemnification to any individual other than a person
defined herein to such extent and in such manner as the board in its sole
discretion may from time to time and at any time determine.
Article 7 of the Company's Certificate of Incorporation provides in
regard to the limitation of liability of directors and officers as follows:
A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law as the same exists or hereafter may be
amended or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law
hereafter is amended to authorize the further elimination or limitation of
the liability of directors, then, in addition to the limitation or personal
liability provided herein the liability of a director of the corporation
shall be limited to the fullest extent permitted by the amended Delaware
General Corporation Law. Any repeal or modification of this paragraph by
the stockholders of the corporation shall be prospective only, and shall
not adversely affect any limitation on the personal liability of a director
of the corporation existing at the time of such repeal or modification.
The Company's directors and officers are also insured against claims
arising out of the performance of their duties in such capacities.
Reference is made to Section 7 of the form of Underwriting Agreement
filed as Exhibit 1.1 to the registration statement for the Company's and the
Underwriter's respective agreements to indemnify each other, and to provide
contribution in circumstances where indemnification is unavailable.
Item 7. Exemption from Registration Claimed.
Not Applicable.
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Item 8. Exhibits.
The following Exhibits are filed as part of this Registration
Statement:
Exhibit
Number Description of Exhibit
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5.1 -- Opinion of King & Spalding.
23.1 -- Consent of King & Spalding (included as part of its opinion
filed as Exhibit 5.1).
23.2 -- Consent of Arthur Andersen LLP,independent public accountants.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the
"Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That for purposes of determining any liability under
the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the
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offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 (the "Securities
Act"), each filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Duluth, State of Georgia on the 29th day of May 1996.
AGCO Corporation
By: Allen W. Ritchie
---------------------------------
Allen W. Ritchie
President and Director
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Allen W. Ritchie, Chris E. Perkins and Michael F. Swick
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution for such person and in his name, place
and stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully and to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, and any of them, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on May 29, 1996:
Signature Title
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Robert J. Ratliff Chairman of the Board of Directors and
- --------------------- Chief Executive Officer (Principal
Robert J. Ratliff Executive Officer)
Allen W. Ritchie President and Director
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Allen W. Ritchie
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John M. Shumejda Executive Vice President and Director
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John M. Shumejda
Chris E. Perkins Vice President and Chief Financial Officer
- ---------------------- (Principal Financial Officer and Principal
Chris E. Perkins Accounting Officer)
Henry C. Claycamp Director
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Henry J. Claycamp
Director
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William H. Fike
Gerald B. Johanneson Director
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Gerald B. Johanneson
Richard P. Johnston Director
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Richard P. Johnston
J. Patrick Kaine Director
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J. Patrick Kaine
Alan S. McDowell Director
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Alan S. McDowell
Charles S. Mechem, Jr. Director
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Charles S. Mechem, Jr.
J-P Richard Director
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J-P Richard
Hamilton Robinson, Jr. Director
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Hamilton Robinson, Jr.
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INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Description of Exhibits Page
------- ----------------------- ----
5.1 -- Opinion of King & Spalding
23.1 -- Consent of King & Spalding (included as part
of its opinion filed as Exhibit 5.1)
23.2 -- Consent of Arthur Andersen LLP, independent
public accountants
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EXHIBIT 5.1
KING & SPALDING
191 Peachtree Street
Atlanta, Georgia 30303-1763
May 29, 1996
AGCO Corporation
4830 River Green Parkway
Duluth, Georgia 30136
Re: AGCO Corporation -- Registration Statement on
Form S-8 relating to 1,950,000 shares of Common Stock
Ladies and Gentlemen:
We have acted as counsel for AGCO Corporation, a Delaware
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
relating to the registration of an additional 1,950,000 shares of the Company's
Common Stock, par value $.01 per share (the "Shares"), issuable by the Company
pursuant to the AGCO Corporation Long-Term Incentive Plan (the "LTIP").
In connection with this opinion, we have examined and relied
upon such records, documents, certificates and other instruments as in our
judgment are necessary or appropriate to form the basis for the opinions
hereinafter set forth. In all such examinations, we have assumed the genuineness
of signatures on original documents and the conformity to such original
documents of all copies submitted to us as certified, conformed or photographic
copies, and as to certificates of public officials, we have assumed the same to
have been properly given and to be accurate. As to matters of fact material to
this opinion, we have relied upon statements and representations of
representatives of the Company and of public officials.
The opinions expressed herein are limited in all respects to
the federal laws of the United States of America and the laws of the State of
Delaware, and no opinion is expressed with respect to the laws of any other
jurisdiction or any effect which such laws may have on the opinions expressed
herein. This opinion is limited to the matters stated herein, and no opinion is
implied or may be inferred beyond the matters expressly stated herein.
AGCO Corporation
May 29, 1996
Page 2
Based upon and subject to the foregoing, we are of the opinion
that:
(i) The Shares are duly authorized.
(ii) Upon the issuance of the Shares as provided in the LTIP, the
Shares will be validly issued, fully paid and nonassessable.
This opinion is given as of the date hereof, and we assume no
obligation to advise you after the date hereof of facts or circumstances that
come to our attention or changes in law that occur which could affect the
opinions contained herein. This letter is being rendered solely for the benefit
of the Company in connection with the matters addressed herein. This opinion may
not be furnished to or relied upon by any person or entity for any purpose
without our prior written consent.
We hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement and to the reference to us under the caption
"Legal Matters" in the Prospectus that is related to the Registration Statement.
Very truly yours,
KING & SPALDING
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 7,
1996 included in AGCO Corporation's Form 10-K for the year ended December 31,
1995.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
May 29, 1996
