As filed with the Securities and Exchange Commission on December 21, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
TEREX CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 34-1531521
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
500 Post Road East
Westport, Connecticut 06880
(203) 222-7170
( Address,including zip code and telephone number of principal executive
offices)
Terex Corporation
1994 Long-Term Incentive Plan
(Full title of the plan)
_________________________
Marvin B. Rosenberg
Senior Vice President and Secretary
Terex Corporation
500 Post Road East
Westport, Connecticut 06880
(Name, address, including zip code, of agent for service)
(203) 222-7170
(Telephone number, including area code,
of agent for service)
_________________________
Copies to:
Stuart A. Gordon, Esq.
Eric I Cohen, Esq.
Robinson Silverman Pearce Aronsohn & Berman
1290 Avenue of the Americas
New York, New York 10104
CALCULATION OF REGISTRATION FEE
Title of Amount to Proposed Proposed Amount of
Each Class be Maximum Maximum Registra-
of Registered Offering Aggregate tion Fee
Securities (1) Price Per Offering
to be Unit (1) Price (1)
Registered
Common 750,000 $ 4.19 $ 3,142,500 $ 1,083.62
(1) Estimated solely for purposes of calculating the registration fee.
Pursuant to Rules 457(c) and 457(h), the offering price and registration fee is
computed on the basis of the average of the high and low prices reported on the
New York Stock Exchange on December 15, 1995.
EXPLANATORY NOTE
Pursuant to General Instruction C of Form S-8, this Registration
Statement contains a prospectus meeting the requirements of Part I of Form S-3
relating to reofferings by certain persons of shares of Common Stock of Terex
Corporation to be acquired pursuant to the Terex Corporation Long-Term
Incentive Plan.
PROSPECTUS
TEREX CORPORATION
750,000 Shares of Common Stock
(Par Value $.01 Per Share)
This Prospectus may be used by certain persons (the "Selling
Stockholders") who may be deemed to be affiliates of Terex Corporation, a
Delaware corporation (the "Company"), to sell shares of common stock, par value
$.01 per share, of the Company (the "Common Stock"), which may be acquired by
such persons pursuant to the exercise of all or any portion of certain stock
options granted to such persons by the Company pursuant to Terex Corporation
1994 Long-Term Incentive Plan (the "Incentive Plan").
The Common Stock is traded on the New York Stock Exchange under the
symbol "TEX." It is anticipated that the Selling Stockholders will offer
shares for sale at prevailing prices on the New York Stock Exchange on the date
of sale. All proceeds from any sales of such shares of Common Stock will inure
to the benefit of the Selling Stockholders. The Company will receive none of
the proceeds from the sale of shares which may be offered hereby but may
receive funds upon the exercise of the options pursuant to which the Selling
Stockholders will acquire the shares covered by this Prospectus, which funds,
if any, will be used for working capital. All expenses of registration
incurred in connection herewith are being borne by the Company, but all selling
and other expenses incurred by individual Selling Stockholders will be borne by
such Selling Stockholders.
No underwriting is being utilized in connection with this
registration of Common Stock and, accordingly, the shares of Common Stock are
being offered without underwriting discounts. The expenses of this
registration will be paid by the Company. Normal brokerage commissions,
discounts and fees will be payable by the Selling Stockholders. The Selling
Stockholders and any broker executing selling orders on behalf of the Selling
Stockholders may be deemed to be an "underwriter" within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"), in which event
commissions received by such broker may be deemed to be underwriting
commissions under the Securities Act.
For a discussion of certain matters which should be considered by
prospective investors, see "Risk Factors" beginning on page 5 of this
Prospectus.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
No person has been authorized to give any information or to make any
representation not contained in this Prospectus, and, if given or made, such
information or representation should not be relied upon as having been
authorized by the Company. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any security in any jurisdiction in
which, or to any person to whom, such offer or solicitation would be unlawful.
Neither the delivery of this Prospectus nor any distribution of the securities
made under this Prospectus shall under any circumstances create any implication
that there has been no change in the affairs of the Company or in any other
information contained herein since the date of this Prospectus.
The date of this Prospectus is December 2, 1995.
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE 3
THE COMPANY 4
RISK FACTORS 5
USE OF PROCEEDS 8
SELLING STOCKHOLDERS 8
PLAN OF DISTRIBUTION 12
LEGAL MATTERS 12
EXPERTS 12
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at its
offices at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549; or at the Commission's regional offices located at Seven World Trade
Center, New York, New York 10048 and Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material can be obtained by mail from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. In addition, such material and other information concerning the Company
can be inspected and copied at the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005, on which exchange the Common Stock is traded
under the symbol "TEX".
The Company has filed with the Commission a Registration Statement on
Form S-8 under the Securities Act, and the rules and regulations promulgated
thereunder, with respect to the Common Stock covered by this Prospectus. This
Prospectus, which constitutes a part of the Registration Statement, does not
contain all of the information set forth in the Registration Statement and the
exhibits thereto, as permitted by the rules and regulations of the Commission.
For further information with respect to the Company and the Common Stock,
reference is made to the Registration Statement and such exhibits, copies of
which may be examined without charge at, or obtained upon payment of prescribed
fees from, the Public Reference Section of the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and will also be available for
inspection and copying at the regional offices of the Commission located at
Seven World Trade Center, New York, New York 10048 and at 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511.
The Company furnishes stockholders with annual reports containing
audited financial statements, quarterly reports containing unaudited financial
statements for the first three quarters of each fiscal year, and proxy material
for its annual meetings complying with the proxy requirements of the Exchange
Act.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Upon either written or oral request, any person receiving a copy of
this Prospectus may obtain from the Company, without charge, a copy of any of
the documents incorporated by reference herein, except for the exhibits to such
documents (unless such exhibits are specifically incorporated by reference into
the information that this Prospectus incorporates). Written requests should be
directed to: Terex Corporation, 500 Post Road East, Westport, Connecticut,
06880, Attention: Marvin B. Rosenberg. The Company's telephone number is (203)
222-7170.
The following documents filed with the Commission are incorporated
herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1994, filed with the Commission on March 31, 1995.
2. The Company's Quarterly Reports on Form 10-Q for fiscal quarter
ended March 31, 1995, filed with the Commission on May 15, 1995.
3. The Company's Quarterly Reports on Form 10-Q for fiscal quarter
ended June 30, 1995, filed with the Commission on August 15, 1995.
4. The Company's Quarterly Reports on Form 10-Q for fiscal quarter
ended September 30, 1995, filed with the Commission on November 14, 1995.
5. The Company's Current Report on Form 8-K, filed with the
Commission on May 24, 1995.
6. The Company's Form 8-K/A Amendment No. 1, filed with the
Commission on August 28, 1995.
7. The description of the common stock of Terex Corporation contained
in Item 1 of the Registrant's Registration Statement on Form 8-A, filed with
the Commission on February 22, 1991.
8.All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of the filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated herein by reference shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any subsequent filed document
which also is, or is deemed to be, incorporated by reference herein modifies or
supersedes such prior statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
THE COMPANY
Terex Corporation ("Terex" or the "Company") is a global provider of
capital goods and equipment used in the mining, commercial building,
infrastructure, manufacturing and construction industries. The Company's
operations began in 1983 with the purchase of Northwest Engineering Company,
the Company's original business and name. Since 1983, management has expanded
the Company's business through a series of acquisitions. In 1988, Northwest
Engineering Company merged into a subsidiary acquired in 1986 named Terex
Corporation, with Terex Corporation as the surviving corporation. The
Company's Material Handling Segment designs, manufactures and markets a
complete line of internal combustion and electric lift trucks, electric
walkies, automated pallet trucks, industrial tow tractors and related
components and replacement parts. The Heavy Equipment Segment designs,
manufactures and markets heavy-duty, off-highway, earthmoving and construction
equipment and related components and replacement parts. The Mobile Cranes
segment designs, manufactures and markets mobile cranes, aerial platforms,
container stackers and scrap holders and related components and replacement
parts.
The Mobile Cranes Segment was established as a separate business
segment as a result of a significant acquisition in 1995. On May 9, 1995, the
Company, through Terex Cranes, Inc., a recently formed wholly owned subsidiary
of the Company ("Terex Cranes"), completed the acquisition (the "PPM
Acquisition") of substantially all of the shares of P.P.M. S.A., a societe
anonyme ("PPM Europe"), from Potain S.A., a societe anonyme, and all of the
capital stock of Legris Industries, Inc., a Delaware corporation which owns
92.4% of the capital stock of PPM Cranes, Inc., a Delaware corporation ("PPM
North America;" and PPM North America together with PPM Europe collectively
referred to as "PPM") from Legris Industries S.A., a societe anonyme. PPM
designs, manufactures and markets mobile cranes and container stackers
primarily in North America and Western Europe under the brand names of PPM, P&H
(trademark of Harnischfeger Corporation) and BENDINI. Concurrently with the
completion of the PPM Acquisition, the Company contributed the assets (subject
to liabilities) of its Koehring and Marklift division to Terex Cranes. The
former division now operates as Koehring Cranes, Inc., a wholly owned
subsidiary of Terex Cranes ("Koehring"). Koehring manufactures mobile cranes
under the LORAIN brand name and aerial lift equipment under the MARKLIFT brand
name. PPM and Koehring comprise the Company's new Mobile Cranes Segment.
The Company has grown through acquisitions and has had considerable
experience in restructuring and operating capital goods manufacturers,
particularly in the off-road truck and construction and industrial equipment
industries. Following an acquisition, in order to improve profitability, the
Company traditionally (i) consolidates manufacturing operations, (ii) adjusts
new equipment production capacity to meet the actual level of demand in the
marketplace, (iii) reduces corporate overhead and (iv) emphasizes that portion
of the business that yields the highest margins, particularly the replacement
parts business. More specifically, this strategy involves elimination of
marginally profitable or unprofitable product lines, closing underutilized and
inefficient plants, liquidating excess inventories and substantially reducing
personnel.
The principal executive offices of the Company are located at 500
Post Road East, Westport, Connecticut 06880 and its telephone number is (203)
222-7170.
RISK FACTORS
In addition to other matters described in this Prospectus, the
following should be carefully considered in connection with an investment in
the Common Stock:
Significant Leverage
The Company is highly leveraged. At September 30, 1995 the Company
had approximately $355.9 million of indebtedness and negative stockholders'
equity of $94.2 million.
On May 9, 1995, the Company completed the refinancing of
substantially all of its outstanding debt (the "Refinancing"). The Refinancing
included the private placement to institutional investors of $250 million of
13.25% Senior Secured Notes due May 15, 2002 (the "Senior Secured Notes"),
repayment of the Company's existing senior secured notes and senior
subordinated notes, totaling approximately $152.6 million principal amount, and
entry into a new credit facility to replace the Company's existing lending
facility in the U.S.
This substantial leverage has several important consequences,
including the following: (i) a substantial portion of the Company's cash
flow from operations will be dedicated to the payment of principal of, and
interest on, its indebtedness, (ii) the covenants contained in the Company's
indebtedness impose certain restrictions on the Company which, among other
things, will limit its ability to borrow additional funds or to dispose of
assets, (iii) the Company's ability to obtain additional financing in the
future for working capital, capital expenditures, acquisitions, general
corporate purposes or other purposes may be impaired, and (iv) the Company's
ability to withstand competitive pressures, adverse economic conditions and
adverse changes in governmental regulations, to make acquisitions, and to take
advantage of significant business opportunities that may arise, may be
negatively impacted. The Company's ability to meet its debt service
obligations and to reduce its total indebtedness will be dependent upon future
performance, which will be subject to general economic conditions, its ability
to achieve cost savings and other financial, business and other factors
affecting the operations of the Company, many of which are beyond its control.
The Company has historically sustained significant losses and, prior to the
Refinancing, net cash from operating activities was insufficient to meet the
Company's debt service requirements, which the Company funded primarily from
asset sales. If the Company is unable to generate sufficient cash flow from
operations in the future to service its debt, it may be required to refinance
all or a portion of such debt, including the new Senior Secured Notes, or to
obtain additional financing. However, there can be no assurance that any
refinancing would be possible or that any additional financing could be
obtained.
Integration of PPM
The acquisition of PPM by the Company will require the integration of
the administrative, finance, sales and marketing organizations of PPM, as well
as the integration of and coordination of PPM's manufacturing and sales
activities. This will require substantial attention from the Company's
management team. The diversion of management attention and any other
difficulties encountered in the integration process could have an adverse
impact on the revenue and operating results of the Company. There also can be
no assurance that unforeseen costs and expenses or other factors may not
adversely affect the integration of PPM and thereby adversely affect the
business of the Company.
Future Sales of Common Stock; Control
The Company is unable to predict the effect, if any, that any future
sales of Common Stock, including the shares of Common Stock covered hereby,
will have on the market price of the Common Stock.
As of December 1, 1995, Randolph W. Lenz, a former director and
Chairman of the Board of the Company, is the beneficial owner, directly and
indirectly, of approximately 44% of the outstanding Common Stock of the
Company. Mr. Lenz currently pledges, and intends to pledge in the future,
shares of Common Stock owned by him as collateral for loans. A registration
statement has been filed with the Commission but has not yet become effective
with respect to all of the shares of Common Stock directly owned by Mr. Lenz,
and Mr. Lenz has advised the Company that such registration is for the purpose
of facilitating financing by Mr. Lenz through the pledge of his shares of
Common Stock. If Mr. Lenz does not pay such loans when due, the pledgee may
have the right to sell the shares of Common Stock pledged to it in satisfaction
of Mr. Lenz's obligations. The sale or other disposition of a substantial
amount of such shares of Common Stock in the public market could adversely
affect the prevailing market price for the Common Stock and, therefore,
indirectly, the value of the Preferred Stock. In addition, the sale of a
substantial amount of such pledged shares of Common Stock by a pledgee could
result in a change of control of the Company.
The Company filed with the Commission various shelf registration
statements which have not yet become effective covering the outstanding shares
of preferred stock and warrants and the 6,600,000 shares of Common Stock which
may be issuable upon conversion or exercise of such securities. The sale or
other disposition of a substantial number of such shares of Common Stock in the
public market could adversely affect the prevailing market price for the Common
Stock.
Dividend Policy
Contractual restrictions exist which limit the Company's ability to
pay dividends on its capital stock. Pursuant to the terms of the provisions of
the indenture for the Senior Secured Notes and the loan agreements for the
credit facility of the Company, the Company is restricted from paying dividends
on the Common Stock unless at the time of the declaration of any dividend on
the Common Stock the Company satisfies certain financial tests relating to the
amounts of cash flow and consolidated net income of the Company. In addition,
the terms of the Company's outstanding preferred stock also limit the Company's
ability to pay cash dividends on any class of capital stock of the Company
junior to or on a parity with the preferred stock, including the Common Stock.
In addition, under Delaware law the Company's ability to pay dividends on the
Common Stock is subject to the statutory limitation that such payment be either
(i) out of its surplus (the excess of its net assets over its total liabilities
plus stated capital) or (ii) in the event that there is no surplus, out of its
net profits for the fiscal year in which the dividend is declared and/or the
preceding fiscal year. The Company does not believe that it will be able to
pay dividends on the Common Stock in the foreseeable future.
Environmental and Related Matters
The Company generates hazardous and nonhazardous wastes in the normal
course of its operations. As a result, the Company is subject to a wide range
of federal, state, local and foreign environmental laws and regulations,
including the Comprehensive Environmental Response, Compensation and Liability
Act, that (i) govern activities or operations that may have adverse
environmental effects, such as discharges to air and water, as well as handling
and disposal practices for hazardous and nonhazardous wastes, and (ii) impose
liability for the costs of cleaning up, and certain damages resulting from,
sites of past spills, disposals or other releases of hazardous substances.
Compliance with such laws and regulations has, and will, require expenditures
by the Company on a continuing basis. The Company may also have contingent
responsibility for liabilities of certain of its subsidiaries with respect to
environmental matters if such subsidiaries were to fail to discharge their
obligations to the extent that such liabilities arose during the period in
which the Company was a controlling shareholder.
Net Operating Loss Carryovers and Other Tax Issues
The Internal Revenue Service (the "IRS") is currently examining the
Company's Federal tax returns for the years 1987 through 1989. In December
1994, the Company received an examination report from the IRS proposing a
substantial tax deficiency based on this examination. The examination report
raises a variety of issues, including the Company's substantiation for certain
deductions taken during this period, the Company's utilization of certain net
operating loss carryovers ("NOL's") and the availability of such NOL's to
offset future taxable income. If the IRS were to prevail on all the issues
raised, the amount of the tax assessment would be approximately $56 million
plus interest and penalties. If the Company were required to pay a significant
amount to resolve such assessment, it would have a material adverse impact on
the Company and could exceed the Company's resources. The Company has filed
its administrative appeal to the examination report. Although management
believes that the Company will be able to provide adequate documentation for a
substantial portion of the deductions questioned by the IRS and that there is
substantial support for the Company's past and future utilization of the NOL's,
the ultimate outcome of this matter is subject to significant legal and factual
issues. If the Company's positions are upheld, management believes that the
amounts due would not exceed amounts previously paid or provided; however, the
Company's NOL's could be reduced. No additional accruals have been made for
any amounts which might be due as a result of this matter because the possible
loss ranges from zero to $56 million plus interest and penalties and the
ultimate outcome cannot presently be determined.
In addition, Randolph W. Lenz has retired as Chairman of the Company.
Although his retirement agreement places certain restrictions on his ability to
sell his shares of Common Stock in the Company, in the event that Mr. Lenz is
able to sell a substantial portion of his shares in the Company, such sale, in
combination with the issuance of the Warrants on December 20, 1993 and subject
to the effects of other changes in share ownership of the Company, could result
in a change in control for tax purposes. Such a change in control for tax
purposes could possibly result in a significant reduction in the amount of
NOL's available to the Company to offset future taxable income.
SEC Investigation
In March of 1994, the Commission initiated a private investigation,
which included the Company and certain of its affiliates, to determine whether
violations of certain aspects of the Federal securities laws have taken place.
The Company is cooperating with the Commission in its investigation and it is
not possible at this time to determine the outcome of the Commission's
investigation.
Industry Cyclicality and Substantial Competition
Sales of products to be manufactured and sold by the Company have
historically been subject to substantial cyclical variation based on general
economic conditions.
The markets in which the Company competes are highly competitive.
The Company must remain competitive in the areas of quality, price, product
line, ease of use, safety, comfort and customer service. Many of the Company's
competitors have greater financial resources than the Company.
Foreign Operations
The Company's products are sold in over 50 countries around the world
and, accordingly, a substantial portion of the revenues of the Company are
generated in foreign currencies, while the costs associated with these revenues
are only partially incurred in the same currencies. Consequently, the Company
has a net exposure to fluctuations between the U.S. dollar and such foreign
currencies, which impacts the financial performance of the Company. Although
revenues and costs of the Company may be partially hedged, currency movements
will impact the Company's financial performance in the future. In addition,
international operations are subject to a number of potential risks, including,
among others, currency exchange controls, transfer restrictions and rate
fluctuations, trade barriers, the effects of income and withholding tax, and
governmental expropriation.
USE OF PROCEEDS
The shares of Common Stock covered hereby are being registered for
the account of the Selling Stockholders. Accordingly, the Company will not
receive any of the proceeds from the sale of Common Stock by the Selling
Stockholders.
SELLING STOCKHOLDERS
The shares of Common Stock covered by this Prospectus are being
registered for reoffers and resales by Selling Stockholders of the Company who
may acquire such shares pursuant to the exercise of options or restricted stock
awards granted or to be granted under the Incentive Plan. The Selling
Stockholders named below may resell all, a portion, or none of the shares that
they acquire or may acquire pursuant to the exercise of options under the
Plans.
Key employees deemed to be "affiliates" of the Company who acquire
registered Common Stock under the Plans may be added to the Selling
Stockholders listed below from time to time, either by means of a
post-effective amendment hereto or by use of a prospectus filed pursuant to
Rule 424 under the Securities Act. An "affiliate" is defined in Rule 405 under
the Securities Act as a "person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with," the Company.
The following table shows the names of the Selling Stockholders,
their positions with the Company, the number of shares of Common Stock known by
the Company to be beneficially owned by them as of December 1, 1995, the number
of shares covered by this Prospectus and the number of shares of Common Stock
to be owned by each Selling Stockholder if such Selling Stockholder were to
sell all of his shares of Common Stock covered by this Prospectus:
Number of
Selling Position Number of Shares Number of Shares
Stockholder with the Shares Covered by to be Held After
Company Beneficially this Offering(1)
Owned Prospectus
Randolph W. None 4,809,737 64,500 4,745,237
Lenz (2)(3)(6)
Ronald M. Chief 100,123 46,200 53,923
DeFeo Executive (2)(6)
Officer, Chief
Operating
Officer and
President
David J. Executive 159,600 41,100 118,500
Langevin Vice President (2)(6)
Ralph T. Senior Vice 31,800 31,800 -0-
Brandifino President and (2)(6)
Chief
Financial
Officer
Marvin B. Senior Vice 136,900 33,900 103,000
Rosenberg President and (2)(6)
General Counsel
G. Chris Director 34,900 10,000 24,900
Andersen
Bruce I. Director 63,664 10,000 53,664
Raben (4)
David A. Director 37,300 10,000 27,300
Sachs (5)
Adam E. Director 28,100 20,000 8,100
Wolf
___________________
(1) Assumes that all shares covered by this Prospectus will be sold by the
Selling Stockholders and that no additional shares are purchased and sold by
any Selling Stockholder.
(2) Includes the following number of shares of Common Stock subject to options
which are not exercisable within 60 days after December 1, 1995 and,
accordingly, are not "beneficially owned" within the meaning of Section 13(d)
of the Exchange Act: Mr. Lenz - 32,250 ; Mr. DeFeo -23,100; Mr. Langevin -
20,550 Mr. Brandifino -15,900; and Mr. Rosenberg - 16,950.
(3) Mr. Lenz currently pledges, and intends to pledge in the future, shares of
the Common Stock owned by him as collateral for loans. If Mr. Lenz does not
pay such loans when due, the pledgee may have the right to sell the shares of
the Common Stock pledged to it in satisfaction of Mr. Lenz's obligations. The
sale of a significant amount of such pledged shares could result in a change of
control of the Company.
(4) Does not include 10,000 shares owned by Mr. Raben's wife as to which Mr.
Raben does not have dispositive or voting power and disclaims beneficial
ownership. Includes 10,244 Series A Common Stock Purchase Warrants of the
Company exercisable for 23,664 shares of Common Stock.
(5) Includes 3,300 shares of Common Stock owned by Mr. Sachs' wife. Mr. Sachs
disclaims the beneficial ownership of such shares.
(6) Includes the following number of shares of restricted Common Stock granted
but not vested under the Incentive Plan and, accordingly, are not "beneficially
owned" within the meaning of Section 13(d) of the Exchange Act: Mr. Lenz -
16,125; Mr. DeFeo - 11,550; Mr. Langevin - 10,275; Mr. Brandifino - 7,950; and
Mr. Rosenberg - 8,475.
PLAN OF DISTRIBUTION
Any shares of Common Stock sold pursuant to this Prospectus will be
sold by the Selling Stockholders for their own accounts and they will receive
all proceeds from any such sales. The Company will receive none of the
proceeds from the sale of shares which may be offered hereby but may receive
funds upon the exercise of the options pursuant to which the Selling
Stockholders will acquire the shares covered by this Prospectus, which funds,
if any, will be used for working capital. The Selling Stockholders have not
advised the Company of any specific plans for the distribution of the shares of
Common Stock covered by this Prospectus, but, if and when shares are sold, it
is anticipated that the shares will be sold from time to time primarily in
transactions on the New York Stock Exchange at the market price then
prevailing, although sales may also be made in negotiated transactions or
otherwise, at prices related to such prevailing market price or otherwise. If
shares of Common Stock are sold through brokers, the Selling Stockholders may
pay customary brokerage commissions and charges. The Selling Stockholders may
effect such transactions by selling shares to or through broker-dealers, and
such broker-dealers may receive compensation in the form of discounts,
concessions or commissions from the Selling Stockholders and/or the purchasers
of shares for whom such broker-dealers may act as agent or to whom they may
sell as principal, or both (which compensation as to a particular broker-dealer
might be in excess of customary commissions). Shares of Common Stock covered
by this Prospectus also may be sold pursuant to Rule 144 under the Securities
Act rather than pursuant to this Prospectus.
LEGAL MATTERS
The legality of the shares of Common Stock being offered hereby is
being passed upon for the Company by Robinson Silverman Pearce Aronsohn &
Berman LLP, 1290 Avenue of the Americas, New York, New York 10104.
EXPERTS
The Terex Corporation financial statements as of December 31, 1994
and 1993 and for each of the three years in the period ended December 31, 1994
incorporated in this Prospectus have been so incorporated in reliance on the
report (which includes an explanatory paragraph relating to the Company's
refinancing of certain long term debt obligations as described in Note O to the
financial statements) of Price Waterhouse LLP, independent accountants, given
on the authority of said firm in auditing and accounting.
The combined financial statements of PPM S.A. and Legris Industries,
Inc. at December 31, 1994 and 1993, and for each of the three years in the
period ended December 31, 1994, appearing in Terex Corporation's Form 8-K/A
Amendment No. 1 filed with the Securities and Exchange Commission on
August 28, 1995, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein
by reference. Such financial statements are incorporated herein by reliance
upon the report of Ernst & Young LLP pertaining to such financial statements
to the extent covered by consents filed with the Securities and Exchange
Commission given upon the authority of such firm as experts in accounting and
auditing.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Items 1 and 2. Plan Information; Registrant Information and Retirement Savings
Plan Annual Information
The document(s) containing the information specified in the
instructions to Part I of Form S-8 will be sent or given to participants in the
Terex Corporation 1994 Long-Term Incentive Plan (the "Incentive Plan") as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Terex Corporation, a Delaware
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") are incorporated in this Registration Statement by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1994, filed with the Commission on March 31, 1995.
2. The Company's Quarterly Report on Form 10-Q for fiscal quarter
ended March 31, 1995, filed with the Commission on May 15, 1995.
3. The Company's Quarterly Report on Form 10-Q for fiscal quarter
ended June 30, 1995, filed with the Commission on August 15, 1995.
4. The Company's Quarterly Report on Form 10-Q for fiscal quarter
ended September 30, 1995, filed with the Commission on November 14, 1995.
5. The Company's Current Report on Form 8-K, filed with the
Commission on May 24, 1995.
6. The Company's Form 8-K/A Amendment No. 1, filed with the
Commission on August 28, 1995.
7. The description of the common stock of Terex Corporation
contained in Item 1 of the Registrant's Registration Statement on Form 8-A,
filed with the Commission on February 22, 1991.
8. All documents filed subsequent to the filing date of this
Registration Statement with the Commission by the Company or the Incentive Plan
pursuant to Section 13(a), 13(c) 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in the Registration
Statement and to be part thereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein
or in any subsequently filed document which also is, or is deemed to be,
incorporated by reference herein modifies or supersedes such prior statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement,
except as indicated herein.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("DGCL") and
Article IX of the Company's By-laws provide for the indemnification of the
Company's directors and officers in a variety of circumstances, which may
include liabilities under the Securities Act.
Article IX of the Company's By-laws generally requires the Company to
indemnify its directors and officers against all liabilities (including
judgments, settlements, fines and penalties) and reasonable expenses incurred
in connection with the investigation, defense, settlement or appeal of any type
of action, whether instituted by a third party or a stockholder (either
directly or derivatively) and including specifically, but without limitation,
actions brought under the Securities Act, and/or the Securities Exchange Act of
1934, as amended (the "Exchange Act"); provided that no such indemnification
will be allowed if such director or officer was not successful in defending
against any such action and it is determined that the director or officer
engaged in misconduct which constitutes (i) a breach of his or her "duty of
loyalty" (as further defined therein) to the Company or its stockholders; (ii)
acts or omissions not in "good faith" (as further defined therein) or which
involve intentional misconduct or a knowing violation of the law; (iii) the
payment of an illegal dividend or the authorization of an unlawful stock
repurchase or redemption in violation of Section 174 of the DGCL law; or (iv) a
transaction from which the director or officer derived an improper direct
personal financial profit.
The Company's Certificate of Incorporation, as amended, contains a
provision which eliminates the personal liability of a director to the Company
and its stockholders for certain breaches of his fiduciary duty of care as a
director. This provision does not, however, eliminate or limit the personal
liability of a director (i) for any breach of such director's "duty of loyalty"
(as defined therein) to the Company or its stockholders, (ii) for acts or
omissions not in "good faith" (as defined therein) or which involve intentional
misconduct or a knowing violation of the law, (iii) under Section 174 of the
DGCL, relating in general to the willful or negligent payment of an illegal
dividend or the authorization of an unlawful stock purchase or redemption, or
(iv) for any transaction from which the director derived an improper personal
profit. This provision of the Certificate of Incorporation offers each
director protection against awards of monetary damages resulting from negligent
(except as indicated above) and "grossly" negligent actions taken in the
performance of his duty of care, including grossly negligent business decisions
made in connection with takeover proposals for the Company. As a result of
this provision, the ability of the Company or a stockholder thereof to
successfully prosecute an action against a director for a breach of his duty of
care has been limited. However, the provision does not affect the availability
of equitable remedies such as an injunction or rescission based upon a
director's breach of his duty of care. The Commission has taken the position
that the provision will have no effect on claims arising under the Federal
securities laws.
The Company maintains a directors' and officers' insurance policy
which insures the officers and directors of the Company from any claim arising
out of an alleged wrongful act by such persons in their respective capacities
as officers and directors of the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Restated Certificate of Incorporation of Terex Corporation
(incorporated by reference to Exhibit 3.1 to the Form S-1 Registration
Statement of Terex Corporation, Registration No. 33-52297).
4.2 Restated Bylaws of Terex Corporation (incorporated by reference to
Exhibit 3.2 to the Form S-1 Registration Statement of Terex Corporation,
Registration No. 33-52297).
4.3 Certificate of Designation of Preferences and Rights of Series B
Cumulative Redeemable Convertible Preferred Stock of Terex Corporation
(incorporated by reference to Exhibit 3.3 to the Form 10-K for the year ended
December 31, 1994 of Terex Corporation, Commission File No. 1-10702).
5.1 Opinion of Robinson Silverman Pearce Aronsohn & Berman, LLP regarding
legality of the shares.
10.1 Terex Corporation 1994 Long Term Incentive Plan (incorporated by
reference to Exhibit 10.2 to the Form 10-K for the year ended December 31, 1994
of Terex Corporation, Commission File No. 1-10702).
23.1 Independent Accountants' Consent of Price Waterhouse LLP.
23.2 Independent Auditors' Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on signature page of this Registration
Statement).
Item 9. Undertakings.
1. The undersigned registrant hereby undertakes:
a. To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(1) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(2) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement; and
(3) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this registration statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) will not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
b. That, for the purpose 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
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
c. 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.
2. The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference in this 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.
3. 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 SEC 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in
Westport, Connecticut, on the 21st day of December, 1995.
TEREX CORPORATION
By: /s/ Ronald M. DeFeo
Name: Ronald M. DeFeo
Title: President, Chief Executive Officer
and Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Ronald M. DeFeo and Marvin B.
Rosenberg, or either of them, as his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same with all exhibits thereto, and all documents
in connection therewith, with the Securities and Exchange Commission, granting
said attorney-in-fact and agent, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be
done, as fully 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, or
any of them, or their or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
/s/Ronald M. DeFeo President, Chief Executive December 21,
Ronald M. DeFeo Officer, Chief Operating Officer 1995
and Director (Principal
Executive Officer)
/s/Ralph T. Brandifino Senior Vice President, Chief December 21,
Ralph T. Brandifino Financial Officer (Principal 1995
Financial Officer and Acting
Principal Accounting Officer)
/s/Marvin B. Rosenberg Senior Vice President, General December 21,
Marvin B. Rosenberg Counsel, Secretary and Director 1995
/s/G. Chris Andersen Director December 21,
G. Chris Andersen 1995
/s/William H. Fike Director December 21,
William H. Fike 1995
/s/Bruce I. Raben Director December 21,
Bruce I. Raben 1995
/s/David A. Sachs Director December 21,
David A. Sachs 1995
/s/Adam E. Wolf Director December 21,
Adam E. Wolf 1995
EXHIBIT INDEX
Exhibit No. Description Page Number in Signed
Registration Statement
4.1 Restated Certificate of Incorporation
of Terex Corporation (incorporated by
reference to Exhibit 3.1 to the Form
S-1 Registration Statement of Terex
Corporation, Registration No. 33-52297).
4.2 Restated Bylaws of Terex Corporation
(incorporated by reference to Exhibit
3.2 to the Form S-1 Registration
Statement of Terex Corporation,
Registration No. 33-52297).
4.3 Certificate of Designation of Preferences
and Rights of Series B Cumulative
Redeemable Convertible Preferred Stock
of Terex Corporation (incorporated by
reference to Exhibit 3.3 to the Form 10-K
for the year ended December 31, 1994 of
Terex Corporation, Commission File
No. 1-10702).
5.1 Opinion of Robinson Silverman Pearce
Aronsohn & Berman LLP regarding legality of
the shares.
10.1 Terex Corporation 1994 Long Term Incentive
Plan (incorporated by reference to Exhibit 10.2
to the Form 10-K for the year ended
December 31, 1994 of Terex Corporation,
Commission File No. 1-10702).
23.1 Independent Accountants' Consent of
Price Waterhouse LLP.
23.2 Independent Auditors' Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on signature page
of this Registration Statement).
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-8 of our report
dated March 28, 1995 appearing on page F-2 of the Terex Corporation Annual
Report on Form 10-K for the year ended December 31, 1994. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Stamford, Connecticut
December 20, 1995
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the Terex Corporation 1994
Long-Term Incentive Plan and to the incorporation by reference therein of our
report dated August 22, 1995, with respect to the combined financial statements
of PPM S.A. and Legris Industries, Inc. included in Amendment No. 1 to Form
8-K/A dated August 28, 1995, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Greenville, South Carolina
December 20, 1995
