As filed with the Securities and Exchange Commission on May 17, 1996
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
1996 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 LLP
1290 Avenue of the Americas
New York, New York 10104
Approximate date of proposed sale to public:
From time to time after the effective date of this Registration Statement
CALCULATION OF REGISTRATION FEE
Title of Each Proposed Maximum Proposed Maximum Amount of
Class of Amount to be Offering Price Aggregate Registration
Securities Registered (1) Per Unit (1) Offering Price (1) Fee
to be Registered
Common Stock, 300,000 $ 7.6875 $2,306,250 $795.26
par value $.01
(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 May 9, 1996.
<PAGE>
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 1996 Long-Term Incentive Plan.
<PAGE>
PROSPECTUS
TEREX CORPORATION
300,000 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 1996 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 May 17, 1996
<PAGE>
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION.............................................. 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.................... 4
THE COMPANY........................................................ 5
RISK FACTORS....................................................... 5
USE OF PROCEEDS.................................................... 8
SELLING STOCKHOLDERS............................................... 8
PLAN OF DISTRIBUTION............................................... 10
LEGAL MATTERS...................................................... 11
<PAGE>
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 and proxy material for its annual meetings complying with
the proxy requirements of the Exchange Act.
<PAGE>
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: Secretary. The Company's telephone number is (203) 222-7170.
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1995, filed with the Commission on March 29, 1996.
2. The Company's Quarterly Report on Form 10-Q for fiscal quarter ended March
31, 1996, filed with the Commission on May 15, 1996
3. 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.
4. 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.
<PAGE>
THE COMPANY
Terex 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 ("IC") and electric lift trucks, electric
walkies, automated pallet trucks 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 Terex Cranes Segment designs, manufactures and markets
mobile cranes, aerial platforms, container stackers and scrap holders and
related components and replacement parts.
The Terex 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 Delaware corporation which is 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, and certain subsidiaries ("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 ("Legris France"). 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, a wholly owned subsidiary of Terex Cranes. Koehring manufactures
mobile cranes under the LORAIN brand name and aerial lift equipment under the
MARKLIFT brand name. PPM and Koehring comprise Terex Cranes, Inc., the Company's
Terex 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 March 31, 1996, the Company had
approximately $341.3 million of indebtedness and stockholders' deficit of $100.2
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.
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 March 31, 1996, Randolph W. Lenz, formerly Chairman of the Board and a
Director of the Company, is the beneficial owner, directly and indirectly, of
approximately 42% 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. 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. Mr.
Lenz retired as Chairman of the Board and a Director of the Company on August
28, 1995, and currently serves as a consultant to the Company. The Company filed
with the commission various shelf registration statements covering the
outstanding shares of preferred shares and warrants and the 6,600,000 shares of
Common Stock which may be issuable upon conversion or exercise as 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.
Restrictions on Dividends
Contractual restrictions exist which limit the Company's ability to pay
dividends on its capital stock. 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.
The Company does not plan on paying dividends on the Common Stock in the
foreseeable future. In addition, under Delaware law the Company's ability to pay
dividends 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.
<PAGE>
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 portion of the assessment, it
could 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 the resolution of significant legal and factual issues. If the
Company's positions prevail on the most significant issues, management believes
that the amounts due would not exceed amounts previously paid or provided;
however, even under such circumstances, it is possible that the Company's NOL's
could be reduced to some extent. 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 or estimated.
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 Series A Warrants in 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
The Securities and Exchange Commission (the "Commission") in March of 1994
initiated a private investigation, which included the Company and certain of its
then 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. During 1995 the Company incurred
$0.3 million of legal fees and expenses on behalf of the Company, directors and
executives of the Company and KCS. In general, under the Company's by-laws, the
Company is obligated to indemnify Officers and Directors, for all liabilities
arising in the course of their duties on behalf of the Company. To date, no
Officer or Director has had legal representation separate from the Company's
legal representation, and no allocation of the legal fees for such
representation has been made.
Industry Cyclicality and Substantial Competition
Sales of products to be manufactured and sold by the Company have historically
been subject to substantial cyclical variation extending over a number of years
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.
<TABLE>
<CAPTION>
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 March 31, 1996, 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 Shares
Selling Stockholder Position with Number of Shares Covered by this Number of Shares to be
the Company Beneficially Prospectus Held After Offering(1)
Owned
<S> <C> <C> <C> <C>
Randolph W. Lenz (2) None 4,425,701(3) -0- 4,425,701
Ronald M. DeFeo Chief Executive 54,732(4) 45,000 54,732
Officer, Chief
Operating Officer
and President
David J. Langevin Executive Vice 128,675(5) -0- 128,675
President
Ralph T. Brandifino Senior Viceand 9,050(6) -0- 9,050
Chief Financial
Officer
Marvin B. Rosenberg Senior Vice 111,475(7) -0- 111,475
President and
General Counsel
Brian J. Henry Vice President, 5,875(8) -0- 5,875
Treasurer and
Director Investor
Relations
Joseph F. Apuzzo Vice President 91 -0- 91
and Corporate
Controller
Steven E. Hooper Vice President 1,986(9) -0- 1,986
G. Chris Andersen Director 79,900(10) 45,000(15) 34,900
William H. Fike Director 37,500(11) 37,500(15) 0
Bruce I. Raben Director 108,663(12) 45,000(15) 63,663
David A. Sachs Director 75,300(13) 42,500(15) 32,800
Adam E. Wolf Director 55,600(14) 27,500(15) 28,100
- -------------------
<FN>
(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) 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.
(3) Includes (a) 3,738,537 shares of Common Stock directly owned by Mr. Lenz,
(b) 10,750 shares of Common Stock issuable upon the exercise of options
exercisable within 60 days and held by Mr. Lenz, (c) 573,414 shares of
Common Stock indirectly owned by Mr. Lenz through four corporations that he
indirectly owns and controls. (d) 38,880 shares of Series B Cumulative
Redeemable Convertible Preferred Stock (the "Series B Preferred Stock")
convertible into 87,300 shares of Common Stock and (e) Series B Common
Stock Purchase Warrants (the Series B Warrants") exercisable into 15,700
shares of Common Stock.
(4) Includes 34,366 shares of Common Stock issuable upon the exercise of
options exercisable within 60 days. Does not include 45,000 shares of
Restricted Stock granted under the Incentive Plan as none of such shares
have vested or will vest within 60 days.
(5) Includes 6,850 shares of Common Stock issuable upon the exercise of options
exercisable within 60 days.
(6) Includes 5,300 shares of Common Stock issuable upon the exercise of options
exercisable within 60 days.
(7) Includes 5,650 shares of Common Stock issuable upon the exercise of options
exercisable within 60 days.
(8) Includes 1,250 shares of Common Stock issuable upon the exercise of options
exercisable within 60 days.
(9) Includes 1,250 shares of Common Stock issuable upon the exercise of options
exercisable within 60 days.
(10) Includes 55,000 shares of Common Stock issuable upon the exercise of
options exercisable within 60 days.
(11) Includes 12,500 shares of Common Stock issuable upon the exercise of
options exercisable within 60 days.
(12) Includes 55,000 shares of Common Stock issuable upon the exercise of
options exercisable within 60 days. Also includes 10,000 shares owned by
Mr. Raben's wife as to which Mr. Raben does not have dispotive or voting
power and disclaims beneficial ownership.
(13) Includes 52,500 shares of Common Stock issuable upon the exercise of
options exercisable within 60 days.
(14) Includes 47,500 shares of Common Stock issuable upon the exercise of
options exercisable within 60 days. Also includes 800 shares of Common
Stock in a testamentary trust for which Mr. Wolf has shared voting power
and shared investment power and 200 shares of Common Stock held by Mr.
Wolf's wife for which he claims beneficial ownership.
(15) Includes only shares of Common Stock issuable upon the exercise of options
exercisable within 60 days.
(16) Includes 12,500 shares of Common Stock issuable upon the exercise of
options exercisable within 60 days.
</FN>
</TABLE>
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). The
Selling Stockholders and any broker-dealers that act in connection with the sale
of the shares offered hereby might be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, and any commissions received by
them and any profit on the resale of shares as principal might be deemed to be
underwriting discounts and commissions under such Act. 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, 1290 Avenue
of the Americas, New York, New York 10104.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Items 1 and 2. Plan Information; Registrant Information and 1996 Long Term
Incentive Plan 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
1996 Long-Term 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
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1995, filed with the Commission on March 29, 1996.
2. The Company's Quarterly Report on Form 10-Q for fiscal quarter ended March
31, 1996, filed with the Commission on May 15, 1996.
3. 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.
4. 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.
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 regarding legality.
10.1 1996 Terex Corporation Long Term Incentive Plan (incorporated by reference
to Exhibit 10.4 of the Amendment No. 5 to the Form S-1 Registration
Statement of Terex Corporation Registration No. 33-52711).
23.1 Independent Accountants' Consent of Price Waterhouse LLP.
24.1 Power of Attorney.
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.
<PAGE>
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 17th day of May, 1996.
TEREX CORPORATION
By: /s/ Ronald M. DeFeo *
Name: Ronald M. DeFeo
Title: President, Chief Executive Officer
and Chief Operating Officer
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 Officer, May 17, 1996
Ronald M. DeFeo Chief Operating Officer and Director
(Principal Executive Officer)
/s/Ralph T. Brandifino* Senior Vice President, May 17, 1996
Ralph T. Brandifino Chief Financial Officer
(Principal Financial Officer)
/s/Joseph F. Apuzzo* Vice President Finance and Controller May 17, 1996
Joseph F. Apuzzo (Principal Accounting Officer)
/s/Marvin B. Rosenberg Senior Vice President, General Counsel, May 17, 1996
Marvin B. Rosenberg Secretary and Director
/s/G. Chris Andersen* Director May 17, 1996
G. Chris Andersen
/s/William H. Fike* Director May 17, 1996
William H. Fike
/s/Bruce I. Raben* Director May 17, 1996
Bruce I. Raben
/s/David A. Sachs* Director May 17, 1996
David A. Sachs
/s/Adam E. Wolf* Director May 17, 1996
Adam E. Wolf
* By: /s/ Marvin B. Rosenberg
Marvin B. Rosenberg
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Page Number
in Signed
Exhibit Description Registration
No. 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.
10.1 1996 Terex Corporation Long Term Incentive Plan (incorporated by
reference to Exhibit 10.4 of the Amendment No. 5 to the Form S-1
Registration Statement of Terex Corporation Registration No. 33-52711).
23.1 Independent Accountants' Consent of Price Waterhouse LLP.
24.1 Power of Attorney.
EXHIBIT 5.1
May 15, 1995
Terex Corporation
500 Post Road East
Westport, Connecticut 06880
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Terex Corporation, a Delaware
corporation (the "Company"), on or about the date hereof with the Securities
and Exchange Commission (the "Commission") in connection with the registration
under the Securities Act of 1933, as amended (the "Securities Act"), of an
additional 300,000 shares of the Company's common stock, $.01 par value per
share (the "Common Stock"), reserved for issuance pursuant to the terms of the
Company's 1996 Long-Term Incentive Plan (the "Plan").
We are familiar with the Restated Certificate of Incorporation
and the By-laws of the Company and have examined copies of the Plan, the
resolutions adopted by the Company's Board of Directors and actions by the
Company's stockholders pertaining to the Plan, and originals or copies,
certified or otherwise identified to our satisfaction, of such other documents,
evidence of corporate action, certificates and other instruments, and have made
such other investigations of law and fact, as we have deemed necessary or
appropriate for the purposes of this opinion.
Based upon the foregoing, it is our opinion that the
additional 300,000 shares of Common Stock reserved for issuance pursuant to the
terms of the Plan have been duly authorized and, when issued in accordance with
the terms of the Plan and upon payment of the purchase price therefor, will be
validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion in the
Registration Statement. In giving this consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7
of the Securities Act or the Rules and Regulations of the Commission
thereunder.
Very truly yours,
/s/ Robinson Silverman Pearce
Aronsohn & Berman
ROBINSON SILVERMAN PEARCE
ARONSOHN & BERMAN LLP
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 22, 1996 appearing on page F-2
of Terex Corporation's Annual Report on Form 10-K for the year ended December
1995.
PRICE WATERHOUSE LLP
Stamford, Connecticut
May 10, 1996
Exhibit 24.1
Power Of Attorney
Know All Men By These Presents, that each individual whose signature
appears below hereby 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 documents
to be filed with the Securities and Exchange Commission during the period from
the date of this document to August 31, 1996, 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, during 1996.
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 Officer, May 15, 1996
Ronald M. DeFeo Chief Operating Officer and Director
(Principal Executive Officer)
/s/ Ralph T. Brandifino Senior Vice President and May 15, 1996
Ralph T. Brandifino Chief Financial Officer
(Principal Financial Officer)
/s/ Marvin B. Rosenberg Senior Vice President, General Counsel, May 15, 1996
Marvin B. Rosenberg Secretary and Director
/s/ Joseph F. Apuzzo Vice President and Controller May 15, 1996
Joseph F. Apuzzo (Principal Accounting Officer)
/s/ G. Chris Andersen Director May 15, 1996
G. Chris Andersen
/s/ William H. Fike Director May 15, 1996
William H. Fike
/s/ Bruce I. Raben Director May 15, 1996
Bruce I. Raben
/s/ David A. Sachs Director May 15, 1996
David A. Sachs
/s/ Adam E. Wolf Director May 15, 1996
Adam E. Wolf
