As filed with the Securities and Exchange Commission on January 24, 1997.
<PAGE>
Registration No. 33-52297
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-3 TO
FORM S-1 ON FORM S-3
UNDER
THE SECURITIES ACT OF 1933
TEREX CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 3537 34-1531521
(State or other jurisdiction (Primary standard industrial (I.R.S. Employer
incorporation or organization) classification code number) Identification No.)
500 Post Road East
Westport, Connecticut 06880
(203) 222-7170
(Address, including zip code, and telephone
number, including area code, of Registrant's
principal executive offices)
Marvin B. Rosenberg, Esq.
TEREX CORPORATION
500 Post Road East
Westport, Connecticut 06880
(203) 222-7170
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies To:
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
Attention: Stuart A. Gordon, Esq.
Eric I Cohen, Esq.
Approximate date of commencement of proposed sale
to public: From time to time after the effective date of
this Registration Statement.
If the only securities being registered on this form are
being offered pursuant to dividend or interest
reinvestment plans, please check the following box: [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [x]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]___________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]___________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]_________
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
242,684 Warrants
3,900,000 Shares
TEREX CORPORATION
Common Stock Purchase Warrants and Common Stock
-------------------------------
This Prospectus relates to the registration of (i) 242,684 common stock purchase
warrants (the "Series A Warrants") exercisable for shares of common stock, par
value $.01 per share (the "Common Stock"), of Terex Corporation (the "Company")
and (ii) the shares of Common Stock (the "Warrant Shares") which have been
previously issued or are issuable upon exercise or redemption of the Series A
Warrants. The Series A Warrants were issued by the Company, together with
1,200,000 shares of the Company's Series A Cumulative Redeemable Convertible
Series A Preferred Stock, par value $.01 per share (the "Series A Preferred
Stock"), in a private placement effected on December 20, 1993. All of the Series
A Warrants and Warrant Shares are being registered for resale by the holders
thereof and their successors, assigns and transferees (the "Selling Security
Holders"). See "Selling Security Holders." The Warrant Shares are also being
registered for their issuance to persons who acquire the Series A Warrants after
the date hereof upon their exercise of the Warrants. The Company will not
receive any of the proceeds from the resale by the Selling Security Holders of
the Series A Warrants or the Warrant Shares. The Company will receive proceeds
of $.01 per Warrant Share issued upon exercise of the Series A Warrants.
The Series A Warrants are exercisable until 5:00 p.m., New York time, on
December 31, 2000 (unless earlier redeemed). As of the date of this Prospectus,
each Series A Warrant will entitle the holder to purchase, at an exercise price
of $.01 per share, 2.41 Warrant Shares (the "Warrant Ratio"). The Company has
reserved 3,820,587 shares of Common Stock for issuance upon exercise of the
Series A Warrants, being the maximum number of shares that will initially be
issuable. The Warrant Ratio is also subject to adjustment upon the occurrence of
certain dilutive events. See "Description of Securities -- Warrants."
The Common Stock is listed on the New York Stock Exchange (the "NYSE") under the
trading symbol "TEX." On January 23, 1997, the closing price of the Common Stock
on the NYSE was $9.875 per share. The Warrant Shares have been approved for
listing on the NYSE, subject to issuance.
Prior to this offering, there has been no public market for the Series A
Warrants. The Company does not intend to list the Series A Warrants on any
securities exchange or to seek approval for quotation of the Series A Warrants
through any automated quotation system. There can be no assurance that an active
market for the Series A Warrants will develop.
The Selling Security Holders directly, through agents designated from time to
time, or through dealers or underwriters also to be designated, may sell the
Series A Warrants and Warrant Shares from time to time on terms to be determined
at the time of sale through customary brokerage channels or private sales at
market prices then prevailing or at negotiated prices then obtainable. To the
extent required, the specific Series A Warrants or Warrant Shares to be sold,
names of the Selling Security Holders, purchase price, public offering price,
the names of any such agent, dealer or underwriter, amount of expenses of the
offering and any applicable commission or discount with respect to a particular
offer will be set forth in an accompanying Prospectus Supplement. Each of the
Selling Security Holders reserves the sole right to accept and, together with
its agents from time to time, to reject in whole or in part any proposed
purchase of Series A Warrants or Warrant Shares made directly or through agents.
See "Plan of Distribution" for indemnification arrangements among the Company
and the Selling Security Holders.
For a discussion of certain matters which should be considered by prospective
investors, see "Risk Factors."
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.
The date of this Prospectus is January 24, 1997.
<PAGE>
Special Note Regarding Forward Looking Information
Certain information in this Prospectus includes forward looking
statements regarding future events or the future financial performance of the
Company that involve certain risks and uncertainties discussed in "Risk
Factors." In addition, the Company's expectations are predominantly based on
what it considers key economic assumptions. Construction and mining activity are
sensitive to interest rates, government spending and general economic
conditions. Some of the other significant factors for the Company include
foreign currency movements, political uncertainty in various areas of the world,
pricing, product initiatives and other actions taken by competitors, disruptions
in production capacity, excess inventory levels, the product initiatives and
other actions taken by competitors, disruptions in production capacity, excess
inventory levels, the effects of changes in laws and regulations, employee
relations and other factors. Actual events or the actual future results of the
Company may differ materially from any forward looking statement due to such
risks, uncertainties and significant factors.
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 is required to file reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information 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 and
at the regional offices of the Commission located at Seven World Trade Center,
13th Floor, New York, New York 10048 and at Northwestern Atrium Center, 500 West
Madison Street, 14th Floor, Chicago, Illinois 60661-2511. Copies of such
materials can be obtained by mail from the Public Reference Section of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
at prescribed rates. Additionally, the Commission maintains a Web site
containing reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. The address
for such Web site is http://www.sec.gov.
The Company's Common Stock is listed on the NYSE and reports, proxy
statements and other information concerning the Company may also be inspected at
the NYSE.
The Company has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act with respect to the Series A Warrants and
Warrant Shares offered hereby. 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 and schedules thereto, as permitted by
the rules and regulations of the Commission. Statements contained in this
Prospectus as to the contents of any contract or other document which is filed
as an exhibit to the Registration Statement are not necessarily complete, and
each statement is qualified in its entirety by reference to the full text of
such contract or document. For further information with respect to the Company
and the Series A Warrants and Warrant Shares offered hereby, reference is made
to the Registration Statement, including the exhibits thereto and the financial
statements, notes and schedules filed as a part thereof, which may be inspected
and copied at the public reference facilities of the Commission referred to
above.
The Company furnishes stockholders with annual reports containing
audited financial statements. The Company also furnishes its common stockholders
with proxy material for its annual meetings complying with the proxy
requirements of the Exchange Act.
<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE
The following documents which have been filed by the Company with the
Commission are incorporated in this Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1995.
2. The Company's 1996 Proxy Statement for Annual Meeting of
Stockholders dated April 5, 1996.
3. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996 and September 30, 1996.
4. The Company's Current Reports on Form 8-K and Form 8-K/A each dated
May 9, 1995 and filed with the Commission on May 24, 1995 and August 28,
1995, respectively.
5. The Company's Current Report on Form 8-K dated November 27, 1996
and filed with the Commission on December 11, 1996.
6. The Terex Corporation consolidated financial statements and
financial statement schedules as of December 31, 1995 and 1994 and for each
of the three years in the period ended December 31, 1995 contained in the
Company's Registration Statement on Form S-4 (Registration No. 333-1449),
as amended.
7. The Company's Current Report on Form 8-K dated December 30, 1996
and filed with the Commission on January 10, 1997.
8. All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 1995.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in and to be a part of
this Prospectus from the date of filing of such reports and documents.
Any statement contained herein or in a document which is incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement in any subsequently filed
document that is also 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.
This Prospectus incorporates documents by reference which are not
presented or delivered herewith. These documents are available upon written or
oral request from the Company, without charge, to each person to whom a copy of
this Prospectus has been delivered, including a copy of its most recent Annual
Report to Shareholders, other than exhibits to those documents. Requests should
be directed to Terex Corporation, Attention: Cecilia Neumann, Esquire, 500 Post
Road East, Westport, Connecticut 06880 (telephone (203) 222-7170).
<PAGE>
THE COMPANY
Terex is a global provider of capital goods and equipment used in the
manufacturing, distribution, mining, construction and infrastructure 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 currently operates two business segments: Terex Trucks and Terex
Cranes. Terex Trucks, formerly known as the Company's 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 (formerly known as the Mobile Cranes Segment) designs,
manufactures and markets mobile cranes, aerial platforms, container stackers and
scrap handlers 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 wholly owned subsidiary of the Company, completed
the acquisition (the "PPM Acquisition") of substantially all of the shares of
PPM, S.A., a societe anonyme, and certain of its subsidiaries ("PPM Europe"),
from Potain S.A., and all of the capital stock of Legris Industries, Inc., a
Delaware corporation which owned 92.4% of the capital of PPM Cranes, Inc., a
Delaware corporation, ("PPM North America" and PPM Europe and PPM North America
collectively referred to herein as "PPM") from Legris Industries, Inc. PPM
designs, manufacturers and markets mobile cranes and container stackers
primarily in North America and Western Europe under the brand names of PPM, P&H
(a licensed 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 Cranes and Excavators and Marklift
division to Terex Cranes, Inc. The former division now operates as Koehring
Cranes, Inc., a wholly owned subsidiary of Terex Cranes, Inc. ("Koehring").
Koehring manufactures mobile cranes under the LORAIN brand name and aerial lift
equipment under the MARKLIFT brand name. Terex Cranes, Inc., PPM and Koehring
comprise the 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.
Recent Developments
As part of its strategy to strengthen its capital structure and reduce
debt, on November 27, 1996, the Company sold substantially all the assets and
liabilities of its worldwide material handling business for an aggregate cash
purchase price, subject to adjustments, of $139,500,000. Approximately
$70,000,000 of the proceeds from the sale of the Company's material handling
business were used to repay indebtedness. In addition, the Company has called
all of its 1,200,000 shares of Series A Preferred Stock for redemption on
January 29, 1997 for an aggregate redemption price of $45,362,772.
<PAGE>
RISK FACTORS
In addition to other matters, prospective investors should carefully
consider the following risk factors before making an investment in the Series A
Warrants and the Warrant Shares:
Significant Leverage
The Company is highly leveraged. At December 31, 1996, the Company had
approximately $280 million of indebtedness.
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 $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.
The 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 tat any refinancing would be possible or that
any additional financing could be obtained.
Effect of Future Sales of Common Stock on the Value of the Warrants
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 and, therefore, indirectly, the
value of the Series A Warrants, prevailing from time to time.
As of December 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 33% 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
and, therefore, indirectly, the value of the Series A Warrants. 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.
<PAGE>
Restrictions on Dividends
Contractual restrictions exist under the Company's Senior Secured Notes
and credit facility which limit the Company's ability to pay dividends on its
capital stock. The terms of the Company's Series B Cumulative Redeemable
Convertible Preferred Stock (the "Series B 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 Series B 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.
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 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.
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 ("NOLS'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.
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 1996 the Company
incurred $0.3 million of legal fees and expenses on behalf of the Company,
directors and executives of the Company and their affiliate KCS Industries, Inc.
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 wold
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 Company will receive proceeds of $.01 per Warrant Share issued upon
exercise of the Series A Warrants, for an aggregate amount of up to $5,849. The
Company will use such proceeds for general corporate purposes. All Series A
Warrants and Warrant Shares covered hereby being registered for resale are being
so registered for the account of the Selling Security Holders and, accordingly,
the Company will not receive any of the proceeds from the resale of the Series A
Warrants or Warrant Shares by the Selling Security Holders.
<PAGE>
SELLING SECURITY HOLDERS
The following table sets forth certain information, as of January 24,
1997, regarding the Series A Warrants and Warrant Shares held by the Selling
Security Holders covered by this Prospectus. The number of Warrant Shares
currently issuable upon exercise of each outstanding Series A Warrant is 2.41
for an aggregate number of Warrant Shares issuable upon exercise of the Series A
Warrants at December 31, 1996 of 586,074. Because the Selling Security Holders
may offer all or some part of the Series A Warrants and Warrant Shares which
they hold from time to time pursuant to the offering contemplated by this
Prospectus, and because this offering is not being underwritten on a firm
commitment basis, no estimate can be given as to the amount of Series A Warrants
or Warrant Shares that will be held by the Selling Security Holders upon
termination of this offering.
<TABLE>
<CAPTION>
Number of Series A Number of Warrant
Name of Selling Security Holder Warrants Held Shares Held
<S> <C> <C>
Atwell & Co. ................................. 96,400
Bear Stearns Securities Corp. ................ 24,000 293,136
Cudd & Co., c/o Chase Manhattan Bank NA ...... 14,500 103,000
Cumberland Partners .......................... 40,000
Alma Elias ................................... 36,150
Armen J. Dekmejian ........................... 312
Gerlach & Co., c/o Citibank NA ............... 44,500 1,205
Michael D. Gill, Jr .......................... 312
Hare & Co. ................................... 40,000
JEFCO, Los Angeles, CA ....................... 33,008
JEFCO, Jersey City, NJ ....................... 10,000
Chris Kanoff ................................. 3,450
LEWCO Securities Corp. ....................... 10,500 2,410
Daniel S. Loeb ............................... 7,230
Neuberger & Berman ........................... 10,000 62,660
Nimil R. Parekh .............................. 1,000
Polly & Co. .................................. 500
Prudential Securities Inc. ................... 1,000
Joseph J. Radecki, Jr ........................ 2,000
Robert Riedl ................................. 2,048
Eric Lee Sappenfield ......................... 312
SC Fundamental Value Fund LP ................. 53,020
David St. Jean ............................... 2,048
M. Brent Stevens ............................. 3,750
Taft Securities .............................. 11,150
Andrew R. Whittaker .......................... 3,540
</TABLE>
The Series A Warrants and Warrant Shares are being registered for
resale solely for the account of the Selling Security Holders. None of the
Selling Security Holders and none of their respective officers, directors or
stockholders has had any material relationship with the Company within the past
three years, except (i) JEFCO is an affiliate of Jefferies & Company, Inc. which
was retained by the Company in connection with the offering of the Company's
Senior Secured Notes and these Series A Warrants and (ii) certain of the Selling
Security Holders are officers and/or employees of Jefferies & Company, Inc.
It is anticipated that each of the Selling Security Holders named
herein will offer and sell the Series A Warrants which may be sold by such
person hereunder from time to time in ordinary transactions to or through one or
more brokers or dealers in the over-the-counter market or in private
transactions at such prices as may be obtainable.
PLAN OF DISTRIBUTION
The Company will issue Warrant Shares upon the exercise of Series A
Warrants by Selling Security Holders from time to time through the Expiration
Date pursuant to the terms of the Series A Warrants and the Series A Warrants
Agreement. The Company will receive proceeds of $.01 per Series A Warrant Share
issued upon the exercise of the Series A Warrants. The Company will receive no
proceeds from the resale of the Series A Warrants and the Warrant Shares by the
Selling Security Holders pursuant to this offering. The Series A Warrants and
Warrant Shares offered for resale hereby may be sold from time to time by the
Selling Security Holders. Any such distribution of the Series A Warrants or
Warrant Shares by the Selling Security Holders, or by transferees or other
successors-in-interest of the Selling Security Holders, may be effected from
time to time in one or more transactions (which may involve block transactions)
on the NYSE or in the over-the-counter market (to the extent that such
securities are listed or traded on such markets), in negotiated transactions or
in a combination of such methods of sale, at fixed prices, at market prices
prevailing at the time of sale, at prices relating to prevailing market prices
or at negotiated prices. The Selling Security Holders may effect such
transactions directly to purchasers or through broker-dealers which may act as
agents or principals. Such brokers-dealers may receive compensation in the form
of underwriting discounts, concessions or commissions from the Selling Security
Holders and/or the purchasers of Series A Warrants and Warrant Shares for which
broker-dealers may act as agent or to whom they may sell as principal or both
(which compensation as to a particular broker-dealer may be less than or in
excess of customary commissions). In addition, any Common Stock covered by this
Prospectus that substantially qualifies for sale pursuant to Rule 144 of the
Securities Act may be sold under Rule 144 rather than pursuant to this
Prospectus.
The Series A Warrants were issued to the original purchasers on
December 20, 1993 in a private placement. There is no established trading market
for the Series A Warrants. The Company does not intend to list the Series A
Warrants on any securities exchange or to seek approval for quotation through
any automated quotation system. There is no dealer which is obligated to make a
market in the Series A Warrants and, if any dealer or dealers should do so, they
may discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of any trading market for the Series A Warrants.
As of the date of this Prospectus, the Company understands that the
Selling Security Holders do not have any agreement, arrangement or understanding
concerning the distribution of the Series A Warrants and Warrant Shares offered
hereby.
At the time a particular offer of Series A Warrants or Warrant Shares
is made, a Prospectus Supplement, to the extent required, will be distributed
which will set forth the aggregate amount of Series A Warrants or Warrant Shares
being offered, the names of the selling security holders, the purchase price,
the amount of expenses of the offering and the terms of the offering, including
the name or names of any underwriters, dealers or agents, any discounts,
commissions and other items constituting compensation from such selling security
holders and any discounts, commissions or concessions allowed or reallowed or
paid to dealers.
To comply with certain states' securities laws, if applicable, the
Series A Warrants and Warrant Shares will be sold in such states only through
brokers or dealers. In addition, in certain states the Series A Warrants and
Warrant Shares may not be sold unless they have been registered or qualify for
sale in such states or an exemption from registration or qualification is
available and is complied with.
Any broker-dealers who participate in a sale of their Series A Warrants
or Warrant Shares may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act, and any commissions received by them, and
proceeds of any such sales as principal, may be deemed to be underwriting
discounts and commissions under the Securities Act.
Pursuant to the Series A Warrant Registration Rights Agreement, the
Company has paid or will pay any and all expenses incident to the performance of
such agreement including filing fees, fees and expenses incurred in connection
with compliance with the securities or blue sky laws of the applicable states,
and fees and disbursements of counsel and independent public accountants for the
Company and the reasonable fees and disbursements of one counsel retained by the
Selling Security Holders in connection with the Registration Statement. Such
expenses are estimated to be approximately $156,000. As and when the Company is
required to update this Prospectus, it may incur additional expenses in excess
of this estimated amount. Normal commission expenses and brokerage fees, as well
as any applicable underwriting discounts or transfer taxes, are payable
individually by the Selling Security Holders.
In the Series A Warrant Registration Rights Agreement, the Company
agreed to indemnify and hold harmless, to the extent permitted by law, the
Selling Security Holders, the officers, directors, shareholders, agents,
affiliates and partners of the Selling Security Holders, any person who
participates as an underwriter in the offering and sale of the Series A Warrants
and Warrant Shares and any person who controls any of such sellers or any of
such underwriters against losses, claims and expenses arising out of any false
or misleading statements contained in this Prospectus or the Registration
Statement of which it is a part. The Selling Security Holders have agreed to
indemnify the Company against certain liabilities and expenses arising out of
statements made by them for reliance by the Company in connection with the
Registration Statement or this Prospectus.
DESCRIPTION OF SECURITIES
The Company's authorized capital stock consists of 40,000,000 shares of
capital stock, $.01 par value, consisting of 30,000,000 shares of Common Stock
and 10,000,000 shares of preferred stock. As of December 31, 1996, 13,239,918
shares of Common Stock, 1,200,000 shares of Series A Preferred Stock (which have
been called for redemption on January 29, 1997) and 38,800 shares of Series B
Preferred Stock were issued and outstanding.
Common Stock
Each outstanding share of Common Stock entitles the holder to one vote,
either in person or by proxy, on all matters submitted to a vote of
stockholders, including the election of directors. There is no cumulative voting
in the election of directors, which means that the holders of a majority of the
outstanding shares of Common Stock can elect all of the directors then standing
for election. Subject to preferences which may be applicable to any outstanding
shares of preferred stock, holders of Common Stock have equal ratable rights to
such dividends as may be declared from time to time by the Board of Directors
out of funds legally available therefor.
Holders of Common Stock have no conversion, redemption or preemptive
rights to subscribe to any securities of the Company. All outstanding shares of
Common Stock are fully paid and nonassessable. In the event of any liquidation,
dissolution or winding-up of the affairs of the Company, holders of Common Stock
will be entitled to share ratably in the assets of the Company remaining after
provision for payment of liabilities to creditors and preferences applicable to
outstanding shares of preferred stock. The rights, preferences and privileges of
holders of Common Stock are subject to the rights of the holders of any
outstanding shares of preferred stock.
The Certificate of Incorporation provides that directors of the Company
shall not be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duties as a director except to the extent
otherwise required by Delaware law. The by-laws of the Company provide for
indemnification of the officers and directors of the Company to the fullest
extent permitted by Delaware law.
The transfer agent and registrar for the Common Stock is ChaseMellon
Shareholder Services L.L.C., 111 Founders Plaza, Suite 1100, East Hartford,
Connecticut 06108.
Warrants
As of the date of this Prospectus, the Company has outstanding 242,684
Series A Warrants. The following is a summary of the terms and provisions of the
Series A Warrants. This summary does not purport to be complete and is qualified
in its entirety by reference to the detailed provisions of the Warrants, which
are included as an exhibit to the registration statement of which this
Prospectus is a part.
Term. As of the date of this Prospectus, each Series A Warrant may be
exercised by the registered holder thereof for 2.41 shares of Common Stock. The
Series A Warrants may be exercised at any time in whole and from time to time in
part, at the option of the holder, until 5:00 p.m. New York City time on
December 31, 2000.
A Series A Warrant may be exercised upon (i) surrender of the Series A
Warrant certificate at the principal office of the Warrant Agent, with the form
of election to purchase on the reverse thereof duly completed and signed and
(ii) payment of the Exercise Price with respect to the Warrant Shares being
purchased, payable by certified or bank check to the order of the Company.
Exercise Price. The Series A Warrants are exercisable for $.01 per
Series A Warrant Share in the case of Common Stock and in the case of all other
securities issuable upon exercise of the Series A Warrants, for the lowest
exercise price permitted by law.
Adjustments. The Series A Warrants contain certain provisions that
protect the holders thereof against dilution in the event of (i) dividends or
other distributions of Common Stock, (ii) subdivisions and combinations of
outstanding shares of Common Stock, (iii) dividends or other distributions of
rights or warrants entitling the holders thereof to subscribe for or purchase,
during a period not exceeding 45 days from the date of such dividend or other
distribution, shares of Common Stock at a price per share less than the Current
Market Price per share of Common Stock, or (iv) issuances by the Company of any
Common Stock (or securities convertible into or exercisable for Common Stock)
for a consideration per share less than the Current Market Price of the Common
Stock on the date of such issuance, subject to certain exceptions. "Current
Market Price" per share of the Common Stock on any day means the average of the
daily closing prices with respect to the Common Stock for the 30 consecutive
trading days ending on such date (or, if such date is not a trading day, on the
trading day immediately preceding such date); provided, that if the Common Stock
is not publicly traded, the Current Market Price per shall be determined by a
nationally recognized investment banking firm selected by the Board of Directors
of the Company.
In addition, if the Company shall declare a dividend or other
distribution on its Common Stock that would not cause such an adjustment
consisting of (i) securities other than Common Stock, (ii) evidences of its
indebtedness, or (iii) assets (including cash dividends or distributions)
(collectively, "Assets"), then in each such case adequate provision shall be so
that each holder of the Series A Warrants shall receive, without charge,
concurrently with the making of such dividend or distribution, the amount and
kind of such Assets that such holder would have received if such holder had,
immediately prior to the relevant record date, exercised its Series A Warrants.
On or prior to each day on which an adjustment is to be made, the
Company shall promptly direct the Warrant Agent, and the Warrant Agent shall
send to each holder, notice of such adjustment and shall deliver to the Warrant
Agent a certificate of a firm of independent public accountants selected by the
Board of Directors (who may be the regular accountants employed by the Company)
setting forth the Warrant Shares purchasable upon the exercise of each Series A
Warrant and the Warrant Ratio after such adjustment, a brief statement of the
facts requiring such adjustment, and the computation by which such adjustment
was made.
Transfer. The Series A Warrant shall be transferable only on the Series
A Warrant register maintained by the Warrant Agent, upon delivery thereof,
accompanied by a written instrument or instruments of transfer in form
reasonably acceptable to the Warrant Agent, duly executed by the registered
holder or holders thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney. Upon any registration of transfer, the Warrant
Agent shall (a) countersign and deliver a new Series A Warrant certificate
evidencing the Series A Warrant or Series A Warrants to the persons entitled
thereto and (b) cancel the surrendered Series A Warrant certificate.
Reorganizations. In case of (a) any consolidation or merger of the
Company with or into another corporation, (b) the occurrence of any other
transaction or event pursuant to which all or substantially all of the Common
Stock is exchanged for, converted into, or acquired for, or constitutes solely
the right to receive, cash securities, property or other assets (whether by
exchange offer, liquidation, tender offer or otherwise) or (c) the sale, lease
or other transfer of all or substantially all of the assets of the Company,
there shall thereafter be deliverable upon exercise of each Series A Warrant (in
lieu of the Warrant Shares theretofore deliverable), at the lowest exercise
price permitted by law, the number of shares of stock or other securities or
property to which a holder of the Warrant Shares would have been entitled upon
such transaction if such Series A Warrant had been exercised in full immediately
prior to such transaction.
No Rights as Stockholders. Nothing contained in any Series A Warrant
agreement relating to the Series A Warrants or in any of the Series A Warrants
confers upon the holders thereof or their transferees the right to vote or to
receive dividends or to consent or to receive notice as stockholders in respect
of any meeting of stockholders for the election of directors of the Company or
any other matter, or any rights whatsoever as stockholders of the Company.
Reservation of Shares; Governmental Approvals and Stock Exchange
Listings. The Company shall reserve at all times so long as any Series A
Warrants remain outstanding, free from preemptive rights, out of its treasury
stock (if applicable) or its authorized but unissued shares of Common Stock, or
both, solely for the purpose of effecting the exercise of the Series A Warrants,
sufficient Warrant Shares to provide for the exercise of all outstanding Series
A Warrants, and take all necessary action so that all Warrant Shares that are
issued upon exercise of the Series A Warrants will, upon issuance, be duly and
validly issued, fully paid and nonassessable.
The Company will use its best efforts to (a) obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and to make securities acts filing under federal and state law, that
are required in connection with the issuance, sale, transfer and delivery of the
Series A Warrant certificates, the exercise or conversion of the Series A
Warrants, and the issuance, sale, transfer and delivery of the Warrant Shares
issued upon exercise or conversion of the Series A Warrants, and (b) have the
Warrants Shares, immediately upon their issuance, listed on such securities
exchange on which the Common Stock is then listed.
The Warrant Agent for the Series A Warrants is ChaseMellon Shareholder
Services L.L.C., 111 Founders Plaza, Suite 1100, East Hartford, Connecticut
06108.
Preferred Stock
The Board of Directors of the Company is authorized to issue up to
10,000,000 million shares of preferred stock, par value $.01 per share, in one
or more series, with such designations, powers, preferences and rights of such
series and the qualifications, limitations or restrictions thereon, including,
but not limited to, the fixing of dividend rights, dividend rates, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), the redemption price or prices, and the liquidation preferences, in
each case, if any, as the Board of Directors of the Company may by resolution
determine, without any further vote or action by the Company's stockholders.
Series A Cumulative Redeemable Convertible Preferred Stock. By
resolution adopted December 17, 1993, the Board of Directors of the Company
authorized the issuance of a series of preferred stock consisting of 1,200,000
shares, designated Series A Cumulative Redeemable Convertible Preferred Stock,
par value $.01 per share, and fixed the terms of such Series A Preferred Stock.
The Company has called all 1,200,000 shares of Series A Preferred Stock for
redemption on January 29, 1997.
Series B Cumulative Redeemable Convertible Preferred Stock. By
resolution adopted January 24, 1994, the Board of Directors of the Company
authorized the issuance of a series of preferred stock consisting of 89,800
shares of Series B Preferred Stock, and fixed the terms of such Series B
Preferred Stock. As of the date of this Prospectus, there are 38,800 shares of
Series B Preferred Stock outstanding. For the complete terms of the Series B
Preferred Shares, see the Company's Designation of Preferences and Rights of
Series B Cumulative Redeemable Convertible Preferred Stock.
The registrar and transfer agent for the Series B Preferred Stock is
ChaseMellon Shareholder Services L.L.C., 111 Founders Plaza, Suite 1100, East
Hartford Connecticut 06108.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following discussion summarizes certain Federal income tax
consequences to the initial holders of the Series A Warrants and Warrant Shares
under existing Federal income tax law, which is subject to change, possibly
retroactively. This summary does not discuss all aspects of Federal income
taxation that may be relevant to a particular investor in light of his personal
investment circumstances or to certain types of investors subject to special
treatment under the Federal income tax laws (for example, financial
institutions, insurance companies, tax-exempt organizations, broker-dealers,
foreign taxpayers, and taxpayers subject to the "straddle" rules of the Internal
Revenue Code of 1986, as amended (the "Code")) and it does not discuss any
aspect of state, local or foreign tax law. This summary assumes that investors
will hold their Series A Warrants and Warrant Shares as "capital assets"
(generally, property held for investment) under the Code. Holders are advised to
consult their tax advisors as to the specific tax consequences of holding and
disposing of the Series A Warrants and Warrant Shares, including the application
and effect of Federal, state, local and foreign income and other tax laws.
This summary is based on the Company's understanding of the Federal
income tax laws, which in turn is in part based on discussions with the
Company's professional advisers. It is the Company's belief that all material
Federal income tax consequences are addressed.
Upon the exercise of a Series A Warrant, a holder will not recognize
gain or loss and will have a tax basis in the Warrant Shares received equal to
the tax basis in such holder's Series A Warrant plus the exercise price thereof.
Because the Series A Warrants have a minimal exercise price, it is not certain
whether a holder will be treated as owning a Series A Warrant or the shares of
Common Stock underlying the Series A Warrant for Federal income tax purposes.
Holders are urged to consult their tax advisors regarding such possibility. If
the Series A Warrants are treated as warrants for Federal income tax purposes,
the holding period for the Warrant Shares purchased pursuant to the exercise of
a Series A Warrant will begin on the day following the date of exercise and will
not include the period that the holder held his Series A Warrant. On the other
hand, if the Series A Warrants are treated as Common Stock, the holding period
for the Warrant Shares purchased pursuant to the exercise of a Series A Warrant
will include the period during which the Series A Warrant was held by the
holder. The holding period for the Series A Warrants began on the day following
the day they were acquired.
Upon a sale or other disposition of Series A Warrants or Warrant
Shares, a holder will recognize capital gain or loss in an amount equal to the
difference between the amount realized and the holder's tax basis in such Series
A Warrants or Warrant Shares. Such a gain or loss will be long-term if the
holding period is more than one year. In the event that a Series A Warrant
lapses unexercised, a holder will recognize a capital loss in an amount equal to
his tax basis in the Series A Warrant. Such loss will be long term if the Series
A Warrant has been held for more than one year.
An adjustment in the exercise price of the Series A Warrants to reflect
distributions to holders of Common Stock may, in certain circumstances, be
treated as a constructive distribution to holders of Series A Warrants subject
to tax as a dividend pursuant to Section 305 of the Code. Although the matter is
not entirely free from doubt, adjustments to the Warrant Ratio should not be
treated as a constructive distribution.
LEGAL MATTERS
Certain legal matters in connection with the sale of the Series A
Warrants and Warrant Shares offered hereby will be passed upon for the Company
by Robinson Silverman Pearce Aronsohn & Berman LLP, 1290 Avenue of the Americas,
New York, New York 10104.
EXPERTS
The consolidated financial statements of the Company incorporated in
this Prospectus by reference to the Registration Statement on Form S-4 dated
September 30, 1996, have been so incorporated in reliance on the report of Price
Waterhouse LLP, independent accountants, given on the authority of said firm as
experts in auditing and accounting.
The combined financial statements of P.P.M. 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, incorporated by reference in this Prospectus and
Registration Statement have been audited by Ernst & Young LLP, independent
auditors, and are incorporated by reference herein in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
<PAGE>
No dealer, salesman or other person has been authorized to give any
information or to make representations other than those contained in this
Prospectus, and if given or made, such information or representations must not
be relied upon as having been authorized by the Company. Neither the delivery of
this Prospectus nor any sale made hereunder shall, under any circumstances,
create an implication that the information herein is correct as of any time
subsequent to its date. This Prospectus does not constitute an offer or
solicitation by anyone in any jurisdiction in which such offer or solicitation
is not authorized or in which the person making such offer of solicitation is
not qualified to do so or to anyone to whom it is unlawful to make such offer or
solicitation.
-----------------------------------
Page
Available Information ............................ 2
Documents Incorporated by
Reference ...................................... 3
The Company ...................................... 4
Risk Factors ..................................... 5
Use of Proceeds .................................. 7
Selling Security Holders ......................... 8
Plan of Distribution ............................. 9
Description of Securities ........................ 10
Certain Federal Income Tax
Considerations ................................. 13
Legal Matters .................................... 14
Experts .......................................... 14
242,684 Warrants
3,900,000 Shares
of
TEREX CORPORATION
Common Stock Purchase Warrants
and
Common Stock
----------------
PROSPECTUS
----------------
January 24, 1997
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits
3.1 Certificate of Designation of Preferences and Rights of Series B Cumulative
Redeemable Convertible Preferred Stock ("Series B 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).
4.1 Warrant Agreement dated as of December 20, 1993 between Terex Corporation
and Mellon Securities Trust Company, as Warrant Agent.*
4.2 Form of Series A Warrant.*
5.1 Opinion of Robinson Silverman Pearce Aronsohn & Berman LLP as to legality
of securities being registered.*
23.1 Consent of Robinson Silverman Pearce Aronsohn & Berman LLP (included as
part of Exhibit 5.1).*
23.2 Consent of Ernst & Young LLP, Independent Auditors (included herewith as
page II-4).**
23.3 Independent Accountants' consent of Price Waterhouse LLP (included herewith
as page II-5).**
24.1 Power of attorney.*
- ----------------------------
* Previously filed.
** Filed herewith.
Item 17. Undertakings
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The Company hereby further undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's Annual Report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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 Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of 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 certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Westport, State of Connecticut, on January 24,
1997.
TEREX CORPORATION
By: /s/ Ronald M. DeFeo *
Ronald M. DeFeo, President, Chief
Executive Officer and Chief Operating
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post Effective Amendment No. 1 on Form S-3 to the Registration Statement
has been signed by the following persons in the capacities and on the date
indicated.
Name Title Date
/s/ Ronald M. DeFeo * President, Chief Executive January 24, 1997
(Ronald M. DeFeo) Officer, Chief Operating
Officer and Director
(Principal Executive Officer)
/s/ David J. Langevin Executive Vice President, January 24, 1997
(David J. Langevin) (Acting Principal Financial
Officer)
/s/ Joseph F. Apuzzo Vice President Finance January 24, 1997
(Joseph F. Apuzzo) and Controller
(Principal Accounting Officer)
/s/ Marvin B. Rosenberg Senior Vice President, January 24, 1997
(Marvin B. Rosenberg) Secretary, General
Counsel and Director
/s/ G. Chris Andersen * Director January 24, 1997
(G. Chris Andersen)
/s/ William H. Fike * Director January 24, 1997
(William H. Fike)
/s/ Bruce I. Raben * Director January 24, 1997
(Bruce I. Raben)
/s/ David A. Sachs * Director January 24, 1997
(David A. Sachs)
/s/ Adam E. Wolf * Director January 24, 1997
(Adam E. Wolf)
*By: /s/ Marvin B. Rosenberg
Marvin B. Rosenberg,
Attorney-in-fact
<PAGE>
Exhibit 23.2
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our firm under the caption "Experts" and to the
use of our report dated August 22, 1995, in Amendment No. 1 to the Registration
Statement (Form S-3 No. 33-52297) and related Prospectus of Terex Corporation
for the Registration of 242,684 common stock purchase warrants (the "Series A
Warrants") exercisable for shares of its common stock, par value $.01 per share
(the "Common Stock"), and the shares of its Common Stock which have been
previously issued or are issuable upon exercise or redemption of the Series A
Warrants.
ERNST & YOUNG LLP
Greenville, South Carolina
January 24, 1997
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
March 22, 1996 (except as to Notes A and B which are as of September 24, 1996)
appearing on page F-3 of Terex Corporation's Registration Statement on Form S-4
dated September 30, 1996. We also consent to the reference to us under the
heading "Experts" in such Prospectus..
PRICE WATERHOUSE LLP
Stamford, Connecticut
January 23, 1997
<PAGE>
EXHIBIT INDEX
Item 16. Exhibits
3.1 Certificate of Designation of Preferences and Rights of Series B Cumulative
Redeemable Convertible Preferred Stock ("Series B 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).
4.1 Warrant Agreement dated as of December 20, 1993 between Terex Corporation
and Mellon Securities Trust Company, as Warrant Agent.*
4.2 Form of Series A Warrant.*
5.1 Opinion of Robinson Silverman Pearce Aronsohn & Berman LLP as to legality
of securities being registered.*
23.1 Consent of Robinson Silverman Pearce Aronsohn & Berman LLP (included as
part of Exhibit 5.1).*
23.2 Consent of Ernst & Young LLP, Independent Auditors (included herewith as
page II-4).**
23.3 Independent Accountants' consent of Price Waterhouse LLP (included herewith
as page II-5).**
24.1 Power of attorney.*
- ----------------------------
* Previously filed.
** Filed herewith.
