As filed with the Securities and Exchange Commission on October 3, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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, including area code, of registrant's principal
executive offices)
CMI CORPORATION STOCK OPTION PLAN
CMI CORPORATION STOCK OPTION
STOCK OPTION AGREEMENT
(Full Title of the Plan)
Eric I Cohen, 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)
CALCULATION OF REGISTRATION FEE
========================== =================== ===================== ===================== ====================
Title of Proposed Maximum Proposed Maximum
Securities to Amount to be Offering Price Aggregate Offering Amount of
be Registered Registered(1) Per Share(2) Price(3) Registration Fee
-------------------------- ------------------- --------------------- --------------------- --------------------
Common Stock, par value 88,400 $22.142 $1,957,392 $489.35
$0.01 per share
========================== =================== ===================== ===================== ====================
(1) Represents the maximum number of shares of common stock, par value
$0.01 per share ("Common Stock"), of Terex Corporation ("we", "us", the
"Company" or the "Registrant") issuable upon exercise of options
granted under the CMI Corporation Stock Option Plan, the CMI
Corporation Stock Option and the Stock Option Agreement (together, the
"CMI Stock Plans") and outstanding immediately prior to consummation of
the merger (the "Merger") described in the Agreement and Plan of
Merger, dated as of June 27, 2001, by and among CMI Corporation
("CMI"), the Company and a wholly-owned subsidiary of the Company (the
"Merger Agreement"). The amount to be registered was calculated by
multiplying the total number of options assumed by Terex by the
exchange ratio under the Merger Agreement (552,500 x 0.16). Pursuant to
Rule 416(a) of the Securities Act of 1933, as amended, the number of
shares being registered shall include an indeterminate number of
additional shares of Terex's common stock that may become issuable as a
result of any stock splits, stock dividends, or other similar
transactions in accordance with the anti-dilution provisions of the CMI
Stock Plans.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 of the Securities Act of 1933, as amended, on the
basis of the weighted average exercise price per share of the
outstanding options. As adjusted by the exchange ratio under the Merger
Agreement, the 552,500 options granted under the CMI Stock Plans have
the following exercise prices (rounded to the nearest thousandth):
$12.109, $13.438, $17.188, $21.875, $25.781, $28.125 and $42.578, with
a weighted average exercise price of $22.142.
(3) The proposed maximum aggregate offering price was calculated by
multiplying the number of shares subject to options exercisable at each
of the seven exercise prices set forth in Note 2 above as adjusted by
the exchange ratio under the Merger Agreement by the number of shares
issuable at the respective exercise prices. The calculation is as
follows: (3,200 options x $12.109) + (1,200 options x $13.438) +
(40,000 options x $17.188) + (8,000 options x $21.875) + (8,000 options
x $25.781) + (24,800 options x $28.125) + (3,200 options x $42.578) =
$1,957,392 aggregate consideration payable for the exercise of all
options.
INTRODUCTORY STATEMENT
This Registration Statement on Form S-8 is filed by the Registrant and
relates to 88,400 shares of Common Stock issuable to employees and directors of
CMI, whose options to purchase shares of common stock, par value $0.10 per
share, of CMI ("CMI Common") were converted into options to purchase shares of
Common Stock. Pursuant to the Merger Agreement and in accordance with Oklahoma
law, CMI was merged with and into Claudius Acquisition Corp., a wholly owned
subsidiary of the Registrant, on October 1, 2001, and options to purchase
552,500 shares of CMI Common were assumed by the Registrant and converted into
options to purchase 88,400 shares of Common Stock.
PART I
INFORMATION REQUIRED IN THE 10(a) PROSPECTUS
The documents containing the information specified in this Part I will be
sent or given to employees and directors of CMI as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended (the "Securities Act"). Such
documents are not filed with the Securities and Exchange Commission (the "SEC")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. These documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Registration Statement, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information contained in those
incorporated documents are considered part of this Registration Statement, and
later information we file with the SEC will automatically update and supersede
this information.
2
We incorporate by reference the documents listed below that we have filed
previously with the SEC under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and any future filings we make with the SEC under Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
of our Common Stock offered hereby has been sold or which registers all of the
Common Stock offered hereby that remains unsold:
(a) Our Annual Report on Form 10-K for the year ended December 31, 2000;
(b) Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2001;
(c) Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2001;
(d) Our Current Report on Form 8-K dated March 14, 2001 (filed March 15,
2001);
(e) Our Current Report on Form 8-K dated March 22, 2001 (filed March 23,
2001);
(f) Our Current Report on Form 8-K dated June 27, 2001 (filed June 28,
2001);
(g) Our Current Report on Form 8-K dated October 1, 2001 (filed October 2,
2001);
(h) Our Notice of Annual Meeting of Stockholders and Proxy Statement dated
April 6, 2001; and
(i) The description of our Common Stock contained in our Registration
Statement on Form S-4, as amended dated August 24, 2001, including any
amendment or report filed with the SEC for the purpose of updating
such description.
You may request a copy of any of these filings, at no cost, by contacting us at
the following address:
Terex Corporation
500 Post Road East
Suite 320
Westport, CT 06880
Telephone (203) 222-7170
Any statement contained in a document that is incorporated, or deemed
incorporated, by reference in this Registration Statement shall be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in this Registration Statement, or incorporated by reference
in this Registration Statement or in any other subsequently filed document that
also is, or is deemed, incorporated by reference in this Registration Statement,
modifies or supersedes such statement. Any statement so modified or superseded
shall not be a part of this Registration Statement, except as so modified or
superseded.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Eric I Cohen, Esq., has rendered an opinion on the validity of the Common
Stock being registered under this Registration Statement. Mr. Cohen is a senior
vice president and general counsel of the Company. A copy of his opinion is
attached as Exhibit 5 to this Registration Statement. Mr. Cohen holds shares of
Common Stock and options to acquire shares of Common Stock.
3
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law ("DGCL") and
Article IX of the Company's Amended and Restated By-laws ("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 officers and directors against all liabilities (including
judgments, settlements, fines and penalties) and reasonable expenses incurred in
connection with the investigation, defense, settlement or appeal of certain
actions, whether instituted by a third party or a stockholder (either directly
or indirectly) and including specifically, but without limitation, actions
brought under the Securities Act and/or the Exchange Act; except that no such
indemnification will be permitted if such director or officer was not successful
in defending against any such action and it is determined that the director or
officer breached or failed to perform his or her duties to the Company, and such
breach or failure constitutes (i) a willful breach of his or her "duty of
loyalty", (ii) acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of the law, (iii) a violation of Section 174
of the DGCL, relating to prohibited dividends or distributions or the repurchase
or redemption of stock or (iv) a transaction where such individual derived an
improper financial profit (unless it is deemed that such profit is immaterial in
light of all of the circumstances) (collectively, "Breach of Duty").
Notwithstanding the foregoing, subject to certain exceptions, the By-laws
provide that directors or officers initiating an action are not entitled to
indemnification.
The By-laws also establish certain procedures by which (i) a
director or officer may request an advance on his or her reasonable expenses,
prior to the final disposition of an action, (ii) the Company may withhold an
indemnification payment from a director or officer, (iii) a director or officer
may be entitled to partial indemnification and (iv) a director or officer may
challenge the Company's denial to furnish him or her with requested
indemnification. Additionally, the By-laws provide that the adverse termination
of an action against an officer or director is not in and of itself sufficient
to create a presumption that a director or officer engaged in conduct
constituting a Breach of Duty.
Finally, the Company's Restated Certificate of Incorporation, as
amended, contains a provision that eliminates the personal liability of a
director to the Company and its stockholders for certain breaches of his or her
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 further defined therein) to the Company or
its stockholders, (ii) for acts or omissions not in "good faith" (as further
defined therein) or which involve intentional misconduct or a knowing violation
of 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 repurchase or redemption, or (iv) for any transaction from which the
director derived an improper personal profit to the extent of such profit. This
provision of the Restated Certificate of Incorporation offers persons who serve
on the Board of Directors of the Company protection against awards of monetary
damages resulting from negligent (except as indicated above) and "grossly"
negligent actions taken in the performance of their 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. Although the
validity and scope of Section 145 of the DGCL has not been tested in court, the
SEC 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.
4
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 Number 33-52297).
4.2 Certificate of Elimination with respect to the Series B Preferred
Stock (incorporated by reference to Exhibit 4.3 to the Form 10-K for
the year ended December 31, 1998 of Terex Corporation, Commission File
No. 1-10702).
4.3 Certificate of Amendment to Certificate of Incorporation of Terex
Corporation dated June 5, 1998 (incorporated by reference to Exhibit
3.3 to the Form 10-K for the year ended December 31, 1998 of Terex
Corporation, Commission File No. 1-10702).
4.4 Amended and Restated Bylaws of Terex Corporation (incorporated by
reference to Exhibit 3.2 to the Form 10-K for the year ended December
31, 1998 of Terex Corporation, Commission File No. 1-10702).
5.1 Opinion of Eric I Cohen, Esq., as to the legality of the securities
being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Eric I Cohen, Esq. (included in the opinion filed as
Exhibit 5.1 hereto).
24. Powers of Attorney of certain officers and directors of the Registrant
(included on the signature page of this Registration Statement).
Item 9. Undertakings
a. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) 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 this Registration
Statement;
(iii)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 (a)(1)(i) and (a)(1)(iii) do
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
5
or 15(d) of the Exchange Act that are incorporated by reference
in this Registration Statement.
(2) 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain
unsold at the termination of the offering.
b. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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.
c. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
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 of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Westport, Connecticut, on October 3, 2001.
TEREX CORPORATION
By: /s/ Ronald M. DeFeo
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Ronald M. DeFeo
Chairman of the Board, President
and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Ronald M. DeFeo or Eric I Cohen,
his true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement, and to file the same, with exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent 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 attorney-in-fact and agent
or either of them, or their or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
/s/ Ronald M. DeFeo Chairman, Chief Executive October 3, 2001
-------------------
Ronald M. DeFeo Officer and Director
(Principal Executive Officer)
/s/ Joseph F. Apuzzo Chief Financial Officer October 3, 2001
-------------------- (Principal Financial Officer)
Joseph F. Apuzzo
/s/ Kevin M. O'Reilly Controller October 3, 2001
--------------------- (Principal Accounting Officer)
Kevin M. O'Reilly
/s/ G. Chris Andersen Director October 3, 2001
---------------------
G. Chris Andersen
/s/ William H. Fike Director October 3, 2001
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William H. Fike
/s/ Donald P. Jacobs Director October 3, 2001
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Donald P. Jacobs
/s/ Don DeFosset Director October 3, 2001
---------------------
Don DeFosset
/s/ Marvin B. Rosenberg Director October 3, 2001
-----------------------
Marvin B. Rosenberg
/s/ David A. Sachs Director October 3, 2001
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David A. Sachs
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EXHIBIT INDEX
Exhibit Number Description Page
-------------- ----------- ----
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 Number 33-52297).
4.2 Certificate of Elimination with respect to the Series B
Preferred Stock (incorporated by reference to Exhibit
4.3 to the Form 10-K for the year ended December 31,
1998 of Terex Corporation, Commission File No. 1-10702).
4.3 Certificate of Amendment to Certificate of Incorporation
of Terex Corporation dated June 5, 1998 (incorporated by
reference to Exhibit 3.3 to the Form 10-K for the year
ended December 31, 1998 of Terex Corporation, Commission
File No. 1-10702).
4.4 Amended and Restated Bylaws of Terex Corporation
(incorporated by reference to Exhibit 3.2 to the Form
10-K for the year ended December 31, 1998 of Terex
Corporation, Commission File No. 1-10702).
5.1 Opinion of Eric I Cohen, Esq., as to the legality of 10
the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP. 11
23.2 Consent of Eric I Cohen, Esq. (included in the opinion
filed as Exhibit 5.1 hereto).
24. Powers of Attorney of certain officers and directors of
the Registrant (included on the signature page of this
Registration Statement).
9