As filed with the Securities and Exchange Commission on May 17, 2002.
Registration No. ___-_____
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,
including area code, of Registrants' principal executive offices)
------------------------
Terex Corporation 2000 Incentive Plan
(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 Amount Proposed Proposed Amount of
Securities to be Registered to be Registered Maximum Maximum Registration Fee
Offering Price Aggregate
Per Unit Offering Price
------------------------------------- --------------------- --------------------- ------------------------ --------------------
Common Stock, par value $.01 per 1,500,000 shares $23.29 (1) $34,935,000 (1) $3,220 (1)
share
===================================== ===================== ===================== ======================== ====================
(1) Pursuant to Rule 457(c) and Rule 457(h)(1) under the Securities Act of
1933, as amended, the proposed maximum offering price and the
registration fee are based on the average of the high and low prices
per share of the Registrant's Common Stock reported on the New York
Stock Exchange Composite Tape on May 10, 2002.
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 all participants in the Terex Corporation 2000 Incentive
Plan (the "Plan") 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 Terex Corporation ("we", "us", the "Company" or the
"Registrant") 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.
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, par value $0.01 per share ("Common Stock"), offered hereby
has been sold or which deregisters all of the Common Stock offered hereby that
remains unsold:
(a) Our Annual Report on Form 10-K for the year ended December 31, 2001;
(b) Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2002;
(c) Our Current Report on Form 8-K dated December 28, 2001 (filed January 15,
2002);
(d) Our Current Report on Form 8-K dated April 18, 2002 (filed April 18, 2002);
(e) Our Notice of Annual Meeting of Stockholders and Proxy Statement dated
April 1, 2002; and
(f) The description of our Common Stock contained in our Registration Statement
on Form 8-A dated February 22, 1991, 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.
2
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 the Plan pursuant to 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.
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.
3
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
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).
24.1 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 or 15(d) of the
Exchange Act that are incorporated by reference in
this Registration Statement.
4
(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.
5
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 a 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 May 17, 2002.
TEREX CORPORATION
By: /s/ Ronald M. DeFeo
-----------------------------------------
Ronald M. DeFeo
Chairman of the Board, President
and Chief Executive Officer
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 Officer May 17, 2002
------------------- and Director
Ronald M. DeFeo (Principal Executive Officer)
/s/ Joseph F. Apuzzo Chief Financial Officer May 17, 2002
--------------------
Joseph F. Apuzzo (Principal Financial Officer)
/s/ Mark Cohen Controller May 17, 2002
--------------
Mark Cohen (Principal Accounting Officer)
/s/ G. Chris Andersen Director May 17, 2002
---------------------
G. Chris Andersen
/s/ Don DeFosset Director May 17, 2002
----------------
Don DeFosset
_______________ Director
William H. Fike
/s/ Dr. Donald P. Jacobs Director May 17, 2002
------------------------
Dr. Donald P. Jacobs
/s/ Marvin B. Rosenberg Director May 17, 2002
-----------------------
Marvin B. Rosenberg
/s/ David A. Sachs Director May 17, 2002
------------------
David A. Sachs
6
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 Certficate 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., 8
as to the legality of the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP. 9
23.2 Consent of Eric I Cohen, Esq.
(included in the opinion filed as Exhibit 5.1 hereto).
24.1 Powers of Attorney of certain officers and directors of the Registrant
(included on the signature page of this Registration Statement).
7