$300,000,000
TEREX CORPORATION
10.875% Senior Notes Due
2016
UNDERWRITING
AGREEMENT
May 29, 2009
CREDIT SUISSE SECURITIES (USA) LLC,
CITIGROUP GLOBAL MARKETS INC.,
UBS SECURITIES LLC,
As Representatives of the Several
Underwriters,
c/o Credit Suisse Securities (USA)
LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Citigroup Global Markets
Inc.,
388 Greenwich Street,
New York, N.Y. 10013
UBS Securities LLC,
299 Park Avenue,
New York, N.Y. 10171
Dear Sirs:
1. Introductory.
Terex Corporation, a Delaware
corporation (the “ Company ”), agrees with the
several Underwriters named in Schedule A hereto (the “
Underwriters ”) to issue and sell to the several
Underwriters $300,000,000 aggregate principal amount of its 10.875%
Senior Notes Due 2016 (the “ Offered Securities
”) to be issued under an indenture, dated as of July 20,
2007, as amended by a supplemental indenture dated as of June 3,
2009 (the indenture and supplemental indenture together, the
“ Indenture ”), between the Company
and HSBC Bank USA, National Association, as Trustee.
This Agreement, the Indenture and the Offered Securities are
referred to as the “ Transaction Documents
”.
2. Representations and Warranties
of the Company. The
Company represents and warrants to, and agrees with, the several
Underwriters that:
(a) Filing and Effectiveness of
Registration Statement; Certain Defined Terms . The Company has
filed with the Commission a registration statement on Form S-3 (No.
333-144796), including a related prospectus or prospectuses,
covering the registration of the Offered Securities under the Act,
which has become effective. “ Registration Statement
” at any particular time means such registration statement in
the form then filed with the Commission, including any amendment
thereto, any document incorporated by reference therein and all
430B Information and all 430C Information with respect to such
registration statement, that in any case has not been superseded or
modified. “ Registration Statement ” without
reference to a time means the Registration Statement as of the
Effective Time. For purposes of this definition, 430B Information
shall be considered to be included in the Registration Statement as
of the time specified in Rule 430B.
For purposes of this
Agreement:
“ 430B Information
” means information included in a prospectus then deemed to
be a part of the Registration Statement pursuant to Rule 430B(e) or
retroactively deemed to be a part of the Registration Statement
pursuant to Rule 430B(f).
“ 430C Information
” means information included in a prospectus then deemed to
be a part of the Registration Statement pursuant to Rule
430C.
“ Act ” means the
Securities Act of 1933, as amended.
“ Applicable Time
” means 8:30 A.M. (Eastern time) on the date of this
Agreement.
“ Closing Date ”
has the meaning defined in Section 3 hereof.
“ Commission ”
means the Securities and Exchange Commission.
“ Effective Time
” of the Registration Statement relating to the Offered
Securities means the time of the first contract of sale for the
Offered Securities.
“ Exchange Act ”
means the Securities Exchange Act of 1934.
“ Final Prospectus
” means the Statutory Prospectus that discloses the public
offering price, other 430B Information and other final terms of the
Offered Securities and otherwise satisfies Section 10(a) of the
Act.
“ General Use Issuer Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being so specified in Schedule B to
this Agreement.
“ Issuer Free Writing
Prospectus ” means any “issuer free writing
prospectus,” as defined in Rule 433, relating to the
Offered Securities in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to
Rule 433(g).
“ Lead Underwriter
” means Credit Suisse Securities (USA) LLC.
“ Limited Use Issuer Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing
Prospectus.
“ Representatives
” means, collectively, Credit Suisse Securities (USA) LLC,
Citigroup Global Markets, Inc. and UBS Securities LLC.
“ Rules and Regulations
” means the rules and regulations of the
Commission.
“ Securities Laws
” means, collectively, the Sarbanes-Oxley Act of 2002
(“ Sarbanes-Oxley ”), the Act, the Exchange Act,
the Trust Indenture Act, the Rules and Regulations, the auditing
principles, rules, standards and practices applicable to auditors
of “issuers” (as defined in Sarbanes-Oxley) promulgated
or approved by the Public Company Accounting Oversight Board and,
as applicable, the rules of the New York Stock Exchange(“
Exchange Rules ”).
“ Statutory Prospectus
” with reference to any particular time means the prospectus
relating to the Offered Securities that is included in the
Registration Statement immediately prior to that time, including
all 430B Information and all 430C Information with
respect to the Registration Statement. For purposes of the
foregoing definition, 430B Information shall be considered to
be included in the Statutory Prospectus only as of the actual time
that form of prospectus (including a prospectus supplement) is
filed with the Commission pursuant to Rule 424(b) and not
retroactively.
“ Trust Indenture Act
” means the Trust Indenture Act of 1939.
Unless otherwise specified, a
reference to a “rule” is to the indicated rule under
the Act.
(b) Compliance with
Securities Act Requirements . (i) (A) At the time the
Registration Statement initially became effective, (B) at the
time of each amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether by post-effective
amendment, incorporated report or form of prospectus), (C) at
the Effective Time relating to the Offered Securities and
(D) on the Closing Date, the Registration Statement conformed
and will conform in all material respects to the requirements of
the Act, the Trust Indenture Act and the Rules and Regulations and
did not and will not include any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading
and
(ii) (A) on its date,
(B) at the time of filing the Final Prospectus pursuant to
Rule 424(b) and (C) on the Closing Date, the Final Prospectus
will conform in all material respects to the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations, and
will not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not, in light of the circumstances
under which they were made, misleading. The preceding sentence does
not apply to statements in or omissions from any such document
based upon written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information is that described as such in Section 8(b)
hereof.
(c) Automatic Shelf Registration
Statement . (i) Well-Known Seasoned Issuer Status . (A)
At the time of initial filing of the Registration Statement, (B) at
the time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of prospectus),
and (C) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c)) made any
offer relating to the Offered Securities in reliance on the
exemption of Rule 163, the Company was a “well known seasoned
issuer” as defined in Rule 405, including not having been an
“ineligible issuer” as defined in Rule 405.
(ii)
Effectiveness of Automatic Shelf Registration Statement .
The Registration Statement is an “automatic shelf
registration statement,” as defined in Rule 405, that
initially became effective within three years of the date
hereof.
(iii)
Eligibility to Use Automatic Shelf Registration Form . The
Company has not received from the Commission any notice pursuant to
Rule 401(g) (2) objecting to use of the automatic shelf
registration statement form. If, at any time up to 180 days
following the date hereof, when Offered Securities remain unsold by
the Underwriters the Company receives from the Commission a notice
pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to
use the automatic shelf registration statement form, the Company
will (i) promptly notify the Lead Underwriter, (ii) promptly file a
new registration statement or post-effective amendment on the
proper form relating to the Offered Securities, in a form
reasonably satisfactory to the Lead Underwriter, (iii) use its best
efforts to cause such registration statement or post-effective
amendment to be declared effective as soon as practicable, and (iv)
promptly notify the Lead Underwriter of such effectiveness. The
Company will take all other reasonable action necessary or
appropriate to permit the public offering and sale of the Offered
Securities to continue as contemplated in the registration
statement that was the subject of the Rule 401(g) (2) notice or for
which the Company has otherwise become ineligible. References
herein to the Registration Statement shall include such new
registration statement or post-effective amendment, as the case may
be.
(iv)
Filing Fees . The Company has paid or shall pay the required
Commission filing fees relating to the Offered Securities within
the time required by Rule 456(b)(1) and otherwise in accordance
with Rules 456(b) and 457(r).
(d) Ineligible Issuer
Status . (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Offered Securities and (ii) at the date hereof,
the Company was not and is not an “ineligible issuer,”
as defined in Rule 405, including (x) the Company or any other
subsidiary in the preceding three years not having been convicted
of a felony or misdemeanor or having been made the subject of a
judicial or administrative decree or order as described in Rule 405
and (y) the Company in the preceding three years not having been
the subject of a bankruptcy petition or insolvency or similar
proceeding, not having had a registration statement be the subject
of a proceeding under Section 8 of the Act and not being the
subject of a
proceeding under Section 8A of the
Act in connection with the offering of the Offered Securities, all
as described in Rule 405.
(e) General
Disclosure Package . As of the Applicable Time, neither
(i) the General Use Issuer Free Writing Prospectus issued at
or prior to the Applicable Time and, the preliminary prospectus
supplement, dated May 27, 2009, including the base prospectus,
dated November 6, 2007, (which is the most recent Statutory
Prospectus distributed to investors generally),and the other
information, if any, stated in Schedule B to this Agreement to be
included in the General Disclosure Package, all considered together
(collectively, the “ General Disclosure Package
”), nor (ii) any individual Limited Use Issuer Free
Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from any Statutory
Prospectus or any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 8(b)
hereof.
(f) Issuer Free
Writing Prospectuses . Each Issuer Free Writing Prospectus, as
of its issue date and at all subsequent times through the
completion of the public offer and sale of the Offered Securities
or until any earlier date that the Company notified or notifies
Credit Suisse Securities (USA) LLC (“ Credit Suisse
”) as described in the next sentence, did not, does not and
will not include any information that conflicted, conflicts or will
conflict in any such case in any material respect with the
information then contained in the Registration Statement. If at any
time following issuance of an Issuer Free Writing Prospectus and
prior to the Closing Date, there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict in any such case in any
material respect with the information then contained in the
Registration Statement or as a result of which such Issuer Free
Writing Prospectus, if republished immediately following such event
or development, would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
(i) the Company has promptly notified or will promptly notify
Credit Suisse and (ii) the Company has promptly amended or
will promptly amend or supplement such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement
or omission.
(g) Good Standing.
The Company has been duly
incorporated and is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation, with the
corporate power and authority to own its properties and conduct its
business as described in the General Disclosure Package; and the
Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified and in
good standing could not reasonably be expected, individually or in
the aggregate, to have a material adverse effect on the condition
(financial or other), business, properties or results of operations
of the Company and its subsidiaries taken as a whole (a
“Material Adverse Effect”).
(h) Subsidiaries . Each
subsidiary of the Company that (i) generates 5% or more of the
revenues, (ii) generates 5% or more of the operating income, or
(iii) holds 5% or more of the assets, in each case, of the Company
and its subsidiaries on a consolidated basis (a “Significant
Subsidiary”), has been duly incorporated or organized and is
an existing corporation or limited liability company in good
standing under the laws of the jurisdiction of its incorporation or
organization, with the corporate power and authority to own its
properties and conduct its business as described in the General
Disclosure Package; and each Significant Subsidiary of the Company
is duly qualified to do business as a foreign corporation or
limited liability company in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where
the failure to be so qualified and in good
standing could not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect; all of the issued and outstanding capital stock of
the Company and of each Significant Subsidiary has been duly
authorized and validly issued and is fully paid and nonassessable;
and, except as expressly disclosed or incorporated by reference in
the General Disclosure Package and except for pledges under the
Company’s Credit Agreement, dated as of July 14, 2006, among
the Company, certain of its subsidiaries and the lenders named
therein, the capital stock of each Significant Subsidiary owned by
the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects, except where the existence of
those liens, encumbrances or claims would not, in individually or
in the aggregate, have a Material Adverse Effect.
(i) Execution and Delivery of
Indenture . On or prior to the Closing Date, the Indenture has
been duly authorized and has been duly qualified under the Trust
Indenture Act; the Offered Securities have been duly authorized
and, when the Offered Securities are delivered and paid for
pursuant to this Agreement on the Closing Date, the Indenture will
have been duly executed and delivered, such Offered Securities will
have been duly executed, authenticated, issued and delivered, will
conform in all material respects to the information in the General
Disclosure Package and to the description of such Offered
Securities contained in the Final Prospectus and the Indenture,
assuming due authorization, authentication, execution and delivery
thereof by the Trustee, and such Offered Securities, when executed
and authenticated in accordance with the provisions of the
Indenture, will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity
principles.
(j) No Finder’s Fee.
Except as disclosed or reflected in the fees and expenses set forth
in the General Disclosure Package, there are no contracts,
agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder’s fee or other
like payment in connection with the transactions as contemplated by
the Transaction Documents.
(k) Registration Rights.
Except as disclosed in the General Disclosure Package, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to
file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act (collectively, “
registration rights ”).
(l) Absence of Further
Requirements. Except for those which have been previously
obtained or as to which the failure to obtain would not,
individually or in the aggregate, have a material adverse effect on
the consummation of the transactions as contemplated by the
Transaction Documents by the Company, no consent, approval,
authorization, or order of, or filing or registration with, any
governmental agency or body or any court is required to be obtained
or made by the Company for the consummation of the transactions as
contemplated by (i) this Agreement or the Indenture in
connection with the issuance and sale of the Offered Securities by
the Company, or (ii) any other Transaction Documents in
connection with the consummation of the transactions contemplated
therein.
(m) Absence of Defaults and
Conflicts Resulting from Transaction . The execution, delivery
and performance by each of the Company and its subsidiaries (to the
extent each is a party thereto) of each of the Transaction
Documents and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (i) any statute,
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or
any Significant Subsidiary of the Company or any of their
properties, or (ii) any agreement or instrument to which the
Company or any such Significant Subsidiary is a party or by which
the Company or any such Significant
Subsidiary is bound or to which any
of the properties of the Company or any such Significant Subsidiary
is subject, or (iii) the charter or by-laws of the Company or
any such Significant Subsidiary, except (A) in each case, that
any rights to indemnity and contribution may be limited by federal
and state securities laws and public policy considerations and
(B) in the case of clauses (i) and (ii) for such
breaches, violations or defaults as would not, individually or in
the aggregate, have a material adverse effect on the consummation
of the transactions as contemplated by the Transaction Documents by
such parties; and the Company has full corporate power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(n) Authorization. This
Agreement has been duly authorized, executed and delivered by the
Company. Each of the other Transaction Documents has been, or as of
the Closing Date will have been, duly authorized, by each of the
Company and its subsidiaries (to the extent each is a party
thereto), each of the other Transaction Documents has been, or as
of the Closing Date will have been, assuming due authorization,
authentication, execution and delivery thereof by the Trustee, to
the extent applicable, executed and delivered by each of the
Company and its subsidiaries (to the extent each is a party
thereto), and each Transaction Document conforms or will conform in
all material respects to the descriptions thereof contained in the
General Disclosure Package and Final Prospectus and each
Transaction Document (other than this Agreement), assuming due
authorization, authentication, execution and delivery thereof by
the Trustee, to the extent applicable, is or will constitute valid
and legally binding obligations of the Company and its subsidiaries
(to the extent each is a party thereto), enforceable in accordance
with its respective terms, except that any rights to indemnity and
contribution may be limited by federal and state securities laws
and public policy considerations and subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors’ rights and to general equity
principles.
(o) Title to Property .
Except as disclosed in the General Disclosure Package and except
for pledges under the Company’s Credit Agreement, dated as of
July 14, 2006, among the Company, certain of its subsidiaries and
the lenders named therein, the Company and its Significant
Subsidiaries have good title to all real properties and all other
properties and assets owned by them that are material to the
Company and its subsidiaries taken as a whole, in each case free
from liens and encumbrances that would materially affect the value
thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the General Disclosure
Package, the Company and its Significant Subsidiaries hold any
leased real or personal property that is material to the Company
and its subsidiaries taken as a whole under valid and enforceable
leases with no exceptions that would materially interfere with the
use made or to be made thereof by them.
(p) Possession of Licenses and
Permits . The Company and its subsidiaries (A) possess all
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them, except for those which the failure to so
possess could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect and (B) have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries,
would reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
(q) Absence of Labor Dispute
. Except as disclosed in the General Disclosure Package, no labor
strike, slowdown, stoppage or dispute (except for routine
disciplinary and grievance matters) with the employees of the
Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, that would reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect.
(r) Possession of Intellectual
Property. The Company and its subsidiaries own, possess, have
the right to use, or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how,
patents, copyrights, confidential information and other
intellectual property (collectively, “intellectual property
rights”) used in the conduct of the business now
operated by them, except for such
failures to so own, possess or have the right to use or acquire
such intellectual property rights which would not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect, and have not received any notice of infringement of
or conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would be reasonably expected,
individually or in the aggregate, to have a Material Adverse
Effect.
(s) Environmental Laws .
Except as disclosed in the General Disclosure Package, neither the
Company nor any of its subsidiaries (i) is in violation of any
statute, rule, regulation, decision or order of any governmental
agency or body or any court, domestic or foreign, relating to the
use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or
human exposure to hazardous or toxic substances (collectively,
“environmental laws”), (ii) owns or operates any
real property that to the knowledge of the Company is contaminated
with any substance that is subject to any environmental laws,
(iii) is to the knowledge of the Company liable for any
off-site disposal or contamination pursuant to any environmental
laws, or (iv) is to the knowledge of the Company subject to
any claim relating to any environmental laws, in each case of
clauses (i), (ii), (iii) or (iv) above, which violation,
contamination, liability or claim would be reasonably expected,
individually or in the aggregate, to have a Material Adverse
Effect; and the Company is not aware of any pending investigation
which might lead to such a claim.
(t) Litigation . Except as
disclosed in the General Disclosure Package and Final Prospectus,
there are no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their
respective properties that would individually or in the aggregate
reasonably be expected to have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to
perform its obligations under the Transaction Documents; and no
such actions, suits or proceedings are threatened in writing, or to
the Company’s knowledge, contemplated.
(u) Financial Statements .
The financial statements, together with the related notes, included
or incorporated by reference in the General Disclosure Package and
Final Prospectus present fairly in all material respects the
financial position, as applicable, of the Company and its
consolidated subsidiaries as of the dates shown and their results
of operations and cash flows for the periods shown (subject in the
case of interim financial statements, together with the related
notes, to normal year-end adjustments), and such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis, except as described in the footnotes to the financial
statements, and the schedules included or incorporated by reference
in the General Disclosure Package and Final Prospectus present
fairly in all material respects the information required to be
stated therein.
(v) No Material Adverse Change in
Business . Except as disclosed in the General Disclosure
Package, since the end of the period covered by the latest audited
financial statements included in the General Disclosure Package
(i) there has been no change, nor any development or event
involving a prospective change, in the condition (financial or
otherwise), results of operations, business or properties of the
Company and its subsidiaries, taken as a whole that is material and
adverse, (ii) except as disclosed in or contemplated by the
General Disclosure Package, there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock and (iii) except as disclosed
in or contemplated by the General Disclosure Package, there has
been no material adverse change in the capital stock, short-term
indebtedness, long-term indebtedness, net current assets or net
assets of the Company and its subsidiaries.
(w) Investment Company Act .
The Company is not an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to
be registered under Section 8 of the United States Investment
Company Act of 1940 (the “Investment Company Act”); and
the Company is not and, after giving effect to the offering and
sale of the Offered
Securities and the application of
the proceeds thereof as described in the General Disclosure
Package, will not be an “investment company” as defined
in the Investment Company Act.
(x) Internal Controls
and Compliance with the Sarbanes-Oxley Act . Except as set
forth in the General Disclosure Package, the Company, its
subsidiaries and the Company’s Board of Directors (the
“ Board ”) are in compliance in all material
respects with Sarbanes-Oxley and all applicable Exchange Rules. The
Company maintains a system of internal controls, including, but not
limited to, disclosure controls and procedures, internal controls
over accounting matters and financial reporting, an internal audit
function and legal and regulatory compliance controls
(collectively, “ Internal Controls ”) that
comply with the Securities Laws and are sufficient to provide
reasonable assurances that (i) transactions are executed in
accordance with management’s general or specific
