TEREX CORPORATION
11,000,000 Shares of Common
Stock
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 11,000,000 shares (“ Firm Securities
”) of its common stock, par value $.01 per share
(“ Common Stock ”) and also proposes to issue
and sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 1,650,000 additional shares (“
Optional Securities ”) of its Common Stock as set
forth below. The Firm Securities and the Optional Securities are
herein collectively called the “ Offered Securities
”.
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registration statement, that in any case has not been superseded or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 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.
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 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 and any Optional
Closing Date (as defined herein), the Final Prospectus will conform
in all material respects to the requirements of the 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, in light of the circumstances under which
they were made, not 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) Offered Securities . The
Offered Securities and all other outstanding shares of capital
stock of the Company have been duly authorized; the authorized
equity capitalization of the Company is as set forth in the General
Disclosure Package; all outstanding shares of capital stock of the
Company are, and, when the Offered Securities have been delivered
and paid for in accordance with this Agreement on each Closing
Date, such Offered Securities will have been, validly issued, fully
paid and nonassessable, and 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; the stockholders of the Company have no preemptive
rights with respect to the Offered Securities; and none of the
outstanding shares of capital stock of the Company have been issued
in violation of any preemptive or similar rights of any security
holder.
(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
this Agreement.
(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 ”), and any person to whom the
Company has granted registration rights has agreed not to exercise
such rights until after the expiration of the Lock-Up Period
referred to in Section 5 hereof.
(l) Listing . The Company has
filed its listing application, and will use its reasonable best
efforts to list, subject to notice of issuance, the Offered
Securities on The New York Stock Exchange.
(m) 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 this
Agreement 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
this Agreement in connection with the issuance and sale of the
Offered Securities by the Company.
(n) 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 this Agreement and compliance
with the terms and provisions hereof 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 this
Agreement 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.
(o) Authorization. This
Agreement has been duly authorized, executed and delivered by the
Company, and conforms in all material respects to the description
thereof contained in the General Disclosure Package and Final
Prospectus.
(p) 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.
(q) 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.
(r) 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.
(s) 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.
(t) 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.
(u) 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 this Agreement; and no such actions,
suits or proceedings are threatened in writing, or to the
Company’s knowledge, contemplated.
(v) 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.
(w) 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.
(x) 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.
(y) 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
authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with U.S.
General Accepted Accounting Principles and to maintain
accountability for assets, (iii) access to assets is permitted only
in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with
respect to any differences. The
Internal Controls are, or upon consummation of the offering of the
Offered Securities will be, overseen by the Audit Committee (the
“ Audit Committee ”) of the Board in accordance
with Exchange Rules. Except as set forth in the General Disclosure
Package or has already been publicly disclosed, the Company has not
reported to the Audit Committee or the Board, and neither the
Company nor the Audit Committee has (i) reason to believe there
exists a material weakness relating to Internal Controls or (ii)
concluded there exists a significant deficiency relating to
Internal Controls or fraud relating to Internal Controls involving
one or more of the named executive officers (as defined in Item
402(a)(3) of Regulation S-K of the Rules and Regulations) who are
both identified by the Company in its Proxy Statement filed with
the Commission on March 31, 2009 and still employed by the Company
as of the date hereof that would have a Material Adverse
Effect.
(z) Anti-Bribery
Laws . The Company has instituted and maintains policies and
procedures designed to ensure continued compliance with, and except
as would not, individually or in the aggregate, have a Material
Adverse Effect or would not materially and adversely affect the
ability of the Company to perform its obligations under this
Agreement, to the knowledge of the General Counsel of the Company,
the Company has not violated and is not the subject of a pending
government action arising out of, and its participation in the
offering will not violate any of the following laws: (a)
anti-bribery laws, including but not limited to, any applicable
law, rule, or regulation of any locality, including but not limited
to any law, rule, or regulation p
