COMMON STOCK APPRECIATION RIGHTS AGREEMENT
This Common Stock Appreciation Rights Agreement (the "Agreement") is
made and entered into as of May 9, 1995, by and between Terex Corporation, a
Delaware corporation (together with its permitted successors and assigns, the
"Company"), and United States Trust Company of New York, a New York
corporation, as rights agent (together with its permitted successors and
assigns, the "Rights Agent"), for the benefit of the registered holders from
time to time of the Company's Common Stock Appreciation Rights issued hereunder
(the "Rights").
This Agreement is made pursuant to the Purchase Agreement, dated as
of April 27, 1995, among the Company, certain of its subsidiaries and the
Purchasers named therein (the "Purchase Agreement"), relating to the sale and
purchase of 250,000 Units (the "Units") consisting in the aggregate of
$250,000,000 principal amount of the Company's Senior Secured Notes due 2002
(the "Notes") and 1,000,000 Rights.
Prior to Separation (defined below), (i) record ownership of the
Notes and beneficial ownership of the Rights, respectively, will be evidenced
by record ownership of the Notes containing thereon an endorsement set forth on
Exhibit A to the Indenture (the "Rights Endorsement"), and (ii) definitive
certificates evidencing the Rights will be held by the Rights Agent as
custodian for the registered holders of the Notes containing a Rights
Endorsement.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
Capitalized terms used herein without definition shall have the
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"Adjustment Amount" initially means $0, and thereafter means the
Adjustment Amount as determined in accordance with Section 9.1 hereof.
"Business Day" means any day other than (i) Saturday or Sunday, or
(ii) a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to be closed.
"Closing Date" means May 9, 1995.
"Closing Price" as to any Share means for any trading day:
(a) if the Shares are then traded on a national securities
exchange (i) the last sales price of a Share on such date or (ii) if there was
no sale on such date, the last sales price of a Share on the next preceding
trading day on which there was a sale, all as made available over the
Consolidated Last Sale Reporting System of the Consolidated Tape Association
Plan, or if the Shares were not at the relevant time eligible for reporting
over such system, the last sales price of a Share on such national securities
exchange; or
(b) if the Shares are not then traded on a national securities
exchange, the average of the bid and asked quotations as quoted in any of The
Wall Street Journal, the National Quotation Bureau, Inc. pink sheets, quotation
sheets of registered market makers and, if necessary, dealers' quotations; or
(c) if a Closing Price as of such date cannot be determined on
the basis of any of the foregoing methods of valuation, then Current Market
Price as of such date of determination shall be determined in good faith by an
independent investment banking firm of nationally recognized standing (an
"Independent Investment Bank").
"Common Stock" means the common stock, par value $0.01 per share, of
the Company and any other shares of capital stock or other securities into
which such stock shall be reclassified or changed (including, without
limitation, pursuant to any merger or consolidation).
"Current Market Price" as to any Share means, as of any date, the
average of the daily per Share Closing Prices (a) for either (i) the 60
consecutive trading days prior to such date or (ii) in the event of the
announcement or commencement of a tender offer to purchase all of the shares of
Common Stock, the 10 consecutive trading days prior to such date or (b) if
applicable, as determined in accordance with clause (c) of the definition of
Closing Price.
"Definitive Rights" means Rights issued in definitive form,
substantially in the form of Exhibit A.
"Depository" means initially The Depository Trust Company until a
successor shall be appointed by the Company and thereafter, such person as
shall from time to time be appointed depository of the global Note by the
Company.
"Differential" means, with respect to any Right on any Exercise Date,
a dollar amount equal to the excess of (a) the sum
of (i) the Current Market Price plus (ii) the Adjustment Amount over (b) the
Exercise Price, in each case as of such Exercise Date.
"Election Notice" means a Notice of Election, substantially in the
form contained in each Rights Certificate.
"Eligible Guarantor Institution" means "eligible guarantor
institution" as defined in Rule 17Ad-715(a)(2) promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
"Exercise Date" with respect to any Right means the date such Right
is exercised pursuant to Section 8.2.
"Exercise Price" as to each Right means $7.288, as such amount may be
adjusted from time to time in accordance with Section 9 hereof.
"Expiration Date" means May 15, 2002.
"Global Right" means Rights issued in global form, substantially in
the form of Exhibit A.
"Indenture" means the indenture relating to the Notes.
"Instrument" has the meaning given that term in Section 13.3.
"Majority Rightholders" on any date means Rightholders registered as
holding a majority of the number of Rights outstanding on such date.
"Restricted Rights" means Rights that were acquired by the holder
thereof other than pursuant to an effective registration statement under the
Securities Act or Rule 144 (or any successor rule) thereunder.
"Rightholder" means any holder, registered as such in the Rights
Register, of one or more Rights.
"Rights Certificate" means a Rights Certificate including without
limitation the Global Right, substantially in the form attached hereto as
Exhibit A, evidencing ownership of one or more Rights.
"Rights Payment Date" with respect to any Exercise Date means the
tenth business day following such Exercise Date.
"Rights Register" means a register maintained in the principal office
of the Rights Agent, which shall be maintained in New York, New York.
"Securities Act" means the Securities Act of 1933, as amended.
"Separated" has the meaning given that term in Section 6.
"Separation" has the meaning given that term in Section 6.
"Separation Date" means the earlier of (i) the date 180 days
following the Closing Date, (ii) the business day immediately preceding the
date on which the Shelf Registration Statement (as defined in the Indenture) or
a registration statement with respect to the Exchange Offer is filed with the
Securities and Exchange Commission, or (iii) such earlier date as Xxxxxxxxx &
Company, Inc. and Xxxxxx, Read & Co. Inc. may determine (as specified to the
Trustee in writing).
"Share" means a share of Common Stock; provided, that if the Common
Stock has been reclassified or changed (including, without limitation, pursuant
to a merger or consolidation), or if the Company pays a dividend or makes a
distribution on its Common Stock in shares of capital stock, or subdivides (or
combines) its outstanding shares of Common Stock into a greater (or smaller)
number of shares of Common Stock, a share of Common Stock shall be deemed to be
such number of shares of capital stock and amount of other securities to which
a share of Common Stock outstanding immediately prior to such reclassification,
exchange, dividend, distribution, subdivision or combination would be entitled.
"Standing Instructions" means the standing instructions and
procedures existing between the Depository and the Rights Agent.
"Time of Determination" means the time and date of the earlier of (i)
the time and date of determination of stockholders entitled to receive any
dividend or other distribution to which Section 9.1(a) applies, and (ii) the
time and date immediately prior to the commencement of "ex-dividend" trading of
the Shares with respect to such dividend or distribution on the national or
regional exchange or market on which the Shares are then listed or quoted.
"Trustee" means the person named as trustee under the Indenture.
SECTION 2. APPOINTMENT OF RIGHTS AGENT
The Company hereby appoints the Rights Agent, and the Rights Agent
agrees to act, as agent for the Company in accordance with this Agreement in
connection with the issuance, division, transfer and exercise of the Rights.
SECTION 3. RIGHTS; GLOBAL RIGHTS; RIGHTS
CERTIFICATES
(a) Each Right shall represent the right to receive, upon
exercise thereof in accordance with Section 9, the Differential with respect to
such Right. On the Closing Date, the Company shall deliver to the Rights Agent
a Rights Certificate or Certificates evidencing in the aggregate 1,000,000
Rights, executed on behalf of the Company by its Chairman of the Board, its
President or a Vice President, and by its Secretary or an Assistant Secretary,
and the Rights Agent shall countersign such Rights Certificate or Certificates
and hold them as custodian in accordance with Section 6 hereof.
(b) The Global Right shall represent the aggregate number of
outstanding Rights from time to time endorsed thereon; provided that the
aggregate number of outstanding Rights represented thereby may from time to
time be reduced or increased by appropriate endorsements thereon, as
appropriate, to reflect exchanges and redemptions. Any endorsement of the
Global Right to reflect the amount of any increase or decrease in the aggregate
number of outstanding Rights represented thereby shall be made by the Rights
Agent in accordance with instructions given by the holder thereof. The Global
Right shall be registered in the name of the Depository, or the nominee of such
Depository. So long as the Depository or its nominee is the registered owner
of such Global Right it will be deemed the sole owner and holder of such Global
Right for all purposes hereunder and under such Global Right. Neither the
Company nor the Rights Agent will have any responsibility or liability for any
aspects of the records relating to beneficial ownership interests of the Rights
evidenced by the Global Right in the name of the Depository or its nominee or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
(c) If any mutilated Rights Certificate is surrendered to the
Rights Agent, or the Company and the Rights Agent receive evidence to their
reasonable satisfaction of the destruction, loss or theft of any Rights
Certificate, the Company
shall issue and the Rights Agent, upon the written order of the Company, shall
countersign a replacement Rights Certificate if the Company's and the Rights
Agent's requirements for replacements of Rights Certificates are met. If
required by the Rights Agent or the Company, an indemnity bond must be supplied
by the holder of such Rights Certificate that is sufficient in the judgment of
the Rights Agent and the Company to protect the Company, the Rights Agent and
any agent of either from any loss that any of them may suffer if a Rights
Certificate is replaced.
(d) At the written direction of the Chairman of the Board, the
President or a Vice President of the Company, the Rights Agent shall cancel any
Rights Certificate surrendered for exchange, substitution, transfer or exercise
in whole or in part.
SECTION 4. EXECUTION OF RIGHTS CERTIFICATES
Rights Certificates shall be signed on behalf of the Company by its
Chairman of the Board, its President or a Vice President, and by its Secretary
or an Assistant Secretary. Each such signature may be in the form of a
facsimile signature. In case any officer of the Company who shall have signed
any of the Rights Certificates shall cease to be such officer before the Rights
Certificates so signed shall have been delivered or disposed of by the Company,
such Rights Certificates nevertheless may be delivered or disposed of as though
such person had not ceased to be such officer of the Company; and any Rights
Certificate may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Rights Certificate, shall be a proper
officer of the Company to sign such Rights Certificate, although at the date of
the execution of this Rights Agreement any such person was not such an officer.
SECTION 5. REGISTRATION AND COUNTERSIGNATURE
Rights Certificates shall be manually countersigned by the Rights
Agent and shall not be valid for any purpose unless so countersigned. The
Rights Agent shall, upon written instructions of the Chairman of the Board, the
President or a Vice President of the Company, countersign and deliver Rights
Certificates as provided in this Agreement. Such countersignature shall be
valid notwithstanding the fact that the persons whose manual signature appear
thereon as proper officers of the Rights Agent shall have ceased to be such
officers at the time of such countersignature, issuance or delivery. Rights
Certificates shall be dated as of the date of countersignature thereof by the
Rights Agent. The registered holder of the Note containing a Rights
Endorsement relating to a Right shall be deemed the registered holder of such
Right for all purposes hereunder.
The Company shall cause the Trustee (or any other registrar) under
the Indenture to act as registrar with respect to the Rights that are not
Separated. The Rights Agent shall be the registrar with respect to the Rights
that are Separated. After Rights are Separated, the Rights Agent shall number
and register the Rights Certificates in the Rights Register.
Prior to due presentment for registration of transfer, the Company
and the Rights Agent may deem and treat the registered holder of a Right as the
absolute owner thereof for all purposes (notwithstanding any notation of
ownership or other writing on the Rights Certificate relating thereto), and
shall not be affected by any notice to the contrary and shall not be bound to
recognize any equitable or other claim to or in such Right or Rights
Certificate on the part of any other person.
SECTION 6. SEPARATION
The Notes and Rights constituting a Unit shall not be separable until
the Separation Date. Prior to Separation, beneficial ownership of the Rights
shall be evidenced by record ownership of the Notes containing a Rights
Endorsement.
The Rights Certificates will be held by the Rights Agent, as
custodian for the holders of the Units, until such time as (i) in the case of a
definitive Note, the registered holder of such Note containing a Rights
Endorsement shall have surrendered such Note to the Rights Agent for the
exchange of such Unit, in whole or in part, for a Right Certificate or
Certificates and for a Note or Notes of a like aggregate principal amount of
such surrendered Note of authorized denominations and not containing a Rights
Endorsement or (ii) in the case of a beneficial interest in a global Note
containing a Rights Endorsement, appropriate endorsements are made on such
global Note, the Global Right and the global Note not containing a Rights
Endorsement (any such separation is herein referred to as a "Separation" and
the related Rights are referred to as being "Separated"). Each definitive Note
containing a Rights Endorsement presented for Separation shall be duly endorsed
by the registered holder thereof or by the duly appointed legal representative
thereof or by a duly authorized attorney-in-fact duly appointed or authorized,
as the case may be, in writing. The Rights Agent shall deliver such Note to
the Trustee, with instructions to issue a new Note or Notes not containing a
Rights Endorsement in authorized denominations for an aggregate principal
amount equal to the aggregate principal amount of the Note surrendered in the
name of such registered holder. The Rights Agent, as custodian, shall deliver
(or cause to be delivered) the Note or Notes so received from the Trustee and a
Rights Certificate or Certificates executed by the Company and countersigned by
the Rights Agent in the name of such registered holder for such aggregate
number of Rights as shall equal 4 Rights for each $1,000 principal amount of
Notes so exchanged for Separation, bearing numbers not contemporaneously
outstanding, to the holder or holders entitled thereto.
SECTION 7. REGISTRATION OF TRANSFERS AND
EXCHANGES AFTER SEPARATION
(a) Transfer and Exchange of Definitive Rights. When
Definitive Rights are presented to the Rights Agent with a request (1) to
register the transfer of the Definitive Rights or (2) to exchange such
Definitive Rights for an equal number of Definitive Rights of other authorized
denominations, the Rights Agent shall register the transfer or make the
exchange as requested if its requirements for such transactions are met;
provided, however, that the Definitive Rights so presented (A) have been duly
endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Rights Agent, duly executed by the registered holder
thereof or by the duly appointed legal representative thereof or by a duly
authorized attorney-in-fact duly appointed or authorized, as the case may be,
in writing; and (B) in the case of Restricted Rights, such request shall be
accompanied by the following additional documents:
(i) if such Restricted Right is being delivered to the
Rights Agent by a registered holder for registration in the name of such
registered holder, without transfer, a certification from such registered
holder to that effect (in substantially the form of Exhibit B hereto); or
(ii) if such Restricted Right is being transferred to a
QIB in accordance with Rule 144A or pursuant to an effective registration
statement under the Securities Act, a certification to that effect (in
substantially the form of Exhibit B hereto); or
(iii) if such Restricted Right is being transferred in
reliance on another exemption from the registration requirements of the
Securities Act, a certification to that effect (in substantially the form of
Exhibit B hereto) and an opinion of counsel reasonably acceptable to the
Company and the Rights Agent to the effect that such transfer is in compliance
with the Securities Act.
(b) Transfer of a Definitive Right for a Beneficial Interest in
Global Right. A Definitive Right may be exchanged for a beneficial interest in
the Global Right only upon receipt by the Rights Agent of such Definitive
Right, duly endorsed by the registered holder thereof or accompanied by
appropriate instruments of transfer, in form satisfactory to the Rights Agent,
together with:
(i) written instructions directing the Rights Agent to
make an endorsement on the Global Right to reflect an increase in the number of
Rights represented by the Global Right, and
(ii) if such Definitive Right is a Restricted Right, a
certification (in substantially the form of Exhibit B hereto) to the effect
that such Definitive Right is being transferred to a QIB in accordance with
Rule 144A;
in which case the Rights Agent shall cancel such Definitive Right and endorse
the Global Right to reflect the increase in the number of Rights represented by
the Global Right. If no Global Right is then outstanding, the Company shall
issue and the Rights Agent shall countersign a new Global Right representing
the appropriate number of Rights.
(c) Transfer and Exchange of Global Right. The transfer and
exchange of the Global Right or beneficial interests therein shall be effected
through the Depository, in accordance with this Agreement and the procedures of
the Depository therefor, which shall include the restrictions on transfer
comparable to those set forth herein and to the extent required by the
Securities Act.
(d) Transfer of a Beneficial Interest in Global Right for a
Definitive Right. Upon receipt by the Rights Agent of written transfer
instructions (or such other form of instructions as is customary for the
Depository) from the Depository (or its nominee) on behalf of any person having
a beneficial interest in the Global Right, the Rights Agent shall cause, in
accordance with the Standing Instructions, the number of Rights represented by
the Global Right to be reduced and, following such reduction, the Company shall
execute and the Rights Agent shall countersign and deliver to the beneficiary
or transferee, as the case may be, a Definitive Right; provided, that in the
case of a Restricted Right, such instructions shall be accompanied by the
following additional documents:
(i) if such beneficial interest is being transferred to
the person designated by the Depository as being the beneficial owner, a
certification to that effect (in substantially the form of Exhibit B hereto);
or
(ii) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A or pursuant to an effective registration
statement under the Securities Act, a certification to that effect (in
substantially the form of Exhibit B hereto); or
(iii) if such beneficial interest is being transferred in
reliance on another exemption from the registration requirements of the
Securities Act, a certification to that effect (in substantially the form of
Exhibit B hereto) and an opinion of counsel reasonably acceptable to the
Company and to the Rights Agent to the effect that such transfer is in
compliance with the Securities Act.
Definitive Rights issued in exchange for a beneficial interest in the
Global Right shall be registered in such names and in such authorized
denominations as the Depository shall instruct the Rights Agent.
(e) Transfer and Exchange of Global Right. Notwithstanding any
other provisions hereof, the Global Right may not be transferred except as a
whole by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such
successor Depository; provided, that if:
(i) the Depository notifies the Company that the Depository is
unwilling or unable to continue as Depository for the Global Right and a
successor Depository for the Global Right is not appointed by the Company
within 90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Rights
Agent in writing that it elects to cause the issuance of Definitive Rights
under this Rights Agreement,
then the Company shall execute, and the Rights Agent shall countersign and
deliver, Definitive Rights, evidencing Rights in an aggregate number equal to
the number of Rights evidenced by the Global Right, in exchange for such Global
Right.
(f) Cancellation and/or Adjustment of Global Right. At such
time as all beneficial interests of the Rightholders in Rights evidenced by the
Global Right have either been exchanged for Definitive Rights, exercised or
cancelled, the Global Right shall be returned to or retained and cancelled by
the Rights Agent. At any time prior to such cancellation, if any beneficial
interest of a Rightholder of a Right evidenced by the Global Right is exchanged
for Definitive Rights, exercised or cancelled, the number of Rights represented
by such Global Right shall be reduced and an endorsement shall be made on such
Global Right, by the Rights Agent to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges. To
permit registrations of transfers and exchanges, the Company shall execute and
the Rights Agent is hereby authorized to countersign, in accordance with the
provisions of Sections 4, 5, 6 and this Section 7, Definitive Rights and the
Global Right as required pursuant to the provisions of this Section 7. All
Definitive Rights and Global Rights issued upon any registration of transfer or
exchange of Definitive Rights or Global Rights shall evidence Rights that are
the valid obligations of the Company, entitled to the same benefits under this
Rights Agreement, as the Rights evidenced by the Definitive Rights or the
Global Right surrendered upon such registration of transfer or exchange.
No service charge shall be made to a holder for any registration, transfer
or exchange but the Company may require the payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable by the Company in
connection with any transfer involved in the issuance or delivery of any Rights
in the name other than that of the registered holder of the Rights so
transferred or exchanged.
SECTION 8. EXERCISE OF RIGHTS
8.1 Term of Rights
Subject to the provisions of this Agreement, each Right may be
exercised at the option of the Rightholder thereof at any time until 5:00 p.m.
New York City time on the Expiration Date. Each Right not exercised prior to
5:00 p.m., New York City time on the Expiration Date shall become null and void
and all rights thereunder and in respect thereof shall cease as of such time.
8.2 Method of Exercise
(a) A Rightholder may exercise all or a portion of the
Definitive Rights then held by it upon surrender of the Rights Certificate or
Rights Certificates evidencing the Rights to be exercised to the Company at the
principal office of the Rights Agent in New York City, New York, with the form
of election to purchase on the reverse side thereof duly filled in and signed,
which signature shall be guaranteed by an Eligible Guarantor Institution.
(b) To exercise Rights prior to Separation, the registered
holder of the related Note or Notes must surrender such Note or Notes to the
Rights Agent with the form of election to exercise set forth on the reverse
side thereof duly filled in and signed, which signature shall be guaranteed by
an Eligible Guarantor Institution.
Upon receipt of the items referred to in the preceding paragraph, the
Rights Agent shall:
(1) deliver such Note or Notes to the Trustee with instructions to
issue in the name of the registered holder of such Note or Notes a new Note or
Notes not containing a Rights Endorsement in the aggregate principal amount
equal to the aggregate principal amount of the Note or Notes so surrendered;
(2) issue in the name of the registered holder of such Note or Notes
a Rights Certificate representing the number of Rights equal to the difference
between (x) the number of Rights represented by the Note or Notes so
surrendered and (y) the number of Rights exercised on behalf of such holder as
provided in this Section 8; and
(3) as custodian of the underlying Rights on behalf of such
Rightholder, cause such Rights to be exercised on behalf of such Rightholder as
provided in this Section 8.
(c) All Rights Certificates (or Notes containing a Rights
Endorsement, as the case may be) surrendered upon exercise of Rights shall be
cancelled by the Rights Agent and disposed of by the Company in accordance with
applicable law. The Rights Agent shall account promptly to the Company with
respect to Rights exercised.
(d) The holder of the Global Right shall not be able to
exercise the Global Right. In order to exercise the Global Right, the
beneficial owner thereof must xxxxx obtain a Definitive Right pursuant to the
provisions of this Agreement and comply with the procedures set forth in this
Section 8.
8.3 Payment of Rights Amount
(a) On each applicable Rights Payment Date, the Rights Agent
shall pay, on behalf of the Company, the Differential as determined by the
Company with respect to each Right being exercised as of the applicable
Exercise Date, which shall be payable, at the option of the Company (as
designated in the notice given pursuant to Section 8.3(a)), by delivery of
either
(i) an immediately available Federal funds check made
payable to such Rightholder, or to its order, or, at such Rightholder's option
(provided that such holder has provided wire transfer instructions to the
Rights Agent at least two Business Days prior to the Rights Payment Date), by
wire transfer of immediately available Federal funds for the account, or to the
order, of such Rightholder, or
(ii) a number of fully paid and non-assessable Shares
(together with cash in lieu of fractional Shares) with an aggregate Current
Market Price as of such Exercise Date equal to the Differential, which Shares
shall be registered in the name of (or as directed by) the Rightholder (as of
5:00 p.m. New York City time on such Exercise Date); provided, that the Company
shall not satisfy its obligations with respect to any Right by delivery of
Shares unless (A) upon such delivery such Shares are fully paid, nonassessable,
and free of preemptive rights and from all, liens, charges and security
interest, arising from the issue or delivery thereof, (B) the Company has
obtained and kept effective all permits, consents, approvals of governmental
agencies and authorities, and made all filings under Federal and state
securities laws necessary to permit such issuance and delivery of such Shares
and (C) upon such issuance and delivery, such Shares are not "restricted
securities" (as defined in Rule 144 under the Securities Act (or any successor
rule)) and are listed on the principal securities exchanges and markets, if
any, on which other Shares are then listed.
(b) Upon payment in full of the Differential with respect to
any Right so exercised (together with interest thereon at the rate of 13 1/4%
per annum, compounded semi-annually, if such payment is made after the
applicable Rights Payment Date), all obligations of the Company in respect of
such Right shall terminate.
(c) Not later than two Business Days following each Exercise
Date, the Rights Agent shall notify the Company of the number of Rights that
were exercised on such Exercise Date. Not later than 12:00 noon, New York City
time on the second business day preceding each Rights Payment Date, the Company
shall provide the Rights Agent with written notice of the aggregate amount of
the Differential to be paid on such Rights Payment Date and prior to the Rights
Payment Date shall deposit with the Rights Agent funds or Shares as provided in
this Section 8.3.
8.4 Partial Exercise of Rights
If less than all of the Rights held by any Rightholder shall have
been exercised as of an Exercise Date, then such Rightholder shall be entitled,
without charge, to a new Rights Certificate in replacement of the Rights
Certificate surrendered upon such Exercise Date, indicating the number of
Rights remaining outstanding, or the original Rights Certificate shall be
endorsed to give effect to such partial exercise of the Rights represented
thereby. The Rights Agent is hereby irrevocably authorized to countersign and
deliver any such new Rights Certificate pursuant to this Section 8.4 or to make
any such endorsement. All Rights Certificates surrendered in the exercise of
the Rights evidenced thereby shall, unless endorsed as aforementioned, be
cancelled by the Rights Agent and thereafter delivered to the Company.
8.5 Payment of Taxes
The Company shall pay all taxes (other than taxes on income of the
Rightholders) and other governmental charges that may be imposed upon the
issuance or exercise of the Rights; provided, however, that the Company shall
not be required to pay any taxes payable in connection with any issuance of
Shares upon exercise of a Right if such Shares are to be issued in a name other
than that of the Rightholder of the Rights so exercised.
SECTION 9. ADJUSTMENTS
9.1 Adjustment of Adjustment Amount, Exercise Price.
(a) If the Company or any of its subsidiaries shall, by
dividend or otherwise, distribute to holders of Shares (i) cash, property or
assets (other than ordinary cash dividends paid out of consolidated earnings or
earned surplus) or (ii) evidences of indebtedness or other securities
(excluding shares of Common Stock or other shares of capital stock of the
Company but including, without limitation, rights, warrants or options
entitling the holders thereof to subscribe for or purchase shares of Common
Stock or shares of capital stock or other securities of any subsidiary of the
Company) the Adjustment Amount shall be adjusted to equal the sum of (i) the
Adjustment Amount immediately prior to the Time of Determination plus (ii) the
amount of cash or the fair market value (as determined by an Independent
Investment Bank) of the other property, assets, evidences of indebtedness or
other securities, distributed with respect to one Share, such adjustment to
become effective at the Time of Determination.
(b) If the Company shall issue Shares (whether for cash or
otherwise) at a net price per share less than the Closing Price on the date the
Company fixes the offering price of such Shares, the Exercise Price shall be
adjusted immediately thereafter to equal the product of (i) the Exercise Price
immediately prior thereto times (ii) a fraction, the numerator of which shall
be the sum of (A) the number of Shares outstanding immediately prior to the
issuance of such additional Shares plus (B) (x) the aggregate offering price of
the total number of Shares so offered divided by (y) such Closing Price, and
the denominator of which shall be the aggregate number of shares that would be
outstanding immediately after the issuance of such additional Shares; provided,
however, that no adjustment need be made with respect to Shares issued (i)
pursuant to the exercise of any rights, options or warrants (A) outstanding on
the date hereof, or (B) for which an adjustment has been made pursuant to
Section 9.1(a) or (ii) upon conversion of shares of Series A Cumulative
Redeemable Convertible Preferred Stock, par value $.01 per share, of the
Company or Series B Cumulative Redeemable Convertible Preferred Stock, par
value $.01 per share, of the Company.
(c) Shares owned by or held for the account of the Company or
any subsidiary of the Company shall not be deemed outstanding for the purpose
of any computation pursuant to this Section 9 and the sale or other disposition
of any such Shares shall be deemed to be an issuance thereof.
9.2 Calculations; Exceptions
All calculations under this Section 9 shall be made to the nearest
one-hundredth of a cent. No adjustment need be made in connection with the
issuance of any Shares (i) in a bona fide public offering pursuant to a firm
commitment underwriting managed by a firm that is a member of the National
Association of Securities Dealers, Inc., or (ii) pursuant to a bona fide
employee stock option, stock purchase or stock bonus plan or agreement or
equity incentive plan approved by the Board of Directors (but only to the
extent that the aggregate number of shares excluded by this clause (ii) and
issued after the date of this Agreement shall not exceed 5% of the Common Stock
outstanding on the date hereof).
9.3 No Dilution or Impairment
The Company shall not (a) amend its charter, effect any
consolidation, merger, reorganization, transfer of assets, dissolution, issue
or sale of securities, or take any other voluntary action, for the sole purpose
of avoiding the observance or performance of any of the terms of this Agreement
or (b) cause the dilution or impairment of the rights of the Rightholders
unless, in the case of this clause (b), the rights of the Rightholders are
diluted or impaired ratably with any dilution or other impairment of the rights
of the holders of Shares.
9.4 Notice of Adjustment
Whenever the Adjustment Amount or the Exercise Price shall be subject
to adjustment, as provided in this Section 9, or any event described in the
proviso of the definition of the term "Share" shall occur, the Company shall
promptly deliver to the Rights Agent notice of such adjustment or event,
setting forth a brief statement of the facts relating thereto and the
computation by which such adjustment was made or by which the definition of the
term Share will be revised, which notice shall include a certificate of a firm
of independent public accountants setting forth the Adjustment Amount, the
Exercise Price and the composition of a single Share, in each case after such
adjustment or event. Promptly upon receipt thereof, the Rights Agent shall
send to each Rightholder copies of such notice.
SECTION 10. OTHER NOTICES
Nothing contained in this Agreement shall be construed as conferring
upon any Rightholder, in its capacity as such, the right to vote or receive
dividends or to consent or to receive notice as a stockholder in respect of any
meeting of the stockholders of the Company for the election of the directors of
the Board of Directors of the Company or for any other matter.
If at any time prior to the expiration, cancellation or exercise of
all of the Rights, the Company shall:
(a) declare any dividend payable to all holders of Common Stock
(or other equity securities) or make any other distribution to all holders of
Common Stock (or other equity securities); or
(b) offer to the holders of Common Stock (or other equity
securities) rights to subscribe for or purchase any shares of any class of
stock or any other rights or options; or
(c) effect any reclassification of Common Stock (or other
equity securities) or any capital reorganization or any consolidation or
merger, or any sale, transfer or other disposition of its property, assets and
business substantially as an entirety, or the liquidation, dissolution or
winding up of the Company;
then, in each such case, the Company shall cause written notice of such
proposed action to be mailed to the Rights Agent at least fifteen (15) Business
Days prior to the record date for determining holders of the Common Stock (or
other equity securities) as referred to further below. Such notice shall
specify the date on which the books of the Company shall close, or a record be
taken, for determining holders of Common Stock (or other equity securities)
entitled to receive such stock dividend or other distribution or such rights or
options, or the date on which such reclassification, reorganization
consolidation, merger, sale, transfer, other disposition, liquidation,
dissolution or winding up shall take place or commence, as the case may be, and
the date as of which it is expected that holders of record of Common Stock (or
other equity securities) shall be entitled to receive securities or other
property deliverable upon such action, if any such date has been fixed.
Promptly upon receipt thereof, the Rights Agent shall cause copies of such
notice to be sent to each Rightholder, in the case of any action covered by
clause (a) or (b) above, at least ten (10) Business Days prior to the record
date for determining holders of the Common Stock (or other equity securities)
for purposes of receiving such payment or offer, and, in the case of any action
covered by clause (c) above, at least ten (10) Business Days prior to the
earlier of the date upon which such action is to take place or any record date
to determine holders of Common Stock (or other equity securities) entitled to
receive such securities or other property.
SECTION 11. MERGER OR CONSOLIDATION OF THE COMPANY
The Company shall not merge or consolidate with or into any other
corporation, or transfer all or substantially all of its properties and assets
to any other corporation, unless (i) the corporation resulting from such merger
or consolidation (if not the Company), or receiving such properties and assets,
shall have expressly assumed, by supplemental agreement reasonably satisfactory
in form and substance to the Majority Rightholders and the Rights Agent, the
due and punctual performance and observance of each and every covenant and
condition of this Agreement to be performed and observed by the Company,
whereupon such successor shall be substituted for the Company for purposes of
this Agreement or (ii) the Company is the corporation resulting from such
merger or consolidation.
SECTION 12. SUPPLEMENTS AND AMENDMENTS
The Company and the Rights Agent may from time to time supplement or
amend this Agreement or the form of Rights Certificate, without the approval of
any Rightholder, in order to cure any ambiguity, defect or inconsistency.
Except as provided in the first sentence of this Section 12, neither this
Agreement nor the form of Rights Certificate may be amended or supplemented,
nor may any provision hereof or thereof be waived, without the written consent
of the Majority Rightholders. The consent of each Rightholder affected shall
be required for any supplement or amendment pursuant to which (i) the
Differential would directly or indirectly be decreased or (ii) the Company
could satisfy its obligations with respect to the exercise of Rights other than
with cash or Shares.
SECTION 13. CONCERNING THE RIGHTS AGENT
The Rights Agent undertakes the duties and obligations imposed by
this Agreement upon the following terms and conditions, by all of which the
Company and each Rightholder, by its holding of one or more Rights, shall be
bound.
13.1 Breach of Covenants
The Rights Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or the
Rights Certificates to be complied with by the Company. The Rights Agent makes
no representation as to the validity, sufficiency or adequacy of this Agreement
or the Rights. The recitals and statements contained herein and in the Rights
Certificates, except the Rights Agent's certificates of authentication, shall
be taken as statements of the Company, and the Rights Agent shall not be
responsible for any statement or recital herein or any statement in the Rights
Certificate other than its certificate of authentication and each of its
endorsements on any Rights Certificate.
13.2 Performance of Duties
The Rights Agent undertakes to perform such duties and only such
duties that are specifically set forth in the Agreement and no others, and no
implied covenants or obligations shall be read into this Agreement against the
Rights Agent except for the implied duty to perform its obligations in good
faith. The Rights Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any of its duties hereunder either itself or by
or through its attorneys or agents.
13.3 Rights of Rights Agent
(a) The Rights Agent may rely and shall be protected in acting
in good faith or refraining from acting in good faith upon any resolution,
certificate, instrument or written opinion, report, notice, request, direction,
consent, or order, or any other document reasonably believed by it to be
genuine and to have been signed or presented by the proper person
(collectively, "Instruments"). The Rights Agent shall not be bound to make any
investigation into the facts or matters stated in any Instrument unless
requested in writing so to do by the Majority Rightholders; provided, however,
that, if the payment within a reasonable time to the Rights Agent of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Rights Agent, not reasonably assured to
the Rights Agent, the Rights Agent may require reasonable indemnity against
such expenses or liabilities as a condition to proceeding. The reasonable
expenses of every such investigation shall be paid by the Company or, if paid
by the Rights Agent, shall be repaid by the Company upon five Business Days'
prior written notice. The Rights Agent in its reasonable discretion may make
such further inquiry or investigation into such facts or matters as may relate
to whether an Instrument is genuine and has been signed or presented by the
proper person, and, if the Rights Agent shall determine to make such further
inquiry or investigation, upon two Business Days' prior written notice it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney during normal business hours provided that
the conduct of the business of the Company will not be unreasonably disrupted.
(b) Before the Rights Agent acts or refrains from acting, it
may require an officers' certificate, an opinion of counsel or both. The
Rights Agent shall not be liable for any action it takes in good faith or omits
to take in good faith in reliance on such officers' certificate or opinion of
counsel.
(c) Unless otherwise expressly provided in this Agreement, any
demand, request, direction or notice from the Company shall be sufficient if
signed by the Chairman of the Board, the President or a Vice President of the
Company.
13.4 Compensation; Indemnification
The Company shall pay to the Rights Agent from time to time and the
Rights Agent shall be entitled to reasonable compensation for its acceptance
hereof and for services rendered hereunder. The Rights Agent's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Rights Agent upon five Business Days'
prior written notice for all reasonable disbursements, advances and expenses
incurred or made by or on behalf of it arising out of the acceptance or
administration of its duties hereunder. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Rights Agent's
agents and counsel, and of persons not regularly in its employ.
The Company shall indemnify the Rights Agent for, and hold it
harmless against, any loss, liability or expense incurred by it arising out of
or in connection with the acceptance or administration of its duties under this
Agreement, except as set forth in the next paragraph. The Rights Agent shall
notify the Company promptly of any claim for which it may seek indemnity. The
Rights Agent may have separate counsel reasonably acceptable to the Company to
advise the Rights Agent as to matters arising out of the acceptance or
administration of its duties hereunder and the Company shall pay the reasonable
fees and expenses of such counsel.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Rights Agent through its or any of its
agent's negligence, bad faith or wilful misconduct.
13.5 Other Transactions by the Rights Agent
The Rights Agent and any stockholder, director, officer or employee
of the Rights Agent may buy, sell or deal in the Rights, the Shares or any
other securities of the Company or any affiliate of the Company or become
pecuniarily interested in any transaction in which the Company or any affiliate
of the Company may be interested, or contract with or lend money to the Company
or any affiliate of the Company or otherwise act as fully and freely as though
it were not Rights Agent under this Agreement. Nothing herein shall preclude
the Rights Agent from acting in any other capacity for the Company or for any
affiliate of the Company, or from acting as Trustee.
13.6 Copies of Agreement and Notices
The Rights Agent shall keep copies of this Agreement, all amendments,
supplements or other modifications thereto and any notices given or received
hereunder available for inspection by the Rightholders during normal business
hours at its principal office in New York, New York. The Company shall supply
the Rights Agent from time to time with such numbers of copies of this
Agreement and all amendments, supplements or other modifications thereto as the
Rights Agent may reasonably request. At any time any calculation is made or to
be made pursuant to the terms of this Agreement, the Company shall make such
calculation in accordance with this Agreement and give the Rights Agent prompt
written notice of such calculation at such time as such information is
available and the Rights Agent so requests in writing.
13.7 Change of Rights Agent
The Rights Agent may resign at any time and be discharged from its
duties under this Agreement by giving to the Company 30 days' notice in
writing. The Rights Agent may be removed at any time by written notice from
the Majority Rightholders. If the Rights Agent shall resign or be removed or
shall otherwise become incapable of acting, the Company shall appoint a
successor to the Rights Agent. The Rights Agent shall promptly notify the
Company in writing of its resignation, removal or incapacity; the Majority
Rightholders shall notify the Company of the resignation, removal or incapacity
of the Rights Agent promptly upon obtaining knowledge thereof. If the Company
shall fail to make such appointment within a period of 30 days after it has
been notified in writing of such resignation, removal or incapacity by the
resigning or incapacitated Rights Agent or by the Majority Rightholders, then
any Rightholder may apply to any court of competent jurisdiction for the
appointment of a successor to the Rights Agent.
Any successor Rights Agent, whether appointed by the Company or such
a court, shall be a bank or trust company, in good standing, incorporated under
the laws of the United States of America or any state thereof and having at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $100,000,000. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or deed; but the
former Rights Agent shall deliver and transfer to the successor Rights Agent
any property, documents, Instruments or certificates at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act or
deed necessary for such purpose. Failure to file any notice provided for in
this Section 13.7, however, or any defect therein, shall not affect the
legality or validity of the resignation, incapacity or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
Promptly following each such resignation, incapacity or removal, the successor
Rights Agent shall deliver to the Company and each Rightholder written notice
of such removal, incapacity, or resignation and the name and address of such
successor Rights Agent pursuant to Section 15.1. Notwithstanding the
resignation, incapacity or removal of the Rights Agent, the Company's
obligations under Section 13.4 hereof shall continue for the benefit of the
replaced Rights Agent.
13.8 Merger or Consolidation or Change of Name
Any corporation or national banking association into which the Rights
Agent may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Rights Agent shall be a
party, or any corporation or national banking association succeeding to the
corporate trust business of the Rights Agent, shall, with the consent of the
Company, be the successor to the Rights Agent hereunder without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, provided that such corporation would be eligible for appointment as a
successor Rights Agent under the provisions of Section 13.7 hereof. If, at the
time such successor to the Rights Agent shall succeed to the agency created by
this Agreement, (a) any of the Rights Certificates shall have been
countersigned but not delivered, any such successor to the Rights Agent may
adopt the countersignature of the original Rights Agent and deliver such Rights
Certificates so countersigned; and (b) any of the Rights Certificates shall not
have been countersigned, any successor to the Rights Agent may countersign such
Rights Certificates whether in the name of the predecessor Rights Agent or in
the name of the successor Rights Agent; and in all such cases Rights
Certificates shall have the full force provided herein and in such Rights
Certificates. If at any time the name of the Rights Agent shall be changed and
at such time (i) any of the Rights Certificates shall have been countersigned
but not delivered, the Rights Agent may adopt the countersignatures under its
prior name and deliver such Rights Certificates so countersigned; and (ii) any
of the Rights Certificates shall not have been countersigned, the Rights Agent
may countersign such Rights Certificates either in its prior name or in its
changed name; and in all such cases such Rights Certificates shall have the
full force provided in the Rights Certificates and in this Agreement.
SECTION 14. LEGENDS
(a) Except for any sale or transfer of a Restricted Right
(including any Restricted Right represented by the Global Right) pursuant to an
effective registration statement under the Securities Act or pursuant to an
exemption from the registration requirements of the Securities Act, each Right
Certificate issued upon such sale or transfer shall bear a legend in
substantially the form set forth on Exhibit A hereto unless each of the Rights
Agent and the Company receive a written opinion of counsel reasonably
satisfactory in form and content to the Company and the Rights Agent.
(b) Upon any sale or transfer of a Restricted Right (including
any Restricted Right represented by the Global Right) pursuant to an effective
registration statement under the Securities Act or pursuant to an exemption
from the registration requirements of the Securities Act, or that is the
subject of the legal opinion referred to in paragraph (a) above:
(i) in the case of any Restricted Right that is a
Definitive Right, the Rights Agent shall permit the holder thereof to exchange
such Restricted Right for a Definitive Right that does not bear the legend
required by subsection (a) above; and
(ii) in the case of any Restricted Right represented by
the Global Right, such Restricted Right shall not be required to bear the
legend required by subsection (a) above but shall continue to be subject to the
provisions of Section 7(c) hereof; provided, however, that with respect to any
request for an exchange of a Restricted Right that is represented by the Global
Right for a Definitive Right that does not bear the legend set forth in clause
(a) above, which request is made in reliance upon Rule 144, the holder thereof
shall certify in writing to the Rights Agent that such request is being made
pursuant to Rule 144.
SECTION 15. MISCELLANEOUS
15.1 Notices
All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, certified first-class mail
(return receipt requested), next-day air courier, telex or telecopy. All such
notices and communications to the Company shall be deemed to have been duly
given when delivered by hand, if personally delivered; five business days after
being deposited in the mail, or air courier, postage prepaid, if mailed or sent
by air courier; when answered back, if telexed; and when receipt is
acknowledged, if telecopied.
Any notice pursuant to this Agreement, shall be delivered (i) if to
the Company, to Terex Corporation, 000 Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxxx, Esq., or (ii) if to the Rights
Agent, to United States Trust Company of New York, 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Department, with a copy to
Xxxxx X. Xxxxx, P.C., 0000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000. Each
party hereto may from time to time change the address to which notices to it
are to be delivered or mailed hereunder by notice in writing to the other
party. Any notice mailed pursuant to this Agreement to the Rightholders shall
be in writing and shall be mailed first class, postage prepaid, or delivered to
such Rightholders at their respective addresses on the Rights Register, with a
copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx, Esq.
15.2 Successors and Assigns
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto, including without
limitation and without the need for an express assignment, subsequent holders
of the Rights, and no other persons shall acquire or have any right under or by
virtue of this Agreement.
15.3 Governing Law and Submission to Jurisdiction
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW
YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR
ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE
COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. THE COMPANY IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS
SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE RIGHTS AGENT OR ANY RIGHTHOLDER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
15.4 Severability
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the parties hereto shall
use their best efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be hereafter declared invalid, illegal, void or unenforceable.
15.5 Attorneys' Fees
In any action or proceeding brought to enforce any provision of this
Agreement, or where any provision hereof or thereof is validly asserted as a
defense, the prevailing party, as determined by the court, shall be entitled to
recover reasonable attorneys' fees in addition to any other available remedy.
15.6 Counterparts
This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
15.7 Headings
The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Common Stock
Appreciation Rights Agreement to be executed and delivered by their respective
officers thereunto duly authorized as of the date first written above.
TEREX CORPORATION
By: Xxxxxx X. XxXxx
Title: President and CEO
(Corporate Seal)
Attest:
Xxxxxx X. Xxxxxxxxx
Secretary
UNITED STATES TRUST COMPANY OF NEW YORK, as Rights Agent
By: Xxxx Xxxxxxxx
Title: Vice President
Exhibit A
FORM OF RIGHTS CERTIFICATE
TEREX CORPORATION
COMMON STOCK APPRECIATION RIGHTS CERTIFICATE
No. R-____________ Date:
CERTIFICATE FOR ________ COMMON STOCK APPRECIATION RIGHTS
EXERCISABLE AS PROVIDED IN THE RIGHTS AGREEMENT (AS DEFINED BELOW)
UNTIL 5:00 P.M. NEW YORK CITY TIME,
ON MAY 15, 2002
[Unless and until it is exchanged in whole or in part for a Rights Certificate
in definitive form, the Rights evidenced by this Rights Certificate may not be
transferred except as a whole by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository
or a nominee of such successor Depository. Unless this certificate is
presented by an authorized representative of The Depository Trust Company
("DTC"), New York, New York, to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment hereon is made to Cede & Co. or such
other entity as may be requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.]1
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS THREE YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE RIGHTS ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE RIGHTS AGENT'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE RIGHTS AGENT.
THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS OF A
COMMON STOCK APPRECIATION RIGHTS AGREEMENT, DATED AS OF MAY 9, 1995 AND MAY NOT
BE TRANSFERRED, SOLD, PLEDGED OR OTHERWISE DISPOSED OF, EXCEPT AS THEREIN
PROVIDED. A COPY OF SUCH AGREEMENT IS ON FILE AT THE OFFICES OF THE COMPANY.
THIS CERTIFIES that
or registered assigns is the registered holder (the "Holder") of the number of
stock appreciation rights ("Rights") set forth above, each Right representing
the right to receive the Differential with respect to such Right, in the manner
specified in the Common Stock Appreciation Rights Agreement, dated as of May 9,
1995 (the "Rights Agreement"), between Terex Corporation, a Delaware
corporation (the "Company"), and United States Trust Company of New York, as
Rights Agent. The Differential is payable at the option of the Company in cash
or shares of common stock, par value $.01 per share, of the Company upon
exercise of the Rights represented hereby in accordance with and in the manner
specified in the Rights Agreement.
No rights may be exercised at or after 5:00 p.m. New York City time
on the Expiration Date. All Rights evidenced hereby shall thereafter become
null and void.
This Certificate is issued under and in accordance with the Rights
Agreement and, except as otherwise provided in this Certificate, is subject to
the terms and provisions contained in said Rights Agreement, to all of which
terms and provisions the Holder consents by acceptance hereof. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
given such terms in the Rights Agreement.
THE PROVISIONS HEREOF SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF).
IN WITNESS WHEREOF, the Company has caused this Certificate to be
duly executed under its seal.
TEREX CORPORATION
By:
Title:
[Seal]
Attest: __________________
[Assistant] Secretary
UNITED STATES TRUST COMPANY OF
NEW YORK, as Rights Agent
By:
Title:
NOTICE OF ELECTION
The undersigned hereby irrevocably elects to exercise ______ Rights
represented by this Common Stock Appreciation Rights Certificate, and requests
that payment of the Differential in respect of such Rights, be issued and
delivered as follows:
DELIVER TO:
(Name)
(Address, Including Zip Code)
WIRE INSTRUCTIONS:
(Account Number and Name)
(Bank Name and Address)
(Bank ABA Number)
If the number of Rights hereby exercised is less than all the Rights
represented by this Certificate, the undersigned requests that (check one):
[ ] this Certificate be appropriately endorsed by the Rights Agent and
returned to the holder hereof.
[ ] a new Certificate representing the number of full Rights not
exercised be issued and delivered as set forth below.
Name of Rightholder or Assignee:
Address:
Dated: ____________, ______
Signature of Registered Holder
(The above signature must conform in all respects to name of Holder as written
on the face of this Rights Certificate.)
Signature Guaranteed:
PLEASE INSERT SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER OF HOLDER
ASSIGNMENT
(To be signed only upon assignment of Rights)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers to
(Name and Address of Assignee)
the within Certificate hereby irrevocably constituting and appointing
_________________________ Attorney to transfer said Certificate on the books of
the Company, with full power of substitution in the premises.
DATED: ____________, _____
(The above signature must correspond in all respects
to the name as written on the face of this Rights Certificate.)
Signature
Guaranteed:
__________________________
SCHEDULE OF EXCHANGES OF DEFINITIVE RIGHTS2
The following exchanges of a part of this Global Right for definitive Rights
have been made:
Number of
ANNEX B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER OF RIGHTS
Re: Common Stock Appreciation Rights ("Rights") of Terex Corporation
This Certificate related to _____ Rights held in ** book-entry or * *
definite form by _____ (the "Transferor").
The Transferor by written order, has requested the Rights Agent*:
* to deliver, in exchange of its beneficial interest in the Global Right
held by the depository, a Right or Rights in definitive, registered form of
authorized denominations and an aggregate amount equal to its beneficial
interest in such Global Right (or the portion thereof indicated above); or
* to exchange or register the transfer of a Right or Rights. In connection
with such request and in respect of each such Right, the Transferor does hereby
certify that the Transferor is familiar with the Common Stock Appreciation
Rights Agreement relating to such Rights and that the transfer of this Right is
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "Securities Act') or does not require registration under
the Securities Act because such Right:
* is being acquired for the Transferor's own account, without transfer;
* is being transferred pursuant to an effective registration statement;
* is being transferred to a qualified institutional buyer (as defined
in Rule 144A under the Securities Act), in reliance on such Rule 144A;
* is being transferred pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act;**
* is being transferred pursuant to Rule 144 under the Securities Act;**
* is being transferred pursuant to another exemption from the
registration requirements of the Securities Act
(explain:______________________________________).**
NAME OF TRANSFEROR
By: Date:
__________________
* Check applicable box.
** If this box is checked, this certificate must be accompanied by an
opinion of counsel to the effect that such transfer is in compliance with the
Securities Act.
1 1 This paragraph is to be included only if the Right is in global form.
2 2 This is to be included only if the Right is in global form.
