-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ftzg9weMxDUGguKi9IyWZRpy9FgxC0Fo9qJRkJ8Vq2wnzQZ18TAFADOtFUhKdmAT dkPajC7h8knVTJvMqck+wg== 0000097216-96-000009.txt : 20030213 0000097216-96-000009.hdr.sgml : 20030213 19960215140326 ACCESSION NUMBER: 0000097216-96-000009 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19960214 DATE AS OF CHANGE: 19960220 EFFECTIVENESS DATE: 19960305 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: TEREX CORP CENTRAL INDEX KEY: 0000097216 STANDARD INDUSTRIAL CLASSIFICATION: TRUCK TRAILERS [3715] IRS NUMBER: 341531521 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-00949 FILM NUMBER: 96521057 BUSINESS ADDRESS: STREET 1: 500 POST ROAD EAST CITY: WESTPORT STATE: CT ZIP: 06880 BUSINESS PHONE: 203-222-7008 MAIL ADDRESS: STREET 1: 500 POST ROAD EAST CITY: WESTPORT STATE: CT ZIP: 06880 FORMER COMPANY: FORMER CONFORMED NAME: BLACK MAMMOTH CONSOLIDATED MINING CO DATE OF NAME CHANGE: 19671002 S-8 1 As filed with the Securities and Exchange Commission on February 14, 1996 Registration No. 33- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 __________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 __________________ TEREX CORPORATION (Exact name of registrant as specified in its charter) Delaware 34-1531521 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 500 Post Road East Westport, Connecticut 06880 (203) 222-7008 (Address, including zip code and telephone number of principal executive offices) Terex Corporation and Affiliates' 401(k) Retirement Savings Plan (Full title of the plan) _________________________ Marvin B. Rosenberg Senior Vice President and Secretary Terex Corporation 500 Post Road East Westport, Connecticut 06880 (Name, address, including zip code, of agent for service) (203) 222-7008 (Telephone number, including area code, of agent for service) _________________________ Copies to: Stuart A. Gordon, Esq. Eric I Cohen, Esq. Robinson Silverman Pearce Aronsohn & Berman LLP 1290 Avenue of the Americas New York, New York 10104 CALCULATION OF REGISTRATION FEE Proposed Proposed Title of Each Maximum Maximum Class of Amount to be Offering Aggregate Amount of Securities Registered Price Offering Registration to be Registered (1) Per Unit (1) Price (1) Fee Common Stock, par value $.01 400,000 $ 5.25 $2,100,000 $724.14 (1) Estimated solely for purposes of calculating the registration fee. Pursuant to Rules 457(c) and 457(h), the offering price and registration fee is computed on the basis of the average of the high and low prices reported on the New York Stock Exchange on February 13, 1996. (2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement also covers an indeterminate amount of interests in the Plan to be offered or sold pursuant to the Plan, such interests constituting separate securities required to be Registered under the Securities Act and not requiring a separate registration fee. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Items 1 and 2. Plan Information; Registrant Information and Retirement Savings Plan Annual Information. The document(s) containing the information specified in the instructions to Part I of Form S-8 will be sent or given to participants in the Terex Corporation and Affiliates 401(k) Retirement Savings Plan (the "Plan") as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by the Company with the Securities and Exchange Commission (the "Commission") are incorporated in this Registration Statement by reference: 1. The Company's Annual Report on Form 10-K for the year ended December 31, 1994, filed with the Commission on March 31, 1995. 2. The Company's Quarterly Reports on Form 10-Q for fiscal quarter ended March 31, 1995, filed with the Commission on May 15, 1995. 3. The Company's Quarterly Report on Form 10-Q for fiscal quarter ended June 30, 1995, filed with the Commission on August 15, 1995. 4. The Company's Quarterly Report on Form 10-Q for fiscal quarter ended September 30, 1995, filed with the Commission on November 14, 1995. 5. The Company's Current Report on Form 8-K, filed with the Commission on May 24, 1995. 6. The Company's Form 8K/A Amendment No. 1, filed with the Commission on July 24, 1995. 7. The description of the common stock of Terex Corporation contained in Item 1 of the registrant's Registration Statement on Form 8-A, filed with the Commission on February 22, 1991. 8. All documents filed subsequent to the filing date of this Registration Statement with the Commission by the Company or the Plan pursuant to Section 13(a), 13(c) 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in the Registration Statement and to be part thereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be incorporated by reference herein modifies or supersedes such prior statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement, except as indicated herein. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Section 145 of the Delaware General Corporation Law ("DGCL") and Article IX of the Company's By-Laws provide for the indemnification of the Company's directors and officers in a variety of circumstances, which may include liabilities under the Securities Act. Article IX of the Company's By-Laws generally requires the Company to indemnify its directors and officers against all liabilities (including judgments, settlements, fines and penalties) and reasonable expenses incurred in connection with the investigation, defense, settlement or appeal of any type of action, whether instituted by a third party or a stockholder (either directly or derivatively) and including specifically, but without limitation, actions brought under the Securities Act, and/or the Securities Exchange Act of 1934, as amended (the "Exchange Act"); provided that no such indemnification will be allowed if such director or officer was not successful in defending against any such action and it is determined that the director or officer engaged in misconduct which constitutes (i) a breach of his or her "duty of loyalty" (as further defined therein) to the Company or its stockholders; (ii) acts or omissions not in "good faith" (as further defined therein) or which involve intentional misconduct or a knowing violation of the law; (iii) the payment of an illegal dividend or the authorization of an unlawful stock repurchase or redemption in violation of Section 174 of the DGCL law; or (iv) a transaction from which the director or officer derived an improper direct personal financial profit. The Company's Certificate of Incorporation, as amended, contains a provision which eliminates the personal liability of a director to the Company and its stockholders for certain breaches of his fiduciary duty of care as a director. This provision does not, however, eliminate or limit the personal liability of a director (i) for any breach of such director's "duty of loyalty" (as defined therein) to the Company or its stockholders, (ii) for acts or omissions not in "good faith" (as defined therein) or which involve intentional misconduct or a knowing violation of the law, (iii) under Section 174 of the DGCL, relating in general to the willful or negligent payment of an illegal dividend or the authorization of an unlawful stock purchase or redemption, or (iv) for any transaction from which the director derived an improper personal profit. This provision of the Certificate of Incorporation offers each director protection against awards of monetary damages resulting from negligent (except as indicated above) and "grossly" negligent actions taken in the performance of his duty of care, including grossly negligent business decisions made in connection with takeover proposals for the Company. As a result of this provision, the ability of the Company or a stockholder thereof to successfully prosecute an action against a director for a breach of his duty of care has been limited. However, the provision does not affect the availability of equitable remedies such as an injunction or rescission based upon a director's breach of his duty of care. The Commission has taken the position that the provision will have no effect on claims arising under the Federal securities laws. The Company maintains a directors' and officers' insurance policy which insures the officers and directors of the Company from any claim arising out of an alleged wrongful act by such persons in their respective capacities as officers and directors of the Company. Item 7. Exemption from Registration Claimed. Not Applicable. Item 8. Exhibits. 4.1 Restated Certificate of Incorporation of Terex Corporation (incorporated by reference to Exhibit 3.1 to the Form S-1 Registration Statement of Terex Corporation, Registration No. 33-52297). 4.2 Restated By-Laws of Terex Corporation (incorporated by reference to Exhibit 3.2 to the Form S-1 Registration Statement of Terex Corporation, Registration No. 33-52297). 4.3 Certificate of Designation of Preferences and Rights of Series B Cumulative Redeemable Convertible Preferred Stock of Terex Corporation (incorporated by reference to Exhibit 3.3 to the Form 10-K for the year ended December 31, 1994 of Terex Corporation, Commission File No. 1-10702). 5.1 Internal Revenue Service determination letter that the Plan is qualified under Section 401(k) of the Internal Revenue Code. 5.2 Opinion of Robinson Silverman Pearce Aronsohn & Berman LLP as to the legality of secuirities being registered. 10.1 Terex Corporation and Affiliates' 401(k) Retirement Savings Plan, as amended. 23.1 Independent Accountants' Consent of Price Waterhouse LLP. 23.2 Consent of Independent Auditors - Ernst & Young LLP. 24.1 Power of Attorney (included on signature page of this Registration Statement). Item 9. Undertakings. 1 The undersigned registrant hereby undertakes: a. To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (1) To include any prospectus required by Section 10(a)(3) of the Securities Act; (2) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and (3) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) will not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. b. That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. c. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 2. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Westport, Connecticut, on the 14th day of February, 1996. TEREX CORPORATION By: /s/ Ronald M. DeFeo Name: Ronald M. DeFeo Title: President, Chief Executive Officer and Chief Operating Officer Pursuant to the requirements of the Securities Act of 1933, as amended, the Plan administrator has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Westport, Connecticut on the 14th day of February, 1996. TEREX CORPORATION AND AFFILIATES' 401(K) RETIREMENT SAVINGS PLAN By: ADMINISTRATIVE COMMITTEE OF THE TEREX CORPORATION AND AFFILIATES' 401(K) RETIREMENT SAVINGS PLAN, as Plan Administrator By: /s/ Ronald M. DeFeo Name: Ronald M. DeFeo Title: President, Chief Executive Officer and Chief Operating Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints Ronald M. DeFeo and Marvin B. Rosenberg, or either of them, as his true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including, without limitation, post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting said attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: Signature Title Date /s/ Ronald M. DeFeo President, February 14, 1996 Ronald M. DeFeo Chief Executive Officer, Chief Operating Officer and Director (Principal Executive Officer) /s/ Ralph T. Brandifino Senior Vice President, February 14, 1996 Ralph T. Brandifino Chief Financial Officer (Principal Financial Officer and Acting Principal Accounting Officer) /s/ Marvin B. Rosenberg Senior Vice President, February 14, 1996 Marvin B. Rosenberg General Counsel, Secretary and Director /s/ G. Chris Andersen Director February 14, 1996 G. Chris Andersen /s/ William H. Fike Director February 14, 1996 William H. Fike /s/ Bruce I. Raben Director February 14, 1996 Bruce I. Rabin /s/ David A. Sachs Director February 14, 1996 David A. Sachs /s/ Adam E. Wolf Director February 14, 1996 Adam E. Wolf EXHIBIT INDEX Exhibit No. Description Page Number in Signed Registration Statement 4.1 Restated Certificate of Incorporation of Terex Corporation (incorporated by reference to Exhibit 3.1 to the Form S-1 Registration Statement of Terex Corporation, Registration No. 33-52297). 4.2 Restated By-Laws of Terex Corporation (incorporated by reference to Exhibit 3.2 to the Form S-1 Registration Statement of Terex Corporation, Registration No. 33-52297). 4.3 Certificate of Designation of Preferences and Rights of Series B Cumulative Redeemable Convertible Preferred Stock of Terex Corporation (incorporated by reference to Exhibit 3.3 to the Form 10-K for the year ended December 31, 1994 of Terex Corporation, Commission File No. 1-10702). 5.1 Internal Revenue Service determination letter that the Plan is qualified under Section 401(k) of the Internal Revenue Code. 5.2 Opinion of Robinson Silverman Pearce Aronsohn & Berman LLP as to the legality of the securities being registered. 10.1 Terex Corporation and Affiliates' 401(k) Retirement Savings Plan, as amended. 23.1 Independent Accountants' Consent of Price Waterhouse LLP. 23.2 Consent of Independent Auditors - Ernst & Young LLP. 24.1 Power of Attorney (included on signature page of this Registration Statement). EX-5.1 2 EXHIBIT 5.1 INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY DISTRICT DIRECTOR G.P.O. BOX 1680 BROOKLYN, NY 11202 Employer Identification Number 34-1531521 Date: Jul 31 1995 File Folder Number 063002764 TEREX CORPORATION Person to Contact c/o JOHN E. DONAHUE JOHN LILJEHULT 700 NORTH WATER STREET #1500 Contact Telephone Number MILWAUKEE, WI 53202-4273 (718) 488-2411 Plan Name: TEREX CORPORATION AND AFFILIATES 401K RETIREMENT SAVINGS PLAN Plan Number: 004 Dear Applicant: We have made a favorable determination on your plan, identified above, based on the information supplied. Please keep this letter in your permanent records. Continued qualification of the plan under its present form will depend on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax Regulations.) We will review the status of the plan in operation periodically. The enclosed document explains the significance of this favorable determination letter, points out some features that may affect the qualified status of your employee retirement plan, and provides information on the resulting requirements for your plan. It also describes some events that automatically nullify it. It is very important that you read the publication. This letter relates only to the status of your plan under the Internal Revenue Code. It is not a determination regarding the effect of other federal or local statutes. This determination letter is applicable for the amendment(s) adopted on December 30, 1994. This plan has been mandatorily disaggregated, permissively aggregated, or restructured to satisfy the nondiscrimination requirements. This plan satisfies the nondiscrimination in amount requirement of section 1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based safe harbor described in the regulations. This letter is issued under Rev. Proc. 93-39 and considers the amendments required by the Tax Reform Act of 1986 except as otherwise specified in this letter. The plan satisfies the nondiscriminatory current availability requirements of section 1.401(a)(4)-4(b) of the regulations with respect to those benefits, rights, and features that are currently available to all employees in the plan's coverage group. For this purpose, the plan's coverage group consists of those employees treated as currently benefiting for purposes of demonstrating that the plan satisfies the minimum coverage requirements of section 410(b) of the Code. This letter may not be relied upon with respect to whether the plan satisfies the qualification requirements as amended by the Uruguay Round Agreements Act, Pub. L. 103-465. We have sent a copy of this letter to your representative as indicated in the power of attorney. If you have questions concerning this matter, please contact the person whose name and telephone number are shown above. Sincerely yours, Herbert J. Huff District Director Enclosures: Publication 794 EX-5.2 3 EXHIBIT 5.2 February 12, 1996 Terex Corporation 500 Post Road East Westport, Connecticut 06880 Ladies and Gentlemen: We refer to the Registration Statement on Form S-8 (the "Registration Statement") to be filed by Terex Corporation, a Delaware corporation (the "Company"), on or about the date hereof with the Securities and Exchange Commission (the "Commission") in connection with the registration under the Securities Act of 1933, as amended (the "Securities Act"), of (i) an indeterminate amount of interests in the Terex Corporation and Affiliates 401(k) Retirement Savings Plan, as amended (the "Plan") and (ii) up to an additional 400,000 shares of the Company's common stock, $.01 par value per share (the "Common Stock"), which may be issued pursuant to the terms of the Terex Corporation and Affiliates 401(k) Retirement Savings Plan, as amended (the "Plan"). We are familiar with the Restated Certificate of Incorporation and the By-laws of the Company and have examined copies of the Plan, the resolutions adopted by the Company's Board of Directors and actions by the Company's stockholders pertaining to the Plan, and originals or copies, certified or otherwise identified to our satisfaction, of such other documents, evidence of corporate action, certificates and other instruments, and have made such other investigations of law and fact, as we have deemed necessary or appropriate for the purposes of this opinion. Based upon the foregoing, it is our opinion that: 1. the interest in the Plan if issued pursuant to the provisions thereof will be legally issued; and 2. the up to 400,000 additional shares of Common Stock which may be issued by the Company pursuant to the terms of the Plan have been duly authorized and, when issued in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable. We hereby consent to the use of this opinion in the Registration Statement. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission thereunder. Very truly yours, Robinson, Silverman, Pearce, Aronsohn & Berman EX-10.1 4 AMENDMENT NUMBER THREE TO THE TEREX CORPORATION AND AFFILIATES' 401(K) RETIREMENT SAVINGS PLAN WHEREAS, the Terex Corporation and Affiliates' 401(k) Retirement Savings Plan (the "Plan") was amended and restated effective April 1, 1995; and WHEREAS, Terex Corporation has determined the Plan should be amended to modify the schedule of matching contributions and to permit Plan participants to invest in securities of Terex Corporation. NOW, THEREFORE, the Plan is hereby amended, effective January 1, 1996, as follows: 1. The definition of Valuation Date set forth in Article 2 of the Plan is deleted in its entirety and the following substituted therefor: "Valuation Date" for Investment Funds offered by the Insurance Company shall mean each business day of the Insurance Company during the Plan Year. For Investment Funds not offered by the Insurance Company, Valuation Date shall mean such times during the Plan Year as designated by the Administrative Committee. 2. Section 6.05 of the Plan is amended by adding the following as the last paragraph: The Administrative Committee shall have the authority to offer an Investment Fund which may invest up to one hundred percent (100%) of the fair market value of its assets in "qualifying employer securities" as that term is defined in ERISA. 3. Section 5.02 of Appendix I of the Plan is deleted in its entirety and the following substituted therefor: Section 5.02. Matching Contributions. Pursuant to Section 5.02 of the Plan, this Appendix specifies that, with respect to Elective Contributions and Voluntary Contributions that are made for any pay period beginning on or after January 1, 1996, the Company shall contribute Basic Matching Contributions to the Trust, for the benefit of each Participant covered by this Appendix, in an amount equal to fifty percent (50%) of the sum of Elective Contributions and Voluntary Contributions for any Plan Year provided, however, that: (I) such Participant has elected to make Elective Contributions and/or Voluntary Contributions for any Plan Year equal to at least one percent (1%) of his Compensation; and (ii) the Basic Matching Contributions which the Company makes on behalf of any such Participant for any Plan Year shall not exceed three percent (3%) of his Compensation for such Plan Year. Any Basic Matching Contributions which the Company makes for any Plan Year on behalf of a Participant covered by this Appendix shall be contributed to the Trust and credited to the Participant's Basic Matching Contribution Account and invested in such Investment Funds as designated by the Administrative Committee. In addition, pursuant to Section 5.02 of the Plan, this Appendix further specifies that if the Company determines that Supplemental Matching Contributions shall be made on behalf of certain Participants covered by this Appendix, then the President of the Company shall have the authority to amend this Appendix to specify the Participants eligible to receive Supplemental Matching Contributions, the rate(s) of such Contributions, and any limitations on the total amount of such Contributions. 4. Section 5.02 of Appendix II of the Plan is deleted in its entirety and the following substituted therefor: Section 5.02. Matching Contributions. Pursuant to Section 5.02 of the Plan, this Appendix specifies that, with respect to Elective Contributions and Voluntary Contributions that are made for any pay period beginning on or after January 1, 1996, CHMC shall contribute Basic Matching Contributions to the Trust, for the benefit of each Participant covered by this Appendix, in an amount equal to fifty percent (50%) of the sum of Elective Contributions and Voluntary Contributions for any Plan Year provided, however, that: (I) such Participant has elected to make Elective Contributions and/or Voluntary Contributions for any Plan Year equal to at least one percent (1%) of his Compensation; and (ii) the Basic Matching Contributions which CHMC makes on behalf of any such Participant for any Plan Year shall not exceed three percent (3%) of his Compensation for such Plan Year. Any Basic Matching Contributions which CHMC makes for any Plan Year on behalf of a Participant covered by this Appendix shall be contributed to the Trust and credited to the Participant's Basic Matching Contribution Account. In addition, pursuant to Section 5.02 of the Plan, this Appendix further specifies that if CHMC determines that Supplemental Matching Contributions shall be made on behalf of certain Participants covered by this Appendix, then the President of Terex Corporation shall have the authority to amend this Appendix to specify the Participants eligible to receive Supplemental Matching Contributions, the rate(s) of such Contributions, and any limitations on the total amount of such Contributions. Matching Contributions made under this Section 5.02 may be made in cash or in "qualifying employer securities" as that term is defined in ERISA. 5. Section 9.01 of the Plan is deleted in its entirety and the following substituted therefor: Distributions to a Participant or Beneficiary from this Trust shall be paid in cash in a single payment. However, a Participant who invests his Account with an Investment Fund which invest in common stock of Terex Corporation may elect to receive an in-kind distribution from such Fund. 6. Section 10.05 of the Plan is deleted in its entirety and the following substituted therefor: A withdrawal paid pursuant to this Article will first be paid proportionately from all Investment Funds offered by the Insurance Company to which the Participant's Accounts are allocated, and then from an Investment Fund which invests in common stock of Terex Corporation. 7. Section 10.07 of the Plan is deleted in its entirety and the following substituted therefor: Distributions to a Participant or Beneficiary from the Trust shall be paid in cash in a single payment. However, a Participant who invests his Account with an Investment Fund which invests in common stock of Terex Corporation may elect to receive an in-kind distribution from such Fund. 8. Section 11.10 of the Plan is deleted in its entirety and the following substituted therefor: Participant loans shall first be made from all Investment Funds offered by the Insurance Company in the following order: (a) Loans shall first be made from a Participant's Elective Contributions Account; (b) To the extent necessary, loans shall then be made from a Participant's Rollover Account; (c) To the extent necessary, loans shall then be made from Participant's Matching Contribution Account; (d) To the extent necessary, loans shall then be made from Participant's Profit Sharing Contribution Account; and (e) To the extent necessary, loans shall then be made from Participant's Voluntary Contribution Account. Participant loans shall lastly be made from an Investment Fund which invests in commons stock of Terex Corporation. TEREX CORPORATION By: Ronald M. DeFeo Date: February 14, 1996 EX-23.1 5 Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 28, 1995 appearing on page F-2 of the Terex Corporation Annual Report on Form 10-K for the year ended December 31, 1994. PRICE WATERHOUSE LLP February 12, 1996 EX-23.2 6 Exhibit 23.2 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Terex Corporation and Affiliates' 401(k) Retirement Savings Plan of our report dated August 22, 1995, with respect to the combined financial statements of PPM S.A. and Legris Industries, Inc. included in Amendment No. 1 to Form 8-K/A dated August 28, 1995, filed with the Securities and Exchange Commission Greenville, South Carolina February 14, 1996 -----END PRIVACY-ENHANCED MESSAGE-----