EXHIBIT 10.28
STOCK PURCHASE AGREEMENT
July 23, 1999
Hartford Capital Appreciation Fund, Inc.
c/o Wellington Management Company, LLP
75 State Street
Boston, MA 02109
Dear Sirs:
Terex Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell 2,000,000 shares ("Offered Securities") of its Common
Stock, par value $.01 per share. The Company hereby agrees with Hartford Capital
Appreciation Fund, Inc.
("Investor") as follows:
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Investor that:
(i) A registration statement (No. 333-52933), including a basic prospectus,
relating to certain of the Company's equity and debt securities and warrants and
rights (including the Offered Securities) and the offering thereof from time to
time in accordance with Rule 415 under the Securities Act of 1933, as amended
(the "Act") has been filed with the Securities and Exchange Commission
("Commission") and has been declared effective under the Act and the Offered
Securities all have been duly registered under the Act pursuant to such
registration statement. Such registration statement, as amended as of the date
hereof, including all material incorporated by reference therein, is hereinafter
referred to as the "Registration Statement". The basic prospectus included in
such Registration Statement, as supplemented by the filing of a prospectus
supplement (the "Prospectus Supplement") to reflect the terms of the offering of
the Offered Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) under the Act, including all material incorporated
by reference in such basic prospectus and Prospectus Supplement, is hereinafter
referred to as the "Prospectus".
(ii) The Company has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Delaware, with the corporate
power and authority to own its properties and conduct its business as described
in the Prospectus; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification,
except where the failure to be so qualified and in good standing could not
reasonably be expected, individually or in the aggregate, to have a material
adverse effect on the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect").
(iii) The Offered Securities, when issued pursuant to this Agreement, will
be, and all other outstanding shares of capital stock of the Company have been,
duly authorized and validly issued, will be or are, as the case may be, fully
paid and nonassessable, and conform in all material respects to the description
thereof contained in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Securities.
(iv) No consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required to be obtained or made by
the Company for the performance by the Company of its obligations under this
Agreement, except such as have been obtained and made under the Act and such as
may be required under state securities laws.
(v) The execution and delivery by the Company of, and the performance by
the Company of its
obligations under, this Agreement will not result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any statute,
any rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any of its
properties, or any agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the properties of the Company is
subject, or the charter or by-laws of the Company, except in each such case, for
such breaches, violations and defaults as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(vi) This Agreement has been duly authorized, executed and delivered by the
Company, and this Agreement constitutes the valid and legally binding obligation
of the Company, enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
2. Representations and Warranties of the Investor. The Investor
represents and warrants to, and agrees with, the Company that:
(i) The Investor has been duly formed and organized, and is an existing
limited liability partnership in good standing under the laws of the
Commonwealth of Massachusetts.
(ii) The execution and delivery by the Investor of, and the performance by
the Investor of its obligations under, this Agreement will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over the
Investor or any of its properties, or any agreement or instrument to which the
Investor is a party or by which the Investor is bound or to which any of the
properties of the Investor is subject, or the organizational documents of the
Investor, except in each such case, for such breaches, violations and defaults
as could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(iii) This Agreement has been duly authorized, executed and delivered by
the Investor, and this Agreement constitutes the valid and legally binding
obligation of the Investor, enforceable against the Investor in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general principles of equity.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, the Company
agrees to sell to the Investor, and the Investor agrees to purchase the Offered
Securities from the Company, at an aggregate purchase price of $59,137,500.00
(or $29.56875 per share).
The Company will deliver the Offered Securities to the Investor,
against payment of the purchase price in Federal (same day) funds by wire
transfer to an account at a United States financial institution designated in
advance in writing by the Company, at 9:00 A.M., New York time, on July 28,
1999, or at such other time not later than seven full business days thereafter
as the Investor and the Company determine. The certificates for the Offered
Securities to be so delivered will be in definitive form, in such denominations
and registered in such names as the Investor requests.
4. Listing of Shares. The Company agrees to list the Offered Securities
on the New York Stock Exchange.
5. Notices. All communications hereunder will be in writing and, if
sent to the Investor, will be mailed, delivered or telegraphed and confirmed to
the Investor, at Wellington Management, LLP, 75 State Street, Boston,
Massachusetts 02109, Attention: Lisa Yee, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at Terex Corporation, 500
Post Road East, Westport, CT 06880, Attention: Eric I Cohen.
6. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and no other person will have any
right or obligation hereunder.
7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
8. Applicable Law. 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 laws.
If the foregoing is in accordance with the Investor's understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Company and the
Investor in accordance with its terms.
Very truly yours,
TEREX CORPORATION
By:
Name:
Title:
The foregoing Stock Purchase Agreement is hereby confirmed and accepted
as of the date first above written.
HARTFORD CAPITAL APPRECIATION FUND, INC.
By: Wellington Management Company, LLP,
its Investment Advisor
By:____________________________
Peter L. Curry
Vice President