UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
CMI CORPORATION
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(Name of Issuer)
VOTING CLASS A COMMON STOCK, PAR VALUE $0.10 PER SHARE
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(Title of Class of Securities)
125761 30 4
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(CUSIP Number)
ERIC I COHEN
TEREX CORPORATION
500 POST ROAD EAST, SUITE 320
WESTPORT, CT 06880
(203) 222-7170
COPY TO:
STEVEN G. SCHEINFELD
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10004
(212) 859-8000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 27, 2001
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or
240.13(g), check the following box. [ ]
NOTE: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See ss.240.13d-7(b) for
other parties to whom copies are to be sent.
CUSIP No. 125761 30 4
1 NAME OF REPORTING PERSON/
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Terex Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 9,183,550
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH -0-
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,183,550
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
42.3%
14 TYPE OF REPORTING PERSON
CO
ITEM 1. Security and Issuer
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This statement on Schedule 13D (this "Schedule 13D") relates to
shares of voting class A common stock, par value $0.10 per share (the "CMI
Common Stock"), of CMI Corporation ("CMI"). The address of CMI's principal
executive offices is I-40 & Morgan Road, P.O. Box 1985, Oklahoma City, OK
73101.
ITEM 2. Identity and Background
-----------------------
(a)-(c) and (f). This Schedule 13D is being filed by Terex
Corporation, a Delaware corporation ("Terex"). Terex is a global
manufacturer of equipment for the construction, infrastructure and mining
industries. The address of Terex's principal business and principal office
is 500 Post Road East, Suite 320, Westport, CT 06880.
The name, business address, citizenship and present principal
occupation of each executive officer and director of Terex are set forth in
Annex I to this Schedule 13D. There are no persons controlling Terex.
(d)-(e). During the five years prior to the date hereof, neither
Terex nor, to the best knowledge of Terex, any executive officer or
director of Terex has been (i) convicted in a criminal proceeding
(excluding traffic violations and similar misdemeanors) or (ii) a party to
a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding has been or is subject to a
judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
ITEM 3. Source and Amount of Funds or Other Consideration
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Terex has not expended, and does not expect to expend, funds in
connection with its beneficial ownership of CMI Common Stock. Terex has
obtained beneficial ownership of CMI Common Stock in connection with
certain voting agreements and proxies (described in Item 4).
ITEM 4. Purpose of Transaction
----------------------
Terex, Claudius Acquisition Corp., a wholly owned subsidiary of
Terex ("Merger Sub") and CMI have entered into an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of June 27, 2001, pursuant to
which Merger Sub will be merged with and into CMI (the "Merger"). CMI will
be the surviving corporation in the Merger and will become a wholly-owned
subsidiary of Terex. The Merger Agreement is included as Exhibit 1 hereto.
As a result of the Merger, each outstanding share of CMI Common
Stock will be converted into the right to receive 0.16 shares of common
stock, par value $.01 per share, of Terex (the "Merger Consideration"),
subject to certain adjustments as set forth in the Merger Agreement. Upon
completion of the Merger, CMI Common Stock will be delisted from The New
York Stock Exchange and will become eligible for termination of
registration under the Securities Exchange Act of 1934. Completion of the
Merger is subject to the satisfaction of a number of conditions, including
the approval of the Merger Agreement by the shareholders of CMI.
In connection with the Merger Agreement, Terex, CMI and Merger
Sub also entered into a Voting Agreement, dated as of June 27, 2001, with
each of (i) Recovery Equity Investors, L.P. ("REI") (the "REI Voting
Agreement"), and (ii) George William Swisher, Jr. ("Swisher"), the George
William Swisher, Jr. and Hazel Wanda Swisher Charitable Remainder Unitrust,
the George William Swisher, Jr. and Hazel Wanda Swisher Charitable
Remainder Unitrust II, the George William Swisher, Jr. Trust, and the
George W. Swisher, Sr. Trust (collectively, the "Swisher Trusts") (the
"Swisher Voting Agreement," together with the REI Voting Agreement, the
"Voting Agreements"). REI is the beneficial and record owner of 7,116,667
shares of CMI Common Stock. Swisher and the Swisher Trusts are the
beneficial and/or record owners of 2,066,883 shares of CMI Common Stock.
Such shares represent approximately 42.3% of the CMI Common Stock.
Pursuant to the Voting Agreements, REI, Swisher and the Swisher
Trusts have agreed to vote, or cause to be voted, all of their respective
shares of CMI Common Stock (such shares, collectively, the "CMI Subject
Shares"), (i) in favor of the approval of the Merger and the transactions
contemplated by the Merger Agreement, and (ii) against (a) any proposal
with respect to any extraordinary corporate transaction, such as a
recapitalization, merger, consolidation or other business involving CMI,
(b) any sale, lease, transfer of all or substantially all of the assets of
CMI, or (c) any reorganization, recapitalization, dissolution or
liquidation of CMI, in each case, at any meeting of the shareholders of CMI
at which any such matters are considered.
REI, Swisher and the Swisher Trusts also have agreed not to (i)
take certain actions in furtherance of any competing takeover proposals,
(ii) dispose of or otherwise encumber any of their shares of CMI Common
Stock, or (iii) exercise dissenters rights under applicable law. The REI
Voting Agreement and the Swisher Voting Agreement are included hereto as
Exhibits 2 and 3, respectively.
Pursuant to the Voting Agreements, REI, Swisher and the Swisher
Trusts each granted an irrevocable proxy (the "Proxies"), to appoint Terex
or its designees, with full power of substitution and resubstitution, its
attorney-in-fact and proxy to vote their respective shares in accordance
with the Voting Agreements. The Proxies are included as Exhibits 4 and 5
hereto.
The Voting Agreements and the Proxies will terminate on the
earliest to occur of (i) the effective time of the Merger, or (ii) the
termination of the Merger Agreement.
Pursuant to the Merger Agreement, the directors and officers of
Merger Sub immediately prior to the effective time of the Merger will be
the initial directors and officers of the surviving corporation in the
Merger.
Except as set forth in this Item 4, Terex has no plans or
proposals which relate to or would result in any of the matters set forth
in clauses (a) through (j) of Item 4 of Schedule 13D.
The preceding summary of certain provisions of the Merger
Agreement, the Voting Agreements and the Proxies, copies of which are filed
as exhibits hereto, is not intended to be complete and is qualified in its
entirety by reference to the full text of such agreements and proxies.
ITEM 5. Interest in Securities of the Issuer
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(a) and (b). As a result of entering into the Voting Agreements
and by receiving the Proxies, Terex may be deemed to own beneficially
9,183,550 shares of CMI Common Stock, which represent approximately 42.3%
of the CMI Common Stock outstanding as of June 27, 2001. Pursuant to the
Voting Agreements, Terex has the sole power to vote the CMI Subject Shares
only with respect to the Merger and the other related matters specified in
the Voting Agreements and the Proxies. Terex does not have the power to
vote or to direct the vote of the CMI Subject Shares with respect to any
other matters not specifically set forth in the Voting Agreements or the
Proxies. Terex does not have the sole or shared power to dispose or to
direct the disposition of the CMI Subject Shares.
To the best of its knowledge, no executive officer or director of
Terex beneficially owns any shares of CMI Common Stock.
(c). Except for the execution of the Voting Agreements and the
receipt of the Proxies, there have been no transactions in shares of CMI
Common Stock by Terex, or, to the best knowledge of Terex, any of Terex's
executive officers and directors during the past 60 days.
(d). Not applicable.
(e). Not applicable.
ITEM 6. Contracts, Arrangements, Understandings or Relationships with
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Respect to Securities of the Issuer
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Except as set forth in Item 3, 4 or 5, neither Terex nor, to the
best knowledge of Terex, any of its directors or executive officers has any
contracts, arrangements, understandings or relationships (legal or
otherwise) with any other person with respect to any securities of CMI.
ITEM 7. Material to Be Filed as Exhibits
--------------------------------
Exhibit 1 -- Agreement and Plan of Merger, dated as
of June 27, 2001, among Terex
Corporation, Claudius Acquisition Corp.
and CMI Corporation (incorporated by
reference to Exhibit 2.1 of the Current
Report on Form 8-K filed by Terex on
June 28, 2001).
Exhibit 2 -- Voting Agreement, dated as of June 27,
2001, among Terex Corporation, Claudius
Acquisition Corp., CMI Corporation and
Recovery Equity Investors, L.P.
Exhibit 3 -- Voting Agreement, dated as of June 27,
2001, among Terex Corporation, Claudius
Acquisition Corp., CMI Corporation and
George William Swisher, Jr., in an
individual capacity and as trustee to
certain trusts party thereto.
Exhibit 4 -- REI Proxy, included as Exhibit A to the
REI Voting Agreement, filed herewith as
Exhibit 2.
Exhibit 5 -- Swisher Proxy, included as Exhibit A to
the Swisher Voting Agreement, filed
herewith as Exhibit 3.
SIGNATURE
After reasonable inquiry and to the best of its knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
TEREX CORPORATION
By: /s/ Joseph F. Apuzzo
---------------------------
Name: Joseph F. Apuzzo
Title: Chief Financial Officer
Dated: July 6, 2001
Annex I
Executive Officers and Directors of Terex Corporation
The name, present principal occupation or employment, and the name,
principal business and address of any corporation or other organization in
which such employment is conducted, of each of the executive officers and
directors of Terex Corporation is set forth below. Each executive officer
and each director of Terex Corporation is a citizen of the United States,
except Colin Robertson, who is a citizen of the United Kingdom.
Name Business Address Principal Occupation
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EXECUTIVE OFFICERS
Ronald M. DeFeo 500 Post Road East, Suite 320 Chairman of the Board, President,
Westport, CT 06880 Chief Executive Officer and Chief
Operating Officer, Terex
Filip Filipov 500 Post Road East, Suite 320 Executive Vice President, Terex
Westport, CT 06880
Ernest R. Verebelyi 500 Post Road East, Suite 320 Group President, Terex Mining and
Westport, CT 06880 Americas
Eric I Cohen 500 Post Road East, Suite 320 Senior Vice President, Secretary
Westport, CT 06880 and General Counsel, Terex
Joseph F. Apuzzo 500 Post Road East, Suite 320 Chief Financial Officer, Terex
Westport, CT 06880
Brian J. Henry 500 Post Road East, Suite 320 Vice President, Finance and
Westport, CT 06880 Business Development, Terex
Jack Lascar 500 Post Road East, Suite 320 Vice President, Investor
Westport, CT 06880 Relations and Corporate
Communications, Terex
Kevin Barr 500 Post Road East, Suite 320 Vice President, Human Resources,
Westport, CT 06880 Terex
Colin Robertson Newhouse Industrial Estate President, Terex Europe
Motherwell, Scotland
ML1 5RY
DIRECTORS
Ronald M. DeFeo 500 Post Road East, Suite 320 Chairman of the Board, President,
Westport, CT 06880 Chief Executive Officer and Chief
Operating Officer, Terex
G. Chris Andersen 1330 Avenue of the Americas Partner, Andersen, Weinroth &
36th Floor Co., L.P., a private merchant
New York, NY 10019-5400 banking firm
Don DeFosset 1500 North Dale Mabry Hwy. President and Chief Executive
Tampa, FL 33607 Officer, Walter Industries, Inc.,
a diversified company
William H. Fike 6282 Lakeshore Road President, Fike & Associates, a
Lakeport, MI 48059 consulting firm
Dr. Donald P. Jacobs 2001 Sheridan Road Dean, J.L. Kellogg Graduate
Evanston, IL 60208 School of Management,
Northwestern University
Marvin B. Rosenberg c/o Terex Corporation Retired
500 Post Road East, Suite 320
Westport, CT 06880
David A. Sachs 1999 Avenue of the Stars Managing Director, Ares
Suite 1900 Management, L.P., an investment
Los Angeles, CA 90067 management firm, and Principal,
Onyx Partners, Inc., a merchant
banking firm
EXHIBIT INDEX
Exhibit 1 -- Agreement and Plan of Merger, dated as of June 27,
2001, among Terex Corporation, Claudius
Acquisition Corp. and CMI Corporation
(incorporated by reference to Exhibit 2.1 of the
Current Report on Form 8-K filed by Terex on June
28, 2001).
Exhibit 2 -- Voting Agreement, dated as of June 27, 2001, among
Terex Corporation, Claudius Acquisition Corp., CMI
Corporation and Recovery Equity Investors, L.P.
Exhibit 3 -- Voting Agreement, dated as of June 27, 2001, among
Terex Corporation, Claudius Acquisition Corp., CMI
Corporation and George William Swisher, Jr., in an
individual capacity and as trustee to certain
trusts party thereto.
Exhibit 4 -- REI Proxy, included as Exhibit A to the REI Voting
Agreement, filed herewith as Exhibit 2.
Exhibit 5 -- Swisher Proxy, included as Exhibit A to the
Swisher Voting Agreement, filed herewith as
Exhibit 3.