<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
October 19, 1998
--------------------------------------------
Date of Report (Date of earliest event reported)
Wabash National Corporation
----------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 1-10883 52-1375208
- ------------------------------------------------------------------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File No.) Identification No.)
1000 Sagamore Parkway South, Lafayette, Indiana 47905
---------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(765) 448-1591
---------------------------------------------------
Not applicable
---------------------------------------------------
(Former name or former address, if changed since last report)
Exhibit Index on Page 4
<PAGE> 2
Item 5. Other Events.
On October 19, 1998, Wabash amended its Shareholder Rights
Agreement (the "Rights Plan"), to eliminate those provisions that require that
certain actions may only be taken by "Continuing Directors." This First
Amendment to the Rights Plan was made in response to the Delaware Court of
Chancery's recent decision in Carmody v. Toll Brothers, Inc. In the view of
the Wabash Board of Directors, based on advice of counsel, the Toll Brothers
decision has cast doubt on the legality under Delaware law of so-called
"dead-hand" provisions in many existing shareholder rights plans. Although the
opinion related to the denial of a motion to dismiss an action challenging the
"dead-hand" provision and not an opinion addressing the actual validity of the
provision under Delaware law, the Delaware court stated that a "dead-hand"
provision was open to challenge under Delaware law on both statutory and
fiduciary grounds. A so-called "dead-hand" provision is a provision which
provides that outstanding rights can only be redeemed by "continuing
directors," which is generally defined to mean directors who were members of
the board at the time the Rights Agreement was adopted and any other person who
subsequently becomes a member of the board if such person's nomination for
election to the board was recommended or approved by a majority of the
continuing directors. The Board of Directors believes the disputed validity of
these provisions under the Toll Brothers opinion warrants action to amend the
Rights Plan. The Form of First Amendment to the Rights Agreement is attached
hereto as Exhibit 99.1 and is incorporated by reference herein.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
99.1 Form of First Amendment to Rights Agreement,
dated October 21, 1998.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, the Registrant has duly caused this Report to be signed on
its behalf by the undersigned thereunto duly authorized.
Wabash National Corporation
Date: October 26, 1998 By: /s/ Mark R. Holden
-----------------------------------------
Mark R. Holden
Vice President - Chief Financial
Officer (Principal Financial Officer
and Principal Accounting Officer)
<PAGE> 4
EXHIBIT INDEX
Exhibit No. Description
99.1 Form of First Amendment to Rights Agreement, dated
October 21, 1998
<PAGE> 1
EXHIBIT 99.1
FORM OF FIRST AMENDMENT TO RIGHTS
AGREEMENT
DATED OCTOBER 21, 1998
AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this "Amendment No.
1") is entered into as of October 21, 1998, between Wabash National
Corporation, a Delaware corporation (the "Company"), and Harris Trust and
Savings Bank (the "Rights Agent"), at the Company's direction.
WHEREAS, the Company and the Rights Agent entered into the
Rights Agreement, dated as of December 4, 1995 (the "Rights Agreement");
WHEREAS, on October 19, 1998, the Board of Directors, acting
by Unanimous Written Consent, determined to amend the Rights Agreement and
directed the Rights Agent to enter into this Amendment No. 1.
WHEREAS, the Company desires to amend the Rights Agreement on
the terms and conditions hereinafter set forth and directs the Rights Agent to
enter into Amendment No. 1; and
WHEREAS, for purposes of this Amendment No. 1, capitalized
terms not otherwise defined herein shall have the respective meanings set forth
in the Rights Agreement, as amended by this Amendment No. 1.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as follows:
1. Certain Definitions. Section 1 of the Rights
Agreement is amended as follows: (A) deleting the text of paragraph (i)
thereof and replacing it with the phrase "Intentionally Omitted."; (B) deleting
the phrase "a majority of the Continuing Directors" in paragraph (j) thereof
and replacing it with the phrase "the Board prior to such time as any Person
becomes an Acquiring Person"; and (C) deleting the text of paragraph (n)
thereof and replacing it with the phrase "Intentionally Omitted.".
<PAGE> 2
2. Form of Rights Certificates. Section 4(b) of the
Rights Agreement is amended by deleting the phrase "Continuing Directors" and
replacing it with the word "Board".
3. Exercise of Rights; Purchase Price; Expiration Date
of Rights. Section 7(e) of the Rights Agreement is amended by deleting the
phrase "Continuing Directors" and replacing it with the word "Board".
4. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights.
(A) Section 11(a)(ii) of the Rights Agreement is amended
by deleting the phrase "a majority of the Outside Directors" and replacing it
with the phrase "two-thirds of the Board".
(B) Section 11(a)(iii) of the Rights Agreement is amended
by deleting the parenthetical phrase "(acting by at least a majority of the
Continuing Directors)".
(C) Section 11(m) of the Rights Agreement is amended by
deleting the word "it" and replacing such word with the phrase "the Board".
5. Consolidation, Merger or Sale or Transfer of Assets
or Earning Power. Section 13(c)(i)(B) of the Rights Agreement is amended by
inserting the word "Securities" immediately before the word "Act".
6. Redemption. Section 23(a) of the Rights Agreement is
amended as follows: (A) deleting in the first sentence thereof the phrase
"then there must be Continuing Directors then in office and such authorization
shall require the concurrence of a majority of such Continuing Directors" and
replacing it with the phrase "then such authorization shall require the
concurrence of two-thirds of the Board"; and (B) deleting in the second
sentence thereof the parenthetical phrase "(with the concurrence of a majority
of the Continuing Directors)" and replacing it with the phrase ", by a vote of
two-thirds of the Board,".
7. Determinations and Actions by the Board, etc. Section 29
of the Rights Agreement is amended by deleting the phrase "the Continuing
Directors or Outside Directors" each of the three times it appears therein and
replacing it in each such place with the phrase "two-thirds of the Board".
8. Exhibit C. Exhibit C to the Rights Agreement is amended
as follows: (A) with respect to the second paragraph following the capitalized
legend on the first page thereof, deleting the phrase "Continuing Directors (as
defined in the Rights Agreement)" and replacing it with the phrase "Board of
Directors"; and (B) with respect to the seventh paragraph following the
capitalized legend on the
<PAGE> 3
first page thereof, (i) deleting the phrase "a majority of the Continuing
Directors" and replacing it with the phrase "two-thirds of the Board of
Directors"; (ii) inserting the phrase "a two-thirds vote of" between the
phrases "reinstatement is approved by" and "the Company's Board of Directors";
and (iii) deleting the parenthetical phrase "(with the concurrence of a
majority of the Continuing Directors)".
9. Benefits. Nothing in the Rights Agreement, as amended by
this Amendment No. 1, shall be construed to give to any Person other than the
Company, the Rights Agent and the registered holders of the Rights Certificates
(and, prior to the Distribution Date, the registered holders of the Common
Stock) any legal or equitable right, remedy or claim under the Rights
Agreement, as amended by this Amendment No. 1; but the Rights Agreement, as
amended by this Amendment No. 1, shall be for the sole and exclusive benefit of
the Company, the Rights Agent and the registered holders of the Rights
certificates (and, prior to the Distribution Date, registered holders of Common
Stock).
10. Descriptive Headings. Descriptive headings of the
several Sections of this Amendment No. 1 are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
11. Governing Law. This Amendment No. 1 shall be deemed to
be a contract made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of such State.
12. Other Terms Unchanged. The Rights Agreement, as
amended by this Amendment No. 1, shall remain and continue in full force and
effect and is in all respects agreed to, ratified and confirmed hereby. Any
reference to the Rights Agreement after the date first set forth above shall be
deemed to be a reference to the Rights Agreement, as amended by this Amendment
No. 1.
13. Counterparts. This Amendment No. 1 may be executed
in any number of counterparts. It shall not be necessary that the signature of
or on behalf of each party appears on each counterpart, but it shall be
sufficient that the signature of or on behalf of each party appears on one or
more of the counterparts. All counterparts shall collectively constitute a
single agreement. It shall not be necessary in any proof of this Amendment No.
1 to produce or account for more than a number of counterparts containing the
respective signatures of or on behalf of all of the parties.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed and attested, all as of the day and year
first above written.
Attest: WABASH NATIONAL CORPORATION
<PAGE> 4
By: By:
---------------------- -----------------------------
Attest: HARRIS TRUST AND SAVINGS BANK
as Rights Agent
By: By:
---------------------- -----------------------------
