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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH __, 1998
REGISTRATION NO. 333-27317
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WABASH NATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
52-1375208
(I.R.S. Employer Identification No.)
1000 Sagamore Parkway South
Lafayette, Indiana 47905
(765) 448-1591
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
--------------------------
DONALD J. EHRLICH
WABASH NATIONAL CORPORATION
1000 SAGAMORE PARKWAY SOUTH
LAFAYETTE, INDIANA 47905
(317) 448-1591
(name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
MICHAEL J. SILVER
HOGAN & HARTSON L.L.P.
111 S. CALVERT STREET, SUITE 1600
BALTIMORE, MARYLAND 21202
(410) 659-2741
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933 other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION
MARCH __, 1998
WABASH NATIONAL CORPORATION
COMMON STOCK, PAR VALUE $.01 PER SHARE
SERIES B 6% CONVERTIBLE EXCHANGEABLE PREFERRED STOCK,
STATED VALUE $50.00 PER SHARE 6%
CONVERTIBLE SUBORDINATED DEBENTURES DUE 2007
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This Prospectus relates to the offering by Fruehauf Trailer Corporation (the
"Selling Stockholder") of up to 200,000 shares of common stock, $.01 par
value ("Common Stock") and 352,000 shares of Series B 6% Cumulative Convertible
Exchangeable Preferred Stock (the "Preferred Stock") of Wabash National
Corporation ("Wabash" or the "Company"). This Prospectus also relates to the
offer and sale by the Selling Stockholder of shares of Common Stock that may be
acquired by the Selling Stockholder upon conversion of the Preferred Stock and
6% Convertible Subordinated Debentures due 2007 ("Debentures") that may be
acquired by the Selling Stockholder upon exchange of the Preferred Stock. The
Common Stock, Preferred Stock and Debentures are sometimes collectively
referred to herein as the "Wabash Securities." The Company will not receive any
proceeds from the sale of the Wabash Securities by the Selling Stockholder.
The Company's Common Stock is traded on the New York Stock Exchange under
the symbol "WNC." On March __, 1998 the reported last sale price of the Common
Stock on the New York Stock Exchange ("NYSE") was $____ per share.
The Wabash Securities may be offered and sold from time to time by the
Selling Stockholder directly or through broker-dealers or underwriters who may
act solely as agents, or who may acquire the Wabash Securities as principals.
In connection with any sales by the Selling Stockholder of Wabash Securities
hereunder, the Selling Stockholder and any broker-dealers participating in such
sales may be deemed to be "underwriters" within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"). The distribution of the Wabash
Securities by the Selling Stockholder may be effected in one or more
transactions that may take place on the New York Stock Exchange or otherwise,
including block trades or ordinary brokers' transactions, or through privately
negotiated transactions, through an underwritten public offering, or through a
combination of any such methods of sale, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. Usual and customary or specially negotiated brokerage fees
or commissions may be paid by the Selling Stockholder in connection with such
sales. See "Selling Stockholder and Plan of Distribution."
See "Risk Factors" beginning on page 3 for certain considerations relevant to
an investment in the Wabash Securities.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1998
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's
Regional Offices in New York (Seven World Trade Center, Suite 1300, New York,
New York 10048) and Chicago (Suite 1400, Northwestern Atrium Center, 500 West
Madison Street, Chicago, Illinois 60661). Copies of such material can also be
obtained at prescribed rates from the Public Reference Section of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549. The Commission also maintains a World Wide Web site that contains
reports, proxy statements and other information regarding registrants,
including the Company, that file such information electronically with the
Commission. The address of the Commission's Web site is http:\\www.sec.gov. The
Company's Common Stock is listed on the New York Stock Exchange and reports and
other information concerning the registrant can be inspected at such exchange.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act")
with respect to the Wabash Securities. This Prospectus does not contain all the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are incorporated herein by reference and made a part
hereof: the Company's Annual Report on Form 10-K for the year ended December
31, 1997, the description of the Company's Common Stock, Preferred Stock
Purchase Rights and the Preferred Stock set forth in the Company's Registration
Statements on Form 8-A filed under the Exchange Act including all amendments
and reports filed for the purpose of updating such descriptions. All documents
filed by the Company with the Commission pursuant to Sections 13(a) of
the Exchange Act and any definitive proxy statement so filed pursuant to
Section 14 of the Exchange Act and any reports filed pursuant to Section 15(d)
of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Common Stock shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which is incorporated by reference
herein modifies or supersedes such earlier statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus. Copies of all documents
incorporated by reference herein (other than exhibits to such documents which
are not specifically incorporated by reference into such documents) will be
provided without charge to each person who receives a copy of this Prospectus,
upon request of such person, directed to Connie L. Koleszar, Wabash National
Corporation, Investor Relations, 1000 Sagamore Parkway South, Lafayette,
Indiana 47905 (telephone (765) 448-1591).
RISK FACTORS
In addition to the other information contained or incorporated by reference
in this Prospectus, prospective investors should consider carefully the
following risk factors in evaluating the Company and its business before
purchasing Wabash Securities.
Competition. The truck trailer manufacturing industry is highly
competitive. The Company competes with other trailer manufacturers of varying
sizes, some of which have may have greater financial resources than the
Company. Barriers to entry in the truck trailer manufacturing industry are low
and, therefore, it is possible that additional competitors could enter the
market at any time. The industry in which the Company competes is characterized
by high leverage and has experienced a number of bankruptcies and financial
stresses that has resulted in significant
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pricing pressures. There can be no assurance that the Company will be able to
continue to compete effectively with existing or potential competitors.
Dependence on Key Management. The success of the Company's business is and
will continue to be highly dependent upon its President, Donald J. Ehrlich, and
other members of senior management. The loss of any of their services could
have a material adverse effect upon the Company's business and development.
Reliance on Certain Customers and Corporate Partnerships. The Company has
entered into corporate partnering relationships with a number of customers
whereby the Company supplies the requirements of its customers. To a
significant extent, the Company's success is dependent upon its corporate
partners and the Company often is unable to predict the level of demand for its
products from those partners, or their timing of orders.
Shortages of Raw Materials. The Company currently relies on a few suppliers
for certain key raw materials in the manufacturing of truck trailers. The loss
of its suppliers or the inability of the suppliers to meet the Company's price,
quality, quantity, and deliver requirements would have a material adverse
effect on the business of the Company.
Dependence on Industry Trends. The truck trailer manufacturing industry has
historically been and is expected to continue to be cyclical and affected by
overall economic conditions in the transportation industry. Sales of new truck
trailers have historically been subject to cyclical variations based on a six
to eight year replacement cycle. Poor economic conditions also have adversely
affected demand for new trailers and have led to an overall aging of trailer
fleets beyond this typical cycle.
Export Sales and New Markets. The Company continues to derive a growing
portion of its sales from international sales and the export of the Company's
products to new markets. International operations are subject to inherent
risks, including fluctuations in exchange rates, credit risks, political and
economic conditions in various jurisdictions, unexpected changes in regulatory
requirements, tariffs and other trade barriers, longer accounts receivable
payment cycles and potentially adverse tax consequences. There can be no
assurance that these factors will not have a material adverse effect on the
Company's business.
Acceptance of New Technology and Products. The Company has recently
introduced new products and prototypes including the composite plate trailer,
constructed from a high density vinyl core with a steel skin and the AllRailer
railcar, a fully enclosed high-speed railcar. There can be no assurance that
these or other new products or technologies will achieve widespread market
acceptance. There can also be no assurance that new technologies or products
introduced by competitors will not render the Company's products obsolete or
uncompetitive.
Government Regulation. Truck trailer, length, height, width, maximum weight
capacity and other specifications are regulated by individual states. The
Federal Government also regulates certain safety features incorporated in the
design of truck trailers. Changes or anticipation of changes in these
regulations can have a material impact on the Company's customers and may
affect the financial results of the Company. In addition, the Company's
manufacturing operations are subject to environmental laws enforced by federal,
state and local agencies.
Recent Acquisitions. On April 16, 1997 the Company acquired a significant
portion of the assets associated with the trailer manufacturing and parts
distribution business of Fruehauf Trailer Corporation. These assets included
two manufacturing plants, a parts distribution center and several branch
locations. The Company has limited experience in managing the acquired business
and the Fruehauf operations were operating in bankruptcy at the time of the
acquisition. No assurance can be given that this acquisition will ultimately
prove successful to Wabash.
THE COMPANY
Wabash was incorporated in Delaware in 1991 and is the successor by merger
to a Maryland corporation organized in 1985. Wabash designs, manufactures and
markets standard and customized truck trailers and bimodal vehicles and
produces and sells aftermarket parts. Through its finance subsidiary, the
Company also provides
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leasing and financing programs to its customers for new and used trailers. As
used herein, the term "Company" or "Wabash" means Wabash National Corporation
and its subsidiaries. The principal executive offices of the Company are
located at 1000 Sagamore Parkway South, Lafayette, Indiana 47905, telephone
(765) 448-1591.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION> 1997 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Pre-tax Income $25,790 $ 6,035 $40,309 $39,588 $25,870 $14,506
Fixed Charges:
Interest 16,100 10,257 6,251 2,684 1,388 704
Amortization of Debt Expense 108 249 73 38 27 19
Rent Expense - Interest Portion 2,459 -- -- -- -- --
Preferred Stock Dividend 742 -- -- -- -- --
-------- ------ ------- ------- ------- -------
Total Fixed Charges 19,409 10,506 6,324 2,722 1,415 723
Total Earnings plus Fixed Charges 45,199 16,541 46,633 42,310 27,285 15,229
Ratio of Earnings to Fixed 2.3 1.6 7.4 15.5 19.3 21.1
======== ======= ======= ======= ======= =======
Charges
</TABLE>
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Wabash
Securities by the Selling Stockholder.
SELLING STOCKHOLDER AND PLAN OF DISTRIBUTION
Fruehauf Trailer Corporation is offering the Wabash Securities as the
Selling Stockholder. This Prospectus relates to (i) the offering by the Selling
Stockholder for resale of up to 200,000 shares of Common Stock and 352,000
shares of Preferred Stock of the Company owned by the Selling Stockholder, (ii)
the offering by the Selling Stockholder for resale of up to $17,600,000
aggregate principal amount of Debentures that may be acquired by the Selling
Stockholder upon exchange for the Preferred Stock at the option of the Company;
and (iii) the offering by the Selling Stockholder for resale an indeterminate
number of shares of Common Stock that may be acquired by the Selling
Stockholder upon conversion of the Preferred Stock or Debentures, as the case
may be. Before the Offering, as of March 3, 1998, the Selling Stockholder
beneficially owned 4.9% of Common Stock of the Company. After giving effect to
the Offering, the Selling Stockholder will beneficially own no shares of Common
Stock of the Company.
The Wabash Securities may be offered and sold from time to time by the
Selling Stockholder directly or through broker-dealers or underwriters who may
act solely as agents, or who may acquire the Wabash Securities as principals.
In connection with any sales of Wabash Securities hereunder, the Selling
Stockholder and any broker-dealers participating in such sales may be deemed to
be "underwriters" within the meaning of the Securities Act. The distribution of
the Wabash Securities by the Selling Stockholder may be effected in one or more
transactions that may take place on the NYSE or otherwise, including block
trades or ordinary brokers' transactions, or through privately negotiated
transactions, through an underwritten public offering, or through a combination
of any such methods of sale, at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at negotiated prices.
Usual and customary or specially negotiated brokerage fees or commissions may
be paid by the Selling Stockholder in connection with such sales. Certain
expenses incurred in connection with the registration of the securities offered
hereby under the federal and state securities laws (currently estimated to be
approximately $100,000) are being borne by the Company. The Company will not
bear any commissions or discounts paid or allowed by the Selling Stockholders
to underwriters, dealers, brokers or agents. To the extent required, the
specific
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Wabash Securities to be sold, purchase price, public offering price, the names
of any such agent, dealer or underwriter and any applicable commission or
discount with respect to a particular offering may be set forth in an
accompanying Prospectus Supplement.
The Registration Statement of which this Prospectus is a part has been filed
pursuant to a registration rights agreement between the Company and Selling
Stockholder dated April 16, 1997 (the "Registration Rights Agreement"). The
Registration Rights Agreement was entered into in connection with the sale of
certain assets of the Selling Stockholder to the Company.
The Selling Stockholder is a debtor and debtor in possession under chapter
11 of the United States Bankruptcy Code, 11 U.S.C. 101-1330 (the "Bankruptcy
Code") in the United States Bankruptcy Court for the District of Delaware (Case
No. 96-1563(PJW)). In connection with the resolution of the Selling
Stockholder's chapter 11 case, the possibility exists that the Wabash
Securities could be distributed as part of a reorganization plan under chapter
11 of the Bankruptcy Code. If such a distribution were to take place, the
registration rights created pursuant to the Registration Rights Agreement would
extend to such transferees of the Wabash Securities provided that such
transfers are made in accordance with the terms of the Registration Rights
Agreement.
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DESCRIPTION OF WABASH SECURITIES
The following descriptions of the Wabash Securities are summaries and
reference is made to the Company's Certificate of Incorporation, bylaws and the
proposed form of Indenture for the Debentures, copies of which have been filed
with the Commission. The authorized capital stock of the Company consists of
75,000,000 shares of Common Stock and 25,000,000 shares of preferred stock. Of
such authorized shares of preferred stock, 352,000 shares have been designated
Series B 6% Cumulative Convertible Exchangeable Preferred Stock (the "Preferred
Stock").
COMMON STOCK
The holders of the Common Stock of the Company are entitled to receive,
pro-rata, such dividends as may be declared by the Board of Directors out of
funds legally available therefor, and are also entitled to share, pro-rata, in
any other distribution to stockholders. Holders of the common Stock do not have
pre-emptive rights or other rights to subscribe for additional shares. There
are no redemption or sinking fund provisions.
Each stockholder is entitled to one vote at stockholders' meetings for each
share of Common Stock held. Cumulative voting for the election of directors is
not provided for in the Certificate of Incorporation or the By-Laws. As a
result, the holders of a majority of the outstanding shares of Common Stock
voting for the election of directors can elect all of the directors.
The Company has adopted a Shareholder Rights Plan intended to protect
stockholders from abusive and coercive takeover tactics. Under that Plan, all
Common Stock holders are entitled to purchase shares of Common Stock at
one-half the then current market price if a person or group acquires 20% or
more of the Company's outstanding Common Stock.
For further information regarding the rights, preferences and privileges of
the Common Stock and the terms of the Shareholder Rights Plan, reference is made
to the full text of the Company's charter, by-laws and the Shareholder Rights
Plan set forth in the exhibits to the Registration Statement.
PREFERRED STOCK
The Stated Value Per Share of the Preferred Stock is $50.00. With respect
to rights upon liquidation, winding up or dissolution and redemption rights,
the Preferred Stock will rank (i) junior to any other series of Preferred Stock
duly established by the Board of Directors of the Company, the terms of which
shall specifically provide that such series shall rank prior to the Preferred
Stock, whether now existing or hereafter created (the "Senior Preferred
Stock"), (ii) on a parity with any other series of Preferred Stock duly
established by the Board of Directors of the Company, the terms of which shall
specifically provide that such series shall rank on a parity with the Preferred
Stock, whether now existing or hereafter created (the "Parity Preferred
Stock"), and (iii) prior to any other class or series of capital stock of the
Company, including, without limitation, all classes of the Common Stock, par
value $0.01 per share, of the Company, whether now existing or hereafter
created (the "Common Stock"; all of such classes or series of capital stock of
the Company to which the Preferred Stock ranks prior, including without
limitation the Common Stock, and including, without limitation, junior
securities convertible into or exchangeable for other junior securities or
phantom stock representing junior securities, are collectively referred to
herein as "Junior Securities").
Dividends. Holders of the Preferred Stock are entitled to receive, when, as
and if declared by the Board of Directors out of the funds of the Company
legally available therefor, a cash dividend at the annual rate of 6% of the
Stated Value Per Share (equivalent to $3.00 per share per annum). Dividends
with respect to the Preferred Stock are payable quarterly in arrears on
March 15, June 15, September 15 and December 15 of each year, commencing June
15, 1997 (and, in the case of any accrued but unpaid dividends, at such
additional times and for such interim periods, if any, as determined by the
Board of Directors). Dividends on the Preferred Stock are cumulative and accrue
without interest from the date of original issuance. Dividends will be payable
to the holders of record as they appear on the stock books of the transfer
agent for the Company on such record dates, which shall be not more than 30
days nor less than 10 days preceding the payment dates, as shall be fixed by
the Board of Directors, provided that holders of shares of Preferred Stock
called for redemption on a redemption date falling between a dividend payment
record date and the dividend payment date shall, in lieu of receiving such
dividend payment on the dividend payment date fixed therefor, receive such
dividend payment together with all other accrued and unpaid dividends on the
date fixed for redemption (unless such holders convert such shares to Common
Stock,
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in which case such holders will receive such payment on the corresponding
dividend payment date). Dividends payable on the Preferred Stock for the
initial dividend period and dividends payable for any period shorter or longer
than a full dividend period will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
If dividends are not paid in full upon the Preferred Stock and any other
Parity Preferred Stock, all dividends declared upon shares of Preferred Stock
and such other Parity Preferred Stock will be declared pro rata so that in all
cases the amount of dividends declared per share on the Preferred Stock and the
other Parity Preferred Stock bear to each other the same ratio that accrued and
unpaid dividends per share on the shares of the Preferred Stock and the other
Parity Preferred Stock bear to each other. Except as set forth above, unless
full cumulative dividends on the Preferred Stock have been paid and funds set
aside, dividends (other than dividends paid solely in Common Stock or Junior
Securities and rights to acquire the foregoing) may not be paid or declared and
set aside for payment and other distributions may not be made upon the Common
Stock or Junior Securities nor may any Common Stock or Junior Securities be
redeemed, purchased, or otherwise acquired for any consideration by the Company
(except for repurchases from employees under employee benefit plans and by
conversion into or exchange for Common Stock or Junior Securities).
Liquidation. In the event of any dissolution, liquidation or winding up of
the Company, whether voluntary or involuntary (a "Liquidation"), the holders of
shares of Preferred Stock shall be entitled to receive out of the assets of the
Company legally available for distribution to stockholders (whether
representing capital or surplus), before any payment or distribution shall be
made on the Common Stock or any other Junior Securities (but after distribution
of such assets among, or payment thereof over to, creditors of the Company and
to holders of any stock of the Company with liquidation rights senior to the
Preferred Stock, including holders of Senior Preferred Stock), the Stated Value
Per Share plus the amount of any dividends accrued thereon through the date of
distribution (the "Preferred Stock Liquidation Distribution"). After the
Preferred Stock Liquidation Distribution has been made, the holders of shares
of Preferred Stock shall not be entitled to any further participation in any
distribution of assets of the Company. If the assets distributable upon such
dissolution, liquidation or winding up (as provided above) shall be
insufficient to pay cash in an amount equal to the amount of the Preferred
Stock Liquidation Distribution to the holders of shares of Preferred Stock,
then such assets or the proceeds thereof shall be distributed among the holders
of the Preferred Stock ratably in proportion to the respective amounts of the
Preferred Stock Liquidation Distribution to which they otherwise would be
entitled. The merger or consolidation of the Company into or with another
corporation, a merger or consolidation of any other corporation with or into
the Company upon the completion of which the stockholders of the Company prior
to the merger or consolidation no longer hold a majority of the outstanding
equity securities of the Company or the sale, conveyance, exchange or transfer
of all or substantially all of the property or assets of the Company (any such
event, a "Reorganization Event") shall, at the option of the holders of at
least 50 % of the Preferred Stock, be deemed to be a Liquidation of the
Company.
Voting Rights. The holders of the Preferred Stock shall be entitled to
notice of all stockholders meetings in accordance with the Company's bylaws,
and except as otherwise required by law, the holders of the Preferred Stock
shall be entitled to vote on all matters submitted to the stockholders for a
vote together with the holders of the Common Stock as a single class, and each
share of Preferred Stock shall be entitled to one vote for each share of Common
Stock that would be issuable upon conversion of such share on the record date
for determining eligibility to participate in the action being taken.
In addition to any other rights provided by law, the consent of the holders
of a majority of issued and outstanding Preferred Stock, in the aggregate and
voting separately as a single class, is required to authorize or effect a
Reorganization Event or Liquidation.
If on the date used to determine stockholders of record for any meeting of
stockholders for the election of directors, accrued dividends on the shares of
Preferred Stock shall not have been paid in an aggregate amount equal to or
greater than six quarterly dividends on the shares of Preferred Stock at the
time outstanding, then, and in any such event, the number of Directors then
constituting the Board of Directors shall automatically be increased by two
Directors and the holders of shares of Preferred Stock, voting as a single
class, shall be entitled at such meeting to fill such newly created
directorships. Such right to vote as a single class to elect two Directors
shall, when vested, continue until all dividends in default on the shares of
Preferred Stock shall have been paid in full and, when so paid, such right to
elect two Directors separately as a class shall cease, subject always, to the
same provisions for the vesting of such right to elect two Directors separately
as a class in the case of future dividend defaults.
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Directors elected pursuant to the preceding paragraph will serve until the
earlier of (i) the next annual meeting of stockholders of the Corporation and
the election (by the holders of shares of Preferred Stock) and qualification of
their respective successors or (ii) the date upon which all dividends in
default on the shares of Preferred Stock shall have been paid in full.
Directors elected pursuant to the preceding paragraph may be removed by, and
shall not be removed except by, a vote of the holders of the Preferred Stock,
voting as a single class, at a meeting of the stockholders, or the holders of
the Preferred Stock called for that purpose. If prior to the end of such term
of any Director elected as aforesaid, a vacancy in the office of such Director
shall occur during the continuance of a default in dividends on the shares of
Preferred Stock by reason other than removal, such vacancy shall be filled for
the unexpired term by the appointment by the remaining Director elected as
aforesaid of a new Director for the unexpired term of such former Director.
Without the affirmative vote of the holders of at least two-thirds of the
outstanding shares of Preferred Stock, voting separately as a class, the
Company may not:
(i) directly or indirectly alter or change the provisions of the
Certificate of Incorporation (including through any Certificate of Amendment or
Certificate of Designation relating to, or Certificate of Merger or
Consolidation which alters or changes or converts pursuant to a merger or
consolidation, the Preferred Stock) so as to materially adversely affect
(within the meaning of Section 242(b)(2) of the General Corporation Law of the
State of Delaware the powers (including voting powers to which each such share
is entitled relative to the shares of Common Stock or other capital stock
outstanding immediately prior to such alteration, change or conversion except
as such voting powers may be affected by the authorization of any new series of
Parity Preferred Stock having the same voting rights (other than the right to
vote as part of the same class as the Preferred Stock under the rights granted
to the Preferred Stock) as Preferred Stock or by the authorization of any other
shares of any class which are not entitled to vote together with Preferred
Stock in any class vote), preferences or special rights of Preferred Stock; or
(ii) authorize or create any Senior Preferred Stock or any other
class of stock senior to the Preferred Stock as to dividends or upon
liquidation.
Optional Conversion. At any time and from time to time after the initial
issuance, any holder of Preferred Stock may convert all or any of the shares of
Preferred Stock held by such holder into a number of shares of Common Stock
computed by multiplying the number of shares to be converted by the Stated
Value Per Share of the Preferred Stock plus the amount of any dividends accrued
thereon through the date of distribution and dividing the result by the
Conversion Price, which is initially $21.375.
Adjustment of Conversion Price. The Conversion Price is subject to
adjustment upon the occurrence of certain events, including (i) the
distribution of shares of Common Stock as a dividend or distribution on the
Common Stock, (ii) the subdivision or combination of the outstanding Common
Stock, (iii) the distribution to all or substantially all holders of Common
Stock of warrants, options or other rights to subscribe for or purchase Common
Stock (or securities convertible into Common Stock) at a price per share less
than the then Current Market Price (as defined in the Certificate of
Designations), or (iv) the distribution to all or substantially all holders of
Common Stock of shares of capital stock of the Company (other than shares of
Preferred Stock upon exercise of a Right), evidences of indebtedness, or other
non-cash assets (including securities of any company other than the Company).
Issuances of options and securities convertible into Common Stock are deemed to
be issuances of the underlying Common Stock for purposes of adjustments to the
conversion price. Whenever the conversion price is adjusted, the Company will
promptly mail to holders of Preferred Stock a notice of adjustment briefly
stating the facts requiring the adjustment and the manner of computing it. Such
adjustment shall reduce the Conversion Price to fully offset the economic
dilution to the Preferred Stock (on an as converted basis) of the occurrence of
the events described above, except that no adjustment of the conversion price
will be required to be made in any case until cumulative adjustments amount to
a change in the conversion price of 1% or more, but any such adjustment that
would otherwise be required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations will be made either to
the nearest cent or the nearest 1/100 of a share.
If the Company reclassifies or changes its outstanding Common Stock, or
consolidates with or merges into or sells or conveys all or substantially all
of the assets of the Company as an entirety to any person, or is a party to a
merger or share exchange that reclassifies or changes its outstanding Common
Stock, shares of Preferred Stock will become convertible into the kind and
amount of shares of stock and other securities and property (including cash)
that the holders of shares of Preferred Stock would have owned immediately
after the transaction if the holders had
-8-
<PAGE> 10
converted such shares of Preferred Stock into Common Stock immediately before
the effective date of the transaction. If in connection with any such
reclassification, consolidation, merger, sale, transfer, or share exchange each
holder of shares of Common Stock is entitled to elect to receive either
securities, cash or other assets upon completion of such transaction, the
Company will provide or cause to be provided to each holder of Preferred Stock
(on an as converted basis) the right to elect to receive the securities, cash
or other assets into which the Preferred Stock held by such holder will be
convertible after completion of any such transaction on the same terms and
subject to the same conditions applicable to holders of the Common Stock
(including, without limitation, notice of the right to elect, limitations on
the period in which such election will be made and the effect of failing to
exercise the election). The above will similarly apply to successive
reclassifications, consolidations, mergers, sales, transfer or share exchanges.
Conversion Procedure. Any holder of shares of Preferred Stock desiring to
convert any portion thereof into Common Stock shall surrender each certificate
representing one or more shares of such Preferred Stock to be converted, duly
endorsed in favor of the Company or in blank and accompanied by proper
instruments of transfer, at the principal business office of the Company (or
such other place as may be designated by the Company), and shall give written
notice to the Company at that office of its election to convert the same,
setting forth therein the name or names (with the address or addresses) in
which the shares of Common Stock are to be issued. In the event any Preferred
Stock is called for redemption or exchange, the conversion rights pertaining
thereto shall terminate at the close of business on the business day
immediately preceding each redemption or exchange date, unless the Company
defaults in payment of the redemption price or issuance of the Debentures in
exchange.
Exchange. The Preferred Stock is exchangeable, at any time and from time to
time, by the Company, in whole or in part, upon at least 30 days but no more
than 60 days prior written notice to the holders of Preferred Stock to be so
exchanged through the issuance of 6% Convertible Subordinated Debentures due
2007 ("Debentures") in redemption of and in exchange for the Preferred Stock.
Holders of the Preferred Stock will be entitled to receive $50 principal amount
of Debentures in exchange for each share of Preferred Stock held by them at the
time of exchange provided that all accrued dividends to the date of exchange
have been paid.
Optional Redemption. The Preferred Stock is subject to redemption on a
pro-rata basis (based on the number of shares), at the option of the Company,
in whole or from time to time in part, in each case as set forth below, (i) if
at any time prior to April 16, 1999, the average closing price of the Common
Stock for 10 consecutive trading days during such period equals or exceeds one
hundred forty percent (140%) of the Conversion Price then in effect, then for a
period of 60 days following the last day of such 10 day period, at a per share
redemption price equal to the Stated Value Per Share plus any dividends accrued
thereon to the date of redemption, and (ii) at any time on or after April 16,
1999, at a per share redemption price equal to the Stated Value Per Share plus
any dividends accrued thereon to the date of redemption.
The Company shall give each holder of Preferred Stock written notice of
each redemption of Preferred Stock held by such holder not less than 30 days
nor more than 45 days prior to any redemption date, specifying such redemption
date and the number of shares to be redeemed on such date. Notice of redemption
having been so given, the number of shares to be redeemed on the redemption
date as specified in such notice shall be so redeemed on the specified
redemption date, except to the extent that any share of Preferred Stock which
is to be so redeemed shall have been surrendered to the Company for conversion
prior to such redemption date.
Transfer Agent. The registrar and transfer agent for the Preferred Stock
is Harris Trust and Savings Bank.
DEBENTURES
General. The Debentures will be in registered form and will be issued under
an Indenture between the Company and Harris Trust and Savings Bank (the
"Trustee"). The Debentures will be unsecured, subordinated obligations of the
Company, will be limited in aggregate principal amount to $17.6 million and
will mature on April 16, 2007. The Debentures will bear interest at the same
annual rate as the dividends payable on the Preferred Stock, from the date of
issuance, or from the most recent interest payment date to which interest has
been paid or provided for, payable semiannually in arrears on March 15 and
September 15 of each year, commencing with the first of such dates to occur
after the exchange date, to the person in whose name the Debenture is
registered at the close of business on the preceding March 1 and September 1,
as the case may be. Interest will be payable to the holders of record as they
appear on the register of the Company on such record dates, provided that
holders of Debentures
-9-
<PAGE> 11
called for redemption on a redemption date falling between an interest payment
record date and the interest payment date shall, in lieu of receiving such
interest on the interest payment date fixed therefor, receive such interest
payment together with all other accrued and unpaid interest on the date fixed
for redemption (unless such holders convert such Debentures to Common Stock in
which case such holders will receive such payment on the corresponding dividend
payment date). Interest will be computed on the basis of a 360-day year of
twelve 30-day months. The Debentures will not be subject to any sinking fund.
Principal of and premium, if any, and interest on, with respect to, the
Debentures will be payable at the office or agency of the Company maintained
for such purposes. In addition, payment of interest, may, at the option of the
Company, be made by check mailed to the address of the person entitled thereto.
The Debentures will be issued only in fully registered form, without coupons,
in denominations of $1,000 and integral multiples of $1,000.
The Indenture shall not contain any restriction on the payment of dividends
or the repurchase of securities of the Company (except in the case of an event
of default under the Indenture) or any financial covenants.
The payment of principal of and premium, if any, and interest on, with
respect to, the Debentures will, to the extent set forth in the Indenture, be
subordinated and subject in right of payment to the prior payment in full of
all Senior Indebtedness of the Company (as defined below), whether outstanding
at the date of the Indenture or later incurred. In the event of any default in
the payment of the principal of, or interest on, any Senior Indebtedness or any
default permitting the acceleration of Senior Indebtedness where notice of such
default has been given to the Company, no payment with respect to the payment
of principal of and premium, if any, and interest on, with respect to, the
Debentures may be made by the Company, whether outstanding at the date of the
Indenture or later incurred, unless and until such default has been cured or
waived. Upon any payment or distribution of the Company's assets to creditors
upon any dissolution, winding up, liquidation, reorganization, bankruptcy,
insolvency, receivership or other proceedings relating to the Company, whether
voluntary or involuntary, the holders of Senior Indebtedness will first be
entitled to receive payment in full of all amounts due thereon before the
holders of the Debentures will be entitled to receive any payment upon the
principal of, premium, if any, and interest on, with respect to, the
Debentures. By reason of such subordination, in the event of the insolvency of
the Company, holders of Debentures may recover less ratably than holders of
Senior Indebtedness and other creditors of the Company.
"Senior Indebtedness" is defined as the principal of, premium, if any, and
interest on (a) any and all other indebtedness and obligations of the Company
(including indebtedness of others guaranteed by the Company) other than the
Debentures, whether or not contingent and whether outstanding on the date of
the Indenture or thereafter created, incurred or assumed, which (i) is for
money borrowed; (ii) is evidenced by any bond, note, debenture or similar
instrument; (iii) represents the unpaid balance on the purchase price of any
property, business, or asset of any kind; (iv) is an obligation of the Company
as lessee under any and all leases of property, equipment or other assets
required to be capitalized on the balance sheet of the lessee under generally
accepted accounting principles; (v) is a reimbursement obligation of the
Company with respect to letters of credit; (vi) is an obligation of the Company
with respect to interest swap obligations and foreign exchange agreements or
(vii) is an obligation of others secured by a lien to which any of the
properties or assets (including, without limitation, leasehold interests and
any other tangible or intangible property rights) of the Company are subject,
whether or not the obligations secured thereby shall have been assumed by the
Company or shall otherwise be the Company's legal liability, and (b) any
deferrals, amendments, renewals, extensions, modifications and refundings of
any indebtedness or obligations of the types referred to above; provided that
Senior Indebtedness shall not include (i) the Debentures; (ii) any indebtedness
or obligation of the Company which, by its terms or the terms of the instrument
creating or evidencing it, is both subordinated to any other indebtedness or
obligations of the Company and is not superior in right of payment to the
Debentures; (iii) any indebtedness or obligation of the Company to any of its
subsidiaries and (iv) any indebtedness or obligation which is both incurred by
the Company in connection with the purchase of assets, materials or services in
the ordinary course of business and constitutes an unsecured trade payable.
The Company expects from time to time to incur additional indebtedness,
including, but not limited to, Senior Indebtedness. The Indenture will not
prohibit or limit the incurrence of such additional indebtedness.
Debenture Conversion Rights. The Debentures may be converted in
denominations of $1,000 or integral multiples thereof (plus interest accrued to
the date of conversion) at any time prior to maturity at the option of the
holder into fully paid, nonassessable shares of Common Stock at a conversion
price equal to the Conversion Price with respect to the Preferred Stock as
subsequently adjusted. The right to convert Debentures called for redemption
will expire at the close of business on the business day prior to the
redemption date (the "Conversion Termination
-10-
<PAGE> 12
Date") (unless the Company shall default in making the redemption payment when
due, in which case the conversion right shall terminate at the close of
business on the date such default is cured and such Debenture is redeemed).
Holders of Debentures at the close of business on an interest payment
record date shall be entitled to receive the interest payable on the
corresponding interest payment date notwithstanding the conversion thereof
following the close of business on such interest payment record date and prior
to the close of business on such interest payment date. However, Debentures
surrendered for conversion during the period between the close of business on
any interest payment record date and the close of business on the corresponding
interest payment date (except Debentures called for redemption on a redemption
date or with a Conversion Termination Date during such period) must be
accompanied by payment of an amount equal to the interest payment to be
received on such interest payment date with respect to such Debentures
presented for conversion. Except as provided above, the Company shall make no
payment or allowance for unpaid interest on converted Debentures or for
dividends on the shares of Common Stock issued upon such conversion.
No fractional shares of Common Stock will be issued upon conversion but, in
lieu thereof, an appropriate amount will be paid in cash based on the Closing
Price (as defined in the Indenture) on the last trading day before the
conversion date.
Optional Redemption. The Debentures shall be subject to redemption on a
pro-rata basis (based on principal amount) at the option of the Company in
whole or from time to time in part, in each case as set forth in the Indenture
(i) if at any time prior to April 16, 1999, the average closing price of the
Common Stock for ten consecutive trading days during such period equals or
exceeds 140% of the Conversion Price then in effect, then for a period of 60
days following the last day of such 10-day period, at a per debenture
redemption price in cash equal to the principal amount thereof together with
interest accrued thereon to the date of redemption, and (ii) at any time on or
after April 16, 1999, at a per debenture redemption price in cash equal to the
principal amount thereof together with interest accrued thereon to the date of
redemption.
Notice of redemption will be given to the holders of Debentures not less
than 30 nor more than 60 days prior to the redemption date. Any Debentures so
called for redemption will be redeemed on the redemption date except to the
extent surrendered to the Company for conversion prior to such redemption date.
Modification of the Indenture. With the consent of the holders of a
majority in principal amount of the outstanding Debentures, the Company and the
Trustee may, when authorized by resolution of the Company's board of directors,
enter into an indenture or indentures supplemental to the Indenture, provided
that no such supplemental indenture may, without the consent of the Holder of
each outstanding Debenture, (a) change the stated maturity date of the
principal of, or any installment of interest on, any Debenture, reduce the
principal amount of, or the interest on, or any premium payable on redemption
of, any Debenture, (b) reduce the percentage of the principal amount of
outstanding Debentures necessary to modify or amend the Indenture or to consent
to any waiver provided for in the Indenture, (c) modify certain provisions of
the Indenture, (d) make any change that adversely affects the right to convert
any Debenture into Common Stock or decrease the conversion rate or increase the
conversion price, or (e) make certain changes that would adversely affect the
rights of holders of outstanding Debentures.
Events of Default, Notice and Waiver. The following will be Events of
Default under the Indenture: (a) default in the payment of any interest,
continued for 30 days; (b) default in the payment of principal (or premium, if
any) when due; (c) failure by the Company to issue and deliver Common Stock
upon conversion of any Debentures; (d) failure to perform any other covenant of
the Company contained in the Indenture, continued for 90 days after written
notice as provided in the Indenture; and (e) certain events of bankruptcy,
insolvency or reorganization relating to the Company. If an Event of Default
shall occur and be continuing, the Trustee or the holders of 25% in principal
amount of the outstanding Debentures may declare the Debentures due and
payable.
The Indenture will provide that the holders of a majority in principal
amount of the outstanding Debentures may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee. Before proceeding to exercise any
right or power under the Indenture at the direction of such holders, the
Trustee shall be entitled to receive reasonable security or indemnity from such
holders against the costs, expenses and liabilities which might be incurred by
it in complying with any such direction. The right of a holder to institute a
proceeding with respect to the Indenture is subject to certain
-11-
<PAGE> 13
conditions precedent, including notice and indemnity to the Trustee, but the
holder has an absolute right to receipt of principal of (and premium, if any)
and interest on such holder's Debentures at the stated maturity of the
principal or interest or both, as the case may be, and to convert such
Debentures and to institute suit for the enforcement of any such payment or
such conversion.
The holders of a majority in principal amount of the outstanding debentures
may on behalf of the holders of all Debentures waive certain past defaults,
except a default in payment of the principal of (or premium, if any) or
interest on any Debentures or in respect of certain provisions of the Indenture
which cannot be modified or amended without the consent of the holder of each
outstanding Debenture affected thereby.
The Company will be required to furnish to the Trustee annually a statement
of certain officers of the Company stating whether or not to the best of their
knowledge the Company is in default in the performance and observance of
certain terms of the Indenture and, if they have knowledge that the Company is
in default, specifying such default.
-12-
<PAGE> 14
LEGAL MATTERS
Certain legal matters with respect to the Wabash Securities offered hereby
will be passed upon for the Company by Hogan & Hartson L.L.P., Baltimore,
Maryland.
EXPERTS
The audited consolidated financial statements incorporated by reference in
this Prospectus and elsewhere in this registration statement have been audited
by Arthur Andersen LLP, independent public accountants, as indicated in
their report with respect thereto, and are included in reliance upon the
authority of said firm as experts in giving said report.
-13-
<PAGE> 15
================================================================================
NO PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH THE OFFERING MADE
HEREBY TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN
THIS PROSPECTUS AND,IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR THE SELLING
STOCKHOLDER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL WABASH OR A
SOLICITATION OF ANY OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY TO ANY
PERSON OR BY ANYONE NATIONAL IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF CORPORATION THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY
DATE SUBSEQUENT TO THE DATE HEREOF.
-----------
TABLE OF CONTENTS
PAGE
----
Available Information . . . . . . . . . . 2
Incorporation of Certain Documents by
Reference . . . . . . . . . . . . . . . 2
Risk Factors . . . . . . . . . . . . . . 3
The Company . . . . . . . . . . . . . . . 4
Ratio of Earnings to Fixed Charges . . . 3
Use of Proceeds . . . . . . . . . . . . . 4
Selling Stockholder and Plan of
Distribution . . . . . . . . . . . . . 4
Description of Wabash Securities . . . . 6
Legal Matters . . . . . . . . . . . . . . 13
Experts . . . . . . . . . . . . . . . . . 13
================================================================================
================================================================================
WABASH
NATIONAL
CORPORATION
COMMON STOCK
SERIES B 6% CUMULATIVE
CONVERTIBLE EXCHANGEABLE
PREFERRED STOCK
6% CONVERTIBLE SUBORDINATED
DEBENTURES DUE 2007
------------------------
PROSPECTUS
------------------------
, 1998
------------ ---
================================================================================
<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the fees and expenses in connection with the
issuance and distribution of the securities being registered hereunder. Except
for the SEC registration fee, all amounts are estimates.
<TABLE>
<S> <C>
SEC registration fee........................................... $ 11,061
Accounting fees and expenses................................... 10,000
Legal fees and expenses........................................ 25,000
Blue Sky fees and expenses (including counsel fees)............ 1,000
Printing and engraving expenses................................ 5,000
Transfer agent's and registrar's fees and expenses............. 10,000
Trustee's fees................................................. 15,000
Miscellaneous expenses, including Listing Fees................. 25,000
--------
Total..................................................... $102,061
--------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and officers under certain circumstances for liabilities incurred in connection
with their activities in such capacities (including reimbursement for expenses
incurred). Article TENTH of the Registrant's Certificate of Incorporation
provides that the Registrant will indemnify its directors and officers to the
fullest extent permitted by law and that directors shall not be liable for
monetary damages to the Registrant or its stockholders for breach of fiduciary
duty, except to the extent not permitted under Delaware General Corporation
Law.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
4.01 Certificate of Incorporation (incorporated by reference to Exhibit 3.01,
Registration Statement on Form S-1, SEC File No. 33-42810)
4.02 Form of Indenture (incorporated by reference to Exhibit 4.03 to Company's Form 10-Q for the
quarter ended March 31, 1997)
4.03 Certificate of Designation of Series A Junior Participating Preferred Stock
(incorporated by reference to Exhibit 3.02 to Form 8-A, filed with the Commission on December 7,
1995)
4.04 Rights Agreement dated as of December 4, 1995 between the Company and Harris Trust and Savings Bank, as
Rights Agent (incorporated by reference to Exhibit 1 to the Company's Form 8-A filed with the
Commission on December 7, 1995)
4.05 Certificate of Designation of Series B 6% Cumulative Convertible Exchangeable
Preferred Stock (incorporated by reference to Exhibit 3.04 to the Company's Form 10-Q for the
quarter ended March 31, 1997)
4.06 Specimen Certificate for Series B 6% Cumulative Convertible Exchangeable Preferred
Stock (previously filed)
4.07 By-Laws (incorporated by reference to Exhibit 3.03 to the Company's Registration
Statement on Form S-1, SEC File No. 33-42810)
5.01* Opinion of Hogan & Hartson L.L.P. as to the legality of the securities being
registered
12 Statement of Computation of Ratios (included in Part I to the Registration
Statement)
23.01* Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.01)
23.02* Consent of Arthur Andersen LLP
24.01 Power of Attorney (contained on signature page)
25* Statement of Eligibility of Harris Trust and Savings Bank as Trustee
-----------------
</TABLE>
* Filed herewith
II-1
<PAGE> 17
(b) Financial Statement Schedules.
All schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under
the related instructions or are inapplicable, and therefore have been omitted.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and 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 Securities and Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) 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.
(3) 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.
(a) 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 Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
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.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 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.
II-2
<PAGE> 18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of Tippecanoe, State of Indiana on March __, 1998.
WABASH NATIONAL CORPORATION
By: /s/ Mark R. Holden
--------------------------------------------------
Mark R. Holden
Vice President-Chief Financial Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Date: March __, 1998 /s/ Donald J. Ehrlich*
------------------------------------------------
Donald J. Ehrlich
Chief Executive Officer, President and Chairman
of the Board of Directors
Date: March __, 1998 /s/ Mark R. Holden
------------------------------------------------
Mark R. Holden
Vice President--Chief Financial Officer
and Director
(Principal Financial Officer and Principal
Accounting Officer)
Date: March __, 1998 /s/ Richard E. Dessimoz*
-----------------------------------------------
Richard E. Dessimoz
Vice President and Director
Date: March __, 1998 /s/ John T. Hackett*
-----------------------------------------------
John T. Hackett
Director
Date: March __, 1998 /s/ E. Hunter Harrison*
-----------------------------------------------
E. Hunter Harrison
Director
Date: March __, 1998 /s/ Ludvik F. Koci*
-----------------------------------------------
Ludvik F. Koci
Director
*By: /s/ Mark R. Holden
-----------------------------------------
Attorney-in-fact
II-3
<PAGE> 1
[HOGAN & HARTSON L.L.P. LETTERHEAD]
March 9, 1998
Board of Directors
Wabash National Corporation
1000 Sagamore Parkway South
Lafayette, Indiana 47905
Ladies and Gentlemen:
We are acting as counsel to Wabash National Corporation, a Delaware
corporation (the "COMPANY"), in connection with its registration statement on
Form S-3, as amended (the "REGISTRATION STATEMENT") filed with the Securities
and Exchange Commission relating to the proposed public offering of up to
200,000 shares of the Company's common stock, par value $.01 per share (the
"COMMON STOCK") and up to 352,000 shares of the Company's Series B 6% Cumulative
Convertible Exchangeable Preferred Stock, stated value $50.00 per share (the
"Preferred Stock" and together with the Common Stock, the "SHARES"). The
Registration Statement also relates to the proposed public offering of up to
$17,600,000 aggregate principal amount of 6% Convertible Subordinated Debentures
due 2007 that may be acquired upon exchange of the Preferred Stock therefor (the
"DEBENTURES"). The Registration Statement further relates to the proposed public
offering of shares of Common Stock issuable upon conversion of the Preferred
Stock and shares of Common Stock issuable upon conversion of the Debentures (the
"CONVERSION SHARES" and together with the Shares and the Debentures, the "WABASH
SECURITIES"). All of the Wabash Securities are being sold for the account of the
holder thereof (the "SELLING SECURITYHOLDER"). This opinion letter is furnished
to you at your request to enable you to fulfill the requirements of Item
601(b)(5) of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with
the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. The Certificate of Incorporation of the Company, as certified by
the Secretary of the State of the State of Delaware on March 5,
<PAGE> 2
HOGAN & HARTSON L.L.P.
Board of Directors
Wabash National Corporation
March 9, 1998
Page 2
1998 and by the Secretary of the Company on the date hereof as
then being complete, accurate and in effect.
3. The Bylaws of the Company, as certified by the Secretary of the
Company on the date hereof as then being complete, accurate
and in effect.
4. Resolutions of the Board of Directors of the Company adopted on
March 26 and April 14, 1997, as certified by the Secretary of
the Company on the date hereof as then being complete, accurate
and in effect, relating to the issuance and sale of the
Wabash Securities and arrangements in connection therewith.
5. The Form of Indenture for the 6% Convertible Subordinated
Debentures due 2007 (the "Indenture").
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us, and
the conformity with the original documents of all documents submitted to us as
certified, telecopied, photostatic, or reproduced copies. This opinion letter is
given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the
General Corporation Law of the State of Delaware. We express no opinion herein
as to any other laws, statutes, regulations, or ordinances.
Based upon, subject to and limited by the foregoing, we are of the
opinion that (i) assuming receipt by the Company of the consideration for the
Shares specified in the resolutions of the Board of Directors, the Shares
described in the Registration Statement have been duly authorized and are
validly issued, fully paid and non-assessable; (ii) the Conversion Shares have
been duly authorized and, upon due conversion of the Preferred Stock and the
Debentures, will have been validly and legally issued and will be fully paid and
non-assessable; and (iii) following execution and delivery of the Indenture and
due execution, authentication, issuance and delivery of the Debentures upon
exchange of the Preferred Stock therefor, in accordance with the terms of the
Preferred Stock, the Debentures will be valid and binding obligations of the
Company.
<PAGE> 3
HOGAN & HARTSON
Board of Directors
Wabash National Corporation
March 9, 1998
Page 3
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this opinion letter and should not be quoted in whole
or in part or otherwise be referred to, nor filed with or furnished to any
governmental agency or other person or entity, without the prior written consent
of this firm.
We hereby consent to the filing of this opinion letter as Exhibit
5.01 to the Registration Statement and to the reference to this firm under the
caption "Legal Matters" in the prospectus constituting a part of the
Registration Statement. In giving this consent, we do not thereby admit that we
are an "expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
/s/ HOGAN & HARTSON L.L.P
HOGAN & HARTSON L.L.P.
<PAGE> 1
EXHIBIT 23.02
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 19,
1998 included in Wabash National Corporation's Form 10-K for the year ended
December 31, 1997 and to all references to our Firm included in this
registration statement.
Indianapolis, Indiana
March 9, 1998
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as
Trustee
Check if an Application to Determine
Eligibility of a Trustee Pursuant to Section
305(b)(2) _______________
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 23-1614034
(I.R.S. Employer
(State of Incorporation) Identification No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Daniel G. Donovan, Harris Trust and Savings Bank,
111 West Monroe Street, Chicago, Illinois, 60603
312-461-2908
(Name, address and telephone number for agent for service)
WABASH NATIONAL CORPORATION
(Name of Obligor)
Delaware 52-1375028
(I.R.S. Employer
(State of Incorporation) Identification No.)
1000 Sagamore Parkway South
Lafayette, Indiana 47905
(Address of principal executive offices)
6% Convertible Subordinated Debentures, Due 2007
(Title of indenture securities)
<PAGE> 2
1. GENERAL INFORMATION. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Commissioner of Banks and Trust Companies, State of
Illinois, Springfield, Illinois; Chicago Clearing House
Association, 164 West Jackson Boulevard, Chicago,
Illinois; Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of the Federal
Reserve System,Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise
corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the
Trustee, describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee as now in
effect which includes the authority of the trustee to commence
business and to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between
Harris Trust and Savings Bank, HTS Bank and Harris Bankcorp,
Inc. which constitutes the articles of association of the
Trustee as now in effect and includes the authority of the
Trustee to commence business and to exercise corporate trust
powers was filed in connection with the Registration Statement
of Louisville Gas and Electric Company, File No. 2-44295, and
is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in
connection with the Registration Statement of Commercial
Federal Corporation, File No. 333-20711, and is incorporated
herein by reference.
3. The consents of the Trustee required by Section 321(b) of the
Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee
published pursuant to law or the requirements of its
supervising or examining authority.
(included as Exhibit B on page 3 of this statement)
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 5th day of March 1998.
HARRIS TRUST AND SAVINGS BANK
By: /s/ DGDonovan
------------------------------
D. G. Donovan
Assistant Vice President
EXHIBIT A
The consents of the Trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents
that reports of examinations of said trustee by Federal and State authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ DGDonovan
------------------------------
D.G. Donovan
Assistant Vice President
2
<PAGE> 4
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of December 31, 1997, as published in accordance with
a call made by the State Banking Authority and by the Federal Reserve Bank of
the Seventh Reserve District.
[LOGO] HARRIS BANK
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on December 31, 1997, a state banking institution organized and
operating under the banking laws of this State and a member of the Federal
Reserve System. Published in accordance with a call made by the Commissioner of
Banks and Trust Companies of the State of Illinois and by the Federal Reserve
Bank of this District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin........................ $1,252,381
Interest bearing balances.................................................. $598,062
Securities:................................................................................
a. Held-to-maturity securities $0
b. Available-for-sale securities $3,879,399
Federal funds sold and securities purchased under agreements to resell i $71,725
Loans and lease financing receivables:
Loans and leases, net of unearned income................................... $8,813,821
LESS: Allowance for loan and lease losses................................. $99,678
--------------------
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b)....................................................... $8,714,143
Assets held in trading accounts............................................................ $136,538
Premises and fixed assets (including capitalized leases)................................... $221,312
Other real estate owned.................................................................... $642
Investments in unconsolidated subsidiaries and associated companies........................ $103
Customer's liability to this bank on acceptances outstanding............................... $46,480
Intangible assets.......................................................................... $279,897
Other assets............................................................................... $653,101
---------------------------------
TOTAL ASSETS $15,853,783
=================================
</TABLE>
3
<PAGE> 5
<TABLE>
<S> <C>
LIABILITIES
Deposits:
In domestic offices.................................................................. $8,926,635
Non-interest bearing....................................................... $3,692,891
Interest bearing........................................................... $5,233,744
In foreign offices, Edge and Agreement subsidiaries, and IBF's....................... $1,763,669
Non-interest bearing....................................................... $22,211
Interest bearing........................................................... $1,741,458
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and in
IBF's:
Federal funds purchased.& securites sold under agreements to repurchase............. $2,693,600
Trading Liabilities 82,861
Other borrowed money:......................................................................
a. With remaining maturity of one year or less $601,799
b. With remaining maturity of more than one year $0
Bank's liability on acceptances executed and outstanding $46,480
Subordinated notes and debentures.......................................................... $325,000
Other liabilities.......................................................................... $134,309
-------------------------------------
TOTAL LIABILITIES $14,574,353
=====================================
EQUITY CAPITAL
Common stock............................................................................... $100,000
Surplus.................................................................................... $601,026
a. Undivided profits and capital reserves.............................................. $573,416
b. Net unrealized holding gains (losses) on available-for-sale securities $4,988
-------------------------------------
TOTAL EQUITY CAPITAL $1,279,430
=====================================
Total liabilities, limited-life preferred stock, and equity capital........................ $15,853,783
=====================================
</TABLE>
I, Pamela Piarowski, Vice President of the above-named bank, do
hereby declare that this Report of Condition has been prepared in conformance
with the instructions issued by the Board of Governors of the Federal Reserve
System and is true to the best of my knowledge and belief.
PAMELA PIAROWSKI
1/30/98
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and, to the
best of our knowledge and belief, has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
the Commissioner of Banks and Trust Companies of the State of Illinois and is
true and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
RICHARD E. TERRY
Directors.
4
