Attached files
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| EX-10.1 - WABASH NATIONAL Corp | v187029_ex10-1.htm |
| EX-99.1 - WABASH NATIONAL Corp | v187029_ex99-1.htm |
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT REPORT
Current
Report Pursuant to Section 13 or 15(d)
of the
Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): May 28, 2010
WABASH
NATIONAL CORPORATION
(Exact
name of registrant as specified in its charter)
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Delaware
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1-10883
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52-1375208
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(State
or other
jurisdiction
of
incorporation
or
organization)
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(Commission
File
Number)
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(I.R.S.
Employer
Identification
No.)
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1000
Sagamore Parkway South
Lafayette,
Indiana
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47905
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (765) 771-5310
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
¨Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Section
1 – Registrant’s Business and Operations
Item 1.01 Entry into a Material
Definitive Agreement.
On May
28, 2010, Wabash National Corporation (the “Company”) amended the warrant
issued on August 3, 2009 (the “Warrant,” and, as amended, the
“Replacement Warrant”)
to Trailer Investments, LLC (“Trailer Investments”), a
wholly-owned entity of Lincolnshire Equity Fund III, L.P., a private equity
investment fund managed by Lincolnshire Management, Inc. The amendment was made
in connection with closing of the Company’s previously announced public offering
(the “Offering”) of its
common stock, par value $0.01 per share (the “Common Stock”), which
included 16,137,500 shares sold by Trailer Investments pursuant to a partial
exercise of the Warrant, as described further below under Item 3.02 of this
Report. The Warrant was amended pursuant to the Consent and Waiver
between the Company and Trailer Investments dated May 24, 2010 (the “Consent”), which Consent was
entered into, among other things, to permit the Offering and was previously
filed as Exhibit
1.2 to the Company’s Current Report on Form 8-K filed with the Securities
and Exchange Commission on May 26, 2010. On May 28, 2010, the Warrant was
modified so that it will not adjust based upon any limitation on the Company’s
ability to fully utilize its net operating loss carryforwards and was increased
by a fixed number of 750,000 shares in lieu of the market price anti-dilution
adjustment (the “Market Price
Anti-Dilution Adjustment”) that would have otherwise applied as a result
of the Offering. The foregoing description is qualified in its entirety by
reference to the Replacement Warrant, which is filed as Exhibit
10.1 to this Current Report and is incorporated herein by reference, and
which replaces in its entirety the Warrant as originally
issued
Section
3 – Securities and Trading Markets
Item
3.02 Unregistered Sales of Equity Securities
The
disclosure in Item 1.01 of this Current Report is incorporated herein by
reference.
As
disclosed by the Company in its Form 8-K filed on August 4, 2009 (the
“Original 8-K”), the Company
issued the Warrant to Trailer Investments, LLC on August 3, 2009, at which
time the Warrant was immediately exercisable at $0.01 per share for 24,762,636
newly issued shares of common stock representing 44.21% of the issued and
outstanding common stock of the Company on August 3, 2009, after giving effect
to the issuance of the shares underlying the Warrant, subject to upward
adjustment to maintain that percentage if then currently outstanding options are
exercised. As originally issued, the Warrant was exercisable for cash or was
convertible into common stock under a customary “cashless exercise” fixture
based upon the trading price of the common stock at the time of exercise. The
Warrant also contained customary anti-dilution adjustment features for stock
splits and the like as well as future issuances of stock or derivative
securities that have sale or exercise prices below the then current market price
or $0.54.
On May
27, 2010, the Company issued 16,137,500 shares of the Common Stock to Trailer
Investments (the “Warrant
Shares”) upon the partial net exercise of the Warrant in connection with
the Offering. The partial net exercise of the Warrant was made by Trailer
Investments via the forfeiture of 22,811 shares of Common Stock under the
Warrant. The Warrant Shares were issued by the Company in a transaction exempt
from registration in reliance on Section 3(a)(9) under the Securities Act of
1933, as amended (the “Securities Act”) as no
commission or other remuneration was paid or given for the net exercise and in
reliance on Section 4(2) under the Securities Act as a transaction not involving
a public offering.
On May
28, 2010 the Company issued the Replacement Warrant to Trailer Investments,
which also covers an additional 750,000 shares of Common Stock in lieu
of the Market Price Anti-Dilution Adjustment that
would of otherwise applied as a result of the Offering. As a result of
the issuance of the Warrant Shares and the partial net exercise of the Warrant,
the Replacement Warrant as issued on May 28, 2010 is now initially exercisable
for 9,355,865 shares. Except as described in Item 1.01 and for the change in the
number of shares for which the Replacement Warrant is exercisable, the
Replacement Warrant has the same terms as the Warrant. The number of shares for
which the Replacement Warrant is exercisable continues to be subject to upward
adjustment if currently outstanding options are exercised. The Replacement
Warrant continues to be exercisable for cash or convertible into common stock
under a customary “cashless exercise” feature based upon the trading price of
the common stock at the time of exercise and continues to contain customary
anti-dilution adjustment features for stock splits and the like as well as
future issuances of stock or derivative securities that have sale or exercise
prices below the then current market price or $0.54. The shares of Common Stock
issuable upon exercise of the Replacement Warrant, when and if exercised, will
be issued in reliance on Section 4(2) under the Securities Act and potentially
Regulation D promulgated thereunder in a transaction not involving a public
offering and/or in reliance on Section 3(a)(9) under the Securities Act as an
exchange of securities if exercised under the cashless exercise
feature.
2
Item
3.03 Material Modification to Rights of Security Holders.
The
disclosure in Item 1.01 of this Current Report is incorporated herein by
reference.
With a portion of the proceeds of the Offering,
on May 28, 2010 the Company redeemed (the “Redemption”) all outstanding
shares of the Company’s Series E redeemable preferred stock (the “Series E
Preferred”), Series F redeemable preferred stock (the “Series F Preferred”), and
Series G redeemable preferred stock (the “Series G Preferred”, and
together with the Series E Preferred and Series F Preferred, the “Series E-G Preferred
Stock”).
As previously disclosed in the Original 8-K
filed on August 4, 2009, as a result of its ownership of the Series E-G
Preferred Stock Trailer Investments had significant rights pursuant to the
applicable certificates of designation for the Series E-G Preferred Stock and
pursuant to the Investor Rights Agreement dated August 3, 2009 between the
Company and Trailer Investments (the “Investor Rights
Agreement”). As a result of the Redemption, except for the payment
in connection with a change of control described below, Trailer Investments no
longer has the rights described in the Original 8-K that arise out of the
certificates of designation for the Series E-G Preferred Stock and no longer has
those rights that are described in the Original 8-K as lasting only until the
“Preferred Expiration Date,” as that term is described in the Original 8-K.
If a change of control of the Company (e.g.,
more than 50% of the voting power is transferred or acquired by any person other
than Trailer Investments and its affiliates unless Trailer Investments or its
affiliates acquire the Company) as defined in the certificates of designation
for the Series E-G Preferred Stock occurs within twelve months of the date of
the Redemption, Trailer Investments will be entitled to receive an aggregate
payment equal to $74,576,877, which is equivalent to the difference between what
it received in the Redemption and what it would have been entitled to receive on
the date of the Redemption if a change of control had occurred on that date.
Trailer Investments continues to have other
rights pursuant to the terms of the Investor Rights Agreement and its
Warrant. These rights include registration rights that are described in
the Original 8-K under the heading Registration Rights, as well as certain
rights upon events of default that are described under the heading Events of
Default in the Original 8-K, although Events of Default are now limited to
events that occur as a result only of breach of the covenants in the Investor
Rights Agreement that are in force after the Preferred Expiration Date as
described in the Investor Rights Agreement.
The Investor Rights Agreement also continues to provide that until the time
that Trailer Investments and its affiliates, including investors in funds
controlled by Lincolnshire Management, Inc. (collectively with Trailer
Investments, the “Trailer
Investors”), cease to hold or cease to beneficially own at least 10% of
the issued and outstanding common stock of the Company, the Trailer Investors
have the right to nominate five directors (the “Investor Directors”) to be
elected to the Company’s twelve member board of directors. (For the election at
our 2010 annual meeting of stockholders, the Trailer Investors agreed to only
nominate four directors for election to a ten member board of directors.)
Subject to the reasonable approval of the nominating and corporate governance
committee of the board of directors and the satisfaction of all legal and
governance requirements regarding committee membership, at the request of the
Trailer Investors the Investor Directors have proportional representation on
each committee of the board of directors, other than the Audit Committee, and
each subsidiary of the Company. The Investor Rights Agreement also provides that
the Company pay the reasonable expenses of the Investor Directors, but that the
Investor Directors are not entitled to receive compensation for their service on
the board of directors. The Company also committed to enter into an
indemnification agreement with each Investor Director, which is described in
Item 5.02 of the Original 8-K. The Company also agreed to permit Trailer
Investors holding a majority of the Registrable Securities to designate a
non-voting observer to the board of directors so long as it beneficially owns at
least 2% of the Company’s common stock.
The foregoing description of the remaining rights held by Trailer
Investments and the Trailer Investors are qualified in their entirety by
reference to the Investor Rights Agreement, which is filed as Exhibit 10.1 to the Original 8-K and to the description thereof in the Original
8-K, which is incorporated by reference herein.
3
Section
7 – Regulation FD
Item
7.01 Regulation FD Disclosure.
On May
28, 2010, the Company closed the Offering, which consisted of 11,750,000 shares
of common stock sold by the Company and 16,137,500 shares of common stock sold
by Trailer Investments as selling stockholder, each at a purchase price per
share of $6.50 (the “Offering”). The shares of
common stock sold in the Offering by Trailer Investments included 3,637,500
shares sold pursuant to the underwriters’ exercise in full of their option to
purchase additional shares to cover over-allotments. A copy of the Company’s
press release dated May 28, 2010 is attached as Exhibit
99.1 to this Current Report and is incorporated herein by reference.
Section
9 – Financial Statements and Exhibits
Item 9.01 Financial
Statements and Exhibits.
(d) Exhibits
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10.1
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Replacement
Warrant to Purchase Shares of Common Stock issued on May 28,
2010
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99.1
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Wabash
National Corporation press release dated May 28,
2010
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4
SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned hereunto duly
authorized.
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Wabash
National Corporation
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Date:
June 3, 2010
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By:
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/s/
Mark J. Weber
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Mark
J. Weber
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Senior
Vice President and
Chief
Financial Officer
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Exhibit
Index
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No.
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Exhibit
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10.1
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Replacement
Warrant to Purchase Shares of Common Stock issued on May 28,
2010
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99.1
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Wabash
National Corporation press release dated May 28,
2010
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