As
filed with the Securities and Exchange Commission on March 30,
2010
REGISTRATION
NO. 333-161694
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Post-Effective
Amendment
No. 1
to
FORM
S-1
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
(Exact
name of registrant as specified in its charter)
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Delaware
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3715
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52-1375208
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(State or other jurisdiction
of incorporation or organization)
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(Primary standard industrial
classification code number)
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(I.R.S. Employer
Identification Number)
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1000
Sagamore Parkway South
Lafayette, Indiana
47905
(765)
771-5300
(Address,
including zip code, and telephone number, including area code, of
registrant’s
principal executive offices)
Richard
J. Giromini
President
and Chief Executive Officer
Wabash
National Corporation
1000
Sagamore Parkway South
Lafayette,
Indiana 47905
(765)
771-5300
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
with
copies to:
Michael
J. Silver
William
I. Intner
Hogan
& Hartson LLP
100
International Drive, Suite 2000
Baltimore,
Maryland 21202
(410)
659-2700
Approximate
date of commencement of proposed sale to the public:
From
time to time after the effective date of this registration statement, as
determined by the selling stockholder.
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,
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. o
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. o
If this
form is a post-effective amendment filed pursuant to Rule 462(d) 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. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer o
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Accelerated filer o
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Non-accelerated filer x
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(Do not check if a smaller reporting company)
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Smaller reporting company o
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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.
The
information in this prospectus is not complete and may be
changed. These securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any state where the
offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED MARCH 30, 2010
PROSPECTUS
24,762,636
Shares
Common
Stock
This prospectus relates to the offer
and sale from time to time of up to 24,762,636 shares of our common stock by the
selling stockholder, or its donees, pledgees, transferees or other
successors-in-interests. The shares of common stock being sold are
originally issuable upon the exercise of a warrant held by the selling
stockholder, or its donees, pledgees, transferees or other
successors-in-interests. We will not receive any of the proceeds from
the sale of these shares, but we will incur expenses in connection with the
offering.
These shares are being registered to
permit the sale of these shares from time to time, in amounts, at prices and on
terms determined at the time of offering. The shares may be sold through
ordinary brokerage transactions, directly to market makers of our shares or
through any other means described in the section of this prospectus entitled
“Plan of Distribution” beginning on page 7.
Our common stock trades on the New
York Stock Exchange under the symbol “WNC.” On March 29, 2010, the
last reported sales price of our common stock on the New York Stock Exchange was
$7.23 per share.
Investing in our common stock involves
risks. See “Risk Factors” beginning on page 3.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of
these securities or determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The
date of this prospectus is
,
2010.
TABLE
OF CONTENTS
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Page
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PROSPECTUS
SUMMARY
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1 | |||
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RISK
FACTORS
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3 | |||
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INCORPORATION
OF DOCUMENTS BY REFERENCE
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4 | |||
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CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
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5 | |||
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USE
OF PROCEEDS
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6 | |||
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SELLING
STOCKHOLDER
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6 | |||
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PLAN
OF DISTRIBUTION
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7 | |||
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PRICE
RANGE OF COMMON STOCK
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10 | |||
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DIVIDEND
POLICY
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10 | |||
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DESCRIPTION
OF OUR COMMON STOCK
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11 | |||
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LEGAL
MATTERS
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14 | |||
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EXPERTS
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14 | |||
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WHERE
YOU CAN FIND MORE INFORMATION
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14 | |||
You should rely only on the information
contained in this prospectus. We and the selling stockholder have not authorized
anyone to provide you with information different from that contained in this
prospectus. If anyone provides you with different or inconsistent
information, you should not rely on it. The common stock is not being
offered in any jurisdiction where the offer is not permitted. The information
contained in this prospectus is accurate only as of the date of this prospectus,
regardless of the time of delivery of this prospectus or any sale of the common
stock. Our business, financial condition, results of operations and
prospects may have changed since that date.
When used in this prospectus, except
where the context otherwise requires, the terms “we,” “us,” “our,” “the Company”
and “Wabash” refer to Wabash National Corporation.
i
SUMMARY
The following summary may not
contain all the information that may be important to you. You should read the
entire prospectus, as well as the information to which we refer you and the
information incorporated by reference, before making an investment
decision.
Wabash
National Corporation
Founded
in 1985 as a start-up company, Wabash is one of North America’s leaders in
designing, manufacturing and marketing standard and customized truck trailers
and related transportation equipment. We believe our success has been the result
of our longstanding relationships with our core customers, our demonstrated
ability to attract new customers, our broad and innovative product lines, our
technological leadership and our large distribution and service network. Our
management team is focused on rightsizing our manufacturing and retail
operations to match the current demand environment, implementing our cost
savings initiatives, strengthening our capital structure, developing innovative
products, improving earnings and selective production introductions that meet
the needs of our customers.
The
address of our principal executive office is 1000 Sagamore Parkway South,
Lafayette, Indiana 47905 and our telephone number is (765)
771-5300. We maintain a website at www.wabashnational.com. Information
on our website is not, however, a part of, or incorporated by reference into,
this prospectus.
1
The
Transaction
On
July 17, 2009, we entered into a Securities Purchase Agreement with Trailer
Investments, LLC (“Trailer Investments”) pursuant to which Trailer Investments
agreed to invest $35 million in the Company. On August 3, 2009,
pursuant to the Securities Purchase Agreement, we issued to Trailer
Investments 20,000
shares of our Series E redeemable preferred stock (the “Series E Preferred”),
5,000 shares of our Series F redeemable preferred stock (the “Series F
Preferred”), and 10,000 shares of our Series G redeemable preferred stock (the
“Series G Preferred”, and together with the Series E Preferred and the Series F
Preferred, the “Preferred Stock”) and a warrant that is exercisable at $0.01 per
share for 24,762,636 newly issued shares of our common stock representing on
August 3, 2009, the date the warrant was delivered, 44.21% of our issued
and outstanding common stock after giving effect to the issuance of the shares
underlying the warrant, subject to upward adjustment (the “Warrant”) for an
aggregate purchase price of $35,000,000 (the “Transaction”). The
dividend rates for the Series E Preferred, Series F Preferred and Series G
Preferred are 15% per annum, 16% per annum and 18% per annum,
respectively. Initially, the annual dollar amounts of dividends are
$3 million, $800,000 and $1.8 million, respectively. The dividend on each
series of Preferred Stock is payable quarterly and subject to increase by 0.5%
every quarter if the applicable series of Preferred Stock is still outstanding
after August 3, 2014. During the first two years following the
issuance of the Preferred Stock, we may elect to accrue these dividends. The
dividend rates on the Preferred Stock will increase upon the occurrence of
events of noncompliance. On July 17, 2009, we also entered into our Third
Amended and Restated Loan and Security Agreement, which was effective August 3,
2009 (the "Amended Facility"), by and among us and certain of our subsidiaries
identified on the signature page thereto (the “Borrowers”), Bank of America,
N.A., as a lender and as agent (“Agent”), and the other lenders parties thereto.
The
proceeds from the Transaction were used by us to reduce the outstanding balance
under our Amended Facility and to pay the costs of the Transaction. As a
result of the Transaction, we have a material relationship with the selling
stockholder and certain of its affiliates, as described in this prospectus and
as described in detail in our Annual Report on Form 10-K for the year ended
December 31, 2009, which is incorporated by reference in this
prospectus.
The
Offering
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Common
stock offered by the selling stockholder
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24,762,636
shares.
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Selling
stockholder
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All
of the common stock is being offered by the selling stockholder, Trailer
Investments, or its donees, pledgees, transferees or other
successors-in-interests. See “Selling Stockholder” for more
information on the selling stockholder. We are not selling any shares in
this offering.
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Use
of proceeds
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We
will not receive any proceeds from the sale of shares in this
offering.
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Plan
of Distribution
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The
selling stockholder may offer and sell the common stock from time to time
through ordinary brokerage transactions, directly to market makers of our
shares or through any other means described in the section entitled “Plan
of Distribution” beginning on page 8.
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New
York Stock Exchange symbol
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“WNC”
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Risk
Factors
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See
“Risk Factors” and the other information contained in this prospectus or
to which we refer you for a discussion of factors you should consider
carefully before deciding to invest in shares of our common
stock.
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2
RISK FACTORS
Investing in our common stock
involves a high degree of risk. You should carefully consider and
evaluate all of the information contained in this prospectus and in the
documents we incorporate by reference in this prospectus before you decide to
purchase our common stock. In particular, you should carefully
consider and evaluate the risks and uncertainties described in “Part I— Item 1A.
Risk Factors” of our Form 10-K for the fiscal year ended December 31, 2009,
which information is incorporated in this prospectus by
reference. Any of the risks and uncertainties set forth therein could
materially and adversely affect our business, results of operations and
financial condition, which in turn could materially and adversely affect the
trading price of our common stock. As a result, you could lose all or
part of your investment.
3
INCORPORATION OF DOCUMENTS BY
REFERENCE
We incorporate information into this
prospectus by reference, which means that we disclose important information to
you by referring you to another document filed separately with the Securities
and Exchange Commission (the “SEC”). The information incorporated by reference
is deemed to be part of this prospectus, except to the extent superseded by
information contained in this prospectus. This prospectus incorporates by
reference the documents set forth below, the file number for each of which is
001-10883, that have been previously filed with the
SEC:
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·
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our
Annual Report on Form 10-K for the fiscal year ended December 31,
2009, filed with the SEC on March 26,
2010;
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·
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our
Current Reports on Form 8-K filed with the SEC on February 8, 2010,
February 10, 2010, and February 22,
2010.
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Any statement contained in a document
incorporated by reference in this prospectus shall be deemed to be modified or
superseded for purposes of this prospectus to the extent that a statement
contained in this prospectus or in any other subsequently filed document that
also is or is deemed to be incorporated by reference in this prospectus modifies
or supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
prospectus.
You may obtain copies of any of these
filings by contacting us at the address and phone number indicated below or by
contacting the SEC as described below under the section entitled “Where You Can
Find More Information.” Documents incorporated by reference are
available from us without charge, excluding all exhibits unless an exhibit has
been specifically incorporated by reference into this prospectus, by requesting
them in writing or by telephone at:
Wabash
National Corporation
Attention:
Corporate Secretary
P.O. Box
6129
Lafayette,
Indiana 47903
(765)
771-5300
Our internet website is www.wabashnational.com. We
make our electronic filings with the SEC, including our annual reports on Form
10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments
to these reports available on our website free of charge as soon as practicable
after we file or furnish them with the SEC. The information contained
on our website does not constitute a part of this prospectus, and our website
address supplied above is intended to be an inactive textual reference only and
not an active hyperlink to our website.
4
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains
“forward-looking statements” within the meaning of Section 27A of the Securities
Act of 1933 (the “Securities Act”) and Section 21E of the Securities Exchange
Act of 1934 (the “Exchange Act”). Forward-looking statements may include the
words “may,” “will,” “estimate,” “intend,” “continue,” “believe,” “expect,”
“plan” or “anticipate” and other similar words. Our “forwarding-looking
statements” include, but are not limited to, statements regarding:
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our
business plan;
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our
expected revenues, income or loss and capital
expenditures;
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plans
for future operations;
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financing
needs, plans and liquidity, including for working capital and capital
expenditures;
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our
ability to achieve sustained
profitability;
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reliance
on certain customers and corporate relationships;
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availability
and pricing of raw materials;
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availability
of capital;
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dependence
on industry trends;
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the
outcome of any pending litigation;
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export
sales and new markets;
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engineering
and manufacturing capabilities and
capacity;
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acceptance
of new technology and products;
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government
regulation; and
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assumptions
relating to the foregoing.
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Our future financial
condition and results of operations, as well as any forward-looking statements,
are subject to change and are subject to inherent risks and
uncertainties, such as those disclosed in this
prospectus. Important risks and factors that could cause our actual
results to be materially different from our expectations include the factors
that are disclosed in “Part I— Item 1A. Risk
Factors” of our Annual Report on Form 10-K for the fiscal year ended December
31, 2009. You should read these factors and the other
cautionary statements made in this prospectus as being applicable to all related
forward-looking statements wherever they appear in this
prospectus. Each forward-looking statement contained in this
prospectus reflects management’s view only as of the date on which that
forward-looking statement was made. We are not obligated to update
forward-looking statements or publicly release the result of any revisions to
them to reflect events or circumstances after the date of this prospectus or to
reflect the occurrence of unanticipated events.
5
USE
OF PROCEEDS
We will not receive any proceeds from the sale of shares of our common stock
offered by this prospectus.
SELLING
STOCKHOLDER
All of the shares of common stock
registered for sale pursuant to this prospectus are shares issuable upon the
exercise of the Warrant owned by the selling stockholder, Trailer Investments,
or its donees, pledgees, transferees or other successors-in-interest. The
Warrant was issued to Trailer Investments on August 3, 2009 and it was acquired
by Trailer Investments, together with shares of Preferred Stock, under a
Securities Purchase Agreement, dated as of July 17, 2009, between us and Trailer
Investments. We are registering the shares of common stock in order
to permit the selling stockholder and its donees, pledgees, transferees or other
successors-in-interest, to offer the shares acquired by full or partial exercise
of the Warrant for resale from time to time. We have agreed to pay
all expenses resulting from our obligation to register the shares issuable upon
exercise of the Warrant. This prospectus relates only to sales of
shares of our Common Stock upon exercise of the Warrant and does not cover sale
of any shares of the Preferred Stock, the Warrant itself or any
shares that may become issuable pursuant to the adjustment mechanisms of the
Warrant, other than shares that may be issued to prevent dilution resulting from
stock splits, stock dividends or similar transactions. The
Warrant may be exercised in full or in part, from time to time and at any time
within its 10 year term, by the holder thereof, and the exercise price per share
is $.01. The Warrant may be exercised for cash or pursuant to a
cashless exercise feature and the shares issuable upon exercise will be issued
in a transaction not involving a public offering under federal and state
securities laws.
The Preferred Stock and the Warrant
were issued for an aggregate purchase price of $35,000,000. As a
result of the Transaction, we have a material relationship with Trailer
Investments and certain of its affiliates. This relationship includes certain
consent rights and privileges we granted to Trailer Investments under the
agreements we entered into at the closing of the Transaction. This
material relationship includes, for so long as Trailer Investments and its
affiliates, including investors in the funds controlled by Lincolnshire
Management, Inc. (collectively with Trailer Investments, the “Trailer
Investors”), beneficially own at least 10% of our outstanding common stock, the
right for the Trailer Investors to designate five persons for election to our
board of directors. Other elements of this material relationship are
more fully described under the “Dividend Policy” and “Description of Our Common
Stock” sections of this prospectus and are described in our Annual
Report on Form 10-K for the year ended December 31, 2009, which are
incorporated by reference in this prospectus.
The
following table sets forth information with respect to the selling stockholder
and the shares of common stock beneficially owned by the selling stockholder,
including shares that may be offered under this prospectus. The information is
based on information provided by or on behalf of the selling stockholder to us
and is as of the date of this prospectus. Because the selling stockholder may
offer all or some portion of the common stock, no estimate can be given as to
the amount of the common stock that will be held by the selling stockholder upon
termination of this offering. For purposes of the table below, however, we have
assumed that after termination of this offering none of the shares covered by
this prospectus will be held by the selling stockholder.
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Name of Selling Stockholder
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Shares of Common
Stock Beneficially
Owned Prior to
Offering
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Maximum
Number of
Shares That
May Be Sold
Pursuant to
this Prospectus
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Shares of
Common
Stock
Beneficially
Owned After
Offering
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Percent of
Shares
Owned
After
Offering
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Trailer
Investments, LLC (1)
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24,762,636 | (1) | 24,762,636 |
(2)
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(2)
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(1)
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Lincolnshire
Equity Fund III, L.P. (“LEF III”), a Delaware limited partnership is the
sole member of Trailer Investments , Lincolnshire Equity Partners III,
L.P. (“LEP III”), a Delaware limited partnership, is the general partner
of LEF III, and Lincolnshire Equity III, LLC (“Equity III”), a Delaware
limited liability company , is the general partner of LEP III. Thomas J.
Maloney, one of our directors who was designated by Trailer Investments
holds a majority of the voting power of Equity
III. Trailer Investors has also designated the following
individuals to serve on our board of directors: Michael J. Lyons, Vineet
Pruthi, James G. Binch, and Andrew C. Boynton. All of the
shares of common stock beneficially owned by Trailer Investments and
offered hereby are not currently outstanding but are issuable at any time
upon exercise of the Warrant.
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(2)
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Because
the selling stockholder may, under this prospectus, offer all or some
portion of its common stock, no estimate can be given as to the number of
shares of our common stock that will be held by the selling stockholder
upon termination of any sales. We refer you to the information under the
heading “Plan of Distribution.”
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6
PLAN
OF DISTRIBUTION
The selling stockholder, which as used
in this prospectus includes donees, pledgees, transferees or other
successors-in-interest selling shares of common stock or interests in shares of
common stock received after the date of this prospectus from the selling
stockholder as a gift, pledge, partnership distribution or other transfer, may,
from time to time, sell, transfer or otherwise dispose of any or all of their
shares of common stock registered hereby or interests in shares of common stock
on any stock exchange, market or trading facility on which the shares are traded
or in private transactions. These dispositions may be at fixed
prices, at prevailing market prices at the time of sale, at prices related to
the prevailing market price, at varying prices determined at the time of sale,
or at negotiated prices, which may be higher or lower than the market price of
our common stock on the New York Stock Exchange or any other exchange or
market.
The selling stockholder may use any one
or more of the following methods when disposing of shares or interests
therein:
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·
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on
the New York Stock Exchange, in the over-the-counter market or on any
other national or international securities exchange on which our shares
are listed or traded;
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·
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ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
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in
underwritten transactions on either a firm commitment or best-efforts
basis;
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block
trades in which the broker-dealer will attempt to sell the shares as
agent, but may position and resell a portion of the block as principal to
facilitate the transaction;
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
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an
exchange distribution in accordance with the rules of the applicable
exchange;
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privately
negotiated transactions;
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short
sales effected after the date the registration statement of which this
prospectus is a part is declared effective by the
SEC;
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through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or
otherwise;
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·
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an
agreement between a broker-dealer and the selling stockholder
to sell a specified number of such shares at a stipulated price per share;
and
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a
combination of any such methods of
sale.
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7
The selling stockholder may, from time
to time, pledge or grant a security interest in some or all of the shares of
common stock it owns and, if it defaults in the performance of its secured
obligations, the pledgees or secured parties may offer and sell the shares of
common stock, from time to time, under this prospectus, or under an amendment or
supplement to this prospectus amending the list of selling stockholders to
include the pledgee, transferee or other successors-in-interest as selling
stockholders under this prospectus. The selling stockholder also may
transfer the shares of common stock in other circumstances, in which case the
transferees, pledgees or other successors-in-interest will be the selling
beneficial owners for purposes of this prospectus.
To the
extent required, the shares of our common stock to be sold, the name of the
selling stockholder, the respective purchase prices and public offering prices,
the names of any agents, dealer or underwriter, any applicable commissions or
discounts with respect to a particular offer will be set forth in an
accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this
prospectus.
In connection with the sale of our
common stock or interests therein, the selling stockholder may enter into
hedging transactions with broker-dealers or other financial institutions, which
may in turn engage in short sales of the common stock in the course of hedging
the positions they assume. The selling stockholder may also sell
shares of our common stock short and deliver these securities to close out its
short positions, or loan or pledge the common stock to broker-dealers that in
turn may sell these securities. The selling stockholder may also
enter into option or other transactions with broker-dealers or other financial
institutions or the creation of one or more derivative securities which require
the delivery to such broker-dealer or other financial institution of shares
offered by this prospectus, which shares such broker-dealer or other financial
institution may resell pursuant to this prospectus (as supplemented or amended
to reflect such transaction).
The aggregate proceeds to the selling
stockholder from the sale of the common stock it offers will be the purchase
price of the common stock less discounts or commissions, if any. The
selling stockholder reserves the right to accept and, together with its agents
from time to time, to reject, in whole or in part, any proposed purchase of
common stock to be made directly or through agents. We will not
receive any of the proceeds from this offering.
The selling stockholder also may resell
all or a portion of the shares in open market transactions in reliance upon Rule
144 under the Securities Act, provided that they meet the criteria and conform
to the requirements of that rule.
The selling stockholder and any
underwriters, broker-dealers or agents that participate in the sale of the
common stock or interests therein may be “underwriters” within the meaning of
Section 2(11) of the Securities Act. Any discounts, commissions,
concessions or profit they earn on any resale of the shares may be underwriting
discounts and commissions under the Securities Act. A selling
stockholder who is an “underwriter” within the meaning of Section 2(11) of the
Securities Act will be subject to the prospectus delivery requirements of the
Securities Act.
In order to comply with the securities
laws of some states, if applicable, the common stock may be sold in these
jurisdictions only through registered or licensed brokers or
dealers. In addition, in some states the common stock may not be sold
unless it has been registered or qualified for sale or an exemption from
registration or qualification requirements is available and is complied
with.
To facilitate the offering of common
stock, certain persons participating in the offering may engage in transactions
that stabilize, maintain, or otherwise affect the price of common stock. This
may include over-allotments or short sales of common stock, which involve the
sale by persons participating in the offering of more common stock than the
selling stockholders sold to them. In these circumstances, these persons would
cover such over-allotments or short positions by making purchases in the open
market or by exercising their over-allotment option, if any. In addition, these
persons may stabilize or maintain the price of common stock by bidding for or
purchasing common stock in the open market or by imposing penalty bids, whereby
selling concessions allowed to dealers participating in the offering may be
reclaimed if common stock sold by them is repurchased in connection with
stabilization transactions. The effect of these transactions may be to stabilize
or maintain the market price of the common stock at a level above that which
might otherwise prevail in the open market. These transactions may be
discontinued at any time.
We have advised the selling stockholder
that the anti-manipulation rules of Regulation M under the Exchange Act may
apply to sales of shares in the market and to the activities of the selling
stockholder and their affiliates. In addition, we will make copies of
this prospectus (as it may be supplemented or amended from time to time)
available to the selling stockholder for the purpose of satisfying the
prospectus delivery requirements of the Securities Act. The selling
stockholder may indemnify any broker-dealer that participates in transactions
involving the sale of the shares against certain liabilities, including
liabilities arising under the Securities Act.
8
We have agreed to indemnify the selling
stockholder against liabilities, including liabilities under the Securities Act
and state securities laws, relating to the registration of the shares offered by
this prospectus.
We have agreed with the selling
stockholder to keep the registration statement of which this prospectus
constitutes a part effective until the earlier of (1) such time as all of the
shares covered by this prospectus have been disposed of pursuant to and in
accordance with the registration statement or (2) the date on which the shares
may be sold pursuant to Rule 144(b)(1)(i) of the Securities
Act.
9
PRICE
RANGE OF COMMON STOCK
Our common stock trades on the New
York Stock Exchange under the symbol “WNC.” The number of record holders of our
common stock at March 18, 2010 was 911. The following table sets
forth the high and low stock prices as reported on the New York Stock Exchange
for the time periods indicated:
|
2008
|
||||||||
|
High
|
Low
|
|||||||
|
First
quarter
|
$ | 9.50 | $ | 6.96 | ||||
|
Second
quarter
|
$ | 10.59 | $ | 7.55 | ||||
|
Third
quarter
|
$ | 11.69 | $ | 6.85 | ||||
|
Fourth
quarter
|
$ | 9.37 | $ | 3.26 | ||||
|
2009
|
||||||||
|
High
|
Low
|
|||||||
|
First
quarter
|
$ | 5.07 | $ | 0.51 | ||||
|
Second
quarter
|
$ | 2.71 | $ | 0.68 | ||||
|
Third
quarter
|
$ | 3.25 | $ | 0.50 | ||||
| Fourth quarter | $ | 3.05 | $ | 1.36 | ||||
|
2010
|
||||||||
|
High
|
Low
|
|||||||
|
First
quarter (through March 29, 2010)
|
$ | 7.84 | $ | 1.82 | ||||
|
|
||||||||
|
|
||||||||
|
|
||||||||
On March 29, 2010, the last
reported sales price of our common stock as reported on the New York Stock
Exchange was $7.23.
DIVIDEND
POLICY
We historically paid quarterly
dividends until these dividend payments were suspended by our board of directors
on December 28, 2001. We resumed the payment of quarterly dividends
beginning in the first quarter of 2005. However, in December 2008
these dividend payments were again suspended due to the weak economic
environment and uncertainty as to the timing of a recovery as well as our effort
to enhance liquidity.
Under the
Amended Facility, we are not permitted to pay cash dividends to our common
stockholders until the second anniversary of the effectiveness of the Amended
Facility and then only if (i) no default or events of default are then in
existence or would be caused by such purchase, redemption or payment, (ii)
immediately after such purchase, redemption or payment, the Borrowers have
unused availability under the Amended Facility of at least $40 million, (iii)
the amount of all cash dividends paid by us does not exceed $20 million in any
fiscal year and (iv) at least five business days prior to the purchase,
redemption or payment, an officer of Wabash has delivered a certificate to the
Agent certifying that the conditions precedent in clauses (i)-(iii) have been
satisfied. Further, for so long as the Trailer Investors continue to
hold a majority of the Preferred Stock, we cannot directly or indirectly declare
or make any dividend, distribution, or redemption of any shares of any class of
our stock other than dividend payments on the Preferred Stock without the
consent of a majority of the Trailer Investors.
10
DESCRIPTION
OF OUR COMMON STOCK
The following description of our common
stock and provisions of our certificate of incorporation and amended and
restated bylaws, as amended, are summaries and are qualified by reference to our
certificate of incorporation and our amended and restated bylaws, as amended,
that are filed as exhibits to the registration statement that includes this
prospectus. The General Corporation Law of the State of Delaware (the
“DGCL”) may also affect the terms of our common stock.
General
We are authorized to issue up to
75,000,000 shares of common stock, par value $0.01 per
share. We are also authorized to issue up to 25,000,000 shares
of preferred stock, par value $0.01 per share. As of March 18,
2010, (i) there were 31,109,898 shares of our common stock outstanding, (ii)
35,000 shares of our Preferred Stock outstanding and (ii) there was the Warrant
outstanding that is exercisable at $0.01 per share for 24,762,636 newly issued
shares of our common stock, subject to upward adjustment.
Voting
Rights
Holders of our common stock are
entitled to attend all annual and special meetings of our stockholders and to
vote upon any matter, including, without limitation, the election of
directors. Holders of our common stock are entitled to one vote for
each share held on all matters submitted to a vote of stockholders and do not
have cumulative voting rights. Accordingly, holders of a majority of the shares
of our common stock entitled to vote in any election of directors may elect all
of the directors standing for election. However, for so long as the
Trailer Investors beneficially own at least 10% of our outstanding common stock,
they maintain the right to designate five persons for election to our board of
directors. In addition, for so long as the Trailer Investors continue
to hold a majority of the Preferred Stock, we cannot take certain actions
without the consent of a majority of the Trailer Investors, even if approved by
the holders of our common stock. Specifically, without the approval
of a majority of the Trailer Investors we cannot:
|
·
|
directly
or indirectly declare or make any dividend, distribution, or redemption of
any shares of any class of our stock other than dividend payments on the
Preferred Stock;
|
|
·
|
directly
or indirectly declare or make any payments of management, consulting or
other fees to any affiliate, which includes certain of our officers,
directors and employees;
|
|
·
|
issue
any notes or debt securities containing equity or voting features or any
capital stock, other equity securities or equity-linked
securities;
|
|
·
|
make
loans or advances to, guarantees for the benefit of, or investments in,
any person, subject to exceptions for reasonable advances to employees and
specified types of highly liquid
investments;
|
|
·
|
liquidate,
dissolve or effect a recapitalization or reorganization in any form of
transaction, unless, in the case of a recapitalization or reorganization,
such transaction would result in a change of control and we pay to the
holders of the Preferred Stock all amounts then due and owing under the
Preferred Stock prior to or contemporaneous with the consummation of such
transaction;
|
|
·
|
directly
or indirectly acquire any interest in an entity or joint venture, except
for acquisitions involving aggregate consideration (whether payable in
cash or otherwise) not to exceed $5,000,000 in the aggregate if, at the
time of any such acquisition, we have availability for draw-downs under
the Amended Facility in an amount equal to or exceeding $20,000,000 and
the ratio of our aggregate indebtedness as of the most recent month end to
the previous twelve-month EBITDA (as defined in the Amended Facility)
after giving effect to such acquisition is less than
6:1;
|
11
|
·
|
reclassify
or recapitalize our capital stock , subject to certain
exceptions;
|
|
·
|
enter
into any line of business other than the lines of business in which we are
currently engaged and other activities reasonably related
thereto;
|
|
·
|
enter
into, amend, modify or supplement any agreement, commitment or arrangement
with any of our affiliates, except for customary employment arrangements
and benefit programs on reasonable terms and except as otherwise expressly
contemplated by certain documents entered into in connection with the
Transaction;
|
|
·
|
create,
incur, guarantee, assume or suffer to exist, any indebtedness, other than
(A) indebtedness pursuant to the Amended Facility, and (B) indebtedness in
an aggregate amount not to exceed $10,000,000, provided that such
indebtedness is created, incurred, guaranteed, assumed or suffered to
exist solely to satisfy our working capital requirements, the interest
rate per annum applicable to such Indebtedness does not exceed 9% and the
ratio of our aggregate indebtedness as of the most recent month end to the
previous twelve-month EBITDA after giving effect to such creation,
incurrence, guaranty, assumption or sufferance does not exceed
3:1;
|
|
·
|
engage
in any transaction that results in a change of control unless we pay to
the holders of the Preferred Stock all amounts then due and owing under
the Preferred Stock (including the premium payable in connection with any
redemption relating to a change of control) prior to or contemporaneous
with the consummation of such
transaction;
|
|
·
|
sell,
lease or otherwise dispose of more than 2% of our consolidated assets
(computed on the basis of book value, determined in accordance with
Generally Accepted Accounting Principles in the U.S. (“GAAP”), or fair
market value, determined by the board of directors in its reasonable good
faith judgment) in any transaction or series of related transactions,
other than sales of inventory in the ordinary course of
business;
|
|
·
|
become
subject to any agreement or instrument which by its terms would (under any
circumstances) restrict (A) the right of any subsidiary to make loans or
advances or pay dividends to, transfer property to, or repay any
indebtedness owed to us or (B) restrict our right or ability to perform
the provisions of certain agreements entered into in connection with the
Transaction or to conduct its business as conducted as of the Effective
Date (as defined in the Amended
Facility);
|
|
·
|
make
any amendment to or rescind any provision of our organization documents,
increase the number of authorized shares of common stock or preferred
stock or adversely affect or otherwise impair the rights of the Trailer
Investors or the holders of the Preferred Stock;
or
|
|
·
|
increase
the size of the board of directors or create or change any committee of
our board of directors.
|
Liquidation
Rights
Upon our liquidation, dissolution or
winding up, the holders of our common stock are entitled to receive their
ratable portion of our assets legally available for distribution after the
payment of all debts and other liabilities and subject to the rights of the
Preferred Stock. Subject to the rights of our creditors, upon any
liquidation, dissolution or winding up of Wabash the holders of the Preferred
Stock are entitled to be paid before any distribution or payment is made to the
holders of our common stock. The liquidation preference for the
Preferred Stock is for an amount in cash equal to $1,000 per share of Preferred
Stock plus all accumulated, accrued and unpaid dividends
thereon. Further, as noted above under “Voting Rights”, without the
consent of a majority of the Trailer Investors we cannot engage in any
transaction that results in a change of control unless we pay to the holders of
the Preferred Stock all amounts then due and owing under the Preferred Stock
(including the premium payable in connection with any redemption relating to a
change of control) prior to or contemporaneous with the consummation of such
transaction.
12
Other
Rights and Restrictions
Holders of our common stock have no
preemptive, subscription, redemption or conversion rights. The rights,
preferences and privileges of holders of our common stock are subject to, and
may be adversely affected by, the rights of the holders of the Preferred Stock
and the shares of any series of preferred stock that we may designate and issue
in the future. Our certificate of incorporation and amended and
restated bylaws, as amended, do not restrict the ability of a holder of common
stock to transfer his or her shares of common stock.
Anti-Takeover
Provisions
Organizational
Documents. Our certificate of
incorporation and our amended and restated bylaws, as amended, provide that any
action required or permitted to be taken by our stockholders at an annual or
special meeting of stockholders may only be taken if it is properly brought
before the meeting or taken by written action in lieu of a meeting by persons
who would be entitled to vote at a meeting and who hold shares having voting
power equal to not less than the minimum number of votes that would be necessary
to authorize or take action at a meeting at which all shares entitled to vote
were present and void. Our amended and restated bylaws, as amended, further
provide that special meetings of stockholders may only be called by our
President, board of directors, or chairperson of the board of directors. In
addition, our amended and restated bylaws establish an advance notice procedure
for stockholder proposals and director nominations to be brought before an
annual meeting of stockholders. Stockholders at an annual meeting may only
consider proposals or nominations specified in the notice of meeting or brought
before the meeting by or at the direction of the board of directors or by a
stockholder of record on the record date for the meeting who is entitled to vote
at the meeting and who has delivered timely written notice in proper form
to our secretary of the stockholder’s intention to bring such business before
the meeting. These provisions could have the effect of delaying until the next
stockholders’ meeting actions that are favored by the holders of a majority of
our outstanding voting securities.
Certificates of Designation of the
Preferred Stock. Pursuant to the terms of our Preferred Stock,
which are provided in the certificates of designation filed with the Secretary
of State for the State of Delaware for each series, for so long as the Trailer
Investors continue to hold a majority of the Preferred Stock we cannot engage in
any transaction that results in a change of control unless we pay the Preferred
Stock holders all amounts then due and owing under the Preferred Stock
(including the premium payable in connection with any redemption relating to a
change of control) prior to or contemporaneous with the consummation of such
transaction without the consent of a majority of the Trailer
Investors. Further, without the consent of a
majority of the Trailer Investors we cannot sell, lease or otherwise dispose of
more than 2% of our consolidated assets (as computed on the basis of book value
determined in accordance with GAAP or on the basis of fair market value
determined by the board of directors in its reasonable good faith judgment) in
any transaction or series of related transactions, other than sales of inventory
in the ordinary course of business.
Stockholders’ Rights
Plan. We have a Stockholders’ Rights Plan (the “Rights Plan”)
that is designed to deter coercive or unfair takeover tactics in the event of an
unsolicited takeover attempt. It is not intended to prevent a takeover on terms
that are favorable and fair to all stockholders and will not interfere with a
merger approved by our board of directors. Each right entitles stockholders to
buy one one-thousandth of a share of Series D Junior Participating Preferred
Stock at an exercise price of $120. The rights will be exercisable only if a
person or a group acquires or announces a tender or exchange offer to acquire
20% or more of our common stock or if we enter into other business combination
transactions not approved by our board of directors. Trailer Investments is
exempted from the application of the Rights Plan to the acquisition of our
shares by them. In the event the rights become exercisable, the Rights Plan
allows for our stockholders to acquire our stock or the stock of the surviving
corporation, whether or not we are the surviving corporation, having a value
twice that of the exercise price of the rights. These rights pursuant to the
Rights Plan will expire December 28, 2015 or are redeemable for $0.01 per right
by the our board under certain
circumstances.
Dividends
Holders
of our common stock are entitled to receive proportionately any dividends as may
be declared by our board of directors on our common stock, subject to any
preferential dividend rights of outstanding preferred stock, including the
Preferred Stock, and subject to any applicable contractual restrictions and
limitations, including as a result of our current amended and restated credit
facility.
13
Listing
Our common stock is listed on the New
York Stock Exchange under the symbol “WNC”.
Transfer Agent and
Registrar
The transfer agent and registrar for
our common stock is The Bank of New York Mellon Corporation.
LEGAL
MATTERS
Hogan & Hartson LLP, Baltimore,
Maryland has passed upon certain legal matters in connection with the common
stock.
EXPERTS
Ernst & Young LLP, independent
registered public accounting firm, has audited our consolidated financial
statements included in our Annual Report on Form 10-K for the year ended
December 31, 2009, and the effectiveness of our internal control over
financial reporting as of December 31, 2009, as set forth in their reports,
which are incorporated by reference in this prospectus and elsewhere in the
registration statement. Our financial statements are incorporated by
reference in reliance on Ernst & Young LLP’s reports, given on their
authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any reports, proxy statements or other
information that we file with the SEC at the following location of the
SEC:
Public
Reference Room
100 F
Street, N.E.
Washington,
D.C. 20549
Please
call the SEC at 1-800-SEC-0330 for further information on the public reference
rooms. You may also obtain copies of this information by mail from the
Public Reference Section of the SEC, 100 F Street, N.E., Washington, D.C.
20549, at prescribed rates. The SEC also maintains an Internet website that
contains reports, proxy and information statements and other information
regarding registrants that file electronically with the SEC. The address of the
SEC’s web site is www.sec.gov.
14
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
13. Other Expenses of Issuance and Distribution
|
Securities
and Exchange Commission filing fee
|
$ | 3,710 | ||
|
Accounting
fees and expenses
|
65,000
|
|||
|
Legal
fees and expenses
|
45,000
|
|||
|
Miscellaneous
|
10,000
|
|||
|
Total
expenses
|
$ |
123,710
|
||
All of
the above fees and expenses will be paid by us. Other than the Securities and
Exchange Commission filing fee, all fees and expenses are
estimated.
Item
14. Indemnification of Directors and Officers
Delaware General Corporation
Law. Section 145(a) of the General Corporation Law of the State of
Delaware (the “DGCL”) provides that a corporation may indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person’s conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person’s conduct was unlawful.
Section
145(b) of the DGCL states that a corporation may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys’ fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which the person shall have been adjudged to be liable to the corporation unless
and only to the extent that the Delaware Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
the person is fairly and reasonably entitled to indemnity for such expenses as
the Delaware Court of Chancery or such other court shall deem
proper.
Section
145(c) of the DGCL provides that to the extent that a present or former director
or officer of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections (a) and (b)
of Section 145, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys’ fees) actually and
reasonably incurred by such person in connection therewith.
II-1
Section 145(d) of the DGCL states that
any indemnification under subsections (a) and (b) of Section 145 (unless ordered
by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances because the
person has met the applicable standard of conduct set forth in subsections (a)
and (b) of Section 145. Such determination shall be made with respect to a
person who is a director or officer at the time of such determination (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, (2) by a committee of such directors
designated by majority vote of such directors, even though less than a quorum,
(3) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (4) by the
stockholders.
Section 145(f) of the DGCL states that
the indemnification and advancement of expenses provided by, or granted pursuant
to, the other subsections of Section 145 shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person’s
official capacity and as to action in another capacity while holding such
office.
Section 145(g) of the DGCL provides
that a corporation shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against such
person and incurred by such person in any such capacity or arising out of such
person’s status as such, whether or not the corporation would have the power to
indemnify such person against such liability under the provisions of Section
145.
Section 145(j) of the DGCL states that
the indemnification and advancement of expenses provided by, or granted pursuant
to, Section 145 shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
Certificate of Incorporation.
Article TENTH of our certificate of incorporation provides that the we will
indemnify our directors and officers to the fullest extent permitted by law and
that directors shall not be liable for monetary damage to us or our stockholders
for breach of fiduciary duty, except to the extent not permitted under
DGCL.
Bylaws. Our
amended and restated bylaws, as amended, provide that any director or officer
who was or is a party or is threatened to be made a party to any action or
proceeding by reason of his or her services to us will be indemnified to the
fullest extent permitted by the DGCL.
Indemnification Agreements.
The board of directors has adopted a form of indemnification agreement for our
directors, which provides a contractual right in certain circumstances to
indemnification for related expenses including, among other things, attorneys’
fees, judgments, fines and settlement amounts incurred by any of these
individuals in any action or proceeding arising as a result of such individual’s
relationship with us, and the advancement of expenses for the same.
Insurance. We maintain
directors and officers liability insurance, which covers our directors and
officers against certain claims or liabilities arising out of the performance of
their duties.
Item 15. Recent Sales of Unregistered
Securities
Since January 1, 2007 we have issued
unregistered securities to a limited number of persons as described
below:
(1)
On August 3, 2009, we issued to Trailer Investments, an entity formed to invest
in us by Lincolnshire Equity Fund III, L.P., a private equity fund managed by
Lincolnshire Management, Inc., the following securities: (i) 20,000 shares of
Series E redeemable preferred stock, (ii) 5,000 shares of Series F
redeemable preferred stock, (iii) 10,000 shares of Series G redeemable preferred
stock and (iv) a warrant is immediately exercisable at $0.01 per share for up to
44.21% of the shares of our common stock (subject to adjustment) (the
“Warrant”). At the time of issuance, the number of shares subject to
the Warrant was 24,762,636 shares of newly issued common stock, subject to
upward adjustment. The issuance of the foregoing securities was for an aggregate
offering price of $35,000,000 and the issuance was made in reliance on Section
4(2) under the Securities Act and Regulation D promulgated thereunder in a
transaction not involving a public offering.
II-2
(2) On
May 14, 2009, each non-employee director of our board of directors, as part of
the director compensation to be paid by us for 2009, was granted 32,374 shares
of unrestricted common stock for an aggregate grant of 194,244 shares, pursuant
to our 2007 Omnibus Incentive Plan (the “Omnibus Plan”). The Omnibus Plan limits
grants of unrestricted stock awards in an aggregate amount of up to 5% of the
number of shares of stock available for issuance under the Plan. In
July 2009, we discovered that the May 14, 2009 grant to non-employee directors
exceeded this 5% limitation by 118,440 shares, or 19,740 shares per non-employee
director, and as such, these shares were void. In response, and in
consideration of the 2009 compensation for service on the board of directors, on
July 30, 2009 the board of directors approved providing each non-employee
director the right to receive, at the election of such non-employee director,
either (i) 19,740 shares of our common stock or (ii) a cash amount equivalent to
the product of (1) the closing price of our common stock on the New York Stock
Exchange on the business day after the respective election is received us and
(2) 19,740. Accordingly, since that date up to an aggregate of
118,440 shares have been issued to members of the board of directors in reliance
on Section 4(2) under the Securities Act in a transaction not involving a public
offering.
Item
16. Exhibits and Financial Statement Schedules.
|
(a)
|
||
|
2.01
|
Stock
Purchase Agreement by and among the Company, Transcraft Corporation and
Transcraft Investment Partners, L.P. dated as of March 3, 2006
(12)
|
|
|
3.01
|
Certificate
of Incorporation of the Company (1)
|
|
|
3.02
|
Certificate
of Designations of Series D Junior Participating Preferred Stock
(10)
|
|
|
3.03
|
Certificates
of Designations, Preferences and Rights of Series E Redeemable Preferred
Stock (19)
|
|
|
3.04
|
Certificates
of Designations, Preferences and Rights of Series F Redeemable Preferred
Stock (19)
|
|
|
3.05
|
Certificates
of Designations, Preferences and Rights of Series G Redeemable Preferred
Stock (19)
|
|
|
3.06
|
Amended
and Restated By-laws of the Company, as amended (19)
|
|
|
4.01
|
Specimen
Stock Certificate (2)
|
|
|
4.02
|
Rights
Agreement between the Company and National City Bank as Rights Agent dated
December 28, 2005 (11)
|
|
|
4.02
|
Amendment
dated July 17, 2009 to the Rights Agreement, dated as of December 28,
2005, between the Company and National City Bank, as Rights Agent
(18)
|
|
|
5.01
|
Opinion
of Hogan & Hartson LLP (20)
|
|
|
10.01#
|
1992
Stock Option Plan (1)
|
|
|
10.02#
|
2000
Stock Option Plan (3)
|
|
|
10.03#
|
Executive
Employment Agreement dated June 28, 2002 between the Company and Richard
J. Giromini (4)
|
|
|
10.04#
|
Non-qualified
Stock Option Agreement dated July 15, 2002 between the Company and Richard
J. Giromini (4)
|
|
|
10.05#
|
Non-qualified
Stock Option Agreement between the Company and William P. Greubel
(4)
|
|
|
10.06
|
Asset
Purchase Agreement dated July 22, 2003 (5)
|
|
|
10.07
|
Amendment
No. 1 to the Asset Purchase Agreement dated September 19, 2003
(5)
|
|
|
10.08#
|
2004
Stock Incentive Plan (6)
|
|
|
10.09#
|
Form
of Associate Stock Option Agreements under the 2004 Stock Incentive Plan
(7)
|
|
|
10.10#
|
Form
of Associate Restricted Stock Agreements under the 2004 Stock Incentive
Plan (7)
|
|
|
10.11#
|
Form
of Executive Stock Option Agreements under the 2004 Stock Incentive Plan
(7)
|
|
|
10.12#
|
Form
of Executive Restricted Stock Agreements under the 2004 Stock Incentive
Plan (7)
|
|
|
10.13#
|
Restricted
Stock Unit Agreement between the Company and William P. Greubel dated
March 7, 2005 (8)
|
|
|
10.14#
|
Stock
Option Agreement between the Company and William P. Greubel dated March 7,
2005 (8)
|
|
|
10.15#
|
Corporate
Plan for Retirement – Executive Plan
(9)
|
II-3
|
10.16#
|
Change
in Control Policy (15)
|
|
|
10.17#
|
Executive
Severance Policy (15)
|
|
|
10.18#
|
Form
of Restricted Stock Unit Agreement under the 2004 Stock Incentive Plan
(13)
|
|
|
10.19#
|
Form
of Restricted Stock Agreement under the 2004 Stock Incentive Plan
(13)
|
|
|
10.20#
|
Form
of CEO and President Restricted Stock Agreement under the 2004 Stock
Incentive Plan (13)
|
|
|
10.21#
|
Form
of Stock Option Agreement under the 2004 Stock Incentive Plan
(13)
|
|
|
10.22#
|
Form
of CEO and President Stock Option Agreement under the 2004 Stock Incentive
Plan (13)
|
|
|
10.23#
|
Executive
Director Agreement dated January 1, 2007 between the Company and William
P. Greubel (14)
|
|
|
10.24#
|
Amendment
to Executive Employment Agreement dated January 1, 2007 between the
Company and Richard J. Giromini (14)
|
|
|
10.25#
|
Form
of Non-Qualified Stock Option Agreement under the 2007 Omnibus Incentive
Plan (15)
|
|
|
10.26#
|
Form
of Restricted Stock Agreement under the 2007 Omnibus Incentive Plan
(15)
|
|
|
10.27
|
Third
Amended and Restated Loan and Security Agreement, by and among the Company
and certain of its subsidiaries identified on the signature page thereto,
Bank of America, N.A., as a Lender and as Agent, and other Lender parties
thereto (18)
|
|
|
10.28#
|
2007
Omnibus Incentive Plan, as amended (16)
|
|
|
10.29
|
Securities
Purchase Agreement dated as of July 17, 2009, by and between the Company
and Trailer Investments, LLC, including Exhibits thereto
(18)
|
|
|
10.30
|
Investor
Rights Agreement dated as of August 3, 2009 by and between the Company and
Trailer Investments, LLC (19)
|
|
|
10.31
|
Warrant
to Purchase Shares of Common Stock issued on August 3, 2009
(19)
|
|
|
10.32#
|
Form
of Indemnification Agreement (19)
|
|
|
21.01
|
List
of Significant Subsidiaries (17)
|
|
|
23.01
|
Consent
of Ernst & Young LLP (21)
|
|
|
23.02
|
Consent
of Hogan & Hartson (Included in Exhibit 5.01)
|
|
|
24.01
|
|
Power
of Attorney (20)
|
|
#
|
Management
contract or compensatory plan.
|
|
|
(1)
|
Incorporated
by reference to the Registrant's Registration Statement on Form S-1 (No.
33-42810) or the Registrant’s Registration Statement on Form 8-A filed
December 6, 1995 (Item 3.02 and 4.02)
|
|
|
(2)
|
Incorporated
by reference to the Registrant’s registration statement Form S-3
(Registration No. 333-27317) filed on May 16, 1997
|
|
|
(3)
|
Incorporated
by reference to the Registrant’s Form 10-Q for the quarter ended March 31,
2001 (File No. 1-10883)
|
|
|
(4)
|
Incorporated
by reference to the Registrant’s Form 10-Q for the quarter ended June 30,
2002 (File No. 1-10883)
|
|
|
(5)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on September 29, 2003
(File No. 1-10883)
|
|
|
(6)
|
Incorporated
by reference to the Registrant’s Form 10-Q for the quarter ended June 30,
2004 (File No. 1-10883)
|
|
|
(7)
|
Incorporated
by reference to the Registrant’s Form 10-Q for the quarter ended September
30, 2004 (File No. 1-10883)
|
|
|
(8)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on March 11, 2005 (File
No. 1-10883)
|
|
|
(9)
|
Incorporated
by reference to the Registrant’s Form 10-Q for the quarter ended March 31,
2005 (File No. 1-10883)
|
|
|
(10)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on December 28, 2005 (File
No. 1-10883)
|
|
|
(11)
|
Incorporated
by reference to the Registrant’s registration statement on Form 8-A12B
filed on December 28, 2005 (File No. 1-10883)
|
|
|
(12)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on March 8, 2006 (File No.
1-10883)
|
|
|
(13)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on May 18, 2006 (File No.
1-10883)
|
|
|
(14)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on January 8, 2007 (File
No. 1-10883)
|
|
|
(15)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on May 24, 2007 (File No.
1-10883)
|
|
|
(16)
|
Incorporated
by reference to the Registrant’s Form 10-K for the year ended December 31,
2007 (File No. 1-10883)
|
|
|
(17)
|
Incorporated
by reference to the Registrant’s Form 10-K for the year ended December 31,
2008 (File No. 1-10883)
|
|
|
(18)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on July 20, 2009 (File No.
1-10883)
|
|
|
(19)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on August 4, 2009 (File
No. 1-10883)
|
|
|
(20)
|
|
Previously
filed
|
| (21) | Filed herewith |
|
(b)
|
Financial
statement schedules.
|
The
financial statement schedules have been omitted as they are not applicable or
the required information is included in the notes to the financial
statements.
Item 17.
Undertakings.
(a) The
undersigned registrant hereby undertakes:
II-4
(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 20 percent 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;
(2) That, for the purpose of
determining any liability under the Securities Act of 1933, 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.
(5) That, for the purpose of
determining liability under the Securities Act to any purchaser, each prospectus
filed pursuant to Rule 424(b) as part of a registration statement relating to an
offering, other than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and
included in the registration statement as of the date it is first used after
effectiveness. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of first
use.
(h) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of our company pursuant
to the foregoing provisions, or otherwise, our company has been advised that in
the opinion of the Securities and Exchange Commission that type of
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against said liabilities (other than the payment by our company of expenses
incurred or paid by a director, officer or controlling person of our company in
the successful defense of any action, suit or proceeding) is asserted by the
director, officer or controlling person in connection with the securities being
registered, our company will, unless in the opinion of our 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 the issue.
II-5
SIGNATURES
Pursuant to the requirements of the
Securities Act, Wabash National Corporation has duly caused this Post-Effective
Amendment No. 1 to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Lafayette, Indiana on
March 30, 2010.
|
WABASH
NATIONAL CORPORATION
|
||
|
By:
|
/s/
Richard J. Giromini
|
|
|
Richard
J. Giromini
President
and Chief Executive
Officer
|
||
Pursuant to the requirements of the
Securities Act, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
|
Signature
|
Title
|
Date
|
||
|
President,
Chief Executive Officer and
|
March
30, 2010
|
|||
|
/s/ Richard J. Giromini
|
Director
(principal executive
officer)
|
|||
|
Richard
J. Giromini
|
||||
|
Senior
Vice President— Chief Financial
|
March
30, 2010
|
|||
|
Officer
(principal financial and
accounting
|
||||
|
/s/ Mark J. Weber
|
officer)
|
|||
|
Mark
J. Weber
|
||||
|
*
|
Director
|
March
30, 2010
|
||
|
Martin
C. Jischke
|
||||
|
*
|
Director
|
March
30, 2010
|
||
|
James
D. Kelly
|
||||
|
*
|
Director
|
March
30, 2010
|
||
|
Stephanie
K. Kushner
|
||||
|
*
|
Director
|
March
30, 2010
|
||
|
Larry
J. Magee
|
||||
|
*
|
Director
|
March
30, 2010
|
||
|
Scott
K. Sorensen
|
||||
|
*
|
Director
|
March
30, 2010
|
||
|
Ronald
L. Stewart
|
||||
|
*
|
Director
|
March
30, 2010
|
||
|
Thomas
J. Maloney
|
||||
|
*
|
Director
|
March
30, 2010
|
||
|
Michael
J. Lyons
|
||||
|
*
|
Director
|
March
30, 2010
|
||
|
Vineet
Pruthi
|
|
*
|
Director
|
March
30, 2010
|
||
|
James
G. Binch
|
||||
|
*
|
Director
|
March
30, 2010
|
||
|
Andrew
C. Boynton
|
|
|
|
* By:
|
/s/ Mark J.
Weber
|
|
Attorney-in-Fact
|
EXHIBIT
INDEX
|
2.01
|
Stock
Purchase Agreement by and among the Company, Transcraft Corporation and
Transcraft Investment Partners, L.P. dated as of March 3, 2006
(12)
|
|
|
3.01
|
Certificate
of Incorporation of the Company (1)
|
|
|
3.02
|
Certificate
of Designations of Series D Junior Participating Preferred Stock
(10)
|
|
|
3.03
|
Certificates
of Designations, Preferences and Rights of Series E Redeemable Preferred
Stock (19)
|
|
|
3.04
|
Certificates
of Designations, Preferences and Rights of Series F Redeemable Preferred
Stock (19)
|
|
|
3.05
|
Certificates
of Designations, Preferences and Rights of Series G Redeemable Preferred
Stock (19)
|
|
|
3.06
|
Amended
and Restated By-laws of the Company, as amended (19)
|
|
|
4.01
|
Specimen
Stock Certificate (2)
|
|
|
4.02
|
Rights
Agreement between the Company and National City Bank as Rights Agent dated
December 28, 2005 (11)
|
|
|
4.02
|
Amendment
dated July 17, 2009 to the Rights Agreement, dated as of December 28,
2005, between the Company and National City Bank, as Rights Agent
(18)
|
|
|
5.01
|
Opinion
of Hogan & Hartson LLP (20)
|
|
|
10.01#
|
1992
Stock Option Plan (1)
|
|
|
10.02#
|
2000
Stock Option Plan (3)
|
|
|
10.03#
|
Executive
Employment Agreement dated June 28, 2002 between the Company and Richard
J. Giromini (4)
|
|
|
10.04#
|
Non-qualified
Stock Option Agreement dated July 15, 2002 between the Company and Richard
J. Giromini (4)
|
|
|
10.05#
|
Non-qualified
Stock Option Agreement between the Company and William P. Greubel
(4)
|
|
|
10.06
|
Asset
Purchase Agreement dated July 22, 2003 (5)
|
|
|
10.07
|
Amendment
No. 1 to the Asset Purchase Agreement dated September 19, 2003
(5)
|
|
|
10.08#
|
2004
Stock Incentive Plan (6)
|
|
|
10.09#
|
Form
of Associate Stock Option Agreements under the 2004 Stock Incentive Plan
(7)
|
|
|
10.10#
|
Form
of Associate Restricted Stock Agreements under the 2004 Stock Incentive
Plan (7)
|
|
|
10.11#
|
Form
of Executive Stock Option Agreements under the 2004 Stock Incentive Plan
(7)
|
|
|
10.12#
|
Form
of Executive Restricted Stock Agreements under the 2004 Stock Incentive
Plan (7)
|
|
|
10.13#
|
Restricted
Stock Unit Agreement between the Company and William P. Greubel dated
March 7, 2005 (8)
|
|
|
10.14#
|
Stock
Option Agreement between the Company and William P. Greubel dated March 7,
2005 (8)
|
|
|
10.15#
|
Corporate
Plan for Retirement – Executive Plan (9)
|
|
|
10.16#
|
Change
in Control Policy (15)
|
|
|
10.17#
|
Executive
Severance Policy (15)
|
|
|
10.18#
|
Form
of Restricted Stock Unit Agreement under the 2004 Stock Incentive Plan
(13)
|
|
|
10.19#
|
Form
of Restricted Stock Agreement under the 2004 Stock Incentive Plan
(13)
|
|
|
10.20#
|
Form
of CEO and President Restricted Stock Agreement under the 2004 Stock
Incentive Plan (13)
|
|
|
10.21#
|
Form
of Stock Option Agreement under the 2004 Stock Incentive Plan
(13)
|
|
|
10.22#
|
Form
of CEO and President Stock Option Agreement under the 2004 Stock Incentive
Plan (13)
|
|
|
10.23#
|
Executive
Director Agreement dated January 1, 2007 between the Company and William
P. Greubel (14)
|
|
|
10.24#
|
Amendment
to Executive Employment Agreement dated January 1, 2007 between the
Company and Richard J. Giromini (14)
|
|
|
10.25#
|
Form
of Non-Qualified Stock Option Agreement under the 2007 Omnibus Incentive
Plan (15)
|
|
|
10.26#
|
Form
of Restricted Stock Agreement under the 2007 Omnibus Incentive Plan
(15)
|
|
|
10.27
|
Third
Amended and Restated Loan and Security Agreement, by and among the Company
and certain of its subsidiaries identified on the signature page thereto,
Bank of America, N.A., as a Lender and as Agent, and other Lender parties
thereto (18)
|
|
|
10.28#
|
2007
Omnibus Incentive Plan, as amended (16)
|
|
|
10.29
|
Securities
Purchase Agreement dated as of July 17, 2009, by and between the Company
and Trailer Investments, LLC, including Exhibits thereto
(18)
|
|
|
10.30
|
Investor
Rights Agreement dated as of August 3, 2009 by and between the Company and
Trailer Investments, LLC (19)
|
|
|
10.31
|
Warrant
to Purchase Shares of Common Stock issued on August 3, 2009
(19)
|
|
|
10.32#
|
Form
of Indemnification Agreement
(19)
|
|
21.01
|
List
of Significant Subsidiaries (17)
|
|
|
23.01
|
Consent
of Ernst & Young LLP (21)
|
|
|
23.02
|
Consent
of Hogan & Hartson (Included in Exhibit 5.01)
|
|
|
24.01
|
|
Power
of Attorney (20)
|
|
#
|
Management
contract or compensatory plan.
|
|
|
(1)
|
Incorporated
by reference to the Registrant's Registration Statement on Form S-1 (No.
33-42810) or the Registrant’s Registration Statement on Form 8-A filed
December 6, 1995 (Item 3.02 and 4.02)
|
|
|
(2)
|
Incorporated
by reference to the Registrant’s registration statement Form S-3
(Registration No. 333-27317) filed on May 16, 1997
|
|
|
(3)
|
Incorporated
by reference to the Registrant’s Form 10-Q for the quarter ended March 31,
2001 (File No. 1-10883)
|
|
|
(4)
|
Incorporated
by reference to the Registrant’s Form 10-Q for the quarter ended June 30,
2002 (File No. 1-10883)
|
|
|
(5)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on September 29, 2003
(File No. 1-10883)
|
|
|
(6)
|
Incorporated
by reference to the Registrant’s Form 10-Q for the quarter ended June 30,
2004 (File No. 1-10883)
|
|
|
(7)
|
Incorporated
by reference to the Registrant’s Form 10-Q for the quarter ended September
30, 2004 (File No. 1-10883)
|
|
|
(8)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on March 11, 2005 (File
No. 1-10883)
|
|
|
(9)
|
Incorporated
by reference to the Registrant’s Form 10-Q for the quarter ended March 31,
2005 (File No. 1-10883)
|
|
|
(10)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on December 28, 2005 (File
No. 1-10883)
|
|
|
(11)
|
Incorporated
by reference to the Registrant’s registration statement on Form 8-A12B
filed on December 28, 2005 (File No. 1-10883)
|
|
|
(12)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on March 8, 2006 (File No.
1-10883)
|
|
|
(13)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on May 18, 2006 (File No.
1-10883)
|
|
|
(14)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on January 8, 2007 (File
No. 1-10883)
|
|
|
(15)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on May 24, 2007 (File No.
1-10883)
|
|
|
(16)
|
Incorporated
by reference to the Registrant’s Form 10-K for the year ended December 31,
2007 (File No. 1-10883)
|
|
|
(17)
|
Incorporated
by reference to the Registrant’s Form 10-K for the year ended December 31,
2008 (File No. 1-10883)
|
|
|
(18)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on July 20, 2009 (File No.
1-10883)
|
|
|
(19)
|
Incorporated
by reference to the Registrant’s Form 8-K filed on August 4, 2009 (File
No. 1-10883)
|
|
|
(20)
|
|
Previously
Filed
|
| (21) | Filed herewith |