As filed with the Securities and Exchange Commission on October 1, 2003
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WABASH NATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 52-1375208
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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)
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MARK R. HOLDEN
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL 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)
Copies to:
MICHAEL J. SILVER
AMY BOWERMAN FREED
HOGAN & HARTSON L.L.P.
111 S. CALVERT STREET, SUITE 1600
BALTIMORE, MARYLAND 21202
(410) 659-2700
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this Registration Statement becomes effective.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than the securities offered only in connection
with dividend or interest reinvestment plans, check the following box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
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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. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered registered offering price per unit aggregate offering price Registration Fee
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3.25% Convertible Senior Notes
due August 1, 2008 $125,000,000 100%(1) $125,000,000(1) $10,112.50
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Common Stock, $.01 par value(2) 6,510,416 shares (3) -- (3) --(3) --(4)
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(1) Equals the aggregate principle amount at maturity of the 3.25%
Convertible Senior Notes due August 1, 2008.
(2) Includes rights to purchase Series A Junior Participating Preferred
Share stock attached thereto, for which no separate fee is payable
pursuant to Rule 457(i).
(3) The number of shares of common stock registered hereunder is based upon
the number of shares that are issuable upon conversion of the notes at
the initial conversion price of $19.20 per share, which is equal to a
conversion rate of approximately 52.0833 shares of common stock per
$1,000 principal amount of notes. Pursuant to Rule 416 under the
Securities Act, the number of shares of common stock registered hereby
shall include an indeterminate number of shares of common stock that
may be issued in connection with a stock split, stock dividend,
recapitalization or similar event.
(4) No additional consideration will be received for the common stock, and,
therefore, no registration fee is required pursuant to Rule 457(i).
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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.
INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT
SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SEC IS
EFFECTIVE. THIS 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 OCTOBER 1, 2003
PROSPECTUS
$125,000,000
WABASH NATIONAL CORPORATION
3.25% Convertible Senior Notes
Due August 1, 2008
and
6,510,416 Shares of Common Stock
Issuable Upon Conversion of the Notes
Holders of our 3.25% Convertible Senior Notes due August 1, 2008 named
herein, and their transferees, donees, pledges and successors, may offer for
sale the notes and the shares of our common stock into which the notes are
convertible at any time at market prices prevailing at the time of sale or at
privately negotiated prices. The selling holders may sell the notes or the
common stock directly to purchasers or through underwriters, broker-dealers or
agents, who may receive compensation in the form of discounts, concessions or
commissions.
The notes are convertible, at the option of the holder, subject to
certain contingencies, into shares of our common stock. The notes are
convertible at a conversion price of $19.20 per share, which is equal to a
conversion rate of approximately 52.0833 shares of common stock per $1,000
principal amount of notes, subject to adjustment.
We will pay interest on the notes on August 1 and February 1 of each
year, beginning on February 1, 2004, and at maturity. The notes will mature on
August 1, 2008.
The notes are our unsecured and unsubordinated obligations and rank on
a parity (except as described below) in right of payment with all our existing
and future unsecured and unsubordinated indebtedness. In addition, the notes
effectively rank junior to any secured indebtedness we currently have and may
incur in the future to the extent of the value of the assets securing such debt
and effectively junior to our subsidiaries' liabilities.
Our common stock currently trades on the New York Stock Exchange under
the symbol "WNC." The last reported sale price on September 30, 2003 was $15.95
per share.
The notes are currently traded in The Portal Market, a subsidiary of
the Nasdaq Stock Market, Inc.
Investing in our common stock or the notes involves a high degree of
risk. Please carefully consider the "Risk Factors" beginning on page 10 of this
prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 2003.
In connection with this offering, no person is authorized to give any
information or to make any representations not contained in this prospectus. If
information is given or representations are made, you may not rely on that
information or representations as having been authorized by us. This prospectus
is neither an offer to sell nor a solicitation of an offer to buy any securities
other than those registered by this prospectus, nor is it an offer to sell or a
solicitation of an offer to buy securities where an offer or solicitation would
be unlawful. You may not imply from the delivery of this prospectus, nor from
any sale made under this prospectus, that our affairs are unchanged since the
date of this prospectus or that the information contained in this prospectus is
correct as of any time after the date of this prospectus.
TABLE OF CONTENTS
Page
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ABOUT THIS PROSPECTUS.......................................... ii
FORWARD LOOKING STATEMENTS..................................... ii
INCORPORATION BY REFERENCE..................................... iii
SUMMARY........................................................ 1
RISK FACTORS................................................... 10
RATIO OF EARNINGS TO FIXED CHARGES............................. 16
USE OF PROCEEDS................................................ 17
SELLING HOLDERS................................................ 18
PLAN OF DISTRIBUTION........................................... 19
DESCRIPTION OF THE NOTES....................................... 21
DESCRIPTION OF CAPITAL STOCK................................... 32
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS....... 36
LEGAL MATTERS.................................................. 39
EXPERTS........................................................ 39
ADDITIONAL INFORMATION......................................... 39
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission ("SEC") using a "shelf" registration or
continuous offering process. Under this shelf registration process, selling
holders may from time to time sell the securities described in this prospectus
in one or more offerings.
This prospectus provides you with a general description of the notes
and common stock that the selling holders may offer. A selling holder may be
required to provide you with a prospectus supplement containing specific
information about the selling holder. That prospectus supplement may include
additional risk factors or other special considerations. A prospectus supplement
may also add, update or change information in this prospectus. If there is any
inconsistency between the information in this prospectus and any prospectus
supplement, you should rely on the information in that prospectus supplement.
You should read both this prospectus and any prospectus supplement together with
the additional information described under the heading "Additional Information."
When used in this prospectus, the terms "Wabash," "we," "our" and "us"
refer to Wabash National Corporation and its consolidated subsidiaries, unless
otherwise specified.
FORWARD LOOKING STATEMENTS
This prospectus contains and incorporates by reference "forward-looking
statements" within the meaning of Section 27A of 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.
All statements other than statements of historical fact are "forward-looking
statements" for purposes of federal and state securities laws, including
statements regarding:
- our business plans;
- the estimated net proceeds of this offering and the uses
thereof;
- our need for, and the availability of our existing
indebtedness;
- completion of contemplated asset dispositions;
- our expected revenues, income or loss and capital
expenditures;
- plans for future operations;
- financing needs, plans and liquidity;
- our ability to achieve sustained profitability;
- reliance on certain customers and corporate partnerships;
- shortages of raw materials, availability of capital;
- dependence on industry trends;
- the outcome of any pending litigation;
- export sales and new markets;
- acceptance of new technology and products; and
- government regulation, as well as assumptions relating to the
foregoing.
Although we believe that the expectations expressed in our
forward-looking statements are reasonable, actual results could differ
materially from those projected or assumed in our forward-looking statements.
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. Each
forward-looking statement contained or incorporated by reference in this
prospectus reflects our 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
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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.
Currently known risk factors that could cause actual results to differ
materially from our expectations include, but are not limited to, the factors
described in the section of this prospectus entitled "Risk Factors" beginning on
page 10. We urge you to carefully review that section for a more complete
discussion of the risks of an investment in the notes and our common stock.
INDUSTRY AND OTHER INFORMATION
Unless we indicate otherwise, we base the information concerning the
transportation equipment industry contained in this prospectus on our general
knowledge of and expectations concerning the industry, our market positions and
market shares, which are based on estimates prepared by us using data from
various industry sources, and on assumptions we made based on such data and our
knowledge of the transportation equipment industry. We have not independently
verified data from industry sources and cannot guarantee its accuracy or
completeness. In addition, we believe that data regarding the transportation
equipment industry and our market positions within such industry provide general
guidance but are inherently imprecise. Further, our estimates involve risks and
uncertainties and are subject to change based on various factors, including
those discussed in the "Risk Factors" section beginning on page 10 of this
prospectus.
INCORPORATION BY REFERENCE
We are incorporating information included in reports and other filing
we have made with the SEC by reference, which means that we are disclosing
important information to you by referring to those publicly filed documents
containing the information. The information that we incorporate by reference is
considered to be part of this prospectus, and future information that we file
with the SEC after the date of this prospectus and before the termination of the
offering will automatically update and supersede the information in this
prospectus. We incorporate by reference the documents that we have filed with
the SEC that we list below; provided, however, that we are not incorporating any
information furnished under either Item 9 or Item 12 of any Current Report on
Form 8-K:
- Annual Report on Form 10-K for the fiscal year ended December
31, 2002 (filed April 15, 2003);
- Quarterly Reports on Form 10-Q for the quarters ended March
31, 2003 (filed May 13, 2003) and June 30, 2003 (filed August
14, 2003);
- Current Reports on Form 8-K filed on July 29 and 31, and
September 29, 2003;
- Definitive Proxy Statement, dated April 29, 2003, with respect
to our 2003 Annual Meeting of Stockholders held on June 2,
2003;
- The description of our common stock contained in our Form 8-A
filed on October 4, 1991, including any amendments or reports
filed to update such information; and
- All documents filed by us pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this prospectus
and before the termination of the offering.
We will furnish without charge to each person to whom this prospectus
is delivered, upon written or oral request of such person, a copy of any and all
of the information that has been incorporated by reference in this prospectus
(not including exhibits to the information that is incorporated by reference
unless such exhibits are specifically incorporated by reference into the
information that this Prospectus incorporates). You should direct any requests
for copies to Wabash National Corporation, 1000 Sagamore Parkway South,
Lafayette, Indiana 47905, Attention: Secretary, or by telephone to our Secretary
at (765) 771-5300.
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SUMMARY
This summary contains basic information about us. It does not contain
all of the information that is important to your investment decision. You should
read the following summary together with the more detailed information contained
elsewhere in this prospectus or incorporated by reference into this prospectus
as described above under "Incorporation by Reference." To fully understand this
offering, you should read all of that information. Information in this
prospectus assumes that the initial purchasers will not exercise their option,
unless we specify otherwise.
Wabash National Corporation is a Delaware corporation incorporated in
1991 and is the successor by merger to a Maryland corporation organized in 1985.
Our principal executive offices are located at 1000 Sagamore Parkway South,
Lafayette, Indiana 47905 and our telephone number at that address is (765)
771-5300. Our website is located at www.wabashnational.com. The information on
our website is not part of this prospectus.
OVERVIEW
We are one of North America's leaders in designing, manufacturing and
marketing standard and customized truck trailers and related transportation
equipment. Founded in 1985 as a start-up, we grew to over $1.4 billion in
revenues in 1999, and had over $800 million in revenues in 2002. We believe our
success has been the result of our longstanding relationships with our customer
partners, innovative product development, broad product line, large distribution
and service network and corporate culture. Our management team is focusing on
becoming the low cost producer in the truck trailer industry through continuous
improvement and lean manufacturing initiatives.
We seek to identify and produce proprietary products that offer added
value to customers with the potential to generate higher profit margins than
those of standardized products. We believe that we have the engineering and
manufacturing capability to produce these products efficiently. Our proprietary
DuraPlate(R) composite truck trailer, which we introduced in 1996, has achieved
widespread acceptance by our customers. In 2002, sales of our DuraPlate(R)
trailers represented approximately 80% of our total trailers shipped. We are
also a competitive producer of standardized products, and are seeking to become
a low-cost producer within our industry. We expect to continue a program of
product development and selective acquisitions of quality proprietary products
that further differentiate us from our competitors and increase profit
opportunities.
We market our transportation equipment under the Wabash(R) and
DuraPlate(R) trademarks directly to customers, through independent dealers and
through our factory-owned retail branch network. Our factory-direct marketing
effort focuses on our longstanding core customers that represent many of the
largest companies in the trucking industry, including Schneider National, Inc.,
J.B. Hunt Transport Services, Inc., Swift Transportation Corporation, Werner
Enterprises, Inc. and Yellow Services, Inc. Our relationships with our core
customers, whom we refer to as partners, have been central to our growth since
inception. Our factory-owned retail branch network, which we acquired in 1997,
provides additional opportunities to distribute our products and also offers
national service and support capabilities for our customers. The retail sale of
new and used trailers, aftermarket parts and maintenance service through our
retail branch network generally provides enhanced margin opportunities.
CORE STRENGTHS
- LONG TERM CORE CUSTOMER RELATIONSHIPS -- With longstanding
customer partnerships, we are the exclusive provider of
trailers to a significant number of top tier trucking
companies, generating a revenue base that has helped to
sustain us as one of the market leaders.
- INNOVATIVE PRODUCT OFFERINGS -- Our DuraPlate(R) proprietary
technology provides superior trailers to our customer and
commands premium pricing. A DuraPlate(R) trailer is a
composite plate trailer constructed with material containing a
high density polyethylene core with a steel skin. We believe
that the competitive advantages of our DuraPlate(R) trailers
over standard trailers include the following:
-- operate 3 to 5 years longer;
-- less costly to maintain;
-- lighter weight; and
-- higher trade-in values.
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We have also successfully introduced innovations in our refrigerated
trailers and other product lines.
- LEADING MARKET SHARE AND BRAND RECOGNITION -- We have been the
largest manufacturer of trailers in North America in each of
the last nine years, with one of the most widely recognized
brands in the industry.
- PARTICIPATION IN FUNDAMENTAL INDUSTRY -- Approximately 80% of
all freight in the United States is carried by truck at some
point during its shipment, generating 67% of freight industry
revenues in the United States.
- EXTENSIVE DISTRIBUTION NETWORK -- Thirty-four factory-owned
retail branch locations extend our sales network throughout
North America, diversifying our factory direct sales and
supporting our national service contracts.
- CORPORATE CULTURE -- We benefit from a value driven management
team and dedicated union-free workforce.
- COMMITTED FOCUS ON OPERATIONAL EXCELLENCE -- Safety, quality,
on-time delivery, productivity and cost reduction are the core
elements of our program of continuous improvement.
TURNAROUND INITIATIVES
A three year industry downturn from 2000 through 2002, and its effects
on our results, led us to implement a comprehensive plan to scale our operations
to meet reduced demand, reduce our cost structure, and take aggressive actions
to position us for the future. Among other things, over the past twenty-four
months we have taken the following steps:
- changed senior management;
- rationalized our manufacturing capacity through the closure of
two facilities;
- reduced our cost structure through continuous improvement
initiatives;
- reorganized and rationalized our branch network resulting in
the closure of retail branch locations and the winding down
of operations at our Lafayette Modification Center;
- reduced used trailer inventories from approximately $110
million, or 11,500 units, as of September 30, 2000 to less
than $25 million, or 4,300 units, as of June 30, 2003;
- significantly reduced our exposure to used trailer trade-in
commitments;
- divested our European operations;
- reduced total debt from $460 million, including $48 million of
off balance sheet debt, at December 31, 2001 to $338 million,
including $17 million of off balance sheet debt, at June 30,
2003;
- improved our working capital management; and
- completed the refinancings and asset divestitures described in
the current developments section of this prospectus.
After two years of below replacement demand in the trailer industry, we
believe we have positioned ourselves to capitalize on any increased demand that
has been forecasted by market and industry analysts. As a result of our
turnaround initiatives, we achieved gross profit margins of 10% in the first
quarter of 2003 as compared to gross profit margins of 0% in the first quarter
of 2002.
STRATEGY
We are committed to an operating strategy that seeks to deliver
profitability throughout industry cycles. We intend to achieve our goals by
executing on the core elements of our strategic plan:
- continue our transition from an organization focused on
revenue to one focused on earnings and cash flow;
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- continue to provide differentiated products that generate
enhanced profit margins;
- continue to reduce our cost structure by adhering to
continuous improvement and lean manufacturing initiatives;
- continue to focus on our longstanding customer partnerships
and create new revenue opportunities by offering tailored
transportation solutions;
- divest non-core assets; and
- delever the balance sheet to enhance financial flexibility and
enable us to capitalize on future market opportunities.
PRODUCTS
Since our inception, we have expanded our product offerings from a
single truck trailer product to a broad line of trailer related transportation
equipment. We specialize in the development of innovative proprietary products
for our key markets. Our current transportation equipment products include the
following:
- DuraPlate(R) Trailers. DuraPlate(R) trailers utilize a
proprietary technology that consists of a composite plate wall
for increased durability and greater strength. Our
DuraPlate(R) trailers include our newly introduced
DuraPlate(R) HD, a heavy duty version of our regular
DuraPlate(R) trailers.
- DuraPlate(R) Domestic Containers. DuraPlate(R) domestic
containers utilize a proprietary technology and consist of
stackable containers, carried either on flat cars or stacked
two-high on special "Double-Stack" railcars.
- Smooth Aluminum Trailers. Smooth aluminum trailers, commonly
known as "sheet and post" trailers, are the standard trailer
product purchased by the trucking industry. In 2002, we
introduced our new FreightPro(R) trailer to increase our focus
on sheet and post trailers, which is the largest segment of
the trailer market.
- Refrigerated Trailers. Refrigerated trailers have insulating
foam in the sidewalls and roof, which improves both the
insulation capabilities and durability of the trailers. Our
refrigerated trailers use our proprietary SolarGuard(R)
technology, which enables customers to achieve lower costs
through reduced fuel consumption and reduced operating hours.
- Aluminum Plate Trailers. Aluminum plate trailers utilize
thicker and more durable sidewalls than standard trailers,
which reduces maintenance costs and extends the trailer's
life.
- Other. Our other transportation equipment includes container
chassis, soft-sided trailers and converter dollies.
CUSTOMERS
Our customer base includes many of the nation's largest truckload
common carriers, leasing companies, private fleet carriers, less-than-truckload
(LTL) common carriers, and package carriers. Our five largest customers
accounted for 30.3%, 34.4% and 30.5% of our aggregate net sales in 2002, 2001
and 2000, respectively. We have established relationships as a supplier to many
large customers in the transportation industry, including the following:
- Truckload Carriers: Schneider National, Inc.; J.B. Hunt
Transport Services, Inc.; Swift Transportation Corporation;
Werner Enterprises, Inc.; Heartland Express, Inc.; Crete
Carrier Corporation; USXpress Enterprises, Inc.; Knight
Transportation, Inc.; and Interstate Distributor Co.
- Leasing Companies: Transport International Pool; Penske Truck
Leasing; and Transport Services, Inc.
- Private Fleets: Safeway, Inc.; The Home Depot, Inc.; The
Kroger Company; and Sysco Corporation.
- Less-Than Truckload Carriers: Yellow Services, Inc.; Roadway
Express, Inc.; Old Dominion Freight Line, Inc.; GLS Leasco;
SAIA Motor Freightlines Inc.; and Vitran Express.
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BACKLOG
Orders that have been confirmed by the customer in writing and can be
produced during the next 18 months are included in our backlog. Orders that
comprise backlog may be subject to changes in quantities, delivery,
specifications and terms. Our backlog of orders was approximately $225 million
and $208 million at June 30, 2003 and December 31, 2002, respectively. We expect
to fill a majority of our existing backlog of orders within the next twelve
months.
INDUSTRY
Trucking was estimated to be a $470 billion industry in 2002,
accounting for approximately 67% of freight industry revenues in the United
States. Trailer demand is a direct function of the amount of freight to be
transported. As the economy improves, it is forecasted that truck carriers will
need to expand their fleets, which typically results in increased trailer
orders. According to ACT (America's Commercial Transportation), there are
approximately 2.8 million trailers in use today and the trailer replacement
demand is estimated at between 180,000 and 200,000 trailers per year.
In general, the trucking industry grew throughout the 1990's and peaked
in 1999. A number of factors, including an economic downturn, fluctuations in
fuel prices, declining asset values, limited capital, record trucking company
failures and industry consolidation led to a historic reduction of 54% in
trailer purchases from 1999 to 2002. Although the truckload market continues to
consolidate and failures reached an unprecedented number of approximately 3,000
per year from 2000 to 2002, it is believed that the top ten carriers still only
haul approximately 11% of the truckload market, according to the ENO Foundation.
New truck emission regulations became effective on October 1, 2002,
resulting in cleaner, yet less fuel-efficient and costlier engines. As a
consequence, many trucking firms accelerated purchases of tractors prior to the
effective date of the regulation, significantly reducing the historical trailer
to tractor ratio of 1.5 to 1, to less than 1 to 1 during parts of 2002,
according to ACT. We believe that a return to historical averages could result
in a significant increased demand in trailers. Additional emissions regulations
are to become effective in 2007 and may result in similar purchasing patterns
during 2006.
We believe that we have the largest market share in the trailer
industry in North America. Great Dane and Utility, along with us, are generally
viewed as the top three trailer manufacturers and have historically accounted
for approximately 50% of new trailer market share. During the severe industry
downturn in 2001 and 2002, a number of trailer manufacturers went out of
business, resulting in greater industry consolidation. Despite market
concentration, price competition is fierce and differentiation is primarily
through superior products, customer relationships, service availability and
cost.
The following table sets forth new North American trailer production
for us, our nine largest competitors and for the trailer industry as a whole:
2002 2001 2000 1999 1998 1997
---------- -------- ------- ------- ------- ---------
Wabash................. 27,149(1) 31,682 66,283 69,772 61,061 48,346(2)
Great Dane............. 26,000 21,650 46,698 58,454 50,513 37,237
Utility................ 17,574 16,334 28,780 30,989 26,862 23,084
Stoughton.............. 10,300 6,250 15,050 14,673 11,750 11,700
Manac.................. 6,900 5,865 8,052 8,200 * *
Strick................. 5,200 5,500 10,500 11,000 10,959 10,488
Hyundai................ 4,763 5,413 6,261 5,716 5,200 3,445
Trailmobile............ 4,664(3) 13,858 28,089 31,329 23,918 18,239
Transcraft(4).......... 3,703 3,018 4,005 5,311 5,317 4,509
Fontaine(4)............ 3,050 3,100 6,000 6,500 5,894 5,063
Total Industry......... 139,658 140,084 270,817 305,869 278,821 224,550
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(1) Does not include approximately 6,000 intermodal containers.
(2) Includes production of 1,467 units by Fruehauf in 1997 prior to the
acquisition by us of certain assets of Fruehauf.
(3) Includes Trailmobile Canada only. Trailmobile U.S. filed for bankruptcy
in 2001 and was subsequently liquidated.
-4-
(4) Transcraft and Fontaine both build primarily platform types of
trailers.
* Data not available.
Sources: Individual manufacturer information, some of which is estimated,
provided by Southern Motor Cargo Magazine (C)1999 (for 1997-1998 data) and
Trailer Body Builders Magazine (C)2002 (for 1999-2002 data). Industry totals
provided by Southern Motor Cargo Magazine (C)1999 (for 1997-1998 data) and
A.C.T. Research Company, L.L.C. (for 1999-2002 data).
REGULATION
Truck trailer length, height, width, maximum weight capacity and other
specifications are regulated by individual states. The Federal government also
regulates certain safety features incorporated in the design of truck trailers,
including regulations that require anti-lock braking systems and that define
rear impact guard standards. Changes in both state and federal regulation of the
size, safety features and configuration of truck trailers have led to
fluctuations in demand for trailers from time to time. Manufacturing operations
are subject to environmental laws enforced by federal, state and local agencies.
RECENT DEVELOPMENTS
REFINANCING ACTIVITIES
In the third quarter of 2003, we raised capital from institutional
investors through the sale of our unsecured 3.25% Convertible Senior Notes due
August 1, 2008 notes and we entered into a three year, $222 million bank
financing package led by Fleet Capital Corporation as Administrative Agent,
National City Bank as Syndication Agent and Wachovia Bank and GE Capital as
Co-Documentation Agents. Merrill Lynch, LaSalle Bank, Fifth Third Bank and
Washington Mutual also participated in the bank financing. Also, we sold certain
non-core assets and used the proceeds to reduce indebtedness.
NOTE OFFERING
On August 1, 2003, we completed the sale of $125 million of our
unsecured 3.25% Convertible Senior Notes due August 1, 2008 in a Rule 144A
offering. The sale was made to several institutional investors through Merrill
Lynch & Co. and BB&T Capital Markets as initial purchasers. We used the net
proceeds from this offering to repay a portion of our outstanding indebtedness.
These are the notes that are being offered by the selling holders named in this
prospectus.
BANK FINANCING
On September 23, 2003, we entered into a $222 million three-year
asset-based loan arrangement that includes a $47 million term loan and a $175
million revolving facility. The new financing replaced existing indebtedness and
is expected to substantially lower our cost of debt.
The term loan is secured by our property, plant and equipment. The
revolver is secured by inventory and accounts receivable and the amount
available to borrow varies in relation to the balances of those accounts.
Interest on the term loan is variable, based on the London Interbank
Offer Rate (LIBOR) plus 300 basis points, decreasing to 275 basis points after
six months. Interest on the revolver is at LIBOR plus 275 basis points,
decreasing to 250 basis points after six months. We pay a commitment fee on the
unused portion of the facility at a rate of 37.5 basis points per annum.
Additionally, we estimate that fees associated with the transaction will amount
to approximately $3.5 million, which will be amortized over the term of the
loan.
The term loan requires quarterly principal payments of $1.7 million
commencing on January 1, 2004, with the balance due on September 23, 2006. The
revolving facility is due on September 23, 2006. Beginning in March 2005, excess
cash flow, as defined in the agreement, is required to be used to reduce term
loan indebtedness.
The loan agreement contains covenants that require, among other things,
minimum fixed charge coverage and maximum senior debt to EBITDA coverage. The
agreement also place limits on capital expenditure and additional borrowings.
In connection with the refinancing of most of our existing debt through
our note offering and the new bank financing we will recognize a debt
extinguishment charge of $21 million including prepayment penalties and the
write off of previously deferred debt costs.
-5-
DIVESTITURE OF ASSETS
On September 19, 2003, we completed the sale of certain of the assets
of our leasing and rental and aftermarket parts businesses for approximately
$53.3 million in cash. Net proceeds from the sale were used to repay a portion
of our outstanding indebtedness. Loss on the disposition amounted to
approximately $29.9 million, including a $28.5 million asset impairment charge
recorded in the 2003 second quarter. Additionally, we anticipate a $0.6 million
loss on the disposition of certain retained assets related to these businesses.
-6-
THE OFFERING
The following is a brief summary description of this offering. For a
more complete description of the terms of the notes, see "Description of the
Notes" in this prospectus.
Issuer................................. Wabash National Corporation
Securities Covered by this Prospectus.. $125,000,000 principal amount of 3.25%
Convertible Senior Notes due August 1,
2008 and the shares of common stock
issuable upon conversion of such
notes.
Maturity............................... August 1, 2008
Interest............................... The notes bear interest at 3.25% per
annum on the principal amount, payable
semiannually in arrears on August 1,
and February 1, beginning on February
1, 2004, and at maturity.
Conversion Rights...................... Holders may convert their notes prior
to maturity, in multiples of $1,000
principal amount, into shares of our
common stock under any of the following
circumstances:
- in any fiscal quarter commencing
after September 30, 2003 if the
closing sale price of our common
stock for at least 20 trading days
in a period of 30 consecutive
trading days ending on the last
trading day of the preceding fiscal
quarter is greater than 110% of the
conversion price per share of common
stock on the last day of such
preceding fiscal quarter;
- if the sale price of our common
stock for at least 20 trading days
in a period of 30 consecutive
trading days ending on the last
trading day prior to the final
maturity date of the notes is
greater than 110% of the conversion
price per share of common stock on
the last trading day prior to the
maturity date; and
- if the average of the trading prices
per $1,000 principal amount of notes
for any ten consecutive trading-day
period is less than 95% of the
average conversion value for the
notes during that period, as
described under "Description of the
Notes"; provided, however, a holder
may not convert its notes if the
average
-7-
closing sale price of our
common stock for such ten
consecutive trading-day period was
between the then current conversion
price per share of common stock and
110% of the then applicable
conversion price per share of common
stock.
If any of the forgoing conditions is
satisfied, the notes will be
convertible at any time, at the option
of the holder, through the close of
business on the maturity date of the
notes. Holders may also convert their
notes into shares of our common stock
upon certain mergers, consolidations
and other fundamental transactions
affecting stockholders described under
"Description of the Notes -- Conversion
Rights -- Conversion Upon Occurrence of
Specified Corporate Transactions."
For each $1,000 principal amount of
notes surrendered for conversion,
holders will receive 52.0833 shares of
our common stock. This represents an
initial conversion price of $19.20 per
share of common stock. As described in
this prospectus, the conversion rate
may be adjusted for certain reasons,
but it will not be adjusted for accrued
and unpaid interest.
Ranking................................ The notes are our senior unsecured and
unsubordinated obligations and:
- rank on a parity in right of payment
with all existing and future senior
unsecured and unsubordinated debt;
- will rank senior to any future
subordinated debt;
- are effectively subordinated to any
secured debt to the extent of the
value of the assets securing such
debt; and
- are effectively subordinated to all
liabilities and preferred stock of
our subsidiaries.
See "Description of the Notes --
Ranking." As of June 30, 2003, we had
$331.5 million of secured indebtedness
and $5.5 million of unsecured
indebtedness.
-8-
Change of Control...................... Upon a change of control event (as
defined in the indenture governing the
notes), each holder of the notes may
require us to repurchase some or all of
its notes at a repurchase price equal
to 100% of the aggregate principal
amount of the notes plus accrued and
unpaid interest. The repurchase price
is payable:
- in cash; or
- in shares of our common stock, at
our option, subject to the
satisfaction of certain conditions
as provided in the indenture. The
number of shares of common stock
will equal the repurchase price
divided by 95% of the average of the
closing sale prices of the common
stock for the five consecutive
trading days ending on and including
the third day prior to the
repurchase date.
Upon a change of control, certain of
our existing debt agreements would, and
any debt agreements we enter into in
the future may, prohibit us from paying
the repurchase price in cash unless
prior to any such payment we either
repay our outstanding indebtedness
subject to such restrictions, refinance
such debt on other terms or obtain a
waiver from such lenders. As a result,
we cannot assure you that we will be
able to pay the repurchase price in
cash.
See "Description of the Notes -- Change
of Control Permits Purchase of Notes at
the Option of the Holder."
Use of Proceeds........................ We will not receive any of the proceeds
of sales by the selling security
holders of any of the securities
covered by this prospectus.
Form................................... The notes have been issued in
book-entry form and are represented by
permanent global certificates deposited
with, or on behalf of, The Depository
Trust Company ("DTC") and registered in
the name of a nominee of DTC.
Beneficial interests in any of the
notes are shown on, and transfers are
effected only through, records
maintained by DTC or its nominee, and
any such interest may not be exchanged
for certificated securities, except in
limited circumstances.
Trading................................ The notes are eligible for trading in
the Portal Market. Our common stock is
traded on the New York Stock Exchange
under the symbol "WNC."
Risk Factors........................... See "Risk Factors" and the other
information included and incorporated
by reference in this prospectus for a
discussion of factors you should
carefully consider before deciding to
invest in the notes.
-9-
RISK FACTORS
You should carefully consider the risks described below in addition to
other information contained or incorporated by reference in this prospectus
before making an investment decision. Realization of any of the following risks
could have a material adverse effect on our business, financial condition, cash
flows and results of operations.
RISKS RELATED TO OUR SUBSTANTIAL INDEBTEDNESS
OUR SUBSTANTIAL INDEBTEDNESS COULD ADVERSELY AFFECT OUR FINANCIAL
CONDITION.
We are highly leveraged and have substantial debt in relation to our
shareholders' equity. As of June 30, 2003, we had an aggregate of $337 million
of outstanding indebtedness. Although our recent sale of our unsecured 3.25%
Convertible Senior Notes due August 1, 2008 and the completion of a three year
$222 million asset based debt refinancing strengthen our balance sheet, we
continue to be highly leveraged.
Our high level of debt could have important consequences to our
investors, including:
- we may not be able to secure additional funds for working
capital, capital expenditures, debt service requirements or
general corporate purposes;
- we will need to use a portion of our cash flow from operations
to pay principal of and interest on our debt, which will
reduce the amount of funds available to us for other purposes;
- we may be more highly leveraged than our competitors, which
could put us at a competitive disadvantage; and
- we may not be able to adjust rapidly to changing market
conditions, which may make us more vulnerable in the event of
a downturn in general economic conditions of our business.
RESTRICTIVE COVENANTS IN OUR DEBT INSTRUMENTS COULD LIMIT OUR FINANCIAL AND
OPERATING FLEXIBILITY AND SUBJECT US TO OTHER RISKS.
The agreements governing our indebtedness include certain covenants
that restrict, among other things, our ability to:
- incur additional debt;
- pay dividends on our equity or repurchase our equity;
- make certain investments;
- create certain liens; and
- consolidate, merge or transfer all or substantially all of our
assets.
Our ability to comply with such agreements may be affected by events
beyond our control, including prevailing economic, financial and industry
conditions. In addition, upon the occurrence of an event of default under our
debt agreements, the lenders could elect to declare all amounts outstanding
under our debt agreements, together with accrued interest, to be immediately due
and payable.
-10-
RISKS RELATED TO OUR BUSINESS, STRATEGY AND OPERATIONS
AN ADVERSE CHANGE IN OUR CUSTOMER RELATIONSHIPS OR IN THE FINANCIAL
CONDITION OF OUR CUSTOMERS COULD ADVERSELY AFFECT OUR BUSINESS.
We have corporate partnering relationships with a number of customers
where we supply the requirements of these customers. Our success is dependent,
to a significant extent, upon the continued strength of these relationships and
the growth of our corporate partners. We often are unable to predict the level
of demand for our products from these partners, or the timing of their orders.
In addition, the same economic conditions that adversely affect us also often
adversely our customers. As some of our customers are highly leveraged and have
limited access to capital, their continued existence may be uncertain. One of
our customers located in Mexico is experiencing financial difficulties. Although
this customer is current in its payment obligation to us, the customer owes us
$6 million secured by highly specialized RoadRailer(R) equipment, which due to
the nature of the equipment, has a minimal recovery value. In addition, we have
subleased certain highly specialized RoadRailer(R) equipment to Amtrak, which is
experiencing financial difficulties. Due to the highly specialized nature of
this equipment, the recovery value of the equipment is considered to be minimal.
The unamortized lease value of this arrangement with Amtrak was approximately
$4.5 million as of June 30, 2003. In addition, we have approximately $10 million
in finance contracts related to Amtrak recorded on our balance sheet. The loss
of a significant customer or unexpected delays in product purchases could
adversely affect our business and results of operations.
OUR TECHNOLOGY AND PRODUCTS MAY NOT ACHIEVE MARKET ACCEPTANCE, WHICH COULD
ADVERSELY AFFECT OUR COMPETITIVE POSITION.
We continue to introduce new products such as the DuraPlate(R) HD, and
the Freight-Pro(R) trailer. We cannot assure you that these or other new
products or technologies will achieve sustained market acceptance. In addition,
new technologies or products that our competitors introduce may render our
products obsolete or uncompetitive. We have taken steps to protect our
proprietary rights in our new products. However, the steps we have taken to
protect them may not be sufficient or may not be enforced by a court of law. If
we are unable to protect our proprietary rights, other parties may attempt to
copy or otherwise obtain or use our products or technology. If competitors are
able to use our technology, our ability to compete effectively could be harmed.
WE HAVE A LIMITED NUMBER OF SUPPLIERS OF RAW MATERIALS; AN INCREASE IN THE
PRICE OF RAW MATERIALS OR THE INABILITY TO OBTAIN RAW MATERIALS COULD
ADVERSELY AFFECT OUR RESULTS OF OPERATIONS.
We currently rely on a limited number of suppliers for certain key
components in the manufacturing of truck trailers. The loss of our suppliers or
their inability to meet our price, quality, quantity and delivery requirements
could have a significant impact on our results of operations.
DISRUPTION OF OUR MANUFACTURING OPERATIONS OR MANAGEMENT INFORMATION
SYSTEMS WOULD HAVE AN ADVERSE EFFECT ON OUR FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
We manufacture our products at two facilities in Lafayette, Indiana, with
our primary manufacturing facility accounting for approximately 85% of our
manufacturing output. An unexpected disruption in our production at either of
these facilities or in our management information systems for any length of time
would have an adverse effect on our business, financial condition and results of
operations.
THE LOSS OF KEY PERSONNEL COULD ADVERSELY AFFECT OUR RESULTS OF OPERATIONS.
Many of our executive officers are critical to the management and
direction of our business. Our future success depends, in large part, on our
ability to retain these officers and other capable management personnel. The
unexpected loss of the services of any of our key personnel could have an
adverse effect on the operation of our business, as we may be unable to find
suitable management to replace departing executives on a timely basis.
THE INABILITY TO REALIZE ADDITIONAL COSTS SAVINGS COULD WEAKEN OUR
COMPETITIVE POSITION.
If we are unable to continue to successfully implement our program of
cost reduction and continuous improvement, we may not realize additional
anticipated cost savings, which could weaken our competitive position.
-11-
WE ARE SUBJECT TO CURRENCY EXCHANGE RATE FLUCTUATIONS, WHICH COULD
ADVERSELY AFFECT OUR FINANCIAL PERFORMANCE.
We are subject to currency exchange rate risk related to sales through
our 7 factory-owned retail distribution centers in Canada. We currently hedge
approximately 70% of our estimated Canadian cash flow. For the six month period
ended June 30, 2003, currency exchange rate fluctuations had a favorable impact
of $5.6 million on our results of operations. However, we cannot assure you that
we will continue to experience such benefits or that currency exchange rate
fluctuations will not have an adverse affect on our results of operations.
RISKS PARTICULAR TO THE INDUSTRIES IN WHICH WE OPERATE
OUR BUSINESS IS HIGHLY CYCLICAL, WHICH COULD ADVERSELY AFFECT OUR SALES AND
RESULTS OF OPERATIONS.
The truck trailer manufacturing industry historically has been and is
expected to continue to be cyclical, as well as affected by overall economic
conditions. New trailer production for the trailer industry as a whole decreased
to 139,658 in 2002 as compared to 140,084 units in 2001, 270,817 units in 2000
and 305,869 units in 1999. According to ACT, the current forecast for industry
shipments in 2003 is approximately 182,000 units. Customers historically have
replaced trailers in cycles that run from five to twelve years, depending on
service and trailer type. Poor economic conditions can adversely affect demand
for new trailers and in the past have led to an overall aging of trailer fleets
beyond this typical replacement cycle. Our business is likely to continue to be
adversely affected unless economic conditions improve. We cannot assure you that
the industry will achieve the forecasted sales for 2003 or that our unit sales
in the future will return to the levels experienced in the late 1990s and 2000.
SIGNIFICANT COMPETITION IN THE INDUSTRIES IN WHICH WE OPERATE MAY RESULT IN
OUR COMPETITORS OFFERING NEW OR BETTER PRODUCTS AND SERVICES OR LOWER
PRICES, WHICH COULD RESULT IN A LOSS OF CUSTOMERS AND A DECREASE IN OUR
REVENUES.
The truck trailer manufacturing industry is highly competitive. We
compete with other manufacturers of varying sizes, some of which may have
greater financial resources than we do. Barriers to entry in the standard truck
trailer manufacturing industry are low. As a result, it is possible that
additional competitors could enter the market at any time. In addition, we
believe that the manufacturing over-capacity and high leverage of some of our
competitors, along with the recent bankruptcies and financial stresses that have
affected the industry, have contributed to significant pricing pressures.
If we are unable to compete successfully with other trailer
manufacturers, we could lose customers and our revenues may decline. In
addition, competitive pressures in the industry may affect the market prices of
our new and used equipment, which, in turn, may adversely affect our sales
margins and results of operations.
WE ARE SUBJECT TO EXTENSIVE GOVERNMENTAL LAWS AND REGULATIONS, AND OUR
COSTS RELATED TO COMPLIANCE WITH, OR OUR FAILURE TO COMPLY WITH, EXISTING
OR FUTURE LAWS AND REGULATIONS COULD ADVERSELY AFFECT OUR BUSINESS AND
RESULTS OF OPERATIONS.
The length, height, width, maximum weight capacity and other
specifications of truck trailers are regulated by individual states. The Federal
government also regulates certain safety features incorporated in the design of
truck trailers. Changes or anticipation of changes in these regulations can have
a material impact on our financial results, as our customers may defer customer
purchasing decisions and we may have to reengineer products. In addition, we are
subject to various environmental laws and regulations dealing with the
transportation, storage, presence, use, disposal and handling of hazardous
materials, discharge of stormwater and underground fuel storage tanks and may be
subject to liability associated with operations of prior owners of acquired
property. If we are found to be in violation of applicable laws or regulations,
it could have an adverse effect on our business, financial condition and results
of operations. Our costs of complying with these or any other current or future
environmental regulations may be significant. In addition, if we fail to comply
with existing or future laws and regulations, we may be subject to governmental
or judicial fines or sanctions. See "Legal Proceedings" for a discussion of the
ongoing federal investigation related to our former facility in Huntsville,
Tennessee.
-12-
A DECLINE IN THE VALUE OF USED TRAILERS COULD ADVERSELY AFFECT OUR RESULTS
OF OPERATIONS.
General economic and industry conditions, as well as the supply of used
trailers, influences the value of used trailers. As part of our normal business
practices, we maintain used trailer inventories and equipment held for lease,
and have entered into finance contracts secured by used trailers, as well as
residual guarantees and purchase commitments for used trailers. Declines in the
market value for used trailers or the need to dispose of excess inventories has
had, and could in the future have, an adverse effect on our business, financial
condition and results of operations.
RISKS RELATED TO AN INVESTMENT IN THE NOTES AND COMMON STOCK
OUR COMMON STOCK HAS EXPERIENCED, AND MAY CONTINUE TO EXPERIENCE, PRICE
VOLATILITY AND A LOW TRADING VOLUME.
The trading price of our common stock has been and may continue to be
subject to large fluctuations and, therefore, the trading price of the notes may
fluctuate significantly, which may result in losses to investors. Our stock
price may increase or decrease in response to a number of events and factors,
including:
- trends in our industry and the markets in which we operate;
- changes in the market price of the products we sell;
- the introduction of new technologies or products by us or our
competitors;
- changes in expectations as to our future financial
performance, including financial estimates by securities
analysts and investors;
- operating results that vary from the expectations of
securities analysts and investors;
- announcements by us or our competitors of significant
contracts, acquisitions, strategic partnerships, joint
ventures, financings or capital commitments;
- changes in laws and regulations; and
- general economic and competitive conditions.
This volatility may adversely affect the prices of our common stock and
the notes regardless of our operating performance. The price of our common stock
also may be adversely affected by the amount of common stock issuable upon
conversion of the notes. Assuming $125 million in aggregate principal amount of
the notes are converted at a conversion price of $19.20, the number of shares of
our common stock outstanding would increase by approximately 6,510,416 shares,
or approximately 20.22%.
In addition, our common stock has experienced low trading volume in the
past.
THERE IS A LIMITED TRADING MARKET FOR THE NOTES.
There is limited market activity in the notes. Although the initial
purchasers of the notes are currently making a market in the notes, they are not
obligated to do so and may discontinue such market making at any time without
notice. In addition, such market making activity will be subject to the limits
imposed by the Securities Act of 1933, as amended and the Securities Exchange
Act of 1934, as amended. Accordingly, there can be no assurance that any market
for the notes will be maintained. If an active market for the notes fails to
develop or be sustained, the trading price of the notes could be materially
adversely affected. The notes are traded on the Portal Market; however, we do
not intend to apply for listing of the notes on any securities exchange.
The liquidity of the trading market in these notes, and the market
price quoted for these notes, may be materially adversely affected by:
- changes in the overall market for convertible subordinated
securities;
- changes in our financial performance or prospects;
- the prospects for companies in our industry generally;
- the number of holders of the notes;
- the interest of securities dealers in making a market for the
notes; and
- prevailing interest rates.
-13-
THE NOTES ARE UNSECURED AND EFFECTIVELY SUBORDINATED TO ANY SECURED
INDEBTEDNESS WE HAVE AND MAY INCUR IN THE FUTURE AND THE LIABILITIES OF OUR
SUBSIDIARIES.
The notes are our senior unsecured obligations, effectively junior in
right of payment to our secured debt, to the extent of the assets securing such
debt. In addition, the notes are effectively junior in right of payment to
the indebtedness and other liabilities of our subsidiaries. See "Description of
the Notes -- Ranking."
In the event that we are declared bankrupt, become insolvent or are
liquidated or reorganized, any debt that ranks ahead of the notes will be
entitled to be paid in full from our assets before any payment may be made with
respect to the notes. Holders of the notes will participate ratably with all
holders of our other senior unsecured indebtedness, based upon the respective
amounts owed to each holder or creditor, in our remaining assets. Upon the
occurrence of any of the foregoing events, we cannot assure you that there will
be sufficient assets to pay amounts due on the notes. As a result, holders of
notes may receive less, ratably, than the holders of any secured indebtedness
that we may then have outstanding.
WE MAY INCUR ADDITIONAL INDEBTEDNESS RANKING EQUAL TO THE NOTES.
If we incur any additional debt that ranks equally with the notes,
including trade payables, the holders of that debt will be entitled to share
ratably with you in any proceeds distributed in connection with any insolvency,
liquidation, reorganization, dissolution or other winding-up of us. This may
have the effect of reducing the amount of proceeds paid to holders of notes, if
any.
WE MAY NOT HAVE THE ABILITY TO RAISE THE FUNDS TO PURCHASE NOTES UPON A
CHANGE OF CONTROL AS REQUIRED BY THE INDENTURE.
Upon the occurrence of certain change of control events, each holder of
notes may require us to repurchase all or a portion of its notes at a purchase
price equal to 100% of the principal amount thereof, plus accrued interest. Our
ability to repurchase the notes for cash upon a change of control would be
limited by the terms of certain of our existing debt agreements and may be
limited by the terms of any debt agreements that we enter into in the future.
Upon a change of control, we may be required immediately to repay the
outstanding principal, any accrued interest and any other amounts owed by us
under our other debt agreements. We cannot assure you that we would be able to
repay amounts outstanding under our debt agreements, or obtain necessary
consents to repurchase the notes. Any requirement to offer to purchase any
outstanding notes may result in our having to refinance our outstanding
indebtedness, which we may not be able to do on terms favorable to us, if at
all.
WE DO NOT EXPECT TO PAY CASH DIVIDENDS IN THE FORESEEABLE FUTURE.
Since December 2001, we have not declared or paid cash or other
dividends on our common stock and do not expect to pay cash dividends on our
common stock for the foreseeable future. We currently intend to retain all
future earnings for use in the operation of our business and to fund future
growth. In addition, the terms of our existing debt agreements restrict our
ability to pay cash dividends on our common stock. We are permitted to pay
preferred stock dividends on our outstanding Series B Preferred so long as no
default or event of default exists at the time of the distribution.
ARTHUR ANDERSEN LLP, OUR FORMER AUDITORS, AUDITED CERTAIN FINANCIAL
INFORMATION INCLUDED IN THIS PROSPECTUS. IN THE EVENT SUCH FINANCIAL
INFORMATION IS LATER DETERMINED TO CONTAIN FALSE STATEMENTS, YOU MAY BE
UNABLE TO RECOVER DAMAGES FROM ARTHUR ANDERSEN LLP.
Arthur Andersen LLP completed its audit of our financial statements for
the year ended December 31, 2001, and issued its report with respect to such
financial statements dated April 12, 2002. On March 14, 2002, Arthur Andersen
was indicted on, and on June 15, 2002 Arthur Andersen was convicted of, federal
obstruction of justice charges arising from the U.S. Government's investigation
of Enron Corporation.
On May 30, 2002, we dismissed Arthur Andersen as our independent
auditors and we appointed Ernst & Young LLP as our independent auditors for
fiscal year 2002. We had no disagreements with Arthur Andersen on any matter of
accounting principle or practice, financial statement disclosure or auditing
scope or procedure. Arthur Andersen audited the financial statements that we
include in this prospectus as of December 31, 2001 and for the years ending
December 31, 2000 and 2001.
-14-
Arthur Andersen has stopped conducting business before the SEC and has
limited assets available to satisfy the claims of creditors. As a result, you
may be limited in your ability to recover damages from Arthur Andersen under
federal or state law if it is later determined that there are false statements
contained in this prospectus relating to or contained in financial data audited
by Arthur Andersen.
-15-
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
We present below the ratio of our earnings to combined fixed charges and
preferred stock dividends for each of the years ended December 31, 2002, 2001,
2000, 1999 and 1998 and the six months ended June 30, 2003.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Six Months Ended For the Years Ended December 31,
June 30, 2003 2002 2001 2000 1999 1998
---------------- -------- ------- ------- ------ ----
Ratio of earnings to combined
fixed charges and preferred stock
dividends - - - - 3.53 2.57
Earnings deficiency $26,330 $72,958 $276,708 $14,836 $ - $ -
For the six months ended June 30, 2003 and the years ended December 31,
2002, 2001 and 2000, earnings are inadequate to cover fixed charges and the
dollar amount of coverage deficiency is disclosed in the above table, in
thousands.
We present below the pro forma ratio of our earnings to combined fixed
charges and preferred stock dividends for the year ended December 31, 2002 and
the six months ended June 30, 2003. The pro forma ratios have been prepared to
illustrate the impact of the asset divestiture and refinancings described in the
recent developments section of the prospectus. The pro forma ratios give
effect to the transactions as if they had occurred as of the beginning of the
respective periods.
PRO FORMA RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS
Six Months Ended Year Ended
June 30, 2003 December 31, 2002
---------------- -----------------
Ratio of earnings to combined
fixed charges and preferred stock
dividends 2.00 -
Earnings Deficiency $ - $68,623
For the year ended December 31, 2002, pro forma earnings are inadequate to
cover fixed charges and the dollar amount of the coverage deficiency is
disclosed in the above table.
-16-
PRICE RANGE OF COMMON STOCK
Our common stock is listed for trading on the New York Stock Exchange
under the symbol "WNC." The following table sets forth, for the periods
indicated, the high and low sale prices per share of our common stock as
reported on the New York Stock Exchange Composite Tape:
High Low
------- ------
2001
First Quarter $ 12.00 $ 8.25
Second Quarter 13.33 9.75
Third Quarter 12.45 6.32
Fourth Quarter 8.74 6.62
2002
First Quarter $ 12.15 $ 7.16
Second Quarter 11.19 7.55
Third Quarter 9.94 4.18
Fourth Quarter 8.50 3.55
2003
First Quarter $ 9.03 5.30
Second Quarter 14.70 6.17
Third Quarter (through September 30,
2003) 14.00 19.55
The last reported sale price of our common stock on the New York Stock
Exchange on September 30, 2003 was $15.95 per share. As of September 26, 2003
the number of record holders of our common stock was 1,103.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the notes or common
stock by the selling holders.
-17-
SELLING HOLDERS
The notes were originally issued by us and sold to the initial
purchasers in a transaction exempt from the registration requirements of the
Securities Act of 1933 and were resold by the initial purchasers to persons
reasonably believed by the initial purchasers to be qualified institutional
buyers or other institutional accredited investors, in transactions exempt from
the registration requirements. Selling holders, including their transferees,
pledgees or donees or their successors, may from time to time offer and sell
pursuant to this prospectus any or all of the notes and common stock into which
the notes are convertible.
The following table sets forth information with respect to the selling
holders and the principal amounts of notes beneficially owned by each selling
holder that may be offered under this prospectus. The information is based on
information provided by or on behalf of the selling holders to us in a selling
securityholder questionnaire and is as of the date specified by the holders in
those questionnaires. Any or all of the notes listed below and the common stock
into which the notes are convertible may be offered for sale pursuant to this
prospectus by the selling holders from time to time, including selling holders
that, after the effective date of the registration statement, acquire any of the
securities held by the selling holders listed in the table below. Accordingly,
no estimate can be given as to the amounts of notes or common stock that will be
held by the selling holders upon consummation of any such sales. In addition,
the information relating to ownership of notes by the selling holders listed in
the table below may have changed as a result of the acquisition, sale or
transfer, in transactions exempt from the registration requirements of the
Securities Act, of some or all of their notes since the date as of which the
information in the table is presented.
Information about selling holders may change over time. Any changed
information supplied to us will be set forth in prospectus supplements or
post-effective amendments, as may be appropriate. From time to time, additional
information concerning ownership of the notes may rest with certain holders
thereof not named in the table below and of whom we are unaware.
Principal Amount Shares of
of Notes Common Stock Shares of
Beneficially Owned Shares of Common Common Stock Owned
Owned and Prior to the Stock After Completion of
Name of Beneficial Owner Offered Offering(1)(2) Offered(2) the Offering
------------------------ ------- -------------- --------- ------------
[To be filed by pre-effective amendment]
All other holders of
notes or future
transferees, pledgees,
donees, assignees or
successors of any such
holders (3)
(1) Includes common stock into which the notes are convertible.
(2) Assumes a conversion price of $19.20 per share, which is equal to a
conversion rate of approximately 52.0833 shares of common stock per
$1,000 principal amount of notes, subject to adjustment, and a cash
payment in lieu of any fractional interest.
(3) Assumes that any other holders of notes or any future transferee from
any holder does not beneficially own any common stock other than common
stock into which the notes are convertible.
None of the selling holders nor any of their affiliates, officers,
directors or principal equity holders has held any position or office or has had
any material relationship with us within the past three years. The selling
holders purchased the notes from the initial purchasers in private transactions
on August 1, 2003.
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The conversion rate, and therefore, the number of shares of common
stock issuable upon conversion of the notes, is subject to adjustment under
certain circumstances. Accordingly, the aggregate principal amount of notes and
the number of shares of common stock into which the notes are convertible may
increase or decrease.
PLAN OF DISTRIBUTION
The selling holders and their successors, including their transferees,
pledgees or donees or their successors, may sell the notes and the common stock
into which the notes are convertible directly to purchasers or through
underwriters, broker-dealers or agents, who may receive compensation in the form
of discounts, concessions or commissions from the selling holders or the
purchasers. These discounts, concessions or commissions as to any particular
underwriter, broker-dealer or agent may be in excess of those customary in the
types of transactions involved.
The notes and the common stock into which the notes are convertible may
be sold in one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at prices related to the prevailing market prices, at
varying prices determined at the time of sale, or at negotiated prices. These
sales may be effected in transactions, which may involve crosses or block
transactions:
- on any national securities exchange or quotation service on
which the notes or the common stock may be listed or quoted at
the time of sale;
- in the over-the-counter market;
- in transactions otherwise than on these exchanges or systems
or in the over-the-counter market;
- through the writing of options, whether the options are listed
on an options exchange or otherwise; or
- through the settlement of short sales.
In connection with the sale of the notes and the common stock into
which the notes are convertible or otherwise, the selling holders may enter into
hedging transactions with broker-dealers or other financial institutions, which
may in turn engage in short sales of the notes or the common stock into which
the notes are convertible in the course of hedging the positions they assume.
The selling holders may also sell the notes or the common stock into which the
notes are convertible short and deliver these securities to close out their
short positions, or loan or pledge the notes or the common stock into which the
notes are convertible to broker-dealers that in turn may sell these securities.
The aggregate proceeds to the selling holders from the sale of the
notes or common stock into which the notes are convertible offered by them will
be the purchase price of the notes or common stock less discounts and
commissions, if any. Each of the selling holders reserves the right to accept
and, together with their agents from time to time, to reject, in whole or in
part, any proposed purchase of notes or common stock to be made directly or
through agents. We will not receive any of the proceeds from this offering.
Our outstanding common stock is listed on the New York Stock Exchange.
We do not intend to list the notes for trading on the New York Stock Exchange,
any other national securities exchange or on the Nasdaq National Market and can
give no assurance about the development of any trading market for the notes.
In order to comply with the securities laws of some states, if
applicable, the notes and common stock into which the notes are convertible may
be sold in these jurisdictions only through registered or licensed brokers or
dealers. In addition, in some states the notes and common stock into which the
notes are convertible may not be sold unless they have been registered or
qualified for sale or an exemption from registration or qualification
requirements is available and is complied with.
The selling holders and any underwriters, broker-dealers or agents that
participate in the sale of the notes and common stock into which the notes are
convertible 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. Selling holders who are "underwriters" within the meaning of
Section 2(11) of the Securities Act will be subject to the prospectus delivery
requirements of the Securities Act.
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The selling holders have acknowledged that they understand their
obligations to comply with the provisions of the Exchange Act and the rules
thereunder relating to stock manipulation, particularly Regulation M, which may
limit the timing of purchases and sales of any of the notes by the selling
holders and any such other person. In addition, Regulation M may restrict the
ability of any person engaged in the distribution of the notes to engage in
market-making activities with respect to the particular notes being distributed
for a period of up to five business days prior to the commencement of the
distribution. This may affect the marketability of the notes and the preferred
notes and the ability of any person or entity to engage in market-making
activities with respect to the notes.
In addition, any securities covered by this prospectus which qualify
for sale pursuant to Rule 144 or Rule 144A of the Securities Act may be sold
under Rule 144 or Rule 144A rather than pursuant to this prospectus. A selling
holder may not sell any notes or common stock described in this prospectus and
may not transfer, devise or gift these securities by other means not described
in this prospectus.
On August 1, 2003, we issued and sold the notes to two initial
purchasers in transactions exempt under Section 4(2) of the Securities Act, and
the initial purchasers subsequently resold them to persons reasonably believed
to be qualified institutional buyers in a transaction exempt from registration
in reliance on Rule 144A of the Securities Act.
To the extent required, the specific notes or common stock to be sold,
the names of the selling holders, the respective purchase prices and public
offering prices, the names of any agent, dealer or underwriter, and 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 of which this prospectus
is a part.
We entered into a registration rights agreement for the benefit of
holders of the notes to register their notes and common stock under applicable
federal and state securities laws under specific circumstances and at specific
times. The registration rights agreement provides for cross-indemnification of
the selling holders and Wabash and their respective directors, officers and
controlling persons against specific liabilities in connection with the offer
and sale of the notes and the common stock, including liabilities under the
Securities Act. We will pay substantially all of the expenses incurred by the
selling holders incident to the offering and sale of the notes and the common
stock.
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DESCRIPTION OF THE NOTES
The notes were issued under an indenture between us and Wachovia Bank,
National Association, as trustee, dated August 1, 2003. The terms of the notes
include those provided in the indenture and those provided in the registration
rights agreement, which we entered into with the initial purchasers. As used in
this section, the words "we," "us," "our" or "Wabash" refer to Wabash National
Corporation.
The following description of provisions of the notes is not complete
and is subject to, and qualified in its entirety by reference to, the notes, the
indenture and the registration rights agreement. We will provide you with a copy
of any of the foregoing documents without charge upon request.
GENERAL
The notes are our general unsecured and unsubordinated obligations and
are convertible into our common stock as described under "-- Conversion Rights"
below. The notes are limited to $125,000,000 aggregate principal amount and
mature on August 1, 2008, unless earlier repurchased by us at the option of the
holder upon the occurrence of a Change of Control (as defined below). The notes
are not redeemable prior to maturity.
The notes bear cash interest at a rate of 3.25% per annum from August
1, 2003, or from the most recent interest payment date to which interest has
been paid or duly provided for. We will pay cash interest semi-annually in
arrears on August 1 and February 1 of each year to holders of record at the
close of business on the preceding July 15 and January 15, respectively,
beginning February 1, 2004 and on the maturity date of August 1, 2008, to the
holder to whom we pay the principal. We may pay interest on notes represented by
certificated notes by check mailed to such holders. However, a holder of notes
with an aggregate principal amount in excess of $5,000,000 will be paid by wire
transfer in immediately available funds at the election of such holder. Interest
will be computed on the basis of a 360-day year comprised of twelve 30-day
months. Each payment of cash interest on the notes will include interest accrued
through the day before the applicable interest payment date (or purchase date or
conversion date, as the case may be). Interest will cease to accrue on a note
upon its maturity, conversion or purchase by us upon a Change of Control.
Principal will be payable, and the notes may be presented for
conversion, registration of transfer and exchange, without service charge, at
our office or agency in New York City, which shall initially be the office or
agency of the trustee in New York, New York. See "-- Form, Denomination and
Registration" below.
The indenture does not contain any financial covenants or any
restrictions on the payment of dividends, the repurchase of our securities or
the incurrence of indebtedness. The indenture also does not contain any
covenants or other provisions that afford protection to holders of notes in the
event of a highly leveraged transaction or a Change of Control of Wabash except
to the extent described under "-- Change of Control Permits Purchase of Notes at
the Option of the Holder" below.
CONVERSION RIGHTS
The holders of notes may, at any time, after the occurrence of one of
the conditions set forth below and prior to the close of business on the final
maturity date of the notes, convert any outstanding notes (or portions thereof)
into our common stock, initially at a conversion price of $19.20 per share of
common stock, which is equal to a conversion rate of 52.0833 shares of common
stock per $1,000 principal amount of notes. The conversion rate is subject to
adjustment upon the occurrence of certain events described below. Holders may
convert notes only in denominations of $1,000 and whole multiples of $1,000.
Except as described below, no adjustment will be made on conversion of any notes
for interest accrued thereon or dividends paid on any common stock.
Notwithstanding the above, if notes are converted after a record date but prior
to the next succeeding interest payment date, holders of such notes at the close
of business on the record date will receive the interest payable on such notes
on the corresponding interest payment date notwithstanding the conversion. Such
notes, upon surrender for conversion, must be accompanied by funds equal to the
amount of interest payable on the principal amount of notes so converted. We are
not required to issue fractional shares of common stock upon conversion of notes
and instead will pay a cash adjustment based upon the market price of the common
stock on the last trading day before the date of the conversion.
A holder may exercise the right of conversion by delivering the note to
be converted to the specified office of a conversion agent, with a completed
notice of conversion, together with any funds that may be required as described
in the preceding paragraph. Beneficial owners of interests in a global note may
exercise their right of conversion by
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delivering to the Depository Trust Company (DTC) the appropriate instruction
form for conversion pursuant to DTC's conversion program. The conversion date
will be the date on which the notes, the notice of conversion and any required
funds have been so delivered. A holder delivering a note for conversion will not
be required to pay any taxes or duties relating to the issuance or delivery of
the common stock for such conversion, but will be required to pay any tax or
duty which may be payable relating to any transfer involved in the issuance or
delivery of the common stock in a name other than the holder of the note.
Certificates representing shares of common stock will be issued or delivered
only after all applicable taxes and duties, if any, payable by the holder have
been paid. If any note is converted prior to the expiration of the holding
period applicable for sales thereof under Rule 144(k) under the Securities Act
(or any successive provision), the common stock issuable upon conversion will
not be issued or delivered in a name other than that of the holder of the note,
unless the applicable restrictions on transfer have been satisfied.
CONVERSION RATE ADJUSTMENTS
The initial conversion rate will be adjusted for certain events,
including:
- the issuance of Wabash common stock as a dividend or
distribution on Wabash common stock;
- subdivisions, combinations and certain reclassification of
Wabash common stock;
- the issuance to all holders of Wabash common stock of certain
rights or warrants to purchase Wabash common stock (or
securities convertible into Wabash common stock) at a price
less than (or having a conversion price per share less than)
the current market price of Wabash common stock;
- the dividend or other distribution to all holders of Wabash
common stock or shares of Wabash capital stock (other than
common stock) of evidences of indebtedness or assets
(including securities, but excluding (A) those rights and
warrants referred to above, (B) dividends and distributions in
connection with a reclassification, change, consolidation,
merger, combination, sale or conveyance resulting in a change
in the conversion consideration pursuant to the second
succeeding paragraph or (C) dividends or distributions paid
exclusively in cash);
- dividends or other distributions consisting exclusively of
cash to all holders of Wabash common stock; and
- the purchase of Wabash common stock pursuant to a tender offer
made by Wabash or any of its subsidiaries, to the extent that
the same involves an aggregate consideration that, together
with any cash and the fair market value of any other
consideration paid in any other tender offer by Wabash or any
of its subsidiaries for Wabash common stock expiring within
the 12 months preceding such tender offer for which no
adjustment has been made, exceeds ten percent of our market
capitalization on the expiration of such tender offer.
No adjustment in the conversion rate will be required unless such
adjustment would require a change of at least one percent in the conversion rate
then in effect at such time. Any adjustment that would otherwise be required to
be made shall be carried forward and taken into account in any subsequent
adjustment. Except as stated above, the conversion rate will not be adjusted for
the issuance of our common stock or any securities convertible into or
exchangeable for our common stock or carrying the right to purchase any of the
foregoing.
In the case of:
- any reclassification or change of Wabash common stock (other
than changes resulting from a subdivision or combination) or
- a consolidation, merger or combination involving Wabash or a
sale or conveyance to another corporation of all or
substantially all of Wabash's property and assets,
in each case as a result of which holders of Wabash common stock are
entitled to receive stock, other securities, other property or assets (including
cash or any combination thereof) with respect to or in exchange for Wabash
common stock, the holders of the notes then outstanding will be entitled
thereafter to convert those notes into the kind and amount of shares of stock,
other securities or other property or assets (including cash or any combination
thereof) which they would have owned or been entitled to receive upon such
reclassification, change, consolidation, merger, combination, sale or conveyance
had such notes been converted into Wabash common stock immediately prior to such
reclassification, change, consolidation, merger, combination, sale or
conveyance.
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We may not become a party to any such transaction unless its terms are
consistent with the foregoing. If a taxable distribution to holders of Wabash
common stock or other transaction occurs which results in any adjustment of the
conversion price, the holders of notes may, in certain circumstances, be deemed
to have received a distribution subject to U.S. income tax as a dividend. In
certain other circumstances, the absence of an adjustment may result in a
taxable dividend to the holders of common stock. See the section of this
prospectus entitled "Material United States Federal Income Tax Considerations."
We may from time to time, to the extent permitted by law, reduce the
conversion price of the notes by any amount for any period of at least 20 days.
In that case we will give at least 15 days' notice of such decrease. We may make
such reductions in the conversion price, in addition to those set forth above,
as the board of directors deems advisable or in our best interests, which
determination will be conclusive.
CONVERSION UPON SATISFACTION OF SALE PRICE CONDITIONS. Holders may
surrender notes for conversion into shares of Wabash common stock in any fiscal
quarter commencing after September 30, 2003 if, as of the last day of the
preceding fiscal quarter, the sale price of our common stock for at least 20
trading days in a period of 30 consecutive trading days ending on the last
trading day of such preceding fiscal quarter is more than 110% of the conversion
price per share of common stock on the last day of such preceding fiscal
quarter. Holders may also surrender notes for conversion into shares of Wabash
common stock if the sale price of our common stock for at least 20 trading days
in a period of 30 consecutive trading days ending on the last trading day prior
to the final maturity date of the notes is greater than 110% of the conversion
price per share of common stock on the last day prior to the maturity date. If
either of foregoing conditions is satisfied, then the notes will be convertible
at any time at the option of the holder, through the close of business on the
final maturity date of the notes.
The sale price of our common stock on any trading day means the closing
per share sale price (or if no closing sale price is reported, the average of
the bid and ask prices or, if more than one in either case, the average of the
average bid and the average ask prices) on such date on the principal national
securities exchange on which the common stock is listed, or if our common stock
is not listed on a national securities exchange, as reported by the Nasdaq
System or otherwise as provided in the indenture.
CONVERSION UPON SATISFACTION OF TRADING PRICE CONDITION. Holders may
surrender notes for conversion into shares of Wabash common stock following any
ten consecutive trading-day period in which the average of the trading prices
per $1,000 principal amount of notes for that ten trading-day period was less
than 95% of the average conversion value for the notes during that period;
provided, however, a holder may not convert its notes if the average closing
sale price of our common stock for such ten consecutive trading-day period was
between the then current conversion price per share of common stock and 110% of
the then applicable conversion price per share of common stock. If the foregoing
condition is satisfied, then the notes will be convertible at any time at the
option of the holder, through the close of business on the final maturity date
of the notes.
The conversion value of a note is equal to the product of the closing
sale price for shares of our common stock on a given day multiplied by the then
current conversion rate, which is the number of shares of common stock into
which each note is then convertible. The trading price of the notes on any date
of determination means the average of the secondary market bid quotations per
$1,000 principal amount of notes obtained by us or the trustee for $2,500,000
principal amount of notes at approximately 3:30 p.m., New York City time, on
such determination date from two independent nationally recognized securities
dealers we select, provided that if at least two such bids cannot reasonably be
obtained by us or the trustee, but one such bid is obtained, then this one bid
shall be used.
CONVERSION UPON OCCURRENCE OF SPECIFIED CORPORATE TRANSACTIONS. If we
are party to a consolidation, merger or binding share exchange or a transfer of
all or substantially all of our assets and, as a result, holders of our common
stock would be entitled to receive stock, other securities, other property or
assets (including cash or any combination thereof) with respect to or in
exchange for our common stock, a note may be surrendered for conversion at any
time from and after the date which is 15 days prior to the anticipated effective
date of the transaction until 15 days after the actual effective date of such
transaction, and at the effective date, the right to convert a note into common
stock will be changed into a right to convert it into the kind and amount of
securities, cash or other assets of Wabash or another person which the holder
would have received if the holder had converted the holder's notes immediately
prior to the transaction. If such transaction also constitutes a change of
control of Wabash, the holder will be able to require us to purchase all or a
portion of such holder's notes as described under "-- Change in Control Permits
Purchase of Notes at the Option of the Holder."
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RANKING
The notes are our senior unsecured and unsubordinated obligations. The
notes rank on a parity in right of payment with all of our existing and future
senior unsecured and unsubordinated indebtedness. However, the notes are
effectively subordinated to our existing and future secured indebtedness as to
the assets securing such indebtedness. As of June 30, 2003, we had total
indebtedness of $337 million (of which $331.5 million was secured indebtedness).
In addition, the notes are effectively subordinated to all existing and
future liabilities of our subsidiaries. Our cash flow and consequent ability to
meet our debt obligations depends in part on the earnings of our subsidiaries,
and on dividends and other payments from our subsidiaries. Under certain
circumstances, contractual and legal restrictions, as well as the financial
condition and operating requirements of our subsidiaries, could limit our
ability to obtain cash from its subsidiaries for the purpose of meeting debt
service obligations, including the payment of principal and interest on the
notes. Any rights to receive assets of any subsidiary upon its liquidation or
reorganization and the consequent right of the holders of the notes to
participate in those assets will be subject to the claims of that subsidiary's
creditors, including trade creditors, except to the extent that Wabash is
recognized as a creditor of that subsidiary, in which case its claims would
still be subordinate to any security interests in the assets of that subsidiary.
CHANGE OF CONTROL PERMITS PURCHASE OF NOTES AT THE OPTION OF THE HOLDER
If a Change of Control occurs, each holder of notes will have the right
to require us to repurchase all of that holder's notes, or any portion of those
notes that is equal to $1,000 or a whole multiple of $1,000, on the date that is
30 days after the date we give notice at a repurchase price equal to 100 percent
of the aggregate principal amount of the notes to be repurchased, together with
interest accrued and unpaid to, but excluding, the repurchase date. Instead of
paying the repurchase price in cash, we may pay the repurchase price in shares
of our common stock if we so elect in the notice referred to below. The number
of shares of common stock a holder will receive will equal the repurchase price
divided by 95 percent of the average of the closing sale prices of the
applicable common stock for the five trading days immediately preceding and
including the third day prior to the repurchase date. However, we may not pay in
common stock unless we satisfy certain conditions prior to the repurchase date
as provided in the indenture.
Within 15 days after the occurrence of a Change of Control, we are
required to give notice to all holders of notes, as provided in the indenture,
of the occurrence of the Change of Control and of their resulting repurchase
right. We must also deliver a copy of our notice to the trustee. To exercise the
repurchase right, a holder of notes must deliver prior to or on the repurchase
date irrevocable written notice to the trustee of the holder's exercise of its
repurchase right, together with the notes with respect to which the right is
being exercised. A "Change of Control" will be deemed to have occurred when the
following has occurred:
- our common stock (or other common stock into which the notes
are convertible) is no longer traded on the New York Stock
Exchange or the Nasdaq National Market;
- any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), acquires the beneficial
ownership (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have
"beneficial ownership" of all securities that such person has
the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or
indirectly, through a purchase, merger or other acquisition
transaction, of 50% or more of the total voting power of the
total outstanding voting stock of Wabash other than an
acquisition by us, any of our subsidiaries or any of our
employee benefit plans;
- Wabash consolidates with, or merges with or into, another
person or conveys, transfers, leases or otherwise disposes in
one or a series of related transactions of all or
substantially all of its assets to any person, or any person
consolidates with or merges with or into Wabash, other than:
- any transaction (i) that does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of Wabash's capital stock and (ii) pursuant
to which holders of Wabash's capital stock immediately prior
to the transaction have the entitlement to exercise, directly
or indirectly, 50% or more of the total voting power of all
shares of Wabash's capital stock entitled to vote generally in
the election of directors of the continuing or surviving
person immediately after the transaction; and
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- any merger solely for the purpose of changing Wabash's
jurisdiction of incorporation and resulting in a
reclassification, conversion or exchange of outstanding shares
of common stock solely into shares of common stock of the
surviving entity;
- during any consecutive two-year period, individuals who at the
beginning of that two-year period constituted the board of
directors of Wabash (together with any new directors whose
election to such board of directors, or whose nomination for
election by stockholders, was approved by a vote of a majority
of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for
any reason to constitute a majority of the board of directors
of Wabash then in office; or
- Wabash's stockholders pass a special resolution approving a
plan of liquidation or dissolution and no additional approvals
of stockholders are required under applicable law to cause a
liquidation or dissolution.
However, a Change of Control will not be deemed to have occurred if:
- the daily market price per share of Wabash common stock for
any five trading days within the period of 10 consecutive
trading days immediately after the later of the Change of
Control or the public announcement of the Change of Control
(in the case of a Change of Control under the second bullet
point above) or the period of 10 consecutive trading days
ending immediately before the Change of Control (in the case
of a Change of Control under the third bullet point above)
shall equal or exceed 110% of the conversion price of the
notes in effect on the date prior to the Change of Control or
the public announcement of the Change of Control, as
applicable; or
- all of the consideration (excluding cash payments for
fractional shares and cash payments made pursuant to
dissenters' appraisal rights) in the transaction or
transactions constituting the Change of Control under the
second and third bullet points above consists of shares of
common stock that are, or upon issuance will be, traded on the
New York Stock Exchange or the American Stock Exchange or
quoted on the Nasdaq National Market and as a result of such
transaction or transactions the notes become convertible
solely into such common stock.
The definition of Change of Control includes a phrase relating to the
conveyance, transfer, lease or other disposition of "all or substantially all"
of Wabash's assets. There is no precise established definition of the phrase
"substantially all" under applicable law. Accordingly, the ability of a holder
of notes to require us to repurchase such notes as a result of a conveyance,
transfer, lease or other disposition of less than all of Wabash's assets may be
uncertain.
Our right to pay the repurchase price in common stock is subject to our
satisfying various conditions, including:
- the registration of the common stock under the Securities Act
and the Exchange Act, if required; and
- any necessary qualifications under applicable state securities
law or the availability of an exemption from such
qualification and registration.
If such conditions are not satisfied with respect to a holder prior to the close
of business on the repurchase date, we will pay the repurchase price of the
notes to the holder entirely in cash. Such cash payment currently is not
permitted under our existing debt agreements. We may not change the form of
consideration to be paid for the notes once we have given the notice that we are
required to give to holders of notes, except as described in the first sentence
of this paragraph.
We will comply with the provisions of any tender offer rules under the
Exchange Act that may then be applicable, and will file any schedule required
under the Exchange Act in connection with any offer by us to purchase notes at
the option of the holders of notes upon a Change of Control. In some
circumstances, the Change of Control purchase feature of the notes may make more
difficult or discourage a takeover of us and thus the removal of incumbent
management. The Change of Control purchase feature, however, is not the result
of management's
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knowledge of any specific effort to accumulate shares of common stock or to
obtain control of us by means of a merger, tender offer, solicitation or
otherwise, or part of a plan by management to adopt a series of anti-takeover
provisions. Instead, the Change of Control purchase feature is the result of
negotiations between us and the initial purchasers.
We may, to the extent permitted by applicable law, at any time purchase
the notes in the open market or by tender at any price or by private agreement.
Any note so purchased by us may, to the extent permitted by applicable law, be
reissued or resold or may be surrendered to the trustee for cancellation. Any
notes surrendered to the trustee may not be reissued or resold and will be
canceled promptly.
The foregoing provisions would not necessarily protect holders of the
notes if highly leveraged or other transactions involving us occur that may
adversely affect holders. Our ability to repurchase notes upon the occurrence of
a Change of Control is subject to important limitations. Under our existing
credit agreements, we would not be permitted to repurchase notes for cash unless
prior to any such payment we either repay our indebtedness subject to such
restrictions, refinance such debt on other terms or obtain a waiver from such
lenders. In addition, the occurrence of a Change of Control would likely cause
an event of default under the terms of certain of our existing debt agreements
and could cause an event of default under the terms of any debt agreements we
may enter into in the future. Further, we cannot assure you that we would have
the financial resources, or would be able to arrange financing, to pay the
repurchase price for all the notes that might be delivered by holders of notes
seeking to exercise the repurchase right. Any failure by us to repurchase the
notes when required following a Change of Control would result in an event of
default under the indenture. Any such default, in turn, would cause a default
under certain of our existing debt agreements, and may cause a default under any
debt agreements we may enter into in the future.
EVENTS OF DEFAULT
Each of the following would constitute an event of default under the
indenture:
(1) our failure to pay when due the principal of or premium, if
any, on any of the notes at maturity or exercise of a
repurchase right or otherwise;
(2) our failure to pay an installment of interest (including
liquidated damages, if any) on any of the notes for 30 days
after the date when due;
(3) failure by us to deliver shares of common stock, together with
cash instead of fractional shares, when those shares of common
stock, or cash instead of fractional shares, are required to
be delivered following conversion of a note, and that default
continues for 10 days;
(4) failure by us to give the notice regarding a Change of Control
within 15 days of the occurrence of the Change of Control;
(5) our failure to perform or observe any other term, covenant or
agreement contained in the notes or the indenture for a period
of 60 days after written notice of such failure, requiring us
to remedy the same, shall have been given to us by the trustee
or to us and the trustee by the holders of at least 25% in
aggregate principal amount of the notes then outstanding;
(6) in the event of either (a) our failure or the failure of any
of our significant subsidiaries to make any payment by the end
of the applicable grace period, if any, after the final
scheduled payment date for such payment with respect to any
indebtedness for borrowed money in an aggregate principal
amount in excess of $10 million, or (b) the acceleration of
indebtedness for borrowed money of the company or any of our
significant subsidiaries in an aggregate amount in excess of
$10 million because of a default with respect to such
indebtedness, without such indebtedness referred to in either
(a) or (b) above having been discharged, cured, waived,
rescinded or annulled, for a period of 30 days after written
notice to us by the trustee or to us and the trustee by
holders of at least 25% in aggregate principal amount of the
notes then outstanding; and
(7) certain events of our bankruptcy, insolvency or
reorganization.
The term "significant subsidiary" means a subsidiary, including its
subsidiaries, that meets any of the following conditions:
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- Wabash's and its other subsidiaries' investments in and
advances to the subsidiary exceed 10% of the total assets of
Wabash and its subsidiaries consolidated as of the end of the
most recently completed fiscal year;
- Wabash's and its other subsidiaries' proportionate share of
the total assets (after intercompany eliminations) of the
subsidiary exceeds 10% of the total assets of Wabash and its
subsidiaries consolidated as of the end of the most recently
completed fiscal year; or
- Wabash's and its other subsidiaries' equity in the income from
continuing operations before income taxes, extraordinary items
and cumulative effect of a change in accounting principle of
the subsidiary exceeds 10% of such income of Wabash and its
subsidiaries consolidated for the most recently completed
fiscal year.
The indenture provides that the trustee shall, within 90 days of the
occurrence of a default, give to the registered holders of the notes notice of
all uncured defaults known to it, but the trustee shall be protected in
withholding such notice if it, in good faith, determines that the withholding of
such notice is in the best interest of such registered holders, except in the
case of a default in the payment of the principal of, or premium, if any, or
interest on, any of the notes when due or in the payment of any repurchase
obligation.
If an event of default specified in clause (7) above occurs and is
continuing, then automatically the principal of all the notes and the interest
thereon shall become immediately due and payable. If an event of default shall
occur and be continuing, other than with respect to clause (7) above (the
default not having been cured or waived as provided under "-- Modifications and
Waiver" below), the trustee or the holders of at least 25% in aggregate
principal amount of the notes then outstanding may declare the notes due and
payable at their principal amount together with accrued interest, and thereupon
the trustee may, at its discretion, proceed to protect and enforce the rights of
the holders of notes by appropriate judicial proceedings. Such declaration may
be rescinded or annulled with the written consent of the holders of a majority
in aggregate principal amount of the notes then outstanding upon the conditions
provided in the indenture. However, if an event of default is cured prior to
such declaration by the trustee or holders of the notes as discussed above, the
trustee and the holders of the notes will not be able to make such declaration
as a result of that cured event of default.
Overdue payments of interest, liquidated damages and premium, if any,
and principal shall accrue interest at 5.25%.
The indenture contains a provision entitling the trustee, subject to
the duty of the trustee during default to act with the required standard of
care, to be indemnified by the holders of notes before proceeding to exercise
any right or power under the indenture at the request of such holders. The
indenture provides that the holders of a majority in aggregate principal amount
of the notes then outstanding through their written consent may direct the time,
method and place of conducting any proceeding for any remedy available to the
trustee or exercising any trust or power conferred upon the trustee.
We are required to furnish annually to the trustee a statement as to
the fulfillment of our obligations under the indenture.
CONSOLIDATION, MERGER OR ASSUMPTION
We may, without the consent of the holders of notes, consolidate with,
merge into or transfer all or substantially all of our assets to any other
corporation organized under the laws of the United States or any of its
political subdivisions provided that:
- (i) Wabash shall be the surviving or continuing corporation or
(ii) the entity or person formed by or surviving any such
consolidation, merger or asset transfer shall be a corporation
organized and validly existing under the laws of the United
States, any State thereof or the District of Columbia;
- the surviving corporation assumes all our obligations under
the indenture and the notes pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the
trustee;
- at the time of such transaction, no event of default, and no
event which, after notice or lapse of time, would become an
event of default, shall have happened and be continuing; and
- certain other conditions are met.
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Although such transactions are permitted under the indenture, certain
of the foregoing transactions occurring could constitute a change in control of
Wabash, permitting each holder to require us to purchase the notes of such
holder as described above.
MODIFICATIONS AND WAIVER
The indenture (including the terms and conditions of the notes) may be
modified or amended by us and the trustee, without the consent of the holder of
any note, for the purposes of, among other things:
- adding to our covenants for the benefit of the holders of
notes;
- surrendering any right or power conferred upon us;
- providing for the assumption of our obligations to the holders
of notes in the circumstances required under the indenture as
described under "-- Consolidation, Merger or Assumption;"
- reducing the conversion price, provided that the reduction
will not adversely affect the interests of holders of notes;
or
- curing any ambiguity or correcting or supplementing any
defective provision contained in the indenture; provided that
such modification or amendment does not adversely affect the
interests of the holders of the notes.
Modifications and amendments to the indenture or to the terms and
conditions of the notes may also be made, and past default by us may be waived
with the written consent of the holders of at least a majority in aggregate
principal amount of the notes at the time outstanding. However, no such
modification, amendment or waiver may, without the written consent or the
affirmative vote of the holder of each note so affected:
- change the maturity of the principal of or any installment of
interest on that note (including any payment of liquidated
damages);
- reduce the principal amount of, or any premium or interest on
(including any payment of liquidated damages), any note;
- change the currency of payment of such note or interest
thereon;
- impair the right to institute suit for the enforcement of any
payment on or with respect to any note;
- except as otherwise permitted or contemplated by provisions
concerning corporate reorganizations, adversely affect the
repurchase option of holders upon a Change of Control or the
conversion rights of holders of the notes;
- waive a default or event of default in the payment of
principal of or interest or liquidated damages, if any, on the
notes (except a rescission of acceleration of the notes by the
holders of at least a majority in aggregate principal amount
of the notes and a waiver of the payment default that resulted
from such acceleration);
- except as permitted by the indenture, increase the conversion
price or modify the provisions of the indenture relating to
conversion of the notes in a manner adverse to the holders; or
- reduce the percentage in aggregate principal amount of notes
outstanding necessary to modify or amend the indenture or to
waive any past default.
FORM, DENOMINATION AND REGISTRATION
The notes are issued in fully registered form, without coupons, in
denominations of $1,000 principal amount and whole multiples of $1,000.
Global Notes: Book-Entry Form. Except as provided below, the notes are
evidenced by one global note deposited with the trustee as custodian for DTC,
New York, New York, and registered in the name of Cede & Co. as DTC's nominee.
The global note and any notes issued in exchange therefor are subject to certain
restrictions on transfer set forth in the global notes and in the indenture and
bear a restrictive legend. Record ownership of the global notes may be
transferred, in whole or in part, only to another nominee of DTC or to a
successor of DTC or its nominee,
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except as set forth below. A Noteholder may hold its interests in the global
note directly through DTC if such noteholder is a participant in DTC, or
indirectly through organizations which are direct DTC participants. Transfers
between direct DTC participants will be effected in the ordinary way in
accordance with DTC's rules and will be settled in same-day funds. Noteholders
may also beneficially own interests in the global notes held by DTC through
certain banks, brokers, dealers, trust companies and other parties that clear
through or maintain a custodial relationship with a direct DTC participant,
either directly or indirectly. So long as Cede & Co., as nominee of DTC, is the
registered owner of the global note, Cede & Co. for all purposes will be
considered the sole holder of the global note. Except as provided below, owners
of beneficial interests in a global note will not be entitled to have
certificates registered in their names, will not receive or be entitled to
receive physical delivery of certificates in definitive form, and will not be
considered holders thereof. The laws of some states require that certain persons
take physical delivery of securities in definitive form. Consequently, the
ability to transfer a beneficial interest in a global note to such persons may
be limited. We will wire, through the facilities of the trustee, principal,
premium, if any, and interest payments on the global note to Cede & Co., the
nominee for DTC, as the registered owner of the global note. We, the trustee and
any paying agent will have no responsibility or liability for paying amounts due
on the global note to owners of beneficial interests in a global note. It is
DTC's current practice, upon receipt of any payment of principal of and premium,
if any, and interest on the global note, to credit participants' accounts on the
payment date in amounts proportionate to their respective beneficial interests
in a note represented by a global note, as shown on the records of DTC, unless
DTC believes that it will not receive payment on the payment date. Payments by
DTC participants to owners of beneficial interests in notes represented by a
global note held through DTC participants will be the responsibility of DTC
participants, as is now the case with securities held for the accounts of
customers registered in "street name."
If you would like to convert your notes into common stock pursuant to
the terms of the notes, you should contact your broker or other direct or
indirect DTC participant to obtain information on procedures, including proper
forms and cut-off times, for submitting those requests. Because DTC can only act
on behalf of DTC participants, who in turn act on behalf of indirect DTC
participants and other banks, your ability to pledge your interest in the notes
represented by global notes to persons or entities that do not participate in
the DTC system, or otherwise take actions in respect of such interest, may be
affected by the lack of a physical certificate. Neither we nor the trustee (nor
any registrar, paying agent or conversion agent under the indenture) will have
any responsibility for the performance by DTC or direct or indirect DTC
participants of their obligations under the rules and procedures governing their
operations. DTC has advised us that it will take any action permitted to be
taken by a holder of notes, including, without limitation, the presentation of
notes for conversion as described below, only at the direction of one or more
direct DTC participants to whose account with DTC interests in the global notes
are credited and only for the principal amount of the notes for which directions
have been given.
DTC has advised us as follows: DTC is a limited purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the Uniform
Commercial Code and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Securities Exchange Act of 1934, as amended. DTC was created
to hold securities for DTC participants and to facilitate the clearance and
settlement of securities transactions between DTC participants through
electronic book-entry changes to the accounts of its participants, thereby
eliminating the need for physical movement of certificates. Participants include
securities brokers and dealers, banks, trust companies and clearing corporations
and may include certain other organizations such as the initial purchasers.
Certain DTC participants or their representatives, together with other entities,
own DTC. Indirect access to the DTC system is available to others such as banks,
brokers, dealers and trust companies that clear through, or maintain a custodial
relationship with, a participant, either directly or indirectly. Although DTC
has agreed to the foregoing procedures in order to facilitate transfers of
interests in the global notes among DTC participants, it is under no obligation
to perform or continue to perform such procedures, and such procedures may be
discontinued at any time. If DTC is at any time unwilling or unable to continue
as depositary and a successor depositary is not appointed by us within 90 days,
we will cause notes to be issued in definitive form in exchange for the global
notes. None of us, the trustee or any of their respective agents will have any
responsibility for the performance by DTC or direct or indirect DTC participants
of their obligations under the rules and procedures governing their operations,
including maintaining, supervising or reviewing the records relating to, or
payments made on account of, beneficial ownership interests in global notes.
According to DTC, the foregoing information with respect to DTC has been
provided to its participants and other members of the financial community for
informational purposes only and is not intended to serve as a representation,
warranty or contract modification of any kind.
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Certificated notes may be issued in exchange for beneficial interests
in notes represented by the global notes only in the limited circumstances set
forth in the indenture.
Restrictions on Transfer; Legends. The notes will be subject to certain
transfer restrictions and certificates evidencing the notes will bear a
restrictive legend to such effect.
GOVERNING LAW
The indenture and the notes are governed by, and construed in
accordance with, the law of the State of New York.
CONCERNING THE TRUSTEE
Wachovia Bank, National Association, as trustee under the indenture,
has been appointed by us as paying agent, conversion agent, registrar and
custodian with regard to the notes. National City Bank is the transfer agent and
registrar for Wabash's common stock. The trustee or its affiliates may from time
to time in the future provide banking and other services to us in the ordinary
course of their business.
The indenture provides that, except during the continuance of an event
of default, the trustee will perform only such duties as are specifically set
forth in the indenture. In case an event of default shall occur (and shall not
be cured) and holders of the notes have notified the trustee, the trustee will
be required to exercise its powers with the degree of care and skill of a
prudent person in the conduct of such person's own affairs. Subject to such
provisions, the trustee is under no obligation to exercise any of its rights or
powers under the indenture at the request of any of the holders of notes, unless
they shall have offered to the trustee security and indemnity satisfactory to
it.
The indenture contains certain limitations on the rights of the
trustee, should it become our creditor, to obtain payment of claims in certain
cases or to realize on certain property received in respect of any such claim as
security or otherwise. The trustee is permitted to engage in other transactions,
provided, however, that if it acquires any conflicting interest, it must
eliminate such conflict or resign.
REGISTRATION RIGHTS
We agreed, at our expense, to file with the SEC this registration
statement on Form S-3 covering resales by holders of the notes and the common
stock issuable upon conversion of the notes, of which this prospectus is a part.
Under the terms of the registration rights agreement, we agreed to use our
reasonable best efforts to:
- cause the registration statement to become effective before
March 28, 2004; and
- keep the shelf registration statement continuously effective
under the Securities Act until the earliest of (i) the second
anniversary of the issue date; (ii) the date on which the
notes or the common stock issuable upon their conversion may
be sold by non-affiliates of us pursuant to paragraph (k) of
Rule 144 (or any successor provision) promulgated by the SEC
under the Securities Act; (iii) the date as of which all the
notes or the common stock issuable upon their conversion have
been sold under Rule 144 under the Securities Act (or any
similar provision then in force) and (iv) the date as of which
all the notes or the common stock issuable upon their
conversion have been sold pursuant to the shelf registration
statement.
We also agreed to provide to each registered holder copies of the
prospectus, notify each registered holder when the shelf registration statement
has become effective and take certain other actions as are required to permit
unrestricted resales of the notes and the common stock issuable upon conversion
of the notes. A holder who sells those securities pursuant to the shelf
registration statement generally will be required to be named as a selling
securityholder in the related prospectus and to deliver a prospectus to
purchasers and will be bound by the provisions of the registration rights
agreement, which are applicable to that holder (including certain
indemnification provisions).
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The specific provisions relating to the registration described above
are contained in the registration rights agreement which was entered into on the
closing of the initial offering of the notes.
TRANSFER AND EXCHANGE
A holder may transfer or exchange notes in accordance with the
indenture. The registrar and the trustee may require a holder, among other
things, to furnish appropriate endorsements and transfer documents, and we may
require a holder to pay any taxes and fees required by law or permitted by the
indenture. We are not required to transfer or exchange any note for which a
holder has delivered a Change of Control repurchase notice.
The registered holder of a note will be treated as the owner of it for
all purposes.
NO RECOURSE AGAINST OTHERS
None of our directors, officers, employees, stockholders or affiliates,
as such, shall have any liability or any obligation under the notes or the
indenture or for any claim based on, in respect of or by reason of such
obligations or the creation of such obligations. Each holder by accepting a note
waives and releases all such liability. The waiver and release are part of the
consideration for the notes.
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DESCRIPTION OF CAPITAL STOCK
Our certificate of incorporation authorizes 100,000,000 shares of
capital stock, 75,000,000 of which are designated as common stock and 25,000,000
of which are designated as preferred stock. The following descriptions summarize
the material terms and provisions of our authorized and outstanding capital
stock. For the complete terms of our capital stock, please refer to our
certificate of incorporation and bylaws that are filed as exhibits to our
reports incorporated by reference into this prospectus. The General Corporation
Law of Delaware, as amended, may also affect the terms of our capital stock.
COMMON STOCK
Our certificate of incorporation provides that we have authority to
issue 75,000,000 shares of our common stock, par value $.01 per share. At
September 26, 2003, there were 25,834,530 shares of common stock issued and
outstanding. In addition, 1,823,660 shares of common stock were issuable upon
exercise of stock options outstanding on that date. The outstanding shares of
common stock are fully paid and nonassessable. The rights of the holders of
common stock discussed below are subject to the rights of holders of Series B
Preferred Stock (as defined below) and to those rights as the board may confer
on holders of preferred stock that may be issued in the future. These rights
conferred on holders of Series B Preferred Stock (as defined below) and any
other preferred stockholders may adversely affect the rights of holders of
common stock.
VOTING RIGHTS
Each holder of common stock is entitled to attend all special and
annual meetings of the stockholders and to vote upon any matter, including,
without limitation, the election of directors. Holders of common stock are
entitled to one vote per share.
LIQUIDATION RIGHTS
In the event of any dissolution, liquidation or winding up of Wabash,
whether voluntary or involuntary, the holders of common stock and holders of any
class or series of stock entitled to participate with them, will be entitled to
participate in the distribution of any assets remaining after we have paid all
of our debts and liabilities and have paid, or set aside for payment, to the
holders of any class of stock having preference over the common stock in the
event of dissolution, liquidation or winding up, the full preferential amounts,
if any, to which they are entitled.
DIVIDENDS
Dividends may be paid on the common stock and on any class or series of
stock entitled to participate therewith when and as declared by the board. Due
to restrictions under existing covenants in our debt agreements, we are not
permitted to pay dividends on our common stock without waiver of these
restrictions by our lenders.
OTHER RIGHTS AND RESTRICTIONS
The holders of common stock have no preemptive or subscription rights
to purchase additional securities issued by us, nor any rights to convert their
common stock into other securities of Wabash or to have their shares redeemed by
us. Our common stock is not subject to redemption by us. The rights, preferences
and privileges of common stockholders are subject to the rights of the holders
of Series B Preferred Stock (as defined below) and any series of preferred stock
which we may designate in the future. Our charter and bylaws do not restrict the
ability of a holder of common stock to transfer his or her shares of common
stock. When we issue shares of common stock upon conversion of the notes, the
shares will be fully paid and non-assessable.
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 National City
Bank.
STOCKHOLDER RIGHTS PLAN
In November 1995, our board adopted a Stockholders Rights Plan (the
"Rights Plan"). The Rights Plan is designed to deter any potential coercive or
unfair takeover tactics in the event of an unsolicited takeover attempt. It is
not intended to prevent a takeover of Wabash on terms that are favorable and
fair to all stockholders and will not
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interfere with a merger approved by the board of directors. Each right entitles
stockholders to buy one one-thousandth of a share of Series A Junior
Participating Preferred Stock at an exercise price of $120.00. 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 the board of directors.
In the event the rights become exercisable, the rights plan allows for our
stockholders to acquire stock of Wabash or the surviving corporation, whether or
not Wabash is the surviving corporation, having a value twice that of the
exercise price of the rights. The rights will expire December 28, 2005 and are
redeemable for $.01 per right by our board under certain circumstances.
LIMITATIONS OF DIRECTOR LIABILITY
Delaware law authorizes corporations to limit or eliminate the personal
liability of directors to corporations and their stockholders for monetary
damages for breach of directors' fiduciary duty of care. Although Delaware law
does not change directors' duty of care, it enables corporations to limit
available relief to equitable remedies such as injunction or rescission. Our
certificate of incorporation limits the liability of directors to us and our
stockholders to the full extent permitted by Delaware law. Specifically,
directors are not personally liable for monetary damages to Wabash or its
stockholders for breach of the director's fiduciary duty as a director, except
for liability for:
- any breach of the director's duty of loyalty to Wabash or its
stockholders;
- acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
- unlawful payments of dividends or unlawful stock repurchases
or redemptions; and
- any transaction from which the director derived an improper
personal benefit.
INDEMNIFICATION
To the maximum extent permitted by law, our bylaws provide for
mandatory indemnification of directors and officers against any expense,
liability or loss to which they may become subject, or which they may incur as a
result of being or having been a director or officer. In addition, we must
advance or reimburse directors and officers for expenses they incur in
connection with indemnifiable claims.
We also maintain directors' and officers' liability insurance.
PREFERRED STOCK
Our certificate of incorporation authorizes our board from time to time
and without further stockholder action, to provide for the issuance of up to
25,000,000 shares of preferred stock in one or more series, and to fix the
relative rights and preferences of the shares, including voting powers, dividend
rights, liquidation preferences, redemption rights and conversion privileges. As
of the date of this prospectus, our board has provided for the issuance of
352,000 shares of Series B 6% Cumulative Convertible Exchangeable Preferred
Stock (the "Series B Preferred Stock"). At September 26, 2003, there were
352,000 shares of our Series B Preferred Stock issued and outstanding. The
outstanding shares of Series B Preferred Stock are fully paid and nonassessable.
In addition, we have classified shares of Series A Junior Participating
Preferred Stock in connection with the establishment of our stockholder rights
plan, as described above, and we have issued rights that are in some cases
exercisable for shares of Series A Junior Participating Preferred Stock.
SERIES B PREFERRED STOCK
Conversion Rights. Holders of Series B Preferred Stock have the right,
at any time, to convert each share of Series B Preferred Stock into that number
of shares of our common stock determined by multiplying the number of shares of
Series B Preferred Stock to be converted by the sum of $50.00 plus any accrued
and unpaid dividends, divided by the initial conversion price of $21.375,
subject to adjustment for stock splits, stock dividends, recapitalizations and
other specified events as described more fully in the Series B Preferred Stock
Certificate of Designations (the "Series B Certificate of Designations") filed
as an exhibit to our reports incorporated by reference into this prospectus.
Liquidation Rights. In the event of any dissolution, liquidation or
winding up of Wabash (including, at the option of the holders of 50% of the
Series B Preferred Stock, a sale of substantially all the assets of Wabash or a
merger or consolidation of Wabash with any other non-affiliated entity where the
stockholders of Wabash prior to such merger or consolidation no longer hold a
majority of the equity securities of Wabash), holders of Series B
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Preferred Stock will be entitled to receive out of the remaining assets of
Wabash legally available for distribution, before any payment or distribution
shall be made on our common stock or any other junior securities, $50.00 per
share plus the amount of any accrued and unpaid dividends. After distribution to
the holders of Series B Preferred Stock, the holders of Series B Preferred Stock
shall not be entitled to any further participation in any distribution of the
assets of Wabash.
Dividend Rights. The holders of Series B Preferred Stock are entitled
to receive, when, as and if declared by our board of directors out of legally
available funds, cumulative annual cash dividends of $3.00 per share. Dividends
are to be declared and paid quarterly in arrears on March 15, June 15, September
15 and December 15 of each year. Dividends accrue without interest from the date
of original issuance. The holders of Series B Preferred Stock are also entitled
to receive, on a fully diluted as converted to common stock basis, any dividends
paid to the holders of common stock. Except as otherwise provided for in the
Series B Certificate of Designations, unless full cumulative dividends are paid
on the Series B Preferred Stock, no dividends may be declared or paid on the
common stock or any junior class of securities, nor may any common stock or
junior class of securities, or rights to acquire the foregoing, be redeemed,
purchased or otherwise acquired by Wabash. If, on the record date for any
meeting of stockholders held for the election of directors, accrued dividends on
the Series B Preferred Stock have not been paid in an aggregate amount equal to
or greater than six quarterly dividends, then the number of directors
constituting the board shall be automatically increased by two directors and the
holders of Series B Preferred Stock, voting as a single class, shall be entitled
to fill the two newly created directorships. This right will cease when all
dividends in default on the Series B Preferred Stock are paid in full. The
holders of Series B Preferred Stock shall be entitled to exercise their right to
elect, voting as a separate class, two directors upon any future dividend
default.
The previous arrearage in our Series B Preferred Stock dividends was
paid in September 2003 and we are current in our dividends on this Series.
Redemption Rights. At any time, as long as all accrued dividends have
been paid on the Series B Preferred Stock, Wabash may redeem, in whole, but not
in part, the Series B Preferred Stock through the issuance of its Series B 6%
Convertible Subordinated Debentures due April 15, 2007 (the "6% Convertible
Subordinated Debentures"), as described more fully in the Form of Indenture for
the 6% Convertible Subordinated Debentures filled as an exhibit to our reports
and incorporated by reference into this prospectus. Upon such a redemption,
holders of Series B Preferred Stock will be entitled to receive $50.00 principal
amount of the 6% Convertible Subordinated Debentures for each share of Series B
Preferred Stock held by such holder. In addition, at any time, as long as all
accrued dividends have been paid on the Series B Preferred Stock, Wabash may
redeem, in whole, or in part, the Series B Preferred Stock at a per share price
of $50.00 in cash.
Voting Rights. Holders of Series B Preferred Stock shall vote, together
with the holders of common stock and any other series of capital stock entitled
to vote with the common stock, as a single class, on all matters submitted to
the stockholders. Each share of Series B Preferred Stock is entitled to one vote
for each share of common stock that would be issuable upon conversion of each
share of Series B Preferred Stock to common stock. The affirmative vote of the
holders of at least two-thirds of the outstanding Series B Preferred Stock,
voting as a single class, is necessary for:
- the authorization or issuance of any class or series of stock
ranking senior to the Series B Preferred Stock as to dividends
or the distribution of assets upon dissolution, liquidation or
winding up of Wabash; or
- the amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any provision of the
certificate of incorporation that would adversely affect any
powers, preferences, or special rights of the Series B
Preferred Stock.
BLANK CHECK PREFERRED STOCK
Our board is authorized to issue preferred stock in one or more series
and to fix and designate the rights, preferences, privileges and restrictions of
the preferred stock, including:
- dividend rights;
- conversion rights;
- voting rights;
- redemption rights and terms of redemption; and
- liquidation preferences.
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Our board may fix the number of shares constituting any series and the
designations of these series. We have issued rights that are in some cases
exercisable for shares of our Series A Junior Participating Preferred Stock.
The rights, preferences, privileges and restrictions of the preferred
stock of each series will be fixed by a certificate of designations relating to
each series. The certificate of designations relating to each series will
specify the terms of the preferred stock, including:
- the maximum number of shares in the series and the distinctive
designation;
- the terms on which dividends will be paid, if any;
- the terms on which the shares may be redeemed, if at all;
- the liquidation preference, if any;
- the terms of any retirement or sinking fund for the purchase
or redemption of the shares of the series;
- the terms and conditions, if any, on which the shares of the
series will be convertible into, or exchangeable for, shares
of any other class or classes of capital stock;
- the voting rights, if any, on the shares of the series; and
- any or all other preferences and relative, participating,
operational or other special rights or qualifications,
limitations or restrictions of the shares.
Voting Rights. The General Corporation Law of Delaware provides that
the holders of preferred stock will have the right to vote separately as a class
on any proposal involving fundamental changes in the rights of holders of that
preferred stock. This right is in addition to any voting rights that may be
provided for in the applicable certificate of designations.
Other. Our issuance of preferred stock may have the effect of delaying
or preventing a change in control. Our issuance of preferred stock could
decrease the amount of earnings and assets available for distribution to the
holders of common stock or other preferred stock or could adversely affect the
rights and powers, including voting rights, of the holders of common stock or
other preferred stock. The issuance of preferred stock could have the effect of
decreasing the market price of our common stock.
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MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a general discussion of certain U.S. federal income
tax considerations relevant to holders of the notes and common stock into which
the notes may be converted. This discussion is based upon the Internal Revenue
Code of 1986, as amended, which we refer to as the Code, Treasury regulations,
Internal Revenue Service, or IRS, rulings and judicial decisions now in effect,
all of which are subject to change (possibly with retroactive effect) or
different interpretations. There can be no assurance that the IRS will not
challenge one or more of the tax consequences described herein, and we have not
obtained, nor do we intend to obtain, a ruling from the IRS with respect to the
U.S. federal income tax consequences of acquiring, holding, or disposing of
notes or common stock. This discussion does not purport to deal with all aspects
of U.S. federal income taxation that may be relevant to a particular holder in
light of the holder's circumstances (for example, persons subject to the
alternative minimum tax provisions of the Code or a holder whose "functional
currency" is not the U.S. dollar). Also, it is not intended to be wholly
applicable to all categories of investors, some of which (such as dealers in
securities or currencies, traders in securities that elect to use a
mark-to-market method of accounting, banks, thrifts, regulated investment
companies, insurance companies, tax-exempt organizations and persons holding
notes or common stock as part of a hedging, conversion, constructive sale,
constructive ownership, or integrated transaction or straddle under the Code)
may be subject to special rules. The discussion also does not discuss any aspect
of state, local or foreign law or U.S. federal estate and gift tax law as
applicable to the holders of the notes and common stock into which the notes may
be converted. In addition, this discussion is limited to purchasers of notes who
are U.S. Holders (as defined below) who will hold the notes and common stock as
"capital assets" within the meaning of Section 1221 of the Code.
ALL PROSPECTIVE PURCHASERS OF THE NOTES ARE URGED TO CONSULT THEIR OWN
TAX ADVISORS REGARDING THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF
THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE NOTES AND THE COMMON STOCK IN
THEIR PARTICULAR SITUATIONS.
As used herein, the term "U.S. Holder" means a beneficial owner of a
note or common stock that for United States federal income tax purposes is (a) a
citizen or resident (as defined in Section 7701(b) of the Code) of the United
States (unless such person is not treated as a resident of the U.S. under an
applicable income tax treaty), (b) a corporation formed under the laws of the
United States or any political subdivision of the United States, (c) an estate
the income of which is subject to U.S. federal income taxation regardless of its
source or (d) in general, a trust subject to the primary supervision of a court
within the United States and the control of a United States person as described
in Section 7701(a)(30) of the Code.
If a partnership (including for this purpose any entity, domestic or
foreign, treated as a partnership for U.S. tax purposes) is a beneficial owner
of the notes or common stock into which the notes may be converted, the U.S.
federal income tax treatment of a partner in the partnership will generally
depend on the status of the partner and the activities of the partnership. As a
general matter, income earned through a foreign or domestic partnership is
attributed to its owners. A holder of the notes or common stock into which the
notes may be converted that is a partnership and partners in such partnership
should consult their individual tax advisors about the U.S. federal income tax
consequences of holding and disposing of the notes and the common stock into
which the notes may be converted.
INTEREST/ORIGINAL ISSUE DISCOUNT
Interest on the notes will generally be included in a U.S. Holder's
gross income as ordinary income for U.S. federal income tax purposes at the time
it is paid or accrued in accordance with the U.S. Holder's regular method of
accounting.
In general, if the terms of a debt instrument entitle a holder to
receive payments other than fixed periodic interest that exceed the issue price
of the instrument, the holder may be required to recognize additional interest
as "original issue discount" over the term of the instrument. Furthermore, if
the amount or timing of any additional payments on a note is contingent, the
note could be subject to special rules that apply to contingent debt
instruments. These rules generally require a holder to accrue interest income at
a rate higher than the stated interest rate on the note and to treat as ordinary
income, rather than capital gain, any gain recognized on a sale, exchange or
retirement of a note before the resolution of the contingencies. In certain
circumstances, holders of our notes could receive payments in excess of stated
principal or interest. If we do not comply with our obligations under the
registration rights agreement, such non-compliance may result in the payment of
predetermined additional amounts in the manner described in the section
"Description of the Notes -- Registration Rights." We do not believe that the
notes should be
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treated as contingent debt instruments because of these potential additional
payments. Therefore, for purposes of filing tax or information returns with the
IRS, we will not treat the notes as contingent debt instruments or as having
original issue discount. Our position in this regard is binding on U.S. Holders
unless they disclose their contrary position. If the notes were treated as
contingent debt instruments, the consequences described above would apply. In
the event that we pay liquidated damages, the holders would be required to
recognize additional taxable income.
MARKET DISCOUNT
The purchasers of notes may be subject to the "market discount"
provisions of the Code. Market discount on a note will generally equal the
amount, if any, by which the principal amount of the note exceeds the holder's
acquisition price. Subject to a de minimis exception, those provisions generally
require a holder of a note acquired at a market discount to treat as ordinary
income any gain recognized on the disposition of such note to the extent of the
"accrued market discount" at the time of disposition. Market discount on a note
will be treated as accruing on a straight-line basis over the term of such note
or, at the election of the holder, under a constant-yield method. If a note with
accrued market discount that has not previously been included in gross income is
converted into common stock, the amount of such accrued market discount
generally will be taxable as ordinary income upon disposition of the common
stock received upon conversion. A holder of a note acquired at a market discount
may be required to defer the deduction of a portion of the interest on any
indebtedness incurred or maintained to purchase or carry the note until the note
is disposed of in a taxable transaction, unless the holder elects to include
market discount in income as it accrues.
PREMIUM
If a U.S. Holder acquires a note for an amount that is greater than the
note's stated principal amount plus accrued interest, the amount of such
difference is treated as "amortizable bond premium" for U.S. Federal income tax
purposes. A U.S. Holder may elect to amortize such premium from the purchase
date to the note's maturity date under a constant-yield over the remaining term
of the note. Any such premium is not amortizable, however, to the extent it
reflects the value of the conversion privilege of the note. Amortizable bond
premium is treated as an offset to interest income on a note and not as a
separate deduction and has the effect to reducing the holder's basis in the
note. An election to amortize bond premium applies to all taxable debt
obligations held by the U.S. Holder on the first day of the first taxable year
to which such election applies or thereafter acquired by the U.S. Holder and may
not be revoked without the consent of the IRS.
CONVERSIONS OF NOTES INTO COMMON STOCK
A U.S. Holder generally will not recognize any income, gain or loss
upon conversion of a note into common stock except with respect to cash received
in lieu of a fractional share of common stock. Cash received in lieu of a
fractional share of common stock should generally be treated as a payment in
exchange for such fractional share rather than as a dividend. Gain or loss
recognized on the receipt of cash paid in lieu of such fractional share
generally will equal the difference between the amount of cash received and the
amount of tax basis allocable to the fractional share. The adjusted tax basis of
shares of common stock received on conversion will equal the adjusted tax basis
of the note converted (reduced by the portion of adjusted tax basis allocated to
any fractional share of common stock exchanged for cash). The holding period of
such common stock received on conversion will generally include the period
during which the converted notes were held prior to conversion.
The conversion price of the notes is subject to adjustment under
certain circumstances. Section 305 of the Code and the Treasury regulations
issued thereunder may treat the holders of the notes as having received a
constructive distribution, resulting in ordinary income (subject to a possible
dividends received deduction in the case of corporate holders) to the extent of
our current and/or accumulated earnings and profits, if, and to the extent that,
certain adjustments in the conversion price (particularly an adjustment to
reflect a taxable dividend to holders of common stock) increase the
proportionate interests of the holders of notes in our assets or earnings and
profits, whether or not such holder ever exercises its conversion privilege.
Therefore, U.S. Holders may recognize income in the event of a deemed
distribution even though they may not receive any cash or property. Moreover, if
there is not a full adjustment to the conversion ratio of the notes to reflect a
stock dividend or other event increasing the proportionate interest of the
holders of outstanding common stock in our assets or earnings and profits, then
such increase in the proportionate interest of the holders of the common stock
generally will be treated as a distribution to such holders, taxable as ordinary
income (subject to a possible dividends received deduction in the case of
corporate holders) to the extent of our current and/or accumulated earnings and
profits. Adjustments to the conversion price made pursuant to a bona fide
reasonable adjustment formula which has the effect of preventing dilution in the
interest
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of the holders of the debt instruments, however, will generally not be
considered to result in a constructive dividend distribution.
SALE, EXCHANGE OR OTHER TAXABLE DISPOSITION OF THE NOTES
Each U.S. Holder generally will recognize gain or loss upon the sale,
exchange (other than by exercise of the conversion privilege) or other taxable
disposition of notes measured by the difference (if any) between (a) the amount
of cash and the fair market value of any property received (except to the extent
that such cash or other property is attributable to the payment of accrued
interest, which amount will be taxable as ordinary income to the extent not
previously included in gross income of the holder) and (b) such holder's
adjusted tax basis in the notes. A U.S. Holder's adjusted tax basis in a note
generally will equal the holder's cost of the note, increased by any market
discount previously included in income by the U.S. Holder and reduced (but not
below zero) by any amortizable bond premium that the U.S. Holder has taken into
account. Any such gain or loss recognized on the sale, exchange or other taxable
disposition of a note (except to the extent of any accrued and unrecognized
market discount, which will be taxable as ordinary income) generally will be
capital gain or loss and will be long-term capital gain or loss if the note has
been held for more than 12 months at the time of the sale or exchange. Certain
U.S. Holders (including individuals) are eligible for preferential U.S. federal
income tax rates in respect of long-term capital gains. The deductibility of
capital losses is subject to certain limitations under the Code.
If, upon a change of control, a holder requires us to repurchase some
or all of the holder's notes and we elect to pay the repurchase price in shares
of our common stock, the redemption may qualify as a recapitalization for U.S.
federal income tax purposes if the notes qualify as "securities" for those
purposes. Although debt instruments with a term of five years or less, such as
the notes, generally are not considered "securities," the matter is not free
from doubt. If the redemption qualifies as a recapitalization, a U.S. Holder
would not recognize any income, gain or loss on the holder's receipt of our
common stock in exchange for notes, except to the extent the stock received is
attributable to accrued interest. If the holder receives cash in lieu of
fractional shares of stock, however, the holder would be treated as if he
received the fractional share and then had the fractional share redeemed for
cash. The holder would recognize gain or loss equal to the difference between
the cash received and that portion of his basis in the stock attributable to the
fractional share. The holder's aggregate basis in the stock (including any
fractional share for which cash is paid) would equal his adjusted basis in the
note. The holder's holding period for the stock would include the period during
which he held the note. If the redemption does not qualify as a
recapitalization, a U.S. Holder will generally recognize capital gain or loss
equal to the difference between the amount realized by the U.S. Holder and the
U.S. Holder's adjusted tax basis in the note as described above.
OWNERSHIP AND DISPOSITION OF COMMON STOCK
Distributions, if any, paid on the common stock, to the extent made
from our current and/or accumulated earnings and profits, as determined under
U.S. federal income tax principles, will be included in a U.S. Holder's gross
income as ordinary income (subject to a possible dividends received deduction in
the case of corporate holders) when received. In the case of a non-corporate
U.S. Holder, such dividend income will generally be taxable at a reduced rate in
any taxable year beginning before January 1, 2009. To the extent, if any, that a
U.S. Holder receives distributions on shares of common stock that would
otherwise constitute dividends for U.S. federal income tax purposes but that
exceed our current and accumulated earnings and profits, such distributions will
be treated first as a non-taxable return of capital, reducing the U.S. Holder's
basis in the shares of common stock. Any distribution in excess of the U.S.
Holder's basis in the shares of common stock generally will be treated as
capital gains. Gain or loss realized on the sale, exchange or other taxable
disposition of common stock will equal the difference between the amount
realized on such sale, exchange or other taxable disposition and the U.S.
Holder's adjusted tax basis in such common stock. Subject to the discussion
under "Market Discount" above, such gain or loss generally will be capital gain
or loss, and will be long-term capital gain or loss if the U.S. Holder has held
the common stock for more than twelve months. Certain U.S. Holders (including
individuals) are eligible for preferential U.S. federal income tax rates in
respect of long-term capital gains. The deductibility of capital losses is
subject to certain limitations under the Code.
INFORMATION REPORTING AND BACKUP WITHHOLDING
A U.S. Holder of notes or common stock may be subject to "backup
withholding" at a rate currently of 28% with respect to certain "reportable
payments," including interest payments, dividend payments, proceeds from the
disposition of the notes or common stock to or through a broker and, under
certain circumstances, principal payments of the notes. These backup withholding
rules apply if the U.S. Holder, among other things, (a) fails to furnish a
social security number or other taxpayer identification number, or TIN,
certified under penalties of perjury within a
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reasonable time after the request therefor, (b) fails to report properly
interest or dividends, (c) under certain circumstances, fails to provide a
certified statement, signed under penalties of perjury, that the TIN furnished
is the correct number and that such holder is not subject to backup withholding
or if (d) the IRS provides notification that the U.S. Holder has furnished us
with an incorrect TIN. Any amount withheld from a payment to a U.S. Holder under
the backup withholding rules is creditable against the U.S. Holder's U.S.
federal income tax liability, provided that the required information is
furnished to the IRS. Backup withholding will not apply, however, with respect
to payments made to certain U.S. Holders, including corporations and tax exempt
organizations, provided their exemptions from backup withholding are properly
established.
We will report to the U.S. Holders of notes and common stock and to the
IRS the amount of our "reportable payments" for each calendar year and the
amount of tax withheld, if any, with respect to such payments.
The preceding discussion of certain U.S. federal income tax
consequences is intended for general information only and does not constitute
tax advice. Accordingly, each investor should consult its own tax adviser as to
particular tax consequences to it of purchasing, holding and disposing of the
notes and the common stock, including the applicability and effect of any state,
local or foreign tax laws, and of any proposed changes in applicable laws.
LEGAL MATTERS
Hogan & Hartson L.L.P., Baltimore, Maryland has passed upon certain
legal matters in connection with the notes and the common stock.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual report on form 10-K for the year
ended December 31, 2002, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
consolidated financial statements are incorporated by reference in reliance on
Ernst & Young LLP's report, given on their authority as experts in accounting
and auditing.
Our consolidated financial statements as of December 31, 2001, and for
each of the two years in the period ended December 31, 2001, have been audited
by Arthur Andersen LLP, independent public accountants, as stated in their
report incorporated herein.
On May 30, 2002, we appointed Ernst & Young as our independent public
accountants to audit our financial statements for fiscal year 2002. The decision
to change auditors was not the result of any disagreement between Arthur
Andersen and us on any matter of accounting principle or practice, financial
statement disclosure or auditing scope or procedure. For a discussion of certain
risks associated with Arthur Andersen's audit of our consolidated financial
statements, see the section of this prospectus entitled "Risk Factors -- Risks
Related to an Investment in the Notes and Common Stock."
ADDITIONAL INFORMATION
Because we are subject to the informational requirements of the
Exchange Act, we file reports and other information with the Commission.
Reports, registration statements, proxy and information statements and other
information that we have filed can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549. You may obtain copies of this material
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at rates prescribed by the Commission. The public may
obtain information on the operation of the Public Reference Room by calling the
Commission at 1-800-SEC-0330. The Commission also maintains a web site that
contains reports, proxy and information statements and other information that is
filed electronically with the Commission. This web site can be accessed at
http://www.sec.gov.
We have filed with the Commission a registration statement on Form S-3
under the Securities Act with respect to the securities offered under this
prospectus. This prospectus does not contain all of the information in the
registration statement, parts of which we have omitted, as allowed under the
rules and regulations of the Commission. You should refer to the registration
statement for further information with respect to us and our securities.
Statements contained in this prospectus as to the contents of any contract or
other document are not necessarily complete and, in each instance, we refer you
to the copy of each contract or document filed as an exhibit to the registration
statement. Copies of the registration statement, including exhibits, may be
inspected without charge at the Commission's principal office in Washington,
D.C., and you may obtain copies from this office upon payment of the fees
prescribed by the Commission.
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TABLE OF CONTENTS PAGE
WABASH
NATIONAL
CORPORATION
$125,000,000
3.25% CONVERTIBLE SENIOR
NOTES DUE AUGUST 1, 2008
6,510,416 SHARES
COMMON STOCK
------------------------
PROSPECTUS
------------------------
,2003
================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses to be paid by the
Company in connection with the distribution of the securities being registered
hereby. All the amounts are estimates, except the Commission registration fee.
The selling stockholders will bear the cost of all selling commissions and
underwriting discounts with respect to the sale of any securities by them.
Securities and Exchange Commission registration fee............. $ 10,113
Legal fees and expenses ........................................ $ 250,000
Accounting fees................................................. $ 120,000
Printing and miscellaneous expenses............................. $ 120,000
---------
Total........................................................... $ 500,113
=========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's board of directors to grant, indemnity to directors
and officers under some circumstances for liabilities incurred in connection
with their activities in such capacities (including reimbursement for expenses
incurred). Article TENTH of the Company's Certificate of Incorporation provides
that it will indemnify its directors and officers to the fullest extent
permitted by law and that directors shall not be liable for monetary damages to
the Company or its stockholders for breach of fiduciary duty, except to the
extent not permitted under Delaware General Corporation Law. In addition, the
Company's Amended and Restated Bylaws 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 the Company will be indemnified
to the fullest extent permitted by the Delaware General Corporation Law.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------ -------------------
4.01 Specimen Common Stock Certificate (2)
4.02 Shareholder Rights Agreement dated November 7, 1995 (3)
4.03 First Amendment to Shareholder Rights Agreement dated October 21, 1998 (4)
4.04 Form of Indenture for the Company's 6% Convertible Subordinated Debentures due 2007 (5)
4.05 Second Amendment to Shareholder Rights Agreement dated December 18, 2000 (6)
4.06 Indenture for the 3.25% Convertible Senior Notes due August 1, 2008, between the Company, as issuer,
and Wachovia Bank, National Association, as Trustee, dated as of August 1, 2003 (1)
4.07 Registration Rights Agreement for 3.25% Convertible Senior Notes due August 1, 2008, dated as of
August 1, 2003 (1)
5.01 Opinion of Hogan & Hartson L.L.P. (7)
12.01 Statement of Computation of Ratios of Earnings to Fixed Charges (1)
23.01 Consent of Ernst & Young LLP (1)
23.02 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.01) (7)
24.01 Powers of Attorney (included in the signature page to this registration statement)
25.01 Statement of Eligibility of Trustee on Form T-1 (1)
-------------------
(1) Filed herewith.
(2) 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 7, 1995 (Item 3.02 and 4.02).
(3) Incorporated by reference to the registrant's registration
statement on Form 8-A filed December 7, 1995.
(4) Incorporated by reference to the registrant's Form 8-K filed on
October 26, 1998.
(5) Incorporated by reference to the registrant's Form 10-Q for the
quarter ended March 31, 1997.
II-1
(6) Incorporated by reference to the registrant's Amended Form 8-A
filed January 18, 2001.
(7) To be filed by amendment.
The registrant undertakes to provide to each shareholder requesting the same a
copy of each exhibit referred to herein upon payment of a reasonable fee limited
to the registrant's reasonable expenses in furnishing such exhibit.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities and Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lafayette, State of Indiana, on October 1, 2003.
WABASH NATIONAL CORPORATION
October 1, 2003 By: /s/ Mark R. Holden
_______________________________
Mark R. Holden
Senior Vice President and Chief
Financial Officer
POWER OF ATTORNEY
EACH PERSON WHOSE SIGNATURE APPEARS BELOW CONSTITUTES AND APPOINTS
WILLIAM P. GREUBEL, MARK R. HOLDEN AND CYNTHIA KRETZ, AND EACH OF THEM, WITH
FULL POWER OF SUBSTITUTION AND RESUBSTITUTION AND EACH WITH FULL POWER TO ACT
WITHOUT THE OTHER, HIS OR HER TRUE AND LAWFUL ATTORNEY-IN-FACT AND AGENT, FOR
HIM OR HER AND IN HIS OR HER NAME, PLACE AND STEAD, IN ANY AND ALL CAPACITIES,
TO SIGN ANY AND ALL AMENDMENTS (INCLUDING POST-EFFECTIVE AMENDMENTS) TO THIS
REGISTRATION STATEMENT AND ANY REGISTRATION STATEMENT RELATING TO THIS
REGISTRATION STATEMENT UNDER RULE 462 UNDER THE SECURITIES ACT OF 1933, AND TO
FILE THE SAME, WITH ALL EXHIBITS THERETO, AND ALL OTHER DOCUMENTS IN CONNECTION
THEREWITH, WITH THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE, GRANTING
UNTO SAID ATTORNEYS-IN-FACT AND AGENTS, AND EACH OF THEM, FULL POWER AND
AUTHORITY TO DO AND PERFORM EACH AND EVERY ACT AND THING REQUISITE AND NECESSARY
TO BE DONE IN AND ABOUT THE PREMISES, AS FULLY TO ALL INTENTS AND PURPOSES AS HE
OR SHE MIGHT OR COULD DO IN PERSON, HEREBY RATIFYING AND CONFIRMING ALL THAT
SAID ATTORNEYS-IN-FACT AND AGENTS, OR ANY OF THEM, OR THEIR, HIS OR HER
SUBSTITUTES OR SUBSTITUTE, MAY LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934,
THIS REPORT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS ON BEHALF OF THE
REGISTRANT IN THE CAPACITIES AND ON THE DATE INDICATED.
DATE SIGNATURE AND TITLE
---- -------------------
October 1, 2003 By: /s/ William P. Greubel
-----------------------------------------
William P. Greubel
President, Chief Executive Officer and
Director
(Principal Executive Officer)
October 1, 2003 By: /s/ Mark R. Holden
-----------------------------------------
Mark R. Holden
Senior Vice President and Chief Financial
Officer (Principal Financial Officer and
Principal Accounting Officer)
October 1, 2003 By: /s/ John T. Hackett
-----------------------------------------
John T. Hackett
Chairman of the Board of Directors
October 1, 2003 By: /s/ David C. Burdakin
-----------------------------------------
David C. Burdakin
Director
October 1, 2003 By: /s/ Ludvik F. Koci
-----------------------------------------
Ludvik F. Koci
Director
September 11, 2003 By: /s/ Martin C. Jischke
-----------------------------------------
Dr. Martin C. Jischke
Director
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------ -------------------
4.01 Specimen Common Stock Certificate (2)
4.02 Shareholder Rights Agreement dated November 7, 1995 (3)
4.03 First Amendment to Shareholder Rights Agreement dated October 21, 1998 (4)
4.04 Form of Indenture for the Company's 6% Convertible Subordinated Debentures due 2007 (5)
4.05 Second Amendment to Shareholder Rights Agreement dated December 18, 2000 (6)
4.06 Indenture for the 3.25% Convertible Senior Notes due August 1, 2008, between the Company, as issuer,
and Wachovia Bank, National Association, as Trustee, dated as of August 1, 2003 (1)
4.07 Registration Rights Agreement for 3.25% Convertible Senior Notes due August 1, 2008, dated as of
August 1, 2003 (1)
5.01 Opinion of Hogan & Hartson L.L.P. (7)
12.01 Statement of Computation of Ratios of Earnings to Fixed Charges (1)
23.01 Consent of Ernst & Young LLP (1)
23.02 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.01) (7)
24.01 Powers of Attorney (included in the signature page to this registration statement)
25.01 Statement of Eligibility of Trustee on Form T-1 (1)
-------------------
(1) Filed herewith.
(2) 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 7, 1995 (Item
3.02 and 4.02).
(3) Incorporated by reference to the registrant's registration
statement on Form 8-A filed December 7, 1995.
(4) Incorporated by reference to the registrant's Form 8-K filed
on October 26, 1998.
(5) Incorporated by reference to the registrant's Form 10-Q for
the quarter ended March 31, 1997.
(6) Incorporated by reference to the registrant's Amended Form
8-A filed January 18, 2001.
(7) To be filed by amendment.
II-4