AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 3, 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
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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WILLIAM P. GRUEBEL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
WABASH NATIONAL CORPORATION
1000 SAGAMORE PARKWAY SOUTH,
LAFAYETTE, INDIANA 47905
(765) 771-5300
(name, address, including zip code, and telephone number, including area code,
of agent for service)
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: As soon
as practicable after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: |_|
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, as amended (the "Securities Act") 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, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_| ______
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| ______
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
======================================== ===================== ======================= ========================== =================
Proposed maximum Proposed maximum Amount of
Title of each class of amount to be offering price per Aggregate registration
securities to be registered(1) registered(2) share(2) offering price(1)(3) fee(3)
---------------------------------------- --------------------- ----------------------- -------------------------- -----------------
Debt Securities(4)..................
Preferred Stock(4).................. -- -- $50,000,000 $4,600
Depositary Shares(4)................
Warrants(4).........................
Common Stock(5).....................
Total..........................
---------------------------------------- --------------------- ----------------------- -------------------------- -----------------
(1) An indeterminable aggregate principal amount or number of securities is
being registered as may from time to time be issued at indeterminate prices
with an aggregate initial offering price not to exceed $50,000,000.
(2) Omitted pursuant to General Instruction II D of Form S-3 under the
Securities Act.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(4) In addition to the securities issued directly under this registration
statement, we are registering an indeterminate number of shares of common
stock and preferred stock as may be issued upon conversion or exchange of
the securities issued directly under this registration statement. No
separate consideration will be received for any shares of common stock or
preferred stock so issued upon conversion or exchange.
(5) Includes rights to purchase Series A Junior Participating Preferred Stock
attached to the Common Stock.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON THE DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
PROSPECTUS SUBJECT TO COMPLETION
JANUARY 3, 2003
WABASH NATIONAL CORPORATION
$50,000,000
Debt Securities
Preferred Stock
Depositary Shares
Warrants
Common Stock
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We will provide the specific terms for each of these securities and
their offering prices in supplements to this prospectus. In the case of debt
securities, these terms will include, as applicable, the specific designation,
aggregate principal amount, maturity, rate or formula of interest, premium and
terms for redemption. In the case of shares of preferred stock or depositary
shares, these terms will include, as applicable, the specific title and stated
value, any dividend, liquidation, redemption, conversion, voting and other
rights. In the case of common stock, these terms will include the aggregate
number of shares offered. In the case of warrants to purchase those securities,
the terms will include term, conversion and exercise prices and other terms.
We may sell any combination of these securities in one or more
offerings up to a total dollar amount of $50,000,000.
Our common stock is listed on the New York Stock Exchange under the
symbol "WNC." The closing price on our common stock on the New York Stock
Exchange was $8.50 per share on January 2, 2003. None of the other securities
are currently publicly traded. We may sell these securities to or through
underwriters and also to other purchasers or through agents. We will set forth
the names of any underwriters or agents in the accompanying prospectus
supplement.
You should read carefully this prospectus, the documents incorporated
by reference in this prospectus and any prospectus supplement before you invest.
We strongly recommend that you read carefully the risks we describe in the
accompanying prospectus supplement, as well as the risk factors in our most
current reports to the Securities and Exchange Commission, for a fuller
understanding of the risks and uncertainties that we face. See "Risk Factors" on
page 6.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This prospectus may not be used to consummate sales of securities
unless it is accompanied by a prospectus supplement.
The date of this prospectus is , 2003.
TABLE OF CONTENTS
Page
About This Prospectus.......................................................................2
Where You Can Find More Information.........................................................2
Incorporation by Reference..................................................................3
Summary.....................................................................................4
Ratios of Earnings to Fixed Charges and Earnings to Combined Fixed Charges and
Preferred Stock Dividends.................................................................5
Special Note Regarding Forward-Looking Information..........................................6
Risk Factors................................................................................6
Use of Proceeds.............................................................................6
Plan of Distribution........................................................................6
Description of Common Stock.................................................................8
Description of Preferred Stock.............................................................10
Description of Depositary Shares...........................................................12
Description of Debt Securities.............................................................15
Description of Warrants....................................................................22
Legal Matters..............................................................................23
Experts....................................................................................23
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
process. Under this shelf process, we may offer, from time to time, in one or
more offerings:
- our debt securities;
- shares of our preferred stock;
- depositary shares;
- warrants to purchase our common stock, preferred stock,
depositary shares or debt securities; or
- shares of our common stock.
The total offering price of these securities will not exceed
$50,000,000. This prospectus provides you with a general description of the
securities we may offer. Each time we offer securities, we will provide you with
a prospectus supplement that will describe the specific amounts, prices and
terms of the securities we offer. The prospectus supplement also may add, update
or change information contained in this prospectus.
We may sell the securities to or through underwriters, dealers or
agents or directly to purchasers. We and our agents reserve the sole right to
accept and to reject in whole or in part any proposed purchase of securities.
The prospectus supplement, which we will provide to you each time we offer
securities, will provide the names of any underwriters, dealers or agents
involved in the sale of the securities, and any applicable fee, commission or
discount arrangements with them. See "Plan of Distribution."
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC under the Securities Act of 1933, as amended
(the "Securities Act") a registration statement on Form S-3. This prospectus
does not contain all of the information contained in the registration statement,
certain portions of which have been omitted under the rules of the SEC. We also
file annual, quarterly and special reports, proxy statements and other
information with the SEC under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). The Exchange Act file number for our SEC filings is
001-10883. You may read and copy the registration statement and any other
document we file at the following SEC public reference rooms:
Judiciary Plaza 500 West Madison Street 233 Broadway
450 Fifth Street, N.W. 14th Floor 13th Floor
Rm. 1024 Chicago, Illinois 60661 New York, New York 10279
Washington, D.C. 20549
You may obtain information on the operation of the public reference
room in Washington, D.C. by calling the SEC at 1-800-SEC-0330. We file
information electronically with the SEC. Our SEC filings are available from the
SEC's Internet site at http://www.sec.gov, which contains reports, proxy and
information statements and other information regarding issuers that file
electronically. You may read and copy our SEC filings and other information at
the offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
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INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the documents we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information in documents that we
file later with the SEC will automatically update and supersede information in
this prospectus. We incorporate by reference the documents listed below and any
future filings we will make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, until the offering of our securities under this
registration statement is completed or withdrawn:
- Our Annual Report on Form 10-K for the fiscal year ended
December 31, 2001, as amended on Form 10-K/A filed on April
18, 2002;
- Our Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 2002, June 30, 2002 and September 30, 2002;
- Our Current Reports on Form 8-K filed on April 26, 2002, May
16, 2002, May 31, 2002, August 14, 2002, October 7, 2002,
November 12, 2002 and November 13, 2002;
- 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; and
- 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.
We will provide a copy of the documents we incorporate by reference, at
no cost, to any person who receives this prospectus. To request a copy of any or
all of these documents, you should write or telephone us at: 1000 Sagamore
Parkway South, Lafayette, IN 47905, (765) 771-5300, Attention: Investor
Relations.
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SUMMARY
This summary contains a general summary of the information contained in
this prospectus. It may not include all the information that is important to
you. You should read the entire prospectus, the prospectus supplement delivered
with the prospectus, and the documents incorporated by reference before making
an investment decision.
THE COMPANY
Wabash National Corporation ("Wabash" or "Company") designs,
manufactures and markets standard and customized truck trailers and intermodal
equipment under the Wabash(TM), Fruehauf(R) and RoadRailer(R) trademarks. The
Company's wholly-owned subsidiary North American Trailer Centers(TM) ("NATC")
sells new and used trailers through its retail network, provides maintenance
service for its own and competitors' trailers and related equipment, and offers
rental, leasing and financing programs to its customers for new and used
trailers. Wabash also purchases and produces aftermarket parts which its sells
through its division Wabash National Parts as well as NATC.
Our principal executive offices are located at 1000 Sagamore Parkway
South, Lafayette, Indiana 47905, and our telephone number is (765) 771-5300.
SECURITIES WE ARE OFFERING
We may offer any of the following securities from time to time:
- debt securities
- preferred stock
- depositary shares
- warrants to purchase common stock, preferred stock, depositary
shares or debt securities; or
- common stock
When we use the term "securities" in this prospectus, we mean any of
the securities we may offer with this prospectus, unless we say otherwise. The
total dollar amount of all securities that we may issue will not exceed
$50,000,000. If we issue debt securities at a discount from their original
stated principal amount, then, for purposes of calculating the total dollar
amount of all securities issued under this prospectus, we will treat the initial
offering price of the debt securities as the total original principal amount of
the debt securities. This prospectus, including the following summary, describes
the general terms that may apply to the securities; the specific terms of any
particular securities that we may offer will be described in a separate
supplement to this prospectus.
DEBT SECURITIES. Our debt securities may be senior or subordinated in
right of payment and may be convertible into other securities or property. For
any particular debt securities we offer, the applicable prospectus supplement
will describe the specific designation, the aggregate principal or face amount
and the purchase price; the ranking, whether senior or subordinated; the stated
maturity; the redemption terms, if any; the conversion terms, if any; the rate
or manner of calculating the rate and the payment dates for interest, if any;
the amount or manner of calculating the amount payable at maturity and whether
that amount may be paid by delivering cash, securities or other property; and
any other specific terms. We will issue the senior and subordinated debt
securities under separate indentures between us and a trustee we will identify
in an applicable prospectus supplement.
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PREFERRED STOCK AND DEPOSITARY SHARES. We may offer our preferred stock
in one or more series. For any particular series we offer, the applicable
prospectus supplement will describe the specific designation; the aggregate
number of shares offered; the rate and periods, or manner of calculating the
rate and periods, for dividends, if any; the stated value and liquidation
preference amount, if any; the voting rights, if any; the terms on which the
series will be convertible into or exchangeable for other securities or
property, if any; the redemption terms, if any; and any other specific terms. We
may also offer depositary shares, each of which would represent an interest in a
fractional share or multiple shares of preferred stock. We may issue the
depositary shares under deposit agreements between us and one or more
depositaries.
WARRANTS. We may offer warrants to purchase our debt securities,
preferred stock, depositary shares or common stock.
For any particular warrants we offer, the applicable prospectus
supplement will describe the underlying security; the expiration date; the
exercise price or the manner of determining the exercise price; the amount and
kind, or the manner of determining the amount and kind, of any security to be
delivered by us upon exercise; and any other specific terms. We may issue the
warrants under warrant agreements between us and one or more warrant agents.
COMMON STOCK. We may offer shares of our common stock. Our common stock
currently is traded on the New York Stock Exchange under the symbol "WNC".
LISTING. If any securities are to be listed or quoted on a securities
exchange or quotation system, the applicable prospectus supplement will say so.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
We present below the ratio of our earnings to our fixed charges for
each of the fiscal years ended December 31, 2001, 2000, 1999, 1998 and 1997 and
for the nine months ended September 30, 2002. Any dollar amounts listed under
Earnings Deficiency are in thousands.
FOR THE NINE MONTHS
ENDED
SEPTEMBER 30, 2002 FOR THE YEARS ENDED DECEMBER 31,
-------------------- -----------------------------------------------
2001 2000 1999 1998 1997
---- ---- ---- ---- ----
Ratio of earnings
to fixed charges...... (1.07) (9.00) 0.67 4.50 3.69 2.59
Earnings deficiency... $56,477 $267,195 $9,883 -- -- --
We present below the ratio of our earnings to our combined fixed
charges and preferred stock dividends for each of the fiscal years ended
December 31, 2001, 2000, 1999, 1998 and 1997 and for the nine months ended
September 30, 2002. Any dollar amounts listed under Earnings Deficiency are in
thousands.
FOR THE NINE MONTHS
ENDED
SEPTEMBER 30, 2002 FOR THE YEARS ENDED DECEMBER 31,
------------------- -----------------------------------------------
2001 2000 1999 1998 1997
---- ---- ---- ---- ----
Ratio of earnings
to combined fixed
charges and
preferred stock
dividends............. (1.01) (8.32) 0.61 3.82 3.21 2.40
Earnings deficiency... $58,118 $269,381 $13,003 -- -- --
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SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION
This prospectus, any prospectus supplement and the documents
incorporated herein by reference, contain forward-looking statements. Additional
written or oral forward-looking statements may be made by the Company from time
to time in filings with the SEC or otherwise. The words "believe," "expect,"
"anticipate," and "project" and similar expressions identify forward-looking
statements, which speak only as of the date the statement is made. Such
forward-looking statements are within the meaning of that term in Section 27A of
the Securities Act and Section 21E of the Exchange Act. Such statements may
include, but are not limited to, information regarding revenues, income or loss,
capital expenditures, acquisitions, distributions, growth, plans for future
operations, financing needs or plans, as well as assumptions relating to the
foregoing. Forward-looking statements are inherently subject to risks and
uncertainties, some of which cannot be predicted or quantified. Future events
and actual results could differ materially from those set forth in, contemplated
by or underlying the forward-looking statements. Statements in this prospectus,
including those set forth in "Risk Factors," describe factors, among others,
that could contribute to or cause such differences.
RISK FACTORS
Investing in our common stock involves a high degree of risk. Before
making an investment decision, you should carefully consider the risk factors
set forth in the accompanying prospectus supplement, as well as other
information we include or incorporate by reference in this prospectus and the
additional information in the other reports we file with the SEC. The risks and
uncertainties we have described are not the only ones facing the Company.
Additional risks and uncertainties not presently known to us or that we
currently deem immaterial may also affect us.
USE OF PROCEEDS
Unless we specify otherwise in a prospectus supplement, we intend to
use the net proceeds from the sales of securities to provide additional funds
for our operations, repayment of any then outstanding debt and for other general
corporate purposes. If net proceeds from a specific offering will be used to
repay indebtedness, the applicable prospectus supplement will describe the
relevant terms of the debt to be repaid.
PLAN OF DISTRIBUTION
We may sell the securities being offered hereby in one or more of the
following ways from time to time:
- through agents to the public or to investors;
- to underwriters for resale to the public or to investors; or
- directly to investors.
We will set forth in a prospectus supplement the terms of the offering
of the securities, including:
- the name or names of any agents or underwriters;
- the purchase price of the securities being offered and the
proceeds we will receive from the sale;
- any over-allotment options under which underwriters may
purchase additional securities from us;
- any agency fees or underwriting discounts and other items
constituting agents' or underwriters' compensation;
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- any initial public offering price;
- any discounts or concessions allowed or reallowed or paid to
dealers; and
- any securities exchanges on which the common stock may be
listed.
AGENTS
We may designate agents who agree to use their reasonable or best
efforts to solicit purchases for the period of their appointment or to sell
securities on a continuing basis.
UNDERWRITERS
If we use underwriters for a sale of securities, the underwriters will
acquire the securities for their own account. The underwriters may resell the
securities in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the securities will be subject
to the conditions set forth in the applicable underwriting agreement. The
underwriters will be obligated to purchase all the securities of the series
offered if they purchase any of the securities of that series. We may change
from time to time any initial public offering price and any discounts or
concessions the underwriters allow or reallow or pay to dealers. We may use
underwriters with whom we have a material relationship. We will describe in the
prospectus supplement naming the underwriter the nature of any such
relationship.
DIRECT SALES
We may also sell securities directly to one or more purchasers without
using underwriters or agents.
Underwriters, dealers and agents that participate in the distribution
of the securities may be underwriters as defined in the Securities Act and any
discounts or commissions they receive from us and any profit on their resale of
the securities may be treated as underwriting discounts and commissions under
the Securities Act. We will identify in the applicable prospectus supplement any
underwriters, dealers or agents and will describe their compensation. We may
have agreements with the underwriters, dealers and agents to indemnify them
against specified civil liabilities, including liabilities under the Securities
Act. Underwriters, dealers and agents may engage in transactions with or perform
services for us or our subsidiaries in the ordinary course of their businesses.
TRADING MARKETS AND LISTING OF COMMON STOCK
Unless otherwise specified in the applicable prospectus supplement,
each class or series of securities will be a new issue with no established
trading market, other than our common stock, which is listed on the New York
Stock Exchange. We may elect to list any other class or series of securities on
any exchange, but we are not obligated to do so. It is possible that one or more
underwriters may make a market in a class or series of securities, but the
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. We cannot give any assurance as to the
liquidity of the trading market for any of the securities.
STABILIZATION ACTIVITIES
Any underwriter may engage in overallotment, stabilizing transactions,
short covering transactions and penalty bids in accordance with Regulation M
under the Exchange Act. Overallotment involves sales in excess of the offering
size, which create a short position. Stabilizing transactions permit bids to
purchase the underlying security so long as the stabilizing bids do not exceed a
specified maximum. Short covering transactions involve purchases of the
securities in the open market after the distribution is completed to cover short
positions. Penalty bids permit the underwriters to reclaim a selling concession
from a dealer when the securities originally sold by the dealer are purchased in
a covering transaction to cover short positions. Those activities may cause the
price of the securities to be higher than it would otherwise be. If commenced,
the underwriters may discontinue any of the activities at any time.
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DESCRIPTION OF COMMON STOCK
The following description of our common stock, together with the
additional information we include in any applicable prospectus supplements,
summarizes the material terms and provisions of the common stock that we may
offer under this prospectus. For the complete terms of our common stock, please
refer to our certificate of incorporation and bylaws that are filed as exhibits
to our reports incorporated by reference into the registration statement that
includes this prospectus. The General Corporation Law of Delaware, as amended,
may also affect the terms of our common stock.
GENERAL
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
January 2, 2003, there were 25,644,238 shares of common stock issued and
outstanding. In addition, approximately 2.2 million 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 credit facilities, we are not
permitted to pay dividends on our common stock without waiver of these
restrictions by our lenders.
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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 certificate of incorporation 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 under this
prospectus, 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 the Company on terms that are favorable
and fair to all stockholders and will not 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.
9
We also maintain directors' and officers' liability insurance.
DESCRIPTION OF PREFERRED STOCK
The following description of our preferred stock, together with the
additional information we include in any prospectus supplements, summarizes the
material terms and provisions of the preferred stock that we may offer under
this prospectus. For the complete terms of our preferred stock, please refer to
our certificate of incorporation and bylaws that are filed as exhibits to our
reports incorporated by reference into the registration statement that includes
this prospectus. The General Corporation Law of Delaware, as amended, may also
affect the terms of our common stock.
GENERAL
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 January 2, 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 the registration
statement that includes this prospectus.
LIQUIDATION RIGHTS. In the event of any dissolution, liquidation or
winding up of the Company (including, at the option of the holders of 50% of the
Series B Preferred Stock, a sale of substantially all the assets of the Company
or a merger or consolidation of the Company with any other non-affiliated entity
where the stockholders of the Company prior to such merger or consolidation no
longer hold a majority of the equity securities of the Company), holders of
Series B Preferred Stock will be entitled to receive out of the remaining assets
of the Company 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 the Company.
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 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 the Company. 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 (a "Dividend Default"), then the number
of directors
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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. Due to restrictions under existing covenants in our credit facilities,
we have not paid dividends to holders of the Series B Preferred Stock for the
June 15, September 15 and December 15, 2002 dividend payment dates, and we are
not permitted to pay such dividends without waiver of these restrictions by our
lenders.
REDEMPTION RIGHTS. At any time, as long as all accrued dividends have
been paid on the Series B Preferred Stock, the Company 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 filed as an exhibit to the
registration statement of which this prospectus is a part. 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,
the Company 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 shares of 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
the Company; 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.
PREFERRED STOCK THAT WE MAY OFFER AND SELL TO YOU
Our board is authorized to issue the 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.
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 prospectus supplement 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;
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- 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.
We will describe the specific terms of a particular series of preferred
stock in the prospectus supplement relating to that series. The description of
preferred stock above and the description of the terms of a particular series of
preferred stock in the prospectus supplement are not complete. You should refer
to the applicable certificate of designations for complete information. The
prospectus supplement will also contain a description of U.S. federal income tax
consequences relating to the preferred stock, if material.
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.
TRANSFER AGENT AND REGISTRAR. The Transfer agent and Registrar for the
preferred stock will be set forth in the applicable prospectus supplement.
DESCRIPTION OF DEPOSITARY SHARES
The following description is a general summary of the terms of the
depositary shares which we may issue. This summary does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all of the provisions of the applicable deposit agreement and related depositary
receipts. Specific deposit agreements and depositary receipts will contain
additional important terms and provisions and will be filed as exhibits to
reports incorporated by reference into the registration statement which includes
this prospectus before we issue any depositary shares. This summary of deposit
agreements, depositary shares and depositary receipts relates to terms and
conditions applicable to these types of securities generally. The particular
terms of any series of depositary shares will be summarized in the applicable
prospectus supplement and may be different from the terms summarized below, to
the extent indicated in the applicable prospectus supplement.
GENERAL
We may issue depositary receipts for depositary shares, each of which
will represent a fractional interest of a share of a particular series of
preferred stock, as specified in the applicable prospectus supplement. Shares of
preferred stock of each series represented by depositary shares will be
deposited under a separate deposit agreement between the "depositary" named in
the deposit agreement and us. Subject to the terms of the deposit agreement,
each owner of a depositary receipt will be entitled, in proportion to the
fractional interest of a share of a particular series of preferred stock
represented by the depositary shares evidenced by that depositary receipt, to
all the rights
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and preferences of the preferred stock represented by those depositary shares,
including dividend, voting, conversion, redemption and liquidation rights.
The depositary shares will be evidenced by depositary receipts issued
pursuant to the applicable deposit agreement. Immediately following the issuance
and delivery of our preferred stock to the depositary, we will cause the
depositary to issue, on our behalf, the depositary receipts. Copies of the
applicable form of deposit agreement and depositary receipt may be obtained from
us upon request, and the statements made in this summary relating to the deposit
agreement and the depositary receipts to be issued under the deposit agreement
are summaries of provisions of the deposit agreement and the related depositary
receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash dividends or other cash
distributions received in respect of the preferred stock to the record holders
of depositary receipts evidencing the related depositary shares in proportion to
the number of such depositary receipts owned by such holders, subject to the
obligations of holders to file proofs, certificates and other information and to
pay some charges and expenses to the depositary.
In the event of a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary receipts
entitled to that property, subject to the obligations of holders to file proofs,
certificates and other information and to pay some charges and expenses to the
depositary, unless the depositary determines that it is not feasible to make the
distribution, in which case the depositary may, with our approval, sell the
property and distribute the net proceeds from the sale to the holders.
No distribution will be made in respect of any depositary share to the
extent that it represents any preferred stock converted into other securities.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of the depositary receipts at the corporate trust office
of the depositary, unless the related depositary shares have previously been
redeemed or converted into other securities, the holders of those depositary
receipts will be entitled to delivery of the number of whole or fractional
shares of the preferred stock and any money or other property represented by the
depositary shares evidenced by the depositary receipts. If the holder delivers
depositary receipts evidencing a number of depositary shares greater than the
number of depositary shares representing the number of shares of preferred stock
to be withdrawn, the depositary will deliver to the holder at the same time a
new depositary receipt evidencing the balance.
REDEMPTION OF DEPOSITARY SHARES
Whenever we redeem shares of preferred stock held by the depositary,
the depositary will redeem the number of depositary shares representing shares
of the preferred stock so redeemed, provided we have paid in full to the
depositary the redemption price of the preferred stock to be redeemed plus an
amount equal to any dividends on the preferred stock accrued and unpaid to the
date fixed for redemption. The redemption price per depositary share will be
equal to the corresponding proportion of the redemption price and any other
amounts per share payable with respect to the preferred stock. If fewer than all
the depositary shares are to be redeemed, the depositary shares to be redeemed
will be selected pro rata, as nearly as may be practicable without creating
fractional depositary shares, or by another equitable method.
From and after the date fixed for redemption, all dividends in respect
of the shares of preferred stock called for redemption will cease to accrue, the
depositary shares called for redemption will no longer be deemed to be
outstanding and all rights of the holders of the depositary receipts evidencing
the depositary shares called for redemption will cease, except the right to
receive any moneys payable upon the redemption and any money or other property
to which the holders of the depositary receipts were entitled upon the
redemption and surrender thereof to the depositary.
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VOTING OF THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
preferred stock are entitled to vote, the depositary will mail the information
contained in the notice of meeting to the record holders of the depositary
receipts evidencing the depositary shares which represent such preferred stock.
Each record holder of these depositary receipts on the record date will be
entitled to instruct the depositary as to the exercise of the voting rights
pertaining to the amount of preferred stock represented by the holder's
depositary shares. The depositary will vote the amount of preferred stock
represented by the depositary shares in accordance with the instructions, and we
will agree to take all reasonable action which may be deemed necessary by the
depositary in order to enable the depositary to do so. The depositary will
abstain from voting the amount of preferred stock represented by the depositary
shares to the extent it does not receive specific instructions from the holders
of depositary receipts evidencing the depositary shares. The depositary shall
not be responsible for any failure to carry out any instruction to vote, or for
the manner or effect of any such vote made, as long as such action or non-action
is in good faith and does not result form the depositary's negligence or willful
misconduct.
LIQUIDATION PREFERENCE
In the event of our liquidation, dissolution or winding up, whether
voluntary or involuntary, the holders of each depositary receipt will be
entitled to the fraction of the liquidation preference accorded each share of
preferred stock represented by the depositary shares evidenced by such
depositary receipt, as set forth in the applicable prospectus supplement.
CONVERSION OF PREFERRED STOCK
The depositary shares, as such, are not convertible into our common
stock or any of our other securities or property. Nevertheless, if specified in
the applicable prospectus supplement relating to an offering of depositary
shares, the depositary receipts may be surrendered by their holders to the
depositary with written instructions to the depositary to instruct us to cause
conversion of the preferred stock represented by the depositary shares evidenced
by the depositary receipts into whole shares of our common stock, other shares
of our preferred stock or other of our equity or debt securities. We have agreed
that upon receipt of those instructions and any amounts payable in respect
thereof, we will cause the conversion thereof utilizing the same procedures as
those provided for delivery of preferred stock to effect such conversion. If the
depositary shares evidenced by a depositary receipt are to be converted in part
only, a new depositary receipt or receipts will be issued for any depositary
shares not to be converted. No fractional shares of common stock will be issued
upon conversion, and if such conversion would result in a fractional share being
issued, we will pay an amount in cash equal to the value of the fractional
interest based upon the average of the closing prices of the common stock for a
specified period of time prior to the conversion.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares which
represent the preferred stock and any provision of the deposit agreement may at
any time be amended by agreement between the depositary and us. However, any
amendment that materially and adversely alters the rights of the holders of
depositary receipts or that would be materially and adversely inconsistent with
the rights granted to the holders of the related preferred stock will not be
effective unless such amendment has been approved by the existing holders of at
least a majority of the depositary shares evidenced by the depositary receipts
then outstanding. Subject to certain exceptions in the deposit agreement, no
amendment may impair the right of any holder of depositary receipts to surrender
any depositary receipt with instructions to deliver to the holder the related
preferred stock and all money and other property, if any, represented thereby,
except in order to comply with law. Every holder of an outstanding depositary
receipt at the time any such amendment becomes effective shall be deemed, by
continuing to hold such receipt, to consent and agree to such amendment and to
be bound by the deposit agreement as amended thereby.
Unless specified otherwise in the applicable prospectus supplement, we
may terminate the deposit agreement upon not less than 30 days' prior written
notice to the depositary if a majority of each class of depositary shares
affected by such termination consents, at which time the depositary will deliver
or make available to each
14
holder of depositary receipts, upon surrender of the depositary receipts held by
such holder, such number of whole or fractional shares of preferred stock as are
represented by the depositary shares evidenced by such depositary receipts,
together with any other property held by the depositary with respect to such
depositary receipt. In addition, the deposit agreement will automatically
terminate if:
- all outstanding depositary shares shall have been redeemed,
- there shall have been a final distribution in respect of the
related preferred stock in connection with any liquidation,
dissolution or winding up of our company and such distribution
shall have been distributed to the holders of depositary
receipts evidencing the depositary shares representing such
preferred stock, or
- each share of the related preferred stock shall have been
converted into our securities not represented by depositary
shares.
CHARGES OF PREFERRED STOCK DEPOSITARY
We will pay all transfer and other taxes and governmental charges
arising solely from the existence of the deposit agreement. In addition, we will
pay the fees and expenses of the depositary in connection with the performance
of its duties under the deposit agreement. However, holders of depositary
receipts will pay the fees and expenses of the depositary for any duties the
holders request it to perform which are outside of those expressly provided for
in the deposit agreement.
MISCELLANEOUS
The depositary will forward to holders of depositary receipts any
reports and communications from us which the depositary receives with respect to
the related preferred stock.
Unless specified otherwise in the applicable prospectus supplement,
neither we nor the depositary will be liable if either of us is prevented from
or delayed in performing its obligations under the deposit agreement. The
obligations of the depositary and our company under the deposit agreement will
be limited to performing their duties thereunder in good faith and without
negligence, in the case of any action or inaction in the voting of preferred
stock represented by the depositary shares, gross negligence or willful
misconduct. We and the depositary will not be obligated to prosecute or defend
any legal proceeding in respect of any depositary receipts, depositary shares or
shares of preferred stock represented thereby unless satisfactory indemnity is
furnished. We and the depositary may rely on written advice of counsel or
accountants, or information provided by persons presenting shares of preferred
stock represented thereby for deposit, holders of depositary receipts or other
persons believed in good faith to be competent to give such information, and on
documents believed in good faith to be genuine and signed by a proper party.
In the event the depositary shall receive conflicting claims, requests
or instructions from any holders of depositary receipts, on the one hand, and
us, on the other hand, the depositary shall be entitled to act on such claims,
requests or instructions received from us.
DESCRIPTION OF DEBT SECURITIES
We may offer any combination of senior debt securities or subordinated
debt securities. Debt securities are unsecured obligations to repay advanced
funds. We may issue the senior debt securities and the subordinated debt
securities under separate indentures between us, as issuer, and the trustee or
trustees identified in the prospectus supplement. The form for each type of
indenture is filed as an exhibit to the registration statement of which this
prospectus is a part.
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The prospectus supplement will describe the particular terms of any
debt securities we may offer and may differ from the terms summarized below. The
following summaries of the debt securities and the indentures are not complete.
We urge you to read the indentures filed as exhibits to the registration
statement which includes this prospectus and the description of the debt
securities included in the prospectus supplement.
GENERAL
We may issue an unlimited principal amount of debt securities in
separate series. We may specify a maximum aggregate principal amount for the
debt securities of any series. The debt securities will have terms that are
consistent with the indentures. Unless the prospectus supplement indicates
otherwise, senior debt securities will be unsecured and unsubordinated
obligations and will rank equal with all our other unsecured and unsubordinated
debt. Subordinated debt securities will be paid only if all payments due under
our senior indebtedness, including any outstanding senior debt securities, have
been made. Under our existing credit facilities, we are restricted from
incurring additional indebtedness without the consent of the lenders.
The indentures might not limit the amount of other debt that we may
incur or whether that debt is senior to the debt securities offered by this
prospectus, and might not contain financial or similar restrictive covenants.
The indentures might not contain any provision to protect holders of debt
securities against a sudden or dramatic decline in our ability to pay our debt.
The prospectus supplement will describe the debt securities and the
price or prices at which we will offer the debt securities. The description will
include:
- the title and form of the debt securities;
- any limit on the aggregate principal amount of the debt
securities or the series of which they are a part;
- the person to whom any interest on a debt security of the
series will be paid;
- the date or dates on which we must repay the principal;
- the rate or rates at which the debt securities will bear
interest, if any, the date or dates from which interest will
accrue, and the dates on which we must pay interest;
- if applicable, the duration and terms of the right to extend
interest payment periods;
- the place or places where we must pay the principal and any
premium or interest on the debt securities;
- the terms and conditions on which we may redeem any debt
security, if at all;
- any obligation to redeem or purchase any debt securities, and
the terms and conditions on which we must do so;
- the denominations in which we may issue the debt securities;
- the manner in which we will determine the amount of principal
of or any premium or interest on the debt securities;
- the currency in which we will pay the principal of and any
premium or interest on the debt securities;
- the principal amount of the debt securities that we will pay
upon declaration of acceleration of their maturity;
- the amount that will be deemed to be the principal amount for
any purpose, including the principal amount that will be due
and payable upon any maturity or that will be deemed to be
outstanding as of any date;
- if applicable, that the debt securities are defeasible and the
terms of such defeasance;
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- if applicable, the terms of any right to convert debt
securities into, or exchange debt securities for, shares of
common stock or other securities or property;
- whether we will issue the debt securities in the form of one
or more global securities and, if so, the respective
depositaries for the global securities and the terms of the
global securities;
- the subordination provisions that will apply to any
subordinated debt securities;
- any addition to or change in the events of default applicable
to the debt securities and any change in the right of the
trustee or the holders to declare the principal amount of any
of the debt securities due and payable; and
- any addition to or change in the covenants in the indentures.
We may sell the debt securities at a substantial discount below their
stated principal amount. We will describe U.S. federal income tax
considerations, if any, applicable to debt securities sold at an original issue
discount in the prospectus supplement. An "original issue discount security" is
any debt security sold for less than its face value, and which provides that the
holder cannot receive the full face value if maturity is accelerated. The
prospectus supplement relating to any original issue discount securities will
describe the particular provisions relating to acceleration of the maturity upon
the occurrence of an event of default. In addition, we will describe U.S.
federal income tax or other considerations applicable to any debt securities
that are denominated in a currency or unit other than U.S. dollars in the
prospectus supplement.
CONVERSION AND EXCHANGE RIGHTS
The prospectus supplement will describe, if applicable, the terms on
which you may convert debt securities into or exchange them for common stock or
other securities or property. The conversion or exchange may be mandatory or may
be at your option. The prospectus supplement will describe how the number of
shares of common stock or other securities or property to be received upon
conversion or exchange would be calculated.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless the prospectus supplement indicates otherwise, the following
provisions will apply to the subordinated debt securities. The indebtedness
underlying the subordinated debt securities will be payable only if all payments
due under our senior indebtedness, including any outstanding senior debt
securities, have been made. If we distribute our assets to creditors upon any
dissolution, winding-up, liquidation or reorganization or in bankruptcy,
insolvency, receivership or similar proceedings, we must first pay all amounts
due or to become due on all senior indebtedness before we pay the principal of,
or any premium or interest on, the subordinated debt securities. In the event
the subordinated debt securities are accelerated because of an event of default,
we may not make any payment on the subordinated debt securities until we have
paid all senior indebtedness or the acceleration is rescinded. If the payment of
subordinated debt securities accelerates because of an event of default, we must
promptly notify holders of senior indebtedness of the acceleration.
If we experience a bankruptcy, dissolution or reorganization, holders
of senior indebtedness may receive more, ratably, and holders of subordinated
debt securities may receive less, ratably, than our other creditors. The
indenture for subordinated debt securities may not limit our ability to incur
additional senior indebtedness.
FORM, EXCHANGE AND TRANSFER
We will issue debt securities only in fully registered form, without
coupons, and, unless the prospectus supplement indicates otherwise, only in
denominations of $1,000 and integral multiples thereof. The holder of a debt
security may elect, subject to the terms of the indentures and the limitations
applicable to global securities, to exchange them for other debt securities of
the same series of any authorized denomination and of similar terms and
aggregate principal amount.
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Holders of debt securities may present them for exchange as provided
above or for registration of transfer, duly endorsed or with the form of
transfer duly executed, at the office of the transfer agent we designate for
that purpose. We will not impose a service charge for any registration of
transfer or exchange of debt securities, but we may require a payment sufficient
to cover any tax or other governmental charge payable in connection with the
transfer or exchange. We will name the transfer agent in the prospectus
supplement. We may designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office through
which any transfer agent acts, but we must maintain a transfer agent in each
place where we will make payment on debt securities.
If we redeem the debt securities, we will not be required to issue,
register the transfer of or exchange any debt security during a specified period
prior to mailing a notice of redemption. We are not required to register the
transfer of or exchange of any debt security selected for redemption, except the
unredeemed portion of the debt security being redeemed.
GLOBAL SECURITIES
The debt securities may be represented, in whole or in part, by one or
more global securities that will have an aggregate principal amount equal to
that of all debt securities of that series. Each global security will be
registered in the name of a depositary identified in the prospectus supplement.
We will deposit the global security with the depositary or a custodian, and the
global security will bear a legend regarding the restrictions on exchanges and
registration of transfer.
No global security may be exchanged in whole or in part for debt
securities registered, and no transfer of a global security in whole or in part
may be registered, in the name of any person other than the depositary or any
nominee or successor of the depositary unless:
- the depositary is unwilling or unable to continue as
depositary; or
- the depository is no longer in good standing under the
Exchange Act or other applicable statute or regulation.
The depositary will determine how all securities issued in exchange for
a global security will be registered.
As long as the depositary or its nominee is the registered holder of a
global security, we will consider the depositary or the nominee to be the sole
owner and holder of the global security and the underlying debt securities.
Except as stated above, owners of beneficial interests in a global security will
not be entitled to have the global security or any debt security registered in
their names, will not receive physical delivery of certificated debt securities
and will not be considered to be the owners or holders of the global security or
underlying debt securities. We will make all payments of principal, premium and
interest on a global security to the depositary or its nominee. The laws of some
jurisdictions require that some purchasers of securities take physical delivery
of such securities in definitive form. These laws may prevent you from
transferring your beneficial interests in a global security.
Only institutions that have accounts with the depositary or its nominee
and persons that hold beneficial interests through the depositary or its nominee
may own beneficial interests in a global security. The depositary will credit,
on its book-entry registration and transfer system, the respective principal
amounts of debt securities represented by the global security to the accounts of
its participants. Ownership of beneficial interests in a global security will be
shown only on, and the transfer of those ownership interests will be effected
only through, records maintained by the depositary or any such participant.
The policies and procedures of the depositary may govern payments,
transfers, exchanges and others matters relating to beneficial interests in a
global security. We and the trustee will assume no responsibility or liability
for any aspect of the depositary's or any participant's records relating to, or
for payments made on account of, beneficial interests in a global security.
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PAYMENT AND PAYING AGENTS
Unless the prospectus supplement indicates otherwise, we will pay
principal and any premium or interest on a debt security to the person in whose
name the debt security is registered at the close of business on the regular
record date for such interest.
Unless the prospectus supplement indicates otherwise, we will pay
principal and any premium or interest on the debt securities at the office of
our designated paying agent. Unless the prospectus supplement indicates
otherwise, the corporate trust office of the trustee will be the paying agent
for the debt securities.
Any other paying agents we designate for the debt securities of a
particular series will be named in the prospectus supplement. We may designate
additional paying agents, rescind the designation of any paying agent or approve
a change in the office through which any paying agent acts, but we must maintain
a paying agent in each place of payment for the debt securities.
The paying agent will return to us all money we pay to it for the
payment of the principal, premium or interest on any debt security that remains
unclaimed for a specified period. Thereafter, the holder may look only to us for
payment, as an unsecured general creditor.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Under the terms of the indentures, so long as any securities remain
outstanding, we may not consolidate or enter into a share exchange with or merge
into any other person, in a transaction in which we are not the surviving
corporation, or sell, convey, transfer or lease our properties and assets
substantially as an entirety to any person, unless:
- the successor assumes our obligations under the debt
securities and the indentures; and
- we meet the other conditions described in the indentures.
EVENTS OF DEFAULT
Each of the following will constitute an event of default under each
indenture:
- failure to pay the principal of or any premium on any debt
security when due;
- failure to pay any interest on any debt security when due, for
more than a specified number of days past the due date;
- failure to deposit any sinking fund payment when due;
- failure to perform any covenant or agreement in the indenture
that continues for a specified number of days after written
notice has been given by the trustee or the holders of a
specified percentage in aggregate principal amount of the debt
securities of that series;
- certain events of bankruptcy, insolvency or reorganization;
and
- any other event of default specified in the prospectus
supplement.
If an event of default occurs and continues, both the trustee and
holders of a specified percentage in aggregate principal amount of the
outstanding securities of that series may declare the principal amount of the
debt securities of that series to be immediately due and payable. The holders of
a majority in aggregate principal amount of the outstanding securities of that
series may, under certain circumstances, rescind and annul the acceleration if
all events of default, other than the nonpayment of accelerated principal, have
been cured or waived.
Except for certain duties in case of an event of default, the trustee
will not be obligated to exercise any of its rights or powers at the request or
direction of any of the holders, unless the holders have offered the trustee
19
reasonable indemnity. If they provide this indemnification, the holders of a
majority in aggregate principal amount of the outstanding securities of any
series may direct the time, method and place of conducting any proceeding for
any remedy available to the trustee or exercising any trust or power conferred
on the trustee with respect to the debt securities of that series.
No holder of a debt security of any series may institute any proceeding
with respect to the indentures, or for the appointment of a receiver or a
trustee, or for any other remedy, unless:
- the holder has previously given the trustee written notice of
a continuing event of default;
- the holders of a specified percentage in aggregate principal
amount of the outstanding securities of that series have made
a written request upon the trustee, and have offered
reasonable indemnity to the trustee, to institute the
proceeding;
- the trustee has failed to institute the proceeding for a
specified period of time after its receipt of the
notification; and
- the trustee has not received a direction inconsistent with the
request within a specified number of days.
MODIFICATION AND WAIVER
We and the trustee may change an indenture without the consent of any
holders with respect to specific matters, including:
- to fix any ambiguity, defect or inconsistency in the
indenture; and
- to change anything that does not materially adversely affect
the interests of any holder of debt securities of any series.
In addition, under the indentures, the rights of holders of a series of
notes may be changed by us and the trustee with the written consent of the
holders of at least a majority in aggregate principal amount of the outstanding
debt securities of each series that is affected. However, we and the trustee may
only make the following changes with the consent of the holder of any
outstanding debt securities affected:
- extending the fixed maturity of the series of notes;
- reducing the principal amount, reducing the rate of or
extending the time of payment of interest, or any premium
payable upon the redemption, of any debt securities; or
- reducing the percentage of debt securities the holders of
which are required to consent to any amendment.
The holders of a majority in principal amount of the outstanding debt
securities of any series may waive any past default under the indenture with
respect to debt securities of that series, except a default in the payment of
principal, premium or interest on any debt security of that series or in respect
of a covenant or provision of the indenture that cannot be amended without each
holder's consent.
Except in certain limited circumstances, we may set any day as a record
date for the purpose of determining the holders of outstanding debt securities
of any series entitled to give or take any direction, notice, consent, waiver or
other action under the indentures. In certain limited circumstances, the trustee
may set a record date. To be effective, the action must be taken by holders of
the requisite principal amount of such debt securities within a specified period
following the record date.
DEFEASANCE
To the extent stated in the prospectus supplement, we may elect to
apply the provisions in the indentures relating to defeasance and discharge of
indebtedness, or to defeasance of certain restrictive covenants, to the debt
20
securities of any series. The indentures provide that, upon satisfaction of the
requirements described below, we may terminate all of our obligations under the
debt securities of any series and the applicable indenture, known as legal
defeasance, other than our obligation:
- to maintain a registrar and paying agents and hold moneys for
payment in trust;
- to register the transfer or exchange of the notes; and
- to replace mutilated, destroyed, lost or stolen notes.
In addition, we may terminate our obligation to comply with any
restrictive covenants under the debt securities of any series or the applicable
indenture, known as covenant defeasance.
We may exercise our legal defeasance option even if we have previously
exercised our covenant defeasance option. If we exercise either defeasance
option, payment of the notes may not be accelerated because of the occurrence of
events of default.
To exercise either defeasance option as to debt securities of any
series, we must irrevocably deposit in trust with the trustee money and/or
obligations backed by the full faith and credit of the United States that will
provide money in an amount sufficient in the written opinion of a nationally
recognized firm of independent public accountants to pay the principal of,
premium, if any, and each installment of interest on the debt securities. We may
only establish this trust if, among other things:
- no event of default shall have occurred or be continuing;
- in the case of legal defeasance, we have delivered to the
trustee an opinion of counsel to the effect that we have
received from, or there has been published by, the Internal
Revenue Service a ruling or there has been a change in law,
which in the opinion of our counsel, provides that holders of
the debt securities will not recognize gain or loss for
federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income
tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit, defeasance
and discharge had not occurred;
- in the case of covenant defeasance, we have delivered to the
trustee an opinion of counsel to the effect that the holders
of the debt securities will not recognize gain or loss for
federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income
tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit, defeasance
and discharge had not occurred; and
- we satisfy other customary conditions precedent described in
the applicable indenture.
NOTICES
We will mail notices to holders of debt securities as indicated in the
prospectus supplement.
TITLE
We may treat the person in whose name a debt security is registered as
the absolute owner, whether or not such debt security may be overdue, for the
purpose of making payment and for all other purposes.
GOVERNING LAW
The indentures and the debt securities will be governed by and
construed in accordance with the laws of the state of New York.
21
DESCRIPTION OF WARRANTS
GENERAL
The following description, together with the additional information we
may include in any applicable prospectus supplements, summarizes the material
terms and provisions of the warrants that we may offer under this prospectus and
the related warrant agreements and warrant certificates. While the terms
summarized below will apply generally to any warrants we may offer, we will
describe the particular terms of any series of warrants in more detail in the
applicable prospectus supplement and may differ from the terms described below.
We may issue, together with other securities or separately, warrants to
purchase our debt securities, common stock, preferred stock or depositary
shares. We will issue the warrants under warrant agreements to be entered into
between us and a bank or trust company, as warrant agent, all as shall be set
forth in the applicable prospectus supplement. The warrant agent will act solely
as our agent in connection with the warrants of the series being offered and
will not assume any obligation or relationship of agency or trust for or with
any holders or beneficial owners of warrants.
The applicable prospectus supplement will describe the following terms,
where applicable, of warrants in respect of which this prospectus is being
delivered:
- the title of the warrants;
- the designation, amount and terms of the securities for which
the warrants are exercisable and the procedures and conditions
relating to the exercise of such warrants;
- the designation and terms of the other securities, if any,
with which the warrants are to be issued and the number of
warrants issued with each such security;
- the price or prices at which the warrants will be issued;
- the aggregate number of warrants;
- any provisions for adjustment of the number or amount of
securities receivable upon exercise of the warrants or the
exercise price of the warrants;
- the price or prices at which the securities purchasable upon
exercise of the warrants may be purchased;
- if applicable, the date on and after which the warrants and
the securities purchasable upon exercise of the warrants will
be separately transferable;
- if applicable, a discussion of the material U.S. federal
income tax considerations applicable to the exercise of the
warrants;
- any other terms of the warrants, including terms, procedures
and limitations relating to the exchange and exercise of the
warrants;
- any other terms of the warrants, including terms, procedures
and limitations relating to the exchange and exercise of the
warrants;
- the date on which the right to exercise the warrants shall
commence, and the date on which the right shall expire;
- the maximum or minimum number of warrants which may be
exercised at any time; and
- information with respect to book-entry procedures, if any.
Before exercising their warrants, holders of warrants will not have any
of the rights of holders of the securities purchasable upon such exercise,
including:
22
- in the case of warrants to purchase debt securities, the right
to receive payments of principal of, or premium, if any, or
interest on, the debt securities purchasable upon exercise or
to enforce covenants in the applicable indenture; or
- in the case of warrants to purchase common stock or preferred
stock, the right to receive dividends, if any, or payments
upon our liquidation, dissolution or winding up or to exercise
voting rights, if any.
EXERCISE OF WARRANTS
Each warrant will entitle the holder thereof to purchase for cash the
amount of debt securities, shares of preferred stock, shares of common stock, or
depositary shares at the exercise price as shall in each case be set forth in,
or be determinable as set forth in, the applicable prospectus supplement.
Warrants may be exercised at any time up to the close of business on the
expiration date set forth in the applicable prospectus supplement. After the
close of business on the expiration date, unexercised warrants will become void.
Warrants may be exercised as set forth in the applicable prospectus
supplement relating to the warrants offered thereby. Upon receipt of payment and
the warrant certificate properly completed and duly executed at the corporate
trust office of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will, as soon as practicable, forward the
purchased securities. If less than all of the warrants represented by the
warrant certificate are exercised, a new warrant certificate will be issued for
the remaining warrants.
ENFORCEABILITY OF RIGHTS OF HOLDERS OF WARRANTS
Each warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or relationship of agency
or trust with any holder of any warrant. A single bank or trust company may act
as a warrant agent for more than one issue of warrants. A warrant agent will
have no duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate
any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder
of any other warrant, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, that holder's warrants.
LEGAL MATTERS
Hogan & Hartson L.L.P., Baltimore, Maryland, will provide us with an
opinion as to legal matters in connection with the securities we are offering.
If the offered securities are distributed in an underwritten offering or through
agents, various legal matters may be passed upon for any underwriters or agents
by their counsel identified in the applicable prospectus supplement.
EXPERTS
Arthur Andersen LLP, independent auditors, audited our financial
statements included in our annual report on Form 10-K for the year ended
December 31, 2001, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in this registration statement.
Arthur Andersen LLP has not consented to the inclusion of their report in the
registration statement and in reliance upon Rule 437a of the Securities Act we
have not therefore filed their consent. Because Arthur Andersen LLP has not
consented to the inclusion of their report in the registration statement, it may
become more difficult for you to seek remedies against Arthur Andersen LLP in
connection with any material misstatement or omission that may be contained in
our consolidated financial statements and schedules for such periods. In
particular, and without limitation, you will not be able to recover against
Arthur Andersen LLP under Section 11 of the Securities Act for any untrue
statement of a material fact contained in the financial statements audited by
Arthur Andersen LLP or any omission of a material fact required to be stated in
those financial statements.
23
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the fees and expenses in connection with
the issuance and distribution of the securities being registered. Except for the
SEC registration fee, all amounts are estimates.
Securities and Exchange Commission registration fee........... $ 4,600
Transfer agent's and trustee's fees and expenses.............. *
Printing and engraving expenses............................... *
Legal fees and expenses....................................... *
Accounting fees and expenses.................................. *
Miscellaneous expenses........................................ *
Total.................................................... $ *
* To be provided by amendment to this registration statement.
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 our Certificate of Incorporation provides that we
will indemnify our directors and officers to the fullest extent permitted by law
and that directors shall not be liable for monetary damages to us or our
stockholders for breach of fiduciary duty, except to the extent not permitted
under Delaware General Corporation Law. In addition, our 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 us will be indemnified to the fullest extent permitted by the
Delaware General Corporation Law.
-II-1-
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
EXHIBIT
NUMBER DESCRIPTION
------- -----------
1.01 Form of Underwriting Agreement (1)
3.01 Certificate of Incorporation of the Company (2)
3.02 Certificate of Designations of Series A Junior Participating
Preferred Stock (2)
3.03 Amended and Restated By-laws of the Company (3)
3.04 Certificate of Designations of Series B 6% Cumulative Convertible
Exchangeable Preferred Stock (4)
4.01 Specimen Common Stock Certificate (2)
4.02 Shareholder Rights Agreement dated November 7, 1995 (5)
4.03 First Amendment to Shareholder Rights Agreement dated October 21,
1998 (6)
4.04 Form of Indenture for the Company's 6% Convertible Subordinated
Debentures due 2007 (7)
4.05 Second Amendment to Shareholder Rights Agreement dated December
18, 2000 (8)
4.06 Form of Senior Indenture (1)
4.07 Form of Subordinated Indenture (1)
4.08 Certificate of Designations of Preferred Stock (1)
4.09 Form of Preferred Stock Certificate (1)
4.10 Form of Deposit Agreement (1)
4.11 Form of Warrant (1)
5.01 Opinion of Hogan & Hartson L.L.P. (1)
12.01 Statement of Computation of Ratios of Earnings to Fixed Charges
and Earnings to Combined Fixed Charges and Preferred Stock
Dividends (filed herewith)
23.01 Consent of Hogan & Hartson L.L.P. (included in their opinion
filed as Exhibit 5.01) (1)
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) To be filed, if necessary, by amendment or as an exhibit to a
report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange
Act.
(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 Annual Report
on Form 10-K for the year ended December 31, 2001.
(4) Incorporated by reference to the registrant's Form 10-Q for
the quarter ended March 31, 1997.
(5) Incorporated by reference to the registrant's registration
statement on Form 8-A filed December 7, 1995.
(6) Incorporated by reference to the registrant's Form 8-K filed
on October 26, 1998.
(7) Incorporated by reference to the registrant's Form 10-Q for
the quarter ended March 31, 1997.
(8) Incorporated by reference to the registrant's Amended Form
8-A filed January 18, 2001.
------------------
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:
-II-2-
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
Provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference into the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, 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 herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes to supplement the
prospectus, after the expiration of the subscription period, to set forth the
results of the subscription offer, the transactions by the underwriters during
the subscription period, the amount of unsubscribed securities to be purchased
by the underwriters, and the terms of any subsequent reoffering thereof. If any
public offering by the underwriters is to be made on terms differing from those
set forth on the cover page of the prospectus, a post-effective amendment will
be filed to set forth the terms of such offering.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance under Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to
be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
-II-3-
(e) 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 Act 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 of 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.
(f) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) or Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
-II-4-
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 January 3, 2003.
WABASH NATIONAL CORPORATION
December 31, 2002 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
---- -------------------
December 31, 2002 By: /s/ William P. Greubel
-------------------------------
William P. Greubel
President, Chief Executive Officer and
Director
(Principal Executive Officer)
December 31, 2002 By: /s/ Mark R. Holden
----------------------
Mark R. Holden
Senior Vice President and Chief Financial
Officer (Principal Financial Officer and
Principal Accounting Officer)
December 31, 2002 By: /s/ John T. Hackett
----------------------
John T. Hackett
Chairman of the Board of Directors
December 31, 2002 By: /s/ David C. Burdakin
-------------------------------
David C. Burdakin
Director
December 31, 2002 By: /s/ E. Hunter Harrison
-------------------------------
E. Hunter Harrison
Director
December 31, 2002 By: /s/ Ludvik F. Koci
----------------------
Ludvik F. Koci
Director
December 31, 2002 By: /s/ Dr. Martin C. Jischke
-------------------------------
Dr. Martin C. Jischke
Director
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
1.01 Form of Underwriting Agreement (1)
3.01 Certificate of Incorporation of the Company (2)
3.02 Certificate of Designations of Series A Junior Participating
Preferred Stock (2)
3.03 Amended and Restated By-laws of the Company (3)
3.04 Certificate of Designations of Series B 6% Cumulative Convertible
Exchangeable Preferred Stock (4)
4.01 Specimen Common Stock Certificate (2) 4.02 Shareholder Rights
Agreement dated November 7, 1995 (5)
4.03 First Amendment to Shareholder Rights Agreement dated October 21,
1998 (6)
4.04 Form of Indenture for the Company's 6% Convertible Subordinated
Debentures due 2007 (7)
4.05 Second Amendment to Shareholder Rights Agreement dated December
18, 2000 (8)
4.06 Form of Senior Indenture (1)
4.07 Form of Subordinated Indenture (1)
4.08 Certificate of Designations of Preferred Stock (1)
4.09 Form of Preferred Stock Certificate (1)
4.10 Form of Deposit Agreement (1)
4.11 Form of Warrant (1)
5.01 Opinion of Hogan & Hartson L.L.P. (1)
12.01 Statement of Computation of Ratios of Earnings to Fixed Charges
and Earnings to Combined Fixed Charges and Preferred Stock
Dividends (filed herewith)
23.01 Consent of Hogan & Hartson L.L.P. (included in their opinion
filed as Exhibit 5.01) (1)
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) To be filed, if necessary, by amendment or as an exhibit to a
report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange
Act.
(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 Annual Report
on Form 10-K for the year ended December 31, 2001.
(4) Incorporated by reference to the registrant's Form 10-Q for
the quarter ended March 31, 1997.
(5) Incorporated by reference to the registrant's registration
statement on Form 8-A filed December 7, 1995.
(6) Incorporated by reference to the registrant's Form 8-K filed
on October 26, 1998.
(7) Incorporated by reference to the registrant's Form 10-Q for
the quarter ended March 31, 1997.
(8) Incorporated by reference to the registrant's Amended Form
8-A filed January 18, 2001.
-------------------
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.