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EXHIBIT 2.01
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PURCHASE AGREEMENT
BETWEEN
FRUEHAUF TRAILER CORPORATION
AS
DEBTOR IN POSSESSION,
SELLER
AND
WABASH NATIONAL CORPORATION
AS
BUYER
MARCH 13, 1997
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TABLE OF CONTENTS
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ARTICLE 1 SALE AND PURCHASE OF THE ACQUIRED ASSETS . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1 Sale and Purchase of the Acquired Assets . . . . . . . . . . . . . 2
Section 1.2 Retained Assets . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.3 Inspections; Warranties as to Condition . . . . . . . . . . . . . . 7
Section 1.4 Transfer of Contract Rights . . . . . . . . . . . . . . . . . . . . 8
Section 1.5 Assumption of Liabilities . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 2 PURCHASE PRICE AND PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.1 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.2 Purchase Price Allocation . . . . . . . . . . . . . . . . . . . . . 14
Section 2.2 Proration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 3 CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.1 Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.2 Seller's Deliveries at Closing . . . . . . . . . . . . . . . . . . 17
Section 3.3 Buyer's Deliveries at Closing . . . . . . . . . . . . . . . . . . . 19
Section 3.4 Wire Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.5 Closing Notwithstanding Appeal . . . . . . . . . . . . . . . . . . 20
ARTICLE 4 CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER . . . . . . . . . . . . . . . . . . . . . 21
Section 4.1 Representations and Warranties True at Closing . . . . . . . . . . 21
Section 4.2 Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.3 No Material Limitations . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.4 Title Binders . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 4.5 Bankruptcy Court Matters . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 5 CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER . . . . . . . . . . . . . . . . . . . . 23
Section 5.1 Representations and Warranties True at Closing . . . . . . . . . . 23
Section 5.2 Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 6 CONDITIONS PRECEDENT TO OBLIGATIONS OF BOTH PARTIES . . . . . . . . . . . . . . . . . 23
Section 6.1 Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.2 HSR Act; Governmental Action . . . . . . . . . . . . . . . . . . . 24
Section 6.3 No Legal Impediments . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.1 Corporate Existence and Power . . . . . . . . . . . . . . . . . . . 25
Section 7.2 Corporate Authorization . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.3 Binding Effect and Authority . . . . . . . . . . . . . . . . . . . 25
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Section 7.4 Governmental Authorization . . . . . . . . . . . . . . . . . . . . 26
Section 7.5 Non-Contravention . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.6 Events Subsequent . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.7 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.8 Title to Acquired Assets . . . . . . . . . . . . . . . . . . . . . 27
Section 7.9 Brokers' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.10 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.11 Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.13 Tax Returns; Taxes . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.12 Limitation on Remedy . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 8 REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.1 Corporate Existence and Power . . . . . . . . . . . . . . . . . . . 29
Section 8.2 Corporate Authorization . . . . . . . . . . . . . . . . . . . . . . 30
Section 8.3 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 8.4 Buyer Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 8.5 Exchange Act Filings . . . . . . . . . . . . . . . . . . . . . . . 30
Section 8.6 Governmental Authorization; Consents . . . . . . . . . . . . . . . 31
Section 8.7 Non-Contravention . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 8.8 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 8.9 Brokers' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 9 COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 9.1 Covenants of Seller . . . . . . . . . . . . . . . . . . . . . . . . 33
(a) Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . 33
(b) Corporate Examinations and Investigations . . . . . . . . . . . . . 36
(c) Title Binders . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 9.2 Covenants of Buyer . . . . . . . . . . . . . . . . . . . . . . . . 37
(a) In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(b) Payment of Taxes, Filing Fees . . . . . . . . . . . . . . . . . . . 37
(c) Worker Adjustment Act . . . . . . . . . . . . . . . . . . . . . . . 37
Section 9.3 Mutual Covenants . . . . . . . . . . . . . . . . . . . . . . . . . 38
(a) Closing Conditions . . . . . . . . . . . . . . . . . . . . . . . . 38
(b) HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(c) Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . 38
(d) Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(e) CONSENT TO JURISDICTION . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE 10 EMPLOYEE MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 10.1 Treatment of Employees . . . . . . . . . . . . . . . . . . . . . . 39
(a) Hiring of Employees . . . . . . . . . . . . . . . . . . . . . . . . 39
(b) Benefit; Enforceability . . . . . . . . . . . . . . . . . . . . . . 40
Section 10.2 Employee Benefits . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE 11 TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 11.1 Termination by Mutual Consent . . . . . . . . . . . . . . . . . . 41
Section 11.2 Termination Upon Breach or Default . . . . . . . . . . . . . . . . 41
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Section 11.3 Termination Date . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE 12 GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 12.1 Access and Retention of Records . . . . . . . . . . . . . . . . . 42
Section 12.2 Cooperation in Claims and Litigation . . . . . . . . . . . . . . . 42
Section 12.3 No Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 12.4 Binding Effect; Benefits; Assignment . . . . . . . . . . . . . . . 43
Section 12.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 12.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 12.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 12.8 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 12.9 Bulk Transfer Laws . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 12.10 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 12.11 Amendment and Waiver . . . . . . . . . . . . . . . . . . . . . . 47
Section 12.12 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 12.13 Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 12.14 Court Approval . . . . . . . . . . . . . . . . . . . . . . . . . 48
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TABLE OF EXHIBITS
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Exhibit Description
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A Terms of Buyer Preferred
B Quitclaim Deed
C ▇▇▇▇ of Sale and Assignment of Contracts
D Opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
E Instrument of Assignment and Assumption of Contracts
F Patent Assignment
G Trademark Assignment
H Assignment of Leases
I Instrument of Assumption
J Opinion of Buyer's Counsel
K Copyright Assignment
L Registration Rights Agreement
M Tax Matters
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TABLE OF SCHEDULES*
Schedule Description
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Schedule 1.1(a) Real Property
Schedule 1.1(b) Real Property Leases
Schedule 1.1(c) Vehicles
Schedule 1.1(d) Deposits for Orders Placed with Vendors
Schedule 1.1(e) Intellectual Property
Schedule 1.1(f) Assigned Contracts
Schedule 1.1(g) Prepaid Items
Schedule 1.1(h) Licenses and Permits
Schedule 1.5(c)(ii) Environmental Matters
Schedule 1.5(c)(v) Assumed Claims and Liabilities
Schedule 4.4 ALTA Survey Requirements
Schedule 7.6 Events Subsequent
Schedule 7.7 Litigation
Schedule 7.8 Liens and Permitted Exceptions
Schedule 8.5(b) Buyer 1996 Annual Report and 10-K
Schedule 8.6 Regulatory Approvals
Schedule 9.1(a) Conduct of Business in General
* Copies of Schedules have been omitted in accordance with the rules under the
Securities Act of 1933, as amended. Copies of omitted Schedules will be
provided upon request to the staff of the Securities and Exchange Commission.
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P U R C H A S E A G R E E M E N T
THIS PURCHASE AGREEMENT (this "Agreement") made on the 13th of
March, 1997 by and between Wabash National Corporation, a Delaware corporation,
as buyer ("Buyer"), and Fruehauf Trailer Corporation, a Delaware corporation,
as seller ("Seller");
R E C I T A L S:
Seller is currently engaged in, among other businesses, the
businesses (as such businesses are currently conducted, the "Business") of (i)
designing, manufacturing and marketing dump trailers and platform trailers at
its facility in Huntsville, ▇▇▇▇▇ County, Tennessee, (ii) designing,
manufacturing and marketing dry freight vans at its facility in Fort Madison,
Iowa, (iii) distributing, selling, servicing and repairing new and used
trailers, after-market parts and other products manufactured by Seller through
branches, and (iv) distributing and selling Seller's products, and providing
support, to a network of independent full line and parts-only dealers (Seller
owns an interest in Fruehauf de Mexico S.A. but such interest is not part of
the Business;)
Seller has filed on October 7, 1996 (the "Petition Date") a
petition for relief under Chapter 11 of the United States Bankruptcy Code, 11
U.S.C. Sections 101-1330 (the "Bankruptcy Code"), in the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court"), and is
operating its businesses as debtor in possession in case 96-1563-PJW (the
"Chapter 11 Case");
Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer, the assets of Seller used in the operation of the Business
(except for the real property and tangible personal property at Fort Madison,
Iowa and all assets, properties and rights relating to the branch located at
Billings, Montana) as identified in this Agreement, upon the terms and subject
to the conditions set forth in this Agreement;
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Seller owns an interest in Fruehauf de Mexico Sol but such
interest is not part of the Business;
In consideration of the premises and of the mutual covenants
and agreements set forth in this Agreement, Buyer and Seller do hereby agree as
follows:
A G R E E M E N T:
ARTICLE 1
SALE AND PURCHASE OF THE ACQUIRED ASSETS
Section 1.1 Sale and Purchase of the Acquired Assets. On the
terms and subject to the conditions of this Agreement, and pursuant to Sections
363(b) and 363(f) of the Bankruptcy Code, Seller shall sell, convey, assign,
transfer and deliver to Buyer, and Buyer shall purchase and acquire from
Seller, at the Closing, the assets, rights and properties listed and described
in this Section 1.1, existing and owned by Seller as of the date of this
Agreement (collectively, the "Acquired Assets"), excepting, however, (i) those
assets, rights and properties described as Retained Assets in Section 1.2 of
this Agreement and (ii) any assets, rights and properties sold, conveyed,
assigned, transferred, consumed or disposed of by Seller prior to the Closing
in the ordinary course of business consistent with Section 9.1(a) of this
Agreement whether or not listed on any Exhibit or Schedule to this Agreement.
The Acquired Assets shall, however, include any assets, rights and properties
used in the operation of the Business in the categories set forth below in this
Section 1.1 which are acquired by Seller prior to the Closing whether or not
listed on any Exhibit or Schedule to this Agreement. The Acquired Assets shall
be the following (except as aforesaid):
(a) The real property interest in and to the various parcels
of land described in Schedule 1.1(a) to this Agreement, together with (i) all
buildings, fixtures, structures, parking
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areas, landscaping, facilities and other improvements currently constructed and
located thereon, if any, as well as any additions or replacements of same
occurring prior to the Closing and (ii) all licenses, rights, privileges,
easements and appurtenances pertaining to (i) above or such parcels of land
(collectively the "Real Property Interests");
(b) Seller's right as lessee under and pursuant to
certain real property leases (including the leasehold interest in the real
property located at Huntsville, ▇▇▇▇▇ County, Tennessee), identified on
Schedule 1.1(b), together with any leasehold improvements located on such real
property and all other property rights of Seller related thereto, including
options (the "Leasehold Interests");
(c) The Fruehauf memorabilia wherever located, tooling
located with vendors to the Business, the vehicles listed on Schedule 1.1(c) to
this Agreement and all of Seller's machinery, equipment, furniture, fixtures,
construction in progress, replacement and spare parts, operating supplies and
other personal property that is located on the Real Property Interests, the
Leasehold Interests, or the Omaha, Nebraska branch (the "Personal Property");
(d) (i) The finished goods inventory designated as "green
tags" located at Seller's facility at Fort Madison, Iowa and at Fruehauf de
Mexico S.A. de C.V. ("Fruehauf Mexico"), (ii) all of Seller's inventories of
raw materials, work in progress, finished goods, spare parts, supplies,
storeroom contents and other inventoried items, either (A) located on or in
transit to the Real Property Interests or the Leasehold Interests or (B) in the
possession of Seller's dealers and distributors (other than the Billings,
Montana branch, the Fort Madison facility and Fruehauf Mexico) and which relate
to the Business, and (iii) the amounts of deposits for orders placed with
vendors (a listing of such deposits as of a recent date is attached on Schedule
1.1(d) to this Agreement) (collectively, the "Inventory");
(e) All the copyrights, patents, trademarks (including the
Pro-Par Trademark) and trade names (including "Fruehauf"), and applications for
any of the foregoing, including those
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identified on Schedule 1.1(e), and any unpatented inventions, trade secrets,
goodwill, proprietary know-how and use and application know-how, product
formulae, manufacturing, engineering and other drawings, technology, technical
information, engineering data, design and engineering specifications and
promotional literature of Seller used in the operation of the Business
(collectively, the "Intellectual Property"), provided, however, that Seller
shall retain the transferable right to use in connection with the Retained
Assets any unpatented inventions, trade secrets, goodwill, proprietary know-how
and use and application know-how, product formulae, manufacturing, engineering
and other drawings, technology, technical information, engineering data, design
and engineering specifications and promotional literature of Seller embodied in
the Retained Assets.
(f) Subject to Section 1.4 of this Agreement, all of Seller's
rights under the contracts, leases, agreements and sales orders of Seller
currently in force and effect identified on Schedule 1.1(f) to this Agreement
(collectively, the "Assigned Contracts");
(g) The prepaid items listed on Schedule 1.1(g) except those
marked as retained;
(h) All transferable permits and approvals issued to Seller
by any federal, state or local governmental entity or other jurisdiction or
instrumentality (foreign or domestic) relating directly to the Business,
including without limitation those permits identified on Schedule 1.1(h) to
this Agreement;
(i) Accounts receivable arising in the ordinary course of
business from parties other than Seller and its Affiliates as defined in
Section 1.5(c)(ii) of this Agreement (collectively, the "Accounts Receivable"),
but excluding all accounts receivable relating to the Billings, Montana branch
and all notes receivable not arising in the ordinary course of business;
(j) All of Seller's causes of action arising in the ordinary
course of the operation of the Business, Seller's Environmental Claims relating
to the Real Property Interests and the
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Leasehold Interests and all of Seller's rights under or pursuant to any
warranties, representations and guaranties made by vendors other than Seller
and its Affiliates as defined in Section 1.5(c)(ii) in connection with or
relating to any of the Acquired Assets, provided, however, that Seller shall
have no obligation to take any action after the Closing Date to maintain or
preserve any such warranty, representation or guaranty other than reasonable
cooperation at the request of Buyer;
(k) The books, documents and records of Seller pertaining to
the operation of the Business by Seller, including lists of customers and
suppliers of the Business (collectively, the "Books and Records"), provided,
however, that Seller shall have the right to make and retain copies of any of
the Books and Records;
(l) All of Seller's rights with respect to telephone,
facsimile and similar numbers relating to the Real Property Interests and the
Leasehold Interests; and
(m) Other assets, rights and properties, if any, that has or
has recently had significant use in the operation of the Business.
Section 1.2 Retained Assets. Notwithstanding anything to the
contrary contained in Section 1.1 of this Agreement, Seller shall not sell,
convey, assign, transfer or deliver, and Buyer shall not purchase or acquire
from Seller the following retained assets (the "Retained Assets"):
(a) All cash, bank balances, bank deposits, monies in
possession of any bank, other cash items, short term investments and marketable
securities of Seller, whether or not relating to the Business;
(b) Seller's corporate and financial books and records,
including, without limitation, stock certificates, treasury stock, stock
transfer records, corporate seals and minute books and Seller's tax returns and
tax supporting information; provided, however, that Buyer shall,
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upon a reasonable request, be provided, at Seller's cost and expense, with true
and complete copies of relevant portions of any of the foregoing;
(c) All notes receivable arising from, and monies escrowed as
a result of, asset sales by Seller outside the ordinary course of business and
all contracts, leases, agreements and purchase orders of Seller except the
Assigned Contracts, the Leasehold Interests and the purchase orders placed with
vendors for which deposits reflected in the Preclosing Working Capital Schedule
have been made;
(d) All claims, demands or causes of action of Seller against
any other person or entity which are not included in the Acquired Assets,
including, without limitation, claims of Seller arising under Sections 542,
543, 544, 545, 547, 548, 549 and 551 of the Bankruptcy Code and claims for
foreign, federal, state or local tax refunds;
(e) All credits, prepaid expenses, deferred charges, advance
payments, deposits and prepaid items in each case not related to the Business
and those prepaid items listed on Schedule 1.1(g) and marked as Retained
Assets;
(f) The rights of Seller under, and with respect to, any
funds and property held in trust or any funding vehicle pursuant to the
Fruehauf Trailer Corporation Retirement Plan (the "Plan");
(g) The real and tangible personal property (except for
finished trailers) located at Billings, Montana, and Fort Madison, Iowa; and
(h) Seller's interest in the shares of Fruehauf Mexico and
any related indebtedness;
(i) Any assets, rights and properties of Seller not described
in Section 1.1 of this Agreement as Acquired Assets.
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Section 1.3 Inspections; Warranties as to Condition. Subject
to satisfaction of the conditions contained in Articles 4 and 6 of this
Agreement, Buyer will accept the Acquired Assets as they exist on the Closing
Date (as defined in Section 3.1 of this Agreement) and will accept the sale,
conveyance, assignment, transfer and delivery of the Acquired Assets based upon
its own inspection, examination and determination with respect thereto as to
all matters, including, without limitation, (a) restrictions on, and fitness
for, use and occupancy, (b) condition and fitness for particular purposes, (c)
quality of title thereto and (d) On-Site Environmental Liabilities (as defined
in Section 1.5(e)(vi) of this Agreement), to the extent included within the
definition of Assumed Liabilities, and without reliance upon any express or
implied representations or warranties of any nature made by or on behalf of or
imputed to Seller other than the representations and warranties of Seller set
forth in Article 7 of this Agreement, which representations and warranties, and
any cause of action based thereon, shall terminate at the Closing. SELLER
MAKES NO WARRANTY OF MERCHANTABILITY OF ANY OF THE ACQUIRED ASSETS OR OF THE
FITNESS OF ANY OF THE ACQUIRED ASSETS FOR ANY PURPOSE. BUYER ACKNOWLEDGES THAT
IT HAS NOT RELIED ON ANY INFORMATION IN THE CONFIDENTIAL MEMORANDUM PREPARED BY
THE SELLER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
AS A REPRESENTATION OR WARRANTY, WHETHER AS TO THE PAST OR FUTURE PERFORMANCE
OR CONDITION OF THE BUSINESS OR THE ACQUIRED ASSETS OR OTHERWISE, AND IN NO
EVENT SHALL THE SELLER HAVE ANY LIABILITY TO BUYER WITH RESPECT TO SUCH
INFORMATION. BUYER ACKNOWLEDGES THAT THE ACQUIRED ASSETS AND EACH COMPONENT
THEREOF ARE TO BE SOLD PURSUANT TO THIS AGREEMENT IN AN "AS IS" AND "WHERE IS"
CONDITION.
Section 1.4 Transfer of Contract Rights. Seller shall
transfer and assign its right, title and interest in the Leasehold Interests
and the Assigned Contracts to Buyer by assuming and assigning the Leasehold
Interests and the Assigned Contracts pursuant to the provisions of Section 365
of the Bankruptcy Code, provided, however, that Seller's obligation to assume
and assign to
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Buyer the Leasehold Interests and any Assigned Contracts is expressly
conditioned upon Buyer's payment to Seller, prior to any such assumption and
assignment, of any and all costs and liabilities that arise from or upon such
assumption and assignment, including, without limitation, the cost of curing
any default under the Leasehold Interests and any Assigned Contracts that are
assumed and assigned or providing "adequate assurance" as described in Section
365 of the Bankruptcy Code, except that Seller shall bear the costs of curing
any defaults with respect to the Leasehold Interests for the ▇▇▇▇▇ County and
Grove City, Ohio facilities. Buyer shall perform or discharge, or reimburse
Seller for, any such payments with respect to any and all costs that arise from
or upon such assumption and assignment.
Section 1.5 Assumption of Liabilities.
(a) On the terms and subject to the conditions of this
Agreement, Buyer shall assume, effective as of the Closing, and thereafter pay,
perform and discharge the Assumed Liabilities (as defined in (c) of this
Section 1.5).
(b) Notwithstanding anything to the contrary in this
Agreement, Seller acknowledges that Buyer shall not be liable for any liability
or obligation of Seller, nor will Buyer assume any such liability or obligation
of Seller, except as expressly provided in Section 1.5(c) below.
(c) The term "Assumed Liabilities" means the following
obligations and liabilities of Seller in respect of the Business, and only such
obligations and liabilities, and excluding the Retained Liabilities:
(i) all liabilities and obligations under the
Assigned Contracts referred to in the definition of Acquired Assets, provided,
however, that Buyer's assumption of the liabilities and obligations under the
Leasehold Interests or a particular Assigned Contract shall be effective only
upon Seller's assignment and transfer of the Leasehold Interests or such
Assigned Contract in accordance with Section 1.4 of this Agreement;
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(ii) all On-Site Environmental Liabilities as
defined in Section 1.5(e)(vi) including, without limitation, the matters
identified on Schedule 1.5(c)(ii) to this Agreement, asserted against Seller or
Buyer or any Affiliates of Seller or Buyer. As used in this Agreement, an
"Affiliate" of a party shall mean entities controlling, controlled by or under
common control with the party;
(iii) all liabilities imposed on Buyer by Section
2.3 of this Agreement for real estate and personal property taxes assessed
upon the Acquired Assets relating to the Business;
(iv) all liabilities imposed on Buyer by law for
transfer, sales, use, and other taxes arising in connection with the
consummation of the transactions contemplated by this Agreement; and
(v) all liabilities set forth in Schedule 1.5(c)(v)
to this Agreement.
(d) The term "Retained Liabilities" means all liabilities and
obligations of Seller other than the Assumed Liabilities, including, without
limitation:
(i) all trade accounts payable incurred in the
operation of the Business by Seller, which relate to the operation of the
Business;
(ii) Federal, state, local and foreign taxes of
Seller, including deferred taxes and franchise taxes of Seller with respect to
the Acquired Assets or the Business arising from liabilities incurred by Seller
for any period ending at or prior to the Closing and payable from the account
of the Seller in any period prior to or after the Closing, except for real
estate and personal property taxes imposed on Buyer described in Section
1.5(c)(iv) of this Agreement and except for transfer, sales, use, and other
taxes imposed on Buyer described in Section 1.5(c)(v) of this Agreement;
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(iii) all product return, adjustment and similar
product warranty service claims against Seller and all liabilities for sale or
delivery of products, tort liability, product liability and strict liability,
in each case relating to the Business or the Acquired Assets and with respect
to products sold by Seller prior to the Closing Date;
(iv) all workers' compensation claims of Employees
or former employees of the Business with respect to events occurring prior to
the Closing Date;
(v) all liabilities under, and with respect to, the
Plan;
(vi) all Off-Site Environmental Liabilities; and
(vii) all fees and expenses that shall be payable by
Seller pursuant to Section 12.8 of this Agreement.
(e) As used in this Agreement:
(i) "environmental" means anything relating to
pollution or protection of the public health or the environment, including,
without limitation, the effects of wastes, refuse and substances on the
environment, or relating to the handling, discharge, release, threatened
release, presence or use of Hazardous Substances;
(ii) "environment" means (A) any surface, ground or
drinking water, (B) sediments, surface or subsurface land, (C) air and (D) all
natural resources (including, without limitation, biota, fish, wildlife and
plant life) therein or thereon;
(iii) "Environmental Claims" means (A) all claims
based on applicable statutory or common law arising out of ownership,
operation, use, possession or condition of the
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Business or the Acquired Assets (whether with respect to injury to persons or
property, releases of Hazardous Substances, or otherwise) resulting from
environmental matters or for reclamation, removal, remedial action treatment or
other work occasioned by or pertaining to any environmental matter; (B) all
governmental or private party suits, investigations, notices, orders, decrees,
agreements, proceedings or other actions or obligations to governmental
authorities or private parties, in each case arising under any existing or past
environmental laws, regulations, rules, orders, permits, decrees, notices of
violation, common law theories or other environmental matters (including,
without limitation, work or obligations required by governmental permits,
orders or agreements with governmental authorities and any potential or
contingent liabilities), and (C) all corrective or remedial obligations with
respect to releases of Hazardous Substances or otherwise with respect to
environmental matters;
(iv) "Hazardous Substance" means any petroleum or
petroleum product, asbestos, polychlorinated biphenyls, storage tanks and the
contents thereof, flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related
materials, including, without limitation, any such materials defined or
regulated pursuant to the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 1801, et
seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C.
Sections 9601, et seq.), the Clean Air Act, as amended (42 U.S.C. Sections 7401
et seq.), the Federal Water Pollution Control Act, as amended (33 U.S.C.
Sections 1251 et seq.), the Toxic Substances Control Act, as amended (15 U.S.C.
Section 2601 et seq.), and in the regulations adopted and publications
promulgated pursuant thereto, as such laws or regulations now exist or may
exist in the future;
(v) "Off-Site Environmental Liability" means any
Environmental Claim which does not constitute an "On-Site Environmental
Liability," including, without limitation, any Environmental Claim arising out
of the treatment, storage, disposal or other disposition of any Hazardous
Substance at any location other than the Real Property Interests and the
Leasehold Interests; and
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(vi) "On-Site Environmental Liability" means any
Environmental Claim with respect to the presence of a Hazardous Substance at,
on, or under the Real Property Interests or the Leasehold Interests.
(f) Except for the Retained Liabilities or Seller's
obligations to sell, convey, assign, transfer and deliver the Acquired Assets
to Buyer, from and after the Closing, Seller and its Affiliates shall have no
liability to Buyer for any claims or obligations arising from the ownership,
functioning, use or condition of the Business or the Acquired Assets, or the
consequences thereof, or the sale of products from the Business to Buyer and
its Affiliates, and from and after the Closing, Buyer shall not, and shall not
permit any of its Affiliates to, institute, prosecute or in any way aid in the
institution or prosecution of any claim, demand, action, cause of action, suit
or administrative or other proceeding (at law, in equity, pursuant to the
Bankruptcy Code or otherwise) against Seller or its Affiliates, for injunctive
relief, damages, costs, expenses or compensation for or on account of any
damage, loss, liability or injury to Buyer or any of its Affiliates, its or
their employees or any of its or their property or assets arising out of or
relating to the Acquired Assets, the Business, the Assumed Liabilities, this
Agreement, or the sale of products from the Business to Buyer and its
Affiliates. Except with respect to (i) Seller's obligations to sell, convey,
assign, transfer and deliver the Acquired Assets to Buyer, and (ii) the
Retained Liabilities, Buyer for itself and its Affiliates shall, and hereby
does, release and discharge Seller and its Affiliates from any and all claims,
demands, debts, liabilities, accounts, obligations, costs, expenses, liens,
actions, causes of action (whether at law, in equity, pursuant to the
Bankruptcy Code or otherwise), rights of subrogation and contribution and
remedies of any nature whatsoever, known or unknown, relating to or arising out
of the Acquired Assets, the Business, the Assumed Liabilities, this Agreement,
or the sale of products from the Business to Buyer and its Affiliates.
ARTICLE 2
PURCHASE PRICE AND PAYMENT
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Section 2.1 Purchase Price.
(a) In full consideration for the transfer of the
Acquired Assets, but subject to the adjustment or reduction pursuant to (b) of
this Section 2.1, at the Closing, Buyer shall deliver and pay to Seller a total
purchase price (the "Purchase Price") consisting of (i) FIFTEEN MILLION DOLLARS
($15,000,000) (the "Cash Amount"), in immediately available funds by bank wire
transfer to an account designated in writing for this purpose by Seller to
Buyer prior to the Closing, (ii) ONE MILLION (1,000,000) duly authorized,
validly issued, fully paid and nonassessable shares of Common Stock, par value
$.01 per share, of Buyer ("Buyer Common") and (iii) THREE HUNDRED FIFTY-TWO
THOUSAND (352,000) duly authorized, validly issued, fully paid and
nonassessable shares of Convertible Exchangeable Preferred Stock, par value
$.01 per share, of Buyer ("Buyer Preferred"), having the terms more fully
described in Exhibit A of this Agreement (the consideration described in (ii)
and (iii) is herein collectively referred to as the "Buyer Shares").
(b) The Purchase Price has been negotiated on the assumption that
Seller shall maintain the level of Inventory and Accounts Receivable in the
ordinary course of business as contemplated by Section 9.1(a) of this
Agreement. In the event that Seller makes any disposition prior to the Closing
of Accounts Receivable, Inventory or other Acquired Assets, or proceeds of the
sale thereof, outside the ordinary course of business to either (i) Fruehauf
Mexico or the Fort Madison facility or the Billings, Montana branch or (ii)
Seller's secured creditors (excluding payments to Seller's D.I.P. lender in the
ordinary course of business as required by the D.I.P. credit agreement), such
action shall not be deemed a violation of this Agreement if the Purchase Price
shall be reduced, dollar for dollar, by the amount of such dispositions. In
addition, the Purchase Price shall be adjusted dollar for dollar by the sum of
(1) the amount by which the value of the Accounts Receivable as of the Closing
Date is greater than $23.5 million or less than $17.5 million plus (2) the
amount by which the value of the Inventory as of the Closing Date is greater
than $23.5 million or less than $17.5 million. Amounts in excess of the $23.5
million limit shall be treated as
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positive numbers and amounts below the $17.5 million limit shall be treated as
negative numbers. For purposes of this Section 2.1(b) the value of the
Accounts Receivable and Inventory shall be determined on the same basis on
which Seller has been valuing such items in its accounting records in the
ordinary course of business. At the Closing, Seller shall furnish Buyer with a
certificate of its Vice President-Corporate Controller as to whether any such
dispositions were made and, if so, the amount of such dispositions. In the
event a reduction to the Purchase Price is required, the reduction shall be
applied to reduce the Cash Amount or the number of shares of Buyer Preferred,
as the Seller may elect in its sole discretion, provided that Buyer shall not
be required to issue fractional shares of Buyer Preferred.
(c) If the amount of prepaid items relating to the Business which
are not listed on Schedule 1.1(g) exceeds ONE HUNDRED THOUSAND DOLLARS
($100,000.00), then the Purchase Price shall be reduced by the amount of such
excess, unless Seller transfers such excess prepaid items to Buyer.
Section 2.2 Purchase Price Allocation. Within 180 days after
the Closing, Buyer shall deliver to Seller an allocation of the total
consideration among the Acquired Assets. If such allocation is acceptable to
Seller, all federal, state and local tax returns and reports of Seller and
Buyer shall be prepared and filed in accordance with such allocation. If such
allocation is unacceptable to Seller and, after good faith negotiations, Buyer
and Seller are unable to agree on an allocation of the total consideration
among the Acquired Assets, Buyer and Seller may each independently determine an
appropriate allocation and prepare and file all of their respective federal,
state and local tax returns and reports in accordance therewith.
Section 2.3 Proration.
(a) As used in this Section 2.3.
(i) "Utility Charges" shall mean water, sewer,
electricity, gas and other utility charges, if any, applicable to the Acquired
Assets;
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(ii) "Real Property Taxes" shall mean ad valorem
taxes, general assessments and special assessments with respect to the Real
Property Interests; and
(iii) "Personal Property Taxes" shall mean ad
valorem taxes with respect to the Acquired Assets other than real property.
(b) All Utility Charges, Real Property Taxes and Personal
Property Taxes with respect to periods of time in which the Closing occurs
(collectively, the "Apportioned Obligations") shall be apportioned between
Buyer and Seller as of the Closing in accordance with the methodology that is
customary in commercial real estate transactions in the locality where the
property is located. Seller shall pay or reimburse Buyer for the amount of any
Apportioned Obligations payable by Buyer relating to the period of time prior
to the Closing, and Buyer shall pay or reimburse Seller for the amount of any
Apportioned Obligations payable by Seller relating to the period of time on or
after the date of the Closing. For the purposes of this Section 2.3, any
security or other deposits made by Seller with respect to any Apportioned
Obligations shall be deemed in their entirety to be a payment relating to the
period on and before the date of the Closing to be reimbursed by Buyer, if
credited to or paid by the holder thereof to Seller.
(c) Seller and Buyer shall cooperate in (i) assuring that
Apportioned Obligations are promptly paid and (ii) having meter readings for
Utility Charges and other necessary arrangements carried out so that
Apportioned Obligations relating to periods of time on or after the date of the
Closing shall be billed directly to Buyer.
(d) Seller and Buyer shall fully cooperate, including,
without limitation, during times of audit by taxing authorities, to avoid
payment of duplicate or inappropriate taxes of any kind or description which
relate to the Acquired Assets or the Business, and each party shall furnish, at
the request of the other, proof of payment of any such taxes or other
documentation which is a prerequisite to avoiding payments of a duplicate or
inappropriate tax.
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ARTICLE 3
CLOSING
Section 3.1 Closing Date. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place in the offices
of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, North Point, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, at 9:30 a.m. (EST) as soon as practicable after entry of the Order
as defined in Section 3.2(a) of this Agreement, or at such other place or time
as the parties may agree (the "Closing Date").
Section 3.2 Seller's Deliveries at Closing. At the Closing,
in addition to any other documents specifically required to be delivered
pursuant to this Agreement, Seller shall deliver or cause to be delivered to
Buyer:
(a) A certified copy of the judgment order, docket sheet and
order of the Bankruptcy Court approving this Agreement and the consummation of
the transactions contemplated in this Agreement in form and substance
reasonably satisfactory to Buyer (the "Order").
(b) a Certificate of the Secretary of Seller dated as of the
Closing Date certifying (i) the resolutions of the Directors of Seller
authorizing and approving this Agreement and the transactions contemplated by
this Agreement and (ii) that the Certificate of Incorporation and the By-laws
of Seller, as delivered previously to Buyer, have not been amended or
rescinded;
(c) Quitclaim Deeds substantially in the form attached to
this Agreement as Exhibit B and conforming to the Title Binders described in
Section 4.4 of this Agreement, with such modifications as are necessary to make
such Quitclaim Deeds recordable in the applicable jurisdiction;
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(d) A ▇▇▇▇ of Sale and Assignment of Contracts in the form
attached to this Agreement as Exhibit C;
(e) Title certificates with respect to the motor vehicles
listed on Schedule 1.1(b);
(f) The opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for
Seller, dated the Closing Date, in the form attached to this Agreement as
Exhibit D;
(g) An Assignment and Assumption of Contracts in the form
attached to this Agreement as Exhibit E;
(h) A Patent Assignment in the form attached to this
Agreement as Exhibit F;
(i) A Trademark Assignment in the form attached to this
Agreement as Exhibit G;
(j) Assignments of Leases substantially in the form attached
to this Agreement as Exhibit H;
(k) A Copyright Assignment in the form attached to this
Agreement as Exhibit K;
(l) Releases of liens on the Acquired Assets held by secured
creditors;
(m) A Certificate of the Vice President - Corporate
Controller of Seller, pertaining to any distributions outside the ordinary
course of business of Inventory or Accounts Receivable to Fruehauf Mexico or
secured creditors prior to the Closing Date and stating the value of the
Inventory and Accounts Receivable as of the Closing Date; and
(n) A receipt, executed by Seller, acknowledging the receipt
from Buyer of the Cash Amount and the Buyer Shares, as determined pursuant to
Article 2 of this Agreement.
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Section 3.3 Buyer's Deliveries at Closing. At the Closing,
in addition to any other documents specifically required to be delivered
pursuant to this Agreement, Buyer shall deliver or cause to be delivered to
Seller:
(a) Payment of the Cash Amount determined pursuant to Article
2 of this Agreement;
(b) Certificates representing the Buyer Shares in accordance
with Section 2.1 of this Agreement and in such specific denominations as
requested by Seller prior to the Closing;
(c) An Instrument of Assumption in the form attached to this
Agreement as Exhibit I by which Buyer shall assume, effective as of the
Closing, and thereafter pay, perform and discharge the Assumed Liabilities;
(d) A Certificate of the Secretary of Buyer dated as of the
Closing Date certifying (i) the resolutions of the Directors of Buyer
authorizing and approving this Agreement and the transactions contemplated by
this Agreement, including the designation of the terms of the Buyer Preferred,
and (ii) that, except for the Certificate of Designations of the terms of Buyer
Preferred, as described on Exhibit A to this Agreement, the Articles of
Incorporation and the By-laws of Buyer, as previously delivered to Seller, have
not been amended or rescinded;
(e) The opinion of counsel for Buyer, dated the Closing Date,
in the form attached to this Agreement as Exhibit J;
(f) An Assignment and Assumption of Contracts in the form
attached to this Agreement as Exhibit E;
(g) A Patent Assignment in the form attached to this
Agreement as Exhibit F;
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(h) A Trademark Assignment in the form attached to this
Agreement as Exhibit G;
(i) Assignments of Leases substantially in the form attached
to this Agreement as Exhibit H;
(j) A Copyright Assignment in the form attached to this
Agreement as Exhibit K;
(k) The resale or exemption certificates for Inventory and
exempt machinery and equipment as required under Section 9.2(b) of this
Agreement;
(l) A Registration Rights Agreement in the form attached to
this Agreement as Exhibit L; and
(m) A receipt, executed by Buyer, acknowledging the receipt
of the documents by which the Seller sells, conveys, assigns, transfers and
delivers to Buyer the Acquired Assets.
Section 3.4 Wire Transfer. The Cash Amount required to be
paid under this Agreement shall be made by wire transfer of immediately
available funds to an account designated by Seller.
Section 3.5 Closing Notwithstanding Appeal. Except as
otherwise set forth in this Agreement, Buyer shall be obligated to consummate
the transactions provided for in this Agreement on the Closing Date, regardless
of the pendency of an appeal from the Order, unless on the Closing Date
implementation of the Order has been stayed by the Bankruptcy Court or a court
of competent jurisdiction or one or more parties to this Agreement has been
enjoined by the Bankruptcy Court or a court of competent jurisdiction from
consummating the transactions contemplated by this Agreement. In the event
that implementation of the Order is stayed or one or more of the parties to
this Agreement is enjoined from consummating the transactions
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contemplated by this Agreement on the Closing Date and such stay or injunction
is dissolved within five business days from its issuance, (i) Buyer shall be
obligated to consummate the transactions, and (ii) the Closing Date shall be as
soon as practicable after the date on which such stay or injunction is
dissolved.
ARTICLE 4
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
Except to the extent expressly waived in writing by Buyer, all
obligations of Buyer under this Agreement are subject to the fulfillment by
Seller, at or before the Closing, of all of the following conditions:
Section 4.1 Representations and Warranties True at Closing.
Each of the representations and warranties of Seller set forth in Article 7 of
this Agreement shall be true in all material respects on and as of the Closing
Date with the same effect as though made on and as of such date.
Section 4.2 Performance. Seller shall have performed in all
material respects each of the obligations of Seller to be performed on or prior
to the Closing pursuant to this Agreement.
Section 4.3 No Material Limitations. From and after the date
of this Agreement until the Closing, there shall not have been any law, rule or
regulation enacted, promulgated, entered, enforced or deemed applicable by any
government, governmental authority or court, domestic or foreign, that would
impose material limitations on the ability of Buyer to own or operate the
Business or the Acquired Assets except where such limitations do not have a
Material Adverse Effect. There shall not have been any judgment, decree, order
or injunction entered, enforced or sought by any government, governmental
authority or court, domestic or foreign, that has the effects set forth in the
preceding sentence. As used in this Agreement, a "Material Adverse
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Effect" is an effect which would materially reduce the value to Buyer of the
Acquired Assets, taken as a whole, after the Closing.
Section 4.4 Title Binders. Seller shall provide Buyer with
an ALTA survey of the Real Property Interests meeting the requirements set
forth on Schedule 4.4 to this Agreement and commitments for title insurance
issued by such title company as may be reasonably designated by Buyer showing
good and marketable title to the Real Property Interests in Seller, and
committing to issue an owner's title insurance policy (ALTA) (the "Title
Policy") to Buyer in amounts reasonably determined by Buyer with extended
coverage subject only to Liens and Permitted Exceptions (the "Title Binders").
Section 4.5 Bankruptcy Court Matters.
(a) Not later than fourteen (14) days after the execution and
delivery of this Agreement the Bankruptcy Court shall have entered an order
approving the Expense Reimbursement Letter of even date herewith between Buyer
and Seller.
(b) Seller shall have submitted a motion to the Bankruptcy
Court for the Order as soon as reasonably practicable after the execution of
this Agreement and shall have used its best efforts to obtain such Order,
subject to the bidding procedures which have been previously approved by the
Bankruptcy Court.
ARTICLE 5
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
Except to the extent expressly waived in writing by Seller,
the obligations of Seller set forth in this Agreement are subject to the
fulfillment by Buyer, at or before the Closing, of all of the following
conditions:
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Section 5.1 Representations and Warranties True at Closing.
Each of the representations and warranties of Buyer set forth in Article 8 of
this Agreement shall be true in all material respects on and as of the Closing
Date with the same effect as though made on and as of such date.
Section 5.2 Performance. Buyer shall have performed in all
material respects each of the obligations of Buyer to be performed on or prior
to the Closing pursuant to this Agreement.
ARTICLE 6
CONDITIONS PRECEDENT TO OBLIGATIONS OF BOTH PARTIES
The obligations of Seller and Buyer pursuant to this Agreement
are subject to the fulfillment at or prior to the Closing Date (or such other
date specified) of each of the following conditions:
Section 6.1 Order.
(a) The Order shall have been entered and shall include a
finding that Buyer is making the purchase of the Acquired Assets in good faith
within the meaning of Section 363(m) of the Bankruptcy Code, which Order shall
not have been stayed;
(b) No stay of performance of the Order shall be in effect
and any conditions and directions contained in the Order shall have been fully
complied with in all material respects (without giving effect to any willful
failure by Seller or Buyer to comply);
(c) The Order shall not have been modified, amended,
dissolved, revoked or rescinded in any way materially adverse to Buyer without
Buyer's consent; and
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(d) Seller shall have served the motion for the Order on all
parties having or known to claim an interest at the time of service in the
Acquired Assets or the duly authorized representatives of those parties.
Section 6.2 HSR Act; Governmental Action. Any applicable
waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended (the "HSR Act") relating to the sale of the Acquired Assets shall
have expired. No court, arbitrator or governmental body, agency or official
shall have issued any order restraining or prohibiting the effective operation
of the Business by the Buyer after the Closing.
Section 6.3 No Legal Impediments. No law, rule, regulation,
executive order, judgment, decree or injunction shall have been enacted,
entered, promulgated, enforced or deemed applicable by any court, government or
governmental authority which prohibits the consummation of the transactions
contemplated hereby; provided, however, that the parties shall use their best
efforts to have any such order, decree or injunction vacated or reversed.
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ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
Section 7.1 Corporate Existence and Power. Seller is duly
organized and existing under the laws of the State of Delaware. Seller has
full corporate power and authority to enter into this Agreement and perform its
obligations under this Agreement, subject only to the approval of the
Bankruptcy Court and any further obligations imposed by the Bankruptcy Court.
The copies of the Certificate of Incorporation and By-laws of the Seller which
have been delivered previously to the Buyer (and initialed for identification
by the respective counsel to Buyer and Seller) are true and complete.
Section 7.2 Corporate Authorization. Seller's execution and
delivery of this Agreement and consummation of the transactions contemplated by
this Agreement, subject to the approval of the Bankruptcy Court, have been duly
authorized by all requisite corporate action.
Section 7.3 Binding Effect and Authority. This Agreement has
been duly executed and delivered by Seller, and, subject to approval of the
Bankruptcy Court, this Agreement constitutes a valid and binding agreement of
Seller.
Section 7.4 Governmental Authorization. The execution,
delivery and performance by Seller of this Agreement and the consummation by
Seller of the transactions contemplated by this Agreement require no action by
or in respect of, or filing with, any federal, state or foreign governmental
body, agency, official or authority other than (a) compliance with the
applicable requirements of the HSR Act, and (b) approval of the Bankruptcy
Court.
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Section 7.5 Non-Contravention. Subject to the release by
Seller's secured creditors of their security interests in the Acquired Assets,
the execution and delivery by Seller of this Agreement and performance by
Seller of the transactions contemplated by this Agreement do not and will not
contravene or constitute a default under any law or agreement which would have
a Material Adverse Effect.
Section 7.6 Events Subsequent. Except for events disclosed
on Schedule 7.6 (but taking into account that Seller is operating as debtor in
possession under the Bankruptcy Code), since December 31, 1996, Seller has not:
(a) sold, transferred or otherwise disposed of any of its
properties or assets which would otherwise be included in the Acquired Assets
outside the ordinary and normal course of business;
(b) acquired any property or assets which will be part of the
Acquired Assets outside the ordinary and normal course of business;
(c) sustained any damage, loss or destruction by reason of
fire, explosion, earthquake, accident, casualty, labor trouble, requisition or
taking of property by any government or any agency of any government, flood,
windstorm, embargo, riot, act of God or any enemy, or other similar or
dissimilar casualty or event of or to any of the assets used in connection with
the Business of Seller that would have a Material Adverse Effect; or
(d) experienced any other change in the Business and the
Acquired Assets that would have a Material Adverse Effect, except for the
impact on the level of operations of the curtailment of Seller's trailer
manufacturing operations, Seller's filing a petition for relief under the
Bankruptcy Code and Seller's very limited liquidity.
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Section 7.7 Litigation. Except for proceedings before the
Bankruptcy Court and as set forth in Schedule 7.7 to this Agreement, as of the
date of this Agreement, there is no action, suit, arbitration or legal,
administrative or other proceeding pending against, or affecting, or, to the
best of Seller's Knowledge, any governmental investigation pending or
threatened, against Seller that (a) could result in any material liability
being imposed upon Buyer or (b) could have a Material Adverse Effect. As used
in this agreement, "Seller's Knowledge" means actually known (a) to an active
employee of Seller in the position of general manager or higher or (b) to an
active officer of Seller in the position of vice president or higher.
Section 7.8 Title to Acquired Assets. Upon entry of the
Order, Seller shall have the ability to convey, and at Closing, Seller shall
convey, to Buyer, title to all the Acquired Assets in Seller's possession free
and clear of any and all liens, charges, equities, mortgages, security
interests, pledges, charges, claims, third party interests, or restrictions,
easements, conditions and other matters of public record or other encumbrances
whatsoever, except those Liens and Permitted Exceptions listed in Schedule 7.8
to this Agreement ("Liens and Permitted Exceptions"). There are no assets
used by Seller in the conduct of the Business (except for those assets located
at the Fort Madison, Iowa facility and the Billings, Montana branch) as
currently conducted other than the Acquired Assets, and the Acquired Assets
include all tangible and intangible property necessary to the conduct of the
Business (except for those assets located at the Fort Madison, Iowa facility
and the Billings, Montana branch) by Buyer after the Closing at the level of
production, and otherwise, as currently conducted by Seller.
Section 7.9 Brokers' Fees. Except for any fees which may
become payable to Seller's financial advisors, whose fees, if any, will be paid
by Seller, no investment banker, broker, finder or other intermediary has been
retained by or is authorized to act on behalf of Seller who might be entitled
to any fee or commission from Buyer or any of its Affiliates upon consummation
of the transactions contemplated by this Agreement.
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Section 7.10 Environmental Matters. To the best of Seller's
Knowledge, except as set forth in Schedule 1.5(c)(ii) to this Agreement, (a)
Seller, the Business and the Acquired Assets and the operations conducted
thereon by Seller are in compliance in all respects with all applicable local,
state and federal laws, regulations, orders, permits and judgments relating to
the protection of the environment or the public health and welfare, except
where the failure to so comply will not have a Material Adverse Effect, and (b)
no unresolved Environmental Claim has been made in writing, or to Seller's
knowledge threatened, concerning or relating to the Business or the Acquired
Assets, or which otherwise could give rise to a material Assumed Liability or
other material liability of Buyer.
Section 7.11 Compliance with Law. Since the Petition Date,
the Seller has not received written notice of any violation of applicable law
or governmental regulation relating to the Business or the Acquired Assets. To
the best of Seller's Knowledge, Seller is in compliance with all applicable
laws, regulations, rules and orders of any governmental authority or court,
except where noncompliance would not have a Material Adverse Effect.
Section 7.12 Tax Returns; Taxes.The Seller and its officers
and directors represent to Buyer that all tax returns and reports arising from
the transactions of the Business occurring on or before the Closing have been
filed and all taxes related to such returns have been paid.
Section 7.13 Limitation on Remedy. The representations and
warranties contained in Sections 7.6, 7.7, 7.8, 7.10 and 7.11 of this Agreement
are solely for the purpose of disclosure to assist Buyer in its investigation
of the Business, and Buyer's sole remedy for inaccuracy or breach of these
representations and warranties is to decline to close the transaction by reason
of the condition precedent to the obligations of Buyer set forth in Section 4.1
of this Agreement and to terminate the Agreement without liability to Seller
for breach of such representations and warranties pursuant to Article 11. All
representations in this Article 7 expire at the Closing as provided in Section
12.13 to this Agreement.
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ARTICLE 8
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
Section 8.1 Corporate Existence and Power. Buyer is a
corporation duly incorporated and existing under the laws of the State of
Delaware with full corporate power and authority to enter into this Agreement
and perform its obligations under this Agreement. The copies of the
Certificate of Incorporation and By-laws of Buyer which have been delivered to
Seller (and initialed for identification by counsel to the parties) are true
and complete.
Section 8.2 Corporate Authorization. The execution, delivery
and performance by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated by this Agreement have been duly authorized by all
requisite corporate action of the Buyer.
Section 8.3 Binding Effect. This Agreement has been duly
executed and delivered by, and constitutes the valid and binding obligation of,
Buyer. When delivered at the Closing, the instrument or instruments of
assumption and other agreements required to be executed and delivered by Buyer
will have been duly executed and delivered by Buyer and will be valid and
binding agreements of Buyer.
Section 8.4 Buyer Shares. At or prior to the Closing,
the Designation of Terms of the Buyer Preferred in the form attached as Exhibit
A to this Agreement will have been adopted by all requisite corporate action of
Buyer. The Buyer Shares delivered at the Closing pursuant to Section 2.1 will
be duly authorized, validly issued, fully paid and nonassessable. After
issuance of the Buyer Shares at Closing, the outstanding equity securities of
Buyer will be as set forth on Schedule 8.5(b) to this Agreement, and Buyer will
not have any equity securities, or any options,
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warrants or other commitments to issue equity securities of Buyer, except as
disclosed on Schedule 8.5(b).
Section 8.5 Exchange Act Filings.
(a) Since January 1, 1995, Buyer has filed all documents
("SEC Documents") pursuant to the Securities Exchange Act of 1934, as amended
(the "'34 Act").
(b) As of their respective filing dates, the SEC
Documents complied in all material respects with the requirements of the '34
Act, and none of the SEC Documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading except to the extent corrected by a
subsequently filed SEC Document. The financial statements of Buyer included in
the SEC Documents ("Buyer Financial Statements") complied as to form in all
material respects with the then applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto, were prepared
in accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto or, in the case of unaudited statements, as permitted by Form
10-Q and Regulation S-X of the SEC) and fairly present the consolidated
financial position of Buyer and its consolidated subsidiaries as at the dates
thereof and the consolidated results of their operations and changes in
financial position for the periods then ended (subject, in the case of
unaudited statements, to normally recurring year-end audit adjustments). A
true and correct copy of Buyer's 1996 Annual Report and Annual Report on Form
10-K of Buyer is attached to this Agreement as Schedule 8.5(b).
(c) Since December 31, 1996, there has been no material
adverse change in the financial condition, results of operation, assets, or
prospects of Buyer.
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Section 8.6 Governmental Authorization; Consents.
(a) The execution, delivery and performance by Buyer of this
Agreement and the consummation by Buyer of the transactions contemplated by
this Agreement require no action by or in respect of, or filing with, any
federal, state or foreign governmental body, agency, official or authority
other than (i) compliance with the applicable requirements of the HSR Act, and
(ii) the regulatory approvals (if any) set forth in Schedule 8.6 to this
Agreement.
(b) No consent, approval, waiver or other action by any
person (other than the governmental authorities referred to in (a) of this
Section 8.6) under any contract, agreement, indenture, lease, instrument or
other document to which Buyer is a party or by which it is bound is required or
necessary for the execution, delivery and performance of this Agreement by
Buyer or the consummation of the transactions contemplated by this Agreement.
Section 8.7 Non-Contravention. The execution, delivery and
performance by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated by this Agreement do not and will not contravene or
constitute a default under or give rise to a right of termination, cancellation
or acceleration of any material right or obligation of Buyer or to a loss of
any material benefit to which Buyer is entitled under any provision of
applicable law or regulation (assuming compliance with the matters referred to
in Section 8.6 of this Agreement) or of the Certificate of Incorporation and
By-Laws of Buyer or of any material agreement, contract, plan, lease,
arrangement, commitment, judgment, injunction, order, decree, administrative
interpretation, award or other instrument binding upon Buyer or result in the
creation or imposition of any lien on any asset of Buyer.
Section 8.8 Litigation. There is no action, suit,
arbitration or legal, administrative or other proceeding pending against, or,
to the best of Buyer's knowledge, threatened against or affecting, or any
governmental investigation pending or, to the best of Buyer's knowledge,
threatened, against Buyer that (a) could result in any liability being imposed
upon Seller or its
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Affiliates or (b) could adversely affect the ability of Buyer to consummate the
transactions contemplated by this Agreement.
Section 8.9 Brokers' Fees. No investment banker, broker,
finder or other intermediary has been retained by or is authorized to act on
behalf of Buyer who might be entitled to any fee or commission from Seller or
any of its Affiliates upon consummation of the transactions contemplated by
this Agreement.
ARTICLE 9
COVENANTS AND AGREEMENTS
Section 9.1 Covenants of Seller.
(a) Conduct of Business. Except (i) the rejection in the
Bankruptcy Court of any or all of the contracts that are not assigned to and
assumed by Buyer or (ii) the sale or other disposition of other divisions or
Retained Assets, from the date of this Agreement until Closing, except as may
be agreed to in writing by Buyer or required by an order of the Bankruptcy
Court, Seller will, with respect to the Acquired Assets, (A) except as set
forth on Schedule 9.1(a) to this Agreement, conduct its operations according to
its ordinary and usual course of business, consistent with current practice
since the Petition Date (taking into account that Seller is operating as debtor
in possession under the Bankruptcy Code), (B) except as set forth on Schedule
9.1(a) to this Agreement, use its reasonable efforts (taking into account that
Seller is operating as debtor in possession under the Bankruptcy Code) to (I)
preserve intact its business organization, (II) keep or cause to keep in effect
all material licenses, leases, franchises, contracts, rights and agreements of
Seller or its subsidiaries, (III) maintain its properties in accordance with
past practices, (IV) endeavor to keep available the services of its officers
and key employees, and (V) endeavor to maintain current relationships with
significant licensors, licensees, suppliers, contractors, distributors,
customers and others having business relationships with Seller. Without
limiting the
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generality of the foregoing and except as set forth on Schedule 9.1(a) to this
Agreement, Seller shall not:
(i) other than minor changes in accordance with
sound business practices, (A) increase in any manner the compensation payable
(or to become payable) to any Employee (as defined in Section 10.1 of this
Agreement) or the amount payable (or to become payable) under any bonus,
profit-sharing, pension, retirement, deferred compensation savings, incentive
compensation, health or welfare, or other plan, program, policy, agreement,
trust, fund or arrangement for the benefit of Employee or beneficiary or
dependent thereof; (B) pay or agree to pay (whether formally or informally and
whether or not in writing) any pension, retirement allowance or other employee
benefit not required by any existing employee benefit plan, program, policy or
arrangement to or with respect to any Employee; or (C) commit itself (formally
or informally in writing or orally) to any additional pension, profit-sharing,
bonus, incentive, deferred compensation, group insurance, severance pay,
retirement or other employee benefit plan, agreement, policy, understanding or
arrangement, or to any employment or consulting agreement with or for the
benefit of any person, or to amend any such plans, policies, understandings,
arrangements or agreements in existence on the date of this Agreement and
relating to the Business; provided that the provisions of this Section
9.1(a)(A) shall not prohibit Seller from adopting amendments or taking any
other actions with respect to any of the Plans as may be required (I) by
applicable law, (II) in connection with Seller's disposition of any of its
remaining assets, or (III) by the terms of this Agreement;
(ii) assume or reject any executory contracts or
unexpired leases which otherwise would be part of the Acquired Assets except as
contemplated by Section 1.4 of this Agreement;
(iii) discharge or assume any liabilities except in
the ordinary course of business and except for liabilities which would not be
Assumed Liabilities;
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(iv) take any material action other than in the
ordinary course of business and in a manner consistent with past practice (none
of which actions shall be unreasonable or unusual) with respect to accounting
policies or procedures affecting the Acquired Assets;
(v) settle or otherwise enter into any consent or
other arrangement with respect to any products liability claims, actions,
proceedings or investigations, except where any such action would not have a
Material Adverse Effect;
(vi) make any election with respect to taxes or
settle or compromise any material federal, state, local or foreign income tax
liability;
(vii) fail to defend or initiate any material matter
before any governmental, regulatory or administrative authorities that is
necessary to protect the Acquired Assets, including, without limitation, appeal
taken from the entry of the Order or any motion or application filed in
connection therewith;
(viii) ship merchandise which would be included in
the Acquired Assets other than pursuant to customer orders in the ordinary
course of business consistent with past practice and in amounts not in excess
of such customers' reasonable requirements;
(ix) allow inventory levels to deviate from levels
necessary to conduct the Business following the Closing on an on-going basis
consistent with past practice;
(x) write-down or write-up the value of any of its
assets included in the Acquired Assets;
(xi) offer any early payment terms or deferred
payment terms in connection with the Business except in the ordinary course of
business and consistent with past practice;
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(xii) pay, discharge or satisfy any claim,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise) relating to the Acquired Assets, other than the
payment, discharge or satisfaction thereof in the ordinary course of business
and consistent with past practice;
(xiii) except in the ordinary course of business,
alter, amend or settle any dispute under any agreement, contract or right of
Seller relating to the Business or the Acquired Assets;
(xiv) fail to pay in accordance with past practice,
and in any event within the due dates thereof, accounts payable arising
subsequent to the Petition Date relating to the Business or the Acquired
Assets; and
(xv) agree to do any of the foregoing.
(b) Corporate Examinations and Investigations. Prior to
the Closing Date, Buyer shall be entitled, through its employees and
representatives, to make such investigation and examination of the Acquired
Assets as any of them reasonably requests, to verify the accuracy of the
representations and warranties of Seller set forth in Article 7 of this
Agreement. Any such investigation and examination shall be conducted at
reasonable times and under reasonable circumstances. Seller shall deliver to
Buyer at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, within ten days
of the approval of this Agreement by the Bankruptcy Court, specific financial
information as described in Exhibit M of this Agreement. Seller shall make
available to Buyer those employees of Seller who have specific responsibility
for the keeping and preparation of the books, records, and tax returns and
employer reports of the Seller.
(c) Title Binders. Seller shall obtain, at its expense,
commitments for title insurance issued by such title company as may be
designated by Buyer showing good and marketable title to the Real Property
Interests in Seller, and cause to be issued, at its expense, an
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owner's title insurance policy (ALTA) (the "Title Policy") to Buyer in amounts
reasonably determined by Buyer subject only to the so-called standard
exceptions and Liens and Permitted Exceptions (the "Title Binders").
Section 9.2 Covenants of Buyer.
(a) In General. Buyer shall exercise the rights granted to
it in this Agreement in a prudent manner so as not to interfere with the
orderly operations of the Business of Seller or its Affiliates or with the
relationships of Seller or its Affiliates with current or former employees,
suppliers, customers, creditors, lien-holders and others having business or
governmental relations with Seller or its Affiliates.
(b) Payment of Taxes, Filing Fees. Buyer shall pay all
state, local and foreign transfer and similar taxes, stamp duties, recording
fees and other governmental filing fees and charges. Buyer shall furnish in
good faith to seller valid certificates of exemption for resale, or for further
processing or manufacturing, of the various jurisdictions of situs of personal
property purchased for resale, or for further processing or manufacturing.
Seller shall not charge to Buyer any state or local sales, use, or transaction
taxes on the transfer to Buyer of those assets which Buyer purchases for
resale, or for further processing or manufacturing.
(c) Worker Adjustment Act. If Buyer, at any time prior to 90
days after the Closing Date, effectuates (i) a "plant closing" as defined in
the Worker Adjustment and Retraining Notification Act of 1988 (the "WARN Act")
affecting any site of employment or one or more facilities or operating units
within any site of employment or (ii) a "mass layoff" as defined in the WARN
Act affecting any site of employment, Buyer shall comply fully with the notice
and other requirements of the WARN Act.
(d) Buyer shall use its best efforts to file with the SEC as
soon as practicable after the Closing a resale registration statement covering
the Buyer Shares and to cause the registration
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statement to become effective, in accordance with the terms of the Registration
Rights Agreement attached as Exhibit L to this Agreement.
Section 9.3 Mutual Covenants.
(a) Closing Conditions. Seller and Buyer shall use all
reasonable efforts to cause the conditions precedent to Closing to be
fulfilled.
(b) HSR Act. In connection with this Agreement and the
transactions contemplated in this Agreement, each of Seller and Buyer shall, to
the extent required, prepare and file, and cooperate in the preparation and
filing of, appropriate notifications with the Federal Trade Commission (the
"FTC") and the Antitrust Division of the United States Department of Justice
(the "Antitrust Division") pursuant to the HSR Act and the rules and
regulations promulgated pursuant thereto and to comply with requests of the FTC
and the Antitrust Division for supplementing information.
(c) Consents and Approvals. Prior to the Closing, each of
Seller and Buyer shall use all reasonable efforts to obtain the authorizations,
consents, orders and approvals of federal, state, local and foreign regulatory
bodies and officials, courts (including, without limitation, the Bankruptcy
Court) and other third parties that may be or become necessary for the
performance of their respective obligations pursuant to this Agreement and the
consummation of the transactions contemplated by this Agreement and shall
cooperate fully with each other in seeking promptly to obtain such
authorizations, consents, orders and approvals as may be necessary for the
performance of their respective obligations pursuant to this Agreement. Seller
and Buyer shall not take any action that is likely to have the effect of
delaying, impairing or impeding the receipt of any required approvals and shall
use all reasonable efforts to secure such approvals as promptly as possible.
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(d) Confidentiality. Each of Seller and Buyer shall (at all
times before and after the Closing) use all reasonable efforts to preserve the
confidentiality of all proprietary or confidential information obtained with
respect to the other parties hereto or the business of Seller or its
Affiliates; provided that this Section 9.3(d) shall not apply to any
information to the extent that (i) the disclosure of such information to a
third party is reasonably required in connection with the fulfillment of
another party's obligations under this Agreement and such third party shall
enter into an agreement to keep such information confidential, (ii) such
information shall become generally known to the public through no violation of
this Section 9.3(d), (iii) such information was known to the disclosing party
prior to its receipt from the other party to this Agreement, or (iv) the
disclosure of such information is otherwise required by a court of competent
jurisdiction or by law.
(e) CONSENT TO JURISDICTION. THE BANKRUPTCY COURT SHALL HAVE
JURISDICTION OVER ALL MATTERS, INCLUDING, BUT NOT LIMITED TO, ANY LEGAL ACTION,
SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE RELATED
AGREEMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY AND THE
INTERPRETATION, IMPLEMENTATION AND ENFORCEMENT OF THIS AGREEMENT, AND THE
PARTIES HERETO IRREVOCABLY SUBMIT AND CONSENT TO SUCH JURISDICTION FOR SUCH
PURPOSES.
ARTICLE 10
EMPLOYEE MATTERS
Section 10.1 Treatment of Employees.
(a) Hiring of Employees. Seller will deliver to Buyer a list
of all of the employees of the Business employed by Seller immediately prior to
the Closing (the "Business Employees")
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not later than three days prior to the Closing. On consummation of the
Closing, the Business Employees shall cease to be employees of Seller. Buyer
may make offers of employment, effective upon the Closing, to those Business
Employees it wishes to employ in its sole discretion.
(b) Union Contracts. Buyer will not be obligated to assume
any collective bargaining agreement with any union representing Business
Employees, but Buyer shall recognize, and negotiate in good faith with such
unions concerning, the terms and conditions of employment of any Business
Employees represented by such union which Buyer elects to hire after the
Closing.
(c) Benefit; Enforceability. Nothing in this Agreement,
including, without limitation, this Article 10, shall be deemed to be for the
benefit of, or enforceable by or on behalf of any labor union, Business
Employee, former employee, consultant or former consultant of the Business
(collectively the "Employees"), dependent or beneficiary of any such Employee
or consultant, labor union or such other organization other than Buyer, Seller
and their respective successors and assigns.
Section 10.2 Employee Benefits..
Buyer shall cause each Business Employee who becomes employed
by Buyer (and his or her eligible dependents) to be covered at and after the
Closing by a group health plan (within the meaning of Section 5000(b)(1) of the
Internal Revenue Code) that provides medical benefits that do not limit or
exclude coverage on the basis of any pre-existing condition of such Business
Employee or dependent (or reimburse such Business Employee for the cost of
health care continuation coverage) and, for the balance of the calendar year,
shall provide paid vacation for such Business Employees substantially
equivalent to their respective unused paid vacation days to be taken in the
calendar year, provided that Buyer shall have no obligation under this Section
10.2 to make any cash payment to any Business Employee with respect to unused
vacation or to use
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Fruehauf's annual vacation plan. Buyer shall have no liability under Seller's
health care or dental care plans.
ARTICLE 11
TERMINATION
Section 11.1 Termination by Mutual Consent. At any time on
or prior to the Closing Date, this Agreement may be terminated by the mutual
written consent of Seller and Buyer without liability on the part of Seller or
Buyer.
Section 11.2 Termination Upon Breach or Default.
(a) If Buyer shall default in the observance, or in the due
and timely performance, of any of the agreements or covenants contained in this
Agreement, or if there shall have been a material breach by Buyer of any of its
representations or warranties set forth in this Agreement, Seller, provided
Seller is not in material default with respect to any of its obligations under
the Agreement, may terminate this Agreement upon ten (10) days written notice
to Buyer, during which time Buyer shall have an opportunity to cure the default
or breach.
(b) If Seller shall default in the observance, or in the due
and timely performance, of any of the agreements or covenants contained in this
Agreement, or if there shall have been a material breach by Seller of any of
its representations or warranties set forth in this Agreement, Buyer, provided
it is not in material default with respect to any of its obligations under the
Agreement, may terminate this Agreement upon ten (10) days written notice to
Seller, during which ▇▇▇▇ ▇▇▇▇▇▇ shall have an opportunity to cure the default
or breach.
Section 11.3 Termination Date. Either Seller or Buyer may
terminate this Agreement if the party exercising its right to terminate is not
in default hereunder and the Closing
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shall not have occurred by May 31, 1997, or such later date, if any, upon which
the Seller and Buyer may agree in writing. If this Agreement is terminated
pursuant to this Section 11.3, neither party shall have any liability to the
other hereunder.
ARTICLE 12
GENERAL
Section 12.1 Access and Retention of Records. Buyer shall
preserve and keep the Books and Records delivered to it pursuant to this
Agreement for a period of six years following the Closing Date, or for any
longer period that may be required by any governmental agency or ongoing
litigation, and shall make such records available to Seller or K-H Corporation
("K-H") as may be reasonably requested by Seller from time to time in
connection with any legal proceedings against or government investigations of
Seller, its Affiliates or K-H or in connection with any tax examination of
Seller, its Affiliates or K-H. If Buyer wishes to destroy such Books and
Records after such six year period, Buyer shall first give ninety (90) days
prior written notice to Seller or K-H and Seller or K-H shall have the right at
its option, upon prior written notice given to Buyer within such ninety (90)
day period, to take possession of such records within one hundred eighty (180)
days after the date of the notice to Buyer under this Section 12.1.
Section 12.2 Cooperation in Claims and Litigation. Buyer and
Seller shall cooperate, to the extent reasonably requested by either of them,
in the handling and disposition of any claims and litigation, including,
without limitation, customer warranty claims, product liability claims, claims
relating to environmental matters, labor arbitrations, employee grievances and
claims under the Equal Employment Opportunity Act, Civil Rights Act or similar
statutes, whether or not listed on any Schedule to this Agreement and whether
or not pending or threatened prior to the Closing, that arise out of or are
related to any event or occurrence prior to or after the Closing.
▇▇▇▇▇▇▇ ▇▇.▇ ▇▇▇▇▇▇▇▇.
▇▇
▇▇
(▇) Except as provided by (b), the representations and
warranties made by a party in this Agreement shall not survive the Closing, and
such representations and warranties, and any cause of action based on such
representations and warranties, shall terminate and expire on the consummation
of the Closing. Except as provided by (b), each party acknowledges that all
representations and warranties of the other party contained in this Agreement
are solely conditions to Closing, and after Closing there shall be no liability
or obligations in respect of a breach or claimed breach thereof.
(b) The representations and warranties made by Buyer in
Sections 8.4 and 8.5 of this Agreement shall survive the Closing, and such
representations and warranties, and any cause of action based on such
representations and warranties, shall inure to the benefit of Seller and
Seller's creditors receiving any distributions of the Buyer Shares under
Seller's Plan of Reorganization.
Section 12.4 Binding Effect; Benefits; Assignment. All of
the terms of this Agreement shall be binding upon, inure to the benefit of and
be enforceable by and against the successors and permitted assigns of Seller
and Buyer. Nothing in this Agreement, express or implied, is intended to
confer upon any other person any rights or remedies under or by reason of this
Agreement except as expressly indicated in this Agreement. Neither Seller nor
Buyer shall assign any of its rights or obligations under this Agreement to any
other person, firm or corporation without the prior written consent of the
other party to this Agreement, except that, at the request of Buyer, Seller
shall transfer at Closing title to all or part of the Acquired Assets to any
one or more Affiliates of Buyer designated by Buyer.
Section 12.5 Governing Law. Except to the extent
inconsistent with the Bankruptcy Code, this Agreement shall be governed by the
laws of the State of Delaware.
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Section 12.6 Notices. All notices, requests, demands and
other communications to be given pursuant to the terms of this Agreement shall
be in writing and shall be delivered personally, telecopied or sent by
recognized overnight delivery service, and shall be deemed given when so
delivered personally, telecopied or sent, as follows:
(a) If to Buyer:
Wabash National Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Seller:
Fruehauf Trailer Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Ireland
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with a copy to:
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Any party may change its address or telecopier number by prior
written notice to the other parties.
Section 12.7 Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original,
and such counterparts shall together constitute one and the same instrument.
Section 12.8 Expenses. Except as otherwise provided in this
Agreement, Buyer and Seller shall pay their own respective expenses, costs and
fees (including, without limitation, attorney and accountants' fees) incurred
in connection with the negotiation, preparation, execution and delivery of this
Agreement and the consummation of the transactions contemplated by this
Agreement.
Section 12.9 Bulk Transfer Laws. Buyer acknowledges that
Seller will not comply with the provisions of any bulk transfer laws of any
jurisdiction in connection with the transactions contemplated by this
Agreement.
Section 12.10 Entire Agreement. This Agreement, the Exhibits
and Schedules to this Agreement, the Expense Reimbursement Agreement of even
date herewith, and the agreements referred to in this Agreement set forth the
entire agreement and understanding of Seller and Buyer in respect of the
transactions contemplated by this Agreement and supersede all prior
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agreements, arrangements and understandings relating to the subject matter of
this Agreement. No representation, promise, inducement or statement of
intention has been made by Seller or Buyer that is not embodied in this
Agreement or in the documents referred to in this Agreement, and neither Seller
nor Buyer shall be bound by or liable for any alleged representation, promise,
inducement or statement of intention not so set forth. The representations,
warranties, covenants and agreements of the Seller and the Buyer contained in
this Agreement shall be as expressly set forth in this Agreement, and nothing
in this Agreement is intended to imply to one party any obligations or
responsibilities of any other party.
Section 12.11 Amendment and Waiver. This Agreement may be
amended, modified, superseded or canceled, and any of the terms, covenants,
representations, warranties or conditions of this Agreement may be waived, only
by a written instrument executed by Seller and Buyer or, in the case of a
waiver, by or on behalf of the party waiving compliance. The failure of any
party at any time to require performance of any provision of this Agreement
shall in no manner affect the right of such party at a later time to enforce
the same. No waiver by any party of any condition or of any breach of any
term, covenant, representation or warranty contained in this Agreement, in any
one or more instances, shall be deemed to be or construed as a further or
continuing waiver of any such condition or of any breach of any such term,
covenant, representation or warranty or any other term, covenant,
representation or warranty set forth in this Agreement.
Section 12.12 Headings. The headings of the sections and
paragraphs of this Agreement have been inserted for convenience of reference
only and shall in no way restrict or otherwise modify any of the terms or
provisions of this Agreement.
Section 12.13 Execution. This Agreement is being executed by
each of Buyer's and Seller's duly authorized officers solely on behalf of Buyer
and Seller and not in a personal or any other capacity. The parties agree that
no action shall be commenced by Buyer against any
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officer or director of Buyer or Seller in connection with any claim, dispute or
matter arising under this Agreement.
Section 12.14 Court Approval. Seller's authority to enter
into this Agreement is subject to approval by the Bankruptcy Court, and Seller
shall not be legally bound by this Agreement, and shall have no legally
enforceable obligations to Buyer under this Agreement, until this Agreement has
been approved by the Bankruptcy Court.
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IN WITNESS WHEREOF, each of Seller and Buyer have executed
this Agreement as of the day and year first above written.
WABASH NATIONAL CORPORATION
By:
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President and Chief Financial
Officer
"Buyer"
FRUEHAUF TRAILER CORPORATION
By:
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
"Seller"
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Exhibit A
SERIES A 6% CUMULATIVE CONVERTIBLE EXCHANGEABLE
PREFERRED STOCK
The following sets forth certain details regarding the
Convertible Exchangeable Preferred Stock to be issued by Wabash National
Corporation (the "Corporation") pursuant to Section 2.1 of the Purchase
Agreement.
Section 1. Designation and Amount.
1A. Number of Shares. The designation of the series of
Preferred Stock, $.01 par value per share, provided for herein shall be "Series
A Cumulative 6% Convertible Exchangeable Preferred Stock" (hereinafter referred
to as the "Preferred Stock"), and the number of authorized shares constituting
Preferred Stock is [_________]. The shares of Preferred Stock shall only be
issued in connection with the consummation of the transactions contemplated by
the Purchase Agreement dated as of March 13, 1997, by and among the Corporation
and Fruehauf Trailer Corporation, as defined therein (the "Purchase
Agreement").
1B. Stated Value Per Share. The Stated Value Per Share
of the Preferred Stock shall be $50.00.
1C. Rank. The Preferred Stock shall with respect to
rights upon liquidation, winding up or dissolution, and redemption rights, rank
(i) junior to any other series of Preferred Stock duly established by the Board
of Directors of the Corporation, the terms of which shall specifically provide
that such series shall rank prior to the Preferred Stock, whether now existing
or hereafter created (the "Senior Preferred Stock"), (ii) on a parity with any
other series of Preferred Stock duly established by the Board of Directors of
the Corporation, the terms of which shall specifically provide that such series
shall rank on a parity with the Preferred Stock, whether now existing or
hereafter created (the "Parity Preferred Stock"), and (iii) prior to any other
class or series of capital stock of the Corporation, including, without
limitation, all classes of the Common Stock, par value $0.01 per share, of the
Corporation, whether now existing or hereafter created (the "Common Stock"; all
of such classes or series of capital stock of the Corporation to which the
Preferred Stock ranks prior, including without limitation the Common Stock, and
including, without limitation, junior securities convertible into or
exchangeable for other junior securities or phantom stock representing junior
securities, are collectively referred to herein as "Junior Securities").
Section 2. Preferred Stock Dividends.
Holders of the Preferred Stock are entitled to receive, when,
as and if declared by the Board of Directors out of the funds of the
Corporation legally available therefor, a cash dividend at the annual rate of
6% of the Stated Value Per Share (equivalent to $3.00 per share per annum).
Dividends with respect to the Preferred Stock will be payable quarterly in
arrears on March 15, June 15,
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September 15 and December 15 of each year, commencing June 15, 1997 (and, in
the case of any accrued but unpaid dividends, at such additional times and for
such interim periods, if any, as determined by the Board of Directors).
Dividends on the Preferred Stock will be cumulative and will accrue without
interest from the date of original issuance. Dividends will be payable to the
holders of record as they appear on the stock books of the transfer agent for
the Corporation on such record dates, which shall be not more than 30 days nor
less than 10 days preceding the payment dates, as shall be fixed by the Board
of Directors, provided that holders of shares of Preferred Stock called for
redemption on a redemption date falling between a dividend payment record date
and the dividend payment date shall, in lieu of receiving such dividend payment
on the dividend payment date fixed therefor, receive such dividend payment
together with all other accrued and unpaid dividends on the date fixed for
redemption (unless such holders convert such shares to Common Stock, in which
case such holders will receive such payment on the corresponding dividend
payment date). Dividends payable on the Preferred Stock for the initial
dividend period and dividends payable for any period shorter or longer than a
full dividend period will be computed on the basis of a 360-day year consisting
of twelve 30-day months.
If dividends are not paid in full upon the Preferred Stock and
any other Parity Preferred Stock, all dividends declared upon shares of
Preferred Stock and such other Parity Preferred Stock will be declared pro rata
so that in all cases the amount of dividends declared per share on the
Preferred Stock and the other Parity Preferred Stock bear to each other the
same ratio that accrued and unpaid dividends per share on the shares of the
Preferred Stock and the other Parity Preferred Stock bear to each other.
Except as set forth above, unless full cumulative dividends on the Preferred
Stock have been paid and funds set aside, dividends (other than dividends paid
solely in Common Stock or Junior Securities and rights to acquire the
foregoing) may not be paid or declared and set aside for payment and other
distributions may not be made upon the Common Stock or Junior Securities nor
may any Common Stock or Junior Securities be redeemed, purchased, or otherwise
acquired for any consideration by the Corporation (except for repurchases from
employees under employee benefit plans and by conversion into or exchange for
Common Stock or Junior Securities).
Section 3. Liquidation.
In the event of any dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary (a "Liquidation"), the
holders of shares of Preferred Stock shall be entitled to receive out of the
assets of the Corporation legally available for distribution to stockholders
(whether representing capital or surplus), before any payment or distribution
shall be made on the Common Stock or any other Junior Securities (but after
distribution of such assets among, or payment thereof over to, creditors of the
Corporation and to holders of any stock of the Corporation with liquidation
rights senior to the Preferred Stock,
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including holders of Senior Preferred Stock), the Stated Value Per Share plus
the amount of any dividends accrued thereon through the date of distribution
(the "Preferred Stock Liquidation Distribution"). After the Preferred Stock
Liquidation Distribution has been made, the holders of shares of Preferred
Stock shall not be entitled to any further participation in any distribution of
assets of the Corporation. If the assets distributable upon such dissolution,
liquidation or winding up (as provided above) shall be insufficient to pay cash
in an amount equal to the amount of the Preferred Stock Liquidation
Distribution to the holders of shares of Preferred Stock, then such assets or
the proceeds thereof shall be distributed among the holders of the Preferred
Stock ratably in proportion to the respective amounts of the Preferred Stock
Liquidation Distribution to which they otherwise would be entitled. The merger
or consolidation of the Corporation into or with another corporation, a merger
or consolidation of any other corporation with or into the Corporation upon the
completion of which the stockholders of the Corporation prior to the merger or
consolidation no longer hold a majority of the outstanding equity securities of
the Corporation or the sale, conveyance, exchange or transfer of all or
substantially all of the property or assets of the Corporation (any such event,
a "Reorganization Event") shall, at the option of the holders of at least 50 %
of the Preferred Stock, be deemed to be a Liquidation of the Corporation.
Section 4. Voting Rights.
The holders of the Preferred Stock shall be entitled to notice
of all stockholders meetings in accordance with the Corporation's bylaws, and
except as otherwise required by law, the holders of the Preferred Stock shall
be entitled to vote on all matters submitted to the stockholders for a vote
together with the holders of the Common Stock as a single class, and each share
of Preferred Stock shall be entitled to one vote for each share of Common Stock
that would be issuable upon conversion of such share on the record date for
determining eligibility to participate in the action being taken.
Section 5. Optional Conversion.
5A. General.
At any time and from time to time after the initial issuance,
any holder of Preferred Stock may convert all or any of the shares of Preferred
Stock held by such holder into a number of shares of Common Stock computed by
multiplying the number of shares to be converted by the Stated Value Per Share
of the Preferred Stock plus the amount of any dividends accrued thereon through
the date of distribution and dividing the result by the Conversion Price. The
Conversion Price shall be an amount equal to one hundred twenty percent (120%)
of the average closing price on the New York Stock Exchange (the "Average
Closing Price") of Common Stock for the ten (10) consecutive trading days prior
to the date of closing under the Purchase Agreement (the "Closing Date");
provided that the Conversion
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Price shall in no event exceed $25.00. In the event any Preferred Stock is
called for redemption, the conversion rights pertaining thereto will terminate
at the close of business on the business day immediately prior to the
redemption date unless the Corporation defaults in the payment of the
redemption price.
5B. Adjustment of Conversion Price.
The Conversion Price is subject to adjustment upon the
occurrence of certain events, including (i) the distribution of shares of
Common Stock as a dividend or distribution on the Common Stock, (ii) the
subdivision or combination of the outstanding Common Stock, (iii) the
distribution to all or substantially all holders of Common Stock of warrants,
options or other rights to subscribe for or purchase Common Stock (or
securities convertible into Common Stock) at a price per share less than the
then Average Current Market Price (as defined in the Certificate of
Designations), (iv) the distribution to all or substantially all holders of
Common Stock of shares of capital stock of the Corporation (other than shares
of Preferred Stock upon exercise of a Right), evidences of indebtedness, or
other non-cash assets (including securities of any Corporation other than the
Corporation), (v) the distribution to all or substantially all holders of
Common Stock of warrants, options or other rights to subscribe for its
securities (other than those referred to in (iii) above), and (vi) the
distribution to all or substantially all holders of Common Stock of cash in an
aggregate amount that (together with all other cash distributions to all or
substantially all holders of Common Stock made within the preceding 12 months
not triggering a conversion price adjustment) exceeds an amount equal to 20% of
the Average Current Market Price on the business day immediately preceding the
day on which the Corporation declares such distribution multiplied by the
number of shares of Common Stock outstanding on such date (excluding shares
held in treasury of the Corporation). Issuances of options and securities
convertible into Common Stock are deemed to be issuances of the underlying
Common Stock for purposes of adjustments to the conversion price. Whenever the
conversion price is adjusted, the Corporation will promptly mail to holders of
Preferred Stock a notice of adjustment briefly stating the facts requiring the
adjustment and the manner of computing it. Such adjustment shall reduce the
Conversion Price to fully offset the economic dilution to the Preferred Stock
(on an as converted basis) of the occurrence of the events described in clauses
(i) - (vi) above, except that no adjustment of the conversion price will be
required to be made in any case until cumulative adjustments amount to a change
in the conversion price of 1% or more, but any such adjustment that would
otherwise be required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations will be made either to
the nearest cent or the nearest 1/100 of a share.
If the Corporation reclassifies or changes its outstanding
Common Stock, or consolidates with or merges into or sells or conveys all or
substantially all of the assets of the Corporation as an entirety to any
person, or is a party to a
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57
merger or share exchange that reclassifies or changes its outstanding Common
Stock, shares of Preferred Stock will become convertible into the kind and
amount of shares of stock and other securities and property (including cash)
that the holders of shares of Preferred Stock would have owned immediately
after the transaction if the holders had converted such shares of Preferred
Stock into Common Stock immediately before the effective date of the
transaction. If in connection with any such reclassification, consolidation,
merger, sale, transfer, or share exchange each holder of shares of Common Stock
is entitled to elect to receive either securities, cash or other assets upon
completion of such transaction, the Corporation will provide or cause to be
provided to each holder of Preferred Stock (on an as converted basis) the right
to elect to receive the securities, cash or other assets into which the
Preferred Stock held by such holder will be convertible after completion of any
such transaction on the same terms and subject to the same conditions
applicable to holders of the Common Stock (including, without limitation,
notice of the right to elect, limitations on the period in which such election
will be made and the effect of failing to exercise the election). The above
will similarly apply to successive reclassifications, consolidations, mergers,
sales, transfer or share exchanges.
5C. Conversion Procedure.
Any holder of shares of Preferred Stock desiring to convert
any portion thereof into Common Stock shall surrender each certificate
representing one or more shares of such Preferred Stock to be converted, duly
endorsed in favor of the Corporation or in blank and accompanied by proper
instruments of transfer, at the principal business office of the Corporation
(or such other place as may be designated by the Corporation), and shall give
written notice to the Corporation at that office of its election to convert the
same, setting forth therein the name or names (with the address or addresses)
in which the shares of Common Stock are to be issued.
The Corporation shall at all times reserve and keep available
out of its authorized but unissued shares of Common Stock, solely for the
purpose of issuance upon the conversion of the Preferred Stock, not less than
the number of shares of Common Stock issuable upon the conversion of all
outstanding Preferred Stock that may then be exercised. All shares of Common
Stock which are so issuable shall, when issued, be duly and validly issued,
fully paid and nonassessable and free from all taxes, liens and charges. The
Corporation shall take all such actions as may be necessary to ensure that all
such shares of Common Stock may be so issued without violation of any
applicable law or governmental regulation or any requirements of any domestic
securities exchange upon which shares of Common Stock may be listed (except for
official notice of issuance which shall be immediately delivered by the
Corporation upon each such issuance).
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58
Section 6. Exchange.
The Preferred Stock is exchangeable, at any time and from time
to time, by the Corporation, in whole or in part, upon at least 30 days but no
more than 60 days prior written notice to the holders of Preferred Stock to be
so exchanged through the issuance of Convertible Subordinated Debentures
("Debentures") in redemption of and in exchange for the Preferred Stock.
Holders of the Preferred Stock will be entitled to receive $50 principal amount
of Debentures in exchange for each share of Preferred Stock held by them at the
time of exchange provided that all accrued dividends to the date of exchange
have been paid. The Debentures are described in more detail in Section 8
below.
The Debentures shall be convertible and subject to optional
redemption.
Section 7. Optional Redemption.
The Preferred Stock shall be subject to redemption on a
pro-rata basis (based on the number of shares), at the option of the
Corporation, in whole or from time to time in part, in each case as set forth
below, (i) if at any time on and after the Closing Date and prior to the second
anniversary of the Closing Date, the Average Closing Price of the Common Stock
for 10 consecutive trading days during such period equals or exceeds one
hundred forty percent (140%) of the Conversion Price then in effect, then for a
period of 60 days following the last day of such 10 day period, at a per share
redemption price equal to the Stated Value Per Share plus any dividends accrued
thereon to the date of redemption, and (ii) at any time on or after the second
anniversary of the Closing Date, at a per share redemption price equal to the
Stated Value Per Share plus any dividends accrued thereon to the date of
redemption.
The Corporation shall give each holder of Preferred Stock
written notice of each redemption of Preferred Stock held by such holder not
less than 30 days nor more than 45 days prior to any redemption date,
specifying such redemption date and the number of shares to be redeemed on such
date. Notice of redemption having been so given, the number of shares to be
redeemed on the redemption date as specified in such notice shall be so
redeemed on the specified redemption date, except to the extent that any share
of Preferred Stock which is to be so redeemed shall have been surrendered to
the Corporation for conversion prior to such redemption date.
Section 8. Debentures.
The Debentures will be unsecured, subordinated obligations of
the Corporation, will be limited in aggregate principal amount and will mature
on the
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59
tenth anniversary of the Closing Date. The Debentures will bear interest at
the same annual rate as the dividends payable on the Preferred Stock, from the
date of issuance, or from the most recent interest payment date to which
interest has been paid or provided for, payable semiannually in arrears on
March 15 and September 15 of each year, commencing with the first of such dates
to occur after the exchange date, to the person in whose name the Debenture is
registered at the close of business on the preceding March 1 and September 1,
as the case may be. Interest will be payable to the holders of record as they
appear on the register of the Corporation on such record dates, provided that
holders of Debentures called for redemption on a redemption date falling
between an interest payment record date and the interest payment date shall, in
lieu of receiving such interest on the interest payment date fixed therefor,
receive such interest payment together with all other accrued and unpaid
interest on the date fixed for redemption (unless such holders convert such
Debentures to Common Stock in which case such holders will receive such payment
on the corresponding dividend payment date). Interest will be computed on the
basis of a 360-day year of twelve 30-day months. The Debentures will not be
subject to any sinking fund. Principal of and premium, if any, and interest
on, with respect to, the Debentures will be payable at the office or agency of
the Corporation maintained for such purposes. In addition, payment of
interest, may, at the option of the Corporation, be made by check mailed to the
address of the person entitled thereto. The Debentures will be issued only in
fully registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000.
The Indenture shall not contain any restriction on the payment
of dividends or the repurchase of securities of the Corporation (except in the
case of an event of default under the Indenture) or any financial covenants.
Otherwise, the Indenture shall contain customary terms and conditions and
comply in all respects with the Trust Indenture Act of 1939, the form of which
shall be agreed to by the parties prior to the Closing (as defined in the
Purchase Agreement).
The payment of principal of and premium, if any, and interest
on, with respect to, the Debentures will, to the extent set forth in the
Indenture, be subordinated and subject in right of payment to the prior payment
in full of all Senior Indebtedness of the Corporation (as defined below),
whether outstanding at the date of the Indenture or later incurred. In the
event of any default in the payment of the principal of, or interest on, any
Senior Indebtedness or any default permitting the acceleration of Senior
Indebtedness where notice of such default has been given to the Corporation, no
payment with respect to the payment of principal of and premium, if any, and
interest on, with respect to, the Debentures may be made by the Corporation,
whether outstanding at the date of the Indenture or later incurred, unless and
until such default has been cured or waived. Upon any payment or distribution
of the Corporation's assets to creditors upon any dissolution, winding up,
liquidation, reorganization, bankruptcy, insolvency, receivership or other
proceedings relating to the Corporation, whether voluntary or
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60
involuntary, the holders of Senior Indebtedness will first be entitled to
receive payment in full of all amounts due thereon before the holders of the
Debentures will be entitled to receive any payment upon the principal of,
premium, if any, and interest on, with respect to, the Debentures. By reason
of such subordination, in the event of the insolvency of the Corporation,
holders of Debentures may recover less ratably than holders of Senior
Indebtedness and other creditors of the Corporation.
"Senior Indebtedness" is defined as the principal of, premium,
if any, and interest on (a) any and all other indebtedness and obligations of
the Corporation (including indebtedness of others guaranteed by the
Corporation) other than the Debentures, whether or not contingent and whether
outstanding on the date of the Indenture or thereafter created, incurred or
assumed, which (i) is for money borrowed; (ii) is evidenced by any bond, note,
debenture or similar instrument; (iii) represents the unpaid balance on the
purchase price of any property, business, or asset of any kind; (iv) is an
obligation of the Corporation as lessee under any and all leases of property,
equipment or other assets required to be capitalized on the balance sheet of
the lessee under generally accepted accounting principles; (v) is a
reimbursement obligation of the Corporation with respect to letters of credit;
(vi) is an obligation of the Corporation with respect to interest swap
obligations and foreign exchange agreements or (vii) is an obligation of others
secured by a lien to which any of the properties or assets (including, without
limitation, leasehold interests and any other tangible or intangible property
rights) of the Corporation are subject, whether or not the obligations secured
thereby shall have been assumed by the Corporation or shall otherwise be the
Corporation's legal liability, and (b) any deferrals, amendments, renewals,
extensions, modifications and refundings of any indebtedness or obligations of
the types referred to above; provided that Senior Indebtedness shall not
include (i) the Debentures; (ii) any indebtedness or obligation of the
Corporation which, by its terms or the terms of the instrument creating or
evidencing it, is both subordinated to any other indebtedness or obligations of
the Corporation and is not superior in right of payment to the Debentures;
(iii) any indebtedness or obligation of the Corporation to any of its
subsidiaries and (iv) any indebtedness or obligation which is both incurred by
the Corporation in connection with the purchase of assets, materials or
services in the ordinary course of business and constitutes an unsecured trade
payable.
The Corporation expects from time to time to incur additional
indebtedness, including, but not limited to, Senior Indebtedness. The
Indenture will not prohibit or limit the incurrence of such additional
indebtedness.
Section 9. Debenture Conversion Rights
The Debentures may be converted in denominations of $1,000 or
integral multiples thereof (plus interest accrued to the date of conversion) at
any
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time prior to maturity at the option of the holder into fully paid,
nonassessable shares of Common Stock at a conversion price equal to the
Conversion Price with respect to the Preferred Stock as subsequently adjusted.
The right to convert Debentures called for redemption will expire at the close
of business on the fifth business day prior to the redemption date (the
"Conversion Termination Date") (unless the Corporation shall default in making
the redemption payment when due, in which case the conversion right shall
terminate at the close of business on the date such default is cured and such
Debenture is redeemed).
Holders of Debentures at the close of business on an interest
payment record date shall be entitled to receive the interest payable on the
corresponding interest payment date notwithstanding the conversion thereof
following the close of business on such interest payment record date and prior
to the close of business on such interest payment date. However, Debentures
surrendered for conversion during the period between the close of business on
any interest payment record date and the close of business on the corresponding
interest payment date (except Debentures called for redemption on a redemption
date or with a Conversion Termination Date during such period) must be
accompanied by payment of an amount equal to the interest payment to be
received on such interest payment date with respect to such Debentures
presented for conversion. Except as provided above, the Corporation shall make
no payment or allowance for unpaid interest on converted Debentures or for
dividends on the shares of Common Stock issued upon such conversion.
No fractional shares of Common Stock will be issued upon
conversion but, in lieu thereof, an appropriate amount will be paid in cash
based on the Closing Price (as defined in the Indenture) on the last trading
day before the conversion date.
Section 10. Registration.
The Corporation shall file with the Securities and Exchange
Commission (the "Commission"), within 90 days after the date of original
issuance of the Preferred Stock, one or more Shelf Registration Statements to
register the resales of Transfer Restricted Securities by the holders thereof
who satisfy certain conditions relating to the provision of information in
connection with the Shelf Registration Statement. The Corporation will use its
reasonable best efforts to cause the Shelf Registration to become effective
within 90 days from the date of original issuance of the Preferred Stock and to
keep such Shelf Registration Statement(s) effective until the second
anniversary of the date of original issue of the Preferred Stock. For purposes
of the foregoing, "Transfer Restricted Securities" means each share of
Preferred Stock, each Debenture, each share of Common Stock issued as part of
the Purchase Price pursuant to the Purchase Agreement ("Purchase Price
Preferred Stock"), or each underlying share of Common Stock, as applicable,
until the date on which such share of Preferred Stock, Debenture,
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62
Purchase Price Preferred Stock, or underlying share of Common Stock, as
applicable, has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statements, the date on
which such share of Preferred Stock, Debenture, Purchase Price Preferred Stock,
or underlying share of Common Stock, as applicable, is distributed to the
public pursuant to Rule 144 or the date on which such share of Preferred Stock,
Debenture, Purchase Price Preferred Stock, or underlying share of Common Stock,
as applicable, may be sold or transferred pursuant to Rule 144(k) (or any
similar provisions then in force).
If the Shelf Registration Statement relating to the Purchase
Price Preferred Stock has not been declared effective by the Commission within
90 days after the date of original issuance of the Preferred Stock (a
"Registration Default") then the dividend rate on the Preferred Stock shall be
increased from 6% to 10% during the period between the end of such 90 day
period and the date on which such Shelf Registration Statement is declared
effective by the Commission.
At Closing, the parties will enter into a Registration Rights
Agreement in the form of Exhibit L to the Purchase Agreement which will govern
the filing and use of the Shelf Registration Statement and related matters.
Section 11. Other Protection.
The Certificate of Designations will provide for customary
protection provisions, including the right to a class vote on mergers which
would materially adversely affect the holders of Preferred Stock.
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63
EXHIBIT B
QUITCLAIM DEED
KNOW ALL MEN BY THESE PRESENTS, that FRUEHAUF TRAILER CORPORATION, a
corporation organized and existing under the laws of the State of Delaware (the
"GRANTOR"), for and in consideration of the sum of TEN DOLLARS ($10.00) and
other valuable consideration received to its full satisfaction of __________, a
________________corporation (the "GRANTEE"), whose mailing address is
_____________________, does hereby GIVE, GRANT, REMISE, RELEASE, CONFIRM and
FOREVER QUITCLAIM unto the Grantee, its successors and assigns, all such right,
title and interest, if any, as the Grantor has in and to certain premises
described on Attachment A attached hereto and made a part hereof by this
reference, together with all appurtenant rights, privileges and assessments
thereunto belonging (all of the foregoing hereinafter referred to as the
"Premises").
TO HAVE AND TO HOLD the Premises unto the Grantee, its successors and
assigns, so that neither the Grantor, nor its successors or assigns, nor any
other persons claiming title through or under the Grantor, shall or will
hereafter claim or demand any right or title to the Premises, or any part
thereof;
64
but they and every one of them shall by these presents be excluded and forever
barred.
IN WITNESS WHEREOF, FRUEHAUF TRAILER CORPORATION, the Grantor, has
executed this instrument by its duly authorized officer as of the ____ day of
__________, 1997.
Signed and acknowledged
in the presence of:
FRUEHAUF TRAILER CORPORATION,
a Delaware corporation
------------------------------ ------------------------------
Printed Name: ▇▇▇▇▇ ▇▇▇▇▇, President
-----------------
------------------------------
Printed Name:
-----------------
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65
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
Before me a Notary Public in and for said County and State personally
appeared FRUEHAUF TRAILER CORPORATION, a Delaware corporation, by ▇▇▇▇▇ ▇▇▇▇▇,
its President, who acknowledged that he did sign the foregoing deed on behalf
of said corporation by authority of its Board of Directors and that the same is
the free act and deed of said corporation and his free act and deed as such
officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Cleveland, Ohio, this ____ day of __________, 1997.
------------------------------
Notary Public
[Notarial Seal]
This Instrument Prepared By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
North Point
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
3
66
ATTACHMENT "A"
[Legal Description as described on Schedule 1.1(a) to the Purchase Agreement]
67
EXHIBIT C
▇▇▇▇ OF SALE AND ASSIGNMENT
THIS ▇▇▇▇ OF SALE AND ASSIGNMENT (this "▇▇▇▇ of Sale") is made,
executed and delivered this 16th day of April, 1997, by FRUEHAUF CORPORATION, a
Delaware corporation ("Seller"), pursuant to the Purchase Agreement dated as of
March 13, 1997, as amended (the "Purchase Agreement"), between FRUEHAUF TRAILER
CORPORATION, a Delaware corporation ("FTC"), and WABASH NATIONAL CORPORATION, a
Delaware corporation, as buyer ("Buyer"). Terms used in this ▇▇▇▇ of Sale
which are defined in the Purchase Agreement are used in this ▇▇▇▇ of Sale as so
defined.
W I T N E S S E T H:
WHEREAS, Buyer and FTC have entered into the Purchase Agreement,
which by this reference is incorporated and made a part of this ▇▇▇▇ of Sale,
pursuant to which FTC has agreed to sell, convey, assign, transfer and deliver
to Fruehauf Trailer Services, Inc. ("FTS"), a Delaware corporation and the
designee of Buyer, its Business and the assets, rights and properties listed
and described in Section 1.1 of the Purchase Agreement; and
WHEREAS, Seller is the owner of record of the "FRUEHAUF" trademark,
identified as an Acquired Asset in Section 1.1(e) to the Purchase Agreement and
more fully described
68
2
on Schedule 1.1(e) to the Purchase Agreement (the "▇▇▇▇▇▇▇▇ ▇▇▇▇"); and
WHEREAS, Seller desires to execute and deliver this ▇▇▇▇ of Sale in
furtherance of the Purchase Agreement;
NOW, THEREFORE, for the consideration set forth in the Purchase
Agreement and other good and valuable consideration had and received, the
receipt and sufficiency of which is hereby acknowledged, Seller does hereby
grant, bargain, sell, convey, transfer and assign unto and vest in FTS, its
successors and assigns, the ▇▇▇▇▇▇▇▇ ▇▇▇▇ and all of Seller's right, title and
interest in and to the ▇▇▇▇▇▇▇▇ ▇▇▇▇.
TO HAVE AND TO HOLD, all and singular, the ▇▇▇▇▇▇▇▇ ▇▇▇▇ is hereby
granted, bargained, sold, conveyed, transferred, assigned to and vested in FTS,
its successors and assigns, to and for its and their own use and benefit
forever. Seller hereby covenants that it will not execute any instrument or
grant or transfer any rights or interests inconsistent with the rights and
interests granted herein.
Seller further agrees to execute and deliver to FTS such further
instruments of transfer and assignment as FTS may from time to time reasonably
request in order to transfer and
69
3
assign to and vest in FTS all of the rights, privileges and property hereby
transferred and assigned or intended so to be.
70
4
IN WITNESS WHEREOF, the undersigned FRUEHAUF CORPORATION has caused
this instrument to be executed by its duly authorized officer on the date first
above written.
FRUEHAUF CORPORATION
----------------------------
By:
----------------------------
Title:
----------------------------
▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇ National Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Purchase Agreement, dated March 13, 1997, as
amended, between Fruehauf Trailer Corporation
and Wabash National Corporation
Ladies and Gentlemen:
We have acted as counsel for Fruehauf Trailer Corporation, a
Delaware corporation, as seller ("Seller"), in connection with the Purchase
Agreement dated March 13, 1997, as amended (the "Purchase Agreement"), between
Seller and Wabash National Corporation, a Delaware corporation ("Buyer"),
providing for the purchase by Buyer of the business of Seller conducted at its
Fort Madison, Iowa, and Huntsville, Tennessee, facilities, certain branches and
its dealer network and related assets. This opinion is furnished to you
pursuant to Section 3.2(f) of the Purchase Agreement. Unless otherwise
specifically indicated, terms that are defined in the Purchase Agreement are
used in this opinion as so defined.
In connection with the opinion, we have examined the Purchase
Agreement and such documents, records and matters of law as we have deemed
necessary to render this opinion.
For purposes of this opinion, we have assumed or are relying
upon the following:
72
Wabash National Corporation
April 16, 1997
Page 2
1. The genuineness of all signatures, the conformity to
original documents of all documents submitted to us
as copies in the forms executed, and the authenticity
of the originals of such latter documents.
2. As to parties other than Seller, the due
authorization, execution and delivery of all
documents required by the Purchase Agreement.
3. Each of the parties (other than Seller) to each
document required by the Purchase Agreement, at the
time of execution, had and has the authority and
legal rights under each such party's governing
documents and applicable law to enter into each such
document pertaining to such party and to perform all
of such party's obligations thereunder, and each such
document is the legal, valid, and binding obligation
of such party.
Based upon the foregoing qualifications, assumptions and
examinations, and subject to such additional qualifications and assumptions as
are hereinafter set forth, we are of the opinion that:
(1) Seller is a corporation validly existing under
the laws of the State of Delaware. The Purchase Agreement and
the other agreements contemplated by the Purchase Agreement
have been authorized by Seller by all requisite corporate
action, executed and delivered by Seller, and constitute valid
and binding obligations of Seller.
(2) An order of the United States Bankruptcy Court
for the District of Delaware (the "Bankruptcy Court")
approving the sale of Seller's assets as set forth in the
Purchase Agreement (the "Order") was
73
Wabash National Corporation
April 16, 1997
Page 3
entered on March 20, 1997. Our review of the Bankruptcy
Court's docket indicates that, as of the date of this opinion,
the Order (i) is not the subject of an appeal or a stay; (ii)
is not the subject of any leave granted for extension of time
to file an appeal; (iii) has not been withdrawn; and (iv) has
not been modified.
With respect to the opinion in paragraph (1) of this opinion,
no opinion is expressed as to whether a vote of the stockholders of Seller is
required for the Purchase Agreement to be authorized by all requisite corporate
action.
The opinion expressed in paragraph 2 of this opinion is based
solely on a review of the docket of the Bankruptcy Court without any
independent investigation or inquiry whatsoever.
We express no opinion herein as to the laws of any
jurisdiction other than the federal laws of the United States and the General
Corporation Law of the State of Delaware.
This opinion is furnished solely for the benefit of the
addressee hereof and solely with respect to the Purchase Agreement and the
transactions contemplated by the Purchase Agreement, upon the understanding
that we are not hereby assuming any professional responsibility to any other
person whomsoever.
Very truly yours,
74
EXHIBIT E
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
For good and valuable consideration had and received, FRUEHAUF
TRAILER CORPORATION, a Delaware corporation ("Seller"), hereby assigns to
FRUEHAUF TRAILER SERVICES, INC., a Delaware corporation ("FTS"), and FTS hereby
assumes from Seller, subject to the provisions of the Purchase Agreement dated
as of March 13, 1997, as amended, by and among WABASH NATIONAL CORPORATION and
Seller, all of the right, title and interest of Seller in and to the agreements
listed on Attachment A to this assignment and any and all amendments thereto.
IN WITNESS WHEREOF, the Seller and FTS have caused this
Assignment and Assumption of Contracts to be executed by their duly authorized
officers this 16th day of April, 1997.
FRUEHAUF TRAILER CORPORATION
By:
-------------------------
Name:
Title:
FRUEHAUF TRAILER SERVICES, INC.
By:
-------------------------
Name:
Title:
75
ATTACHMENT A: Assigned Contracts
Description of agreements on Schedule 1.1(f) to the Purchase Agreement is
incorporated herein by this reference.
76
EXHIBIT F
PATENT ASSIGNMENT
This PATENT ASSIGNMENT (the "Assignment") is made and entered
into by and among Fruehauf Trailer Corporation ("FTC"), a Delaware corporation,
Fruehauf Corporation ("FC"), a Michigan corporation, each with offices at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (collectively
"Assignors"), and Fruehauf Trailer Services, Inc., a Delaware corporation with
offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Assignee").
WHEREAS, by a certain Purchase Agreement dated as of March 13,
1997, as amended, between FTC and Wabash National Corporation ("Wabash") (the
"Purchase Agreement"), FTC has agreed to sell, convey, transfer, assign and
deliver to Assignee, as designee of Wabash, its successors and assigns among
other assets, all of its right, title and interest in the patents described in
the Attachment A to this Assignment (collectively, the "Patents"); and
WHEREAS, FC is the record of owner of certain of the Patents,
as indicated in Attachment A;
WHEREAS, each Assignor represents and warrants that it has
good and marketable title to the Patents it owns as indicated on Attachment A,
in each case free and clear of any and all liens, security interests, claims or
other encumbrances whatsoever;
WHEREAS, Assignee wishes to purchase and acquire all of
Assignors' right, title and interest to the Patents;
NOW THEREFORE, for good and valuable consideration, receipt
and sufficiency of which are hereby acknowledged, each Assignor does hereby
sell, convey, assign, transfer and deliver to Assignee, for its use and the use
of its successors, assigns and legal representatives, all of such Assignor's
right, title and interest in and to the Patents, together with any and all
divisions, continuations, continuations-in-part, reissues, reexaminations
and/or extensions thereof.
77
2
IN WITNESS WHEREOF, each of the parties hereto have executed
or caused this PATENT ASSIGNMENT to be executed on its behalf as of the 16th
day of April, 1997.
FRUEHAUF TRAILER CORPORATION
(ASSIGNOR)
By:
---------------------------
Name:
Title:
FRUEHAUF CORPORATION
(ASSIGNOR)
By:
---------------------------
Name:
Title:
FRUEHAUF TRAILER SERVICES, INC.
(ASSIGNEE)
By:
---------------------------
Name:
Title:
78
3
STATE OF _________ )
) SS:
COUNTY OF ________ )
On this ____ day of April, 1997 before me personally came
_____________________, to me known, who being by me duly sworn, did say that
he/she is the ______________________ of Fruehauf Trailer Corporation, the
corporation described in and which executed the foregoing Assignment, and that
he/she signed his/her name thereto.
-------------------------------
Notary Public
STATE OF _________ )
) SS:
COUNTY OF ________ )
On this ____ day of April, 1997 before me personally came
_____________________, to me known, who being by me duly sworn, did say that
he/she is the ______________________ of Fruehauf Corporation, the corporation
described in and which executed the foregoing Assignment, and that he/she
signed his/her name thereto.
-------------------------------
Notary Public
STATE OF _________ )
) SS:
COUNTY OF ________ )
On this ____ day of April, 1997 before me personally came
_____________________, to me known, who being by me duly sworn, did say that
he/she is the ______________________ of Fruehauf Trailer Services, Inc., the
corporation described in and
79
4
which executed the foregoing Assignment, and that he/she signed his/her name
thereto.
-------------------------------
Notary Public
80
ATTACHMENT A: Patents
Description of the patents on Schedule 1.1(e) to the Purchase Agreement is
incorporated herein by this reference.
81
EXHIBIT G
TRADEMARK ASSIGNMENT
This TRADEMARK ASSIGNMENT (the "Assignment") is made and entered into
by and between Fruehauf Trailer Corporation, a Delaware Corporation with
offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
("Assignor"), and Fruehauf Trailer Services, Inc., a Delaware corporation with
offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Assignee").
WHEREAS Assignor is the owner of the trademarks described on
Attachment A attached to this Assignment (the "Trademarks"); and
WHEREAS Assignee wishes to acquire all of Assignor's right, title and
interest to the Trademarks (and all goodwill associated therewith) pursuant to
the terms and conditions of the Purchase Agreement between Assignor and Wabash
National Corporation dated as of March 13, 1997, as amended (the "Purchase
Agreement"); and
WHEREAS Assignee is a successor to the business of Assignor, or
portion thereof, to which the Trademarks pertain, and Assignor's business is
ongoing and existing.
NOW THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, Assignor does hereby sell, convey, assign, transfer and
deliver to Assignee, for its use and the use of its successors, assigns and
legal representatives, all of Assignor's right, title and interest in and to
the Trademarks, together with the goodwill associated therewith.
IN WITNESS WHEREOF, each of the parties hereto have caused this
TRADEMARK ASSIGNMENT to be executed on its behalf as of the 16th day of April,
1997.
FRUEHAUF TRAILER CORPORATION
(ASSIGNOR)
By:
-----------------------------
Name:
Title:
82
FRUEHAUF TRAILER SERVICES, INC.
(ASSIGNEE)
By:
-----------------------------
Name:
Title:
-2-
83
STATE OF __________ )
) SS:
COUNTY OF __________ )
On this ____ day of April in the year of 1997 before me personally
came ____________________, to me known, who being by me duly sworn, did say
that he is the ____________________ of FRUEHAUF TRAILER CORPORATION, the
corporation described in and which executed the foregoing Assignment, and that
he signed his name thereto.
-------------------------------
Notary Public
STATE OF __________ )
) SS:
PROVINCE OF __________ )
On this ____ day of April in the year of 1997 before me personally
came ____________________, to me known, who being by me duly sworn, did say
that he is the ____________________ of FRUEHAUF TRAILER SERVICES, INC., the
corporation described in and which executed the foregoing Assignment, and that
he signed his name thereto.
-------------------------------
Notary Public
-3-
84
ATTACHMENT A
TRADEMARKS
Description of the Trademarks on Schedule 1.1(e) to the Purchase
Agreement is incorporated herein by this reference.
85
EXHIBIT H
ASSIGNMENT OF LEASE
THIS AGREEMENT AND ASSUMPTION OF LEASE (this "Assignment") is
made as of the ____ day of _____________, 1997, by and between FRUEHAUF TRAILER
CORPORATION, a Delaware corporation, having an address at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Fruehauf"), and
_____________________________________, a __________________________
corporation, having an address at __________________________________________,
_______________________________ ("Assignee");
WITNESSETH:
WHEREAS, Fruehauf is the tenant under that certain lease(s)
described on Attachment A attached hereto and made a part of this Assignment
(the "Leases"), covering certain real property and improvements thereon as more
particularly described in the Leases (the "Premises");
WHEREAS, pursuant to that certain Purchase Agreement (the
"Purchase Agreement") dated as of __________________, 1997, by and between
Fruehauf and Assignee, Fruehauf and Assignee have, among other matters, reached
agreement upon the terms and conditions pursuant to which Fruehauf shall
transfer and assign all of its leasehold interest and estate in and to the
Premises and all of its rights as tenant under the Leases to Assignee;
86
NOW, THEREFORE, for and in consideration of Ten Dollars
($10.00) and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Fruehauf and Assignee hereby agree as follows:
Article I
Assignment and Assumption of Lease
1.1 Assignment. Fruehauf hereby assigns, transfers, and
grants to Assignee, (a) all of Fruehauf's leasehold interest and estate in and
to the Premises arising under or by virtue of the Leases; and (b) all of
Fruehauf's rights, privileges and benefits as tenant under the Leases,
including without limitation all of Fruehauf's rights and options under the
Leases.
1.2 Acceptance and Assumption. Assignee accepts the
foregoing assignment, and assume and agrees that it shall perform all of the
tenant's duties and obligations as tenant under the Leases strictly as and when
required in accordance with the terms of this Agreement.
1.3 Indemnity. Assignee hereby agrees to indemnify,
defend and hold Fruehauf harmless from and against any and all losses,
liabilities, penalties, claims, demands, actions, suits, judgments, costs and
expenses (including, without limitation, attorneys' fee) that may be based
upon, or asserted or alleged to be based upon, any breach by Assignee of any
term, covenant, provisions or condition of the Leases.
87
Article II
Miscellaneous Provisions
2.1 Binding Effect. This Assignment shall be binding
upon, and shall inure to the benefit of, the parties to this Assignment and
their respective successors and assigns.
2.2 Counterpart Execution. This Assignment may be
executed in two or more counterparts, each of which shall be deemed an
original, but all of which shall comprise a single instrument. The signature
of any party to any counterpart shall be deemed to be a signature to, and may
be appended to, any other counterpart.
IN WITNESS WHEREOF, the parties to this Agreement have
executed this Assignment as of the date first above written.
In the presence of: FRUEHAUF TRAILER CORPORATION,
a Delaware corporation
By:
--------------------------
Its:
-------------------------
---------------------------------,
a corporation
-------------------
By:
----------------------------
Its:
---------------------------
88
STATE OF _______________________ )
) SS:
COUNTY OF ______________________ )
Before me, a Notary Public in and for the State of
____________, personally appeared the above named FRUEHAUF TRAILER CORPORATION,
a Delaware corporation, by _______________________________, the
____________________, who acknowledged that he did sign the foregoing document
on behalf of the Corporation and that the same was his free act and deed and
the free act and deed of the Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this
_____ day of ___________________________, 1997.
--------------------------------
Notary Public
STATE OF _______________________ )
) SS:
COUNTY OF ______________________ )
Before me, a Notary Public in and for the State of
____________, personally appeared the above named
_______________________________, a ____________________ corporation, by
_______________________, the _________________________, who acknowledged that
he did sign the foregoing document on behalf of the Corporation and that the
same was his free act and deed and the free act and deed of the Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this
_____ day of ___________________________, 1997.
-----------------------------------
Notary Public
89
ATTACHMENT A: Leases
[The leases described as Schedule 1.1(b) to the Purchase Agreement and
incorporated herein by this reference.]
90
EXHIBIT I
INSTRUMENT OF ASSUMPTION
This Instrument of Assumption of Liabilities (this
"Instrument"), dated the 16th day of April, 1997, is made and delivered between
FRUEHAUF TRAILER CORPORATION, a Delaware corporation ("Seller"), and WABASH
NATIONAL CORPORATION, a Delaware corporation ("Buyer") pursuant to Section
3.3(c) of the Purchase Agreement dated as of the 13th day of March, 1997, as
amended (the "Purchase Agreement"). Capitalized terms contained in this
Instrument which are not defined in this Instrument shall have the same
meanings as set forth in the Purchase Agreement.
KNOW ALL MEN BY THESE PRESENTS, that Fruehauf Trailer
Services, Inc. ("FTS"), a Delaware corporation and the designee of Buyer under
the Purchase Agreement, for the consideration referred to in the Purchase
Agreement, hereby assumes and agrees to pay, perform and discharge, and
reimburse Seller for any payments made on Buyer's behalf with respect to, all
liabilities and obligations of Seller which are Assumed Liabilities.
From and after the Closing, FTS shall indemnify Seller and its
Affiliates and hold them harmless from and against and in respect of any and
all damages, claims, losses, expenses, obligations and liabilities (including,
without limitation, reasonable attorneys' fees) claimed or assessed against any
of
91
2
them as to which any of them may be subject in connection with the Assumed
Liabilities.
92
3
IN WITNESS WHEREOF, FTS has caused this Instrument to be
executed by its duly authorized officer as of the day and year first above
written.
FRUEHAUF TRAILER SERVICES, INC.
------------------------------
By:
Title:
93
EXHIBIT J
[LETTERHEAD OF ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.]
April 16, 1997
Fruehauf Trailer Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This firm has acted as counsel to Wabash National Corporation,
a Delaware corporation (the "Company"), in connection with the Purchase
Agreement dated March 13, 1997 (the "Purchase Agreement"), by and among the
Company and Fruehauf Trailer Corporation, a Delaware corporation, as seller
("Seller"), as amended, providing for the purchase by the Company of the
business of the Seller conducted at certain of its manufacturing and
distribution facilities located in the United States, certain branches and its
dealer network and related assets, and the private placement of 1,000,000
shares (the "Common Shares") of Common Stock, par value $.01 per share ("Common
Stock"), of the Company and 352,000 shares (the "Preferred Shares") of Series B
6% Cumulative Convertible Exchangeable Preferred Stock, par value $.01 per
share ("Series B Preferred Stock"), of the Company as part of the purchase
price paid by the Company pursuant to the Purchase Agreement. This opinion
letter is furnished to you pursuant to the requirements set forth in Section
3.3(d) of the Purchase Agreement in connection with the Closing thereunder on
the date hereof. The capitalized terms used herein, which are defined in the
Purchase Agreement, shall have the meanings set forth in the Purchase
Agreement, unless otherwise defined herein.
For purposes of the opinions expressed in this letter (the
"Opinions"), we have examined copies of the following documents:
1. Executed copy of the Purchase Agreement.
2. Executed copy of the Registration Rights Agreement
dated as of April 16, 1997 by and between the Company
and the Seller (the "Registration Rights Agreement").
94
Fruehauf Trailer Corporation
April 16, 1997
Page 2
3. Executed copy of the Expense Reimbursement Agreement
dated March 13, 1997 by and between the Company and
the Seller (the "Expense Agreement").
4. The Certificate of Incorporation of the Company, as
filed by the Company with the Secretary of State of
the State of Delaware on September 13, 1991, as
certified by the Secretary of State of the State of
Delaware on April 14, 1997 and as certified by the
Secretary of the Company on the date hereof.
5. The by-laws of the Company, as certified by the
Secretary of the Company on the date hereof as being
complete, accurate and in effect.
6. A certificate of good standing of the Company issued
by the Secretary of State of the State of Delaware
dated April 14, 1997.
7. Certain resolutions of the Board of Directors of the
Company adopted on March 13, 1997, March 26, 1997 and
April 14, 1997, all as certified by the Secretary of
the Company on the date hereof as being complete,
accurate and in effect, relating to authorization of
the Purchase Agreement, the Registration Rights
Agreement and the Expense Agreement, the issuance of
the Common Shares and the Preferred Shares, and
arrangements in connection therewith.
8. Resolutions adopted by the Board of Directors of the
Company relating to prior stock issuances and the
stock record books of the Company, as certified by
the Secretary of the Company on the date hereof as
being complete, accurate and in effect.
9. The Certificate of Designation of the Company dated
April 15, 1997 relating to the Series B Preferred
Stock, filed by the Company with the Secretary of
State of the State of Delaware on the date hereof, as
certified by the Secretary of State of the State of
Delaware on the date hereof and as certified by the
Secretary of the Company on the date hereof as being
complete, accurate and in effect.
95
Fruehauf Trailer Corporation
April 16, 1997
Page 3
10. A copy of the specimen certificates for the Common
Shares and the Preferred Shares to be issued pursuant
to the Agreement.
11. A certificate of the Vice President and Chief
Financial Officer of the Company, dated the date
hereof, as to certain facts relating to the Company,
as to the incumbency and signatures of certain
officers of the Company and as to the offering and
sale of the Common Shares and the Preferred Shares by
the Company.
12. A letter from Seller to the Company, dated the date
hereof, containing certain investment representations
of Seller.
The Purchase Agreement, the Registration Rights Agreement, the
Expense Agreement and the Certificate of Designation of the Company are
referred to collectively as the "Company Documents".
For purposes of rendering the Opinions, we have not, except as
specifically identified above, made any independent review or investigation of
factual or other matters, including the organization, existence, good standing,
assets, business or affairs of the Company. In our examination of the Company
Documents and the aforesaid certificates, records, documents and agreements, we
have assumed the genuineness of all signatures, the legal capacity of all
natural persons, the authenticity of all original documents and the conformity
to authentic original documents of all documents submitted to us as copies
(including telecopies). We also have assumed the authenticity, accuracy and
completeness of the foregoing certifications (of public officials, governmental
agencies and departments, corporate officers and individuals) and statements of
fact, on which we are relying, and have made no independent investigations
thereof.
As used in this opinion letter, the phrase "to our knowledge"
means the actual knowledge (that is, the conscious awareness of facts or other
information) of lawyers in the firm who have given substantive legal attention
to representing the Company in connection with the Company Documents.
This opinion letter is based as to matters of law solely on
applicable provisions of the (i) Securities Act of 1933, as amended (the
"Act"), (ii) General Corporation Law of the State of Delaware, as amended (the
"Delaware Corporation Law"), and (iii) Maryland law, (but not including any
statutes, ordinances, administrative decisions, rules or regulations of any
political subdivision of the State of Maryland ("Maryland Law") and we express
no opinion as to any other
96
Fruehauf Trailer Corporation
April 16, 1997
Page 4
laws, statutes, ordinances, rules or regulations (such as state securities or
"blue sky" laws).
Based upon, subject to and limited by the foregoing, we are of
the opinion that:
(a) The Company was incorporated, and is validly existing
and in good standing as of the date of the certificate specified in Paragraph 6
above, under the laws of the State of Delaware. The Company has the corporate
power and corporate authority under its Certificate of Incorporation and the
Delaware Corporation Law, as amended, to enter into the Company Documents and
to perform its obligations thereunder.
(b) The authorized capital stock of the Company on the
date hereof is 75,000,000 shares of Common Stock and 25,000,000 shares of
Preferred Stock, par value $.01 per share ("Preferred Stock"), of which 300,000
shares of Preferred Stock are classified as Series A Junior Participating
Preferred Stock, par value $.01 per share ("Series A Preferred Stock"), and
352,000 shares of Preferred Stock are classified as Series B Preferred Stock.
The issued and outstanding capital stock of the Company, as of April 14, 1997,
was 18,910,923 shares of Common Stock (the "Outstanding Shares"). All
Outstanding Shares are duly authorized and, assuming the receipt of
consideration therefor as provided in resolutions of the Company's Board of
Directors authorizing issuance thereof, were validly issued, fully paid and
non-assessable under the Delaware General Corporation Law. To our knowledge,
as of April 15, 1997, the Company had not issued any outstanding securities
convertible into or exchangeable for, or outstanding options, warrants or other
rights to purchase or to subscribe for, any shares of stock or other securities
of the Company, except for (i) certain rights to purchase shares of Series A
Preferred Stock issued by the Company pursuant to a Rights Agreement, dated as
of December 4, 1995, between the Company and ▇▇▇▇▇▇ Trust and Savings Bank (the
"Rights"), (ii) options issued by the Company pursuant to the Wabash National
Corporation 1992 Stock Option Plan, as amended (the "Options"), and (iii)
certain rights provided pursuant to the Company's Employee Stock Purchase Plan
(the "Employee Plan Rights"). Except for the Rights, the Options, the Employee
Plan Rights and certain rights provided pursuant to the Company's Employee
Stock Award Plan, no holder of Outstanding Shares has (i) any statutory
preemptive right under the Delaware Corporation Law or, (ii) to our knowledge
and except as has been waived, any contractual right to subscribe for any of
the Common Shares or the Preferred Shares or any Common Stock or other
securities of the Company or the right to require registration of any shares of
Common Stock, Preferred Stock or other
97
Fruehauf Trailer Corporation
April 16, 1997
Page 5
securities of the Company (except as set forth in the Registration Rights
Agreement).
(c) The Company Documents have been duly authorized,
executed and delivered on behalf of the Company.
(d) When issued in accordance with the provisions of the
Agreement, the Common Shares and the Preferred Shares will be validly issued,
fully paid and non-assessable under the Delaware General Corporation Law. The
forms of certificates evidencing the Common Shares and the Preferred Shares
comply with the requirements of Section 158 of the Delaware General Corporation
Law.
(e) The execution, delivery and performance as of the
date hereof by the Company of the Company Documents do not violate the
Certificate of Incorporation or Bylaws of the Company as in effect as of the
date hereof.
(f) The issuance and delivery of the Common Shares and
the Preferred Shares to Seller on the date hereof as contemplated under the
Company Documents do not require registration under Section 5 of the Act.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion
letter has been prepared solely for your use in connection with the Closing
under the Purchase Agreement on the date hereof, and should not be quoted in
whole or in part or otherwise be referred to, nor be filed with or furnished to
any governmental agency or other person or entity, without the prior written
consent of this firm.
Very truly yours,
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
98
EXHIBIT K
COPYRIGHT ASSIGNMENT
THIS COPYRIGHT ASSIGNMENT ("Assignment") is made and entered
into by and between Fruehauf Trailer Corporation, a Delaware corporation with
offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
("Assignor"), and Fruehauf Trailer Services, Inc., a Delaware corporation with
offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Assignee").
WHEREAS, Assignor is the owner of the registered copyrights
described in Attachment A to this Assignment (the "Copyrights"); and
WHEREAS, Assignee wishes to acquire all of Assignor's
copyright ownership in the Copyrights pursuant to the terms and conditions of
the Purchase Agreement between Assignor and Wabash National Corporation dated
as of March 13, 1997, as amended (the "Purchase Agreement").
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Assignor does hereby
sell, assign, transfer and set over to Assignee, all of its right, title and
interest in and to the Copyrights.
Assignor authorizes and requests the United States Registrar
of Copyrights to record Assignee as the assignee and owner thereof, and that
such assignment is effective as of the date of this Assignment.
99
IN TESTIMONY WHEREOF, the Assignor and Assignee have caused
this Assignment to be signed and executed by the undersigned officers thereunto
duly authorized this 16th day of April, 1997.
FRUEHAUF TRAILER CORPORATION
(Assignor)
By:
--------------------------------
FRUEHAUF TRAILER SERVICES, INC.
(Assignee)
By:
--------------------------------
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100
STATE OF )
) SS.
COUNTY OF )
On this _______ day of April, 1997, there appeared before me
___________________, personally known to me, who being by me duly sworn, did
say that he is the ____________________ of FRUEHAUF TRAILER CORPORATION, the
corporation described in the foregoing Assignment, and that he signed the
foregoing Assignment as his voluntary act and deed with full authority.
----------------------------------
Notary Public
STATE OF )
) SS.
COUNTY OF )
On this _______ day of April, 1997, there appeared before me
___________________, personally known to me, who being by me duly sworn, did
say that he is the ____________________ of FRUEHAUF TRAILER SERVICES, INC., the
corporation described in the foregoing Assignment, and that he signed the
foregoing Assignment as his voluntary act and deed with full authority.
----------------------------------
Notary Public
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101
ATTACHMENT A
The Copyrights described in Schedule 1.1(e) to the Purchase Agreement between
Assignor and Assignee are incorporated herein by this reference.
102
EXHIBIT L
===============================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of April __, 1997
by and between
FRUEHAUF TRAILER CORPORATION
AND
WABASH NATIONAL CORPORATION
==============================================================================
103
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 3. SHELF REGISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Shelf Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Provisions by Holders of Certain Information in
Connection with the Shelf Registration Statement. . . . . . . . . . . . . . . . . . 4
SECTION 4. REGISTRATION DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 5. REGISTRATION PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(a) Shelf Registration Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) General Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(c) Restrictions on Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 6. REGISTRATION EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 7. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 8. RULES 144 AND 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9. UNDERWRITTEN REGISTRATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 10. SELECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 11. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 12. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(a) No Waivers: Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(b) No Inconsistent Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(c) Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(d) Notices: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(e) Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(f) Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(g) Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(h) Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(i) Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(j) Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ▇▇
-▇-
▇▇▇
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of April __, 1997 between Fruehauf Trailer Corporation, a
Delaware corporation (the "Holder") and Wabash National Corporation, a Delaware
Corporation (the "Company").
This Agreement is made pursuant to the Purchase Agreement, dated March
13, 1997 (as amended, supplemented, restated or otherwise modified from time to
time the "Purchase Agreement"), by and between the Holder and the Company. In
order to induce the Holder to enter into the Purchase Agreement and consummate
the transactions contemplated thereby, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Holder under the
Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
Business Day: Any day other than (a) a Saturday or Sunday,
(b) any day on which banking institutions located in the City of New York, New
York are required or authorized by law or by local proclamation to close, (c) a
day on which the New York Stock Exchange is closed or (d) any federal holiday.
Certificate of Designations: The Certificate of Designations
of Rights and Preferences governing the Preferred Stock.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Common Stock: The Company's common stock, par value $.01 per
share.
Convertible Subordinated Debentures: The Company's 6%
Convertible Subordinated Debentures due April __, 2007 issuable in exchange for
shares of Preferred Stock.
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105
Effectiveness Target Date: The 90th day following the Closing
Date.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Holder: As defined in Section 2 hereof.
Holder's Counsel: As defined in Section 5(b)(iii) hereof.
Indemnified Holder: As defined in Section 7(a) hereof.
Indenture: The Indenture between the Company and the initial
Trustee thereunder, pursuant to which the Convertible Subordinated Debentures
are to be issued, as such Indenture may be amended, supplemented, restated or
otherwise modified from time to time.
NASD: National Association of Securities Dealers, Inc.
NASDAQ: As defined in Section 5(b)(xvi) hereof.
NYSE: New York Stock Exchange.
Person: An individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
Preferred Stock: The Company's 6% Cumulative Convertible
Exchangeable Preferred Stock, par value $.01 per share.
Prospectus: The prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
Registration Statement: Any registration statement of the
Company relating to the registration for resale of Transfer Restricted
Securities in each case (i) which is filed pursuant to the provisions of this
Agreement and (ii) including the Prospectus included therein, all amendments
and supplements thereto (including post-effective amendments) and all exhibits
and material incorporated by reference therein.
Securities: (i) The Common Stock acquired under the Purchase
Agreement, (ii) the Preferred Stock acquired under the Purchase Agreement,
(iii) the Convertible Subordinated Debentures into which the Preferred Stock is
exchangeable, (iv) the Common Stock into which the Preferred Stock is
convertible, (v) the Common Stock into which the Convertible Subordinated
Debentures is
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convertible, and (vi) any Security distributed to a Holder in respect of any of
the foregoing.
Shelf Registration Date: The date upon which the Shelf
Registration Statement is declared effective by the Commission.
Shelf Registration Statement: As defined in Section 3(a)
hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Security, until the
earliest to occur of, (a) the date on which the transfer of such Security has
been effectively registered under the Act and transferred in accordance with
the Shelf Registration Statement, or (b) the date on which such Security is
transferable pursuant to Rule 144 under the Act.
Trustee: The Trustee under the Indenture, and its successors
and assigns.
Underwriters: As defined in Section 10 hereof.
Value: (i) With respect to the Preferred Stock, the Stated
Value thereof; (ii) with respect to the Convertible Subordinated Debentures,
the principal amount thereof; or (iii) with respect to the Common Stock, the
market value thereof.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted
Securities (each, a "Holder") whenever such Person owns Transfer Restricted
Securities. "Holder" shall include a pledgee who has taken a security interest
in Transfer Restricted Securities as collateral (whether before or after
foreclosure) and "selling" (and any derivations thereof) shall include the
pledgee's exercise of its rights to effect a sale of such Securities. The
initial Holder shall be Fruehauf Trailer Corporation.
SECTION 3. SHELF REGISTRATION
(a) SHELF REGISTRATION
The Company shall (x) cause to be filed as soon as practicable
but in no event later than 30 days after the Closing Date a registration
statement pursuant to Rule 415 under the Act, (the "Shelf Registration
Statement"), relating to the resale of all Transfer Restricted Securities the
Holders of which shall have provided
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the information required pursuant to Section 3(b) hereof, and shall (y) use its
best efforts to cause such Shelf Registration Statement to become effective as
soon as practicable after the date of filing. The Company shall use its best
efforts to keep the Shelf Registration Statement discussed in this Section 3(a)
continuously effective, supplemented and amended as required by (and subject to
the limitations of) the provisions of Sections 5(a) and (b) hereof to the
extent necessary to ensure that it is available for sales of any Transfer
Restricted Securities by the Holders thereof entitled to the benefit of this
Section 3(a), and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years following the
date on which such Shelf Registration Statement first becomes effective under
the Act or such shorter period that will terminate when either all Securities
are no longer Transfer Restricted Securities or all Securities have been sold
pursuant thereto. Notwithstanding the foregoing, the Company may terminate the
original Shelf Registration Statement so long as it has had declared effective
an alternate shelf registration statement on Form S-3 (or any other available
short-form registration statement) providing for the resale of the
then-Transfer Restricted Securities and that provides the Holders of such
Transfer Restricted Securities the same benefits as the original Shelf
Registration Statement. Any such alternate shelf registration statement shall
thereupon be substituted as, and shall for all purposes be, the Shelf
Registration Statement.
(b) PROVISIONS BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION
WITH THE SHELF REGISTRATION STATEMENT.
No Holder of Transfer Restricted Securities may include any of
its Transfer Restricted Securities in any Shelf Registration Statement pursuant
to this Agreement unless and until such Holder furnishes to the Company in
writing, within 20 Business Days after receipt of a written request by the
Company therefor (except that no such notice or 20 day period shall be
applicable to the initial Shelf Registration Statement), (i) the information
specified in Item 507 of Regulation S-K under the Act, (ii) if such Holder's
plan of distribution includes any manner of offer or sale other than ordinary
course sales in the public markets through brokers at ordinary rates of
commission, such information as is required by Item 508 of Regulation S-K, or
(iii) otherwise required by the Act or the Commission, for use in connection
with any Shelf Registration Statement or Prospectus or preliminary Prospectus
included therein. Each Holder as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Company in writing all
information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading.
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108
SECTION 4. REGISTRATION DEFAULT
If the Shelf Registration Statement has not become effective
on or prior to the Effectiveness Target Date due to any reason other than the
negligence or misconduct of any Holder or the failure by any Holder to perform
its obligations hereunder, the dividend rate on the Preferred Stock shall
increase to 10% of the Stated Par Value Per Share per annum as provided in the
Certificate of Designations and the interest rate on the Convertible
Subordinated Debentures shall increase as provided in the Indenture, until the
Shelf Registration Date.
SECTION 5. REGISTRATION PROCEDURES
(a) SHELF REGISTRATION STATEMENT.
In connection with the Shelf Registration Statement the
Company shall comply with all the provisions of Section 5(b) below and shall
use its best efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof (as indicated in the information
furnished to the Company pursuant to Section 3(b) hereof), consistent with this
Agreement, and pursuant thereto the Company will prepare and file with the
Commission a Shelf Registration Statement relating to the registration on Form
S-3 (or other form if the Company is not entitled to use a Form S-3
registration filing) under the Act, within the specified time periods and
otherwise in accordance with the provisions hereof.
(b) GENERAL PROVISIONS.
In connection with any Shelf Registration Statement and any
related Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities, the Company shall:
(i) use its best efforts to keep such
Registration Statement continuously effective, provided that
upon the occurrence of any event or set of circumstances that
would cause any such Registration Statement or the Prospectus
contained therein to contain a material misstatement or
omission the Company may suspend the use of the Shelf
Registration Statement until such time as the Company shall
have filed an appropriate amendment to such Registration
Statement (or documents incorporated therein), correcting any
such misstatement or omission, and in such event the period of
time during which the Shelf Registration Statement, as so
amended or supplemented, shall remain effective, shall be
interrupted for a period of time equal to the period of
suspension of the Shelf Registration Statement, all as
provided in Section 5(c) below. The Company shall use its
best efforts,
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subject to its good faith determination of the best interests
of the Company, to amend or supplement the Shelf Registration
Statement as required to correct such misstatement or
omission.
(ii) subject to the foregoing, prepare and file
with the Commission such amendments and post-effective
amendments to the Registration Statement as may be necessary
to keep the Registration Statement effective for the
applicable period set forth in Section 3 hereof; cause the
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with Rules 424 and
430A, as applicable, under the Act in a timely manner, and
comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement
to the related Prospectus;
(iii) advise the underwriter(s), if any, and
selling Holders or their counsel ("Holders' Counsel") promptly
and, if requested by such Persons, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement
or post-effective amendment has been filed, and, with respect
to any Registration statement or any post-effective amendment
thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or
of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities or for
offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event promptly
upon becoming aware of or receiving notice with respect
thereto that causes the Company to suspend the use of the
Shelf Registration Statement as provided in Section 5(b)(i)
above. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration
Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or blue sky laws,
the Company shall use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible
time;
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110
(iv) furnish to each Holder named in any
Registration Statement or Prospectus and Holders' Counsel, and
each of the underwriter(s) in connection with such sale, if
any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Registration
Statement or Prospectus (including all documents incorporated
by reference after the initial filing of such Registration
Statement), which documents will be subject to the review and
comment of such Holders and underwriter(s) in connection with
such sale, if any, for a period of at least three Business
Days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus (including all such
documents incorporated by reference) if the Holders of the
Transfer Restricted Securities covered by such Registration
Statement, or the underwriter(s) in connection with such sale,
if any, object, in a written notice delivered to the Company
within three Business Days after the receipt of such
Registration Statement or Prospectus, to the disclosures
contained in such Registration Statement or Prospectus
concerning the Holders or the expected plan of distribution.
The objection of the selling Holders, or underwriter, if any,
shall be deemed to be reasonable if such portion of the
Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains a material
misstatement or omission or fails to comply with the
applicable requirements of the Act;
(v) if requested by such person, promptly
following the filing of any document that is to be
incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to the selling
Holders' Counsel, and to the underwriter(s) in connection with
such sale, if any, and make the Company's representatives
reasonably available for discussion of such document and other
customary due diligence matters.
(vi) if requested by the selling Holders or the
underwriter(s), in connection with such sale, if any,
promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if
necessary, such information as the selling Holders and
underwriter(s), if any, may reasonably request to have
included therein relating to the information concerning the
selling Holder and the "Plan of Distribution" of the Transfer
Restricted Securities; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be
included in such Prospectus supplement or post-effective
amendment;
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111
(vii) furnish to each selling Holder, and each of
the underwriter(s) in connection with such sale, if any,
without charge, at lease one conformed copy of the
Registration statement as first filed with the Commission, and
of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(viii) deliver to each selling Holder, and each of
the underwriter(s), if any, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may
request;
(ix) if the proposed Plan of Distribution is an
underwriting, enter into an underwriting agreement as is
customary in an underwritten offering with such indemnitors as
are designated by the selling Holders (which designation shall
be approved by the Company with such approval not to be
unreasonably withheld in the case of any indemnitor that is a
nationally recognized "major" or "______" firm), and in such
connection, if an underwriting agreement is entered into and
if the registration is an underwritten registration, the
Company shall:
(A) furnish to each underwriter, if any, upon
the completion of an underwritten offering thereunder:
(1) opinions, dated the date of its
effectiveness with respect to the Shelf Registration
Statement, as the case may be, and the date of the
completion thereof with respect to an underwritten
offering, of counsel for the Company, covering such
matters as the Indemnitees may reasonably request and
as is customary and consistent with an underwritten
offering, and a letter of counsel containing a
statement to the effect that such counsel has
participated in conferences with officers and other
representatives of the Company and representatives of
the independent public accountants for the Company,
at which conferences the contents of the Shelf
Registration Statement and related matters were
discussed; and although such counsel has not
independently verified and is not passing upon and
assumes no responsibility for the accuracy,
completeness or fairness of such statements, no facts
came to such counsel's attention that caused such
counsel to believe that the Registration Statement,
at the time the Registration Statement or any
post-effective amendment thereto became effective
contained an untrue statement of a material fact or
omitted to
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112
state a material fact required to be stated therein
or necessary to make the statements therein not
misleading, or that the Prospectus contained in the
Registration Statement, as of its date, contained an
untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading. Such
counsel may state further that such counsel is not
expressing any views with regard to, assumes no
responsibility for, and has not independently
verified, the accuracy, completeness or fairness of
the financial statements, including the notes thereto
and supporting schedules, and other financial,
statistical, operating and accounting data, included
in or omitted from, the Registration Statement or the
related Prospectus; and
(2) to the extent permitted by standards
governing the accounting profession, customary
comfort or "agreed procedures" letters, dated as of
the date of its effectiveness with respect to the
Shelf Registration Statement and the date of the
completion thereof with respect to an underwritten
offering, from the Company's independent accountants,
in the customary form and covering matters of the
type customarily covered in comfort letters to
underwriters in connection with secondary
underwritten offerings;
(B) set forth in full or incorporated by
reference in the underwriting agreement, if any, in connection
with any sale or resale pursuant to any Shelf Registration
Statement, the indemnification provisions and procedures of
Section 7 hereof with respect to all Persons to be indemnified
pursuant to such Sections; and
(C) deliver such other documents and certificates
as may be reasonably requested by the selling Holders or the
underwriter(s), if any, to evidence compliance with clause (A)
above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company pursuant to this clause (x).
The above shall be done at each closing under such
underwriting or similar agreement, as and to the extent required thereunder;
(xi) prior to any resale of Transfer Restricted
Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities under the securities or blue
sky
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laws of such jurisdictions as the selling Holders or
underwriter(s), if any, may reasonably request and do any and
all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Registration Statement; provided,
however, that the Company shall not be required to (A)
register or qualify as a foreign corporation where it is not
now so qualified, or (B) take any action that would subject it
to the service of process in suits or to taxation, other than
as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xii) in connection with any sale of Transfer
Restricted Securities that will result in such Securities no
longer being Transfer Restricted Securities, cooperate with
the selling Holders and the underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends under applicable securities
laws;
(xiii) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of a
Registration Statement covering such Transfer Restricted
Securities;
(xiv) use its best efforts to cause all Securities
covered by a Registration Statement to be (A) listed on the
NYSE and each other securities exchange, if any, on which
similar securities issued by the Company are then listed, or
(B) authorized to be quoted on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or
the National Market System of NASDAQ if similar securities of
the Company are so authorized; provided, however, that the
term "best efforts" shall not include any obligation of the
Company to satisfy minimum Holder, Value or other matters
related to the Securities that are unrelated to the procedural
listing requirements of NYSE and NASDAQ.
(xv) cooperate and assist in filings required to
be made with the NASD or the NYSE and in the performance of
any due diligence investigation by any underwriter (including
any "qualified independent underwriter") that is required to
be retained in accordance with the rules and regulations of
the NASD or the NYSE, and use its best efforts to cause the
Registration Statement to become effective and approved by
such governmental agencies or authorities as may be necessary
to enable the Holders selling Transfer Restricted Securities
to consummate the disposition of such Transfer Restricted
Securities;
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(xvi) use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable but
in any event not later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year), a consolidated
earnings statement satisfying the provisions of Section 11(a)
of the Act and meeting the requirements of Rule 158 covering a
twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in paragraph
(c) of Rule 158 under the Act);
(xvii) cause the Indenture to be qualified under the
TIA not later than the effective date of the first applicable
Registration Statement required by this Agreement and, in
connection therewith, cooperate with the Trustee and the
Holders of Convertible Subordinated Debentures to effect such
changes to the Indenture as may be required for the Indenture
to be so qualified in accordance with the terms of the TIA;
and execute and use its best efforts to cause the Trustee to
execute all documents that may be required to effect such
changes and all other forms and documents required to be filed
with the Commission to enable the Indenture to be so qualified
in a timely manner; and
(xviii) provide promptly to each Holder upon request
each document filed with the Commission pursuant to the
requirements of Section 13 or Section 15(d) of the Exchange
Act.
(c) RESTRICTIONS ON HOLDERS.
Each Holder by acquisition of a Transfer Restricted Security
agrees that, upon receipt of any notice from the Company of the existence of
any fact of the kind described in Section 5(b)(iii)(D) hereof, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 5(b)(ii)
hereof, or until it is advised in writing by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus;
provided, however, that (i) such period shall not exceed 45 Business Days,
(ii) at least 3 Business Days occur between such periods, and (iii) that the
total number of Business Days covered by all such periods hereunder shall not
exceed 120. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) or destroy all copies, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Transfer Restricted Securities that was current at the time of receipt of such
notice. In the event the Company shall give any such notice, the time period
regarding the
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effectiveness of such Registration Statement set forth in Section 3 hereof, as
applicable, shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section
5(b)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 5(b)(ii) hereof.
SECTION 6. REGISTRATION EXPENSES
All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including
filings made with the NASD or the NYSE and reasonable counsel fees in
connection therewith; (ii) all fees and expenses of compliance with federal
securities and state blue sky or securities laws; (iii) all expenses of
printing (including printing certificates for the Securities and printing of
Prospectuses); (iv) all reasonable fees and disbursements of counsel for the
Company and one counsel for the Holders of Transfer Restricted Securities (to
be selected by Holders of a majority in aggregate Value of the Transfer
Restricted Securities and which fees and expenses shall not exceed $15,000);
and (v) all fees and disbursements of independent certified public accountants
of the Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company. The Holders of Transfer Restricted Securities shall
bear the expense of any broker's commission or underwriter's discount or
commission, and all other expenses which they are expressly required to pay
under applicable law, and of any counsel in addition to the single counsel
selected by the Holders of a majority in aggregate Value of the Transfer
Restricted Securities.
SECTION 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless
each Holder, each director, officer, employee, and agent of each Holder and
each person, if any, who controls such Holder within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act (any person referred to above
being sometimes hereinafter referred to as an "Indemnified Holder"), from and
against any and all losses, liabilities, claims, damages and expenses
whatsoever (and actions in respect thereof) (including but not limited to
attorneys' fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any litigation,
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commenced or threatened, or claim whatsoever, and any and all amounts paid in
settlement of any claim asserted or in any action, proceeding or litigation),
joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon a
breach of any representation, warranty or covenant made by the Company in this
Agreement or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, preliminary Prospectus
or Prospectus, or in any supplement thereto or amendment thereof, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Indemnified Holder for any
legal or other expenses reasonably incurred by the Indemnified Holder in
connection with investigating or defending against such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent, but only to the
extent, that any such loss, liability, claim, damage or expense arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Indemnified Holder expressly for use therein; and provided, further, that the
Company shall not be liable to any Indemnified Holder under the indemnity
agreement in this Section 7(a) with respect to any Registration Statement,
preliminary Prospectus or Prospectus, or any supplement thereto or amendment
thereof, to the extent that any such loss, claim, judgment, liability or
expense results solely from an untrue statement of material fact contained in,
or the omission of any material fact from, such Registration Statement,
preliminary Prospectus or Prospectus, or any supplement thereto or amendment
thereof, which untrue statement or omission was corrected in the Prospectus or
any supplement thereto or amendment thereof, if the Company shall sustain the
burden of proving that the Indemnified Holder sold Transfer Restricted
Securities to the Person alleging such loss, claim, damage or liability without
sending or giving, at or prior to the written confirmation of such sale, a copy
of the Prospectus, as amended, to correct any misstatement or omission, if the
Company had previously furnished copies thereof to the Indemnified Holder.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have, including under this Agreement. Unless otherwise directed
in writing by a Holder, the Company acknowledges that the information provided
pursuant to Section 3(b) of this Agreement which is included in any
Registration Statement, preliminary Prospectus or Prospectus, or any supplement
thereto or amendment thereof, constitutes the only information relating to a
Holder that will be furnished in writing to the Company by the Holder expressly
for inclusion in a Registration Statement, preliminary Prospectus or
Prospectus, or any supplement thereto or amendment thereof.
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(b) Each Holder, severally and not jointly, by
acquisition of a Transfer Restricted Security agrees to indemnify and hold
harmless the Company and any underwriter and each person, if any, who controls
the Company and any underwriter within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, and each other Holder against any losses,
liabilities, claims, damages and expenses whatsoever (and actions in respect
thereof) (including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim asserted or in any action, proceeding
or litigation), joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, liabilities,
claims, damages or expenses (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, any related preliminary Prospectus or
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made therein in reliance upon and in conformity with written information
furnished to the Company by such Holder (or its related Indemnified Holder)
expressly for use therein; provided, however, that in no event shall the
liability of any selling Holder hereunder be greater in amount than the dollar
amount of the proceeds received by such Holder upon the sale of the Securities.
This indemnity will be in addition to any liability which such Holder may
otherwise have, including under this Agreement.
(c) Promptly after receipt by an indemnified party under
paragraph (a) or (b) of this Section 7 of notice of the commencement of any
action, the indemnified party shall, if a claim in respect thereof is made
against the indemnifying party under such paragraph, notify each party against
whom indemnification is to be sought in writing of the commencement thereof
(but the failure so to notify an indemnifying party shall not relieve it from
any liability which it may have under this Section 7, except to the extent that
it has been prejudiced in any material respect by such failure, or from any
liability which it may otherwise have). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from the
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
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such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such action, (ii) the indemnifying parties
shall not have employed counsel to have charge of the defense of such action
within a reasonable time after notice of commencement of the action, or (iii)
the indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them which are different from or additional to
those available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties). The Company shall not,
in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for Indemnified
Holders. Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim or
action effected without its written consent; provided, however, that such
consent was not unreasonably withheld.
(d) In order to provide for contribution in circumstances
in which the indemnification provided for in this Section 7 is for any reason
held to be unavailable from the Company or is insufficient to hold harmless a
party indemnified thereunder, the Company and each Holder shall contribute to
the aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, claims, damages, liabilities and expenses
suffered by the Company, any contribution received by the Company from Persons,
other than any Indemnified Holders, who may also be liable for contribution,
including persons who control the Company within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act) to which the Company and any
Holder may be subject, in such proportion as is appropriate to reflect the
relative fault of the Company and each Holder in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of the Company and of each Holder shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or each Holder or its related
Indemnified Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Holder agree that it would not be just and equitable if
contributions pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (1) no Holder or its related Indemnified Holder shall be
required to contribute, in
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the aggregate, any amount in excess of the amount by which the total amount
received by such Holder with respect to the sale of its Securities exceeds the
sum of (A) the proceeds received by such Holder from the sale of such
Securities plus (B) the amount of any damages which such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission and (2) no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who
controls any Holder within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Holder, and each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act shall have the same
rights to contribution as the Company, subject in each case to clauses (1) and
(2) of this Section 7(d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this Section 7, notify such party or
parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 7 or otherwise. No party shall be liable for contribution with respect
to any action or claim settled without its written consent; provided, however,
that such written consent was not unreasonably withheld.
SECTION 8. RULES 144 AND 144A
The Company shall use its best efforts to file the reports
required to be filed by it under the Securities Act and the Exchange Act in a
timely manner and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder, make publicly available other
information so long as necessary to permit sales of Securities pursuant to
Rules 144 and 144A. The Company shall take such further action as any Holder
may reasonably request, all to the extent required from time to time to enable
such Holder to sell Transfer Restricted Securities without registration under
the Securities Act within the limitation of the exemptions provided by (a)
Rules 144 and 144A under the Act, as such Rules may be amended from time to
time, or (b) any similar rule or regulation hereafter adopted by the
Commission. The Company will provide a copy of this Agreement to prospective
purchasers of Transfer Restricted Securities identified to the Company by a
Holder upon request. Upon the request of any Holder, the Company shall deliver
to such Holder a written statement as to whether it has complied with the
foregoing requirements.
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SECTION 9. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell Holder's Transfer Restricted
Securities on the basis provided in customary underwriting arrangements entered
into in connection therewith and (b) completes and executes all reasonable
questionnaires, powers of attorney, custody agreements, lock-up letters of a
reasonable duration acceptable to the underwriter and other documents required
under the terms of such underwriting arrangements. No underwritten offering
shall include less than 50% of the aggregate Value of the Securities.
SECTION 10. SELECTION
In any underwritten offering, the investment banker or
investment bankers and manager or managers to underwrite or administer the
offering will be selected by the Holders of a majority in aggregate Value of
the Transfer Restricted Securities to be sold in such underwritten offering,
subject to the consent of the Company as provided in Section 5(b)(ix) above.
Such investment bankers and managers are referred to herein as "underwriters"
and such an offering is referred to herein as "underwritten."
SECTION 11. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to, and agrees with, the
Holders from time to time of Transfer Restricted Securities that:
The compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein contemplated
will not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject nor create or give rise to a right in any other party
to or beneficiary of any such indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to take security in assets of the
Company or any of its subsidiaries, nor will such action result in any
violation of the provisions of the certificate of incorporation, as amended, or
the by-laws of the Company or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the consummation by
the Company of the transactions contemplated by this Agreement, except the
registration under the Act of the offering and distribution of Transfer
Restricted
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Securities, qualification of the Indenture under the TIA and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the offering and
distribution of Transfer Restricted Securities.
SECTION 12. MISCELLANEOUS
(a) NO WAIVERS: REMEDIES
(i) Except as expressly provided herein, no failure or
delay by any party in exercising any right, power or privilege under this
Agreement shall operate as a waiver of the right, power or privilege. A single
or partial exercise of any right, power or privilege shall not preclude any
other or further exercise of the right, power or privilege or the exercise of
any other right, power or privilege. The rights and remedies provided in this
Agreement shall be cumulative and not exclusive of any rights or remedies
provided by law.
(ii) Each Holder, in addition to being entitled to
exercise all rights provided herein, will be entitled to specific performance
of its rights under this Agreement. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Agreement and hereby agrees to waive the
defense of any action for specific performance that a remedy at law would be
adequate.
(b) NO INCONSISTENT AGREEMENTS.
The Company will not on or after the date of this Agreement
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof. Except pursuant to agreements listed on Schedule A
hereto (which equity "piggy back" rights will be satisfied by an omnibus
Registration Statement), the Company has not previously entered into and will
not enter into any agreement granting to any Person any "piggy back" rights
with respect to a Registration Statement. The rights granted to the Holders
hereunder do not in any material respect conflict with and are not to any
material respect inconsistent with the rights granted to the holders of the
Company's securities under any agreement in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS
The provisions of this Agreement may not be amended, modified
or supplemented, and waivers or consents to or departs from the provisions
hereof may not be given, unless the Company has obtained the written consent of
Holders of a majority of the outstanding Value of Transfer Restricted
Securities.
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(d) NOTICES:
All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail
(certified, return receipt requested), telex, telecopier or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Company; and
(ii) if to the Company:
Wabash National Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President and Chief Financial Officer
All such notices and communications shall be deemed to have been duly given:
at the time delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(e) SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties, including without
limitation and without the need for an express assignment, subsequent Holders
(including pledgees).
(f) COUNTERPARTS.
This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
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(g) HEADINGS.
The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. All rights and obligations of the Company
and any Holder shall be in addition to and not in limitation of those provided
by applicable law.
(i) SEVERABILITY.
In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(j) SURVIVAL.
All representations, warranties, agreements and covenants of the
Company contained herein or in certificates delivered pursuant hereto, and the
agreement of the Holders contained in Section 7, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any Holder or any controlling persons, or the Company or any of its officers,
directors or any controlling persons, and shall survive delivery of the
Securities.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
Company:
WABASH NATIONAL CORPORATION
By:
---------------------------------
Name:
Title:
Holder:
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FRUEHAUF TRAILER CORPORATION
By:
---------------------------------
Name:
Title:
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SCHEDULE A
None
- 22 -
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EXHIBIT M
Records of Seller to be furnished to Buyer under the
provisions of Section 9.1(b) of this Agreement:
1. Copies of consolidated and separate company U.S.
Federal income tax returns and related supporting work papers filed by the
Seller during 1995 and 1996.
2. Copies of all consolidated, unitary, or separate
company state income or franchise tax returns and related supporting work
papers, including but not lmiited to information compiled by the Seller for the
multistate apportionment of the Seller's business, filed by the Seller during
1995, 1996 and 1997.
3. Copies of all Federal, state, and local employment
tax returns and related supporting work papers filed by the Seller during the
calendar years 1996 and 1997.
4. Copies of all Federal, state, and local unemployment
and worker's compensatino reports and related supporting work papers filed by
the Seller during the calendar years 1996 and 1997.
5. Copies of all state, and local sales and use tax
returns and related supporting work papers filed by the Seller during the
calendar year 1995, 1996 and 1997.
6. Copies of all personal property or ad valorem tax
returns and related supporting work papers filed by the Seller during the
calendar years 1996 and 1997.
7. Copies of all real estate assessments and related
supporting work papers filed and levied on the Seller during the calendar years
1995, 1996 and 1997.
8. Copies of all Federal and state information returns
and reports of the Seller's employee benefit plans and related supporting work
papers filed by the Seller during the calendar years 1995 and 1996.
9. Copies of all real and personal property tax bills,
assessment notices, credits, and valuation appeals received by or filed by the
Seller during the calendar years 1995, 1996 or 1997.
10. Copy of the documents, including but not limited to
the indenture, guaranty, and lease agreements, in connection with the
Industrial Revenue Bond financing of the Seller's property at ▇▇▇▇▇ County,
Tennessee.
11. Copies of the audit reports and related work papers
issued to the Seller during 1994, 1995, 1996 and 1997 by those jurisdictions
who audited the sales and use tax returns of the Seller.
12. Copies of the audit reports and related work papers
issued to the Seller during 1994, 1995, 1996 and 1997 by those jurisdictions
who audited the income or franchise tax returns of the Seller.
127
FIRST AMENDMENT
TO
PURCHASE AGREEMENT
This First Amendment to Purchase Agreement (this "Amendment") is
made this 17th day of March, 1997 to amend the Purchase Agreement dated March
13, 1997 between Fruehauf Trailer Corporation, a Delaware corporation
("Seller"), and Wabash National Corporation, a Delaware corporation ("Buyer")
(the "Original Agreement"). Terms used in this Amendment which are defined in
the Original Agreement are used in this Amendment as so defined, except that
this "Agreement" shall refer to the Original Agreement as amended by this
Amendment. In consideration of the mutual promises made in this Amendment,
Buyer and Seller have agreed to amend the Original Agreement as follows:
1. The third paragraph of the Recitals shall be amended by
deleting the words "the real property and tangible personal property at Fort
Madison, Iowa and".
2. Section 1.1(a) shall be amended by inserting "(including the
real property located at Fort Madison, Iowa)" in the first line after the word
"land" and Schedule 1.1(a) shall be amended by adding the legal description
attached as Attachment A to this Amendment.
3. Schedule 1.1(b) shall be amended by deleting the Leasehold
Interest identified as item no. 5 thereon, referring to that certain lease
dated August 15, 1994, as amended by letter agreement dated September 16, 1994,
between Seller and PERA Southpark III, Inc. c/▇ ▇▇▇▇▇▇▇ Management, Inc.,
pertaining to property located in Grove City, Ohio.
4. Schedule 1.1(c) shall be amended by adding the vehicle
descriptions attached as Attachment B to this Amendment.
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5. Section 1.1(d) shall be amended by deleting the words
"Seller's facility at Fort Madison, Iowa and at" in the second line thereof
and", the Fort Madison facility" in the sixth line thereof.
6. Schedule 1.1(d) shall be amended by including the Deposits
listed on Attachment C to this Amendment.
7. Section 1.1(e) shall be amended by inserting in the proviso
the words "in each case" before the words "embodied in the Retained Assets."
8. Section 1.1(f) shall be amended by adding the following
proviso:
"; provided, however, that the Assigned Contents shall not include
any contract, lease, agreement or purchase order that is identified
in writing to Seller by Buyer prior to April 9, 1997 as being
excluded from Schedule 1.1(f) and that the Assigned Contracts shall
include any contract, lease, agreement or purchase order that is
identified in writing to Seller by Buyer prior to April 9, 1997 as
one to be included in Schedule 1.1(f)."
9. Schedule 1.1(g) shall be amended to include the prepaid items
listed on Attachment D to this Amendment.
10. Schedule 1.1(h) shall be amended to include the transferable
permits and approvals listed on Attachment E to this Amendment.
11. Section 1.2(c) shall be amended by deleting the words "the
Preclosing Working Capital Schedule" after the words "reflected in" in the
fourth line therein and inserting in its place the words "Schedule 1.1(d) to
this Agree- ment".
12. Section 1.2(g) shall be amended by deleting the words ", and
Fort Madison, Iowa" in the second line thereof.
13. Section 2.1(a)(i) shall be amended by replacing the words
"FIFTEEN MILLION DOLLARS ($15,000,000)" with the words "NINETEEN MILLION
DOLLARS ($19,000,000)".
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14. Section 2.1(b) shall be amended by (a) deleting the words "or
the Fort Madison facility" from subsection (i) therein; (b) replacing the
amounts "$23.5 million" and "$17.5 million" in subsection (i)(2) therein with
"$26.8 million" and "$20.8 million" respectively; (c) replacing the fourth
sentence of Section 2.1(b) in its entirety to read as follows:
"Amounts in excess of the $23.5 million limit for Accounts
Receivable and $26.8 million limit for Inventory shall be treated
as positive numbers and amounts below the $17.5 million limit for
Accounts Receivable and $20.8 million limit for Inventory shall be
treated as negative numbers."
15. Section 7.8 shall be amended by deleting the words "the Fort
Madison facility and" from the first and second parenthetical references in the
second sentence therein and Schedule 7.8 shall be amended to include the Liens
and Permitted Exceptions listed on Attachment F to this Amendment.
16. Section 9.2(c) shall be amended by adding the following
proviso at the end of the sentence:
"; provided, however, that Seller shall (1) maintain in effect the
notice of a plant closing or mass layoff under the WARN Act with
respect to the Fort Madison facility for a period of 60 consecutive
days prior to and including the Closing Date and (2) bear any costs
arising under the WARN Act for the termination of any Business
Employees related to the Fort Madison facility who do not accept
employment with Buyer."
17. Except to the extent amended by this Amendment, the Original
Agreement shall remain in full force and effect in accordance with its terms.
18. This Amendment may be executed in one or more counterparts,
all of which shall be considered one and the same agreement.
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130
IN WITNESS WHEREOF, each of Seller and Buyer have executed this
Amendment as of the day and year first above written.
WABASH NATIONAL CORPORATION
-------------------------------------
By:
-------------------------------------
Its:
-------------------------------------
FRUEHAUF TRAILER CORPORATION
-------------------------------------
By:
-------------------------------------
Its:
-------------------------------------
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SECOND AMENDMENT
TO
PURCHASE AGREEMENT
This Second Amendment to Purchase Agreement (this "Second Amendment")
is made this 16th day of April, 1997 to further amend the Purchase Agreement
dated March 13, 1997, as amended by the First Amendment to Purchase Agreement
dated March 17, 1997, between Fruehauf Trailer Corporation, a Delaware
corporation ("Seller") and Wabash National Corporation, a Delaware corporation
("Buyer") (collectively, the "Original Agreement"). Terms used in this Second
Amendment which are defined in the Original Agreement are used in this Second
Amendment as so defined, except that "Agreement" shall refer to the Original
Agreement as amended by this Second Amendment. In consideration of the mutual
promises made in this Second Amendment, Buyer and Seller have agreed to amend
the Original Agreement as follows:
1. Schedule 1.1(b) (Real Property Leases) shall be
amended by (i) deleting the leasehold interest identified as item 9 thereon,
referring to that certain lease dated October 11, 1993 and all amendments
thereto between Fruehauf Trailer Corporation and E&O Partners pertaining to
property located in Pittsburgh, Pennsylvania; (ii) deleting the leasehold
interest identified as item 10 thereon, referring to that certain lease dated
October 1, 1988, as amended by an agreement dated January 27, 1989, between
Fruehauf Trailer Corporation and The Industrial Development Board of ▇▇▇▇▇
County, Tennessee; and (iii) inserting the following on the list of Real
Property Leases:
132
"5. That certain lease dated August 15, 1994, as amended
by letter agreement dated September 16, 1994, between Fruehauf Trailer
Corporation and PERA Southpark III, Inc. c/▇ ▇▇▇▇▇▇▇ Management, Inc.,
pertaining to property located in Grove City, Ohio."
"9. That certain lease dated July 15, 1994 between
Fruehauf Trailer Corporation and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ pertaining to property
located in Tampa, Florida."
"10. That certain lease between Fruehauf Trailer
Corporation and Olympic Marine Company pertaining to property located in St.
Louis, Missouri."
2. Section 1.1(c) shall be amended by inserting on the
fifth line thereof, following the words "Leasehold Interests," the words "the
Harrisburg, Pennsylvania property, the Pittsburgh, Pennsylvania property and
the Huntsville, ▇▇▇▇▇ County, Tennessee property."
3. Schedule 1.1(c) shall be amended by replacing the
current schedule with the revised Schedule 1.1(c) attached as Attachment A to
this Second Amendment.
4. Schedule 1.1(e) (Intellectual Property) shall be
amended by replacing the current schedule with the revised Schedule 1.1(e)
attached as Attachment B to this Second Amendment.
5. Schedule 1.1(f) (Assigned Contracts) shall be amended
by replacing the current schedule with the revised Schedule 1.1(f) attached as
Attachment C to this Second Amendment.
6. Schedule 1.1(h) (Transferable Licenses and Permits)
shall be amended by replacing the current schedule with the revised Schedule
1.1(h) attached as Attachment D to this Second Amendment.
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133
7. Section 3.2(m) of the Original Agreement shall be
amended by replacing the words "Vice President - Corporate Controller" in the
first line thereof with the word "Chief Executive Officer".
8. Seller retains the right to any refunds received on
account of the termination of any and all dealer-related bonding arrangements
previously established by Seller, including, without limitation, any amounts
received from National Union Fire Insurance Company of Pittsburgh, PA.
9. Except to the extent amended by this Second Amendment,
the Original Agreement shall remain in full force and effect.
10. This Second Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement.
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134
IN WITNESS WHEREOF, each of Seller and Buyer have executed this
Second Amendment as of the day and year first above written.
WABASH NATIONAL CORPORATION
----------------------------
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
FRUEHAUF TRAILER CORPORATION
----------------------------
By: ▇▇▇▇▇▇ ▇. Ireland
Title: Chief Executive Officer
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