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EXHIBIT 2.02
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REGISTRATION RIGHTS AGREEMENT
Dated as of April 16, 1997
by and between
FRUEHAUF TRAILER CORPORATION
AND
WABASH NATIONAL CORPORATION
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TABLE OF CONTENTS
Page
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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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 7. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 8. RULES 144 AND 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 9. UNDERWRITTEN REGISTRATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 10. SELECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 11. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 12. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) No Waivers: Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) No Inconsistent Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(c) Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(d) Notices: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(e) Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(f) Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(g) Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(h) Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(i) Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(j) Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00
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XXXXXXXXXXXX RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of April 16, 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 15, 2007 issuable in exchange for
shares of Preferred Stock.
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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.
Initial Holder: means Fruehauf Trailer Corporation.
Initial Sale: means the first "sale" (within the meaning of
Section 2(3) of the Act) of each of the Securities by the Initial Holder.
NASD: National Association of Securities Dealers, Inc.
NASDAQ: As defined in Section 5(b)(xiv) 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 Series B 6% Cumulative
Convertible Exchangeable Preferred Stock, par value $.01 per share.
Prospectus: The prospectus included in a Registration by the
Commission Statement at the time such Registration Statement is declared
effective by the Commission, 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: means (i) the registration statement
of the Company relating to the registration for resale by the Initial Holder
(or its pledgee in foreclosure) of Transfer Restricted Securities in connection
with the Initial Sale and (ii) the registration statement of the Company
relating to the registration for resale by Special Holder(s) of Transfer
Restricted Securities, in each case (A) which is filed with the Commission
pursuant to the provisions of this Agreement and (B) 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.
Special Holder: means any Holder who (i) acquires the
Securities from the Initial Holder pursuant to an Initial Sale and (ii) duly
notifies the Company in a written notice delivered within 20 days of such
Holder's initial acquisition of the Securites to the effect that such Holder may
be deemed to be an underwriter in connection with a resale thereof within the
meaning of Section 2(11) of the Act by reason of Rule 145(c) promulgated under
the Act.
TIA: The Trust Indenture Act of 1939 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 by the Initial Holder
in accordance with the Shelf Registration Statement to a Person other than a
Special Holder, (b) the date on which the transfer of such Security has been
effectively registered under the Act and transferred by a Special Holder in
accordance with the Shelf Registration Statement described in clause (ii) of
the definition of "Registration Statement", (c) the date on which such
security is transferable pursuant to Rule 144(k) under the Act, (d) the date
which such security has been sold pursuant to Rule 144 or (e) the date of
receipt of a "no action letter" from the Commission or an opinion of securities
counsel to the Company in form and substance reasonably satisfactory to the
Holder thereof to the effect that the registration of the transfer of such
security is not required under the Act by reason of the exemption provided in
Section 4(1) of the Act
Trustee: The Trustee under the Indenture, and its successors
and assigns.
Underwriters: As defined in Section 10 hereof.
Underwritten: As defined in Section 10 hereof.
Value: (i) With respect to the Preferred Stock, the Stated
Value per share 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. The parties agree that
the form of Indenture attached as Exhibit A is the Indenture (as such term is
defined in paragraph 8B of the Certificate of Designation) on file with the
Secretary of the Company on the Closing Date.
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 or Registation Statements pursuant to Rule 415 under the Act, (each
a "Shelf Registration Statement"), relating to the Initial Sale 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, (y) cause to be filed
as soon as practicable after the acquisition of Transfer Restricted Securities
by one or more Special Holders a Shelf Registration Statement relating to the
resale of all Transfer Restricted Securities by Special Holders who have
provided the information required pursuant to Section 3(b) hereof and shall (z)
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 covered by such Registration Statement are no longer Transfer
Restricted Securities. Notwithstanding the foregoing, the Company may
terminate a 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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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 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; provided, however, that if the Commission refuses to
declare the Shelf Registration Statement filed with the Commission in
connection with the Initial Sale effective due to the inability of the Initial
Holder to provide audited financial statements, then the interest rate increase
described in this Section shall not be applicable unless and until 30 days
following the receipt by the Company of either (i) all such required audited
financial statements of the Initial Holder in form and substance acceptable to
the Commission, or (ii) an effective waiver by the Commission of the
requirement to provide such audited financial statements in order to declare
effective the Shelf Registration Statement filed in connection with the Initial
Sale. The Company shall use its best efforts to cause the Commission to issue
the waiver described in clause (ii) of the preceding sentence as soon as
practicable.
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
applicable to such Shelf Registration Statements 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 a 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 such 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, shall use its best efforts subject to the
good faith determination of the best interest of the
Company. The Company shall use its best efforts, subject to
the good faith determination of the best interests of the
Company that to disclose such event or set of circumstances is
not in the best interests of the Company (provided that such
determination shall not be made solely or primarily to avoid
its obligations under this Agreement) to promptly amend or
supplement such 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 any Registration Statement as may be necessary
to keep such 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 to
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 any 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 a
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 any 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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(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 or
any information provided by Holder pursuant to Section 3(b)
hereof. 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 the discussion of such document and
other customary due diligence matters.
(vi) make available (on a confidential basis
except as necessary to ensure the accuracy of any
Registration Statement or Prospectus to be utilized in
connection with such underwriting) at reasonable times for
inspection by the selling Holders, and as applicable, by any
underwriter participating in any disposition pursuant to such
Registration Statement and any attorney or accountant retained
by the selling Holders or any of such underwriter(s), all
pertinent financial and other records, pertinent corporate
documents and properties of the Company and cause the
Company's officers, directors and employees to supply all
information reasonably requested by the selling Holders, or
any such underwriter, attorney or accountant in connection
with such Registration Statement or any post-effective
amendment thereto subsequent to the filing thereof and prior
to its effectiveness;
(vii) 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 without limitation, information concerning the
selling Holder and the "Plan of Distribution" of the Transfer
Restricted Securities; and any information provided by Holder
pursuant to Section 3(b) hereof; 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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(viii) furnish to each selling Holder, and each of
the underwriter(s) in connection with such sale, if any,
without charge, at least 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);
(ix) 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;
(x) if the proposed Plan of Distribution is an
underwriting, enter into an underwriting agreement as is
customary in an underwritten offering, with such underwriters
which 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
underwriter that is a nationally recognized "major" or
"bulge bracket" 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 effectiveness of a negotiation statement and
completion of an underwritten offering thereunder:
(1) opinions, dated the date of its
effectiveness with respect to any 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 underwriter(s) addressed to
each selling Holder 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 such 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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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,
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, 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), 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 and 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 any 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 any 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 and to register such Transfer Restricted Securities in
such denominations and such names as the selling Holders or
the underwriter(s), if any, may request at least two Business
Days prior to such sale of Transfer Restricted Securities;
(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; and provide the Trustee under the Indenture with
printed certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with the Depository
Trust Company;
(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
Registration Statement to become effective and approved (along
with the transfer of the Securities contemplated thereunder)
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 60 Business Days,
(ii) at least 30 Business Days occur between such periods, and (iii) that the
total number of Business Days covered by all such periods hereunder shall not
exceed 180. 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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14
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 be paid promptly and
shall not exceed $20,000; 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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16
(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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17
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 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.
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)(x) 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"
Registration 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
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
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:
- 00 -
00
XXXXXXXX X
Xxxx
- 00 -
