AMENDMENT TO WABASH NATIONAL CORPORATION WARRANT TO PURCHASE SHARES OF COMMON STOCK
EXECUTION
COPY
AMENDMENT
TO
WABASH
NATIONAL CORPORATION
THIS
AMENDMENT TO WARRANT TO PURCHASE COMMON STOCK (this “Amendment”) is made as of
September 13, 2010 by and between Trailer Investments, LLC, a Delaware limited
liability company (“Warrantholder”), and Wabash
National Corporation, a Delaware corporation (the “Company”).
WITNESSETH:
WHEREAS,
the Warrantholder and the Company entered into that certain Warrant to Purchase
Shares of Common Stock, dated as of August 3, 2009, which was subsequently
amended and replaced by that certain Warrant to Purchase Shares of Common Stock
dated as of May 28, 2010 (the “Warrant”); and
WHEREAS,
the parties thereto desire to amend the Warrant as provided in this Amendment,
for purposes of the offering of Warrant Shares (as defined in the Warrant)
contemplated by the Company’s Registration Statement on Form S-3 (Registration
No- 333-168944) and by any prospectus filed by the Company in connection
therewith pursuant to Rule 424 under the Securities Act of 1933, as amended (the
“Offering”).
NOW
THEREFORE, in consideration of the agreements and obligations set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
Section
1.Defined
Terms. Capitalized terms used herein, unless otherwise defined
herein, shall have the meanings ascribed to them in the Warrant.
Section
2.Amendment to Section
9. Section 9 of the Warrant is hereby amended, solely with
respect to any exercise of the Warrant in connection with the Offering, by
removing the definition of “Market Price” and inserting the following in place
thereof:
“Market Price”
means
(i) in
connection with an exercise of the Warrant by the Warrantholder or an
underwriter for purposes of delivering shares to be sold in an underwritten
public offering or block trade by the Warrantholder pursuant to an
effective registration statement of the Company (a “Public Offering”),
the average of the daily volume weighted average prices, as reported by
Bloomberg Financial L.P., of one share of Common Stock on the New York Stock
Exchange, Inc. (the “NYSE”) for a period
of five trading days consisting of the trading day ending immediately prior to
the entering into of the underwriting agreement for such Public Offering and the
four trading days prior to such date; and
(ii) in
all other circumstances other than a Public Offering, as of a particular date
(the “Valuation
Date”), the following: (A) if the Common Stock is then quoted on the
NYSE, The Nasdaq Stock Market, Inc. (“Nasdaq”), the
National Association of Securities Dealers, Inc. OTC Bulletin Board (the “Bulletin Board”) or
such similar quotation system or association (together with the NYSE, Nasdaq and
Bulletin Board, “Trading Markets” and each, a “Trading Market”), the
average of the daily volume weighted average prices, as reported by Bloomberg
Financial L.P., of one share of Common Stock on a Trading Market for a period of
five trading days consisting of the trading day immediately prior to the
Valuation Date and the four trading days prior to such date; or (ii) if the
Common Stock is not then quoted on a Trading Market, the Fair Market Value of
one share of Common Stock as of the Valuation Date, as jointly determined in
good faith by the Board of Directors of the Company and the
Warrantholder. If the Common Stock is not then listed on a Trading
Market, then the Board of Directors of the Company shall respond promptly, in
writing, to an inquiry by the Warrantholder prior to the exercise hereunder as
to the Fair Market Value of a share of Common Stock as determined in good faith
by the Board of Directors of the Company. In the event that the Board
of Directors of the Company and the Warrantholder are unable to agree upon the
Fair Market Value in respect of clause (ii) above, the Company and the
Warrantholder shall jointly select an appraiser who is experienced in such
matters. The decision of such appraiser shall be final and
conclusive, and the cost of such appraiser shall be borne equally by the Company
and the Warrantholder.
Section
3.Effect of
Amendment. The parties hereto agree that except as otherwise
set forth herein, all terms of the Warrant shall remain in full force and
effect. In the event of any inconsistency or conflict between the
Warrant and this Amendment, the terms, conditions and provisions of this
Amendment shall govern and control.
Section
4.Entire
Agreement. This Amendment and the Warrant, including the
Appendices and other documents referred to therein which form a part thereof,
contain the entire understanding of the parties hereto with respect to the
subject matter contained herein and therein. From and after the
execution of a counterpart hereof by the parties hereto, any reference to the
Warrant shall be deemed to be a reference to the Warrant as amended
hereby.
Section
5.Governing Law and
Jurisdiction. The construction, validity and interpretation of
this Amendment and the exhibits and schedules hereto shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York. Any
dispute relating hereto shall be heard in the United States District Court for
the Southern District of New York or any New York State court.
Section
6. Counterparts. This
Amendment may be executed in two or more counterparts, each of which shall
constitute an original, and all of which taken together shall constitute one
instrument. Any signature page delivered by a facsimile machine shall
be binding to the same extent as an original signature page.
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[SIGNATURE
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment on the date
first written above.
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WABASH
NATIONAL CORPORATION
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By:
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/s/ Xxxx X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Title:
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Senior
Vice President – Chief Financial Officer
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TRAILER
INVESTMENTS, LLC
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By:
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/s/ Xxxxx X. Xxxxxxxxx
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Name:
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Xxxxx
X. Xxxxxxxxx
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Title:
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Vice
President & Secretary
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