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Item 1.01
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Entry into a Material Definitive Agreement
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On August 8, 2017, Wabash National
Corporation (the “Company”), Supreme Industries, Inc. (“Supreme”), and Redhawk Acquisition Corporation,
a wholly owned subsidiary of the Company (“Merger Sub”), entered into an Agreement and Plan of Merger (the “Merger
Agreement”), for the acquisition of Supreme by the Company.
Pursuant to the Merger Agreement, upon
the terms and subject to the conditions thereof, Merger Sub will commence a tender offer (the “Offer”) to acquire all
of the outstanding shares of Class A common stock, par value $0.10 per share and Class B common stock, par value $0.10 per share,
of Supreme (collectively, the “Shares”), at a purchase price of $21.00 per Share in cash (the “Offer Price”),
without interest. The Offer will initially expire at 12:01 a.m. (New York City time) on the date that is twenty-six (26) business
days following the commencement of the Offer. Under certain circumstances, Merger Sub may be required to extend the Offer on one
or more occasions in accordance with the terms set forth in the Merger Agreement and the applicable rules and regulations of the
United States Securities and Exchange Commission (the “SEC”). Merger Sub will not be required to extend the Offer beyond
the End Date (as defined below), and may not extend the Offer beyond the End Date without the prior written consent of Supreme.
The obligation of Merger Sub to purchase
Shares tendered in the Offer is subject to the satisfaction or waiver of a number of conditions set forth in the Merger Agreement,
including that the number of Shares validly tendered in the Offer and not properly withdrawn prior to the expiration of the Offer,
together with the number of Shares, if any, then owned by Company, Merger Sub and any Subsidiary or affiliate of the Company or
Merger Sub, taken as a whole (but excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received”
as defined in Section 251(h) of the Delaware Generation Corporation Law by the depositary for the Offer pursuant to such procedures),
constitutes at least one Share more than one-half (1/2) of all Shares outstanding as of the consummation of the Offer (the “Minimum
Tender Condition”).
As soon as practicable following the completion
of the Offer and subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement, the Merger Sub
will merge with and into Supreme (the “Merger”), with Supreme surviving as a wholly-owned subsidiary of the Company.
Merger Sub will effect the Merger after consummation of the Offer pursuant to Section 251(h) of the Delaware Generation Corporation
Law. At the effective time of the Merger, the Shares not purchased pursuant to the Offer (other than Shares held by the Company,
Supreme, Merger Sub or any of their respective wholly owned subsidiaries or by stockholders of Supreme who have perfected their
statutory rights of appraisal under Delaware law) will each be converted into the right to receive an amount in cash equal to the
Offer Price, without interest, subject to any required withholding of taxes.
The Merger Agreement contains customary
representations and warranties of Supreme, the Company and Merger Sub. Additionally, the Merger Agreement contains customary pre-closing
covenants, including covenants requiring Supreme to (i) conduct its business in the ordinary course consistent with past practice,
(ii) use reasonable best efforts to maintain and preserve its assets, relationships, and to retain the services of its key
officers and employees, and (iii) take no action that would adversely affect or materially delay regulatory approval. The
Merger Agreement provides that each party will use reasonable best efforts to take all actions reasonably necessary, proper or
advisable to consummate the Offer and Merger and the other transactions contemplated by the Merger Agreement. Supreme has also
agreed, subject to applicable law, not to take certain actions during the period prior to closing without the Company’s consent,
which consent shall not be unreasonably withheld, delayed or conditioned, including entry into certain agreements, certain capital
expenditures and making of certain payments. In addition the Merger Agreement requires that Supreme covenant to not solicit proposals
relating to alternative transactions, waive any standstill agreement or, subject to certain exceptions, enter into discussions
concerning or provide non-public information in connection with alternative transactions. However, Supreme may seek clarification
of any of the terms and conditions of an acquisition proposal it receives and, if the board of directors of Supreme determines
in good faith, after consultation with legal counsel and financial advisors, that such acquisition proposal would reasonably be
expected to result in a Superior Proposal (as defined in the Merger Agreement) and, after consultation with legal counsel, that
the failure to take such action would reasonably be expected to result in a breach of the directors’ fiduciary duties to
the stockholders of the Company under applicable law, may provide information to, and enter into discussions or negotiations with,
third parties with respect to such unsolicited acquisition proposal. The Merger Agreement also provides that the Board of Directors
of Supreme may not withdraw or change its recommendation of the Offer, approve or recommend any alternative acquisition proposal
or enter into any agreement with respect to any alternative acquisition proposal unless the Board determines in good faith (after
consultation with legal and financial advisors) that an alternative acquisition proposal constitutes a Superior Proposal, or that
certain material events or circumstances relating to the business prospects of Supreme have occurred, but only if (A) the Board
determines in good faith (after consultation with legal advisors) that the failure to take such action would reasonably be expected
to result in a breach of its fiduciary duties to the stockholders under applicable law, (B) the Board provides the Company with
at least four business days’ advance written notice (provided however, that during the five business days prior to the initial
expiration date of the Offer, the period for notice shall be reduced to two business days), and (C) during such four business day
period (or, where applicable, such two business day period) the Board negotiates in good faith with the Company on an amendment
to the Merger Agreement so as to enable the Board to proceed with its recommendation of the Merger Agreement.
Consummation of the Offer is subject to
customary conditions, including, among others, the Minimum Tender Condition, expiration or termination of the applicable waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), the completion of
a marketing period for the Company’s financing, the absence of a Company Material Adverse Effect (as defined in the Merger
Agreement) or governmental order delaying or preventing the acceptance of the Shares or otherwise prohibiting the transaction,
performance by Supreme of its covenants and the continued accuracy of representations and warranties, subject to certain materiality
standards. Consummation of the Offer and Merger are not subject to a financing condition.
The Merger Agreement also provides for
certain mutual termination rights of the Company and Supreme, including the right of either party to terminate the Merger Agreement
if the Offer is not consummated by November 6, 2017 (the “End Date”), subject to extension for thirty (30) days if
all conditions to the Offer have been satisfied or waived (other than those conditions that by their nature can only be satisfied
at the expiration of the Offer, provided that such conditions are reasonably capable of being satisfied) other than the applicable
waiting period under the HSR Act having expired or been terminated. Either party may also terminate the Merger Agreement if there
shall be any applicable law that makes consummation of the Offer or Merger illegal or otherwise prohibited or a final non-appealable
order of a governmental authority of competent jurisdiction restraining or otherwise prohibiting consummation of the transactions
contemplated under the Merger Agreement.
In addition, the Company may terminate
the Merger Agreement if the Supreme board of directors withdraws, modifies or changes its recommendation of the Offer or Merger
in a manner adverse to the Company or Merger Sub, or Supreme breaches its nonsolicitation obligations in any material respect.
If the Merger Agreement is terminated by the Company under these circumstances, then Supreme shall be obligated to pay the Company
a fee equal to $12,751,000 (the “Supreme Termination Fee”). Supreme may also terminate the Merger Agreement prior to
consummation of the Offer if the Supreme board of directors decides to do so in order to enter into an agreement to effect a transaction
it deems to be Superior Proposal, subject to payment of the Supreme Termination Fee. Further, if a third party has made certain
proposals to acquire Supreme and the Merger Agreement is terminated (i) by the Company or Supreme if the Merger has not been consummated
by the End Date or (ii) by the Company due to an incurable material breach by Supreme, and within 12 months of such termination,
Supreme consummates an acquisition proposal, then Supreme shall be obligated to pay the Supreme Termination Fee.
If Supreme terminates the Merger Agreement
due to an incurable material breach by the Company, or if the Merger Sub fails to consummate the Offer when all conditions thereto
are met, then the Company may be liable to pay Supreme a fee of $20,037,000 as liquidated damages (or Supreme may seek other damages
or specific performance in lieu thereof).
The foregoing description of the Merger
Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety
by, the full text of the Merger Agreement, which is filed as Exhibit 2.1 to this Form 8-K and incorporated herein by reference.
Tender and Voting Agreements
Concurrently with the execution of
the Merger Agreement, each of the executive officers and directors of Supreme and certain of the holders of Supreme’s
Class B common stock entered into Tender and Voting Agreements (the “Tender and Voting Agreements”) with the
Company and Merger Sub. Pursuant to the Tender and Voting Agreements, each of the signatories agreed to, among other things,
tender, and not withdraw, their Shares of Supreme in the Offer and, if necessary, vote their shares in favor of the Merger
and against any alternative acquisition proposal. As of August 8, 2017, approximately 19% of Supreme’s total
outstanding Shares are subject to the Tender and Voting Agreements. The Tender and Voting Agreements terminate upon certain
events, including any termination of the Merger Agreement in accordance with its terms and amendments to the Offer or Merger
that reduce the Offer Price or change the form of consideration payable in the Offer or the Merger.
The foregoing description of the Tender
and Voting Agreements and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified
in its entirety by, the full text of the Form of Tender and Voting Agreement, which is filed as Exhibit 10.1 to this Form 8-K and
incorporated herein by reference.
Financing the Merger
On August 8, 2017,
the Company entered into a bridge facility commitment letter (the “Commitment Letter”) pursuant to which Morgan Stanley
Senior Funding, Inc. (“MSSF”), Wells Fargo Bank, National Association (“WFB”), Wells Fargo Securities,
LLC (“WFS”) and Wells Fargo Capital Finance, LLC (“WFCF”; and together with MSSF, WFB and WFS, the “Commitment
Parties”) committed to provide a $300 million senior unsecured bridge credit facility to finance the Offer and Merger (the
“Bridge Facility”), which facility will mature 364 days after the closing of the Offer and Merger. It is expected that
in lieu of borrowing all or a portion of the Bridge Facility, the Company will issue and sell senior unsecured high yield notes
or enter into another similar long-term debt financing prior to consummation of the Offer and Merger. The Commitment Letter also
provides for the commitment of the Commitment Parties to provide the Company with (i) a new asset-based revolving credit facility
in the event that the Company is unable to amend its existing asset-based credit facility to permit the Offer and the Merger by
the closing of the Offer and Merger, and (ii) an additional $188.5 million under the Bridge Facility to pay off the Company’s
existing term loan facility in the event that the Company is unable to amend its existing term loan facility to permit the Offer
and the Merger by the closing of the Offer and Merger. The commitment of the Lenders (as defined in the Commitment Letter) to provide
the debt financings under the Commitment Letter is subject to customary conditions, including the absence of a Material Adverse
Effect on Supreme having occurred, the execution of satisfactory documentation and other customary closing conditions.
The foregoing description of the Commitment
Letter and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety
by, the full text of the Commitment Letter, which is filed as Exhibit 10.2 to this Form 8-K and incorporated herein by reference.
Each of the Merger Agreement, Tender and
Voting Agreements and the Commitment Letter has been included to provide investors with information regarding its terms. None is
intended to provide any other factual information about the Company, Supreme or their respective subsidiaries or affiliates. The
representations, warranties and covenants contained in the Merger Agreement, Tender and Voting Agreements and the Commitment Letter
were made only for purposes of such agreements and as of specific dates, were solely for the benefit of the parties thereto, may
be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for
the purposes of allocating contractual risk between the parties to such agreements instead of establishing these matters as facts,
and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors.
Investors are not third-party beneficiaries under these agreements and should not rely on the representations, warranties and covenants
or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their
respective subsidiaries or affiliates. Moreover, information concerning the subject matter of representations and warranties may
change after the date of the Merger Agreement, Tender and Voting Agreements and the Commitment Letter, which subsequent information
may or may not be fully reflected in the Company’s public disclosures.