SERIES A WARRANT TO PURCHASE
SHARES OF CLASS B COMMON STOCK
of
OSHKOSH TRUCK CORPORATION
THIS WARRANT WAS ISSUED PURSUANT TO THE ALLIANCE AGREEMENT DATED AS
OF JUNE 2, 1995 (THE "ALLIANCE AGREEMENT"), BETWEEN FREIGHTLINER
CORPORATION AND OSHKOSH TRUCK CORPORATION. NO TRANSFER MAY OCCUR EXCEPT
PURSUANT TO THE TERMS OF THE ALLIANCE AGREEMENT.
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. ACCORDINGLY, THIS WARRANT MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED UNLESS IT IS REGISTERED UNDER THE APPROPRIATE
SECURITIES LAWS OR SUCH OFFER, SALE OR OTHER TRANSFER IS EXEMPT FROM SUCH
REGISTRATION.
No. WA-1 Warrant to Purchase
1,250,000 Class B Common
Shares, par value $.01
per share (subject to
adjustment)
Void after June 2, 2002
For value received, OSHKOSH TRUCK CORPORATION, a Wisconsin
corporation ("Oshkosh"), hereby certifies that FREIGHTLINER CORPORATION,
or registered assigns (the "Holder"), is entitled, subject to the terms
set forth below and to the Alliance Agreement, to purchase from Oshkosh,
1,250,000 shares of Class B Common Stock, par value $.01 per share, of
Oshkosh ("Class B Common Stock"), as constituted on June 2, 1995 (the
"Warrant Issue Date"), on or after the first anniversary of the Warrant
Issue Date and prior to the expiration of this Warrant as provided below,
upon surrender hereof at the principal office of Oshkosh referred to
below, with the Notice of Exercise attached hereto duly executed, and
simultaneous payment therefor in lawful money of the United States as
hereinafter provided at the per share price of $16.50 (the "Exercise
Price"). The number, character and Exercise Price of such shares of Class
B Common Stock are subject to adjustment as provided below. The term
"Warrant" as used herein shall include this Warrant and any warrants
delivered in substitution or exchange therefor as provided herein. This
Warrant is registered and its transfer may be registered upon the books
maintained for that purpose by Oshkosh by delivery of this Warrant duly
endorsed.
Terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Alliance Agreement.
1. Term of Warrant. Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable, in whole or in part, during the
term commencing on June 2, 1996 and ending at 5:00 p.m., Eastern time, on
the date seven years after the Warrant Issue Date, and shall be void
thereafter.
2. Exercise of Warrant.
2.1. Method. The purchase rights represented by this Warrant
are exercisable by the Holder in whole or in part, at any time, or from
time to time, during the term hereof as described in Section 1 above by
the surrender of this Warrant and the Notice of Exercise annexed hereto
duly completed and executed by the Holder at the principal executive
office of Oshkosh at 2307 Oregon Street, Oshkosh, Wisconsin 54903-2566 (or
such other office or agency of Oshkosh as it may designate by notice in
writing to the Holder), upon payment in cash or by wire transfer to a bank
account designated by Oshkosh or by a certified or cashier's check of the
aggregate Exercise Price of the shares to be purchased; provided, however,
that, in lieu of cash, such Holder may pay such Exercise Price by
exchanging shares of Class B Common Stock having an aggregate Market Price
equal to the aggregate Exercise Price or by reducing the number of shares
of Class B Common Stock such Holder would otherwise be entitled to upon
such exercise by a number of shares of Class B Common Stock having an
aggregate Market Price equal to the aggregate Exercise Price.
2.2. Effect. This Warrant shall be deemed to have been
exercised at the time of its surrender for exercise together with full
payment as provided above, and the Person entitled to receive the shares
of Class B Common Stock issuable upon such exercise shall be treated for
all purposes as the holder of record of such shares at and after such
time. As promptly as practicable on or after such date Oshkosh at its
expense shall issue to the Person entitled to receive the same a
certificate for the number of shares of Class B Common Stock issuable upon
such exercise. If this Warrant is exercised in part, Oshkosh at its
expense will execute and deliver a new Warrant exercisable for the number
of shares for which this Warrant may then be exercised. Oshkosh shall not
be required to pay any stamp or other tax or other governmental charge
required to be paid in connection with any transfer involved in the
issuance of Class B Common Stock; and in the event that any such transfer
is involved, Oshkosh shall not be required to issue or deliver any shares
of Class B Common Stock until such tax or other charge shall have been
paid or it has been established to the Company's reasonable satisfaction
that no such tax or other charge is due.
2.3. Holder Not a Shareholder. The Holder shall neither be
entitled to vote nor receive dividends nor be deemed the holder of Class B
Common Stock or any other securities of Oshkosh that may at any time be
issuable on the exercise hereof for any purpose until the Warrant has been
exercised for shares of Class B Common Stock as provided in this Section
2; provided, however, that the Holder shall be treated as the beneficial
owner of the shares issuable upon exercise of the Warrant for purposes of
determining Freightliner's compliance with its commitment to maintain a
beneficial ownership level below the Standstill Percentage.
2.4. No Fractional Shares or Scrip. No fractional shares or
scrip representing fractional shares of Class B Common Stock shall be
issued upon the exercise of this Warrant. In lieu of any fractional share
to which the Holder would otherwise be entitled, Oshkosh shall make a cash
payment equal to the Exercise Price multiplied by such fraction.
3. Registered Warrants.
3.1. Series. This Warrant is one of a series of Warrants,
designated as Series A, which are identical except as to the number of
shares of Class B Common Stock purchasable and as to any restriction on
the transfer thereof in order to comply with the Securities Act of 1933,
as amended (the "Act"), and the regulations of the Securities and Exchange
Commission promulgated thereunder or state securities or blue sky laws.
Such Warrants are referred to herein collectively as the "Warrants."
3.2. Record Ownership. Oshkosh shall maintain a register of the
Holders of the Warrants (the "Register") showing their names and addresses
and the serial numbers and number of shares of Class B Common Stock
purchasable, issued to or transferred of record by them from time to time.
The Register may be maintained in electronic, magnetic or other
computerized form. Oshkosh may treat the person named as the Holder of
this Warrant in the Register as the sole owner of this Warrant. The
Holder of this Warrant is the person exclusively entitled to receive
notifications with respect to this Warrant, exercise it to purchase shares
of Class B Common Stock and otherwise exercise all of the rights and
powers as the absolute owner hereof.
3.3. Registration of Transfer. To the extent permitted under
the Alliance Agreement, transfers of this Warrant may be registered on the
Register. Transfers shall be registered when this Warrant is presented to
Oshkosh duly endorsed with a request to register the transfer hereof in
accordance with the terms of the Alliance Agreement. When this Warrant is
presented for transfer and duly transferred hereunder, it shall be
cancelled and a new Warrant showing the name of the transferee as the
Holder thereof shall be issued in lieu hereof. No transfer of this
Warrant may take place except in accordance with the terms of the Alliance
Agreement.
3.4. Worn and Lost Warrants. If this Warrant becomes worn,
defaced or mutilated but is still substantially intact and recognizable,
Oshkosh or its agent may issue a new Warrant in lieu hereof upon its
surrender. If this Warrant is lost, destroyed or wrongfully taken,
Oshkosh shall issue a new Warrant in place of the original Warrant if the
Holder so requests by written notice to Oshkosh and the Holder has
delivered to Oshkosh an indemnity agreement reasonably satisfactory to
Oshkosh with an affidavit of the Holder that this Warrant has been lost,
destroyed or wrongfully taken.
3.5. Restrictions on Transfer. (a) This Warrant and the Class
B Common Stock issuable upon the exercise hereof have not been registered
under the Act and therefore this Warrant and the Class B Common Stock
issuable upon the exercise of this Warrant may not be offered for sale,
sold or otherwise transferred unless such offer, sale or other transfer is
registered pursuant to the Act and is otherwise registered under the
appropriate state securities or Blue Sky laws or such transfer is exempt
from such registration. This Warrant does not obligate Oshkosh to
register the Warrant or Class B Common Stock issuable upon the exercise
hereof under the Act or any other law. Certificates representing Class B
Common Stock issuable upon the exercise of this Warrant may bear an
appropriate legend to the effect set forth in this Section 3.5(a).
(b) No transfer of this Warrant or the Class B Common Stock
issuable upon the exercise hereof may be made except in accordance with
the terms of the Alliance Agreement.
3.6. Warrant Agent. Oshkosh may, by written notice to the
Holder, appoint an agent for the purpose of maintaining the Register,
issuing Class B Common Stock or other securities then issuable upon the
exercise of this Warrant, exchanging or transferring this Warrant, or any
or all of the foregoing. Thereafter, any such registration, issuance,
exchange, or transfer, as the case may be, shall be made at the office of
such agent.
4. Reservation of Stock. Oshkosh covenants that, during the term
this Warrant is exercisable, Oshkosh will reserve from its authorized and
unissued Class B Common Stock or Class B Common Stock held in Treasury a
sufficient number of shares to provide for the issuance of Class B Common
Stock upon the exercise of this Warrant. Oshkosh further covenants that
all shares that may be issued upon the exercise of rights represented by
this Warrant, upon exercise of the rights represented by this Warrant and
payment of the Exercise Price, all as set forth herein, will be duly
authorized, validly issued, fully paid and non-assessable (except for
statutory liability under Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law). Oshkosh agrees that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary
certificates for shares of Class B Common Stock upon the exercise of this
Warrant.
5. Effects of Certain Events.
5.1. Class B Common Stock Dividends, Subdivisions or
Combinations. In case Oshkosh shall (A) pay or make a dividend or other
distribution to all holders of its Class B Common Stock in shares of its
Class B Common Stock, (B) subdivide, split or reclassify the outstanding
shares of its Class B Common Stock into a larger number of shares or (C)
combine or reclassify the outstanding shares of its Class B Common Stock
into a smaller number of shares, the Exercise Price in effect and the
number of shares of Class B Common Stock issuable upon exercise hereof, in
each case immediately prior thereto shall be adjusted so that the Holder
of this Warrant shall thereafter be entitled to receive upon the exercise
of this Warrant, the number of shares of Class B Common Stock which such
Holder would have owned and been entitled to receive had such Warrant been
exercised immediately prior to the happening of any of the events
described above or, in the case of a stock dividend or other distribution,
prior to the record date for determination of shareholders entitled
thereto. An adjustment made pursuant to this Section 5.1 shall become
effective immediately after such record date in the case of a dividend or
distribution and immediately after the effective date in the case of a
subdivision, split, combination or reclassification.
5.2. Distributions of Assets or Securities Other Than Class B
Common Stock. In case Oshkosh shall, by dividend or otherwise, distribute
to all holders of its Class B Common Stock shares of any of its capital
stock (other than Class B Common Stock), rights or warrants to purchase
any of its securities (other than those referred to in Section 5.3 below
and other than rights issued under a Company stockholder rights plan),
cash (other than any regular quarterly dividend which the Board of
Directors of Oshkosh declares in the ordinary course of business), other
assets or evidences of its indebtedness, then in each such case the
Exercise Price shall be adjusted by multiplying the Exercise Price in
effect immediately prior to the date of such dividend or distribution by a
fraction, of which the numerator shall be the Average Market Price per
share of Class B Common Stock at the record date for determining
shareholders entitled to such dividend or distribution less the fair
market value (as determined in good faith by the Board of Directors) of
the portion of the securities, cash, assets or evidences of indebtedness
so distributed applicable to one share of Class B Common Stock, and of
which the denominator shall be such Average Market Price per share. An
adjustment made pursuant to this Section 5.2 shall become effective
immediately after such record date.
5.3. Below Market Distributions or Issuances. In case Oshkosh
shall issue Class B Common Stock (or rights, warrants or other securities
convertible into or exchangeable or exercisable for shares of Class B
Common Stock) to all holders of Class B Common Stock at a price per share
(or having an effective exercise, exchange or conversion price per share)
less than the Average Market Price per share of Class B Common Stock at
the record date for the determination of shareholders entitled to receive
such Class B Common Stock (or rights, warrants or other securities
convertible into or exchangeable or exercisable for shares of Class B
Common Stock), then in each such case the Exercise Price shall be adjusted
by multiplying the Exercise Price in effect immediately prior to the date
of issuance of such Class B Common Stock (or rights, warrants or other
securities) by a fraction, the numerator of which shall be the sum of (A)
the number of shares of Class B Common Stock outstanding on the date of
such issuance (without giving effect to any such issuance) and (B) the
number of shares which the aggregate consideration receivable by Oshkosh
for the total number of shares of Class B Common Stock so issued (or into
or for which such rights, warrants or other securities are convertible,
exchangeable or exercisable) would purchase at such Average Market Price,
and the denominator of which shall be the sum of (A) the number of shares
of Class B Common Stock outstanding on the date of such issuance (without
giving effect to any such issuance) and (B) the number of additional
shares of Class B Common Stock so issued (or into or for which such
rights, warrants or other securities are convertible, exchangeable or
exercisable). An adjustment made pursuant to this Section 5.3 shall
become effective immediately after the record date for determination of
shareholders entitled to receive or purchase such Class B Common Stock (or
rights, warrants or other securities convertible into or exchangeable or
exercisable for shares of Class B Common Stock). For purposes of this
Section 5.3, the issuance of any options, rights or warrants or any shares
of Class B Common Stock (whether treasury shares or newly issued shares)
pursuant to any employee (including consultants and directors) benefit or
stock option or purchase plan or program of Oshkosh shall not be deemed to
constitute an issuance of Class B Common Stock or options, rights or
warrants to which this Section 5.3 applies. Notwithstanding anything
herein to the contrary, no further adjustment to the Exercise Price shall
be made (i) upon the issuance or sale of Class B Common Stock upon the
exercise of any rights or warrants or (ii) upon the issuance or sale of
Class B Common Stock upon conversion or exchange of any convertible
securities, if any adjustment in the Exercise Price was made or required
to be made upon the issuance or sale of such rights, warrants or
securities.
5.4. Repurchases. In case at any time or from time to time
Oshkosh or any subsidiary thereof shall repurchase, by self tender offer
or otherwise, any shares of Class B Common Stock of Oshkosh at a weighted
average purchase price in excess of the Average Market Price on the
business day immediately prior to the earliest of the date of such
repurchase, the commencement of an offer to repurchase or the public
announcement of either (such date being referred to as the "Determination
Date"), the Exercise Price in effect as of such Determination Date shall
be adjusted by multiplying such Exercise Price by a fraction, the
numerator of which shall be (A) the product of (x) the number of shares of
Class B Common Stock outstanding on such Determination Date and (y) the
Average Market Price of the Class B Common Stock on such Determination
Date minus (B) the aggregate purchase price of such repurchase and the
denominator of which shall be the product of (x) the number of shares of
Class B Common Stock outstanding on such Determination Date minus the
number of shares of Class B Common Stock repurchased by Oshkosh or any
subsidiary thereof in such repurchase and (y) the Average Market Price of
the Class B Common Stock on such Determination Date. An adjustment made
pursuant to this Section 5.4 shall become effective immediately after the
effective date of such repurchase.
5.5 Fractional Shares. Notwithstanding any adjustment pursuant
to this Article 5 in the number of shares of Class B Common Stock or other
securities purchasable upon the exercise of this Warrant, Oshkosh shall
not be required to issue fractions of shares of Class B Common Stock or
other securities upon exercise of this Warrant or to distribute
certificates that evidence fractional shares. In lieu of fractional
shares, there shall be paid to the holder of this Warrant at the time the
Warrant is exercised as provided herein an amount in cash equal to the
same fraction of the current market value of a share of Class B Common
Stock or other security.
6. Certain Reorganizations. In the event of any change,
reclassification, conversion, exchange or cancellation of outstanding
shares of Class B Common Stock of Oshkosh (other than any reclassification
referred to in Section 5.1), whether pursuant to a merger, consolidation,
reorganization or otherwise, or the sale or other disposition of all or
substantially all of the assets and properties of Oshkosh, this Warrant
shall, after such merger, consolidation, reorganization or other
transaction, sale or other disposition, be exercisable for the kind and
number of shares of stock or other securities, cash or property, of
Oshkosh or otherwise, to which the Holder would have been entitled if
immediately prior to such event such Holder had exercised this Warrant for
Class B Common Stock at the Exercise Price in effect as of the
consummation of such event. The provisions of this Section 6 shall
similarly apply to successive changes, reclassifications, conversions,
exchange or cancellations.
7. No Impairment. Except as permitted by the Alliance Agreement,
Oshkosh will not, by amendment of its Articles of Incorporation or through
any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms
to be observed or performed hereunder by Oshkosh, but will at all times in
good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may be necessary or
appropriate in order to protect the exercise rights of the Holder hereof
against impairment.
8. Calculation of Adjustments. No adjustment in the Exercise Price
shall be required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that any
adjustments which by reason of this Section 8 are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Warrant shall be made by Oshkosh
and shall be made to the nearest cent or to the nearest one hundredth of a
share, as the case may be. Anything in this Warrant to the contrary
notwithstanding, Oshkosh shall be entitled to make such reductions in the
Exercise Price, in addition to those required by this Warrant, as it in
its sole discretion shall determine to be advisable in order that any
stock dividends, subdivision of shares, distribution of rights to purchase
stock or securities, or a distribution of securities convertible into or
exchangeable for stock hereafter made by Oshkosh to its shareholders shall
not be taxable.
9. Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Exercise Price pursuant to this Warrant,
Oshkosh at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to the Holder
of this Warrant a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. Oshkosh shall, upon the written request at any
time of the Holder of this Warrant, furnish or cause to be furnished to
such Holder a like certificate setting forth (i) such adjustments and
readjustments, (ii) the Exercise Price at the time in effect, and (iii)
the number of shares of Class B Common Stock and the amount, if any, of
other property which at the time would be received upon the exercise of
this Warrant.
10. Notices.
10.1. Dilutive Events. In the event that Oshkosh shall
propose at any time:
(1) to declare any dividend (other than regular quarterly cash
dividends in the ordinary course of business) or distribution upon its
Class B Common Stock;
(2) to offer for subscription pro rata to the holders of any
class or series of its stock any additional shares of stock of any class
or series or other rights; or
(3) to effect any transaction of the type described in Section 6
hereof involving a change in the Class B Common Stock;
then, in connection with each such event, Oshkosh shall send to the
Holders of this Warrant:
(A) at least 15 days' prior written notice of the date on which
a record shall be taken for such dividend or distribution (and specifying
the date on which the holders of Class B Common Stock shall be entitled
thereto) or for determining rights to vote in respect of the matters
referred to in (1) and (2) above; and
(B) in the case of the matters referred to in (3) above, at
least 20 days' prior written notice of the date when the same shall take
place (and specifying the time on which the holders of Class B Common
Stock shall be entitled to exchange their Class B Common Stock for
securities, cash or other property deliverable upon the occurrence of such
event).
10.2. Dissolution; Liquidation. In the event of any
voluntary or involuntary dissolution, liquidation or winding up of
Oshkosh, Oshkosh shall send to the Holder of this Warrant at least 20
days' prior written notice thereof.
10.3. Repurchase Programs. Oshkosh shall send written
notice immediately upon any public announcement with respect to an open
market repurchase program, any self tender offer for shares of Class B
Common Stock and any other repurchase other than a repurchase of stock of
an employee or consultant pursuant to any benefit plan or agreement.
11. Amendments. This Warrant may not be amended without the prior
written consent of the Holder.
12. Additional Definition. As used herein, the term "Average Market
Price" shall mean the average of the Market Prices for the 20 consecutive
trading days immediately preceding the date in question.
13. Notices. Any notice, certificate or other communication which
is required or convenient under the terms of this Warrant shall be duly
given if it is in writing and delivered in person or mailed by first class
mail, postage prepaid, and directed to the Holder of the Warrant at its
address as it appears on the Register or if to Oshkosh to its principal
executive offices. The time when such notice is sent shall be the time of
the giving of the notice.
14. Time. Where this Warrant provides for a payment or performance
on a Saturday or Sunday or a public holiday in the State of Wisconsin or
the State of Oregon, such payment or performance may be made on the next
succeeding business day, without liability of Oshkosh for interest on any
such payment.
15. Rules of Construction. In this Warrant, unless the context
otherwise requires, words in the singular number include the plural, and
in the plural include the singular, and words of the masculine gender
include the feminine and the neuter, and when the sense so indicates,
words of the neuter gender may refer to any gender. The numbers and
titles of sections contained in this Warrant are inserted for convenience
of reference only, and they neither form a part of this Warrant nor are
they to be used in the construction or interpretation hereof.
16. Governing Law. This Warrant shall be construed in accordance
with and governed by the law of the State of Wisconsin.
IN WITNESS WHEREOF, Oshkosh has caused this Warrant to be executed by
its officer thereto duly authorized.
OSHKOSH TRUCK CORPORATION
By: /s/ Fred S. Schulte
Name: Fred S. Schulte
Title: Chief Financial Officer
ASSIGNMENT OF WARRANT
The undersigned hereby sell(s) and assign(s) and transfer(s)
unto ___________________________________________________________
____________________________________________________________________
(name, address and SSN or EIN of assignee)
rights to purchase _______________ shares of Class B Common Stock pursuant
to this Warrant.
Date: Sign:
(Signature must conform in all respects to
name of Holder shown on face of Warrant)
Signature Guaranteed:
_________________________________________
Name of Assignee
_________________________________________
Street
_________________________________________
City, State, ZIP
_________________________________________
SSN or EIN of Assignee
NOTICE OF EXERCISE
[To be completed and signed only upon exercise of Warrant]
The undersigned, the Holder of this Warrant, hereby irrevocably
elects to exercise the right to purchase Class B Common Stock, par value
$.01 per share, of Oshkosh Truck Corporation, as follows:
_______________________________________________
(whole number of Warrants exercised)
Dollars ($ )
(number of Warrants exercised times Exercise Price)
Shares ( )
Dollars ($ )
(number of shares and Market Price of
Common Stock in cashless exercise)
[Signature must be __________________________________________
guaranteed if name of (name of holder of shares if different
holder of shares differs than Holder of Warrant)
from registered Holder
of Warrant] __________________________________________
(address of holder of shares if different
than address of Holder of Warrant)
__________________________________________
(Social Security or EIN of holder of shares if
different than Holder of Warrant)
Date:___________ Sign:_____________________________________________
(Signature must conform in all respects to name of
Holder shown on face of this Warrant)
Signature Guaranteed: