Exhibit
4.2
AMENDED AND
RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and
Restated Registration Rights Agreement (this
“Agreement”) is entered into as of January 31,
2005, and is made by and among Accuride Corporation, a Delaware
corporation (the “ Issuer ”), and each of the
Stockholders (as defined below).
RECITALS
WHEREAS, pursuant
to that certain Agreement and Plan of Merger, dated as of
December 24, 2004, as amended (the “ Merger
Agreement ”), by and among the Issuer, Amber Acquisition
Corp., a Delaware corporation and a wholly owned subsidiary of the
Issuer, Transportation Technologies Industries, Inc., a Delaware
corporation, those persons identified as Signing Stockholders
therein (including the Stockholders), and Andrew Weller, Jay Bloom
and Mark Dalton, as the Company Stockholders Representatives, the
Issuer has agreed to enter into this Agreement as a condition to
the consummation of the transactions contemplated thereby;
and
WHEREAS, the
Issuer and each of the Stockholders has entered into a Shareholders
Rights Agreement, dated as of January 31, 2005 (the “
Stockholders Agreement ”), which includes, among other
things, restrictions on the Stockholders’ ability to Transfer
shares of Common Stock held by the Stockholders, which restrictions
shall be applicable notwithstanding anything set forth in this
Agreement; and
WHEREAS, the
Issuer and the Stockholders desire to provide for the registration
under the Securities Act of 1933, as amended, of the Registrable
Securities (as defined below), all according to the terms of this
Agreement; and
WHEREAS, the
Issuer and the parties to the Registration Rights Agreement dated
January 21, 1998 by and between the Issuer and Hubcap
Acquisition L.L.C. (the “ Existing Registration Rights
Agreement ”) wish to amend and restate the Existing
Registration Rights Agreement as provided herein and to terminate
the Existing Registration Rights Agreement; and
WHEREAS, as an
inducement to such Stockholders to enter into the Merger Agreement,
the Stockholders and the Issuer have agreed to enter into this
Agreement, on the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in
consideration of the mutual agreements, covenants and conditions
and releases contained herein, the Issuer and the Stockholders
hereby agree as follows:
1.
Definitions .
As used in this
Agreement, the following capitalized terms shall have the following
meanings:
“
Affiliate ” shall mean, with respect to any Person,
any other Person that either directly or indirectly, through one or
more intermediaries, controls, is controlled by or under common
control with, such other Person. For purposes of this
definition, “control” (and its derivatives) means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through ownership of equity, voting or other interests, as trustee
or executor, by contract or otherwise.
“ Albion
Holder ” shall mean any Holder that is an Affiliate of
Albion Alliance Mezzanine Fund (“ Albion ”),
including without limitation Albion/TTI Securities Acquisition,
L.L.C.
“
Board ” shall mean the Board of Directors of the
Issuer.
“ Closing
Date ” shall mean the date of the closing of the
transactions contemplated by the Merger Agreement.
“ Common
Stock ” shall mean the common stock of the Issuer, par
value $0.01 per share.
“ Demand
Notice ” shall have the meaning set forth in
Section 3(b) hereof.
“ Demand
Registration ” shall mean a registration pursuant to
Section 3(a) hereof.
“
Exchange Act ” shall mean the Securities Exchange Act
of 1934, as amended from time to time.
“
Holder ” shall mean any party hereto (other than the
Issuer) and any holder of Registrable Securities, Minority
Stockholder or Management Holder who is entitled to the benefits of
this Agreement pursuant to Section 2(b) or
Section 11.
“ Issuer
IPO ” shall mean, after the date hereof, the
Issuer’s initial sale of its Common Stock to the general
public in an firmly committed underwritten public offering pursuant
to an effective registration statement on Form S-1 or any successor
form, under the Securities Act.
“ KKR
Holder ” shall mean any Holder that is an Affiliate of
Kohlberg Kravis Roberts & Co. (“ KKR ”) or
KKR Associates, L.P., including, without limitation, Hubcap
Acquisition L.L.C.
“
Management Agreements ” shall have the meaning set
forth in Section 11 hereof.
“
Management Holders ” shall have the meaning set forth
in Section 11 hereof.
“
Minority Stockholders ” shall have the meaning set
forth in Section 11 hereof.
“
Minority Stockholders Agreement ” shall have the
meaning set forth in Section 11 hereof.
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“
NASD ” shall mean the National Association of
Securities Dealers, Inc.
“
Person ” shall mean an individual, partnership,
limited liability company, joint venture, corporation, trust or
unincorporated organization, a government or any department, agency
or political subdivision thereof or other entity.
“
Piggyback Notice ” shall have the meaning set forth in
Section 4(a) hereof.
“
Piggyback Registration ” shall mean a registration
pursuant to Section 4 hereof.
“
Prospectus ” shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of
any portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and supplements
to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
“
Register ,” “ Registered ,” and
“ Registration ” refer to a registration
effected by preparing and filing a registration statement on Form
S-1, S-2 or S-3 (or any similar or successor form) in compliance
with the Securities Act and the applicable rules and regulations
thereunder (a “registration statement”), and the
declaration or ordering of the effectiveness of such registration
statement.
“
Registrable Securities ” shall mean all shares of
Common Stock held or issuable, from time to time, to the Holders
and any securities of the Issuer which may be issued or distributed
with respect to, or in exchange or substitution for, or conversion
of, such Common Stock and such other securities pursuant to a stock
dividend, stock split or other distribution, merger, consolidation,
recapitalization or reclassification or otherwise; provided,
however , that any Registrable Securities shall cease to be
Registrable Securities when (i) a Registration Statement with
respect to the sale of such Registrable Securities has been
declared effective under the Securities Act and such Registrable
Securities have been disposed of in accordance with the plan of
distribution set forth in such Registration Statement, and (ii)
such Registrable Securities are distributed by a Holder to the
public pursuant to Rule 144 (or any similar provision then in
force) under the Securities Act; and provided, further ,
that any securities that have ceased to be Registrable Securities
cannot thereafter become Registrable Securities and any security
that is issued or distributed in respect of securities that have
ceased to be Registrable Securities is not a Registrable
Security.
“
Registration ” shall mean a Demand Registration or a
Piggyback Registration.
“
Registration Expenses ” shall have the meaning set
forth in Section 7 hereof.
“
Registration Statement ” shall mean any registration
statement of the Issuer which covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including
the Prospectus, amendments and supplements to such Registration
Statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such Registration
Statement.
“ SEC
” shall mean the Securities and Exchange
Commission.
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“
Securities Act ” shall mean the Securities Act of
1933, as amended.
“
Stockholders ” shall mean the parties listed on
Exhibit A to this Agreement, as amended from time to time in
accordance with the terms hereof.
“
Stockholders Agreement ” shall have the meaning set
forth in the Recitals hereto.
“
Transfer ” shall have the meaning set forth in the
Stockholders Agreement.
“
Trimaran Holders ” shall mean all Holders that
are Affiliates of Trimaran Capital Partners (“
Trimaran ”), including without limitation TTI
Securities Acquisition, LLC.
“
Underwritten Registration ” or “ Underwritten
Offering ” shall mean a sale of securities of the Issuer
to an underwriter for reoffering to the public.
2.
Securities Subject to this Agreement .
(a)
Registrable Securities . The securities entitled to
the benefits of this Agreement are the Registrable Securities.
(b)
Holders of Registrable Securities . A Person is deemed
to be a Holder of Registrable Securities whenever such Person owns
Registrable Securities or has the right to acquire such Registrable
Securities, whether or not such acquisition has actually been
affected and disregarding any legal restrictions upon the exercise
of such right, and such Person has agreed in writing to be bound by
the provisions of this Agreement.
3.
Demand Registration .
(a)
Subject to the provisions of the Stockholders Agreement and this
Section 3, KKR Holders which, individually or in the
aggregate, at the time of the request provided for below, hold at
least 10% of the Issuer’s issued and outstanding Common
Stock, may, at any time and from time to time, make a written
request to the Issuer for registration, on the appropriate
registration form, as provide by Section 3(d) below, under and
in accordance with the provisions of the Securities Act, of all or
part of the Registrable Securities then held by such KKR
Holders. Subject to the provisions of the Stockholders
Agreement and this Section 3, upon the earlier to occur of (i)
the closing of the Issuer IPO, and (ii) the fifth anniversary of
the Closing Date, Trimaran Holders, which, individually or in the
aggregate, at the time of the request provided for below, hold at
least 10% of the Issuer’s issued and outstanding Common
Stock, may, at any time and from time to time, make a written
request to the Issuer for registration on the appropriate
registration form, as provide by Section 3(d) below, under and
in accordance with the provisions of the Securities Act, of all or
part of the Registrable Securities then held by such Trimaran
Holders.
(b)
Promptly upon receipt of any such request contemplated by this
Section 3(a) (but in no event more than five business days
thereafter), the Issuer will serve written notice (the “
Demand Notice ”) of such registration request to all
Holders (including Minority Stockholders and Management Holders
deemed Holders pursuant to Section 11 hereof), and the Issuer
will include in such registration all Registrable Securities of any
such Holder with respect
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to which the Issuer has
received written requests for inclusion therein within 10 days
after the Demand Notice has been given to the applicable
Holders. All requests made pursuant to this Section 3
will specify the aggregate amount of Registrable Securities to be
registered and will also specify the intended methods of
disposition thereof.
(c)
Issuer’s Right to Defer Registration . If the
Issuer is requested to effect a Demand Registration and the Issuer
furnishes to the Stockholders requesting such registration a copy
of a resolution of the Board certified by the secretary of the
Issuer stating that in the good faith judgment of the Board it
would be adverse to the Issuer and its securityholders for such
registration statement to be filed on or before the date such
filing would otherwise be required hereunder, the Issuer shall have
the right to defer such filing for a period of not more than 90
days after receipt of the request for such registration from such
Stockholders, provided, however, that the Issuer shall not utilize
this right more than once in any twelve month period.
(d)
Registration Statement Form . Registrations under this
Section 3 shall be on such appropriate registration form of
the SEC (i) as shall be selected by the Issuer and as shall be
reasonably acceptable to the Stockholders exercising their demand
registration rights hereunder and (ii) as shall permit the
disposition of such Registrable Securities in accordance with the
intended method or methods of disposition specified in the
Stockholders’ request for such registration. If, in
connection with any registration under this Section 3 which is
proposed by the Issuer to be on Form S-3 or any successor form to
such Form, the managing underwriter, if any, shall advise the
Issuer in writing that in its opinion the use of another permitted
form is of material importance to the success of the offering, then
such registration shall be on such other permitted form.
(e)
Expenses . The Issuer shall pay all Registration
Expenses in connection with each registration of Registrable
Securities requested pursuant to this Section 3.
(f)
Priority on Demand Registrations . If the managing
underwriter or agent of a Demand Registration advises the Issuer in
writing that in its opinion the number of securities requested to
be included in such Demand Registration exceeds the number which
can be sold in the offering covered by such Demand Registration
without a significant adverse effect on the price, timing or
distribution of the securities offered, the Issuer will include in
such registration only the number of securities that, in the
opinion of such underwriter or agent, can be sold without a
significant adverse effect on the price, timing or distribution of
the securities offered, selected pro rata among the Holders which
have requested to be included in such Demand Registration based
upon the relative proportionate total holdings of Registrable
Securities to the extent necessary to reduce the total amount of
securities to be included in such offering to the amount
recommended by such underwriters or agent. In such event, the
right of any Holder to include his or her Registrable Securities in
such registration shall be conditioned upon such Holder’s
participation in such underwriting and the inclusion of such
Holder’s Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriters
selected for such underwriting. Notwithstanding the
foregoing, with respect to the underwriting agreement or any other
documents reasonably required under such agreement, (i) no Holder
shall be required to make any representation or
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warranty with respect to or on behalf of the
Issuer or any other stockholder of the Issuer, and (ii) the
liability of any Holder shall be limited as provided in
Section 8(b) hereof.
The Issuer and
other holders of securities of the Issuer may include such
securities in such Registration if, but only if, such underwriter
or agent concludes that such inclusion will not interfere with the
successful marketing of all the Registrable Securities requested to
be included in such registration.
(g)
Selection of Underwriters . If any distribution
pursuant to a Demand Registration involves an Underwritten
Offering, the Holder holding the most Registrable Securities
included in such Demand Registration (including Registrable
Securities of its Affiliates included in such Demand Registration)
shall have the right to select the managing underwriter or
underwriters to administer the underwritten offering, which
managing underwriters shall be a firm of nationally recognized
standing and shall be reasonably satisfactory to the Issuer.
4.
Piggyback Registrations .
(a)
Participation . Subject to Sections 4(b) hereof, if at
any time after the date hereof the Issuer files a Registration
Statement (other than a registration on Form S-4 or S-8 or any
successor form to such Forms or any registration of securities as
it relates to an offering and sale to employees or management of
the Issuer pursuant to any employee stock plan or other employee
benefit plan arrangement) with respect to an offering that includes
any shares of Common Stock (other than pursuant to Section 3
hereof), then the Issuer shall give prompt notice (the “
Piggyback Notice ”) to the Holders (including the
Minority Stockholders and the Management Stockholders as provided
by Section 11) and such Holders shall be entitled to include
in such Registration Statement the Registrable Securities held by
them. The Piggyback Notice shall offer the Holders the
opportunity to register such number of shares of Registrable
Securities as each Holder may request and shall set forth (i) the
anticipated filing date of such Registration Statement and (ii) the
number of shares of Common Stock that is proposed to be included in
such Registration Statement. The Issuer shall include in such
Registration Statement such shares of Registrable Securities for
which it has received written requests to register such shares
within 7 days after the Piggyback Notice has been given.
(b)
Underwriter’s Cutback . Notwithstanding the
foregoing, if a Registration pursuant to this Section 4
involves an Underwritten Offering and the managing underwriter or
underwriters of such proposed Underwritten Offering delivers an
opinion to the Issuer that the total or kind of securities which
such Holders and any other Persons intend to include in such
offering would be reasonably likely to adversely affect the price,
timing or distribution of the securities offered in such offering,
then the Issuer shall include in such Registration (i) first, 100%
of the securities the Issuer, or the Person initiating such
Registration, proposes to sell, (ii) second, if the Registration is
being initiated by a Person other than the Issuer, 100% of the
securities the Issuer proposes to sell, and (iii) third, to the
extent of the amount of securities which all other Holders have
requested to be included in such Registration, which, in the
opinion of the managing underwriter or underwriters, can be sold
without such adverse effect referred to above, such amount to be
allocated pro rata
among the Holders which have requested to be included in such
Piggyback Registration based upon the relative proportionate total
holdings of
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Registrable Securities. All Holders
proposing to distribute their securities through such underwriting
will enter into an underwriting agreement in customary form with
the managing underwriter or underwriters selected for such
underwriting by the Issuer. Notwithstanding the foregoing,
with respect to the underwriting agreement or any other documents
reasonably required under such agreement, (i) no Holder shall be
required to make any representation or warranty with respect to or
on behalf of the Issuer or any other stockholder of the Issuer, and
(ii) the liability of any Holder shall be limited as provided in
Section 8(b) hereof. If any Holder disapproves of the
terms of such underwriting, such Holder may elect to withdraw
therefrom by written notice to the Issuer and the
underwriter.
(c)
Expenses . The Issuer shall pay all Registration
Expenses in connection with each registration of Registrable
Securities requested pursuant to this Section 4.
(d)
Issuer’s Control . The Issuer may decline to
file a Registration Statement after giving the Piggyback Notice, or
withdraw a Registration Statement after filing and after such
Piggyback Notice, but prior to the effectiveness of the
Registration Statement, provided that the Issuer shall promptly
notify each Holder in writing of any such action and provided
further that the Issuer shall bear all reasonable expenses incurred
by such Holder or otherwise in connection with such withdrawn
Registration Statement.
5.
Lock-Up Agreement .
(a)
Restrictions on Public Sale by Holders of Registrable
Securities . Provided that all parties (other than the
Issuer) hereto are treated equally and all executive officers and
directors of the Issuer are also so bound, each Holder agrees that,
if so requested by the Board or any managing underwriter in respect
of an Underwritten Offering of the Issuer’s securities, such
Holder will not sell, make any short sale of, loan, grant any
option for the purchase of, hypothecate, hedge or otherwise
transfer or dispose of (other than to donees who agree to be
similarly bound) any of the Issuer’s securities, including
without limitation shares of Common Stock, options or warrants
exercisable for shares of the Issuer’s securities, or any
other security convertible into or exchangeable for shares of the
Issuer’s securities (other than as part of such underwritten
public offering), (i) during a period not to exceed 180 days
following the effective date of the initial registration statement
of the Issuer filed under the Securities Act (or such shorter
period as the Issuer or managing underwriter may authorize) and
(ii) during a period not to exceed 90 days following the effective
date of a registration statement other than the initial
registration statement (or such shorter period as the Issuer or
managing underwriter may authorize) (each, a “ Stand-Off
Period ”). Each Holder agrees to execute and
deliver a lock up agreement as may be reasonably requested by the
Issuer and/or managing underwriter consistent with the foregoing
obligations. In order to enforce the foregoing covenant, the
Issuer may impose stock transfer restrictions with respect to the
securities (including any Registrable Shares) of each Holder until
the end of the applicable Stand-Off Period.
Notwithstanding
the foregoing, the obligations described in this Section 5(a)
shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be
promulgated in the future, or a registration relating solely to an
SEC Rule 145 transaction on Form S-4 or similar forms which may be
promulgated in the future
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(b)
No Inconsistent Agreements . The Issuer will not enter
into any agreement with respect to its securities which is
inconsistent with the rights granted to the Holders by this
Agreement.
6.
Registration Procedures .
In connection with
the Issuer’s Registration obligations pursuant to Sections 3
and 4 hereof, the Issuer will use its reasonable best efforts to
effect such Registration to permit the sale of such Registrable
Securities in accordance with the intended method or methods of
distribution thereof, and pursuant thereto the Issuer will as
expeditiously as possible:
a.
prepare and file with the SEC a Registration Statement or
Registration Statements relating to the applicable Demand
Registration or Piggyback Registration including all exhibits and
financial statements required by the SEC to be filed therewith, and
use its best efforts to cause such Registration Statement to become
effective; provided , that the Issuer will furnish copies of
any amendments or supplements in the form filed with respect to any
Piggyback Registration, simultaneously with the filing of such
amendments or supplements;
b.
prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective for a period of not less
than 180 days (or such shorter period which will terminate when all
Registrable Securities covered by such Registration Statement have
been sold or withdrawn), or, if such Registration Statement relates
to an Underwritten Offering, such longer period as in the opinion
of counsel for the underwriters a Prospectus is required by law to
be delivered in connection with sales of Registrable Securities by
an underwriter or dealer; cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act; and comply
with the provisions of the Securities Act, the Exchange Act, and
the rules and regulations promulgated thereunder 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
Prospectus;
c.
notify the selling Holders and the managing underwriters, if any,
and (if requested) confirm such advice in writing, as soon as
practicable after notice thereof is received by the Issuer (i) when
the Registration Statement or any amendment thereto has been filed
or becomes effective, the Prospectus or any amendment or supplement
to the Prospectus has been filed, and, to furnish such selling
Holders and managing underwriters with copies thereof, (ii) of any
request by the SEC for amendments or supplements to the
Registration Statement or the Prospectus or for additional
information, (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or any
order preventing or suspending the use of any preliminary
Prospectus or Prospectus or the initiation or threatening of any
proceedings for such purposes, (iv) if at any time the
representations and warranties of the Issuer contemplated by
paragraph (m) below cease to be true and correct and (v) of the
receipt by the Issuer of
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any
notification with respect to the suspension of the qualification of
the Registrable Securities for offering or sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose;
d.
promptly notify the selling Holders and the managing underwriters,
if any, at any time prior to nine months after the time of issue of
the Prospectus, when the Issuer becomes aware of the happening of
any event as a result of which the Prospectus included in such
Registration Statement (as then in effect) contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein (in the case of the
Prospectus and any preliminary Prospectus, in light of the
circumstances under which they were made) when such Prospectus was
delivered not misleading or, if for any other reason it shall be
necessary during such time period to amend or supplement the
Prospectus in order to comply with the Securities Act and, in
either case as promptly as practicable thereafter, prepare and file
with the SEC, and furnish without charge to the selling Holders and
the managing underwriters, if any, a supplement or amendment to
such Prospectus which will correct such statement or omission or
effect such compliance;
e.
make every reasonable effort to obtain the withdrawal of any stop
order or other order suspending the use of any preliminary
Prospectus or Prospectus or suspending any qualification of the
Registrable Securities;
f.
if requested by the managing underwriter or underwriters or a
Holder of Registrable Securities being sold in connection with an
Underwritten Offering, promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the
managing underwriters and the Holders of a majority of the
Registrable Securities being sold agree should be included therein
relating to the plan of distribution with respect to such
Registrable Securities, including, without limitation, information
with respect to the num
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