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