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EX-4.2 AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

Registration Rights Agreement

EX-4.2 AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

 

 | Document Parties: ACCURIDE CORP | Andrew Weller |  Transportation Technologies Industries, Inc | Amber Acquisition Corp., You are currently viewing:
This Registration Rights Agreement involves

ACCURIDE CORP | Andrew Weller | Transportation Technologies Industries, Inc | Amber Acquisition Corp.,

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Title: EX-4.2 AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Governing Law: New York     Date: 2/4/2005
Law Firm: Latham & Watkins LLP    

EX-4.2 AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

 

, Parties: accuride corp , andrew weller ,  transportation technologies industries  inc , amber acquisition corp.
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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


 
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