Exhibit 4.1
EXECUTION
THE SECURITIES REPRESENTED BY THIS
INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAW OF ANY STATE AND
MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT
WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER
SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.
ACCURIDE
CORPORATION
STOCK PURCHASE
WARRANT
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Date of Issuance: February 4,
2009
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Certificate No. W-1
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FOR VALUE RECEIVED, Accuride
Corporation, a Delaware corporation (the “ Company
”), hereby grants to Sun Accuride Debt Investments, LLC or
its registered assigns (the “ Registered Holder
”) the right to purchase from the Company a number of shares
of Common Stock (the “ Warrant Shares ”) as set
forth in Section 1(a) below. Certain
capitalized terms used herein are defined in Section 7
hereof. The amount and kind of securities obtainable pursuant
to the rights granted hereunder and the purchase price for such
securities are subject to adjustment pursuant to the provisions
contained in this Warrant.
This Warrant is subject to the
following provisions:
1.
Exercise of Warrant
.
(a)
Warrant Shares
.
(i)
Until the date
following the date on which Sun Accuride Debt Investments, LLC and
its affiliates (collectively, the “ Investor Parties
”) cease to hold at least 10% of the Company’s
outstanding Common Stock (including for this purpose shares of
Common Stock issuable upon exercise of this Warrant and any other
warrants, options or similar rights held by the Investor Parties,
but excluding, for avoidance of doubt, any other warrants, options
or similar rights held by any other Persons) (such date, the
“ Fixed Calculation Date ”), the number of
shares issuable upon exercise of this Warrant shall be equal to
(i) 25% of the Company’s outstanding Common Stock on a
fully diluted basis (including, for the avoidance of doubt, shares
of Common Stock
issuable upon the
exercise of this Warrant and any other Dilutive Rights held by the
Registered Holder) at the date of any exercise of this Warrant,
less (ii) the total number of shares of the Company’s
Common Stock previously issued in connection with all prior partial
exercises of this Warrant, subject to appropriate adjustment to
reflect any stock split, stock dividend, reverse stock split or
other corporate action that resulted in an increase or decrease in
the number of such shares previously issued in connection with
prior partial exercises of this Warrant, less (iii) the total
number of shares of the Company’s Common Stock in respect of
which the Company made an Excess Warrant Share Payment (as defined
in Section 1(c)(ix) ) in lieu of an issuance of Common
Stock in connection with any prior partial exercise, subject to
appropriate adjustment to reflect any stock split, stock dividend,
reverse stock split or other corporate action that resulted in an
increase or decrease in the number of such shares in respect of
which the Company made an Excess Warrant Share Payment. For
the avoidance of doubt, it is the Registered Holder and the
Company’s intent that if, prior to the Fixed Calculation
Date, this Warrant is fully exercised such that no additional
Warrant Shares are issuable hereunder (such date, the “
Final Exercise Date ”), the sum of (a) the
Warrant Shares received by the Registered Holder upon such final
exercise, (b) the total number of shares of the
Company’s Common Stock previously issued in connection with
all prior partial exercises of this Warrant, subject to appropriate
adjustment to reflect any stock split, stock dividend, reverse
stock split or other corporate action that resulted in an increase
or decrease in the number of such shares previously issued in
connection with prior partial exercises of this Warrant, and
(c) the number of shares of the Company’s Common Stock
in respect of which the Company made Excess Warrant Share Payments,
subject to appropriate adjustment to reflect any stock split, stock
dividend, reverse stock split or other corporate action that
resulted in an increase or decrease in the number of such shares in
respect of which the Company made Excess Warrant Share Payments
(such sum, the “ Deemed Issued Amount ”) shall
be equal to 25% of the Company’s outstanding Common Stock on
a fully diluted basis (including, for the avoidance of doubt,
shares of Common Stock issuable upon the exercise of this Warrant
and any other Dilutive Rights held by the Registered Holder) (i.e.,
on the Final Exercise Date and after giving effect to the issuance
of Warrant Shares at the Final Exercise Date, if the Registered
Holder continued to hold all the Warrant Shares it received upon
prior partial exercises and did not receive any Excess Warrant
Share Payment, the Warrant Shares owned by the Registered Holder
shall represent 25% of the Company’s outstanding Common Stock
on a fully diluted basis (including, for the avoidance of doubt,
shares of Common Stock issuable upon the exercise of this Warrant
and any other Dilutive Rights held by the Registered Holder).
It is understood and agreed that, in order for the Registered
Holder to receive the full benefit of this Warrant, the number of
Warrant Shares actually issued to the Registered Holder may
ultimately be in excess of 25% of the Company’s
outstanding Common Stock, on a fully diluted basis, as of the date
of this Warrant.
(ii)
On and following
the Fixed Calculation Date, the number of shares issuable upon
exercise of this Warrant shall be equal to (i) 25% of the
Company’s outstanding Common Stock on a fully diluted basis
(including, for the avoidance of doubt, shares of Common Stock
issuable upon the exercise of this Warrant and any other Dilutive
Rights held by the Registered Holder) on the Fixed Calculation
Date, less (ii) the total number of shares of the
Company’s Common Stock previously issued in
connection
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with all prior
partial exercises of this Warrant, subject to appropriate
adjustment to reflect any stock split, stock dividend, reverse
stock split or other corporate action that resulted in an increase
or decrease in the number of such shares previously issued in
connection with prior partial exercises of this Warrant, less
(iii) the total number of shares of the Company’s Common
Stock in respect of which the Company made an Excess Warrant Share
Payment (as defined in Section 1(c)(ix) ) in lieu of an
issuance of Common Stock in connection with any prior partial
exercise, subject to appropriate adjustment to reflect any stock
split, stock dividend, reverse stock split or other corporate
action that resulted in an increase or decrease in the number of
such shares in respect of which the Company made an Excess Warrant
Share Payment.
(iii)
Exhibit I
provides examples
of how the number of Warrant Shares shall be calculated pursuant to
Sections 1(a)(i) and 1(a)(ii)
above.
(b)
Exercise Period
. The Registered Holder may
exercise, in whole or in part (but not as to a fractional share of
Common Stock), the purchase rights represented by this Warrant at
any time and from time to time after the Date of Issuance to and
including February 4, 2019 (the “ Exercise Period
”). The Company shall give the Registered Holder
written notice of the expiration of the Exercise Period at least 30
days but not more than 90 days prior to the end of the Exercise
Period.
(c)
Exercise Procedure
.
(i)
This Warrant
shall be deemed to have been exercised when the Company has
received all of the following items (the “ Exercise
Time ”):
(A)
a completed
Exercise Agreement, as described in Section 1(c)
below, executed by the Registered Holder;
(B)
this
Warrant;
(C)
if this Warrant
is not registered in the name of the Registered Holder, an
Assignment or Assignments in the form set forth in
Exhibit III hereto evidencing the assignment of this
Warrant to the Registered Holder; and
(D)
either (1) a
check payable to the Company in an amount equal to the product of a
price per share of $0.01 (such price per share, as adjusted from
time to time in accordance with the provisions of this Warrant, the
“ Exercise Price ”) multiplied by the number of
Warrant Shares being purchased upon such exercise (the “
Aggregate Exercise Price ”), (2) the surrender to
the Company of debt or equity securities of the Company or any of
its wholly owned Subsidiaries having a Market Price equal to the
Aggregate Exercise Price of the Warrant Shares being purchased upon
such exercise (provided that for purposes of this subsection, the
Market Price of any note or other debt security or any preferred
stock shall be deemed to be equal to the aggregate outstanding
principal amount or liquidation value thereof plus all accrued and
unpaid
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interest thereon
or accrued or declared and unpaid dividends thereon) or (3) a
written notice to the Company that the Purchaser is exercising the
Warrant (or a portion thereof) by authorizing the Company to
withhold from issuance a number of Warrant Shares which when
multiplied by the Market Price of the Common Stock is equal to the
Aggregate Exercise Price (and such withheld shares shall no longer
be issuable under this Warrant).
(ii)
Certificates for
Warrant Shares shall be delivered by the Company to the Registered
Holder within five (5) business days after the date of the
Exercise Time. Unless this Warrant has expired or all of the
purchase rights represented hereby have been exercised, the Company
shall prepare a new Warrant, substantially identical hereto,
representing the rights formerly represented by this Warrant which
have not expired or been exercised and shall, within such five-day
period, deliver such new Warrant to the Person designated for
delivery in the Exercise Agreement.
(iii)
The Common Stock
issuable upon the exercise of this Warrant shall be deemed to have
been issued to the Registered Holder at the Exercise Time, and the
Registered Holder shall be deemed for all purposes to have become
the record holder of such Common Stock at the Exercise
Time.
(iv)
The issuance of
certificates for Warrant Shares shall be made without charge to the
Registered Holder for any issuance tax in respect thereof or other
cost incurred by the Company in connection with such exercise and
the related issuance of Warrant Shares. Each share of Common
Stock issuable upon exercise of this Warrant shall, upon payment of
the Exercise Price therefor, be fully paid and nonassessable and
free from all liens and charges with respect to the issuance
thereof.
(v)
The Company shall
not close its books against the transfer of this Warrant or of any
Warrant Shares in any manner which interferes with the timely
exercise of this Warrant.
(vi)
The Company shall
assist and cooperate with any Registered Holder required to make
any governmental filings or obtain any governmental approvals prior
to or in connection with any exercise of this Warrant (including,
without limitation, making any filings required to be made by the
Company).
(vii)
Notwithstanding
any other provision hereof, if an exercise of any portion of this
Warrant is to be made in connection with a registered public
offering or the sale of the Company, the exercise of any portion of
this Warrant may, at the election of the holder hereof, be
conditioned upon the consummation of the public offering or sale of
the Company in which case such exercise shall not be deemed to be
effective until immediately prior to the consummation of such
transaction.
(viii)
The Company shall
at all times reserve and keep available out of its authorized but
unissued shares of Common Stock solely for the purpose of issuance
upon the exercise of the Warrant, such number of shares of Common
Stock equal to the
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number of Warrant
Shares. All Warrant Shares shall, when issued, be duly and
validly issued, fully paid and nonassessable and free from all
taxes, liens and charges. The Company shall take all such
actions as may be necessary to assure that all Warrant Shares may
be so issued without violation of any applicable law or
governmental regulation or, except as set forth below in
Section 1(c)(ix) , any requirements of any United
States national securities exchange upon which shares of Common
Stock may be listed (except for official notice of issuance which
shall be immediately delivered by the Company upon each such
issuance). The Company shall from time to time take all such
action as may be necessary to assure that the par value of the
unissued Warrant Shares is at all times equal to or less than the
Exercise Price. The Company shall not take any action which
would cause the number of authorized but unissued shares of Common
Stock to be less than the number of Warrant Shares.
(ix)
If the Company
decides to list any class of its capital stock on any United States
national securities exchange, it shall list such stock on an
exchange whose rules and regulations will not require the
affirmative vote of the stockholders of the Company in connection
with the issuance of the Warrant Shares pursuant to any full
exercise of this Warrant, unless such affirmative vote is obtained
prior to the listing of such stock on such exchange. If, and
only if, no United States national securities exchange meets the
foregoing requirement, the Company may list its capital stock on a
national securities exchange whose rules and regulations
require obtaining the affirmative vote of the stockholders of the
Company in connection with the issuance of the Warrant Shares
pursuant to any full exercise of this Warrant, provided ,
that prior to such listing, the Company shall provide the
Registered Holder with forty-five (45) days’ advance
notice. If, after complying with the foregoing, the
applicable rules and regulations of any United States national
securities exchange upon which any class of capital stock of the
Company is, or shall be, listed at the time of any exercise of this
Warrant would require obtaining the affirmative vote of the
stockholders of the Company in connection with the issuance of the
Warrant Shares, then (i) the Company shall promptly (and
without delay) use its best efforts to obtain stockholder approval
to allow for the issuance of the Warrant Shares which have not
previously been issued in connection with a prior partial exercise
of this Warrant (such approval, the “ Warrant Approval
”), and (ii) if, prior to any partial or full exercise
of this Warrant the Warrant Approval has not been received, the
Company shall issue such maximum number of Warrant Shares as it may
issue without seeking such stockholder approval but shall not issue
the number of Warrant Shares in excess of such maximum amount (such
excess, the “ Excess Warrant Shares ”) and the
Company shall pay in cash to the Registered Holder within five
(5) business days of the date of such exercise a sum equal to
the product of (i) the Market Price per share of Common Stock
of the Company on the date on which the Registered Holder notified
the Company of its election to make such exercise less the Exercise
Price per Warrant Share, times (ii) the number of Excess
Warrant Shares (such payment, the “ Excess Warrant Share
Payment ”). In the event that at any time any
further action is necessary or desirable to
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