Exhibit 10.1
STOCKHOLDERS' AGREEMENT
This Stockholders' Agreement (this "Agreement") is entered into as of
January 21, 1998 by and among Accuride Corporation, a Delaware corporation, (the
"Company"), Xxxxxx Dodge Corporation, a New York corporation ("Xxxxxx Dodge")
and Hubcap Acquisition L.L.C., a Delaware limited liability company (the
"Hubcap").
RECITALS
Pursuant to a Stock Subscription and Redemption Agreement, dated as of
November 17, 1997, among the Company, Xxxxxx Dodge and Hubcap (the "Subscription
Agreement"), upon the satisfaction of certain conditions in the Subscription
Agreement, (a) Hubcap has subscribed for and purchased from the Company, and the
Company has issued and sold to Hubcap ninety (90) shares of Common Stock and (b)
the Company has purchased from Xxxxxx Dodge ninety (90) shares of Common Stock,
immediately after which Xxxxxx Dodge owns ten (10) shares of Common Stock (the
"Retained Shares").
AGREEMENT
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
AFFILIATE: When used with respect to a specified Person, another
Person that, either directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Person
specified.
BOARD: The Board of Directors of the Company.
CLOSING DATE: The date hereof.
COMMON STOCK: The Common Stock, par value $0.01 per share, of the
Company.
Common Stock Outstanding: The aggregate number of shares of Common
Stock from time to time outstanding and all such shares issuable (i) upon
conversion of all indebtedness or shares of stock convertible into or
exchangeable for Common Stock from time to time outstanding, and (ii) upon the
exercise of all outstanding rights, warrants or options to subscribe for or
purchase Common Stock or any securities set forth in subsection (i) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended from
time to time.
EXEMPT TRANSACTION: See Section 3(f) hereof.
INITIAL PUBLIC OFFERING: The first Underwritten Offering of Common
Stock.
KKR AFFILIATE: With respect to a KKR Investor shall mean a Person that
directly or indirectly through one or more intermediaries controls, is
controlled by or is under common control with the KKR Investor; PROVIDED,
HOWEVER, that KKR Affiliate shall not in any event include any limited partner
of a KKR Investor or any limited partner of a member or a general partner of a
KKR Investor.
KKR HOLDER: The KKR Investor and any Person to whom a KKR Holder
transfers shares of Common Stock which Person is required by this Agreement to
be bound by the provisions of this Agreement.
KKR Investor: Hubcap.
KKR SHARES: As of any date of determination, the shares of Common
Stock then held by the KKR Holders.
NASD: National Association of Securities Dealers, Inc.
PERSON: 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.
XXXXXX HOLDER: Xxxxxx Dodge and any Person to whom Xxxxxx Dodge
transfers shares of Common Stock which Person is required by this Agreement to
be bound by the provisions of this Agreement.
XXXXXX SHARES: As of any date of determination, the shares of Common
Stock then held by the Xxxxxx Holder.
PIGGYBACK NOTICE: See Section 5(a) hereof.
PIGGYBACK REGISTRATION: A registration pursuant to Section 5 hereof.
PROSPECTUS: The prospectus included in any Registration Statement, as
amended or supplemented by any prospectus supplement, including post-effective
amendments and all material incorporated by reference in such prospectus.
REGISTRABLE SECURITIES: All Retained Shares and any other securities
of the Company which may be issued or distributed with respect to, or in
exchange or substitution for, or conversion of, such Retained Shares and such
other securities pursuant to a stock split, stock dividends, or other
distribution, merger, consolidation, reclassification or recapitalization 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
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have been disposed of in accordance with the plan of distribution set forth in
such Registration Statement, (ii) such Registrable Securities are distributed
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act, (iii) such Registrable Securities shall have been otherwise
transferred to a Person other than a KKR Investor and new certificates for them
not bearing a legend restricting further transfer under the Securities Act shall
have been delivered by the Company or (iv) held by a Xxxxxx Holder which is
permitted to dispose of such Registrable Securities pursuant to Rule 144(k) of
the Securities Act and such Xxxxxx Holder and its Affiliates own in the
aggregate less than 1% of Common Stock on a fully diluted basis; 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: A Piggyback Registration.
REGULATION D: The rules and regulations promulgated under the
Securities Act and commonly known as Regulation D.
REGISTRATION STATEMENT: Any registration statement of the Company
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: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended from time to
time.
TRANSFER: See Section 2(b).
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A sale of Common
Stock to an underwriter for reoffering to the public pursuant to an effective
registration statement under the Securities Act.
Capitalized terms used herein and not defined herein shall have the
meaning assigned to them in the Subscription Agreement.
2. RESTRICTIONS ON TRANSFER; RIGHT OF FIRST REFUSAL.
(a) Except for transfers to a Proposed Purchaser pursuant to Section
3 or 4 hereof, and transfers pursuant to an effective registration statement
under the Securities Act, each Xxxxxx Holder agrees not to Transfer any Xxxxxx
Shares unless the transferee executes an agreement in form reasonably
satisfactory to the KKR Investor providing that such transferee shall comply
fully with the terms of this Agreement. No Transfer of Xxxxxx Shares shall be
made unless the certificate (or certificates) representing shares of Xxxxxx
Shares to be issued in such transfer shall bear the legend set forth below,
except for transfers pursuant to an effective registration statement:
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THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS SUCH
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION
COMPLIES WITH THE PROVISIONS OF THE STOCKHOLDERS' AGREEMENT DATED AS OF
JANUARY 21, 1998 AMONG ACCURIDE CORPORATION (THE "COMPANY") , THE HOLDER
NAMED ON THE FACE HEREOF, HUBCAP ACQUISITION LLC AND OTHERS (A COPY OF
WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY). EXCEPT AS OTHERWISE
PROVIDED IN SUCH AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE SHARES REPRESENTED BY THIS
CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR (B) IF (I) THE COMPANY HAS BEEN FURNISHED WITH A SATISFACTORY
OPINION OF COUNSEL FOR THE HOLDER THAT SUCH TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT OR THE RULES AND REGULATIONS IN EFFECT
THEREUNDER, AND IN COMPLIANCE WITH APPLICABLE PROVISIONS OF STATE
SECURITIES LAWS, AND (II) IF THE HOLDER IS A CITIZEN OR RESIDENT OF ANY
COUNTRY OTHER THAN THE UNITED STATES, OR THE HOLDER DESIRES TO EFFECT ANY
SUCH TRANSACTION IN ANY SUCH COUNTRY, THE COMPANY HAS BEEN FURNISHED WITH A
SATISFACTORY OPINION OR OTHER ADVICE OF COUNSEL FOR THE HOLDER THAT SUCH
TRANSACTION WILL NOT VIOLATE THE LAWS OF SUCH COUNTRY."
(b) Each Xxxxxx Holder agrees that it will not, directly or
indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise
dispose of any shares of any Xxxxxx Shares (any such act, except if effected
pursuant to Section 3 or 4 hereof, sometimes referred to herein as a "Transfer,"
whether voluntary or involuntary) unless such Transfer is in compliance with the
terms and conditions of this Agreement and (i) the Transfer is pursuant to an
effective registration statement under the Securities Act or (ii) (A) counsel
for such Xxxxxx Holder shall have furnished the Company with an opinion,
reasonably satisfactory in form and substance to the Company, that no such
registration is required because of the availability of an exemption from
registration under the Securities Act and (B) if such Xxxxxx Holder is a citizen
or resident of any country other than the United States, or such Xxxxxx Holder
desires to effect any Transfer in any such country, counsel for the Xxxxxx
Holder (which counsel shall be reasonably satisfactory to the Company) shall
have furnished the Company with an opinion or other advice satisfactory in form
and substance to the Company to the effect that such Transfer will comply with
the securities laws of such jurisdiction.
(c) Notwithstanding any term of this Agreement to the contrary, and
subject to Sections 2(d) and 2(e), if, at any time prior to an Underwritten
Offering, a Xxxxxx Holder receives a bona fide offer to purchase any or all of
its Xxxxxx Shares (the "Offer") from a third party (the "Offeror") which the
Xxxxxx Holder wishes to accept, the Xxxxxx Holder shall cause the Offer to be
reduced to writing and shall notify the Company in writing of its wish to accept
the
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Offer. The Xxxxxx Holder's notice shall contain an irrevocable offer to sell
such Xxxxxx Shares to the Company (in the manner set forth below) at a purchase
price equal to the price contained in, and on the same terms and conditions of,
the Offer, and shall be accompanied by a true copy of the Offer (which shall
identify the Offeror). At any time within 45 days after the date of the receipt
by the Company of the Xxxxxx Holders' notice, the Company shall have the right
and option to purchase, or to arrange for a third party to purchase, all of the
Xxxxxx Shares covered by the Offer either (i) at the same price and on the same
terms and conditions as the Offer or (ii) if the Offer includes any
consideration other than cash, then at the sole option of the Xxxxxx Holder, at
the equivalent all-cash price, determined in good faith by the Board, by
delivering a certified bank check or checks or wire transfer in the appropriate
amount to the Xxxxxx Holder at the principal office of the Company against
delivery of certificates or other instruments representing Xxxxxx Shares so
purchased, appropriately endorsed by the Xxxxxx Holder. If at the end of such
45-day period, the Company has not tendered the purchase price for such shares
in the manner set forth above, the Xxxxxx Holder may during the succeeding 30-
day period sell not less than all of shares of Common Stock covered by the Offer
to the Offeror at a price and on terms materially no less favorable to the
Xxxxxx Holder than those contained in the Offer. No sale may be made to any
Offeror unless the Offeror agrees in writing with the Company to be bound by the
provisions of this Agreement as if it were a Xxxxxx Holder. Promptly after such
sale, the Xxxxxx Holder shall notify the Company of the consummation thereof and
shall furnish such evidence of the completion and time of completion of such
sale and of the terms thereof as may reasonably be requested by the Company.
If, at the end of the 30-day period following the expiration of the 45-day
period for the Company to purchase Xxxxxx Shares, the Xxxxxx Holder has not
completed the sale of such Xxxxxx Shares as aforesaid, all the restrictions on
sale, transfer or assignment contained in this Section 2(c) shall again be in
effect with respect to such Xxxxxx Shares. The terms of this Section 2(c) shall
not apply to a sale of Xxxxxx Shares by a Xxxxxx Holder under Section 3 or by a
Bring-Along Seller pursuant to Section 4.
(d) Subject to Section 2(e), notwithstanding any other term of this
Section 2,
(i) Any holder of Xxxxxx Shares who is an individual may
Transfer any of his or her Xxxxxx Shares to a member of the immediate family (as
defined in Regulation S-K 404(a) under the Securities Act) of such holder;
provided, however, that no such Transfer shall be effective until such member of
the immediate family has delivered to the Company a written acknowledgment and
agreement in form and substance reasonably satisfactory to the Company that the
Xxxxxx Shares to be received by such member of the Immediate Family are subject
to all the provisions of this Agreement and that such Member of the Immediate
Family is bound hereby and a party hereto as a holder of Xxxxxx Shares.
(ii) Upon the death of any holder of Xxxxxx Shares who is an
individual, the Xxxxxx Shares held by such holder may be distributed by will or
other instrument taking effect at death or by applicable laws of descent and
distribution to such holder's estate, executors, administrators and personal
representatives, and then to such holder's heirs, successors, legatees or
distributees, whether or not such recipients are Members of the Immediate Family
of such holder; PROVIDED, HOWEVER, that no such Transfer shall be effective
until the recipient has delivered to the Company a written acknowledgment and
agreement in form and substance reasonably satisfactory to the Company that the
Xxxxxx Shares to be received by such
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recipient are subject to all the provisions of this Agreement and that such
recipient is bound hereby and a party hereto as a holder of Xxxxxx Shares.
(iii) Any holder of the Xxxxxx Shares who is an individual may
Transfer any or all of the Xxxxxx Shares to a charitable trust; PROVIDED,
HOWEVER, that no such Transfer shall be effective until the trustees of each
trust have delivered to the Company a written acknowledgment and agreement in
form and substance reasonably satisfactory to the Company that the shares of
Common Stock to be received by such trust are subject to all the provisions of
this Agreement and that the trustees and the trust are bound hereby and a party
hereto as a holder of shares of Common Stock.
(iv) Any holder of the Xxxxxx Shares may Transfer any or all
of the Xxxxxx Shares (A) to an Affiliate of such holder or (B) in connection
with a merger, consolidation, business combination or similar transaction
involving such holder; PROVIDED, HOWEVER, that no such Transfer shall be
effective until the transferee has delivered to the Company a written
acknowledgment and agreement in form and substance reasonably satisfactory to
the Company that the shares of Common Stock to be received by such transferee
are subject to all the provisions of this Agreement and that such transferee is
bound hereby and a party hereto as a holder of shares of Common Stock.
(e) FURTHER RESTRICTION ON TRANSFER. Notwithstanding any of the
terms of this Section 2, a Xxxxxx Holder may not Transfer any Xxxxxx Shares to a
Person which is engaged, directly or indirectly, in the manufacture, sale or
distribution, or owns, manages or controls, directly or indirectly, any Person
which engages in the manufacture, sale or distribution, of rims and wheels for
vehicles anywhere; PROVIDED, that the foregoing shall not prohibit a Transfer
that is otherwise permitted by Section 2(d) as long as the transferee disposes
of the Xxxxxx Shares as promptly as practicable but in no event later than 60
days after such Transfer.
3. "TAG-ALONG" RIGHT WITH RESPECT TO SALES BY KKR HOLDERS.
(a) SALES OF COMMON STOCK BY KKR HOLDERS. With respect to any
proposed sale or other disposition for value (collectively, a "Sale") of any
shares of Common Stock by a KKR Holder or KKR Holders (collectively, for
purposes of this Section 3, the "KKR Holder"), to a Person (a "Proposed
Purchaser") during the term of this Agreement, other than pursuant to an Exempt
Transaction, each Xxxxxx Holder shall have the right and option to participate
in such Sale, on the same terms and subject to the same conditions as the Sale
by such KKR Holder of its Common Stock, for up to a number of Xxxxxx Shares
owned by such Xxxxxx Holder equaling the number derived by multiplying the total
number of shares of Common Stock which the KKR Holder proposes to sell (the
"Proposed Number of Shares") by a fraction, the numerator of which is the total
number of Xxxxxx Shares owned by such Xxxxxx Holder and the denominator of which
is the sum of (i) the total number of Xxxxxx Shares owned by such Xxxxxx Holder,
(ii) the total number of KKR Shares, and (iii) the total number of shares of
Common Stock (determined on a fully diluted basis) owned by Persons entitled to
the benefits of any other "tag-along" rights arising as a result of such
transfer.
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(b) NOTICES. The KKR Holder shall notify, or cause to be notified,
the Xxxxxx Holders in writing of each proposed Sale subject to Section 3(a)
above (the "KKR Notice") promptly, but in any event no later than ten (10)
business days prior to the proposed Sale. Such notice shall set forth: (i) the
Proposed Number of Shares, (ii) the name and address of the Proposed Purchaser,
and (iii) the proposed amount of consideration and the material terms and
conditions of the Sale (the "Material Terms") and, if any portion of the
proposed consideration is not cash, the notice shall describe the terms of the
proposed consideration. The tag-along right may be exercised by any Xxxxxx
Holder by delivery of a written notice to the KKR Holder (the "Tag-Along
Notice") within ten (10) business days following receipt of the notice specified
in the preceding sentence. The Tag-Along Notice shall state the amount of
Xxxxxx Shares that such Xxxxxx Holder proposes to include in such Sale to the
Proposed Purchaser. Each accepting Xxxxxx Holder shall (i) prior to closing of
any such transfer, execute any purchase agreement or other documentation
required by the Proposed Purchaser to consummate the transfer, which purchase
agreement and other documentation shall, subject to Section 3(h), be on terms no
less favorable to the Xxxxxx Holder than those executed by the KKR Holder with
respect to their Common Stock, including, without limitation, the Sales price,
the provision of, and representation and warranty as to, information requested
by the KKR Investor or the KKR Holder, and the provision of requisite
indemnifications; PROVIDED, that (w) no Xxxxxx Holder will be required to
provide any information, representations or warranties, or covenants (other than
indemnification permitted by this Section 3) with respect to the Company, its
business or its operations, (x) any indemnification provided by the
Participating Sellers shall be pro rata in proportion with the number of Xxxxxx
Shares to be sold (and on terms no less favorable to the Xxxxxx Holder than the
indemnification provided by the KKR Holder), (y) the Xxxxxx Holder shall not be
required to place any of the consideration in a post-closing escrow if permitted
by the Proposed Purchaser and (z) the KKR Holder and KKR Affiliates shall be
entitled to provide advisory services in connection with any Sale and to receive
compensation therefrom not subject to the terms of this paragraph (b), and (ii)
at the closing of any such Sale, deliver to the Xxxxxx Holder the certificate or
certificates representing Xxxxxx Shares to be sold or otherwise disposed of
pursuant to such Sale by such Xxxxxx Holder, duly endorsed for transfer with
signatures guaranteed, against receipt of the purchase price thereof. If the
Xxxxxx Holder has not provided the Tag Along Notice within the period specified
above or fails to otherwise comply with the terms of this Section 3 shall be
deemed to have waived its rights under this Section 3 with respect to the Sale
to the Proposed Purchaser. A Tag-Along Notice shall be irrevocable unless (A)
there shall be a material adverse change in the Material Terms or (B) otherwise
mutually agreed to in writing by the KKR Holder and such Participating Seller.
Promptly after the receipt of the Tag-Along Notice, the KKR Holder or the KKR
Investor will furnish the Xxxxxx Holder with a copy of the proposed agreement
for the transfer, if any.
(c) NUMBER OF SHARES TO BE SOLD. If a Tag-Along Notice is received
pursuant to Section 3(b), a Xxxxxx Holder shall be permitted to sell to the
Proposed Purchaser up to the maximum number of Xxxxxx Shares determined as set
forth in Section 3(a) above, and the KKR Holder shall be permitted to sell to
the Proposed Purchaser up to a number of shares of Common Stock equal to the
Proposed Number of Shares, less the aggregate number of Xxxxxx Shares of all
Xxxxxx Holders and all other shares of Common Stock being sold to such Proposed
Purchaser in such transaction pursuant to tag-along rights arising as a result
of such transfer. Subject to the
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limitations of this Section 3(c), the KKR Holder shall have the right for a
120-day period following provision of the KKR Notice to sell to the Proposed
Purchaser up to the Proposed Number of shares of Common Stock on terms and
conditions materially no more favorable to the KKR Holder than those stated in
the Tag-Along Notice; provided that the provisions of this Section 3 will apply
to any such sale for so long as any shares of Common Stock are held by a Xxxxxx
Holder.
(d) CUSTODY AGREEMENT AND POWER OF ATTORNEY. Upon delivering a Tag
Along Notice, the Xxxxxx Holder will, if requested by the KKR Holder, execute
and deliver a custody agreement and power of attorney in form and substance
reasonably satisfactory to the KKR Holder (a "Custody Agreement and Power of
Attorney") with respect to Xxxxxx Shares which are to be sold pursuant to
Section 3(b).
(e) OTHER AGREEMENTS. Subject to Section 3(b), each Xxxxxx Holder
agrees that it will execute such other agreements as the KKR Holder or Proposed
Transferee may reasonably request in connection with a Sale pursuant to Section
3(b), the consummation of such Sale and the transactions contemplated thereby.
(f) EXEMPT TRANSACTION DEFINED. As used herein, the term "Exempt
Transaction" shall mean (i) Sales by any KKR Investor to any KKR Affiliates,
(ii) Sales by any KKR Affiliate to another KKR Affiliate or to a KKR Investor,
(iii) Sales by any KKR Investor and its respective KKR Affiliates to its
partners or members in the form of dividends or distributions (whether upon
liquidation or otherwise), and any subsequent Sales by such partners or members,
(iv) Sales by any KKR Holders made in a public distribution pursuant to an
effective registration statement under the Securities Act; or (v) a Sale, when
combined with series of transactions with the same transferee occurring within
12 months of such Sale, represent less than (10%) of the then outstanding shares
of Common Stock, PROVIDED that in the case of clauses (i) and (ii) above the
transferee agrees in writing to be bound by the provisions of this Agreement,
including this paragraph (f); PROVIDED, FURTHER that in the case of clause (iii)
above, if the transferee is an Affiliate of Kohlberg, Kravis, Xxxxxxx & Co.,
such transferee agrees in writing to be bound by the provisions of this
Agreement, including this paragraph (f).
4. "BRING-ALONG" RIGHT WITH RESPECT TO XXXXXX SHARES.
(a) SALES BY KKR HOLDERS. In the event that the KKR Holders
determine, during the term of this Agreement, to effect a Sale of any of the KKR
Shares to a Proposed Purchaser, other than in an Exempt Transaction (a
"Bring-Along Sale"), then upon the request of the KKR Holders, each Xxxxxx
Holder (a "Bring-Along Seller") will sell to such Proposed Purchaser the number
of Xxxxxx Shares equal to the product of (i) the number of Xxxxxx Shares then
held by such Xxxxxx Holder, multiplied by (ii) the ratio of (A) the number of
shares of Common Stock which the KKR Holders propose to sell in the Bring-Along
Sale, divided by (B) the number of shares of Common Stock then held by the KKR
Holders. The terms and conditions of such Sale shall be no less favorable to
the Xxxxxx Holder than those received by the KKR Holders with respect to their
Common Stock, including, without limitation, the sale price, the provision of,
and representation and warranty as to, information requested by the Company or
the KKR Holders, and the provision of requisite indemnifications; PROVIDED, that
(i) no Xxxxxx
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Holder will be required to provide any information, representations or
warranties, or covenants (other than indemnification permitted by this Section
4) with respect to the Company, its business or its operations, (ii) any
indemnification provided by the Bring-Along Sellers shall be pro rata in
proportion with the number of Xxxxxx Shares to be sold (and on terms no less
favorable to the Bring-Along Sellers than the indemnification provided by the
KKR Holders), (iii) the Bring-Along Sellers shall not be required to place any
of the consideration in a post-closing escrow if permitted by the Proposed
Purchaser and (iv) KKR Holders and KKR Affiliates shall be entitled to provide
advisory services in connection with any Sale and to receive compensation
therefrom not subject to the terms of this paragraph (a). Without limiting the
foregoing, upon the request of the KKR Holders made pursuant to this Section
4(a), the Xxxxxx Holder will agree, in connection with the Sale, to, and will,
vote its shares of Common Stock in favor of any Sale and will not exercise any
dissenters' or appraisal rights with respect thereto (so long as the KKR Holders
vote their shares in favor of the Sale and not exercise such rights).
(b) NOTICE. Prior to making any Bring-Along Sale, the KKR Holders
shall, if they determine that Xxxxxx Holders should participate in such Sale,
provide each Xxxxxx Holder with written notice (the "Bring-Along Notice") not
less than 10 business days prior to the proposed date of the Bring-Along Sale
(the "Bring-Along Sale Date"). The Bring-Along Notice shall set forth: (i) the
name and address of the Proposed Purchaser; (ii) the proposed amount and form of
consideration to be paid per share of Common Stock and the material terms and
conditions of the Sale and, if any portion of the proposal consideration is not
cash, the notice shall describe the terms of such consideration; and (iii) the
Bring-Along Sale Date and the date upon which the Xxxxxx Holder shall deliver to
the KKR Holders the certificates representing Xxxxxx Shares, duly endorsed, and
the limited power of attorney referred to below. Each Xxxxxx Holder shall (i)
prior to closing of any such transfer, execute any purchase agreement or other
documentation required by the Proposed Purchaser to consummate the Sale (subject
to paragraph (a) above), which purchase agreement and other documentation shall
be on terms no less favorable to the Xxxxxx Holders than those executed by the
KKR Holders with respect to the Common Stock, and (ii) at the closing of any
such Sale, deliver to the Proposed Purchaser the certificate or certificates
representing Xxxxxx Shares, duly endorsed for transfer with signatures
guaranteed, against receipt of the purchase price thereof.
(c) EFFECT OF BRING-ALONG SALE. If a Xxxxxx Holder receives its
proportionate share of the purchase price from a Bring-Along Sale, but has
failed to deliver certificates representing the number of Xxxxxx Shares held by
it as determined in accordance with this Section 4, it shall for all purposes be
deemed no longer to be a holder of such shares, shall have no voting rights in
respect of such shares, shall not be entitled to any dividends or other
distributions with respect to such shares, and shall have no other rights or
privileges granted to stockholders under law or this Agreement.
5. REGISTRATIONS.
(a) PIGGYBACK REGISTRATION. Subject to Section 6, if at any time
after the Company's Initial Public Offering the Company files a Registration
Statement (other than a registration statement 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 management of the Company
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pursuant to any employee stock plan or other employee benefit plan arrangement)
with respect to an offering that includes any shares of Common Stock, each
Xxxxxx Holder hereby shall have all of the rights and privileges of the
Registration Rights Agreement of even date herewith, among the Company and
Hubcap (the "Registration Rights Agreement") and the Company and each Xxxxxx
Holder agrees to be bound by all of the terms, conditions and obligations of the
Registration Rights Agreement, in each case as if the Xxxxxx Holder were a
"Holder" (as defined in the Registration Rights Agreement) and as if the
Registrable Securities under this Agreement were "Registrable Securities" (as
defined in the Registration Rights Agreement); PROVIDED, HOWEVER, that this
Section 5(a) shall not give the Xxxxxx Holder any rights under Section 3 of the
Registration Rights Agreement to request registration of the Xxxxxx Shares.
Notwithstanding the foregoing, in the event that shares held by the KKR Holders
are registered in the Company's Initial Public Offering, the Xxxxxx Holder shall
have the right to include in the Initial Public Offering that percentage of the
Xxxxxx Shares equal to the percentage of KKR Shares included in the Initial
Public Offering.
(b) DEMAND REGISTRATION. Subject to Section 6 and the provisions of
the Registration Rights Agreement, at any time after the Company's Initial
Public Offering, on no more than one occasion following 180 days after the
Company's Initial Public Offering, Xxxxxx Holders owning a majority of the
Xxxxxx Shares may make a written request to the Company for a "shelf"
registration under and in accordance with the provisions of the Securities Act
of all or part of the Xxxxxx Shares. Promptly upon receipt of any such request
(but in no event more than five business days thereafter), the Company will
serve written notice (the "Demand Notice") of such registration request to all
Xxxxxx Holders, and the Company will include in such registration all
Registrable Securities of any Xxxxxx Holder with respect to which the Company
has received written requests for inclusion therein within 10 days after the
Demand Notice has been given to the applicable Xxxxxx Holders. All requests
made pursuant to this Section 5(b) will specify the aggregate amount of
Registrable Securities to be registered. Upon making a request pursuant to this
Section 5(b), each Xxxxxx Holder hereby shall have all of the rights and
privileges of the Registration Rights Agreement and the Company and each Xxxxxx
Holder agrees to be bound by all of the terms, conditions and obligations of the
Registration Rights Agreement, in each case as if the Xxxxxx Holder were a
"Holder" (as defined in the Registration Rights Agreement) and as if the
Registrable Securities under this Agreement were "Registrable Securities" (as
defined in the Registration Rights Agreement); PROVIDED, HOWEVER, that this
Section 5(b) shall not give the Xxxxxx Holder any rights under, or subject the
Xxxxxx Holder to the limitations contained in, Sections 3(a), 3(f) and 3(g) of
the Registration Rights Agreement.
6. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Person may participate in any Underwritten Registration hereunder
unless such Person (a) agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved by the Persons entitled to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements. Nothing in this
Section 6 shall be construed to create any additional rights regarding the
Registration of shares of Common Stock otherwise than as set forth herein.
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7. FINANCIAL STATEMENTS. During the term of this Agreement, the Company
shall furnish the Xxxxxx Holder with a copy of the Company's financial
statements for each fiscal year ending after the date hereof (which shall be
audited if the Company has prepared audited financial statements) as soon as
practicable following the close of such fiscal year, and in any event within 120
days following the end of such fiscal year.
8. MISCELLANEOUS.
(a) TERMINATION OF AGREEMENT. Section 2 of this Agreement (and
applicable definitions in Section 1) shall terminate upon the Common Stock (or
such other class of common equity securities then held by the Xxxxxx Holder)
being registered under the Exchange Act.
(b) ASSIGNMENT, BINDING EFFECT. This Agreement shall not be
assignable by the parties hereto, except to (i) any Person who, in connection
with a transfer of KKR Shares, is required by this Agreement, in connection with
such transfer, to agree to be bound by the provisions of this Agreement, and
(ii) any Person who in connection with a transfer of Xxxxxx Shares is required
by this Agreement, in connection with such transfer, to agree to be bound by the
provisions of this Agreement. Subject to the foregoing, the provisions of this
Agreement shall be binding upon and accrue to the benefit of the Parties and
their respective heirs, legal representatives, successors and permitted assigns.
(c) AMENDMENTS. The provision of this Agreement, including the
provisions of this sentence, may be amended, modified or supplemented only by a
written instrument executed by holders of (i) at least a majority of the KKR
Shares, and (ii) at least a majority of the issued Xxxxxx Shares.
(d) GOVERNING LAW. The laws of the state of Delaware shall govern
the interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under principles of conflicts of
law. Any suit, action or proceeding by a party hereto with respect to this
Agreement, or any judgment entered by any court in respect of any thereof, may
be brought in any state or federal court of competent jurisdiction in the State
of Delaware, and each party hereto hereby submits to the exclusive jurisdiction
of such courts for the purpose of any such suit, action, proceeding or judgment.
By the execution and delivery of this Agreement, the Company and Hubcap hereby
appoint The Corporation Trust Company, at its office in Wilmington, Delaware,
and Xxxxxx Dodge hereby appoints The Corporation Trust Company, at its office in
New York, New York, in each case as its agent upon which process may be served
in any such suit, action or proceeding. Service of process upon such agent,
together with notice of such service given to a party hereto in the manner
provided in Section 7(f) hereof, shall be deemed in every respect effective
service of process upon it in any suit, action or proceeding. Nothing herein
shall in any way be deemed to limit the ability of a party hereto to serve any
such writs, process or summonses in any other manner permitted by applicable law
or to obtain jurisdiction over any party hereto, in such other jurisdictions and
in such manner, as may be permitted by applicable law. Each party hereto hereby
irrevocably waives any objections which it may now or hereafter have to the
laying of the venue of any suit, action or proceeding arising out of or relating
to this Agreement brought in any state or federal court of competent
jurisdiction in the State of Delaware, and hereby further irrevocably waives
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any claim that any such suit, action or proceeding brought in any such court has
been brought in any inconvenient forum. No suit, action or proceeding against a
party hereto with respect to this Agreement may be brought in any court,
domestic or foreign, or before any similar domestic or foreign authority other
than in a court of competent jurisdiction in the State of Delaware, and each
party hereto hereby irrevocably waives any right which it may otherwise have had
to bring such an action in any other court, domestic or foreign, or before any
similar domestic or foreign authority.
INTERPRETATION. The headings of the sections contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not affect the meaning or interpretation of this
Agreement.
NOTICES. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given if delivered personally or sent by certified mail,
return receipt requested, postage prepaid, to the parties to this Agreement at
the following address or to such other address as either party to this Agreement
shall specify by notice to the other:
(1) If to the KKR Investor or a KKR Holder, to it in care of:
Kohlberg Kravis Xxxxxxx & Co.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Xx.
with a copy to:
Xxxxxx & Xxxxxxx
00 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
(2) If to the Company, to it in care of:
Accuride Corporation
0000 Xxxxx Xxxx
X.X. Xxx 00
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President
with a copy to:
Xxxxxx & Xxxxxxx
00 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
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(3) If to Xxxxxx Dodge or a Xxxxxx Holder, to it in care of:
Xxxxxx Dodge Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
(g) WAIVER AND CONSENT. No action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or agreements
contained herein. The waiver by any party hereto of a breach of any provision
of this Agreement shall not operate or be construed as waiver of any preceding
or succeeding breach and no failure by any party to exercise any right or
privilege hereunder shall be deemed a waiver of such party's rights or
privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder. Each party hereto,
in addition to being entitled to exercise all rights provided herein, in the
charter or granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. Each party hereto
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(h) INSPECTION. Copies of this Agreement will be available for
inspection or copying by any party at the offices of the Company through the
Secretary of the Company.
(i) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to constitute one and the same agreement.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained
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herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matters.
(l) LIMITED LIABILITY. Notwithstanding any provision hereof, none of
the obligations of the KKR Holders, the Company, any Xxxxxx Holder or any
Affiliate of any of the foregoing under this Agreement shall be an obligation of
any officer, director, member, limited partner or general partner of any of the
foregoing entities (or of any officer, director, member, limited partner or
general partner of any member, limited partner or general partner of any of the
foregoing entities). Any liability or obligation of the KKR Holders, the
Company, any Xxxxxx Holder and any Affiliate of the Company arising out of this
Agreement shall be limited to and satisfied only out of the assets of the KKR
Holders, the Company, any Xxxxxx Holder and such Affiliate of the Company,
respectively.
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IN WITNESS WHEREOF, the Parties have executed this Stockholders'
Agreement as of the date first above written.
ACCURIDE CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Its: President
HUBCAP ACQUISITION L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx, Xx.
-----------------------------
Its: President
XXXXXX DODGE CORPORATION,
a New York corporation
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Its: Duly Authorized Signatory
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