<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 2, 1998
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
ACCURIDE CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 61-1109077
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
2315 ADAMS LANE
HENDERSON, KENTUCKY 42420
(Address of principal executive offices) (zip code)
------------------------
1998 STOCK PURCHASE AND OPTION PLAN
FOR EMPLOYEES OF ACCURIDE CORPORATION AND SUBSIDIARIES
(Full title of the plan)
------------------------
WILLIAM P. GREUBEL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
2315 ADAMS LANE
HENDERSON, KENTUCKY 42420
(502) 826-5000
(Name, address and telephone number,
including area code, of agent for service)
------------------------
COPIES TO:
Randall C. Bassett
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
(213) 485-1234
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE(1) FEE(1)
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value.................... 1,899 $5,000 $9,495,000 $2,639.61
</TABLE>
(1) Pursuant to Rule 457(h) under the Securities Act of 1933, the proposed
maximum offering price per share, the proposed maximum aggregate offering
price and the amount of registration fee have been computed on the basis of
the price at which common stock under the 1998 Stock Purchase and Option
Plan for Employees of Accuride Corporation and Subsidiaries (the "Plan")
will be sold, and the price at which the options under the Plan may be
exercised.
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- --------------------------------------------------------------------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed with or
included in this Form S-8 (by incorporation by reference or otherwise) in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, previously filed by Accuride Corporation (the
"Company" or the "Registrant") with the Commission, are hereby incorporated by
reference in this Registration Statement:
(a) Prospectus, dated July 23, 1998, filed pursuant to Rule 424(b) of
the Securities Act of 1933, as amended (the "Act"), relating to the Offer to
Exchange up to $200,000,000 of its 9 1/4% Series B Senior Subordinated Notes
due 2008, which have been registered under the Securities Act for any and
all of its outstanding 9 1/4% Series A Senior Subordinated Notes due 2008;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998; and
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998.
In addition to the foregoing documents, all documents filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), after the date of this Registration
Statement and prior to the filing of a post-effective amendment to this
Registration Statement indicating that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
COMMON STOCK
The entire authorized capital stock of the Company consists of (i) 45,000
shares of common stock with a par value of $0.01 per share (the "Common Stock")
and (ii) 5,000 shares of preferred stock with a par value of $0.01 per share
(the "Preferred Stock").
The holders of the Common Stock are entitled to one vote per share on all
matters submitted for action by the shareholders. There is no provision for
cumulative voting with respect to the election of directors. Accordingly, the
holders of more than 50% of the shares of Common Stock can, if they choose to do
so, elect all of the directors. In such event, absent contractual provisions to
the contrary, the holders of the remaining shares will not be able to elect any
directors.
All shares of Common Stock are entitled to share equally in such dividends
as the Board of Directors may declare from sources legally available therefor.
All outstanding shares of Common Stock are, and the Common Stock offered hereby
will be, fully paid and nonassessable. No shares of Common Stock are subject to
redemption or a sinking fund. The Company's ability to pay cash dividends on the
Common Stock is limited by its dependence upon the receipt of cash from its
subsidiaries and by the financial
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covenants and other restrictions which prohibit or restrict the payment of
dividends by the Company to its stockholders contained in the Company's debt
instruments, including, without limitation, the credit agreement to which the
Company is a party with respect to its senior credit facility and the trust
indenture pursuant to which the $200,000,000 9 1/4% Senior Subordinated Notes
due 2008 were issued by the Company.
Each of the holders of Common Stock issued pursuant to the Plan (the "Plan
Purchase Stock") and each holder of options granted pursuant to the Plan (the
"Plan Options"), as a condition of purchasing the Plan Purchase Stock and
exercising the Plan Options, must execute and deliver to the Company, a
stockholder's agreement (each a "Stockholder's Agreement") by and among the
holder ("Purchaser"), the Company and Hubcap Acquisition L.L.C., a Delaware
limited liability company ("Hubcap"), the record and beneficial holder of the
majority of Common Stock of the Company. The Stockholder's Agreement (i) places
restrictions on each such employee's ability to transfer shares of Plan Purchase
Stock and Common Stock acquired upon exercise of the Plan Options, including a
right of first refusal in favor of the Company, (ii) provides each such employee
the right to participate pro rata in certain sales of Common Stock by Hubcap or
its affiliates and (iii) provides Hubcap and its affiliates the right to require
each such employee to participate pro rata in certain sales of Common Stock by
Hubcap or its affiliates. The Stockholder's Agreement also grants (subsequent to
an initial public offering of the Common Stock) piggyback registration rights to
each such employee pursuant to the Hubcap Registration Rights Agreement (as
defined below). In addition, the Stockholder's Agreement gives the Company the
right to purchase shares and options held by each such employee upon termination
of employment for any reason and will permit each such employee to sell stock
and options in the event of death, disability or retirement after turning 65
years of age.
RSTW Partners, III, L.P. ("RSTW"), the Company and Hubcap are parties to a
Stockholders' Agreement, dated January 21, 1998, as amended by the Assignment
and Amendment of Stockholders' Agreement, dated September 30, 1998 (the "RSTW
Stockholders' Agreement"), that places restrictions on RSTW's ability to
transfer its shares of Common Stock, including a right of first refusal in favor
of the Company and Hubcap. RSTW has the right to participate pro rata in certain
sales of Common Stock by Hubcap or its affiliates (the "Tag Along") and Hubcap
or its affiliates have the right to require RSTW to participate pro rata in
certain sales by Hubcap or its affiliates (the "Drag Along"). The RSTW
Stockholders' Agreement also grants certain demand (subsequent to an initial
public offering of the Common Stock) and piggyback registration rights to RSTW.
Hubcap and the Company are also parties to a registration rights agreement,
dated January 21, 1998 (the "Hubcap Registration Rights Agreement") granting
Hubcap certain demand and piggyback registration rights. Such registration
rights will generally be available to Hubcap until registration under the Act is
no longer required to enable it to resell the Common Stock owned by it. The
Hubcap Registration Rights Agreement provides, among other things, that the
Company will pay all expenses in connection with the first six demand
registrations requested by Hubcap and in connection with any registration
commenced by the Company as primary offering in which Hubcap participates
through piggyback registration rights granted under such agreement. Hubcap's
exercise of its registration rights under the Hubcap Registration Rights
Agreement will be subject to the Tag Along and the Drag Along rights of RSTW
provided for in the RSTW Stockholders' Agreement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Delaware corporation. Subsection (b)(7) of Section 102 of
the Delaware General Corporation Law (the "DGCL"), enables a corporation in its
original certificate of incorporation or an
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amendment thereto to eliminate or limit the personal liability of a director to
the corporation or its stockholders for monetary damages for violations of the
director's fiduciary duty, except (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which a director derived an
improper personal benefit.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director or officer acted in good faith in
a manner reasonably believed to be in, or not opposed to, the best interests of
the corporation, and, with respect to any criminal action or proceeding,
provided further that such director or officer had no reasonable cause to
believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action or suit
provided that such director or officer acted in good faith and in a manner
reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification may be made in respect to any claim,
issue or matter as to which such director or officer shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
of the circumstances of the case, such director or officer is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) or in the defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys
fees) actually and reasonably incurred by him in connection therewith; that
indemnification and advancement of expenses provided for, by, or granted
pursuant to Section 145 shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled; and empowers the corporation to
purchase and maintain insurance on behalf of a director or officer of the
corporation against any liability asserted against him or incurred by him in any
such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liabilities under
Section 145.
Paragraph 7 of the Restated Certificate of Incorporation of the Company
provides for the elimination of liability of directors to the extent permitted
by Section 102(b)(7) of the DGCL. Article V, Section 1 of the By-Laws of the
Company provides for indemnification of the officers and directors of the
Company to the extent permitted by applicable law.
The Company has in effect insurance policies in the amount of $25 million
covering all of its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
3
<PAGE>
ITEM 8. EXHIBITS.
See "Index to Exhibits."
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement;
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Henderson, State of Kentucky, on this 2nd day of
December 1998.
ACCURIDE CORPORATION
By: /s/ WILLIAM P. GREUBEL
-----------------------------------------
PRESIDENT AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints William P. Greubel and John R. Murphy and each or
any of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign a registration statement on form S-4 and any and
all amendments thereto (including post-effective amendments) and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in their
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
President, Chief Executive
/s/ WILLIAM P. GREUBEL Officer and Director
- ------------------------------ (Principal Executive December 2, 1998
William P. Greubel Officer)
Chief Financial Officer,
/s/ JOHN R. MURPHY Secretary and Treasurer
- ------------------------------ (Principal Financial and December 2, 1998
John R. Murphy Accounting Officer)
Director
- ------------------------------ December 2, 1998
Henry R. Kravis
/s/ GEORGE R. ROBERTS Director
- ------------------------------ December 2, 1998
George R. Roberts
/s/ JAMES H. GREENE, JR. Director
- ------------------------------ December 2, 1998
James H. Greene, Jr.
/s/ TODD A. FISHER Director
- ------------------------------ December 2, 1998
Todd A. Fisher
5
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
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<C> <S>
4.1 Certificate of Incorporation of Accuride Corporation (incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-4 (File No. 333-50239)).
4.2 By-laws of Accuride Corporation (incorporated by reference to Exhibit 3.2 to the Company's Registration
Statement on Form S-4 (File No. 333-50239)).
4.3 1998 Stock Purchase and Option Plan for Employees of Accuride Corporation and Subsidiaries (incorporated
by reference to Exhibit 10.3 to the Company's Registration Statement on Form S-4 (File No. 333-50239)).
4.4 Form of Stockholder's Agreement, by and among Hubcap Acquisition, L.L.C. and Accuride Corporation, and
certain employees of the Company.
4.5 Form of Non-Qualified Stock Option Agreement by and between Accuride Corporation and certain employees of
the Company (incorporated by reference to Exhibit 10.4 to the Company's Registration Statement on Form
S-4 (File No. 333-50239)).
4.6 Stockholders' Agreement by and among the Accuride Corporation, Phelps Dodge Corporation and Hubcap
Acquisition L.L.C., dated January 21, 1998 (incorporated by reference to Exhibit 10.1 to the Company's
Registration Statement on Form S-4 (File No. 333-50239)).
4.7 Assignment and Amendment of Stockholders' Agreement, dated as of September 30, 1998, among Phelps Dodge
Corporation, Accuride Corporation, Hubcap Acquisition, L.L.C. and RSTW Partners, III, L.P.
4.8 Registration Rights Agreement by and between Accuride Corporation and Hubcap Acquisition L.L.C., dated
January 21, 1998 (incorporated by reference to Exhibit 10.2 to the Company's Registration Statement on
Form S-4 (File No. 333-50239)).
5.1 Opinion of Latham & Watkins.
23.1 Consent of Latham & Watkins (included as part of their opinion listed as Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP, Independent Auditors.
24.1 Power of Attorney of Registrants (included on a signature page to this Registration Statement).
</TABLE>
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Exhibit 4.4
STOCKHOLDER'S AGREEMENT
This Stockholder's Agreement (this "Agreement") is entered into as of
________, 1998 by and among ACCURIDE CORPORATION, a Delaware corporation (the
"Company"), __________________ (the "Purchaser") and HUBCAP ACQUISITION L.L.C.
("Acquisition") (being hereinafter collectively referred to as the "Parties").
RECITALS
Pursuant to the terms of the 1998 Stock Purchase and Option Plan for
Employees of Accuride Corporation and Subsidiaries, as the same may be amended
from time to time (the "Equity Plan"), the Company is making shares of its
common stock ("Common Stock") available for purchase by certain employees and is
granting options to purchase Common Stock to certain employees. This Agreement
is one of several agreements ("Other Purchasers' Agreements") which have been,
or which in the future will be, entered into between the Company and other
individuals who are or will be employees of the Company or one of its
Subsidiaries (collectively, the "Other Purchasers"). In addition, the Company
has entered into agreements (the "Investors' Agreements") with certain
institutional investors and other purchasers (collectively, the "Investors")
pursuant to which the Investors purchased or will purchase shares of Common
Stock. For purposes of this Agreement, "Subsidiary," with respect to any entity,
shall mean any corporation (or other entity) in an unbroken chain of entities
beginning with such corporation (or entity) if each of the entities, or group of
commonly controlled entities, other than the last entity in the unbroken chain,
then owns stock (or other equity interest) possessing 50% or more of the total
combined voting power of all classes of equity in one of the other entities in
such chain; "Affiliate" shall mean, with respect to any Person, a Person
directly or indirectly controlling, controlled by, or under common control with,
such Person, and with respect to the Company, also any entity designated by the
Board of Directors of the Company in which the Company or one of its Affiliates
has an interest, and, with respect to Kohlberg Kravis Roberts & Co., L.P.
("KKR"), also any Affiliate of any partner of KKR; "Person" shall mean an
individual, partnership, corporation, limited liability company, business trust,
joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature; and "control" shall
have the meaning given such term under Rule 405 of the Securities Act of 1933
(the "Securities Act").
Pursuant to the terms of the Equity Plan, the Company has agreed to
sell to the Purchaser, and the Purchaser desires to purchase ________ shares of
Common Stock (the "Purchase Stock") at a price per share of $5,000.00. The
purchase of the Purchase Stock will be made on ________, 199_ (the "Purchase
Date") and following the contemplated stock dividend which will
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result in Acquisition's effective cost per share of Common Stock equaling
$5,000.00 (the "Stock Dividend"), unless the Company shall notify the Purchaser
that the Purchase Date has been extended, in which case the Purchase Date shall
be the date specified in such notice. On the Purchase Date, the Company also
will grant to the Purchaser an option or options (the "Options") to purchase
_____ shares of Common Stock at an exercise price of $5,000.00 per share,
pursuant to the terms of the Equity Plan and the "Non-Qualified Stock Option
Agreement" of even date herewith by and between the Company and the Purchaser.
The Options may be granted as Time Options or Performance Options (each as
defined in the Non-Qualified Stock Option Agreement). The term "Stock" as used
in this Agreement shall include all shares of Purchase Stock of the Company
purchased by the Purchaser pursuant to this Agreement and all shares of Common
Stock issued to the Purchaser by the Company upon exercise of the Options and of
any other stock options held by the Purchaser and any other Common Stock
otherwise acquired by the Purchaser at any time when this Agreement is in
effect. The term "Options" as used in this Agreement shall include all Options
granted to the Purchaser pursuant to this Agreement and any other stock options
to purchase Common Stock granted to the Purchaser by the Company and held by the
Purchaser at any time when this Agreement is in effect.
AGREEMENT
To implement the foregoing and in consideration of the mutual
agreements contained herein, the Parties agree as follows:
1. Purchase of Stock; Issuance of Options.
(a) On the Purchase Date, subject to the Stock Dividend, the Purchaser
hereby subscribes for and shall purchase, and the Company will sell to the
Purchaser, the Purchase Stock at a purchase price of $5,000.00 per share (the
"Initial Price Per Share") subject to the terms and conditions hereinafter set
forth and contained in the Equity Plan. The Company shall have no obligation to
sell any Purchase Stock to any person who (i) is a resident or citizen of a
state or other jurisdiction in which the sale of the Purchase Stock to him would
constitute a violation of the securities or "blue sky" laws of such jurisdiction
(provided that the Company shall take all reasonable ministerial actions under
such laws to avoid any such violation) or (ii) is not an employee of the Company
or one of its Subsidiaries on the Purchase Date.
(b) The Purchaser shall pay to the Company on the Purchase Date $_____,
in cash or a certified bank check or checks payable to the order of the Company
in consideration of the Purchase Stock; provided, that with the consent of the
Company, the Purchaser may deliver another form of payment for the Purchase
Stock. On the Purchase Date, in consideration of receipt of the Initial Price
Per Share, the Company will deliver to the Purchaser a certificate, registered
in the Purchaser's name, for the Purchase Stock.
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(c) Upon and as of the Purchase Date, the Company shall issue to the
Purchaser Options to purchase _____shares of Common Stock subject to the terms
and conditions hereinafter set forth and contained in the Equity Plan and the
Non-Qualified Stock Option Agreement, and the Parties shall execute and deliver
to each other copies of the Non-Qualified Stock Option Agreement concurrently
with the issuance of the Options.
2. The Purchaser's Representations and Warranties.
(a) The Purchaser hereby represents and warrants that he is acquiring
the Purchase Stock for investment for his own account and not with a view to, or
for resale in connection with, the distribution or other disposition thereof.
The Purchaser agrees and acknowledges that he will not, directly or indirectly,
offer, transfer, sell, assign, pledge, hypothecate or otherwise dispose of any
shares of Stock (any such act sometimes referred to herein as a "Transfer,"
whether voluntary or involuntary) unless such Transfer complies with the terms
and conditions of this Agreement and (i) the Transfer is pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
or the rules and regulations in effect thereunder (the "Securities Act") or (ii)
(A) counsel for the Purchaser (which counsel shall be acceptable to the Company)
shall have furnished the Company with an opinion, 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 the Purchaser is a citizen or resident of any country other than the United
States, or the Purchaser desires to effect any Transfer in any such country,
counsel for the Purchaser (which counsel shall be acceptable 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. Notwithstanding the foregoing,
the Company acknowledges and agrees that any of the following Transfers are
deemed to be in compliance with this Agreement and no opinion of counsel is
required in connection therewith: (w) a pledge of Purchase Stock to the Company
to secure a loan or guaranty made by the Company in connection with the
Purchaser's acquisition of Purchase Stock, (x) a Transfer made pursuant to
Section 5, 6, 8 or 9 hereof, (y) a Transfer upon the death of the Purchaser to
his executors, administrators, testamentary trustees, legatees or beneficiaries
(the "Purchaser's Estate") or a Transfer to the executors, administrators,
testamentary trustees, legatees or beneficiaries of a person who has become a
holder of Stock in accordance with the terms of this Agreement, provided that it
is expressly understood that any such transferee shall be bound by the
provisions of this Agreement and (z) a Transfer made after the Purchase Date in
compliance with the federal securities laws to a trust or custodianship the
beneficiaries of which may include only the Purchaser, his spouse or his lineal
descendants (which term shall include adoptive as well as biological
descendants) (the "Purchaser's Trust") or a Transfer made after the third
anniversary of the Purchase Date to such a trust by a person who has become a
holder of Stock in accordance with the terms of this Agreement, provided that
such Transfer is made expressly subject to this Agreement and that the
transferee agrees in writing to be bound by the terms and conditions hereof.
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(b) The certificate (or certificates) representing the Stock shall bear
the following legend:
"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 STOCKHOLDER'S AGREEMENT DATED AS OF
__________, 199__ BY AND AMONG ACCURIDE CORPORATION (THE
"COMPANY"), THE PURCHASER NAMED ON THE FACE HEREOF AND HUBCAP
ACQUISITION L.L.C. (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 "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 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."
(c) The Purchaser acknowledges that he has been advised that (i) a
restrictive legend in the form heretofore set forth shall be placed on the
certificates representing the Stock and (ii) a notation shall be made in the
appropriate records of the Company indicating that the Stock is subject to
restrictions on transfer and, if the Company should at some time in the future
engage
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the services of a stock transfer agent, appropriate stop transfer restrictions
will be issued to such transfer agent with respect to the Stock.
(d) The Purchaser agrees that, if any shares of the Common Stock (or
securities convertible into or exchangeable for Common Stock) of the Company are
offered to the public pursuant to an effective registration statement under the
Securities Act, the Purchaser will not effect any public sale or distribution of
any shares of Stock not covered by such registration statement within 7 days
prior to, or within 180 days after, the effective date of such registration
statement, unless otherwise agreed to in writing by the Company.
3. Restriction on Transfer.
(a) Except for Transfers permitted by clauses (w), (x), (y), and (z) of
Section 2(a) or pursuant to Section 12, the Purchaser agrees that he will not
transfer, sell, assign, pledge, hypothecate or otherwise dispose of any shares
of Stock at any time prior to the fifth anniversary of the Purchase Date. No
Transfer of any such shares in violation hereof shall be made or recorded on the
books of the Company and any such Transfer shall be void and of no effect.
(b) Any attempt to Transfer any shares of Stock not in compliance with
this Agreement shall be null and void and neither the Company nor any transfer
agent shall give any effect in the Company's stock records to such attempted
Transfer.
4. Right of First Refusal.
(a) If, at any time after the fifth anniversary of the Purchase Date
and prior to a Public Offering (as defined below), the Purchaser receives a bona
fide offer to purchase any or all of his shares of Stock (an "Offer") from a
third party (an "Offeror") which the Purchaser wishes to accept, the Purchaser
shall cause such Offer to be reduced to writing and shall notify the Company in
writing of his wish to accept such Offer. The Purchaser's notice shall contain
an irrevocable offer to sell such shares of Stock 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, such Offer, and shall be accompanied by a true
copy of such Offer (which shall identify the Offeror thereof). At any time
within 45 days after the date of the receipt by the Company of the Purchaser's
notice described above, the Company shall have the right and option to purchase,
or to arrange for a third party to purchase, all of the shares of Stock 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 Company, at the equivalent all cash price,
determined in good faith by the Company's Board of Directors, by delivering a
certified bank check or checks in the appropriate amount to the Purchaser at the
principal office of the Company against delivery of certificates or other
instruments representing the shares of Stock so purchased, appropriately
endorsed by the Purchaser. 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 Purchaser may during the succeeding 30 day period sell not less than all of
the shares of Stock covered by the Offer to the Offeror at a price and on terms
no less favorable to the Purchaser than
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those contained in the Offer. No sale may be made to any Offeror unless such
Offeror agrees in writing with the Company to be bound by the provisions of this
Section 4 in connection with any resale by the Offeror. Promptly after any such
sale to an Offeror, the Purchaser 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 during which the Company may elect to purchase the Stock, the
Purchaser has not completed the sale of such shares of Stock as aforesaid, all
the restrictions on sale, transfer and assignment contained in this Agreement
shall again be in effect with respect to such shares of Stock.
(b) If, at any time after the fifth anniversary of the Purchase Date
and after the first Public Offering, the Purchaser receives an Offer, the
provisions of subsection (a) above shall continue to apply but "5 day(s)" shall
be substituted for "45 day(s)" and "2 day(s)" shall be substituted for "30
day(s)" in each instance, respectively, where such term occurs therein.
5. The Purchaser's Resale of Stock to the Company and Surrender of Options
Upon the Purchaser's Death or Disability.
(a) Except as otherwise provided herein, if on or prior to the later
of the first Public Offering and the fifth anniversary of the Purchase Date,
(i) (A) the Purchaser is still in the employ of the Company or any Subsidiary
of the Company or (B) the Purchaser has retired from the Company or any
Subsidiary of the Company at age 65 or over (or such other age as may be
approved by the Board of Directors of the Company) after having been employed
by the Company or any of its Subsidiaries for at least three years after the
Purchase Date (a "Permitted Retirement") and (ii) the Purchaser either dies
or suffers a "Permanent Disability" (as defined below) (each, a "Put Event"),
then the Purchaser, the Purchaser's Estate or the Purchaser's Trust, as the
case may be, shall have the right, for six months following the date of death
or Permanent Disability, (X) to sell to the Company, and the Company shall be
required to purchase, on one occasion, all or any portion of the shares of
Stock then held by the Purchaser, the Purchaser's Estate or the Purchaser's
Trust, as the case may be, at the "Section 5 Repurchase Price" (as determined
in accordance with Section 7) and (Y) to require the Company to pay to the
Purchaser, the Purchaser's Estate or the Purchaser's Trust, as the case may
be, an amount equal to the "Option Excess Price" (determined on the basis of
the Section 5 Repurchase Price as provided in Section 10) with respect to the
termination of all or any portion of the outstanding exercisable Options then
held by the Purchaser, the Purchaser's Estate or the Purchaser's Trust, as
the case may be. The Purchaser, the Purchaser's Estate or the Purchaser's
Trust, as the case may be, shall send written notice to the Company of its
intention to sell shares of Stock and/or to terminate Options in exchange for
the payment referred to in the preceding sentence (the "Redemption Notice").
The completion of the purchase shall take place at the principal office of
the Company on the tenth business day after the giving of the Redemption
Notice. The Section 5 Repurchase Price and any payment with respect to
Options as described above shall be paid by delivery to the Purchaser, the
Purchaser's Estate or the Purchaser's Trust, as the case may be, of a
certified bank check or checks in the appropriate amount payable to the order
of the Purchaser,
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<PAGE>
the Purchaser's Estate or the Purchaser's Trust, as the case may be, against
delivery of certificates or other instruments representing the Stock so
purchased and appropriate documents canceling the Options so terminated,
appropriately endorsed or executed by the Purchaser, the Purchaser's Estate
or the Purchaser's Trust, or his or its duly authorized representative. For
purposes of this Agreement, the Purchaser shall be deemed to have suffered a
"Permanent Disability" if the Purchaser is unable to engage in the activities
required by employment by reason of any medically determined physical or
mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12
months, as reasonably determined by the Board of Directors of the Company in
good faith and in its discretion.
(b) Notwithstanding anything in Section 5(a) to the contrary and
subject to Section 13, if there exists and is continuing a default or an event
of default on the part of the Company or any Subsidiary of the Company under any
loan, guarantee or other agreement under which the Company or any Subsidiary of
the Company has borrowed money, or such repurchase would result in a default or
an event of default on the part of the Company or any Subsidiary of the Company
under any such agreement, or if a repurchase would not be permitted under
Section 170 of the General Corporation Law of the State of Delaware or would
otherwise violate the General Corporation Law of the State of Delaware (each
such occurrence being an "Event"), the Company shall not be obligated to
repurchase any of the Stock or to make payment of the Option Excess Price in
exchange for termination of any Options held by the Purchaser, the Purchaser's
Estate or the Purchaser's Trust, as the case may be, until the first business
day which is 15 calendar days after all of the foregoing Events have ceased to
exist (the "Repurchase Eligibility Date"); provided, however, that (i) the
number of shares of Stock subject to repurchase under this Section 5(b) shall be
that number of shares of Stock and (ii) the number of "Exercisable Option
Shares" (as defined in Section 10) shall be that number of Exercisable Option
Shares, held by the Purchaser, the Purchaser's Estate or the Purchaser's Trust,
as the case may be, at the time of delivery of a Redemption Notice in accordance
with Section 5(a) hereof; provided, further, that the "Repurchase Calculation
Date" (as defined in Section 7) shall be determined in accordance with Section 7
as of the Repurchase Eligibility Date. All Options exercisable as of the date of
a Redemption Notice shall continue to be exercisable until terminated in
accordance with Section 10.
6. The Company's Right to Repurchase Stock and Cancel Options of the Purchaser.
(a) (i) If, on or prior to the later of the first Public Offering and
the fifth anniversary of the Purchase Date, (A) the Purchaser's active
employment with the Company (and/or, if applicable, its Subsidiaries)
is voluntarily or involuntarily terminated for any reason whatsoever,
(B) the beneficiaries of the Purchaser's Trust shall include any person
or entity other than the Purchaser, his spouse or his lineal
descendants, (C) the Purchaser shall effect a Transfer of any Stock
other than as permitted in this Agreement, or (D) there shall occur a
Transfer of any Stock pursuant to any bankruptcy proceeding, levy,
property settlement or disposition pursuant to law incident to marital
separation or
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<PAGE>
divorce (each, a "Call Event"), the Company shall have the right to
purchase all or any portion of the shares of Stock then held by the
Purchaser, the Purchaser's Estate and the Purchaser's Trust, as the
case may be, at the "Section 6 Repurchase Price" (determined in
accordance with Section 7); provided, however, that if the Call Event
results from the death, Permanent Disability or Permitted Retirement of
the Purchaser, the Company shall have the right to purchase all or any
portion of the shares of Stock held by the Purchaser, the Purchaser's
Estate and the Purchaser's Trust, as the case may be, at the Section 5
Repurchase Price. The Company shall have until 75 days after the date
of a Call Event in which to give notice in writing to the Purchaser,
the Purchaser's Estate or the Purchaser's Trust, as the case may be, of
the Company's exercise of such right ("Call Notice").
(ii) If, on or prior to the later of the first Public Offering
and the fifth anniversary of the Purchase Date, a Call Event occurs,
the Company shall have the right (in accordance with the requirements
of the Call Notice) to cancel all or any portion of the then
exercisable outstanding Options held by any of the Purchaser, the
Purchaser's Estate and the Purchaser's Trust, as the case may be, in
exchange for payment to the Purchaser, the Purchaser's Estate or the
Purchaser's Trust, as the case may be, with respect to each Exercisable
Option Share so canceled, of an amount equal to the Option Excess Price
determined on the basis of the Section 6 Repurchase Price, or, if the
Call Event results from the death, Permanent Disability or Permitted
Retirement of the Purchaser, the Section 5 Repurchase Price.
(iii) The completion of each purchase and payment of the
Option Excess Price pursuant to the foregoing shall take place at the
principal office of the Company on the tenth business day after the
later of the giving of notice of the Company's exercise of its rights
pursuant to subsection (i) or (ii) above or the date of the Call Event.
The Section 5 Repurchase Price or the Section 6 Repurchase Price, as
the case may be, and any payment with respect to Options as described
above shall be paid by delivery to the Purchaser, the Purchaser's
Estate or the Purchaser's Trust, as the case may be, of a certified
bank check or checks in the appropriate amount payable to the order of
the Purchaser, the Purchaser's Estate or the Purchaser's Trust, as the
case may be, against delivery of certificates or other instruments
representing the Stock so purchased and appropriate documents canceling
the Options so terminated, appropriately endorsed or executed by the
Purchaser, the Purchaser's Estate or the Purchaser's Trust or his or
its duly authorized representative.
(b) Notwithstanding any other provision of this Section 6 to the
contrary and subject to Section 13, if there exists and is continuing any Event,
the Company shall delay the repurchase of the Stock and the payment with respect
to any Options (pursuant to a Call Notice timely given in accordance with
Section 6(a) hereof) held by the Purchaser, the Purchaser's Estate or the
Purchaser's Trust, as the case may be, until the Repurchase Eligibility Date;
provided, however, that the determination of (i) the number of shares of Stock
subject to repurchase under this Section 6(b) and (ii) the number of Exercisable
Option Shares subject to cancellation in exchange for payment under this Section
6(b) shall be made at the time of
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<PAGE>
delivery of a Call Notice in accordance with Section 6(a) hereof; provided,
further, that the Repurchase Calculation Date shall be determined in accordance
with Section 7 based on the Repurchase Eligibility Date. All Options exercisable
as of the date of a Call Notice shall continue to be exercisable until
terminated in accordance with Section 10.
7. Determination of Repurchase Price.
(a) The Section 5 Repurchase Price and the Section 6 Repurchase Price
are each hereinafter referred to as the "Repurchase Price," as applicable the
Repurchase Price shall be calculated on the basis of the unaudited financial
statements of the Company or the Market Price Per Share (as defined in Section
7(f)) as of the "Repurchase Calculation Date" which shall be the last day of the
month preceding the later of (i) the month in which the event giving rise to the
repurchase occurs and (ii) the month in which the Repurchase Eligibility Date
occurs. The event giving rise to the repurchase shall be the Transfer, death,
Permanent Disability, Permitted Retirement or other termination of employment or
other event, as the case may be, not the giving of any notice pursuant to
Section 5 or 6.
(b) Prior to a Public Offering the Section 5 Repurchase Price shall be
a per share Repurchase Price equal to the greater of (i) the Initial Price Per
Share and (ii) the Adjusted Book Value Per Share (as defined in Section 7(d)) as
of the Repurchase Calculation Date. After a Public Offering, the Section 5
Repurchase Price shall be a per share Repurchase Price equal to the greater of
(x) the Initial Price Per Share and (y) the Market Price Per Share (as defined
in Section 7(f)) as of the Repurchase Calculation Date.
(c) Prior to a Public Offering, the Section 6 Repurchase Price shall be
a per share Repurchase Price equal to the lesser of (i) the Adjusted Book Value
Per Share and (ii) the sum of (A) the Initial Price Per Share and (B) the
product of (1) the "Percentage" (as defined below) and (2) the amount, if any,
by which the Adjusted Book Value Per Share as of the Repurchase Calculation Date
exceeds the Initial Price Per Share. After a Public Offering, the Section 6
Repurchase Price shall be a per share Repurchase Price equal to the lesser of
(x) Market Value Per Share as of the Repurchase Calculation Date or (y) the sum
of (A) the Initial Price Per Share and (B) the product of (1) the Percentage and
(2) the amount, if any, by which the Market Value Per Share as of the Repurchase
Calculation Date exceeds the Initial Price Per Share.
The "Percentage" shall be determined as follows:
<TABLE>
<CAPTION>
Repurchase Calculation Date Percentage
<S> <C>
Prior to the first anniversary of the Purchase Date - 0 -
On and after the first anniversary of the Purchase Date and
prior to the second anniversary of the Purchase Date 20%
On and after the second anniversary of the Purchase Date and
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
prior to the third anniversary of the Purchase Date 40%
On and after the third anniversary of the Purchase Date and
prior to the fourth anniversary of the Purchase Date 60%
On and after the fourth anniversary of the Purchase Date and
prior to the fifth anniversary of the Purchase Date 80%
On and after the fifth anniversary of the Purchase Date 100%
</TABLE>
(d) For purposes of this Agreement, Adjusted Book Value Per Share as of
any date of determination shall equal the sum of (i) the Initial Price Per Share
and (ii) the Book Value Per Share as of the date of determination minus the Book
Value Per Share as of the Purchase Date. "Book Value Per Share" as of any date
of determination shall equal the result of (x) the sum of (A) the stockholders'
equity of the Company, excluding amounts attributable to shares of the Company's
capital stock other than its Common Stock; the amount of any asset reversion
resulting from the termination of any pension plan of the Company or any of its
Subsidiaries; and excluding the effect of (1) any extraordinary or unusual items
recognized by the Company, if and to the extent determined in the sole
discretion of the Compensation Committee of the Board of Directors of the
Company, and (2) any decrease after the Purchase Date in the valuation allowance
recognized at the Purchase Date related to deferred tax assets arising as a
result of the "Recapitalization" (as defined below), all as determined in
accordance with generally accepted accounting principles applied on a basis
consistent with any prior periods, and (B) the aggregate exercise prices of all
outstanding stock options and other rights to acquire common stock of the
Company and the aggregate conversion prices of all securities convertible into
shares of Common Stock, divided by (y) the sum of the number of shares of Common
Stock then outstanding and the number of shares of Common Stock issuable upon
the exercise of all outstanding stock options and other rights to acquire Common
Stock and the conversion of all securities convertible into shares of Common
Stock. For purposes of this Agreement, Book Value Per Share as of the Purchase
Date will be based on the stockholders' equity of the Company immediately after
giving effect to purchase of Common Stock by Acquisition as of January 21, 1998,
the redemption of Common Stock held by Phelps Dodge Corporation, the incurrence
of related transaction fees and expenses, and the recognition of net deferred
tax assets or liabilities related thereto (the "Recapitalization").
(e) As used herein the term "Public Offering" shall mean the sale of
shares of Common Stock to the public pursuant to a registration statement under
the Securities Act which has been declared effective by the Securities and
Exchange Commission (other than a registration statement on Form S-8 or any
other similar form) which results in an active trading market in the Common
Stock. A "Qualified Public Offering" shall mean a Public Offering pursuant to an
effective registration statement relating to shares of Common Stock held by any
or all of Acquisition, KKR and any of their respective Affiliates.
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<PAGE>
(f) As used herein the term "Market Price Per Share" shall mean the
price per share equal to the average of the last sale price of the Common Stock
on the Repurchase Calculation Date on each exchange on which the Common Stock
may at that time be listed and on which the Common Stock traded on such date or,
if there shall have been no sales on any of such exchanges on the Repurchase
Calculation Date, the average of the closing bid and asked prices on each such
exchange at the end of the Repurchase Calculation Date or if there is no such
bid and asked price on the Repurchase Calculation Date on the next preceding
date when such bid and asked price occurred or, if the Common Stock shall not be
so listed, the average of the closing sales prices as reported by NASDAQ at the
end of the Repurchase Calculation Date in the over-the-counter market. If the
Common Stock is not so listed or reported by NASDAQ, then the Market Price Per
Share shall be the Adjusted Book Value Per Share.
(g) In determining the Repurchase Price, appropriate adjustments shall
be made for any future issuances of rights to acquire, and securities
convertible into, Common Stock and any stock dividends, splits, combinations,
recapitalizations, and any other adjustment in the number of outstanding shares
of Common Stock.
8. "Tag-Along" Right.
(a) In the event that at any time prior to the fifth anniversary of the
first Public Offering, Acquisition (or one of its Affiliates or a KKR Affiliate
to whom Acquisition has previously transferred any of its shares of Common Stock
owned immediately following January 21, 1998, a "Transfer Affiliate") proposes
to sell for cash or any other consideration any shares of Common Stock owned by
it to any person (a "Proposed Purchaser"), in any transaction having such
substance (including a merger) other than (i) a Public Offering or (ii) a sale
to an Acquisition Affiliate or KKR Affiliate, Acquisition (or such Transfer
Affiliate) will notify the Purchaser, the Purchaser's Estate or the Purchaser's
Trust, as the case may be, in writing (a "Sale Notice") of such proposed sale (a
"Proposed Sale") and the material terms of the Proposed Sale as of the date of
the Sale Notice (the "Material Terms") promptly, and in any event not less than
15 days prior to the consummation of the Proposed Sale and not more than 5 days
after the execution of the definitive agreement relating to the Proposed Sale,
if any (the "Sale Agreement"). If within 10 days of the receipt of the Sale
Notice, Acquisition (or such Transfer Affiliate) receives a written request (a
"Sale Request") to include Stock held by the Purchaser, the Purchaser's Estate
or the Purchaser's Trust in the Proposed Sale, the Stock so held by the
Purchaser, the Purchaser's Estate or the Purchaser's Trust shall be so included
as provided herein; provided, however, that only one such Sale Request may be
delivered by the Purchaser, the Purchaser's Estate or the Purchaser's Trust, as
the case may be, with respect to any Proposed Sale for all Stock held by the
Purchaser, the Purchaser's Estate or the Purchaser's Trust; and provided,
further, that any Sale Request shall be irrevocable unless (x) there shall be a
material adverse change in the Material Terms or (y) otherwise mutually agreed
to in writing by the Purchaser, the Purchaser's Estate or the Purchaser's Trust,
as the case may be, and Acquisition (or such Transfer Affiliate). Promptly after
the receipt of the Sale Request, Acquisition (or such Transfer Affiliate)
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will furnish the Purchaser, the Purchaser's Estate or the Purchaser's Trust, as
the case may be, with a copy of the Sale Agreement, if any.
(b) The number of shares of Stock that the Purchaser, the Purchaser's
Estate or the Purchaser's Trust, as the case may be, will be permitted to
include in a Proposed Sale pursuant to a Sale Request will be the product of (i)
the number of shares of Stock then held by, and the number of Exercisable Option
Shares that may then be acquired by, the Purchaser, the Purchaser's Estate or
the Purchaser's Trust and (ii) the ratio of (A) the number of shares of Common
Stock which Acquisition (or the Transfer Affiliate) proposes to sell in the
Proposed Sale, to (B) the number of shares of Common Stock then held by
Acquisition (and any Transfer Affiliates). Notwithstanding the above, if one of
more holders of shares of Common Stock who have been granted the same rights
granted hereunder elect not to include in the Proposed Sale the maximum number
of shares of Common Stock which such holder would have been permitted to include
in a Proposed Sale (the "Eligible Shares"), Acquisition, KKR and any of their
respective Affiliates, or any of them, may sell in the Proposed Sale that number
of additional shares of Common Stock owned by any of them not in excess of the
number of Eligible Shares not included in the Proposed Sale.
(c) Except as may otherwise be provided herein, shares of Stock subject
to a Sale Request will be included in a Proposed Sale pursuant hereto and to any
agreements with the Proposed Purchaser relating thereto, on the same terms and
subject to the same conditions applicable to the shares of Common Stock which
Acquisition (or the Transfer Affiliate) proposes to sell in the Proposed Sale.
Such terms and conditions shall include, without limitation, the sale price; the
payment of fees, commissions and expenses; the provision of, and representation
and warranty as to, information requested of Acquisition (or the Transfer
Affiliate); and the provision of requisite indemnifications; provided, however,
that any indemnification provided by the Purchaser, the Purchaser's Estate or
the Purchaser's Trust shall be determined pro rata in proportion with the
aggregate number of shares of Common Stock to be sold in the Proposed Sale.
(d) Upon delivering a Sale Request, the Purchaser, the Purchaser's
Estate or the Purchaser's Trust, as the case may be, will, if requested by
Acquisition (or the Transfer Affiliate), execute and deliver a custody agreement
and power of attorney in form and substance satisfactory to Acquisition (or the
Transfer Affiliate) (a "Custody Agreement and Power of Attorney") with respect
to the shares of Stock which are to be included in the Proposed Sale pursuant
hereto. The Custody Agreement and Power of Attorney will provide, among other
things, that the Purchaser, the Purchaser's Estate or the Purchaser's Trust, as
the case may be, will deliver to and deposit in custody with the custodian and
attorney-in-fact named therein a certificate or certificates representing such
shares of Stock (duly endorsed in blank by the registered owner or owners
thereof or accompanied by duly executed stock powers in blank) and irrevocably
appoint said custodian and attorney-in-fact as the Purchaser's, the Purchaser's
Estate's or the Purchaser's Trust's, as the case may be, agent and
attorney-in-fact with full power and authority to act under the Custody
Agreement and Power of Attorney on behalf of the Purchaser,
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<PAGE>
the Purchaser's Estate or the Purchaser's Trust, as the case may be, with
respect to the matters specified therein.
(e) The Purchaser agrees that he will execute such other agreements as
Acquisition (or the Transfer Affiliate) may reasonably request in connection
with the consummation of a Proposed Sale and Sale Request and the transactions
contemplated thereby.
(f) Acquisition agrees that it shall not conduct any registered,
underwritten public offering of any of its equity securities.
9. "Bring-Along" Right.
(a) In the event that at any time prior to the fifth anniversary of the
first Public Offering, Acquisition (or a Transfer Affiliate) proposes to sell
any of its holdings of Common Stock (the "Acquisition Shares") in a Proposed
Sale (a "Bring-Along Sale"), Acquisition (or such Transfer Affiliate) may
provide the Purchaser, the Purchaser's Trust, or the Purchaser's Estate, as the
case may be, written notice (a "Bring-Along Notice") of such Proposed Sale and
the Material Terms thereof not less than 10 business days prior to the proposed
date of the Bring-Along Sale (the "Bring-Along Sale Date") and the Purchaser
hereby agrees to sell to such Proposed Purchaser that number of shares of Stock
equal to the product of (i) the number of shares of Stock then held by, and the
number of Exercisable Option Shares that may then be acquired by, the Purchaser,
the Purchaser's Estate and the Purchaser's Trust and (ii) the ratio of (A) the
number of shares of Common Stock which Acquisition (or the Transfer Affiliate)
proposes to sell in the Proposed Sale to (B) the number of shares of Common
Stock then held by Acquisition (and all Transfer Affiliates) at the same price
and upon the same terms and conditions as such transfer of Acquisition Shares.
The Purchaser shall not exercise any dissenter's rights with respect to the
consummation of any such Proposed Sale.
(b) On the Bring-Along Sale Date, the Purchaser (or the Purchaser's
Trust or the Purchaser's Estate, as the case may be) shall deliver a certificate
or certificates for his or its Stock, duly endorsed for transfer with signatures
guaranteed, to such Proposed Purchaser in the manner and at the address
indicated in the Bring-Along Notice against delivery of the purchase price for
such Stock. The provisions of this Section 9 shall apply regardless of the form
of consideration in the Bring-Along Sale.
10. Termination of Options.
All outstanding Options granted to the Purchaser under the Equity Plan
or otherwise, whether or not then exercisable, shall be automatically terminated
upon the payment by the Company to the Purchaser, pursuant to the provisions of
Section 5 or Section 6 of this Agreement, of an amount equal to the Option
Excess Price. If the Option Excess Price is zero or a negative number, all
outstanding Options granted to the Purchaser under the Equity Plan or otherwise,
whether or not then exercisable, shall be automatically terminated upon the
tenth business day after the later of (i) the date of the giving of the Call
Notice or Put Notice, as the
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case may be, and (ii) the date of the Call Event or Put Event, as the case may
be. The "Option Excess Price" with respect to each share of Stock that may be
acquired by exercise of an Option shall mean the excess, if any, of (i) the
Section 5 Repurchase Price or the Section 6 Repurchase Price, depending on which
Repurchase Price would be used to repurchase Stock pursuant to Section 5 or 6,
as the case may be (regardless of whether or not any Stock is actually subject
to repurchase pursuant to such Sections), over (ii) the exercise price
applicable to such Option. For purposes hereof, "Exercisable Option Shares" as
of any date of determination shall mean shares of Common Stock which, at such
time, could be purchased upon exercise of all outstanding Options granted to the
Purchaser.
11. The Company's Representations and Warranties.
(a) The Company represents and warrants to the Purchaser that (i) this
Agreement has been duly authorized, executed and delivered by the Company and
(ii) the Stock, when issued and delivered in accordance with the terms hereof
and the Non-Qualified Stock Option Agreement, will be duly and validly issued,
fully paid and nonassessable.
(b) If the Company shall have filed a registration statement pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or engaged in a Public Offering, (i) the Company
shall use reasonable efforts to register the Options and the Stock to be
acquired on exercise thereof on a Form S-8 Registration Statement or any
successor to Form S-8 to the extent that such registration is then available
with respect to such Options and Stock and (ii) the Company will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Securities and Exchange Commission
("SEC") thereunder, to the extent required from time to time to enable the
Purchaser to sell shares of Stock without registration under the Securities Act
within the limitations of the exemptions provided under any applicable rule or
regulation of the SEC. Notwithstanding anything contained in this Section 11(b),
the Company may deregister under Section 12 of the Exchange Act if it is then
permitted to do so pursuant to the Exchange Act and the rules and regulations
thereunder. Nothing in this Section 11(b) shall be deemed to limit in any manner
the restrictions on Transfer of Stock contained in this Agreement.
12. "Piggyback" Registration Rights.
(a) Until the later of first occurrence of a Qualified Public Offering
and the fifth anniversary of the Purchase Date, the Purchaser hereby agrees to
be bound by all of the terms, conditions and obligations of the Registration
Rights Agreement of even date herewith, among the Company and certain of the
Investors (the "Registration Rights Agreement") and, in the case of the first
Qualified Public Offering and subject to the limitations set forth in this
Section 12, shall have all of the rights and privileges of the Registration
Rights Agreement, in each case as if the Purchaser were a "Holder" (as defined
in the Registration Rights Agreement) other than the Company; provided, however,
that the Purchaser shall not have any rights to request registration under
Section 3 of the Registration Rights Agreement. Notwithstanding anything to the
contrary contained in the Registration Rights Agreement, the Purchaser's rights
and obligations under the
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Registration Rights Agreement shall be subject to the limitations and additional
obligations set forth in this Section 12. All shares of Stock purchased by the
Purchaser pursuant to this Agreement and held by the Purchaser, the Purchaser's
Estate or the Purchaser's Trust, including shares purchased upon the exercise of
Options, shall be deemed to be "Registrable Securities" as defined in the
Registration Rights Agreement.
(b) The Company will promptly notify the Purchaser in writing (a
"Notice") of any proposed registration (a "Proposed Registration") in connection
with a contemplated Qualified Public Offering. If within 15 days of the receipt
by the Purchaser of such Notice, the Company receives from the Purchaser, the
Purchaser's Estate or the Purchaser's Trust a written request (a "Request") to
register shares of Stock held by the Purchaser, the Purchaser's Estate or the
Purchaser's Trust, as the case may be (which Request will be irrevocable unless
otherwise mutually agreed to in writing by the Purchaser and the Company), such
shares of Stock will be so registered as provided in this Section 12; provided,
however, that for each such registration statement only one Request, which shall
be executed by each of the Purchaser, the Purchaser's Estate or the Purchaser's
Trust, as the case may be, may be submitted for all Registrable Securities held
by the Purchaser, the Purchaser's Estate or the Purchaser's Trust.
(c) The maximum number of shares of Stock which will be registered
pursuant to a Request will be the lowest of (i) the number of shares of Stock
then held by the Purchaser (which for purposes of this subsection (c) shall
include shares held by the Purchaser's Estate and the Purchaser's Trust),
including all shares of Stock which may be acquired under unexercised Options to
the extent then exercisable, (ii) the maximum number of shares of Common Stock
which the Company can register in the Proposed Registration without adverse
effect on the offering in the view of the managing underwriters (reduced pro
rata with all Other Purchasers), and (iii) the maximum number of shares which
the Purchaser (pro rata based upon the aggregate number of shares of Common
Stock the Purchaser and all Other Purchasers have requested be registered) and
all Other Purchasers are permitted to register under the Registration Rights
Agreement.
(d) Upon delivering a Request the Purchaser will, if requested by the
Company, execute and deliver a Custody Agreement and Power of Attorney in form
and substance satisfactory to the Company and as described pursuant to Section
8(d) with respect to the shares of Stock to be registered pursuant to this
Section 12.
(e) The Purchaser agrees that he will execute such other agreements as
the Company may reasonably request to further evidence the provisions of this
Section 12.
13. Pro Rata Repurchases.
Notwithstanding anything to the contrary contained in Sections 5, 6 and
7, if at any time consummation of all purchases and payments to be made by the
Company pursuant to this Agreement and the Other Purchasers' Agreements would
result in an Event, then the Company shall make purchases from, and payments to,
the Purchaser and Other Purchasers pro rata (on the
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basis of the proportion of the aggregate number of shares of Common Stock each
such Purchaser and all Other Purchasers have elected or are required to sell to
the Company, including the number of shares of Common Stock that could be
acquired by each upon exercise of then exercisable outstanding options to
purchase Common Stock) for the maximum number of shares of Common Stock
permitted without resulting in an Event (the "Maximum Repurchase Amount"). The
provisions of Sections 5(b) and 6(b) shall apply in their entirety to payments
and repurchases with respect to options and shares of Common Stock which may not
be made due to the limits imposed by the Maximum Repurchase Amount under this
Section 13. Until all of such Common Stock and options are purchased and paid
for by the Company, the Purchaser and the Other Purchasers whose Common Stock
and options are not purchased in accordance with this Section 13 shall have
priority, on a pro rata basis, over other purchases of Common Stock and payment
for options by the Company pursuant to this Agreement and the Other Purchasers'
Agreements.
14. Rights to Negotiate Repurchase Price.
Nothing in this Agreement shall be deemed to restrict or prohibit the
Company from purchasing shares of Stock or Options from the Purchaser, at any
time, upon such terms and conditions, and for such price, as may be mutually
agreed upon between the Parties, whether or not at the time of such purchase
circumstances exist which specifically grant the Company the right to purchase,
or the Purchaser the right to sell, shares of Stock or which specifically grant
the Company the right to cancel options or the Purchaser the right to receive
any Option Excess Price under the terms of this Agreement.
15. Covenant Regarding 83(b) Election.
Except as the Company may otherwise agree in writing, the Purchaser
hereby covenants and agrees that he will make an election provided pursuant to
Treasury Regulation 1.83-2 with respect to the Stock, including without
limitation, the Stock to be acquired pursuant to Section 1 and the Stock to be
acquired upon each exercise of the Purchaser's Options, and the Purchaser
further covenants and agrees that he will furnish the Company with copies of the
forms of election the Purchaser files within 30 days after the date hereof, and
within 30 days after each exercise of the Purchaser's Non-Qualified Options and
with evidence that each such election has been filed in a timely manner.
16. Notice of Change of Beneficiary.
Immediately prior to any transfer of Stock to the Purchaser's Trust,
the Purchaser shall provide the Company with a copy of the instruments creating
the Purchaser's Trust and with the identity of the beneficiaries of the
Purchaser's Trust. The Purchaser shall notify the Company immediately prior to
any change in the identity of any beneficiary of the Purchaser's Trust.
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17. Expiration of Certain Provisions.
The provisions contained in Sections 4, 5 and 6 of this Agreement and
the portion of any other provision of this Agreement which incorporates the
provisions of Section 4, 5 or 6, shall terminate and be of no further force or
effect with respect to any shares of Stock sold by the Purchaser pursuant to an
effective registration statement filed by the Company pursuant to Section 12
hereof.
18. Recapitalizations, etc.
The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to the Stock and the Options, to any and all shares of
capital stock of the Company or any capital stock, partnership units or any
other security evidencing ownership interests in any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) which
may be issued in respect of, in exchange for, or in substitution of the Stock or
the Options, by reason of any stock dividend, split, reverse split, combination,
recapitalization, liquidation, reclassification, merger, consolidation or
otherwise.
19. The Purchaser's Employment by the Company.
Nothing contained in this Agreement or in any other agreement entered
into by the Company and the Purchaser contemporaneously with the execution of
this Agreement (i) obligates the Company or any Subsidiary of the Company to
employ the Purchaser in any capacity whatsoever or (ii) prohibits or restricts
the Company (or any of its Subsidiaries) from terminating the employment, if
any, of the Purchaser at any time or for any reason whatsoever, with or without
Cause, and the Purchaser hereby acknowledges and agrees that neither the Company
nor any other person has made any representations or promises whatsoever to the
Purchaser concerning the Purchaser's employment or continued employment by the
Company.
20. State Securities Laws.
The Company hereby agrees to use its best efforts to comply with all
state securities or "blue sky" laws which might be applicable to the sale of the
Stock and the issuance of the Options to the Purchaser.
21. Binding Effect.
The provisions of this Agreement shall be binding upon and accrue to
the benefit of the Parties hereto and their respective heirs, legal
representatives, successors and assigns. In the case of a transferee permitted
under Section 2(a) hereof, such transferee shall be deemed the Purchaser
hereunder; provided, however, that no transferee (including without limitation,
transferees referred to in Section 2(a) hereof) shall derive any rights under
this Agreement unless and until such transferee has delivered to the Company a
valid undertaking to become bound by the terms of this Agreement.
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<PAGE>
22. Amendment.
This Agreement may be amended only by a written instrument signed by
the Parties hereto.
23. Closing.
Except as otherwise provided herein, the closing of each purchase and
sale of shares of Stock and the payment of the Option Excess Price, if any,
pursuant to this Agreement shall take place at the principal office of the
Company on the tenth business day following delivery of the notice by either
Party to the other of its exercise of the right to purchase or sell such Stock
hereunder or to cause the payment of the Option Excess Price, as the case may
be.
24. Applicable 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 against the Purchaser, with respect to this Agreement, or any
judgment entered by any court in respect of any thereof, may be brought in any
court of competent jurisdiction in the State of Delaware, and the Purchaser
hereby submits to the non-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 Purchaser appoints the Secretary of the Company, at its
principal office, as his 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 the Purchaser in the manner provided in Section
28 hereof, shall be deemed in every respect effective service of process upon
him in any suit, action or proceeding. Nothing herein shall in any way be deemed
to limit the ability of the Company to serve any such writs, process or
summonses in any other manner permitted by applicable law or to obtain
jurisdiction over the Purchaser, in such other jurisdictions and in such manner,
as may be permitted by applicable law. The Purchaser hereby irrevocably waives
any objections which he 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 court of competent jurisdiction in the State of Delaware, and
hereby further irrevocably waives 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 the Company or Acquisition 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 the Purchaser hereby irrevocably
waives any right which he may otherwise have had to bring such an action in any
other court, domestic or foreign, or before any similar domestic or foreign
authority. The Company and Acquisition hereby submit to the jurisdiction of such
courts for the purpose of any such suit, action or proceeding.
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<PAGE>
25. Assignability of Certain Rights by the Company.
The Company shall have the right to assign any or all of its rights or
obligations to purchase shares of Stock pursuant to Sections 4, 5 and 6 hereof.
26. Limited Liability of Members of Acquisition.
Notwithstanding any other provision of this Agreement, no recourse
under this Agreement or any documents or instruments delivered in connection
with this Agreement or any of the transactions contemplated hereby shall be had
against any current or future director, officer, employee, general or limited
partner or member, of Acquisition or KKR, or any of the foregoing, whether by
the enforcement of any assessment or by any legal or equitable proceeding, or by
virtue of any statute, regulation or other applicable law, it being expressly
agreed and acknowledged that no personal liability whatsoever shall attach to,
be imposed on or otherwise be incurred by any current or future officer, agent
or employee of, or any current or future member of Acquisition or any current or
future director, officer, employee, general or limited partner, member, assignee
or affiliate of any of the foregoing, as such for any obligation of Acquisition
under this Agreement or any documents or instruments delivered in connection
with this Agreement or any of the transactions contemplated hereby or for any
claim based on, in respect of or by reason of such obligations or their
creation.
27. Miscellaneous.
In this Agreement (i) all references to "dollars" or "$" are to United
States dollars and (ii) the word "or" is not exclusive. If any provision of this
Agreement shall be declared illegal, void or unenforceable by any court of
competent jurisdiction, the other provisions shall not be affected, but shall
remain in full force and effect.
28. Notices.
All notices and other communications provided for herein shall be in
writing and shall be deemed to have been duly given if delivered by hand
(whether by overnight courier or otherwise) or sent by registered or certified
mail, return receipt requested, postage prepaid, to the Party to whom it is
directed:
(a) If to the Company, to it at the following address:
Accuride Corporation
2315 Adams Lane
Henderson, Kentucky 42420
Attn: General Counsel
with a copy to:
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Latham & Watkins
885 Third Avenue
New York, New York 10022
Attn: Jed W. Brickner, Esq.
(b) If to Acquisition, to it at the following address:
c/o Kohlberg Kravis Roberts & Co., L.P.
2800 Sand Hill Road, Suite 200
Menlo Park, California 94025
Attn: James H. Greene, Jr.
with a copy to:
Latham & Watkins
885 Third Avenue
New York, New York 10022
Attn: Jed W. Brickner, Esq.
(c) If to the Purchaser, to him at his most recent address as reflected
in the Company's records, or at such other address as the Party shall have
specified by notice in writing to the other Parties in accordance with this
Section 28.
29. Covenant Not to Compete; Confidential Information.
(a) In consideration of the Company entering into this Agreement with
the Purchaser, the Purchaser hereby agrees effective as of the Purchase Date,
for so long as the Purchaser is employed by the Company or one of its
Subsidiaries or Affiliates (but not entities which are Affiliates solely by
reason of their relationship with KKR Partners II, L.P. ("Partners II")) and for
a period of one year thereafter (the "Noncompete Period"), the Purchaser shall
not, directly or indirectly, engage in the production, sale or distribution of
rims or wheels for vehicles or of any other product or service produced, sold or
distributed by the Company or its Subsidiaries or Affiliates (but not entities
which are Affiliates solely by reason of their relationship with Partners II) on
the date hereof or during the Noncompete Period anywhere in the world in which
the Company or its Subsidiaries or Affiliates (but not entities which are
Affiliates solely by reason of their relationship with Partners II) is doing
business other than through the Purchaser's employment with the Company or any
of its Subsidiaries or Affiliates. At the Company's option, the Noncompete
Period may be extended for an additional one year period if (i) within nine
months following the termination of the Purchaser's employment, the Company
gives the Purchaser notice of such extension and (ii) beginning with the first
anniversary of such date of termination, the Company pays the Purchaser, in
installments consistent with the Company's then current salary payment policies,
an amount equal to the Purchaser's base salary on the date of the termination of
his employment. For purposes of this Agreement, the phrase "directly or
indirectly engage in" shall include any direct or indirect ownership or profit
participation interest
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<PAGE>
in an enterprise, whether as an owner, stockholder, partner, member, joint
venturer of otherwise, and shall include any direct or indirect participation in
an enterprise as a consultant, licensor of technology or otherwise. Nothing
herein will prevent the Purchaser from, at any time, owning in the aggregate not
more than 1% of the outstanding stock of any publicly traded class of stock of a
corporation.
(b) The Purchaser will not disclose or use at any time for so long as
the Purchaser is employed by the Company or one of its Subsidiaries or
Affiliates and for a period of five years thereafter, any Confidential
Information (as defined below) of which the Purchaser is or becomes aware,
whether or not such information is developed by him, except to the extent that
such disclosure or use is directly related to and required by the Purchaser's
performance of duties, if any, assigned to the Purchaser by the Company. As used
in this Agreement, the term "Confidential Information" means information that is
not generally known or available to the public and that is used, developed or
obtained by the Company or its Subsidiaries or Affiliates in connection with its
businesses, including but not limited to, (i) products or services; (ii) fees,
costs and pricing structures; (iii) designs; (iv) computer software, including
operating systems, applications and program listings; (v) flow charts, manuals
and documentation; (vi) data bases; (vii) accounting and business methods;
(viii) inventions, devices, new developments, methods and processes, whether
patentable or unpatentable and whether or not reduced to practice; (ix)
customers or customer requirements, order levels or projections and customer or
client lists; (x) other copyrightable works; (xi) all technology and trade
secrets; and (xii) all similar and related information in whatever form.
Confidential Information will not include any information that has been
published in a form generally available to the public prior to the date the
Purchaser proposes to disclose or use such information. The Purchaser
acknowledges and agrees that all copyrights, works, inventions, innovations,
improvements, developments, patents, trademarks and all similar or related
information which relate to the actual or anticipated business of the Company
and its Subsidiaries and Affiliates (including its predecessors) and conceived,
developed or made by the Purchaser while employed by the Company or its
Subsidiaries or Affiliates belong to the Company. The foregoing sentence does
not apply to any copyrights, works, inventions, innovations, improvements,
developments, patents, trademarks or other information: (i) for which no
equipment, supplies, facility or Confidential Information of the Company were
used; (ii) which were developed entirely on the Executive's own time; (iii)
which do not relate at the time of conception or reduction to practice to the
Company's current business or its anticipated research or development; and (iv)
which do not result from any work performed by Executive for the Company. The
Purchaser will perform all actions reasonably requested by the Company (whether
during or after the Noncompete Period) to establish and confirm such ownership
at the Company's expense (including without limitation assignments, consents,
powers of attorney and other instruments).
(c) Notwithstanding subsections (a) and (b) above, if at any time a
court holds that any of the restrictions stated in such subsections (a) and (b)
are unreasonable or otherwise unenforceable under circumstances then existing,
the Parties hereto agree that the maximum period, scope or geographic area
determined to be reasonable under such circumstances by such
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<PAGE>
court will be substituted for the stated period, scope or geographic area, and
will be effective, binding and enforceable against the Purchaser. Because the
Purchaser's services are unique and because the Purchaser has had access to
Confidential Information, the Parties hereto agree that money damages will be an
inadequate remedy for any breach of this Agreement. In the event a breach or
threatened breach of this Agreement, the Company or its successors or assigns
may, in addition to other rights and remedies existing in their favor, apply to
any court of competent jurisdiction for specific performance and/or injunctive
relief in order to enforce, or prevent any violations of, the provisions hereof
(without the posting of a bond or other security).
[signature page follows]
IN WITNESS WHEREOF, the Parties have executed this Stockholder's
Agreement as of the date first above written.
ACCURIDE CORPORATION
By
----------------------------------
HUBCAP ACQUISITION L.L.C.
By
----------------------------------
THE PURCHASER
By
----------------------------------
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Exhibit 4.7
ASSIGNMENT AND AMENDMENT OF STOCKHOLDERS' AGREEMENT
This Assignment and Amendment of Stockholders' Agreement, dated as of
September 30, 1998 (the "Assignment") is made among Phelps Dodge Corporation, a
New York corporation ("Phelps Dodge"), Accuride Corporation, a Delaware
corporation ("Accuride"), Hubcap L.L.C., a Delaware limited liability company
("Hubcap") and RSTW Partners, III, L.P., a Delaware limited partnership
("RSTW").
WHEREAS, Phelps Dodge, Accuride and Hubcap are parties to the
Stockholders' Agreement, dated as of January 21, 1998 (the "Stockholders'
Agreement"). Capitalized terms used herein and not defined herein, shall have
the meaning assigned to them in the Stockholders' Agreement if defined therein.
WHEREAS, Phelps Dodge is the owner of 2,400 shares of common stock, par
value $.01 per share (the "Shares"), of Accuride.
WHEREAS, Phelps Dodge and RSTW have entered into a Share Purchase
Agreement, dated as of September 30, 1998, pursuant to which Phelps Dodge will
sell the Shares to RSTW for $12,800,000 in cash, a copy of which is attached
hereto as Exhibit A.
NOW THEREFORE, in consideration of these premises, and other valuable
consideration the receipt of which is acknowledged, the parties hereby agree as
follows:
1. Assignment and Assumption.
Phelps Dodge hereby transfers, conveys, assigns and delivers to RSTW,
and RSTW hereby assumes, all of Phelps Dodge's rights, duties and
obligations under the Stockholders' Agreement, except that RSTW does
not assume and shall not be liable for any obligation of Phelps Dodge
under the Stockholders' Agreement which arose out of or relate to
events or circumstances which occurred or existed prior to the date of
this Assignment or any other obligations of Phelps Dodge, which
obligations and liabilities shall continue to be the obligations and
liabilities of Phelps Dodge. Upon execution of this Assignment, RSTW
shall become a party to the Stockholders' Agreement as a Phelps Holder,
and agrees to be bound by, and to comply fully with, the provisions of
the Stockholders' Agreement as a Phelps Holder.
2. Acknowledgments.
Accuride represents and warrants that (i) Exhibit B is a true and
correct copy of Accuride's declination to accept the offer of Phelps
Dodge set forth in its letter of August 18, 1998. and (ii) the number
of authorized shares of capital stock of Accuride on the date of this
Assignment is 50,000, of which 45,000 shares are common stock, of which
24,704 were outstanding as of June 30, 1998, and 5,000 shares are
preferred stock, none of which are outstanding as of such date. No
shares of common stock have been issued since June 30, 1998 other than
in connection with Accuride's 1998 Employee Stock Purchase and Option
Plan.
RSTW represents and warrants that it is not engaged, directly or
indirectly, in the manufacture, sale or distribution , and does not
own, manage or control, directly or indirectly, any Person which
engages in the manufacture, sale or distribution of rims, and wheels
for vehicles anywhere.
3. Notices.
The parties agree that after the date hereof, all notices to be sent to
a Phelps Holder shall be sent in care of:
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RSTW Partners III, L.P.
Rice Sangalis Toole & Wilson
5847 San Felipe, Suite 4350
Houston, Texas 77057
Facsimile: (713) 783-9750
Attention: Robert Q. Berlin
with a copy to:
Patton Boggs LLP
2200 Ross Avenue, Suite 200
Dallas, Texas 75201
Facsimile: (214) 871-2688
Attention: James C. Chadwick
4. Miscellaneous.
This Assignment shall become effective upon it being executed by all of
the parties hereto and upon consummation of the sale of the Shares
pursuant to the Share Purchase Agreement. Upon effectiveness of this
Assignment, Phelps Dodge shall no longer be a party to the
Stockholders' Agreement, and shall have no liability for performance
after the effectiveness of this Assignment of any provisions thereof or
obligations thereunder. The Stockholders' Agreement shall remain in
full force and effect, and is not amended or modified except as
expressly set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ACCURIDE CORPORATION,
a Delaware corporation
By: /s/ John R. Murphy
---------------------------------
HUBCAP ACQUISITION, L.L.C.
a Delaware limited liability company
By: /s/ James H. Greene, Jr.
---------------------------------
PHELPS DODGE CORPORATION
a New York Corporation
By: /s/ Thomas St. Clair
---------------------------------
RSTW PARTNERS III, L.P.
24
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a Delaware limited partnership
By: RSTW Management, L.P.
its general partner
By: Rice Mezzanine Corporation,
its general partner
By: /s/ Jeffrey Alan Toole
---------------------------------
25
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Exhibit 5.1
[Latham & Watkins Letterhead]
December 2, 1998
Accuride Corporation
2315 Adams Lane
Henderson, Kentucky 42420
Re: Accuride Corporation
1,899 shares of Common Stock, par value $0.01 per share
Ladies/Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended (the "Act"), of an aggregate of 1,899 shares (the "Shares") of common
stock, par value $0.01 per share, of Accuride Corporation (the "Company")
issuable under the 1998 Stock Purchase and Option Plan For Employees of Accuride
Corporation and Subsidiaries (the "Plan"), by the Company on Form S-8 filed with
the Securities and Exchange Commission (the "Commission") on December 2, 1998
(the "Registration Statement"), you have requested our opinion with respect to
the matters set forth below.
In our capacity as your counsel in connection with such registration,
we are familiar with the proceedings taken and proposed to be taken by the
Company in connection with the authorization, issuance and sale of the Shares.
In addition, we have made such legal and factual examinations and inquiries,
including an examination of originals or copies certified or otherwise
identified to our satisfaction of such documents, corporate records and
instruments, as we have deemed necessary or appropriate for purposes of this
opinion.
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, and the
conformity to authentic original documents of all documents submitted to us as
copies.
We are opining herein as to the effect on the subject transaction only
of the General Corporation Law of the State of Delaware, and we express no
opinion with respect to the applicability thereto, or the effect thereon, of any
other laws, or as to any matters of municipal law or the laws of any other local
agencies within the State of Delaware.
Subject to the foregoing, it is our opinion that the Shares to be
issued under the Plan have been duly authorized, and upon the issuance and
delivery of the Shares, in the manner contemplated by the Plan, and assuming the
Company completes all actions and proceedings required on its part to be taken
prior to the issuance and delivery of the Shares pursuant to the terms of the
Plan, including, without limitation, collection of required payment for the
Shares, the Shares will be validly issued, fully paid and nonassessable.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to or relied upon by
any other person, firm or corporation for any purpose, without our prior written
consent. We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ LATHAM & WATKINS
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Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Accuride Corporation on Form S-8 of our report dated January 28, 1998 (March 31,
1998 as to the last paragraph of Note 14), appearing in Form S-4 of Accuride
Corporation, dated July 23, 1998.
DELOITTE & TOUCHE LLP
Indianapolis, Indiana
November 30, 1998
