Contribution Agreement

EXHIBIT 10.9


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CONTRIBUTION AGREEMENT


among


ACCURIDE CORPORATION,


KAISER ALUMINUM &
CHEMICAL CORPORATION,


AKW General Partner L.L.C.


and


AKW L.P.


dated as of May 1, 1997


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TABLE OF CONTENTS
Page
---- ARTICLE I.


DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . .2


ARTICLE II.


THE TRANSACTIONS; CLOSING. . . . . . . . . . . . . . . . 17
2.1 Formation of the Company. . . . . . . . . . . . . . 17
2.2 Purchase and Sale of Accuride Purchased Inventory;
Capital Contributions to General Partner and the
Company; Ancillary Agreements . . . . . . . . . . . 17
2.3 Accuride Sub Purchase of Company Interest . . . . . 23
2.4 Company Purchase of Kaiser Inventory. . . . . . . . 24
2.5 Contributions and Transfers . . . . . . . . . . . . 24
2.6 Determination of Fair Market Value of Inventory . . 24
2.7 Employee Related Price Adjustments. . . . . . . . . 25
2.8 Assumption of Liabilities; Excluded Liabilities . . 30
2.9 Excluded Contracts. . . . . . . . . . . . . . . . . 32
2.10 Closing. . . . . . . . . . . . . . . . . . . . . . 32


ARTICLE III.


REPRESENTATIONS AND WARRANTIES OF KAISER . . . . . . . . 33
3.1 Corporate Existence, Power and Authorization. . . . 33
3.2 No Conflicts; Consents and Approvals. . . . . . . . 34
3.3 Governmental Authorizations; Compliance with Law. . 35
3.4 Real Property . . . . . . . . . . . . . . . . . . . 36
3.5 Assets. . . . . . . . . . . . . . . . . . . . . . . 39
3.6 Material Agreements . . . . . . . . . . . . . . . . 41
3.7 Intellectual Property . . . . . . . . . . . . . . . 42
3.8 Labor Matters . . . . . . . . . . . . . . . . . . . 43
3.9 Employee Benefit Plans; ERISA . . . . . . . . . . . 43
3.10 Litigation . . . . . . . . . . . . . . . . . . . . 44
3.11 Taxes. . . . . . . . . . . . . . . . . . . . . . . 45
3.12 Environmental Matters. . . . . . . . . . . . . . . 45
3.13 Insurance. . . . . . . . . . . . . . . . . . . . . 48
3.14 Brokers. . . . . . . . . . . . . . . . . . . . . . 48
3.15 Customers and Suppliers. . . . . . . . . . . . . . 48
3.16 Disclosure . . . . . . . . . . . . . . . . . . . . 48
3.17 Product Liability. . . . . . . . . . . . . . . . . 49


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ARTICLE IV.


REPRESENTATIONS AND WARRANTIES OF ACCURIDE . . . . . . . 49
4.1 Corporate Existence, Power and Authorization. . . . 49
4.2 No Conflicts; Consents and Approvals. . . . . . . . 50
4.3 Governmental Authorizations; Compliance with Law. . 51
4.4 Assets. . . . . . . . . . . . . . . . . . . . . . . 52
4.5 Material Agreements . . . . . . . . . . . . . . . . 53
4.6 Intellectual Property . . . . . . . . . . . . . . . 53
4.7 Litigation. . . . . . . . . . . . . . . . . . . . . 54
4.8 Taxes . . . . . . . . . . . . . . . . . . . . . . . 55
4.9 Employee Benefit Plans; ERISA . . . . . . . . . . . 55
4.10 Insurance . . . . . . . . . . . . . . . . . . . . . 56
4.11 Brokers . . . . . . . . . . . . . . . . . . . . . . 56
4.12 Product Liability . . . . . . . . . . . . . . . . . 56
4.13 Disclosure. . . . . . . . . . . . . . . . . . . . . 56


ARTICLE V.


CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . 57
5.1 Conditions to Obligations of All Parties. . . . . . 57
5.2 Conditions to Obligations of Accuride . . . . . . . 59
5.3 Conditions to Obligations of Kaiser . . . . . . . . 61


ARTICLE VI.


COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . 62
6.1 Covenants of Accuride and Kaiser. . . . . . . . . . 62
6.2 Covenants of Kaiser - Employee Matters. . . . . . . 66
6.3 Covenants of Kaiser - Environmental Matters . . . . 68
6.4 Covenants of Kaiser - Phase I Improvements. . . . . 70
6.5 Covenants of the Company - Environmental Matters. . 70
6.6 Covenants of the Company - Employee Matters . . . . 71
6.7 Speedline Agreements. . . . . . . . . . . . . . . . 81
6.8 Accuride Excluded Contracts . . . . . . . . . . . . 83


ARTICLE VII.


INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . 84
7.1 Indemnification . . . . . . . . . . . . . . . . . . 84
7.2 Indemnification Procedures. . . . . . . . . . . . . 88
7.3 Third-Party Beneficiaries . . . . . . . . . . . . . 89


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ARTICLE VIII.


MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . 89
8.1 Termination . . . . . . . . . . . . . . . . . . . . 89
8.2 Governing Law . . . . . . . . . . . . . . . . . . . 90
8.3 Arbitration . . . . . . . . . . . . . . . . . . . . 90
8.4 Survival. . . . . . . . . . . . . . . . . . . . . . 91
8.5 Entire Agreement; Amendment; Assignment, etc. . . . 91
8.6 Notices . . . . . . . . . . . . . . . . . . . . . . 92
8.7 Expenses. . . . . . . . . . . . . . . . . . . . . . 94
8.8 Severability. . . . . . . . . . . . . . . . . . . . 95
8.9 No Third-Party Beneficiaries. . . . . . . . . . . . 95
8.10 Section Headings; Counterparts; etc . . . . . . . . 95
8.11 Further Assurances. . . . . . . . . . . . . . . . . 95


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Schedules Schedule 1 Phase 1 Improvements Schedule 2.2 Capital Contributions Schedule 2.2(d)(ii) Accuride Contracts Schedule 2.2 (e) Kaiser Excluded Assets and Excluded Inventory Schedule 2.2(e)(ii) Kaiser Machinery, Equipment, Furniture Schedule 2.2(e)(iii) Kaiser Contracts Schedule 2.7 Employee Related Price Adjustments Schedule 2.8 Assumed Liabilities


Schedule 3.1 Kaiser Investments Schedule 3.2 Kaiser Consents Schedule 3.3 Kaiser Governmental Authorizations Schedule 3.4 Assigned Real Property Lease Agreements Schedule 3.4(b) Kaiser Permitted Real Property Liens Schedule 3.4(d) Lease Exceptions Schedule 3.5 Liens on Kaiser Assets and Inventory Schedule 3.7 Kaiser Intellectual Property Schedule 3.8 Kaiser Labor Matters Schedule 3.9 Kaiser Employee Benefit Plans Schedule 3.10 Kaiser Litigation Schedule 3.12 Kaiser Environmental Matters Schedule 3.13 Kaiser Insurance Schedule 3.15 Kaiser Customers and Suppliers Schedule 3.17 Kaiser Product Liability Schedule 4.1 Accuride Investments Schedule 4.2 Accuride Consents Schedule 4.3 Accuride Governmental Authorizations Schedule 4.4 Liens on Accuride Assets Schedule 4.6 Accuride Intellectual Property Schedule 4.7 Accuride Litigation Schedule 4.10 Accuride Insurance Schedule 4.12 Accuride Product Liability Schedule 6.3 Kaiser Environmental Compliance Schedule 6.3(a) Pits Operation and Maintenance Plan


Exhibits


Exhibit A Certificate of Limited Partnership Exhibit B Limited Partnership Agreement Exhibit C Interest Purchase Agreement Exhibit D Erie Lease Agreement Exhibit E Accuride Technical Services Agreement Exhibit F Kaiser Technical Services Agreement Exhibit G Accuride Sales and Marketing Agreement Exhibit H Kaiser Manufacturing Agreement Exhibit I Accuride Administrative Services Agreement


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Exhibit J Trademark License Agreement Exhibit K Kaiser Production Services Agreement Exhibit L CFT Agreement Exhibit M Limited Liability Company Agreement Exhibit N Certificate of Formation of LLC Exhibit O Kaiser Administrative Services Agreement


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CONTRIBUTION AGREEMENT, dated as of May 1, 1997, among ACCURIDE CORPORATION, a Delaware corporation ("Accuride"), KAISER ALUMINUM & CHEMICAL CORPORATION, a Delaware corporation ("Kaiser"), AKW General Partner L.L.C., a Delaware limited liability company (the "General Partner"), and AKW L.P., a Delaware limited partnership (the "Company").


W I T N E S S E T H:


WHEREAS, Accuride and Kaiser have formed the Company as a limited partnership under the laws of Delaware, pursuant to a Certificate of Limited Partnership in the form of Exhibit A hereto (the "Certificate of Limited Partnership"), in order to engage in the Business (as hereinafter defined);


WHEREAS, Accuride, through Accuride Ventures, Inc., a Delaware corporation and wholly-owned subsidiary of Accuride ("Accuride Sub"), and Kaiser desire to enter into a limited partnership agreement, in the form of Exhibit B hereto (the "Limited Partnership Agreement"), providing for the formation and operation of the Company and for certain rights and restrictions applicable to the limited partners thereof;


WHEREAS, each of Accuride, through Accuride Sub, and Kaiser desires to contribute certain assets to the Company and to receive limited partnership interests in the Company proportionate to its respective capital contribution;


WHEREAS, in connection with the transactions contemplated by this Agreement, Accuride Sub and Kaiser have entered into an interest purchase agreement, dated the date hereof, in the form of Exhibit C hereto (the "Interest Purchase Agreement"), pursuant to which Kaiser will sell a portion of its Interest (as defined herein) to Accuride Sub, so that upon consummation of such sale each of Accuride Sub and Kaiser will have 50% of the limited partners' total Interest in the Company;


WHEREAS, Accuride Sub and Kaiser have formed the General Partner as a limited liability company under the laws of Delaware, pursuant to a Certificate of Formation of Limited Liability Company in the form of Exhibit N hereto (the "Certificate of Formation of LLC"), in order to act as the general partner of the Company; and desire to capitalize the General Partner with assets such that each of Accuride


Sub and Kaiser will have a 50% interest in the General Partner; and desire to enter into a limited liability company agreement, in the form of Exhibit M hereto (the "Limited Liability Company Agreement"), providing for certain rights and restrictions applicable to the members thereof;


WHEREAS, the General Partner desires to contribute such assets to the Company and to receive a 2% Interest in the Company;


NOW, THEREFORE, in consideration of the mutual covenants, and subject to the terms and conditions, contained herein, the parties hereto agree as follows:


ARTICLE I.


DEFINITIONS


Capitalized terms used in this Agreement shall have the meanings set forth below or in the Section of this Agreement referred to below:


"Accountant" has the meaning given in Section 2.7.


"Accumulated Benefit Obligation" has the meaning given in Section 2.7(ii).


"Accumulated Postretirement Benefit" or "APBO" has the meaning given in Section 2.7(ii).


"Accuride" has the meaning given in the first paragraph hereof.


"Accuride Administrative Services Agreement" means the administrative services agreement between Accuride and the Company, to be dated the Closing Date, substantially in the form of Exhibit I hereto.


"Accuride Assets" has the meaning given in Section 2.2(d).


"Accuride Contracts" has the meaning given in Section 2.2(d).


"Accuride Contributed Intellectual Property" has the meaning given in Section 2.2(d).


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"Accuride Employee" means any employee of Accuride who, pursuant to this Agreement or any other Ancillary Agreement, becomes employed by the Company on the Closing Date or within 90 days thereafter.


"Accuride Excluded Contracts" has the meaning given in Section 2.2(d).


"Accuride Excluded Intellectual Property" means (A) the Accuride Licensed Intellectual Property, (B) any marks and names that incorporate the "Accuride" name or any variant thereof, (C) the Finite Element Analysis software and IDEA2000 programs, and (D) any other Intellectual Property listed on Schedule 4.6 (B).


"Accuride Initial Company Interest" has the meaning given in Section 2.2(d).


"Accuride Intellectual Property" has the meaning given in Section 4.6.


"Accuride Intellectual Property Licenses" has the meaning given in Section 4.6.


"Accuride Inventory Purchase Price" has the meaning given in Section 2.2(a).


"Accuride Licensed Intellectual Property" has the meaning given in Section 2.2(d).


"Accuride Owned Intellectual Property" has the meaning given in Section 4.6.


"Accuride Purchased Interest" has the meaning given in Section 2.3.


"Accuride Purchased Inventory" has the meaning given in Section 2.2(a).


"Accuride Retained Inventory" has the meaning given in Section 2.2(d).


"Accuride Sales and Marketing Agreement" means the Accuride Sales and Marketing Agreement between Accuride and the Company, to be dated as of the Closing Date, substantially in the form of Exhibit G hereto.


"Accuride Severance Plan" has the meaning given in Section 6.6(i).


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"Accuride Sub" has the meaning given in the recitals.


"Accuride Technical Services Agreement" means the Accuride Technical Services Agreement between Accuride and the Company, to be dated as of the Closing Date, substantially in the form of Exhibit E hereto.


"ACM Expenditures" has the meaning given in Section 6.3.


"Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with, such Person. Control of any Person shall consist of the power to direct the management and policies of such Person whether through the ownership of voting securities or by contract or otherwise and shall be deemed to exist upon the ownership of securities entitling the holder thereof to exercise more than 50% of the voting power in the election of directors of such Person.


"Agreements" has the meaning given in Section 3.6.


"Amended and Restated Aluminum Supply Agreement" has the meaning given in Section 7.1(d).


"Ancillary Agreements" means this Agreement, the Certificate of Formation of LLC, the Limited Liability Company Agreement, the Certificate of Limited Partnership, the Limited Partnership Agreement, the Interest Purchase Agreement, the Erie Lease Agreement, the Accuride Administrative Services Agreement, the Accuride Technical Services Agreement, the Trademark License Agreement, the Kaiser Technical Services Agreement, the Accuride Sales and Marketing Agreement, the Kaiser Manufacturing Agreement, the CFT Agreement, the Kaiser Production Services Agreement, the Kaiser Administrative Services Agreement and all other agreements or instruments entered into or executed in connection with any of the Transactions which the parties agree to treat as Ancillary Agreements pursuant to Section 2.2(f).


"Applicable Law" means all applicable provisions of all constitutions, treaties, statutes, laws (including, but not limited to, the common law), rules, regulations, ordinances, codes or orders of any Governmental Authority and of all orders, decisions, injunctions, judgments, awards and decrees or consents of or agreements with any Governmental Authority.


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"Assigned Contracts" has the meaning given in Section 2.2(e)(iii).


"Assigned Lease Properties" has the meaning given in Section 3.4.


"Assignment" has the meaning given in Section 6.7.


"Assumed Liabilities" has the meaning given in Section 2.8.


"Bargaining Unit Kaiser Employee" means any Kaiser Employee who is covered under the terms of a collective bargaining agreement with Kaiser in effect immediately prior to the Closing Date.


"Bargaining Unit 401(k) Plan" has the meaning given in Section 6.6(c).


"Bargaining Unit Pension Plan" has the meaning given in Section 6.6(a).


"Benefit Uplift" has the meaning given in Section 2.7(ii).


"Business" means the design, manufacture, marketing and sale of Joint Venture Products and, as reference requires, means such Business as conducted by Kaiser or Accuride, in each case prior to the Closing Date, or, upon formation of the Company, as it will be conducted by the Company on and after the Closing Date.


"Business Day" means any calendar day other than a Saturday or Sunday or a day on which either state or national banks in the States of Arizona, California, Kentucky, Ohio, Pennsylvania or New York are not open for the conduct of normal banking business.


"Business Plan" means the definitive business plan for the Company in substantially the form of Exhibit A to the Limited Partnership Agreement.


"CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601 et seq.


"Certificate of Formation of LLC" has the meaning given in the recitals.


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"Certificate of Limited Partnership" has the meaning given in the recitals.


"CFT Agreement" means the CFT Agreement between Kaiser and the Company, to be dated as of the Closing Date, substantially in the form of Exhibit L hereto.


"Claim" has the meaning given in Section 7.1.


"Closing" has the meaning given in Section 2.10.


"Closing Date" has the meaning given in Section 2.10.


"Code" means the Internal Revenue Code of 1986, as amended from time to time, and any successor act thereto, and, to the extent applicable, any Treasury Regulations promulgated thereunder.


"Commissioned Studies" has the meaning given in Section 3.6.


"Company" has the meaning given in the first paragraph hereof.


"Company Inventory Purchase Price" has the meaning given in Section 2.4.


"Company Purchased Inventory" has the meaning given in Section 2.4.


"Company Severance Plan" has the meaning given in Section 6.6(i).


"Employee" means any Accuride Employee and any Kaiser Employee.


"Employee Related Price Adjustment" has the meaning given in Section 2.7.


"Environmental Compliance Plan" has the meaning given in Section 6.3.


"Environmental Laws" means any and all federal, state and local laws (including case law), regulations, ordinances, rules, orders, permits and governmental restrictions relating to human health or the environment, including without limitation, ambient air, surface water, ground water, sewers or land, or within any building, tunnel, pit


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or other structure, including, without limitation, those relating to the generation, manufacture, treatment, storage or disposal of Hazardous Substances.


"Erie Facilities" means all the real property that is owned or leased by Kaiser and located in Erie, Pennsylvania, together with the buildings, structures and improvements thereon, except for the Erie Property.


"Erie Lease Agreement" means the Erie Lease Agreement between Kaiser and the Company, to be dated as of the Closing Date, substantially in the form of Exhibit D hereto.


"Erie Property" has the meaning given in Section 3.4.


"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.


"Fair Market Value" means the lower of cost or market value, adjusted, in the case of the Kaiser Included Inventory, to reflect the actual fair market value of the metal content pursuant to Section 2.6 without taking into account costs of hedging or other price protection support relating thereto.


"Fully Eligible Kaiser Employees" has the meaning given in Section 6.2(b).


"General Partner" has the meaning given in the first paragraph hereof.


"Governmental Authority" means any nation or political subdivision thereof, including any state, county or municipality; and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any of the foregoing, including, without limitation, any legislature, elected official, authority, agency, department, board, commission, court, tribunal or instrumentality.


"Governmental Authorizations" has the meaning given in Section 3.3.


"Hazardous Substances" means (i) any substance currently listed, defined, designated, regulated or classified as hazardous, toxic, radioactive or dangerous, under any Environmental Law applicable in the jurisdiction in which the Business operates and (ii) any toxic waste, pollu-


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tant, contaminant, toxic substance, hazardous waste, petroleum, or any fraction thereof, radon, radioactive material, friable asbestos containing material, urea formaldehyde foam insulation, lead and polychlorinated biphenyls.


"Indemnified Party" has the meaning given in Section 7.2.


"Indemnifying Party" has the meaning given in Section 7.2.


"Intellectual Property" means any and all United States and foreign: (i) patents (including design patents, industrial designs and utility models) and patent applications (including docketed patent disclosures awaiting filing, reissues, divisions, continuations-in-part and extensions), patent disclosures awaiting filing determination, inventions and improvements thereto made or developed prior to the Closing Date; (ii) trademarks, service marks, trade names, trade dress, logos, business and product names, slogans, and registrations and applications for registration thereof; (iii) copyrights (including software) and registrations thereof; (iv) inventions, processes, designs, formulae, trade secrets, know-how, industrial models, confidential and technical information, manufacturing, engineering and technical drawings, product specifications and confidential business information; (v) intellectual property rights similar to any of the foregoing; and (vi) copies and tangible embodiments thereof (in whatever form or medium, including electronic media).


"Interest" means, with respect to a Partner, the entire partnership interest of such Partner in the Company at any time, which interest shall be determined as provided in the definition of "Interest" set forth in Article I of the Limited Partnership Agreement.


"Interest Purchase Agreement" has the meaning given in the recitals.


"Joint Venture Products" means (i) aluminum wheels 16" in diameter and larger primarily for light, medium and heavy duty trucks, trailers and buses (classes 1-8), although certain of such wheels may also be sold into the automotive original


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equipment manufacturer market; (ii) tire molds for automotive and light-medium-heavy truck applications, as to each of clauses (i) and (ii) above, produced by forging, fabricating or casting for marketing and sale worldwide, including without limitation in the original equipment manufacturer market, after-market and repair and replacement markets; and (iii) such additional or different products as the Members Committee (as defined in the Limited Liability Company Agreement) may approve pursuant to Section 6.4 of the Limited Liability Company Agreement. Notwithstanding the foregoing, Joint Venture Products shall not include, without Kaiser's written consent, motorcycle wheels and wheel parts, wheel centers for any applications, forged one piece wheel blanks sold to other wheel manufacturers and finished wheels for the automotive aftermarket market produced or being contemplated for production by Kaiser.


"Kaiser" has the meaning given in the first paragraph hereof.


Kaiser Administrative Services Agreement" means the administrative services agreement between Kaiser and the Company in substantially the form of Exhibit O hereto.


"Kaiser Assets" has the meaning given in Section 2.2(e).


"Kaiser 401(k) Plan" has the meaning given in Section 6.6(d).


"Kaiser Contracts" has the meaning given in Section 2.2(e).


"Kaiser Contributed GP Inventory" has the meaning given in Section 2.2(e).


"Kaiser Contributed LP Inventory" has the meaning given in Section 2.2(b).


"Kaiser Employee" means any employee of Kaiser who is actively employed in connection with the Business and who, pursuant to this Agreement or any other Ancillary Agreement, becomes employed by the Company on the Closing Date or within 90 days thereafter or, in the case of a Bargaining Unit Kaiser Employee, within such other period of time following the Closing Date as may be specified in any agreement between the Company and the Union. Any Employee of Kaiser who is on short-term disability, such as maternity leave, or other authorized short-term leave of absence and who immediately prior to going on such leave had been actively employed in connection with the Business shall be considered "actively employed" for purposes of the preceding sentence.


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"Kaiser Excluded Assets and Excluded Inventory" has the meaning given in Section 2.2(e).


"Kaiser Excluded Inventory" has the meaning given in Section 2.2(e).


"Kaiser Included Inventory" means all inventories of Joint Venture Products held by or on behalf of Kaiser on the Closing Date, other than the Kaiser Excluded Inventory.


"Kaiser Initial Company Interest" has the meaning given in Section 2.2(e).


"Kaiser Intellectual Property" has the meaning given in Section 3.7.


"Kaiser Intellectual Property Licenses" has the meaning given in Section 3.7.


"Kaiser Manufacturing Agreement" means the Manufac ...