Accuride 10-K 2010
Documents found in this filing:
Commission File Number 333-50239
Registrant's telephone number, including area code: (812) 962-5000
registered pursuant to Section 12(b) of the Act:
Securities registered pursuant to Section 12(g) of the Act:
Indicate by check mark whether the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No ý
Indicate by check mark whether the registrant is not required to file reports pursuant to Section 13 of Section 15(d) of the Act. Yes o No ý
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ý No o
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes o No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ý
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.
Indicate by check mark whether the registrant is a shell company (as defined in Exchange Act Rule 12b-2). Yes o No ý
The aggregate market value of the registrant's common stock held by non-affiliates based on the Over The Counter Bulletin Board closing price as of June 30, 2009 (the last business day of registrant's most recently completed second fiscal quarter) was approximately $10,481,325. This calculation does not reflect a determination that such persons are affiliates of registrant for any other purposes.
The number of shares of Common Stock, $0.01 par value, of Accuride Corporation outstanding as of March 29, 2010 was 126,294,882.
We are one of the largest and most diversified manufacturers and suppliers of commercial vehicle components in North America. Our products include commercial vehicle wheels, wheel-end components and assemblies, truck body and chassis parts, seating assemblies and other commercial vehicle components. We market our products under some of the most recognized brand names in the industry, including Accuride, Gunite, Imperial, Bostrom, Fabco, Brillion, and Highway Original. We believe that we have number one or number two market positions in steel wheels, forged aluminum wheels, brake drums, disc wheel hubs, spoke wheels, metal grills, metal bumpers, crown assemblies, chrome plating and polishing, seating assemblies and fuel tanks in commercial vehicles. We serve the leading original equipment manufacturers, or OEMs, and their related aftermarket channels in most major segments of the commercial vehicle market, including heavy- and medium-duty trucks, commercial trailers, light trucks, buses, as well as specialty and military vehicles.
Our primary product lines are standard equipment used by a majority of North American heavy- and medium-duty truck OEMs, creating a significant barrier to entry. We believe that substantially all heavy-duty truck models manufactured in North America contain one or more of our components.
Our diversified customer base includes substantially all of the leading commercial vehicle OEMs, such as Daimler Truck North America, LLC, with its Daimler Truck North America, Western Star brand trucks, PACCAR, Inc., with its Peterbilt and Kenworth brand trucks, Navistar, Inc. ("International Truck"), with its International brand trucks, and Volvo Truck Corporation, or Volvo/Mack, with its Volvo and Mack brand trucks. Our primary commercial trailer customers include leading commercial trailer OEMs, such as Great Dane Limited Partnership and Wabash National, Inc. Our major light truck customer is General Motors Corporation. Our product portfolio is supported by strong sales, marketing and design engineering capabilities and is manufactured in 17 strategically located, technologically-advanced facilities across the United States, Mexico, and Canada.
Our business consists of seven operating segments that design, manufacture, and distribute components for trucks, trailers, and other vehicles. These operating segments are aggregated into three reportable segments as each reportable segment has similar economic characteristics, products and production processes, class of customer and distribution methods. The Wheels segment's products consist of wheels for heavy- and medium-duty trucks and commercial trailers. The Components segment's products consist of truck body and chassis parts, wheel-end components and assemblies, and seats. The Other segment's products primarily consist of other commercial vehicle components, including steerable drive axles and gearboxes. We believe this segmentation is appropriate based upon management's operating decisions and performance assessment. Our financial results for the previous three fiscal years are discussed in "Item 7: Management's Discussion and Analysis of Financial Condition and Results of Operation" and "Item 8: Financial Statements and Supplementary Data" of this Annual Report.
Accuride Corporation, a Delaware corporation, and Accuride Canada Inc., a corporation formed under the laws of the province of Ontario, Canada, and a wholly owned subsidiary of Accuride, were incorporated in November 1986 for the purpose of acquiring substantially all of the assets and assuming certain of the liabilities of Firestone Steel Products, a division of The Firestone Tire & Rubber Company. The respective acquisitions by the companies were consummated in December 1986.
On January 31, 2005, pursuant to the terms of an agreement and plan of merger, a wholly owned subsidiary of Accuride merged with and into Transportation Technologies Industries, Inc., or TTI,
resulting in TTI becoming a wholly owned subsidiary of Accuride, which we refer to as the TTI merger. TTI was founded as Johnstown America Industries, Inc. in 1991 in connection with the purchase of Bethlehem Steel Corporation's freight car manufacturing operations.
Chapter 11 Proceedings
On October 8, 2009, Accuride and its domestic subsidiaries filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code with the United States Bankruptcy Court for the District of Delaware. Prior to filing for bankruptcy, we were in default under our prepetition senior credit facility and the indenture governing our prepetition senior subordinated notes due to our failure to comply with certain financial covenants in the prepetition senior credit facility and to make the $11.7 million interest payment due August 3, 2009 on our prepetition senior subordinated notes. Beginning in July 2009, we entered into a series of amendments and temporary waivers with our senior lenders and forbearances with our prepetition noteholders related to these defaults, which prevented acceleration of the indebtedness outstanding under these debt instruments and enabled us to negotiate a financial reorganization to be implemented through the bankruptcy process with these key constituents prior to our bankruptcy filing. On October 7, 2009, we entered into restructuring support agreements with the holders of approximately 57% of the principal amount of the loans outstanding under our prepetition senior credit facility and the holders of approximately 70% of the principal amount of our prepetition senior subordinated notes, pursuant to which the parties agreed to support a financial reorganization of Accuride and its domestic subsidiaries consistent with the terms set forth therein.
On November 18, 2009, we filed our Joint Plan of Reorganization and the related Disclosure Statement with the Bankruptcy Court. All classes of creditors entitled to vote voted to approve the Plan of Reorganization. A confirmation hearing for the Plan of Reorganization was held beginning on February 17, 2010. At the confirmation hearing, we and all of our constituents reached a settlement to fully resolve all disputes related to the Plan of Reorganization and all of our key constituents agreed to support the Plan of Reorganization. On February 18, 2010, the Bankruptcy Court entered an Order Confirming the Third Amended Joint Plan of Reorganization, which approved and confirmed the Plan of Reorganization, as modified by the confirmation order. On February 26, 2010 (the "Effective Date"), the Plan of Reorganization became effective and we emerged from Chapter 11 bankruptcy proceedings. During the pendency of the bankruptcy, we operated our business as debtors-in-possession under the jurisdiction of the Bankruptcy Court and in accordance with the applicable provisions of the Bankruptcy Code.
Postpetition Capital Structure
Pursuant to the Plan of Reorganization, as of the Effective Date, our new capital structure consists of the following:
our prepetition senior subordinated notes, on a pro rata basis (ii) 25,000,000 shares of Common Stock to the parties backstopping the rights offering of convertible notes as payment of their backstop fee, (iii) 2,000,000 shares of Common Stock to holders of our prepetition common stock on a pro rata basis, (iv) warrants to purchase 22,058,824 shares of Common Stock (the "Warrants") to holders of our prepetition common stock on a pro rata basis and (v) 1,294,882 shares of Common Stock, net of shares withheld for tax purposes, under our Key Executive Incentive Plan. The Warrants are exercisable at an exercise price of $2.10 per share until February 26, 2012.
Under the Plan of Reorganization, our prepetition common stock, all other equity interests in Accuride, our prepetition senior subordinated notes and the indenture governing our prepetition senior subordinated notes were cancelled. The holders of these securities received the distributions described above. All amounts outstanding under the DIP credit facility (as defined below) we had entered into to provide financing during the pendency of our bankruptcy were also paid in full on the Effective Date and the DIP credit facility was terminated in accordance with its terms.
Additionally, pursuant to the Plan of Reorganization, we amended and restated our Certificate of Incorporation and our Bylaws to, among other things, reduce the size of our Board of Directors to seven directors. As of the Effective Date, our Board of Directors is now comprised of our Chairman and Interim President and Chief Executive Officer, William M. Lasky, and six newly-appointed directors, as discussed below.
We believe we design, produce, and market one of the broadest portfolios of commercial vehicle components in the industry. We classify our products under several categories, which include wheels, wheel-end components and assemblies, truck body and chassis parts, seating assemblies, and other commercial vehicle components. The following describes our major product lines and brands.
Wheels (Approximately 42% of our 2009 net sales, 42% of our 2008 net sales, and 47% of our 2007 net sales)
We are the largest North American manufacturer and supplier of wheels for heavy- and medium-duty trucks and commercial trailers. We offer the broadest product line in the North American heavy- and medium-duty wheel industry and are the only North American manufacturer and supplier of both steel and forged aluminum heavy- and medium-duty wheels. We also produce wheels for buses, commercial light trucks, heavy-duty pick-up trucks, and military vehicles. We market our wheels under the Accuride brand. A description of each of our major products is summarized below:
Wheel-End Components and Assemblies (Approximately 27% of our 2009 net sales, 23% of our 2008 net sales, and 20% of our 2007 net sales)
We are the leading North American supplier of wheel-end components and assemblies to the heavy- and medium-duty truck markets and related aftermarket. We market our wheel-end components and assemblies under the Gunite brand. We produce four basic wheel-end assemblies: (1) disc wheel hub/brake drum, (2) spoke wheel/brake drum, (3) spoke wheel/brake rotor and (4) disc wheel hub/brake rotor. We also manufacture a full line of wheel-end components for the heavy- and medium-duty truck markets, such as brake drums, disc wheel hubs, spoke wheels, rotors and automatic slack adjusters. The majority of these components are critical to the safe operation of vehicles. A description of each of our major wheel-end components is summarized below:
that significantly improve heat dissipation as required for applications on Class 7 and 8 vehicles. We offer one of the most complete lines of heavy-duty and medium-duty disc brake rotors in the industry.
Truck Body and Chassis Parts (Approximately 13% of our 2009 net sales, 12% of our 2008 net sales, and 14% of our 2007 net sales)
We are a leading supplier of truck body and chassis parts to heavy- and medium-duty truck manufacturers. We fabricate a broad line of truck body and chassis parts under the Imperial and Highway Original brand names, including bumpers, battery and toolboxes, crown assemblies, fuel tanks, roofs, fenders, and crossmembers. We also provide a variety of value-added services, such as chrome plating and polishing, hood assembly, and the kitting and assembly of exhaust systems.
We specialize in the fabrication of components requiring a significant amount of tooling or customization. Our truck body and chassis parts manufacturing operations are characterized by low-volume production runs. Additionally, because each truck is uniquely customized to end user specifications, we have developed flexible production systems that are capable of accommodating multiple variations for each product design. A description of each of our major truck body and chassis parts is summarized below:
Seating Assemblies (Approximately 4% of our 2009 net sales, 4% of our 2008 net sales, and 5% of our 2007 net sales)
Under the Bostrom brand name, we design, engineer and manufacture air suspension and static seating assemblies for heavy- and medium-duty trucks, the related aftermarket, and school and transit buses. The majority of North American heavy-duty truck manufacturers offer our seats as standard equipment or as an option.
Seating assemblies are primarily differentiated on comfort, price, and quality, with driver comfort being especially important given the substantial amount of time that truck drivers spend on the road. Our seating assemblies typically utilize a "scissor-type" suspension, which we believe offers superior cushioning for the driver.
Other Components (Approximately 14% of our 2009 net sales, 19% of our 2008 net sales, and 15% of our 2007 net sales)
We produce other commercial vehicle components, including steerable drive axles and gearboxes as well as engine and transmission components.
We market our components to more than 1,000 customers, including most of the major North American heavy- and medium-duty truck and commercial trailer OEMs, as well as to the major aftermarket suppliers, including OEM dealer networks, wholesale distributors, and aftermarket buying groups. Our largest customers are Navistar, PACCAR, Daimler Truck North America, and Volvo/Mack, which combined accounted for approximately 55.2% of our net sales in 2009, and individually constituted approximately 18.8%, 15.9%, 13.5%, and 7.0%, respectively, of our 2009 net sales. We have long-term relationships with our larger customers, many of whom have purchased components from us or our predecessors for more than 45 years. We garner repeat business through our reputation for quality and position as a standard supplier for a variety of truck lines. We believe that we will continue
to be able to effectively compete for our customers' business due to the high quality of our products, the breadth of our product portfolio, and our continued product innovation.
Sales and Marketing
We have an integrated, corporate-wide sales and marketing group. We have dedicated salespeople and sales engineers who reside near the headquarters of each of the four major truck OEMs and who spend substantially all of their professional time coordinating new sales opportunities and developing our relationship with the OEMs. These sales professionals function as a single point of contact with the OEMs, providing "one-stop shopping" for all of our products. Each brand has marketing personnel who, together with applications engineers, have in-depth product knowledge and provide support to the designated OEM salespeople.
We also have fleet sales coverage focused on our wheels, wheel-end and seating assembly markets who seek to develop relationships directly with fleets to create "pull-through" demand for our products. This effort is intended to help convince the truck and trailer OEMs to designate our products as standard equipment and to create sales by encouraging fleets to specify our products on the equipment that they purchase, even if our product is not standard equipment. This same group provides aftermarket sales coverage for our various products, particularly wheels, wheel-end components, and seating assemblies. These salespeople promote and sell our products to the aftermarket, including OEM dealers, warehouse distributors and aftermarket buying groups.
Effective May 2009, we implemented a consolidated aftermarket distribution strategy for our wheels, wheel-ends, seating, and newly-created Highway Original aftermarket brand. In support of this initiative, we closed two existing warehouses and opened a new distribution center strategically located in the Indianapolis, Indiana, metropolitan area. As a result, customers can now order steel and aluminum wheels, brake drums/rotors, automatic slack adjusters, seats, bumpers, fuel tanks, and battery boxes on one purchase order, improving freight efficiencies and improved inventory turns for our customers. This capability is a strategic advantage over our single product line competitors. The new aftermarket infrastructure enables us to expand our manufacturing plant direct shipments to larger aftermarket customers utilizing a virtual distribution strategy that allows us to maintain and enhance our competitiveness by eliminating unnecessary freight and handling through the new distribution center.
We consider sales to customers outside of the United States as international sales. International sales for the years, ended December 31, 2009, 2008, and 2007 are as follows:
For additional information, see Note 12 to the "Notes to Consolidated Financial Statements" included herein.
We operate 17 facilities, which are characterized by advanced manufacturing capabilities, in North America. Our U.S. manufacturing operations are located in Alabama, California, Illinois, Indiana, Kentucky, Ohio, Pennsylvania, Tennessee, Texas, Virginia, Washington, and Wisconsin. In addition, we have manufacturing facilities in Canada and Mexico. These facilities are strategically located to meet our manufacturing needs and the demands of our customers.
All of our significant operations are QS-9000/TS 16949 certified, which means that they comply with certain quality assurance standards for truck components suppliers. We believe our manufacturing operations are highly regarded by our customers, and we have received numerous quality awards from our customers including PACCAR's Preferred Supplier award and Daimler Truck North America's Masters of Quality award.
We operate in highly competitive markets. However, no single manufacturer competes with all of the products manufactured and sold by us in the heavy-duty truck market, and the degree of competition varies among the different products that we sell. In each of our markets, we compete on the basis of price, manufacturing and distribution capabilities, product quality, product design, product line breadth, delivery, and service.
The competitive landscape for each of our brands is unique. Our primary competitors in the wheel markets include Alcoa Inc., ArvinMeritor, Inc., and Hayes Lemmerz International, Inc. The competitors in the wheel-ends and assemblies markets for heavy-duty trucks and commercial trailers are ArvinMeritor, Inc., Consolidated Metco Inc., and Webb Wheel Products Inc. The truck body and chassis parts markets are fragmented and characterized by many small private companies. The seating assemblies market has a limited number of competitors, with National Seating Company as our main competitor. Our major competitors in the industrial components market include ten to twelve foundries operating in the Midwest and Southern regions of the United States and Mexico.
Raw Materials and Suppliers
We typically purchase steel for our wheel products from a number of different suppliers by negotiating high-volume contracts with terms ranging from one to two years. While we believe that our supply contracts can be renewed on acceptable terms, we may not be able to renew these contracts on such terms or at all. However, we do not believe that we are overly dependent on long-term supply contracts for our steel requirements as we have alternative sources available if need requires. Furthermore, it should be understood that the domestic steel industry, under normal circumstances, does not have the capacity to support the economy at large and the market thus depends on a certain level of imports. Depending on market dynamics and raw material availability, the market is occasionally in tight supply, which may result in occasional industry allocations and surcharges.
We obtain aluminum for our wheel products through third-party suppliers. We believe that aluminum is readily available from a variety of sources. Aluminum prices have been volatile from time-to-time. We attempt to minimize the impact of such volatility through selected customer supported hedge agreements, supplier agreements and contractual price adjustments with customers.
Major raw materials for our wheel-end and industrial component products are steel scrap and pig iron. We do not have any long-term contractual commitments with any steel scrap or pig iron suppliers, but we do not anticipate having any difficulty in obtaining steel scrap or pig iron due to the large number of potential suppliers and our position as a major purchaser in the industry. A portion of the increases in steel scrap prices for our wheel-ends and industrial components are passed-through to most of our customers by way of a fluctuating surcharge, which is calculated and adjusted on a periodic basis. Other major raw materials include silicon sand, binders, sand additives and coated sand, which are generally available from multiple sources. Coke and natural gas, the primary energy sources for our melting operations, have historically been generally available from multiple sources, and electricity, another of these energy sources, has historically been generally available.
The main raw materials for our truck body and chassis parts are sheet and formed steel and aluminum. Price adjustments for these raw materials are passed-through to our largest customers for those parts on a contractual basis. We purchase major fabricating and seating materials, such as
fasteners, steel, foam, fabric and tube steel, from multiple sources, and these materials have historically been generally available.
Employees and Labor Unions
As of December 31, 2009, we had approximately 2,450 employees, of which 638 were salaried employees with the remainder paid hourly. Unions represent approximately 1,230 of our employees, which is approximately 50% of our total employees. We have collective bargaining agreements with several unions, including (1) the United Auto Workers, (2) the International Brotherhood of Teamsters, (3) the United Steelworkers, (4) the International Association of Machinists and Aerospace Workers, (5) the National Automobile, Aerospace, Transportation, and General Workers Union of Canada and (6) El Sindicato Industrial de Trabajadores de Nuevo Leon.
Each of our unionized facilities has a separate contract with the union that represents the workers employed at such facility. The union contracts expire at various times over the next few years with the exception of our union contract that covers the hourly employees at our Monterrey, Mexico, facility, which expires on an annual basis in January unless otherwise renewed. The 2010 negotiations in Monterrey have been deferred by mutual agreement of the Company and Union. In 2010, we have contracts expiring at our Elkhart, Erie and Rockford facilities. We do not anticipate that the outcome of the 2010 negotiations will have a material adverse effect on our operating performance or costs.
We believe the protection of our intellectual property is important to our business. Our principal intellectual property consists of product and process technology, a number of patents, trade secrets, trademarks and copyrights. Although our patents, trade secrets, and copyrights are important to our business operations and in the aggregate constitute a valuable asset, we do not believe that any single patent, trade secret, or copyright is critical to the success of our business as a whole. We also own U.S. federal and foreign trademark registrations for several of our brands, which we believe are valuable, including Accuride®, Bostrom®, BrillionTM, Fabco TM, Gunite®, Highway Original® and ImperialTM. Our policy is to seek statutory protection for all significant intellectual property embodied in patents and trademarks. From time to time, we grant licenses under our intellectual property and receive licenses under intellectual property of others.
Our production is based on firm customer orders and estimated future demand. Since firm orders generally do not extend beyond 15-45 days and we generally meet all requirements, backlog volume is generally not significant.
Cyclical and Seasonal Industry
The commercial vehicle components industry is highly cyclical and, in large part, depends on the overall strength of the demand for heavy- and medium-duty trucks. These industries have historically experienced significant fluctuations in demand based on factors such as general economic conditions, gas prices, interest rates, government regulations, and consumer confidence. From mid-2000 through 2003, the industry was in a severe downturn. From 2004 though 2006, major OEM customers experienced an upturn in net orders, which resulted in stronger industry conditions. Since the second quarter of 2007, the commercial vehicle market has experienced a severe drop in production as predicted by analysts, including America's Commercial Transportation ("ACT") and FTR Associates ("FTR") Publications. We expect that demand for our products to improve in 2010 as economic conditions continue to improve.
In addition, our operations are typically seasonal as a result of regular customer maintenance and model changeover shutdowns, which typically occur in the third and fourth quarter of each calendar year. This seasonality may result in decreased net sales and profitability during the third and fourth fiscal quarters of each calendar year.
Our operations, facilities, and properties are subject to extensive and evolving laws and regulations pertaining to air emissions, wastewater discharges, the handling and disposal of solid and hazardous materials and wastes, the investigation and remediation of contamination, and otherwise relating to health, safety and the protection of the environment and natural resources. As a result, we are involved from time to time in administrative or legal proceedings relating to environmental, health and safety matters, and have in the past and will continue to incur capital costs and other expenditures relating to such matters. In addition to environmental laws that regulate our subsidiaries' ongoing operations, our subsidiaries are also subject to environmental remediation liability. Under the federal Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), and analogous state laws, our subsidiaries may be liable as a result of the release or threatened release of hazardous materials into the environment. Our subsidiaries are currently involved in several matters relating to the investigation and/or remediation of locations where they have arranged for the disposal of foundry and other wastes. Such matters include situations in which we have been named or are believed to be Potentially Responsible Parties as defined under CERCLA or state and local laws in connection with the contamination of these sites. Additionally, environmental remediation may be required to address soil and groundwater contamination identified at certain facilities.
As of December 31, 2009, we had an environmental reserve of approximately $1.5 million, related primarily to our foundry operations. This reserve is based on current cost estimates and does not reduce estimated expenditures to net present value, but does take into account the benefit of a contractual indemnity given to us by a prior owner of our wheel-end subsidiary. The failure of the indemnitor to fulfill its obligations could result in future costs that may be material. Any cash expenditures required by us or our subsidiaries to comply with applicable environmental laws and/or to pay for any remediation efforts will not be reduced or otherwise affected by the existence of the environmental reserve. We currently anticipate spending approximately $0.2 million per year in 2010 through 2013 for monitoring the various environmental sites associated with the environmental reserve, including attorney and consultant costs for strategic planning and negotiations with regulators and other potentially responsible parties, and payment of remedial investigation costs. Based on all of the information presently available to us, we believe that our environmental reserves will be adequate to cover the future costs related to the sites associated with the environmental reserves and that any additional costs will not have a material adverse effect on our financial condition, results of operations or cash flows. However, the discovery of additional sites, the modification of existing or the promulgation of new laws or regulations, more vigorous enforcement by regulators, the imposition of joint and several liability under CERCLA or analogous state laws or other unanticipated events could result in a material adverse effect.
The final Iron and Steel Foundry National Emission Standard for Hazardous Air Pollutants, or NESHAP, was developed pursuant to Section 112(d) of the Clean Air Act and requires all major sources of hazardous air pollutants to install controls representative of maximum achievable control technology. We believe that our foundry operations are in compliance with the applicable requirements of the Iron and Steel Foundry NESHAP.
Research and Development Expense
Expenditures relating to the development of new products and processes, including significant improvements and refinements to existing products, are expensed as incurred. The amounts expensed in
the years ended December 31, 2009, 2008, and 2007 totaled $6.8 million, $10.9 million and $7.3 million, respectively.
Website Access to Reports
We make our periodic and current reports available, free of charge, on our website as soon as practicable after such material is electronically filed with the Securities and Exchange Commission (the "SEC"). Our website address is www.accuridecorp.com and the reports are filed under "SEC Filings" in the Investor Information section of our website.
Factors That May Affect Future Results
In this report, we have made various statements regarding current expectations or forecasts of future events. These statements are "forward-looking statements" within the meaning of that term in Section 27A of the Securities Act of 1933 (the "Securities Act") and Section 21E of the Securities Exchange Act of 1934 (the "Exchange Act"). Forward-looking statements are also made from time-to-time in press releases and in oral statements made by our officers. Forward-looking statements are identified by the words "estimate," "project," "anticipate," "will continue," "will likely result," "expect," "intend," "believe," "plan," "predict" and similar expressions.
Such forward-looking statements are based on assumptions and estimates, which although believed to be reasonable, may turn out to be incorrect. Therefore, undue reliance should not be placed upon these estimates and statements. These statements or estimates may not be realized and actual results may differ from those contemplated in these "forward-looking statements." We undertake no obligation to publicly update any forward-looking statements, whether as a result of new information, future events, or otherwise. You are advised to consult further disclosures we may make on related subjects in our filings with the SEC. Our expectations, beliefs, or projections may not be achieved or accomplished. In addition to other factors discussed in the report, some of the important factors that could cause actual results to differ from those discussed in the forward-looking statements include the following risk factors.
Risks Related to Our Business and Industry
Current economic conditions, including those related to the credit markets and the commercial vehicle industry, may have a material adverse effect on our business and results of operations.
Recent global market and economic conditions have been unprecedented and challenging with tighter credit conditions and recession in most major economies continuing into 2010. Continued concerns about the systemic impact of potential long-term and wide-spread recession, energy costs, geopolitical issues, the availability and cost of credit, and the global housing and mortgage markets have contributed to increased market volatility and diminished expectations for Western and emerging economies.
Furthermore, the commercial vehicle supply industry in which we operate has traditionally been highly competitive and cyclical, and, as a result, has experienced significant downturns in connection with, or in anticipation of, declines in general economic conditions. Accordingly, the current general economic conditions have resulted in a severe downturn in the commercial vehicle supply industry resulting in a significant decline in our sales volume and necessitating our bankruptcy filing in October 2009 (see "Item 1BusinessChapter 11 Proceedings"). We cannot accurately predict how prolonged this downturn may be.
These economic conditions may impact our business in a number of ways, including:
The risks outlined above could have a material adverse effect on our business, financial condition or results of operations.
We rely on, and make significant operational decisions based in part upon, industry data and forecasts that may prove to be inaccurate.
We continue to operate in a challenging economic environment and our ability to maintain liquidity may be affected by economic or other conditions that are beyond our control and which are difficult to predict. The 2010 production forecasts by ACT Publications for the significant commercial vehicle markets that we serve, as of March 10, 2010, are as follows:
Based on the these production builds, we expect to comply with the financial covenants in our postpetition senior credit facility and believe that our liquidity will be sufficient to fund currently anticipated working capital, capital expenditures, and debt service requirements for at least the next twelve months. However, if our net sales are significantly less than expectations, given the volatility and the calendarization of the production builds as well as the other markets that we serve, or due to the challenging credit markets, we could violate our financial covenants or have insufficient liquidity. In the event of noncompliance, we would pursue an amendment or waiver. However, no assurances can be given that we could obtain such an amendment or waiver. A failure to obtain an amendment or waiver could have a material adverse effect on our business, financial condition or results of operations.
The failure to realize cost savings under our cost restructuring plan could adversely affect our business.
During 2009 and continuing into 2010, we implemented various cost reduction initiatives in response to, among other things, significant downturns in our industry. These initiatives have included aligning our workforce in response to slowdowns in the industry and consolidating certain of our facilities. We have recorded pre-tax restructuring expenses to cover costs associated with our cost reduction initiatives. We cannot assure you that these cost reduction initiatives will sufficiently help in returning us to profitability. Because our restructuring activities involve changes to many aspects of our business, the cost reductions could adversely impact productivity and sales to an extent we have not anticipated. Even if these activities generate the anticipated cost savings, there may be other unforeseeable and unintended factors or consequences that could adversely impact our profitability and business, including unintended employee attrition.
We are dependent on sales to a small number of our major customers and on our status as standard supplier on certain truck platforms of each of our major customers.
Sales, including aftermarket sales, to Navistar, PACCAR, Daimler Truck North America, and Volvo/Mack constituted approximately 18.8%, 15.9%, 13.5%, and 7.0%, respectively, of our 2009 net sales. No other customer accounted for more than 5% of our net sales for this period. The loss of any significant portion of sales to any of our major customers would likely have a material adverse effect on our business, results of operations or financial condition.
We are a standard supplier of various components at a majority of our major customers, which results in recurring revenue as our standard components are installed on most trucks ordered from that platform, unless the end user specifically requests a different product, generally at an additional charge. The selection of one of our products as a standard component may also create a steady demand for that product in the aftermarket. We may not maintain our current standard supplier positions in the future, and may not become the standard supplier for additional truck platforms. The loss of a significant standard supplier position or a significant number of standard supplier positions with a major customer could have a material adverse effect on our business, results of operations or financial condition.
We are continuing to engage in efforts intended to improve and expand our relations with each of PACCAR, Daimler Truck North America, Navistar, and Volvo/Mack. We have supported our position with these customers through direct and active contact with end users, trucking fleets, and dealers, and have located certain of our marketing personnel in offices near these customers and most of our other major customers. We may not be able to successfully maintain or improve our customer relationships so that these customers will continue to do business with us as they have in the past or be able to supply these customers or any of our other customers at current levels. The loss of a significant portion of our sales to Daimler Truck North America, PACCAR, Navistar, or Volvo/Mack could have a material adverse effect on our business, results of operations or financial condition. In addition, the delay or cancellation of material orders from, or problems at, PACCAR, Daimler Truck North America, Navistar, or Volvo/Mack, or any of our other major customers could have a material adverse effect on our business, results of operations, or financial condition. See "Item 1ARisk FactorsCurrent economic conditions, including those related to the credit markets, may have a material adverse effect on our industry, business and results of operations."
Increased cost or reduced supply of raw materials and purchased components may adversely affect our business, results of operations or financial condition.
Our business is subject to the risk of price increases and fluctuations and periodic delays in the delivery of raw materials and purchased components that are beyond our control. Our operations require substantial amounts of raw steel, aluminum, steel scrap, pig iron, electricity, coke, natural gas,
sheet and formed steel, bearings, purchased components, fasteners, foam, fabrics, silicon sand, binders, sand additives, coated sand, and tube steel. Fluctuations in the delivery of these materials may be driven by the supply/demand relationship for material, factors particular to that material or governmental regulation for raw materials such as electricity and natural gas. In addition, if any of our suppliers seeks bankruptcy relief or otherwise cannot continue its business as anticipated or we cannot renew our supply contracts on favorable terms, the availability or price of raw materials could be adversely affected. Fluctuations in prices and/or availability of the raw materials or purchased components used by us, which at times may be more pronounced during periods of higher truck builds, may affect our profitability and, as a result, have a material adverse effect on our business, results of operations, or financial condition. In addition, as described above, a shortening or elimination of our trade credit by our suppliers may affect our liquidity and cash flow and, as a result, have a material adverse effect on our business, results of operations, or financial condition. See "Item 1ARisk FactorsCurrent economic conditions, including those related to the credit markets, may have material adverse effect on our industry, business and results of operations."
We use substantial amounts of raw steel and aluminum in our production processes. Although raw steel is generally available from a number of sources, we have obtained favorable sourcing by negotiating and entering into high-volume contracts with third parties with terms ranging from one to two years. We obtain raw steel and aluminum from various third-party suppliers. We may not be successful in renewing our supply contracts on favorable terms or at all. A substantial interruption in the supply of raw steel or aluminum or inability to obtain a supply of raw steel or aluminum on commercially desirable terms could have a material adverse effect on our business, results of operations or financial condition. We are not always able, and may not be able in the future, to pass on increases in the price of raw steel or aluminum to our customers. In particular, when raw material prices increase rapidly or to significantly higher than normal levels, we may not be able to pass price increases through to our customers on a timely basis, if at all, which could adversely affect our operating margins and cash flow. Any fluctuations in the price or availability of raw steel or aluminum may have a material adverse effect on our business, results of operations or financial condition.
Steel scrap and pig iron are also major raw materials used in our business to produce our wheel-end and industrial components. Steel scrap is derived from, among other sources, junked automobiles, industrial scrap, railroad cars, agricultural and heavy machinery, and demolition steel scrap from obsolete structures, containers and machines. Pig iron is a low-grade cast iron that is a product of smelting iron ore with coke and limestone in a blast furnace. The availability and price of steel scrap and pig iron are subject to market forces largely beyond our control, including North American and international demand for steel scrap and pig iron, freight costs, speculation and foreign exchange rates. Steel scrap and pig iron availability and price may also be subject to governmental regulation. We are not always able, and may not be able in the future, to pass on increases in the price of steel scrap and pig iron to our customers. In particular, when raw material prices increase rapidly or to significantly higher than normal levels, we may not be able to pass price increases through to our customers on a timely basis, if at all, which could have a material adverse effect on our operating margins and cash flow. Any fluctuations in the price or availability of steel scrap or pig iron may have a material adverse effect on our business, results of operations or financial condition. See "Item 1BusinessRaw Materials and Suppliers."
Our business is affected by the seasonality and regulatory nature of the industries and markets that we serve.
Our operations are typically seasonal as a result of regular customer maintenance and model changeover shutdowns, which typically occur in the third and fourth quarter of each calendar year. This seasonality may result in decreased net sales and profitability during the third and fourth fiscal quarters. In addition, federal and state regulations (including engine emissions regulations, tariffs,
import regulations and other taxes) may have a material adverse effect on our business and are beyond our control.
Cost reduction and quality improvement initiatives by OEMs could have a material adverse effect on our business, results of operations or financial condition.
We are primarily a components supplier to the heavy- and medium-duty truck industries, which are characterized by a small number of OEMs that are able to exert considerable pressure on components suppliers to reduce costs, improve quality and provide additional design and engineering capabilities. Given the fragmented nature of the industry, OEMs continue to demand and receive price reductions and measurable increases in quality through their use of competitive selection processes, rating programs, and various other arrangements. We may be unable to generate sufficient production cost savings in the future to offset such price reductions. OEMs may also seek to save costs by relocating production to countries with lower cost structures, which could in turn lead them to purchase components from local suppliers with lower production costs. Additionally, OEMs have generally required component suppliers to provide more design engineering input at earlier stages of the product development process, the costs of which have, in some cases, been absorbed by the suppliers. Future price reductions, increased quality standards and additional engineering capabilities required by OEMs may reduce our profitability and have a material adverse effect on our business, results of operations, or financial condition.
We operate in highly competitive markets.
The markets in which we operate are highly competitive. We compete with a number of other manufacturers and distributors that produce and sell similar products. Our products primarily compete on the basis of price, manufacturing and distribution capability, product design, product quality, product delivery and product service. Some of our competitors are companies, or divisions, units or subsidiaries of companies that are larger and have greater financial and other resources than we do. For these reasons, our products may not be able to compete successfully with the products of our competitors. In addition, our competitors may foresee the course of market development more accurately than we do, develop products that are superior to our products, have the ability to produce similar products at a lower cost than we can, or adapt more quickly than we do to new technologies or evolving regulatory, industry, or customer requirements. As a result, our products may not be able to compete successfully with their products. In addition, OEMs may expand their internal production of components, shift sourcing to other suppliers, or take other actions that could reduce the market for our products and have a negative impact on our business. We may encounter increased competition in the future from existing competitors or new competitors. We expect these competitive pressures in our markets to remain strong. See "Item 1BusinessCompetition."
In addition, potential competition from foreign truck components suppliers, especially in the aftermarket, may lead to an increase in truck components imports into North America, adversely affecting our market share and negatively affecting our ability to compete. Foreign truck components suppliers, including those in China, may in the future increase their currently modest share of the markets for truck components in which we compete. Some of these foreign suppliers may be owned, controlled or subsidized by their governments, and their decisions with respect to production, sales and exports may be influenced more by political and economic policy considerations than by prevailing market conditions. In addition, foreign truck components suppliers may be subject to less restrictive regulatory and environmental regimes that could provide them with a cost advantage relative to North American suppliers. Therefore, there is a risk that some foreign suppliers, including those in China, may increase their sales of truck components in North American markets despite decreasing profit margins or losses. If future trade cases do not provide relief from such potential trade practices, U.S. protective trade laws are weakened or international demand for trucks and/or truck components decreases, an increase of truck component imports into the United States may occur, which could have a material adverse effect on our business, results of operations or financial condition.
We face exposure to foreign business and operational risks including foreign exchange rate fluctuations and if we were to experience a substantial fluctuation, our profitability may change.
In the normal course of doing business, we are exposed to risks associated with changes in foreign exchange rates, particularly with respect to the Canadian dollar. From time to time, we use forward foreign exchange contracts, and other derivative instruments, to help offset the impact of the variability in exchange rates on our operations, cash flows, assets and liabilities. We had no outstanding foreign exchange forward contract instruments open at December 31, 2009. Factors that could further impact the risks associated with changes in foreign exchange rates include the accuracy of our sales estimates, volatility of currency markets and the cost and availability of derivative instruments. See "Item 7A. Quantitative and Qualitative Disclosure about Market RiskForeign Currency Risk." In addition, changes in the laws or governmental policies in the countries in which we operate could affect our business in such countries and our results of operations.
We may not be able to continue to meet our customers' demands for our products and services.
We must continue to meet our customers' demand for our products and services. However, we may not be successful in doing so. If our customers' demand for our products and/or services exceeds our ability to meet that demand, we may be unable to continue to provide our customers with the products and/or services they require to meet their business needs. Factors that could result in our inability to meet customer demands include an unforeseen spike in demand for our products and/or services, a failure by one or more of our suppliers to supply us with the raw materials and other resources that we need to operate our business effectively or poor management of our company or one or more divisions or units of our company, among other factors. Our ability to provide our customers with products and services in a reliable and timely manner, in the quantity and quality desired and with a high level of customer service, may be severely diminished as a result. If this happens, we may lose some or all of our customers to one or more of our competitors, which would have a material adverse effect on our business, results of operations, or financial condition.
In addition, it is important that we continue to meet our customers' demands in the truck components industry for product innovation, improvement and enhancement, including the continued development of new-generation products, design improvements and innovations that improve the quality and efficiency of our products. Developing product innovations for the truck components industry has been and will continue to be a significant part of our strategy. However, such development will require us to continue to invest in research and development and sales and marketing. Our recent financial condition has constrained our ability to make such investments. In the future, we may not have sufficient resources to make such necessary investments, or we may be unable to make the technological advances necessary to carry out product innovations sufficient to meet our customers' demands. We are also subject to the risks generally associated with product development, including lack of market acceptance, delays in product development and failure of products to operate properly. We may, as a result of these factors, be unable to meaningfully focus on product innovation as a strategy and may therefore be unable to meet our customers' demand for product innovation.
Equipment failures, delays in deliveries or catastrophic loss at any of our facilities could lead to production or service curtailments or shutdowns.
We manufacture our products at 17 facilities and provide logistical services at our just-in-time sequencing facilities in the United States. An interruption in production or service capabilities at any of these facilities as a result of equipment failure or other reasons could result in our inability to produce our products, which would reduce our net sales and earnings for the affected period. In the event of a stoppage in production at any of our facilities, even if only temporary, or if we experience delays as a result of events that are beyond our control, delivery times to our customers could be severely affected. Any significant delay in deliveries to our customers could lead to increased returns or cancellations and
cause us to lose future sales. Our facilities are also subject to the risk of catastrophic loss due to unanticipated events such as fires, explosions or violent weather conditions. We may experience plant shutdowns or periods of reduced production as a result of equipment failure, delays in deliveries or catastrophic loss, which could have a material adverse effect on our business, results of operations or financial condition.
We may incur potential product liability, warranty and product recall costs.
We are subject to the risk of exposure to product liability, warranty and product recall claims in the event any of our products results in property damage, personal injury or death, or does not conform to specifications. We may not be able to continue to maintain suitable and adequate insurance in excess of our self-insured amounts on acceptable terms that will provide adequate protection against potential liabilities. In addition, if any of our products proves to be defective, we may be required to participate in a recall involving such products. A successful claim brought against us in excess of available insurance coverage, if any, or a requirement to participate in any product recall, could have a material adverse effect on our business, results of operations or financial condition.
Work stoppages or other labor issues at our facilities or at our customers' facilities could have a material adverse effect on our operations.
As of December 31, 2009, unions represented approximately 50% of our workforce. As a result, we are subject to the risk of work stoppages and other labor relations matters. Any prolonged strike or other work stoppage at any one of our principal unionized facilities could have a material adverse effect on our business, results of operations or financial condition. We have collective bargaining agreements with different unions at various facilities. These collective bargaining agreements expire at various times over the next few years, with the exception of our union contract at our Monterrey, Mexico facility, which expires on an annual basis. The 2010 negotiations in Monterrey have been deferred by mutual agreement of the Company and Union. In 2010, we have contracts expiring at our Elkhart, Erie and Rockford facilities. Any failure by us to reach a new agreement upon expiration of other union contracts may have a material adverse effect on our business, results of operations or financial condition.
In addition, if any of our customers experience a material work stoppage, that customer may halt or limit the purchase of our products. This could cause us to shut down production facilities relating to these products, which could have a material adverse effect on our business, results of operations or financial condition.
We are subject to a number of environmental rules and regulations that may require us to make substantial expenditures.
Our operations, facilities, and properties are subject to extensive and evolving laws and regulations pertaining to air emissions, wastewater discharges, the handling and disposal of solid and hazardous materials and wastes, the investigation and remediation of contamination, and otherwise relating to health, safety, and the protection of the environment and natural resources. As a result, we are involved from time to time in administrative or legal proceedings relating to environmental, health and safety matters, and have in the past incurred and will continue to incur capital costs and other expenditures relating to such matters. In addition to environmental laws that regulate our subsidiaries' ongoing operations, our subsidiaries are also subject to environmental remediation liability. Under CERCLA and analogous state laws, our subsidiaries may be liable as a result of the release or threatened release of hazardous materials into the environment. Our subsidiaries are currently involved in several matters relating to the investigation and/or remediation of locations where they have arranged for the disposal of foundry and other wastes. Such matters include situations in which we have been named or are believed to be Potentially Responsible Parties as defined under CERCLA or state
or local laws in connection with the contamination of these sites. Additionally, environmental remediation may be required to address soil and groundwater contamination identified at certain facilities.
As of December 31, 2009, we had an environmental reserve of approximately $1.5 million, related primarily to our foundry operations. This reserve is based on current cost estimates and does not reduce estimated expenditures to net present value, but does take into account the benefit of a contractual indemnity given to us by a prior owner of our wheel-end subsidiary. The failure of the indemnitor to fulfill its obligations could result in future costs that may be material. Any cash expenditures required by us or our subsidiaries to comply with applicable environmental laws and/or to pay for any remediation efforts will not be reduced or otherwise affected by the existence of the environmental reserve. Our environmental reserve may not be adequate to cover our future costs related to the sites associated with the environmental reserve, and any additional costs may have a material adverse effect on our business, results of operations or financial condition. The discovery of additional sites, the modification of existing or the promulgation of new laws or regulations, more vigorous enforcement by regulators, the imposition of joint and several liability under CERCLA or analogous state laws, or other unanticipated events could result in a material adverse effect.
The final Iron and Steel Foundry NESHAP was developed pursuant to Section 112(d) of the Clean Air Act and requires all major sources of hazardous air pollutants to install controls representative of maximum achievable control technology. We believe that our foundry operations are in compliance with the applicable requirements of the Iron and Steel Foundry NESHAP. However, the imposition of liability under Iron Steel Foundry NESHAP could result in a material adverse effect. See "Item 1BusinessEnvironmental Matters."
Our Common Stock and Warrants are not listed on any securities exchange and, as a result, our Common Stock and Warrants may be less liquid than they otherwise would be if listed on a securities exchange.
Our Common Stock and Warrants are not listed on any securities exchange. Instead, our Common Stock and Warrants are currently traded over-the-counter on the OTC Bulletin Board ("OTCBB"). Over-the-counter transactions involve risks in addition to those associated with transactions in securities traded on a securities exchange. Many over-the-counter securities trade less frequently and in smaller volumes than exchange-listed securities. Accordingly, our Common Stock and Warrants may be less liquid than they would otherwise be and may be difficult to sell. Also, the values of these securities may be more volatile than exchange-listed securities. In addition, issuers of securities traded on the OTCBB do not have to meet the same specific quantitative and qualitative listing and maintenance standards.
Our Common Stock would be diluted by the conversion of our convertible notes, including the PIK interest payable on our convertible notes, and by the exercise of the Warrants.
As of March 26, 2010, 126,294,882 shares of our Common Stock were outstanding. As of the Effective Date, $140 million aggregate principal amount outstanding of convertible notes was convertible into an additional 186,666,662 shares of Common Stock (representing an initial conversion price of $0.75 per share). Additionally, the first six interest payments on the convertible notes will be paid as PIK interest in the form of additional convertible notes, which will also be convertible into additional shares of our Common Stock. Furthermore, the indenture governing the convertible notes provides for an adjustment to the conversion rate in effect at the time of any PIK interest payment, which prevents the convertible notes outstanding immediately prior to the PIK interest payment from being diluted by the convertible notes paid as PIK interest. Accordingly, the convertible notes, if converted will have a dilutive effect on our outstanding Common Stock.
Additionally, as of the Effective Date, there are Warrants outstanding exercisable for an additional 22,058,824 shares of our Common Stock. These Warrants, if exercised, would also have a dilutive effect on our outstanding Common Stock.
We might fail to adequately protect our intellectual property, or third parties might assert that our technologies infringe on their intellectual property.
The protection of our intellectual property is important to our business. We rely on a combination of trademarks, copyrights, patents, and trade secrets to provide protection in this regard, but this protection might be inadequate. For example, our pending or future trademark, copyright, and patent applications might not be approved or, if allowed, they might not be of sufficient strength or scope. Conversely, third parties might assert that our technologies or other intellectual property infringe on their proprietary rights. Any intellectual property-related litigation could result in substantial costs and diversion of our efforts and, whether or not we are ultimately successful, the litigation could have a material adverse effect on our business, results of operations or financial condition. See "Item 1BusinessIntellectual Property."
Litigation against us could be costly and time consuming to defend.
We are regularly subject to legal proceedings and claims that arise in the ordinary course of business, such as workers' compensation claims, OSHA investigations, employment disputes, unfair labor practice charges, customer and supplier disputes, and product liability claims arising out of the conduct of our business. Litigation may result in substantial costs and may divert management's attention and resources from the operation of our business, which could have a material adverse effect on our business, results of operations or financial condition.
Substantially all the members of our Board of Directors have been associated with the Company for a relatively short period of time.
As of the Effective Date, substantially all of the members of our Board of Directors were replaced with individuals who were not previously members of our Board of Directors. Accordingly, these members of our Board of Directors will have to devote significant time and effort to familiarizing themselves with the details of our business, which may divert focus from our business operations.
If a person unaffiliated with us were to acquire a substantial amount of our Common Stock or convertible notes, a change of control could occur.
If a person is able to acquire a substantial amount of our Common Stock and/or convertible notes, a change of control could be triggered under Delaware law, our postpetition senior credit facility or the indenture governing the convertible notes. If a change of control under our postpetition senior credit facility or the indenture governing our convertible notes was to occur, we would need to obtain a waiver from our lenders or noteholders, as applicable, or amend these debt instruments. Otherwise, the lenders or noteholders, as applicable, could accelerate the debt outstanding under these debt instruments. If we are unable to obtain a waiver or otherwise refinance this debt, our liquidity and capital resources would be significantly limited, and our business operations could be materially and adversely impacted.
If we fail to retain our executive officers, our business could be harmed.
Our success largely depends on the efforts and abilities of our executive officers. Their skills, experience and industry contacts significantly contribute to the success of our business and our results of operations. The loss of any one of them could have a material adverse effect on our business, results of operations or financial condition. All of our executive officers are at will, but each of them has a
severance agreement, as discussed directly below, other than our current interim President and Chief Executive Officer and our interim Chief Financial Officer. In addition, our future success and profitability will also depend, in part, upon our continuing ability to attract and retain highly qualified personnel throughout our company, including our interim Chief Executive Officer and interim Chief Financial Officer.
We have entered into typical severance arrangements with certain of our senior management employees, which may result in certain costs associated with strategic alternatives.
Severance and retention agreements with certain senior management employees provide that the participating executive is entitled to a regular severance payment if we terminate the participating executive's employment without "cause" or if the participating executive terminates his or her employment with us for "good reason" (as these terms are defined in the agreement) at any time other than during a "Protection Period." The regular severance benefit is equal to the participating executive's base salary for one year. See "Item 10Directors and Executive Officers of the Registrant." A Protection Period begins on the date on which a "change in control" (as defined in the agreement) occurs and ends 18 months after a "change in control." A change in control may be deemed to have occurred on the Effective Date as a result of the implementation of the Plan of Reorganization.
The change in control severance benefit is payable to an executive if his or her employment is terminated during the Protection Period either by the participating executive for "good reason" or by us without "cause." The change in control severance benefits for Tier II executives (Messrs. Gulda, Maniatis, Schomer and Wright) consist of a payment equal to 200% of the executive's salary plus 200% of the greater of (i) the annualized incentive compensation to which the executive would be entitled as of the date on which the change of control occurs or (ii) the average incentive compensation award over the three years prior to termination. The change in control severance benefits for Tier III executives (other key executives) consist of a payment equal to 100% of the executive's salary and 100% of the greater of (i) the annualized incentive compensation to which the executive would be entitled as of the date on which the change of control occurs or (ii) the average incentive compensation award over the three years prior to termination. If the participating executive's termination occurs during the Protection Period, the severance and retention agreement also provides for the continuance of certain other benefits, including reimbursement for forfeitures under qualified plans and continued health, disability, accident and dental insurance coverage for the lesser of 18 months (or 12 months in the case of Tier III executives) from the date of termination or the date on which the executive receives such benefits from a subsequent employer. There are currently no Tier I executive with severance and retention agreements.
Neither the regular severance benefit nor the change in control severance benefit is payable if we terminate the participating executive's employment for "cause," if the executive voluntarily terminates his or her employment without "good reason" or if the executive's employment is terminated as a result of disability or death. Any payments to which the participating executive may be entitled under the agreement will be reduced by the full amount of any payments to which the executive may be entitled due to termination under any other severance policy offered by us. These agreements would make it costly for us to terminate certain of our senior management employees and such costs may also discourage potential acquisition proposals, which may negatively affect our stock price.
Our products may be rendered obsolete or less attractive by changes in regulatory, legislative or industry requirements.
Changes in regulatory, legislative or industry requirements may render certain of our products obsolete or less attractive. Our ability to anticipate changes in these requirements, especially changes in regulatory standards, will be a significant factor in our ability to remain competitive. We may not be able to comply in the future with new regulatory, legislative and/or industrial standards that may be
necessary for us to remain competitive and certain of our products may, as a result, become obsolete or less attractive to our customers.
Our strategic initiatives may be unsuccessful, may take longer than anticipated, or may result in unanticipated costs.
Future strategic initiatives could include divestitures, acquisitions, and restructurings, the success and timing of which will depend on various factors. Many of these factors are not in our control. In addition, the ultimate benefit of any acquisition would depend on the successful integration of the acquired entity or assets into our existing business. Failure to successfully identify, complete, and/or integrate future strategic initiatives could affect our results of operations.
Additionally, our strategy contemplates significant growth in international markets in which we have significantly less market share and experience than we have in our domestic operations and markets. An inability to penetrate these international markets could adversely affect our results of operations.
Risks Related to Our Indebtedness
Our substantial leverage and significant debt service obligations could have a material adverse effect on our financial condition or our ability to fulfill our obligations and make it more difficult for us to fund our operations.
As of the Effective Date of the Plan of Reorganization, our total indebtedness was $449.1 million. Our substantial level of indebtedness and debt service obligations could have important negative consequences to us, including:
In addition, certain of our borrowings are and will continue to be at variable rates of interest, which exposes us to the risk of increasing interest rates. As of the Effective Date, the carrying value of our total debt was $449.1 million, of which $309.1 million, or approximately 69%, was subject to variable interest rates. If interest rates increase, our debt service obligations on our variable rate indebtedness would increase even though the amount borrowed remains the same. See "Item 6Selected Consolidated Financial Data."
Despite our substantial leverage, we and our subsidiaries will be able to incur more indebtedness. This could further exacerbate the risk immediately described above, including our ability to service our indebtedness.
We and our subsidiaries may be able to incur additional indebtedness in the future. Although our postpetition senior credit facility and the indenture governing our convertible notes contain restrictions on the incurrence of additional indebtedness, such restrictions are subject to a number of qualifications and exceptions, and under certain circumstances indebtedness incurred in compliance with such restrictions could be substantial. For example, we may incur additional debt to, among other things,
finance future acquisitions, expand through internal growth, fund our working capital needs, comply with regulatory requirements, respond to competition or for general financial reasons alone. To the extent new debt is added to our and our subsidiaries' current debt levels, the risks described above would increase.
To service our indebtedness, we will require a significant amount of cash. Our ability to generate cash depends on many factors beyond our control.
Our ability to make payments on and to refinance our indebtedness and to fund planned capital expenditures and research and development efforts will depend on our ability to generate cash in the future. This, to a certain extent, is subject to general economic, financial, competitive, legislative, regulatory, and other factors that are beyond our control.
Our business may not, however, generate sufficient cash flow from operations. Our currently anticipated cost savings and operating improvements may not be realized on schedule. Also, future borrowings may not be available to us under our postpetition senior credit facility in an amount sufficient to enable us to pay our indebtedness or to fund other liquidity needs. If our cash flows and capital resources are insufficient to fund our debt service obligations, we may be forced to reduce or delay capital expenditures, sell material assets or operations, obtain additional equity capital or refinance all or a portion of our indebtedness. We are unable to predict the timing of such sales or the proceeds which we could realize from such sales, or whether we would be able to refinance any of our indebtedness, including our postpetition senior credit facility and convertible notes, on commercially reasonable terms or at all.
We are subject to a number of restrictive covenants, which, if breached, may restrict our business and financing activities.
Our postpetition senior credit facility and the indenture governing our convertible notes impose, and the terms of any future indebtedness may impose, operating and other restrictions on our business operations. Such restrictions will affect, and in many respects limit or prohibit, among other things, our ability to:
In addition, our postpetition senior credit facility includes other more restrictive covenants and prohibits us from prepaying our other indebtedness, including our convertible notes, while borrowings under our postpetition senior credit facility are outstanding. Our postpetition senior credit facility also requires us to achieve certain financial and operating results and maintain compliance with specified financial covenants. Our ability to comply with these covenants may be affected by events beyond our control.
If commercial vehicle production declines below industry forecasts, as described in "Item 1ARisk FactorsWe rely on, and make significant operational decisions based in part upon, industry data and forecasts primarily contained in industry forecast publications which may prove to be inaccurate," we may be unable to comply with the restrictions contained in our postpetition senior credit facility, and the lenders could:
Any of the above listed items would result in an event of default under the indenture governing our convertible notes. If we were unable to repay or otherwise refinance these borrowings when due, our lenders could sell the collateral securing our postpetition senior credit facility, which constitutes substantially all of our and our subsidiaries' assets. Although holders of our convertible notes could accelerate the notes upon the acceleration of the obligations under our postpetition senior credit facility, we may not have sufficient assets remaining after we have paid all the borrowings under our postpetition senior credit facility, and any other senior debt existing at the time, to repay the convertible notes.
Risks Related to Our Emergence from Chapter 11 Bankruptcy Proceedings
Our actual financial results may vary significantly from the projections filed with the Bankruptcy Court, and investors should not rely on the projections.
The projected financial information that we previously filed with the Bankruptcy Court in connection with the bankruptcy proceedings has not been incorporated by reference into this report. Neither these projections nor the Disclosure Statement filed with the Bankruptcy Court should be considered or relied on in connection with the purchase of our Common Stock, Warrants, convertible notes, or other securities. We were required to prepare projected financial information to demonstrate to the Bankruptcy Court the feasibility of the Plan of Reorganization and our ability to continue operations upon emergence from Chapter 11 bankruptcy proceedings. This projected financial information was filed with the Bankruptcy Court as part of our Disclosure Statement approved by the Bankruptcy Court. The projections reflect numerous assumptions concerning anticipated future performance and prevailing and anticipated market and economic conditions that were and continue to be beyond our control and that may not materialize. Projections are inherently subject to uncertainties and to a wide variety of significant business, economic and competitive risks. Our actual results will vary from those contemplated by the projections for a variety of reasons. Furthermore, the projections were limited by the information available to us as of the date of the preparation of the projections, including production forecasts published by ACT Publications for 2010, which have substantially been revised (the revised numbers being included in this report). Therefore, variations from the projections may be material, and investors should not rely on such projections.
Because of the adoption of fresh-start accounting and the effects of the transactions contemplated by the Plan of Reorganization, financial information subsequent to February 26, 2010, will not be comparable to financial information prior to February 26, 2010.
Upon our emergence from Chapter 11 bankruptcy proceedings, we adopted fresh-start accounting in accordance with the provisions of ASC 852, pursuant to which the midpoint of the range of our reorganization value was allocated to our assets and liabilities in conformity with the procedures specified by ASC 805, "Business Combinations." Accordingly, our consolidated statements of financial position and consolidated statements of operations subsequent to February 26, 2010, will not be
comparable in many respects to our consolidated statements of financial position and consolidated statements of operations prior to February 26, 2009. The lack of comparable historical financial information may discourage investors from purchasing our capital stock.
Our emergence from Chapter 11 bankruptcy proceedings may limit our ability to offset future U.S. taxable income with tax losses and credits incurred prior to emergence from Chapter 11 bankruptcy proceedings.
In connection with our emergence from Chapter 11 bankruptcy proceedings, we were able to retain a portion of our U.S. net operating loss and tax credit carryforwards (collectively, the "Tax Attributes"). However, Internal Revenue Code ("IRC") Sections 382 and 383 provide an annual limitation with respect to the ability of a corporation to utilize its Tax Attributes against future U.S. taxable income in the event of a change in ownership. Our emergence from Chapter 11 bankruptcy proceedings is considered a change in ownership for purposes of IRC Section 382. In our situation, the limitation under the IRC will be based on the value of our Common Stock on or around the time of emergence, and increased to take into account the recognition of built-in gains. As a result, our future U.S. taxable income may not be fully offset by the Tax Attributes if such income exceeds our annual limitation, and we may incur a tax liability with respect to such income. In addition, subsequent changes in ownership for purposes of the IRC could further diminish our ability to utilize Tax Attributes.
The table below sets forth certain information regarding the material owned and leased properties of Accuride as of December 31, 2009. We believe these properties are suitable and adequate for our business.
Neither Accuride nor any of our subsidiaries is a party to any legal proceeding which, in the opinion of management, would have a material adverse effect on our business or financial condition. However, we from time-to-time are involved in ordinary routine litigation incidental to our business, including actions related to product liability, contractual liability, intellectual property, workplace safety and environmental claims. We establish reserves for matters in which losses are probable and can be reasonably estimated. While we believe that we have established adequate accruals for our expected future liability with respect to our pending legal actions and proceedings, our liability with respect to any such action or proceeding may exceed our established accruals. Further, litigation that may arise in the future may have a material adverse effect on our financial condition.
On October 8, 2009, Accuride and its domestic subsidiaries filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code with the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court"). On February 18, 2010, the Bankruptcy Court entered an Order Confirming the Third Amended Joint Plan of Reorganization, which approved and confirmed the Plan of Reorganization, as modified by the confirmation order. On February 26, 2010 (the "Effective Date"), the Plan of Reorganization became effective and we emerged from Chapter 11 bankruptcy proceedings. During the pendency of the bankruptcy, we operated our business as debtors-in-possession under the jurisdiction of the Bankruptcy Court and in accordance with the applicable provisions of the Bankruptcy Code.
For more information, please see "Item 1.BusinessChapter 11 Proceedings" in this annual report.
Prepetition Common Stock
Our prepetition common stock began trading publicly on the New York Stock Exchange (the "NYSE") on April 26, 2005, under the symbol "ACW." Prior to that date, there was no public market for our common stock. On November 7, 2008, NYSE Regulation, Inc. ("NYSER") issued a written notice that trading of our common shares would be suspended prior to NYSE's opening on Wednesday, November 12, 2008, and that NYSER would initiate procedures to delist our common stock. NYSER concluded we were not in compliance with NYSE's continued listing standard under Section 802.01B of the NYSE Listed Company Manual (the "Listed Company Manual") because the average global market capitalization of our common stock was less than $25 million over a consecutive 30 trading-day period as of November 5, 2008, which the NYSE viewed as the minimum threshold for continued listing. Additionally, NYSER noted that Accuride had fallen below the continued listing standard under Section 802.01B(1) of the Listed Company Manual which required average global market capitalization over a consecutive 30 trading-day period of not less than $75 million and stockholder's equity of not less than $75 million. Our prepetition common stock commenced trading on the OTCBB on November 12, 2008, under the symbol "AURD."
The following table sets forth the high and low sale prices, or OTCBB quotations, as applicable, of our prepetition common stock during 2008 and 2009.
On the Effective Date of our Plan of Reorganization, our prepetition Common Stock was cancelled.
Postpetition Common Stock
On the Effective Date of the Plan of Reorganization, our postpetition Common Stock was issued. Our postpetition Common Stock now trades on the OTCBB under the symbol "ACUZ" and our Warrants trade on the OTCBB under the symbol "ACUZW." As of March 26, 2010, there were approximately 45 holders of record of our postpetition Common Stock, although there are substantially more beneficial owners.
We have never declared or paid any cash dividends on our common stock. For the foreseeable future, we intend to retain any earnings, and we do not anticipate paying any cash dividends on our postpetition Common Stock. In addition, both our prepetition and postpetition senior credit facilities and the indenture governing our convertible notes restrict our ability to pay dividends. See
"Management's Discussion and Analysis of Financial Condition and Results of OperationsCapital Resources and Liquidity." Any future determination to pay dividends will be at the discretion of our Board of Directors and will be dependent upon then existing conditions, including our financial condition and results of operations, capital requirements, contractual restrictions, business prospects and other factors that our Board of Directors considers relevant.
STOCK OPTION AND PURCHASE PLAN
In 2005, we adopted the Accuride 2005 Incentive Award Plan (the "Incentive Plan"), and the Accuride Employee Stock Purchase Plan ("ESPP"). Up to 3,633,988 shares of our common stock were reserved for issuance upon the grant or exercise of Awards as defined in the Incentive Plan. Under the ESPP, we reserved 653,595 shares as available to issue to all of our eligible employees as determined by the Board of Directors, all of which were issued in the offering period corresponding to the fourth quarter of 2008.
As of February 26, 2010, all outstanding equity awards under the Incentive Plan and the ESPP were either cancelled or fully-vested, pursuant to the terms of the Plan of Reorganization. The value of the awards vested was approximately $16,000. On the Effective Date of our Plan of Reorganization, the Incentive Plan and ESPP were cancelled.
The Plan of Reorganization contemplated that Accuride will establish an equity incentive program for certain eligible employees. The specific provisions of the equity incentive plan have not yet been determined. The Compensation Committee of the Board of Directors is expected to recommend an equity incentive plan to the full Board of Directors, and the full Board of Directors is expected to make a determination based on that recommendation.
The following graph shows the total stockholder return of an investment of $100 in cash on April 26, 2005, the date public trading commenced in our prepetition common stock, for (i) our prepetition common stock, (ii) the S&P 500 Index, and (iii) a peer group of companies we refer to as "Commercial Vehicle Suppliers." We believe that a peer group of representative independent automotive suppliers of approximately comparable size and products to Accuride is appropriate for comparing shareowner return. The Commercial Vehicle Suppliers group consists of ArvinMeritor, Inc., Commercial Vehicle Group, Inc., Cummins, Inc., Eaton Corporation, and Stoneridge, Inc. All values assume reinvestment of the full amount of all dividends and are calculated through December 31, 2009.
On the Effective Date of the Plan of Reorganization, our prepetition common stock was cancelled and our postpetition Common Stock was issued. The graph below does not present any information regarding our postpetition Common Stock.
RECENT SALES OF UNREGISTERED SECURITIES
ISSUER PURCHASES OF EQUITY SECURITIES
The following financial data is an integral part of, and should be read in conjunction with the "Consolidated Financial Statements" and notes thereto. Information concerning significant trends in the financial condition and results of operations is contained in "Item 7Management's Discussion and Analysis of Financial Condition and Results of Operations."
Selected Historical Operations Data (In thousands, except per share data)
comparable to other similarly titled captions of other companies due to differences in methods of calculations. Our reconciliation of net income (loss) to Adjusted EBITDA is as follows:
of our Columbia, Tennessee, facility and $0.7 million for other non-operating/non-recurring items at our Erie, Pennsylvania, facility. Other unusual items in 2005 included $0.8 million for fees associated with our secondary stock offering, $0.3 million inventory write-down for a business exit, and $4.9 million related to charges associated with the TTI merger.
This Management's Discussion and Analysis of Financial Condition and Results of Operations ("MD&A") describes matters we consider important to understanding the results of our operations for each of the three years in the period ended December 31, 2009, and our capital resources and liquidity as of December 31, 2009 and 2008, and the Effective Date.
The following discussion should be read in conjunction with "Selected Consolidated Financial Data" and our Consolidated Financial Statements and the notes thereto, all included elsewhere in this report. The information set forth in this MD&A includes forward-looking statements that involve risks and uncertainties. Many factors could cause actual results to differ from those contained in the forward-looking statements including, but not limited to, those discussed in Item 7A. "Quantitative and Qualitative Disclosure about Market Risk," Item 1A. "Risk Factors" and elsewhere in this report.
We are one of the largest and most diversified manufacturers and suppliers of commercial vehicle components in North America. Our products include commercial vehicle wheels, wheel-end components and assemblies, truck body and chassis parts, seating assemblies and other commercial vehicle components. We market our products under some of the most recognized brand names in the industry, including Accuride, Gunite, Imperial, Bostrom, Fabco, Brillion, and Highway Original. We believe that we have number one or number two market positions in steel wheels, forged aluminum wheels, brake drums, disc wheel hubs, spoke wheels, metal grills, metal bumpers, crown assemblies, chrome plating and polishing, seating assemblies, and fuel tanks in commercial vehicles. We serve the leading OEMs and their related aftermarket channels in most major segments of the commercial vehicle market, including heavy- and medium-duty trucks, commercial trailers, light trucks, buses, as well as specialty and military vehicles.
Our primary product lines are standard equipment used by a majority of North American heavy- and medium-duty truck OEMs, creating a significant barrier to entry. We believe that substantially all heavy-duty truck models manufactured in North America contain one or more Accuride components.
Our diversified customer base includes substantially all of the leading commercial vehicle OEMs, such as Daimler Truck North America, LLC, with its Daimler Truck North America, Sterling and Western Star brand trucks, PACCAR., with its Peterbilt and Kenworth brand trucks, Navistar, with its International brand trucks, and Volvo/Mack, with its Volvo and Mack brand trucks. Our primary commercial trailer customers include leading commercial trailer OEMs, such as Great Dane Limited Partnership and Wabash National, Inc. Our major light truck customer is General Motors Corporation. Our product portfolio is supported by strong sales, marketing and design engineering capabilities and is manufactured in 17 strategically located, technologically-advanced facilities across the United States, Mexico and Canada.
Recent global market and economic conditions have been unprecedented and challenging with tighter credit conditions and recession in most major economies continuing into 2010. As a result of these market conditions, the cost and availability of credit has been and may continue to be adversely affected by illiquid credit markets and wider credit spreads. Concern about the stability of the markets generally and the strength of counterparties specifically has led many lenders and institutional investors to reduce, and in some cases, cease to provide credit to businesses and consumers. These factors have lead to a decrease in spending by businesses and consumers alike. Continued turbulence in the U.S. and international markets and economies and prolonged declines in business and consumer spending may adversely affect our liquidity and financial condition, and the liquidity and financial condition of
our customers, including our ability to refinance maturing liabilities and access the capital markets to meet liquidity needs.
The heavy- and medium-duty truck and commercial trailer markets and the related aftermarket are the primary drivers of our sales. These markets are, in turn, directly influenced by conditions in the North American truck industry generally by conditions in other industries which indirectly impact the truck industry, such as the home-building industry, and by overall economic growth and consumer spending. Accordingly, the current economic conditions described above have led to a severe and ongoing downturn in the North American truck and vehicle supply industries, which has resulted in a significant decline in our sales volume and necessitated our bankruptcy filings in October 2009, as described above in "Item 1BusinessChapter 11 Proceedings." Although current industry forecasts predict a modest improvement in commercial vehicle production in 2010, we cannot accurately predict how prolonged the current downturn may be, and this downturn may lead to further reduced spending and deterioration in the North American truck and vehicle supply industries for the foreseeable future. We emerged from bankruptcy with reduced financial leverage and an improved capital structure, which we believe will better enable us to operate in this economic environment. However, we continue to be a highly leveraged company, and a delayed or failed economic recovery would continue to have a material adverse effect on our business, results of operations and financial condition.
Using the commercial vehicle industry production forecasts discussed below, we expect results from operations to improve in 2010 compared to 2009 due to increased demand for our product, improved operational efficiencies, and reduced fees and expenses related to our senior credit facilities. During 2010, we expect to recognize approximately $20 million of professional and other fees related to our Plan of Reorganization.
During 2008, in response to the slow commercial vehicle market and the decline of sales, management undertook a review of current operations that led to a comprehensive restructuring plan. During 2008, we approved a restructuring plan to more appropriately align our workforce in response to the relatively slow commercial vehicle market. Continuing into 2009, we announced additional restructuring actions that focused on the consolidation of several of our facilities.
Costs incurred in accordance with ASC 420-10, Exit or Disposal Cost Obligations are shown below by reportable segment:
Of the $12.4 million restructuring expenses recognized in 2008, $7.4 million was recorded in cost of goods sold and the remaining $5.0 million was recorded in selling, general and administrative operating expenses. Of the $5.2 million restructuring expenses recorded in 2009, $4.2 million was recorded in cost of goods sold and the remaining $1.0 million was recorded in selling, general, and administrative operating expenses.
The following is a reconciliation of the beginning and ending restructuring reserve balances for the periods ended December 31, 2008 and 2009:
The remaining accrued liabilities as of December 31, 2009, related to the operational restructuring will be paid during 2010.
Liabilities Subject to Compromise
In accordance with applicable accounting standards, we are required to segregate and disclose all prepetition liabilities that are subject to compromise. Liabilities subject to compromise should be reported at the amounts expected to be allowed, even if they may be settled for lesser amounts. Unsecured liabilities of the Debtors, other than those specifically approved for payment by the Court, have been classified as liabilities subject to compromise. Liabilities subject to compromise are adjusted for changes in estimates and settlements of prepetition obligations. The key factors which impact our estimates are (1) court actions; (2) further developments with respect to disputed claims; (3) determinations of the secured status of certain claims; and (4) the values of any collateral securing such claims.
Results of Operations
Comparison of Fiscal Years 2009 and 2008
The following table sets forth certain income statement information for the fiscal years 2009 and 2008:
Net Sales. Net sales for the year ended December 31, 2009 were $570.2 million, which decreased 38.8% compared to net sales of $931.4 million for the year ended December 31, 2008. The decreases in our Wheels and Components segments were primarily a result of the significantly reduced demand in the commercial vehicle industry, caused by the deepening economic recession during 2009.
Gross Profit (Loss). Gross profit decreased $57.9million to a loss of $2.3million for the year ended December 31, 2009 from $55.6 million for the year ended December 31, 2008 primarily due to
reduced sales and operating inefficiencies related to low production volume. Gross profit as a percent of sales dropped from 6.0% to (0.4)%, due to our Wheels segment's gross margin of 16.6% in 2008 dropping to 8.8% in 2009 primarily due to production inefficiencies caused by reduced sales. Included in 2009 in our Components segment were $3.2 million of costs related to lease abandonment charges recognized related to consolidating our warehouses.
Operating Expenses. Operating expenses decreased $12.8 million to $42.4 million for the year ended December 31, 2009 from $55.2 million for the year ended December 31, 2008. This decrease was primarily due to reduced salary and incentive compensation due to lower headcount in 2009 as well as charges incurred in 2008 relating to $5.0 million of restructuring costs and $4.3 million of research and development costs.
Interest Expense. Net interest expense increased $8.4million to $59.8 million for the year ended December 31, 2009 from $51.4 million for the year ended December 31, 2008. The increase was due to having a higher net debt position in 2009 along with higher interest rates and also related to bank fees for amendment and temporary waivers to our credit facilities in 2009. No interest expense was recognized subsequent to October 8, 2009 for our prepetition senior subordinated notes.
Reorganization Items. ASC 852 requires the recognition of certain transactions directly related to the reorganization as reorganization expense in the statement of operations. The reorganization expense of $14.4 million for 2009 consisted of $10.8 million professional fees directly related to reorganization and a $3.6 million loss on deferred financing fees related to our prepetition senior subordinated notes that have been included in Liabilities Subject to Compromise. In addition, we incurred $17.0 million of prepetition professional fees in 2009 directly related to our reorganization, which we reported separately in the statement of operations.
Income Tax Provision. Income tax expense increased $7.0 million to $2.4 million in 2009 from a tax benefit recorded in 2008 of $4.6 million. Our provision for income taxes was significantly impacted by the recognition of additional valuation allowance of $54.1 million.
Net Loss. We had a net loss of $140.1 million for the year ended December 31, 2009 compared to a net loss of $328.3 million for the year ended December 31, 2008. The decrease to our Net Loss was primarily due to the pre-tax $277.0 million impairment recognized during 2008 partially offset by lower gross profits due to reduced net sales as well as reorganization costs recognized in 2009.
Comparison of Fiscal Years 2008 and 2007
The following table sets forth certain income statement information for the fiscal years 2008 and 2007:
Net Sales. Net sales for the year ended December 31, 2008 were $931.4 million, which decreased 8.1% compared to net sales of $1,013.7 million for the year ended December 31, 2007. The decrease in net sales in our Wheels segment was primarily a result of the reduced demand in the commercial vehicle industry along with approximately $10 million of reduced pricing. Our Components segment increased net sales mostly due to approximately $42 million of price increases realized to offset increased material costs. The Other segment's revenues also increased due to other price increases realized to offset increased material costs.
Gross Profit. Gross profit decreased $30.9 million to $55.6 million for the year ended December 31, 2008 from $86.5 million for the year ended December 31, 2007 primarily due to reduced sales and operating inefficiencies related to low production volume. Gross profit as a percent of sales dropped from 8.5% to 6.0%, due to our Components segment's gross margin of 1.4% in 2007 dropping to a loss of 3.8% in 2008 primarily due to production inefficiencies caused by reduced sales. Included in 2008 were $7.4 million of severance and other expenses related to restructuring. Included in 2008 and 2007 in our Components segment were $7.7 million and $2.1 million, respectively, of costs related to a labor disruption at our Rockford, Illinois, facility. Included in 2007 results in our Wheels segment are additional severance and other charges of $16.7 million primarily related to a reduction-in-force in our Canadian facility, accelerated depreciation of $12.8 million, and recognition of a gain of $3.8 million from an insurance settlement.
Operating Expenses. Operating expenses decreased $0.6 million to $55.2 million for the year ended December 31, 2008 from $55.8 million for the year ended December 31, 2007. This was primarily due to reduced salary and incentive compensation, partially offset by $5.0 million of restructuring costs and $4.3 million of research and development costs recognized in the current year that are not expected to continue. During 2007, we incurred start-up costs for our facility in Alabama of $1.4 million and expenses of $0.5 million related to the secondary stock offerings by selling shareholders in 2007.
Goodwill and Intangible Asset Impairments. Due to the significant decline in our stock price resulting from overall economic and industry conditions, we determined that an indicator of impairment existed for both goodwill and other intangible assets as of June 30, 2008, and we recognized impairment charges of $212.2 million. Our annual impairment test was performed as of November 30, 2008, which also indicated impairment and resulted in recognizing additional impairment charges totaling $64.8 million. Such charges were non-cash and did not affect our liquidity, tangible equity or debt covenant ratios.
Interest Expense. Net interest expense increased $3.1 million to $51.4 million for the year ended December 31, 2008 from $48.3 million for the year ended December 31, 2007. The increase of expense is attributable to $5.7 million of losses from our interest rate swap agreements in the current year compared to $0.3 million of gains in 2007's results, partially offset by a decrease in interest expense related to reduced debt and $1.6 million of costs incurred in 2007 related to amending our credit agreements.
Income Tax Provision. The $4.6 million of income tax benefits recorded in the year ended December 31, 2008, was $1.5 million higher than the $3.1 million income tax benefit recorded in the year ended December 31, 2007, which was mainly due to recognizing a valuation allowance against our deferred tax assets in 2008, partially offset by the decrease in pre-tax earnings. The differences between the effective rates and statutory rates for our U.S. and Mexico tax jurisdictions have not changed significantly.
Net Loss. We had a net loss of $328.3 million for the year ended December 31, 2008 compared to a net loss of $8.6 million for the year ended December 31, 2007. This was primarily a result of the lower gross profit due to the reduction in sales demand and the goodwill and other intangible asset impairments recognized during 2008.
Changes in Financial Condition
At December 31, 2009, we had total assets of $671.7 million, as compared to $808.6 million at December 31, 2008. The $136.9 million, or 16.9%, decrease in total assets primarily resulted from the reduction of cash of $67.2 million, a net reduction of property, plant, and equipment of $29.1 million and reduction of inventory of $28.1 million.
We define working capital as current assets less current liabilities, excluding net debt. We use working capital and cash flow measures to evaluate the performance of our operations and our ability to meet our financial obligations. We require working capital investment to maintain our position as a leading manufacturer and supplier of commercial vehicle components. We continue to strive to align our working capital investment with our customers' purchase requirements and our production schedules.
The following table summarizes the major components of our working capital as of the periods listed below:
Significant changes in net working capital from December 31, 2008 include:
Capital Resources and Liquidity
Historically, our primary sources of liquidity have been cash flows from operations and borrowings under our senior credit facilities. Due to the downturn in the commercial vehicle supply industry and the economy in general, in 2009, we experienced a reduction in cash flows from operations and increasingly relied on borrowings under our senior credit facilities, including the revolving credit facility under our prepetition senior credit facility and our DIP credit facility, as well as cash reserves, to meet our liquidity requirements. Some of the cash reduction experienced in 2009, however, was offset by the implementation of our operational restructuring initiatives, for which we expect to see a continued benefit in 2010, and a reduction in capital expenditures. On the Effective Date of the Plan of Reorganization, we emerged from bankruptcy with a new capital structure which reduces our annual debt payments. Based on the commercial vehicle industry production forecasts included in this report, we expect to generate sufficient cash to meet our liquidity needs in 2010.
Net cash used in operating activities for the year ended December 31, 2009 amounted to $39.3 million compared to a use of $9.2 million for the year ended December 31, 2008. This increase in funds used was primarily a result of reduced demand for our products during 2009 and approximately $23 million in fees and other expenses related to our credit agreement that were paid during 2009. During 2010, we expect to pay an additional $20 million in fees and other expenses related to our credit agreement.
Net cash used in investing activities totaled $34.9 million for the year ended December 31, 2009, compared to a use of $35.3 million for the year ended December 31, 2008. Our most significant cash outlays for investing activities are the purchases of property, plant, and equipment. Our capital expenditures in 2009 were $20.4 million compared to capital expenditures of $29.7 million in 2008. Cash generated from operations and existing cash reserves funded these expenditures. In 2009 we had cash inflows of $3.9 million related to the sale of certain marketable securities during the year compared to cash use of $5.0 million in 2008 for purchases of marketable securities. During 2009, we had cash outflows of $18.7 million related to restricted cash from drawn letters of credit. Capital expenditures for 2010 are expected to range from $17 million and $22 million, which we expect to fund through our cash from operations and existing cash reserves. Due to the continued challenges facing our industry and the economy as a whole, we are managing our capital expenditures very closely in order to preserve liquidity throughout 2010 while still maintaining our production capacity and making investments necessary to meet competitive threats and to seize upon growth opportunities.
Net cash provided by financing activities for the year ended December 31, 2009 totaled $7.0 million, compared to net cash provided by financing activities of $77.2 million for the year ended December 31, 2008. During 2009, we received $21.5 million from our DIP credit facility and had net cash outflows for our revolving credit facility of $3.7 million compared to increasing our borrowings of our revolving credit facility by $78.4 million in 2008. During 2009, we also incurred $10.8 million in fees associated with amending our credit facilities.
Prepetition Senior Credit Facility
Effective January 31, 2005, we entered into a fourth amended and restated credit agreement, which, as amended, we refer to as our prepetition senior credit facility, in conjunction with the acquisition of TTI to refinance substantially all of our credit facilities, as well as the senior bank debt and subordinated debt of TTI. Prior to our bankruptcy filing, our prepetition credit facility consisted of (i) a term facility in an aggregate principal amount of $550 million that required annual amortization payments of 1% per year, which would have matured on January 31, 2012, and (ii) a revolving credit facility in an aggregate amount of $100 million (comprised of a $76 million U.S. revolving credit facility and a $24 million Canadian revolving credit facility) which would have matured on January 31, 2010.
The loans under our prepetition senior credit facility were secured by, among other things, a lien on substantially all of our U.S. properties, assets and domestic subsidiaries and a pledge of 65% of the stock of our foreign subsidiaries. The loans under the Canadian revolving facility were secured by substantially all the properties and assets of Accuride Canada, Inc. As of December 31, 2009, the outstanding balance on the term debt was $304.0 million. The U.S. and Canadian revolving credit facilities were drawn down $34.1 million and $22.0 million, respectively, and drawn letters of credit were $15.5 million as of December 31, 2009, leaving availability of approximately $1.5 million, which considers outstanding letters of credit of $2.7 million and excludes $24.2 million of the revolving credit facility held by Lehman Commercial Paper, Inc.
The prepetition credit facility was amended and restated pursuant to the Plan of Reorganization on the Effective Date, as discussed below.
Debtor-in-Possession Credit Facility
In connection with our Chapter 11 filing, we entered into a superpriority secured ABL revolving credit facility of $25 million and a term loan first-in, last-out facility of $25 million, which we refer to
together as the DIP credit facility. The $25 million of ABL loans under the DIP credit facility bore interest, at our election, at a rate of LIBOR + 6.50% (with a LIBOR floor of 2.50%) or Base Rate + 5.50% (with a Base Rate floor of 3.50%), and the $25 million of first-in, last-out term loans under the DIP credit facility bore interest, at our election, at a rate of LIBOR + 7.50% (with a LIBOR floor of 2.50%) or Base Rate + 6.50% (with a Base Rate floor of 3.50%).
The use of proceeds under the DIP credit facility were limited to working capital and other general corporate purposes consistent with a budget that we presented to the administrative agent, including payment of costs and expenses related to the administration of the bankruptcy proceedings and payment of other expenses as approved by the bankruptcy court. Upon the Effective Date of the Plan of Reorganization, all amounts outstanding under the DIP credit facility were paid and the DIP credit facility was terminated in accordance with its terms.
Postpetition Senior Credit Facility
On the Effective Date of the Plan of Reorganization, we entered into the fifth amendment and restatement to our prepetition senior credit facility, which we refer to as the postpetition senior credit facility. As of the Effective Date, under our postpetition senior credit facility Accuride has outstanding term loans of $287,019,628 and outstanding letters of credit in the stated amount of $2,000,000 and Accuride Canada Inc. has outstanding term loans of $22,000,000. The interest rate for all loans will be, at our option, LIBOR + 6.75% (with a LIBOR floor of 3.00%) or Base Rate + 5.75% (with a Base Rate floor of 4.00%). The maturity for all loans and reimbursements of draws under the letters of credit is June 30, 2013.
With certain exceptions, our postpetition senior credit facility requires us to prepay loans with (i) 100% of excess cash flow (commencing with the fiscal year ending December 31, 2010), (ii) 100% of net proceeds from asset sales, (iii) 100% of new proceeds from new debt issuances, (iv) 100% of net cash proceeds from equity issuances and (v) 100% of cash received by us from third parties that are holding cash from letters of credit that they have drawn.
The loans under our postpetition senior credit facility are secured by, among other things, a lien on substantially all of our U.S. and Canadian properties, assets and domestic subsidiaries and a pledge of 65% of the stock of our foreign subsidiaries.
Prepetition Senior Subordinated Notes
On January 31, 2005, we issued $275 million aggregate principal amount of 81/2% senior subordinated notes due 2015 in a private placement transaction. Interest on the prepetition senior subordinated notes was payable on February 1 and August 1 of each year, beginning on August 1, 2005. The prepetition senior subordinated notes would have matured on February 1, 2015 and were redeemable, at our option, in whole or in part, at any time on or before February 1, 2010 in cash at the redemption prices set forth in the indenture, plus interest. The prepetition senior subordinated notes were general unsecured obligations ranking senior in right of payment to all of our existing and future subordinated indebtedness. The prepetition senior subordinated notes were subordinated to all of our existing and future senior indebtedness including indebtedness incurred under any senior credit facility. In May 2005, we successfully completed an exchange offer pursuant to which holders of our outstanding prepetition senior subordinated notes exchanged such notes for otherwise identical 81/2% Senior Subordinated Notes due 2015 which had been registered under the Securities Act.
Pursuant to the Plan of Reorganization, the prepetition senior subordinated notes and the indenture governing the prepetition senior subordinated notes were cancelled on the Effective Date.
Postpetition Senior Convertible Notes
On the Effective Date, we issued $140 million aggregate principal amount of convertible notes and entered into the indenture governing the convertible notes, dated the Effective Date. Under the terms of the Indenture, the convertible notes bear interest at a rate of 7.5% per annum and will mature on February 26, 2020. The first six interest payments will be PIK interest. Thereafter, beginning on August 26, 2013, interest on the convertible notes will be paid in cash.
The convertible notes are convertible into Common Stock at any time beginning on the Effective Date until the second business day preceding maturity, at an initial conversion rate of 1333.3333 per $1,000 principal amount of notes (equivalent to an initial conversion price of $0.75 per share of Common Stock). The conversion rate is subject to customary adjustments and will also be adjusted to account for PIK interest. The adjustment to the conversion rate for convertible notes issued as PIK interest serves to prevent the convertible notes outstanding immediately prior to the PIK interest payment from being diluted by the notes paid as PIK interest.
The convertible notes are redeemable by the Company, in whole but not in part, at any time on or after February 26, 2013, at a price equal to 100% of the principal amount of the convertible notes to be redeemed, plus any accrued and unpaid interest up to the redemption date; provided, that (i) the Common Stock is listed on a national securities exchange, (ii) the average weekly trading volume of the Common Stock as reported by such national securities exchange during the four week period prior to conversion is at least 3.0% of the total number of outstanding shares of Common Stock immediately prior to conversion and (iii) for twenty of the preceding thirty consecutive trading days, the Common Stock has had a closing sale price at least equal to 2.25 times the effective conversion price.
Restrictive Debt Covenants. Our credit documents (the postpetition senior credit facility and the indenture governing the convertible notes) contain numerous financial and operating covenants that limit the discretion of management with respect to certain business matters. These covenants place significant restrictions on, among other things, the ability to incur additional debt, to pay dividends, to create liens, to make certain payments and investments and to sell or otherwise dispose of assets and merge or consolidate with other entities.
In addition, under our postpetition senior credit facility, we are also required to meet certain financial covenants, which include minimum monthly liquidity and minimum EBITDA covenants and a maximum capital expenditure covenant. The minimum EBITDA covenants begin June 30, 2011. A failure to comply with the obligations contained in the credit documents could result in an event of default, and possibly the acceleration of the related debt and the acceleration of debt under other instruments evidencing indebtedness that may contain cross-acceleration or cross-default provisions.
We continue to operate in a challenging economic environment and our ability to maintain liquidity and comply with our debt covenants may be affected by economic or other conditions that are beyond our control and which are difficult to predict. The 2010 production forecasts by ACT Publications for the significant commercial vehicle markets that we serve, as of March 10, 2010, are as follows:
Based on the these production builds, we expect to comply with our debt covenants and believe that our liquidity will be sufficient to fund currently anticipated working capital, capital expenditures, and debt service requirements for at least the next twelve months. However, if our net sales are significantly less than expectations, given the volatility and the calendarization of the production builds as well as the other markets that we serve, or due to the challenging credit markets, we could violate
our debt covenants or have insufficient liquidity. In the event of noncompliance, we would pursue an amendment or waiver. However, no assurances can be given that those forecasts will be accurate.
Off-Balance Sheet Arrangements. Our off-balance sheet arrangements include operating leases and unconditional purchase obligations which are principally take-or-pay obligations related to the purchase of certain materials, including natural gas, consistent with customary industry practice as well as letters of credit.
Contractual Obligations and Commercial Commitments
The following table summarizes our contractual obligations as of December 31, 2009 and the effect such obligations and commitments are expected to have on our liquidity and cash flow in future periods:
Critical Accounting Policies and Estimates
Our consolidated financial statements and accompanying notes have been prepared in accordance with GAAP applied on a consistent basis. The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues, and expenses during the reporting periods.
We continually evaluate our accounting policies and estimates used to prepare the consolidated financial statements. In general, management's estimates are based on historical experience, on information from third party professionals and on various other assumptions that are believed to be reasonable under the facts and circumstances. Actual results could differ from those estimates made by management.
Critical accounting policies and estimates are those where the nature of the estimates or assumptions is material due to the levels of subjectivity and judgment necessary to account for highly uncertain matters or the susceptibility of such matters to change, and the impact of the estimates and assumptions on financial condition or operating performance is material. We believe our critical accounting policies and estimates, as reviewed and discussed with the Audit Committee of our Board of Directors, include accounting for impairment of long-lived assets, goodwill, pensions, and taxes.
Impairment of Long-lived AssetsWe evaluate long-lived assets whenever events or changes in circumstances indicate that the carrying amount of an asset or asset group may not be recoverable. In performing the review of recoverability, we estimate future cash flows expected to result from the use of the asset and our eventual disposition. The estimates of future cash flows, based on reasonable and supportable assumptions and projections, require management's subjective judgments. The time periods for estimating future cash flows is often lengthy, which increases the sensitivity to assumptions made. Depending on the assumptions and estimates used, such as the determination of the primary asset group, the estimated life of the primary asset, and projected profitability, the estimated future cash flows projected in the evaluation of long-lived assets can vary within a wide range of outcomes. We consider the likelihood of possible outcomes in determining the best estimate of future cash flows.
Accounting for Goodwill and Other Intangible AssetsWe review goodwill for impairment annually or more frequently if events or circumstances indicate that the carrying amount of goodwill may be impaired. Recoverability of goodwill is measured by a comparison of the carrying value to the implied fair value. If the carrying amount exceeds its fair value, an impairment charge is recognized to the extent that the implied fair value exceeds its carrying value. The implied fair value of goodwill is the residual fair value, if any, after allocating the fair value to all of the assets (recognized and unrecognized) and all of the liabilities. We estimate fair value using a combination of market value approach using quoted market prices of comparable companies and an income approach using discounted cash flow projections.
The income approach uses a projection of estimated cash flows that is discounted using a weighted-average cost of capital that reflects current market conditions. The projection uses management's best estimates of economic and market conditions over the projected period including growth rates in sales, costs, estimates of future expected changes in operating margins and capital expenditures. Other significant estimates and assumptions include terminal value growth rates, future estimates of capital expenditures and changes in future working capital requirements.
A significant amount of judgment is involved in determining if an indicator of impairment has occurred. Such indicators may include, among others: a significant decline in our expected future cash flows; a sustained, significant decline in our stock price and market capitalization; a significant adverse change in the business climate; unanticipated competition; and slower growth rates. Any adverse change in these factors could have a significant impact on the recoverability of these assets and could have a material impact on our consolidated financial statements.
The midpoint of the range of fair values of our reorganization values from our Plan of Reorganization, which was approved by the bankruptcy court, was used as fair value of the Company. Based on our allocation to our reporting units of the midpoint of reorganization values, step one of the annual impairment test passed, and we were not required to complete step two. As fresh-start reporting will be adopted, the reorganization value will be allocated to the assets of the post-emergence Company. The allocation process has commenced, but is not close to completion. At this time, we are reasonably certain that goodwill and intangibles under fresh-start reporting will be materially different from amounts recorded as of December 31, 2009.
We review other intangibles for impairment annually or more frequently if events or circumstances indicate that the carrying amount of trademarks may be impaired. If the carrying amount exceeds the fair value (determined by calculating a fair value based upon a discounted cash flow of an assumed royalty raterelief of royalty method), impairment of the trademark may exist resulting in a charge to earnings to the extent of impairment.
Pensions and Other Post-Employment BenefitsWe account for our defined benefit pension plans and other post-employment benefit plans in accordance with ASC 715-30, Defined Benefit PlansPensions, ASC 715-60, Defined Benefit PlansOther Postretirement, and ASC 715-20, Defined Benefit PlansGeneral, which require that amounts recognized in financial statements be determined on an actuarial basis. As permitted by ASC 715-30, we use a smoothed value of plan assets (which is further described below). ASC 715-30 requires that the effects of the performance of the pension plan's assets and changes in pension liability discount rates on our computation of pension income (cost) be amortized over future periods. ASC 715-20 requires an employer to fully recognize the obligations associated with single-employer defined benefit pension, retiree healthcare, and other postretirement plans in their financial statements.
The most significant element in determining our pension income (cost) in accordance with ASC 715-30 is the expected return on plan assets and discount rates. In 2009, we assumed that the expected long-term rate of return on plan assets would be 7.75% for our U.S. plans and 7.00% for our Canadian plans. The assumed long-term rate of return on assets is applied to a calculated value of plan assets, which recognizes changes in the fair value of plan assets in a systematic manner over five years. This produces the expected return on plan assets that is included in pension income (cost). The difference between this expected return and the actual return on plan assets is deferred. The net deferral of past asset gains (losses) affects the calculated value of plan assets and, ultimately, future pension income (cost).
The expected return on plan assets is reviewed annually, and if conditions should warrant, will be revised. If we were to lower this rate, future pension cost would increase. We currently anticipate no change in our long-term rate of return assumption in 2010 for any of our U.S. and Canada plans.
At the end of each year, we determine the discount rates to be used to calculate the present value of each of the plan liabilities. The discount rate is an estimate of the current interest rate at which the pension liabilities could be effectively settled at the end of the year. In estimating this rate, we look to rates of return on high-quality, fixed-income investments that receive one of the two highest ratings given by a recognized ratings agency. At December 31, 2009, we determined the blended rate to be 6.11%. The net effect of changes in the discount rate, as well as the net effect of other changes in actuarial assumptions and experience, has been deferred, in accordance with ASC 715-30.
For the year ended December 31, 2009, we recognized consolidated pretax pension cost of $6.5 million compared to $3.1 million in 2008. We currently expect to contribute $12.3 million to our pension plans during 2010, however, we may elect to adjust the level of contributions based on a number of factors, including performance of pension investments, changes in interest rates, and changes in workforce compensation.
For the year ended December 31, 2009, we recognized a consolidated pre-tax post-retirement welfare benefit cost of $1.9 million compared to $2.2 million in 2008. We expect to contribute $3.8 million during 2010 to our post-retirement welfare benefit plans.
Income TaxesManagement judgment is required in developing our provision for income taxes, including the determination of deferred tax assets, liabilities and any valuation allowances recorded against the deferred tax assets. We evaluate quarterly the realizability of our net deferred tax assets by assessing the valuation allowance and adjusting the amount of such allowance, if necessary. The factors used to assess the likelihood of realization are our forecast of future taxable income and the availability
of tax planning strategies that can be implemented to realize the net deferred tax assets. Failure to achieve forecasted taxable income might affect the ultimate realization of the net deferred tax assets. Factors that may affect our ability to achieve sufficient forecasted taxable income include, but are not limited to, the following: increased competition, a decline in sales or margins, or loss of market share.
We operate in multiple jurisdictions and are routinely under audit by federal, state and international tax authorities. Exposures exist related to various filing positions that may require an extended period of time to resolve and may result in income tax adjustments by the taxing authorities. Reserves for these potential exposures that have been established represent management's best estimate of the probable adjustments. On a quarterly basis, management evaluates the reserve amounts in light of any additional information and adjusts the reserve balances as necessary to reflect the best estimate of the probable outcomes. We believe that we have established the appropriate reserve for these estimated exposures. However, actual results may differ from these estimates. The resolution of these matters in a particular future period could have an impact on our consolidated statement of operations and provision for income taxes.
New Accounting Pronouncements
ASC 810In June 2009, the FASB finalized SFAS No. 167, Amending FASB interpretation No. 46(R), which was later superseded by the FASB Codification and included in ASC topic 810. The provisions of ASC 810 provide guidance in determining whether an enterprise has a controlling financial interest in a variable interest entity. This determination identifies the primary beneficiary of a variable interest entity as the enterprise that has both the power to direct the activities of a variable interest entity that most significantly impacts the entity's economic performance, and the obligation to absorb losses or the right to receive benefits of the entity that could potentially be significant to the variable interest entity. This pronouncement also requires ongoing reassessments of whether an enterprise is the primary beneficiary and eliminates the quantitative approach previously required for determining the primary beneficiary. New provisions of this pronouncement are effective January 1, 2010. The Company is currently evaluating the impact of adopting this pronouncement.
Compensation Programs and Policies Risk Assessment
We conducted a risk assessment of our compensation programs and policies from a legal, human resources, auditing and risk management perspective and reviewed and discussed this assessment with the compensation committee. Based on this assessment we concluded that we do not have any compensation programs or practices which would reasonably likely have a material adverse effect our business.
This annual report contains "forward-looking statements" (as defined in the Private Securities Litigation Reform Act of 1995). These statements are based on the Company's current expectations and involve risks and uncertainties, which may cause results to differ materially from those set forth in the statements. The forward-looking statements may include statements regarding actions to be taken by the Company. The Company undertakes no obligation to publicly update any forward-looking statement, whether as a result of new information, future events or otherwise. Forward-looking statements should be evaluated together with the many uncertainties that affect the Company's business, particularly those mentioned in the risk factors in Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2009 and in our periodic reports on Form 10-Q and Form 8-K.
Effects of Inflation
The effects of inflation were not considered material during fiscal years 2009, 2008, or 2007.
In the normal course of doing business, we are exposed to the risks associated with changes in foreign exchange rates, raw material/commodity prices, and interest rates. We use derivative instruments to manage these exposures. The objectives for holding derivatives are to minimize the risks using the most effective methods to eliminate or reduce the impacts of these exposures.
Foreign Currency Risk
Certain forecasted transactions, assets, and liabilities are exposed to foreign currency risk. We monitor our foreign currency exposures to maximize the overall effectiveness of our foreign currency derivatives. The principal currency of exposure is the Canadian dollar. From time to time, we use foreign currency financial instruments to offset the impact of the variability in exchange rates on our operations, cash flows, assets and liabilities. We had no outstanding foreign exchange forward contract instruments at December 31, 2009.
Foreign currency derivative contracts provide only limited protection against currency risks. Factors that could impact the effectiveness of our currency risk management programs include accuracy of sales estimates, volatility of currency markets and the cost and availability of derivative instruments.
The counterparty to the foreign exchange contracts is a financial institution with an investment grade credit rating. The use of forward contracts protects our cash flows against unfavorable movements in exchange rates, to the extent of the amount under contract.
Raw Material/Commodity Price Risk
We rely upon the supply of certain raw materials and commodities in our production processes, and we have entered into firm purchase commitments for certain metals and natural gas. A 10% adverse change in pricing (considering 2009 production volume) would be approximately $25 million, which would be reduced through the terms of the sales, supply, and procurement contracts. Additionally, from time to time, we use commodity price swaps and futures contracts to manage the variability in certain commodity prices on our operations and cash flows. At December 31, 2009, we had no open commodity price swaps or futures contracts.
Interest Rate Risk
We use long-term debt as a primary source of capital. However, due to the event of default resulting from our voluntary petition for relief under Chapter 11 of the Bankruptcy Code, we have classified our debt, with the exception of our DIP credit facility, as liabilities subject to compromise as of December 31, 2009 in accordance with U.S. GAAP. The following table presents the principal cash repayments and related weighted average interest rates by maturity date for our fixed-rate debt and other types of debt at December 31, 2009 assuming no acceleration:
As of the Effective Date, we had long-term debt of $449.1 million, comprised of our postpetition senior credit facility of $309.1 million and convertible notes of $140.0 million. The interest rate for the postpetition senior credit facility will be, at our option, LIBOR + 6.75% (with a LIBOR floor of 3.00%) or Base Rate + 5.75% (with a Base Rate floor of 4.00%) and will mature on June 30, 2013. The convertible notes bear interest at a fixed rate of 7.5% per annum and will mature on February 26, 2020.
Attached, beginning at page 85.
Evaluation of disclosure controls and procedures. In accordance with Rule 13a-15(b) of the Exchange Act, our management evaluated, with the participation of our Chief Executive Officer and Chief Financial Officer, the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) as of December 31, 2009. Based upon their evaluation of these disclosure controls and procedures, the Chairman of the Board and Chief Executive Officer and Chief Financial Officer concluded that the disclosure controls and procedures were effective as of December 31, 2009 to ensure that information required to be disclosed under the Exchange Act is recorded, processed, summarized, and reported, within the time period specified in the SEC rules and forms, and to ensure that information required to be disclosed under the Exchange Act is accumulated and communicated to our management, including our principal executive and principal financial officers, as appropriate, to allow timely decisions regarding required disclosure.
Management's Annual Report on Internal Control Over Financial Reporting. Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Rule 13a-15(f) of the Exchange Act. Our internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of published financial statements in accordance with GAAP.
Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, has assessed the effectiveness of our internal control over financial reporting based on the framework and criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this assessment, our management has concluded that, as of December 31, 2009, our internal controls over financial reporting were effective based on that framework.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Projections of any evaluation of the effectiveness to future periods are subject to risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
This annual report does not include an attestation report of the Company's registered public accounting firm regarding internal control over financial reporting. Management's report was not subject to attestation by the Company's registered public accounting firm pursuant to rules of the Securities and Exchange Commission that permits the Company to provide only management's report in this annual report.
Changes in Internal Controls Over Financial Reporting. During the fourth quarter of fiscal 2009 there were no changes to our internal controls over financial reporting that have materially affected or are reasonably likely to materially affect our internal control over financial reporting.
Identification of Directors
Our Certificate of Incorporation and Bylaws provide that the total number of directors which shall constitute the whole Board of Directors shall consist of not less than five nor more than seven members, with the precise number of directors to be determined from time to time exclusively by a vote of a majority of the entire Board of Directors. The number of directors currently is set at seven. Pursuant to our Plan of Reorganization and the confirmation order of the Bankruptcy Court, upon the Effective Date, our Board of Directors consists of our Chief Executive Officer and six directors designated by professionals that represented the Ad Hoc Noteholders Group in the bankruptcy proceedings and consented to by the Company. The appointments under the confirmation order were made with the same effect as if made by unanimous action of our stockholders and in lieu of an annual meeting of our stockholders.
The names of the members of our Board of Directors, and certain information about them as of March 18, 2010, are set forth below. See the section below entitled "Share Ownership by Principal Stockholders and Management" for information regarding each director's holdings of our voting equity securities. There are no family relationships among any of our directors or executive officers.
The principal occupations and positions for at least the past five years of the current directors are described below, along with the specific experience, qualifications, attributes or skills that led to the conclusion that each director is qualified to serve on our Board of Directors.
Michael J. Bevacqua joined Sankaty Advisors, LLC in 1999 and currently is Managing Director with responsibility for distressed investing and restructurings, which has provided Mr. Bevacqua with a unique understanding of the challenges facing a company after emerging from bankruptcy. Previously, Mr. Bevacqua was Vice President of First Union Capital Markets, where he worked in the Asset Securitization Group. Mr. Bevacqua also worked as an Associate in Corporate Finance at NationsBanc Capital Markets and spent four years as an officer in the U.S. Marine Corps. Mr. Bevacqua holds a B.S. in Finance from Ithaca College and an M.B.A. from Pennsylvania State University. Mr. Bevacqua's familiarity with restructurings and capital markets, as well as his experience as an executive officer within the investment community qualify him to serve on our Board of Directors.
Keith E. Busse has served as the Chairman and CEO of Steel Dynamics, Inc. since 2007. From 1993 to May 2007, Mr. Busse also served as President and CEO of Steel Dynamics, Inc. Prior to 1993, Mr. Busse worked for Nucor Corporation for a period of twenty-one years, where he last held the office of Vice President. Mr. Busse is a co-founder of Steel Dynamics and is also Chairman of the Board and a director of Tower Financial Corporation. From 2008 to 2009 Mr. Busse was the American Iron and Steel Institute (AISI) Chairman and from 2004 to 2005 he served as Chairman of Steel Manufacturing Association. Mr. Busse has served on the Board of Directors of Tower Financial Corporation, a publicly held bank holding company, since 1998. He has also served as a Trustee for the University of St. Francis and Tri-State University. Mr. Busse holds a B.S. in Accounting from International Business College, a B.A. with a major in Business Finance and an Honorary Doctorate Degree in Business from St. Francis College, an M.B.A. from Indiana University, and an Honorary Degree of Doctor of Engineering from Purdue University. Mr. Busse's extensive experience as an executive officer with public manufacturing companies, his unique knowledge of the steel industry and prominent position in that industry's community and his accounting education and financial reporting expertise qualify him to serve on our Board of Directors.
Benjamin C. Duster, IV owns and manages B. Duster & Company, LLC, a strategic and financial consulting firm, and is an Executive Managing Director for Watermark Advisors, LLC, a broker-dealer headquartered in Greenville, South Carolina specializing in providing mergers and acquisitions, private capital financing, valuation, and financial and strategic modeling solutions to middle market, privately-owned businesses. From October 2001 through May 2005, Mr. Duster was a partner with Masson & Company, LLC, an interim and crisis management and financial restructuring firm and has extensive experience in turnaround management and restructuring. From 1997 to 2001 he was a Managing Director for Wachovia Securities where he headed the Mergers & Acquisitions advisory business focusing on middle market companies. Previously, Mr. Duster held various positions at Solomon Brothers from 1981 through 1997. Mr. Duster served as Chairman of the Board for Algoma Steel, Inc. from February 2002 through June 2007, and as a director for Neenah Foundry from September 2003 through May 2006. Mr. Duster currently serves as a director of Catalyst Paper, RCN Corporation and Ormet Corporation. Through his board membership, Mr. Duster has acquired substantial experience in corporate governance matters. Mr. Duster holds a B.A. in Economics from Yale College, an MBA from Harvard Business School and a J.D. from Harvard Law School. Mr. Duster's relevant experience with turnaround management and restructuring, his valuable financial expertise, familiarity with mergers and acquisitions, capital markets transactions and private equity and his board experience and corporate governance knowledge qualify him to serve on our Board of Directors.
Robert J. Kelly has been employed by Tinicum Incorporated ("Tinicum"), the management company of Tinicum Capital Partners II, L.P. ("TCP II"), since 1991. Tinicum is an investment company that has been a long-standing investor in Accuride Corporation. Mr. Kelly currently is an observer on the board of X-Rite, Inc. and a Director of Penn Engineering and Manufacturing Corp, a leading manufacturer of specialty fasteners. Mr. Kelly has in the past served as a director of a number of TCP II portfolio companies. Prior to joining Tinicum, Mr. Kelly held positions at Pacific Telesis and Bain & Company. Mr. Kelly is a graduate of Yale College and the Stanford University Graduate School of Business. Mr. Kelly's knowledge of restructuring transactions, his familiarity with our Company, his investment expertise and his experience on the boards of private and public companies qualify him to serve on our Board of Directors.
William M. Lasky has served as the Company's Interim President and Chief Executive Officer ("CEO") since agreeing to serve in that capacity at the request of our Board in September 2008 upon resignation of our former President and CEO. He has served as a director since October 2007 and as Chairman of the Board since January 2009. Mr. Lasky served as the Chairman of the Board for Stoneridge, Inc., a manufacturer of electronic components, modules and systems for various vehicles, from July 2006 until September 2008, and has been a director of Stoneridge, Inc., since January 2004.
Previously, Mr. Lasky served as the Chairman of the Board and President and Chief Executive Officer of JLG Industries, Inc., a manufacturer of aerial work platforms, telescopic material handlers and related accessories, from 1999 through late 2006. Prior to joining JLG Industries, Mr. Lasky served in various senior capacities at Dana Corporation from 1977 to 1999. Mr. Lasky holds a B.S. from Norwich University. Mr. Lasky's familiarity with the Company and ultimate responsibility for the day-to-day oversight of the Company, his extensive experience as an executive officer of manufacturing companies and his board memberships qualify him to serve on our Board of Directors.
Stephen S. Ledoux has served as Managing Director, Rothschild, Inc., one of the world's leading independent investment banking organizations providing financial services to governments, corporations and individuals world wide, since 2001. Prior to joining Rothschild, Mr. Ledoux held the position of Portfolio Manager of Morgens Waterfall and Vintiadas, an investment advisory firm focused on equity and distressed debt investing from 1999 to 2001, as well as various positions at Lehman Brothers, The Blackstone Group, and Salomon Brothers. Mr. Ledoux holds a B.S. in Finance, Investments and Economics from Babson College. Mr. Ledoux's experience with distressed investing and his long career in investment banking, along with his business leadership skills and management experience qualify him to serve on our Board of Directors.
John W. Risner has served as President of The Children's Tumor Foundation since 2005, after joining the foundation as Treasurer in 2002. From 1997 to 2002, he served as a Senior Vice President and Senior Portfolio ManagerHigh Yield Bonds at AIG/Sun America Asset Management. Prior to that, Mr. Risner held the position of Vice President-Senior Portfolio Manager at Value Line Asset Management from 1991 to 1997. Through his long career in corporate finance, Mr. Risner has obtained significant financial reporting expertise. Mr. Risner serves on the Board of Directors of NII Holdings, The Wornick Company and The Children's Tumor Foundation, and previously served on the Board of Directors of Airgate PCS and UGC Europe. Through his membership on boards, Mr. Risner has acquired substantial experience on corporate governance issues. Mr. Risner earned a B.S. from the University of Maryland and an MBA from Fordham University. Mr. Risner's background in the financial industry and his knowledge of financial instruments such as high yield bonds, his financial reporting skills and his directorship experiences and corporate governance expertise qualify him to serve on our Board of Directors.
Identification of Executive Officers
Set forth below is information concerning our executive officers as of March 18, 2010. Information regarding our directors is set forth in "Proposal No. OneElection of Directors," presented earlier in this Proxy Statement.
The principal occupations and positions for at least the past five years of the executive officers named above are as follows:
William M. Lasky. Please see Mr. Lasky's biography set forth in "Identification of Directors," presented above.
James H. Woodward, Jr. has served as the Company's Interim Senior Vice President/Chief Financial Officer since March 16, 2009. Mr. Woodward has more than thirty (30) years experience in corporate finance and currently serves as an Independent Director on the board of Altra Holdings, Inc. From January 2007 through February 2008, Mr. Woodward served as the Executive Vice President, Chief Financial Officer and Treasurer of Joy Global, Inc. Prior to joining Joy Global, Inc., Mr. Woodward worked as the Executive Vice President and Chief Financial Officer for JLG Industries, Inc. from 2002 through 2006 and served as Senior Vice President and Chief Financial Officer from 2000 through 2002. Mr. Woodward served nineteen years at Dana Corporation, from 1982 through 2000, working in a variety of management positions in the finance department, including Vice President and Corporate Controller from 1997 through 2000. He also previously worked in finance and auditing positions with Household International, Inc. and Touche Ross & Company from 1978 through 1982 and 1975 through 1978, respectively. Mr. Woodward received his Bachelor's Degree in Accounting from Michigan State University and is a Certified Public Accountant.
Edward J. Gulda has served as the Company's Senior Vice President/Components Operations since December 2007. Prior to joining the Company, Mr. Gulda served as Principal for Kinnick Group LLC from 1998 to December 2007. He served as Chairman and Chief Executive Officer of Peregrine Incorporated from 1997 to 1998. Mr. Gulda also served as Chief Executive Officer of Kelsey Hayes from 1995 to 1996 as well as other senior management positions with Kelsey Hayes from 1989 to 1996, and was President and Chief Operating Officer of Dayton Walter from 1988 to 1989. Mr. Gulda holds a B.S.E. and an M.B.A. from the University of Michigan.
James J. Maniatis has served as the Company's Senior Vice President/Human Resources since October 2008. Mr. Maniatis previously served as Vice President/Human Resources from February to October 2008. Prior to joining the Company, Mr. Maniatis served as Vice President Human Resources for Cooper Lighting from 1997 to March 2007 and served in various other capacities for Cooper Industries from April 2007 through January 2008. Prior to that, he served as Vice President Human Resources for Varity Kelsey-Hayes from 1992 to 1997 and has also held senior human resource positions with RJR Nabisco. Mr. Maniatis received a B.B.A. from Loyola University.
Stephen A. Martin has served as the Company's Vice President/General Counsel and Corporate Secretary since March 2008. Mr. Martin previously served as Vice President/Corporate Counsel from January 2007 through February 2008 and as Associate Corporate Counsel from December 2005 through December 2006. Prior to joining the Company, Mr. Martin was an associate at Latham & Watkins LLP from January 2002 through October 2005. Prior to attending law school, Mr. Martin served as an officer in the United States Air Force for over six years. Mr. Martin received a B.S.E.E. from the University of Miami, an M.S.E.E. from the University of Southern California and a J.D. from Duke University School of Law.
Gregory A. Risch has served as the Company's Vice President/Chief Accounting Officer since January 2010. Mr. Risch previously served the Company in various capacities over the last 15 years, including as the Company's Director of Financial Planning and Reporting from January 2008 through December 2009, Assistant Controller from May 2005 to December 2007, Plant Controller from August 2001 through April 2005, General Accounting Manager from April 1999 through July 2001, and Accountant/Analyst from August 1994 through March 1999. Mr. Risch received a Bachelor of Arts degree from Kentucky Wesleyan College and is a Certified Public Accountant.
Richard F. Schomer has served as the Company's Senior Vice President/Marketing and Sales since August 2007. Prior to joining the Company, since August 2000, Mr. Schomer served as a Principal at MR3 LLP, a business consulting firm he established, where he advised new enterprises in market development, product development, and quality and production improvement. Prior to that, Mr. Schomer served in various executive positions at AutoLign Manufacturing Group, Peregrine
Incorporated, Lucas Varity (now TRW) and FreudenbergNOK. Mr. Schomer received a B.S. from Defiance College, where he majored in business management.
Leigh A. Wright has served as the Company's Senior Vice President/Accuride Wheels since December 2007. Mr. Wright served as Vice President of Steel Wheels from May 2006 to December 2007 and as Director OperationsLondon from March 2004 to May 2006. Prior to joining the Company, Mr. Wright served as President of Office Specialty, a Toronto-based manufacturer of premium storage and seating products, from 2001 to 2003 and as Vice President and General Manager of ArvinMeritor Ride Control Products from 1996 to 2001. Mr. Wright holds an M.B.A. from the Richard Ivey School of Business at the University of Western Ontario, a C.I.M. from McMaster University, and a Manufacturing Engineering Technologist diploma from Fanshawe College in London, Ontario.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires the Company's directors, executive officers and persons who own more than 10% of a registered class of the Company's equity securities to file certain reports regarding ownership of, and transactions in, the Company's securities with the SEC. Such officers, directors and 10% stockholders are also required by SEC rules to furnish the Company with copies of all Section 16(a) forms that they file.
Based solely on our review of such forms furnished to us and written representations from certain reporting persons, we believe that all filing requirements applicable to the Company's executive officers, directors and 10% stockholders were complied with during the fiscal year ended December 31, 2009.
Code of Conduct for CEO and Senior Financial Officers
As part of our system of corporate governance, our Board of Directors has adopted a code of conduct (the "Accuride Code of Conduct") that is applicable to all employees including our Chief Executive Officer and senior financial officers. The Accuride Code of Conduct is available on our website at http://www.accuridecorp.com. Additionally, the Accuride Code of Conduct is available in print to any shareholder who requests it by writing to Accuride Corporation, ATTN: Corporate Secretary, 7140 Office Circle, P.O. Box 15600, Evansville, IN 47716. We intend to disclose on our website any amendments to, or waivers from, the Accuride Code of Conduct that are required to be publicly disclosed pursuant to the rules of the SEC.
Changes to Director Nomination Procedures
Prior to the Effective Date of our Plan of Reorganization, the holder of the sole outstanding share of our Series A Preferred Stock (the "Preferred Share") had the right to nominate and elect five directors to our Board of Directors and to nominate an additional independent director. Pursuant to our Plan of Reorganization, the Preferred Share was cancelled and our Certificate of Incorporation was amended and restated to, among other things, delete the related Certificate of Designation of Series A Preferred Stock. As a result, the holder of the Preferred Share no longer has the right to nominate and elect five directors to the Board of Directors. Our Amended and Restated Bylaws specify that stockholders may nominate candidates for election to our Board of Directors, and provide specific requirements related to form and timing for making such nominations. Stockholders may also send any recommendations for Director nominees or other communications to the Board of Directors or any individual director c/o Accuride Corporation, ATTN: Corporate Secretary, 7140 Office Circle, P.O. Box 15600, Evansville, IN 47716. All communications received will be reported to the Board or the individual directors, as appropriate.
Matters Related to 2011 Annual Meeting
Stockholder Proposals under Rule 14a-8
December 22, 2010 is the deadline for stockholders to submit proposals to be included in our proxy statement and identified in our form of proxy under Rule 14a-8 under the Exchange Act. Proposals by stockholders must comply with all requirements of applicable SEC rules, including Rule 14a-8, and be mailed to our Corporate Secretary at our principal executive offices at 7140 Office Circle, Evansville, Indiana 47715. Director nominations are not currently permitted to be made under Rule 14a-8. We reserve the right to reject, rule out of order, or take other appropriate action with respect to any proposal that does not comply with Rule 14a-8 and other applicable requirements.
Director Nominations by Stockholders
Stockholders who wish to nominate persons for election to our Board of Directors or propose other matters to be considered at our 2011 annual meeting of stockholders must provide us advance notice of the director nomination or stockholder proposal, as well as the information specified in our Bylaws, no later than 90 days prior to the 2011 annual meeting or, if later, ten days after the initial public disclosure of the date of the 2011 annual meeting. Stockholders are advised to review our Bylaws, which contain the requirements for advance notice of director nominations and stockholder proposals. Notice of director nominations and stockholder proposals must be mailed to our Corporate Secretary at our principal executive offices at 7140 Office Circle, Evansville, Indiana 47715. The requirements for advance notice of stockholder proposals under our bylaws do not apply to proposals properly submitted under Rule 14a-8 under the Exchange Act, as described above, as those stockholder proposals are governed by Rule 14a-8. We reserve the right to reject, rule out of order, or take other appropriate action with respect to any director nomination or stockholder proposal that does not comply with our Bylaws and other applicable requirements.
The Board has established a standing Audit Committee to oversee the accounting and financial reporting processes of the Company and the audits of the financial statements of the Company. The Audit Committee acts pursuant to a written charter that has been adopted by the Board. A more complete description of the powers and responsibilities delegated to the Audit Committee is set forth in the Audit Committee Charter, which is posted in the Investor Information section of our website at www.accuridecorp.com. During 2009 and through February 26, 2010, the Effective Date of our Plan of Reorganization, Charles E. Mitchell Rentschler, Donald C. Roof, and Mark D. Dalton comprised the Audit Committee. On March 5, 2010 our Audit Committee was reconstituted by our new Board of Directors to be comprised of Messrs. Busse, Ledoux and Risner. Mr. Risner serves as Chairman. The Board of Directors has determined that all current members of the Audit Committee are "independent" as that term is defined in the NYSE's rules. In addition, the Board has determined that each current member of the Audit Committee also satisfies the independence requirements of Rule 10A-3(b)(1) of the Exchange Act. The Board has further determined that Mr. Risner is an "audit committee financial expert" as defined by Item 401(h) of Regulation S-K of the Securities Act.
Compensation Risk Assessment
We conducted a risk assessment of our compensation programs and policies from legal, human resources, auditing and risk management perspectives and reviewed and discussed this assessment with the compensation committee. Based on this assessment, we concluded that we do not have any compensation programs or practices that would be reasonably likely to have a material adverse affect our business.
COMPENSATION COMMITTEE REPORT
The following is the report of the Compensation Committee. Upon emergence from bankruptcy in February 2010, the Compensation Committee was replaced in full with the members listed below. Accordingly, the actions described in the Compensation Discussion and Analysis were not taken by the current members of the Compensation Committee, but rather reflect decisions of the members during 2009.
Review with Management
The Compensation Committee has reviewed and discussed the Compensation Discussion and Analysis contained in this Annual Report with management.
Based on the reviews and discussions referred to above, the Compensation Committee recommended to the Board that the Compensation Discussion and Analysis be included in the Company's Annual Report on Form 10-K for the year ended December 31, 2009 for filing with SEC.
The following discussion and analysis of compensation arrangements of our Named Executive Officers ("NEOs") for 2009 should be read together with the compensation tables and related disclosures set forth below. This discussion contains forward looking statements that are based on our current plans, considerations, expectations and determinations regarding future compensation programs. Actual compensation programs that we adopt may differ materially from currently planned programs as summarized in this discussion.
In 2009, our NEOs were, as follows:
2009 was a challenging year for Accuride because of the economic and commercial vehicle industry downturns, which resulted in our bankruptcy filing in October. In response, it was necessary to modify our compensation programs in 2009 to address retention, as well as to redirect our incentive programs. For our NEOs, base salary remained the same as 2008 with the exception of Mr. Maniatis, who was awarded an increase in base salary in conjunction with a promotion to senior vice president, and Mr. Schomer, who received a salary increase based on merit and market comparables.
During 2009, it became apparent that because of the economic downturn we were not going to satisfy any of the pre-established performance goals and therefore no annual bonuses would be earned (or were earned). We therefore adopted a retention incentive in May in order to retain certain key employees, and in connection with our bankruptcy we established a Key Executive Incentive Plan (KEIP) as a means of retaining key employees and incentivizing them towards maximizing liquidity and facilitating an early emergence from bankruptcy.
Also, due to the significant decline in the price of our common stock and the limited number of shares available for issuance under our 2005 Incentive Award Plan, we modified the structure of our long-term incentive program in 2009 by reducing the overall target economic value of the awards and including a cash award component. The cash award component was designed to provide additional retention incentives and to offset the loss of economic value attributable to the limitations on the number of RSUs and SARs that were available for grant.
Upon emergence from bankruptcy in February 2010, the Compensation Committee was replaced in full with new directors. Accordingly, the actions described below were taken by member of the Compensation Committee in 2009, and not by the current Compensation Committee. As of the Effective Date, all outstanding equity awards under our long-term incentive program were either cancelled or fully-vested, pursuant to the terms of the Plan of Reorganization
Our objectives in establishing compensation for executive officers, including our NEOs, are as follows:
Except with respect to William M. Lasky, our Interim President and CEO, and Mr. Woodward, our Interim Senior Vice President and CFO, whose compensation is discussed below, our compensation program has historically consisted of a fixed base salary and variable cash and stock-based incentive awards. This mix of compensation is intended to ensure that total compensation reflects our overall success or failure and to motivate executive officers to meet appropriate performance measures. Total compensation is allocated between cash and equity compensation based on benchmarking to market consensus compensation levels and a peer group, discussed below. In addition, we consider the balance between providing short-term incentives and long-term equity compensation.
In 2006 the Compensation Committee commissioned the design of and implemented an annual systematic equity award granting program within the existing structure of our 2005 Incentive Award Plan. This program was intended to improve the motivation and retention value of our long-term incentives and provide competitive equity opportunities relative to our industry segment and general industry as a whole. Based upon the results of that study, an executive officer's total compensation package is comprised of a base salary, an annual performance-based cash incentive program and a long-term incentive program ("LTIP") under our 2005 Incentive Award Plan, historically consisting of annual grants of RSUs and stock-settled stock appreciation rights ("SARs"). As a result, our senior executive management team members have historically had a substantial portion of their potential compensation tied to performance- and incentive-based programs based on the financial performance of the Company.
With respect to the 2009 compensation of Mr. Lasky, who in addition to continuing to serve as a member of our Board of Directors agreed to serve as our President and CEO on an interim basis commencing in September 2008 upon resignation of our former President and CEO, the Compensation Committee sought to compensate Mr. Lasky appropriately for taking on such additional responsibilities under challenging circumstances, while taking into consideration the marketplace consensus compensation data for CEOs at our peer companies as determined in the compensation consultant analysis performed in late-2007. As a result, Mr. Lasky and the Company agreed that Mr. Lasky will receive annual compensation of $800,000, plus cash equal to the retainer and other cash fees (except meeting fees) paid to the Company's non-employee directors and upon the same terms and conditions (currently $85,000 per annum), as well as an annual equity grant equal to the equity grants issued annually to the Company's non-employee directors (in 2009, 10,000 RSUs which vest over one year). In addition, concurrently with his appointment, the Compensation Committee granted Mr. Lasky 250,000 shares of restricted common stock of the Company, which vested in March 2009. Because his service as President and CEO was intended to be on an interim basis at the time his 2009 compensation was established, Mr. Lasky did not participate in the Company's annual cash-based short-term performance incentive program (see the discussion below regarding our AICP) or in the LTIP in 2009. As Mr. Lasky's service was intended to be temporary, the Company agreed to pay for travel, lodging, meals and other incidental expenses incurred by Mr. Lasky while he was away from his home and at
the Company's headquarters. The Company viewed these expenses as necessary in order to secure Mr. Lasky's services during 2009. See "Compensation of Named Executive OfficersSummary Compensation Table2009," below.
With respect to the 2009 compensation of Mr. Woodward, who agreed to serve as our Senior Vice President and CFO on an interim basis in contemplation of the April 2009 departure of David K. Armstrong, our former Senior Vice President and CFO, the Compensation Committee sought to compensate Mr. Woodward appropriately for assuming a critical role on an interim basis, taking into consideration the cost of hiring an interim CFO through an agency as well as other market data. As a result, Mr. Woodward and the Company agreed that Mr. Woodward will receive annualized compensation of $720,000, and Mr. Woodward did not participate in the Company's annual cash-based short-term performance incentive program (see the discussion below regarding our AICP) or in the LTIP in 2009. As Mr. Woodward's service was intended to be temporary, the Company agreed to pay for travel, lodging, meals and other incidental expenses incurred by Mr. Woodward while he was away from his home and at the Company's headquarters. The Company viewed these expenses as necessary in order to secure Mr. Woodward's services during 2009. See "Compensation of Named Executive OfficersSummary Compensation Table2009," below.
Determination of Compensation and Awards
The Compensation Committee has the primary authority to determine and recommend the compensation paid to the Company's executive officers. The Compensation Committee has from time to time retained the services of a compensation consultant to assist it in determining the key elements of our compensation programs, as well as analyzing key executive management compensation relative to comparable companies. In late-2008, the Company's compensation consultant Hewitt Associates ("Hewitt") assisted the Compensation Committee in analyzing key executive management compensation by providing an updated analysis of compensation to similarly situated executives at comparable companies. Additionally, in mid-2009, Hewitt assisted the Compensation Committee in structuring the Key Executive Incentive Plan that was implemented as part of our bankruptcy process. The Compensation Committee will periodically review and revise the previous compensation analyses so that it may keep informed about emerging compensation design, as well as competitive trends and issues.
In addition to compensation consulting fees, Hewitt earned fees in 2009 from the Company by assisting with various human resources matters, including benefit and pension plan testing and actuarial analyses, compensation and benefits analysis, proxy disclosure matters, and other consulting services. In 2009, Hewitt earned $124,922 from providing compensation consulting services to our Compensation Committee and $181,795 (after accounting for reimbursements from Mass Mutual, the Company's 401(k) and pension plan administrator) for providing all other services to the Company. Notwithstanding the fees earned by Hewitt for non-compensation consulting services, the Compensation Committee at the time was satisfied that Hewitt would provide independent advice regarding executive compensation matters.
To aid the Compensation Committee in setting compensation, our CEO provides recommendations annually to the Compensation Committee regarding the compensation for all executive officers, but does not actually set any NEO's compensation. Each member of our senior executive management team, in turn, participates in an annual performance review with the CEO and provides input about his or her contributions to our success for the relevant period. The Compensation Committee reviews the performance of each senior executive officer annually. The CEO participates in such annual performance review with the Compensation Committee.
Compensation Benchmarking and Peer Group
As discussed above, through the information and analysis provided by the compensation consultants, the Compensation Committee compares base salary structures and annual incentive compensation to our market sector and industry in general. This approach ensures that our compensation remains competitive in our market and relative to our industry peers. In determining the level of compensation provided to our executive officers, the Compensation Committee evaluated consensus marketplace executive compensation levels for base salary, total cash compensation (base salary plus short-term incentives), and total direct compensation (total cash compensation plus long-term incentives, including stock option awards valued using the Black-Scholes model). The 2008 marketplace consensus compensation data for our CFO, and our business unit leaders was determined using strictly the peer group data. For other executive positions, both published survey data and the Company's peer group data were used. Published survey data included companies with revenues ranging from $590 million to $6.5 billion, and was gathered from two surveys: manufacturing and auto/vehicle manufacturing industry data from Hewitt's Total Compensation Measurement (Manufacturing) survey and Mercer's 2008USUS Executive Compensation Survey (General Industry). Our peer group consists of the following 15 leading suppliers in the transportation sector:
We typically target the aggregate value of our total compensation at approximately the median level of market consensus compensation for most executive officer positions. However, we strongly believe in retaining the best talent among our senior executive management team. To retain and motivate these key individuals, the Compensation Committee may determine that it is in our best interests to negotiate total compensation packages with senior executive management that may deviate from the general principle of targeting total compensation at the median level of market consensus compensation. Equity grant guidelines have historically been set by job level, using market survey data and current guidelines to determine the appropriate annual grant levels for the upcoming year. While target compensation is generally set near the market median, performance results in actual payout levels that may be above or below the market median.
Our 2008 review indicated that we are providing annual cash compensation and long-term incentives that are generally comparable to the median of market consensus compensation, and that the design of base and incentive annual cash compensation appropriately provides market compensation to our executive officers.
An NEO's base salary is based on his or her performance, as well as, comparable compensation of similar executives in surveys and our peer group. The Compensation Committee plans to continue to review base salary data from compensation research using survey data as well as actual salaries reported in the proxy statements of peer group companies. In addition to market positioning, each year base salaries may increase based upon the performance of the NEO as assessed by the Compensation Committee. In 2009, base salary remained the same as 2008 for our NEOs with the exception of Mr. Maniatis, who was awarded an increase in base salary in conjunction with a promotion to senior vice president, and Mr. Schomer, who received a salary increase based on merit and market comparables.
Historically, our compensation programs have been structured to reward executive officers based on our performance and the individual executive's contribution to that performance. This allows executive officers to receive incentive compensation in the event certain specified corporate performance measures are achieved. In determining the compensation awarded to each NEO based on performance, the Compensation Committee has historically evaluated our performance and an executive's performance in a number of areas.
Annual Performance-Based Incentive Cash Compensation ("AICP")
Our AICP is a cash-based short-term performance incentive program. The Compensation Committee, with input from the senior executive team, establishes goals for the AICP program based on our past performance, expected industry trends and projected revenue and earnings targets. We have historically used bank adjusted EBITDA and free cash flow ("FCF"), which is defined as cash from operations less capital expenditures, of the Company ("Corporate EBITDA" and "Corporate FCF", respectively) as performance goals for determining AICP payments. In addition, we have in the past included operating segment and sub-segment level EBITDA and adjusted cash flow ("ACF") metrics among the AICP metrics for our senior managers that lead such operating segments and sub-segments. However, in 2009 the performance goals for all participating NEOs were limited to Corporate EBITDA and Corporate FCF.
Corporate EBITDA and Corporate FCF goals typically correspond with projected EBITDA and FCF contained in our annual budget, which is established in December for the upcoming year, based upon input from management and the Board. Final payment for each AICP component is determined based upon the actual results for such component, compared with certain pre-established threshold, target and maximum goals for that component. Threshold goals are typically established based on achievement of 90% of the budgeted targets, and maximum goals are typically set based on achievement of 110% of the budgeted targets.
Subject to the discretion of the Compensation Committee and/or management, no payment for a particular AICP component is earned unless the threshold goal is achieved. There is no guaranteed minimum payout under the AICP, and, subject to the discretion of the Compensation Committee as outlined above, there is no AICP payment in the event that (i) the EBITDA results are below the threshold value, (ii) the Company is cited with a material weakness in its internal controls under Section 404 of the Sarbanes-Oxley Act or (iii) the Company violates its bank covenants. Proportional awards can also be earned for goal attainment levels between threshold and maximum performance target levels.
The performance goals under the AICP may be adjusted by the Compensation Committee to account for unusual events such as extraordinary transactions, asset dispositions and purchases, and mergers and acquisitions if, and to the extent, the Compensation Committee does not consider the effect of such events indicative of Company performance. Payments under the AICP are contingent upon continued employment, though pro rata payments will be paid in the event of retirement, job elimination due to restructuring, death or disability based on that year's actual performance relative to the targeted performance measures for each objective. The AICP is designed to provide annual cash incentives that the Compensation Committee has historically believed are necessary to retain executive officers and reward them for short-term Company performance. It is further designed to intensify executive officers' focus on Company financial performance and value creation and on achieving Company goals through "at risk" compensation.
The 2009 AICP structure for our senior executive management team (other than Messrs. Lasky and Woodward who did not participate in the AICP in 2009) was:
Threshold Corporate EBITDA and Corporate FCF targets for 2009 were $80 million and $(24.3), respectively. Due to a variety of conditions, however, including, most significantly, the challenges presented by the general economic and industry downturn in 2009, the Company did not achieve any of its AICP thresholds for 2009. Accordingly, no bonuses under our AICP were earned in 2009.
Long-Term Incentive Plan ("LTIP")
As described earlier, historically we have made annual grants of SARs and RSUs, with fifty percent (50%) of the grant value expected to be delivered through stock-settled SARs and fifty percent (50%) through RSU awards. Like stock options, SARs are performance-based, rewarding participants only when value has been created through stock price appreciation. RSU awards are designed to align the recipient's interests with shareholders as well as to serve as a long-term retention tool.
For the 2009 grants, the annual target LTIP values for our NEOs (other than Messrs. Lasky, Woodward and Armstrong) were:
As described below, the target value of the 2009 LTIP awards listed in this table reflect a reduction of approximately twenty-seven (27%) from the equivalent target award value for 2008. No LTIP awards were granted to Messrs. Lasky and Woodward due to the interim nature of their positions at the time 2009 LTIP grants were made. Mr. Armstrong had announced his plans to leave the company prior to the time 2009 LTIP awards were made and thus did not receive an award.
These long-term incentive targets, when considered in conjunction with current base salaries and short-term cash incentives under the AICP, were designed to provide a competitive total compensation opportunity for our executives. However, the actual value to be received by the executive would have, of course, depended upon the value of our prepetition common stock at the time of vesting in the case of the RSUs, and at exercise in the case of the SARs.
Due to the significant decline in the price of our prepetition common stock and the limited number of shares available for issuance under our 2005 Incentive Award Plan, the Compensation Committee elected to adjust the structure of the LTIP awards in 2009. Rather than divide the value of the total target LTIP award between RSUs and SARs as it had done in the past, the Compensation Committee determined that it would approximately double the number of each of the SARs and RSUs awarded to each recipient in 2008, and then supplement the value conveyed in such RSU and SAR awards with a cash award to achieve a total grant value of approximately seventy-three percent (73%) of the annual LTIP target. In structuring the 2009 LTIP awards in this fashion, the Compensation Committee attempted to strike a balance between providing meaningful long term equity incentives, judiciously using the remaining equity pool under the 2005 Incentive Award Plan and providing an award whose reduced total value reflected the difficult economic circumstances facing the Company. In addition, the structure of the 2009 LTIP awards was consistent with the approach used in determining the 2009 Board of Directors equity grant program. The cash award was designed to provide a set level of compensation at the same time as the RSUs would have vested. Accordingly, the cash award vests
on the same schedule as the RSU grants would have vested, including automatic vesting upon a change in control or the award recipient's death.
2009 Retention and Incentive Programs
In May 2009, due to the extraordinary challenges placed upon the Company by the economic and industry downturn and the existing equity incentive programs not providing the desired retention incentive, the Board of Directors determined the Company was at risk of not retaining certain critical employees and implemented a cash retention bonus program, for each of Messrs. Gulda, Maniatis and Schomer, as well as a limited number of other key employees. Pursuant to the cash retention bonus agreements, each of these NEOs will receive a bonus equal to his base salary if he remains employed through May 7, 2010, or is terminated without cause prior thereto. The retention bonus agreements are subject to the executive entering into and complying with certain noncompete and confidential information covenants. The noncompete applies during employment and for a period of 24 months following executive's termination for any reason. The covenant regarding confidential information has no set duration and remains applicable as long as the information the executive possesses remains confidential. If the executive violates his noncompete or confidential information covenants prior to November 7, 2010, then he is obligated to repay his retention bonus in full, and we may offset that amount against any other amounts that we may owe him. The retention bonuses will not offset any severance that may be payable under the executive's Severance and Retention Agreement.
In addition, in order to incentivize certain management employees to optimize our emergence from bankruptcy by (i) maximizing liquidity and (ii) facilitating an early emergence from bankruptcy, we implemented a Key Executive Incentive Plan ("KEIP"), in which all of our NEO's other than Mr. Armstrong, who had already departed the Company, participated. The amounts to be paid under the KEIP, or the total plan pool, were based upon: (i) the attainment of a threshold liquidity target upon emergence from bankruptcy and (ii) the date of emergence from bankruptcy. The size of the total plan pool ranged from $2.42 million to $4.41 million. However, no amounts were payable under the KEIP if either a threshold liquidity of $56 million plus two times the total plan pool was not met, or if emergence occurred after May 31, 2010. The design of the KEIP and the amount of KEIP payment to be received by each NEO was set by the Compensation Committee at the time, based on recommendations from Hewitt as to similar plans for companies in bankruptcy. Elements of the KEIP were also negotiated with our creditors and approved by the Bankruptcy Court. All KEIP payments were made on the Effective Date and Messrs. Lasky and Woodward's KEIP payments were paid in Common Stock.
Other Elements of Compensation and Perquisites
NEOs are also eligible to participate in various employee benefit plans which we provide to all employees and executives in general. Additionally, the executives also receive certain fringe benefits and perquisites, which are more fully described in the narrative to the Summary Compensation Table. These employee benefits and perquisites are used by the Company to provide additional compensation to executives as a means to attract and retain executives.
Compensation Recovery Policy
We maintain a clawback policy relating to LTIP awards. Under the clawback provisions specified in our award agreements, LTIP award holders will forfeit any unvested cash awards, SARs and/or RSUs, as applicable, if they violate any non-compete or non-solicitation covenants they may have. In addition, if he or she violates such covenants within 24 months after he or she received cash or stock in settlement of any SARs and/or RSUs, he or she must repay the full amount of all amounts of the cash award previously received and/or an amount equal to the sum of (a) the gross sales proceeds of any such stock that was previously sold plus (b) the closing market price per share of the stock on the date
it was distributed to him or her for any share of stock which has not been sold. These provisions serve to ensure that executive officers act in our best interest and that of our stockholders even after termination of employment.
Policies with Respect to Equity Compensation Awards
The exercise price of all stock options and SARs is based on the fair market value of our common stock on the date of grant. Under the 2005 Incentive Award Plan, fair market value is defined as the closing price for our common stock on the grant date. We do not have a policy of granting equity-based awards at any other price.
Equity awards are typically made under the compensation programs discussed above at regularly scheduled meetings of the Compensation Committee. The Company has historically made annual LTIP grants at the Board meeting held in conjunction with our annual meeting of stockholders. The effective date for equity grants is usually the date of such meeting. The Compensation Committee also makes grants of equity incentive awards in its discretion, including in connection with the hiring of new executives or upon promotion. In such case the effective date of such grants may be in the future.
Stock Ownership Guidelines
As a further method of aligning director and executive interest with that of the shareholder, we have established stock ownership guidelines for our directors and senior executives. Under the stock ownership guidelines, each director and senior executive officer is expected to hold Common Stock that has a fair market value of a multiple of his or her base annual retainer (for directors) or salary (for senior executives) by December 31, 2011 or five years from his or her first grant of stock, whichever is later. These stock ownership guidelines are as follows:
Policy Regarding Tax Deductibility of Compensation
Within its performance-based compensation program, the Company aims to compensate the senior executive management team in a manner that is tax effective for the Company. Currently, all annual compensation is intended to be deductible under Section 162(m) of the Code. SARs are performance based and also deductible under Section 162(m). However, RSUs, the cash awards and retention payments are not performance based and therefore may not be deductible under Section 162(m). In the future, the Compensation Committee may determine that it is appropriate to pay compensation which is not deductible.
[End of Compensation Discussion and Analysis.]
The following table summarizes the annual compensation for fiscal years 2009, 2008, and 2007 paid to or earned by our CEO, CFO, the three other most highly-compensated executive officers of the Company who were serving as executive officers at the end of fiscal year 2009, and our former CFO, David K. Armstrong, whose employment with us ended in April 2009 (collectively, the "Named Executive Officers" or "NEOs"):
Messrs. Lasky and Woodward. Other perquisites that exceed $25,000 or ten-percent of the total perquisites' value and tax gross-up payments for 2009 are as follows:
Narrative to Summary Compensation Table
A description of various employee benefit plans and fringe benefits available to our NEOs and certain other employees are described below.
Prior to our IPO we made stock option grants from time to time. At the time of our IPO in 2005, we issued a number of stock option awards to our directors and senior executives, as well as other employees under our 2005 Incentive Award Plan. These IPO grants were divided equally between time-based vesting awards and time- and performance-based vesting awards, with the latter being forfeited in the event we do not achieve predetermined annual bank adjusted EBITDA targets. Subsequent to the IPO, we periodically issued discretionary stock option awards to newly hired employees and upon promotions. As discussed in the Compensation Discussion and Analysis, in 2006 we implemented our long term incentive program, which provides annual grants of RSUs and SARs, and discontinued the practice of granting stock options. Equity grants typically have a three and one-half year vesting schedule and are awarded to align the executive's interest with those of the stockholder by incenting the creation of additional stockholder value through stock price appreciation and acting as a long-term retention tool.
We have a Section 401(k) Savings/Retirement Plan (the "401(k) Plan") which covers all of our eligible employees. Effective January 1, 2009, plan participants in the 401(k) Plan receive matching contributions in an amount equal to one dollar for every dollar they contribute on the first 1%, and fifty cents for each dollar they contribute on the next 5%, of the participant's annual salary, subject to certain IRS limits. Matching contributions to 401(k) Plan participants become vested after two years of employment. Employees are eligible to participate in the 401(k) Plan in the first payroll period after thirty days of employment. Effective March 23, 2009, however, we indefinitely suspended the matching contributions in order to reduce expenses in response to the on-going industry and economic downturn.
The Accuride Retirement Plan ("Retirement Plan") covers certain employees who began employment prior to January 1, 2006. Under the Retirement Plan, each participant has a "cash balance account" which is established for bookkeeping purposes only. Prior to 2009, each year, each participant's cash balance account was credited with a percentage of the participant's earnings (as
defined in the Retirement Plan) (the "Base Earning Credit"). The percentage ranged from 2% to 11.5%, depending on the participant's age, years of service, and date of participation in the Retirement Plan. If a participant had excess earnings above the Social Security taxable wage base, then an additional 2% of the excess earnings amount was credited to the participant's account (the "Supplemental Earning Credit"). Participants' accounts also are credited with interest each year, based upon the rates payable on certain U.S. Treasury debt instruments. Employees' first becoming participants after January 1, 1998, also receive an additional credit for their first year of service. Effective January 1, 2009, the Retirement Plan was modified such that no further Base Earning Credits or Supplement Earning Credits will be credited to participants' cash balance accounts. However, interest credits will continue to be credited to participants' cash balance accounts.
A participant's benefit at normal retirement age, if calculated as a lump sum payment, equals the balance of his or her cash balance account. The actuarial equivalent of the account balance also can be paid as a single life annuity, a qualified joint and survivor annuity, or an alternative form of payment allowed under the Retirement Plan.
We provide each NEO, other than Mr. Woodward, and certain other executives a stipend to cover the cost of financial planning services. The stipend in 2009 was $13,100 per year for Mr. Lasky and $10,400 for each of our Senior Vice Presidents, plus a gross-up for taxes incurred by the executive on the stipend.
Historically, certain executive officers annually received an amount to pay the premium on a flexible premium variable universal life insurance policy or variable annuity, to be wholly owned by the executive. The annual amount was equal to 7% of the executive's base salary plus 50% of such amount in order to offset taxes. However, no ELIP payment was made to any executive in 2009 in order to reduce expenses in response to the on-going industry and economic downturn.
Each NEO and certain other executives are eligible to participate in the Mayo Clinic's Executive Health Program, which provides a comprehensive examination and access to Mayo's medical, surgical and laboratory facilities. We pay the cost of certain eligible Mayo services, with any additional ineligible services billed directly to the NEO's insurance company.
Each NEO, as well as certain other executives, receives an executive retirement allowance in order to replace benefits lost due to the compensation that may be taken into account under our tax qualified retirement plans (the 401(k) Plan and the Retirement Plan). Effective January 1, 2009, the annual executive retirement allowance is equal to the sum of (i) 3.5% of the executive's base salary for the calendar year in excess of the compensation limits set forth in our 401(k) Plan, (ii) the retirement contribution percentage multiplied by the executive's base salary in excess of the compensation limits set forth in our 401(k) Plan, and (iii) an amount equal to the transition credits that the executive would be entitled to receive under the 401(k) Plan if that plan were not subject to the compensation limit, less the actual transition credits received by the executive under the 401(k) Plan for that year. The allowance is in the form of a cash payment to eligible executives and is grossed-up for taxes. Due to the economic and industry downturn in 2009, no retirement contribution or transition credits were made for the 2009 plan year in order to reduce expenses in response to the on-going industry and
economic downturn. Also, as noted above, effective March 23, 2009, we suspended the Company match to employee 401(k) Plan contributions.
Retirement Contribution Plan
Effective January 1, 2009, our Annual Profit Sharing program was replaced by our retirement contribution program. Under our retirement contribution program, the Company will determine whether or not to make a discretionary contribution of 3% of total pay up to the Social Security Wage Base ($106,800 for 2009) (the "SSWB") and of 6% of total pay exceeding the SSWB. In order to be eligible, employees must be have completed at least thirty days continuous employment and must be employed on the last day of the plan year (December 31st), provided, however, that participants who retire, die, become disabled, enter into service with the armed forces of the United States, or terminate employment due to an involuntary reduction in workforce, during the plan year are also eligible to receive a discretionary retirement contribution. Actual contributions are calculated based on the eligible employee's "salary" as defined by the Plan. Retirement contributions are either paid in cash or contributed to the recipient's 401(k) account, depending upon regulatory compliance, and become vested after two year of service. The Company did not make a retirement contribution for the 2009 plan year.
Personal Excess and Gross-Up
We pay premiums on personal excess umbrella insurance coverage for each of our NEOs as well as all of our other Senior Vice Presidents and certain Vice Presidents. This policy provides liability coverage in excess of the individual's underlying insurance anywhere in the world unless stated otherwise or an exclusion applies. This policy pays on the behalf of the employee up to their specific limit amount for covered damages from any one occurrence, regardless of how many claims, homes, vehicles, watercraft, or people are involved in the occurrence; again, which are in excess of the underlying policy. Current policy limits are $10,000,000.
The following table shows all grants of awards in 2009 to each of the executive officers named in the Summary Compensation Table:
Narrative to Grants of Plan-Based Awards Table
Vesting in LTIP awards will generally be under an approximately three and one-half year back-loaded vesting schedule. SAR grants under the LTIP generally have a three and one-half year cliff vesting schedule, which may be accelerated based on the Company's financial performance. In particular, twenty five percent (25%) of the total SAR award may vest each year through the attainment of the same target bank adjusted EBITDA goal established for the AICP. RSU awards granted under our LTIP vest in annual installments of 10%, 20%, 30% and 40% over approximately a three and one-half year period on each December 1st following the date of grant.
In 2009, the target bank adjusted EBITDA goal that would trigger accelerated vesting of a portion of outstanding SAR awards was $80 million. This goal was not achieved.
Notwithstanding the vesting procedures outlined above, SAR and RSU grants will vest pro rata, as specified in the award agreements, if the recipient's employment terminates due to death, disability, or qualified retirement (i.e., age 55 or over after having at least ten years of service, or over age 65 and other than by reason of termination for cause). Our RSU and SAR award agreements specify that unvested shares will vest upon a change in control.
Potential Post Employment Payments
We have entered into amended and restated severance and retention agreements with each NEO, other than Messrs. Lasky and Woodward due to the fact of their services in an interim capacity.
The amended and restated severance and retention agreements have a one-year term, subject to automatic one-year renewals if not terminated by either party in accordance with the terms of the agreement. If a "Change of Control" (as defined in the agreement) occurs, the scheduled expiration date of the initial term or renewal term, as the case may be, will be extended for a term ending 18 months after the Change of Control. A Change in Control within the meaning of the agreements occurred as a result of the implementation of the Plan of Reorganization.
Under the terms of the amended and restated severance and retention agreement, a NEO is entitled to severance if the executive's employment is terminated by us without "cause" or if he or she terminates employment for "good reason" (as these terms are defined in the agreement). This severance generally is equal to one year of the executive's base salary. However, if such termination is within 18 months following a Change of Control, then such severance benefits are as follows:
Any such severance is reduced by all payments the executive may become entitled under any other severance policy we may have with the exception of a one year retention plan.
All severance is subject to the executive executing a general release of claims and agreeing to non-compete and non-solicitation covenants. In addition, if necessary to comply with the tax laws, the severance may not be paid until six months following the NEO's termination.
No severance is payable if the NEO's employment is terminated for "cause," if they resign without "good reason" or if they become disabled or die.
Finally, under the terms of the 2005 Equity Incentive Plan, in the event of a Change of Control, if all options, RSUs or SARs settled in stock are not converted, assumed, or replaced by a successor, then such awards will become fully exercisable and all forfeiture restrictions on such awards will lapse and all RSUs shall become deliverable, unless otherwise provided in any award agreement or any other written agreement entered into with an executive. Our outstanding stock option, RSU and SAR award agreements provide that such awards will vest upon a Change of Control. A Change in Control occurred upon our emergence from bankruptcy on the Effective Date, at which time all outstanding awards vested, including the cash awards. SARs and Options were cancelled since they all had base prices which were below the market price of our prepetition common stock and shares of our prepetition common stock were delivered in settlement of all outstanding RSUs based on the appropriate conversion rate of our old equity for new equity.
Value of Payment Presuming Hypothetical December 31, 2009 Termination Date
The following tables summarize enhanced payments our NEOs would be eligible to receive assuming a hypothetical separation of employment on December 31, 2009, based upon the
circumstances listed in the columns of each table. Mr. Armstrong is excluded since he is no longer employed with the Company following his resignation. The tables do not include amounts for vested equity awards and vested pension benefits, or similar non-discriminatory benefits to which each NEO is eligible. No amounts are payable to an executive, and no stock options, RSUs, SARs or cash awards will vest if the executive voluntarily terminates his or her employment, other than for "good reason," or is terminated for cause.
William M. Lasky
James H. Woodward, Jr.