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EXHIBIT 4.3
OXFORD AUTOMOTIVE, INC.
Senior Subordinated Notes Due 2007
REGISTRATION RIGHTS AGREEMENT
April 1, 1998
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
Oxford Automotive, Inc., a Michigan corporation (the "Company"), proposes to
issue and sell to Salomon Brothers Inc. (the "Purchaser"), upon the terms set
forth in a purchase agreement of even date herewith (the "Purchase Agreement")
$35,000,000 aggregate principal amount of its 10-1/8% Senior Subordinated Notes
due 2007 (the "Securities"), which Securities will be guaranteed on a senior
subordinated basis (the "Subsidiary Guarantees") by BMG North America Limited,
an Ontario corporation; BMG Holdings, Inc., an Ontario corporation; Lobdell
Emery Corporation, a Michigan corporation; Winchester Fabrication Corporation, a
Michigan corporation; Creative Fabrication Corporation, a Tennessee corporation;
Parallel Group International, Inc., an Indiana corporation; Laserweld
International LLC, an Indiana corporation; Concept Management Corporation, a
Michigan corporation and Lewis Emery Capital Corporation, a Michigan
corporation, RPI Holdings, Inc., a Michigan corporation and Howell
Industries, Inc., a Michigan corporation (each a "Subsidiary Guarantor" and
collectively the "Subsidiary Guarantors") (the "Initial Placement"). The
Company and the Subsidiary Guarantors are collectively referred to herein as
the "Issuers." As an inducement to the Purchaser to enter into the Purchase
Agreement and in satisfaction of a condition to your obligations thereunder,
the Issuers agree with you, (i) for your benefit and (ii) for the benefit of
the holders from time to time of the Securities (including you) (each of the
foregoing, a "Holder" and, together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
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"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Closing Date" has the meaning set forth in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" means the one year period following the
consummation of the Registered Exchange Offer, exclusive of any period during
which any stop order shall be in effect suspending the effectiveness of the
Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration statement of
the Company on an appropriate form under the Act with respect to the Registered
Exchange Offer, all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Exchanging Dealer" means any Holder (which may include the Purchaser) which
is a broker-dealer, electing to exchange Securities acquired for its own account
as a result of market-making activities or other trading activities, for New
Securities.
"Final Memorandum" means the Offering Memorandum dated March 24, 1998
including and any documents incorporated by reference therein.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the Indenture relating to the Securities
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dated as of June 15, 1997, between the Company, the Subsidiary Guarantors and
First Trust National Association, as trustee, as the same may be amended from
time to time in accordance with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of securities registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering.
"New Securities" means debt securities of the Company identical in all
material respects to the Securities (except that the cash interest and interest
rate step-up provisions and the transfer restrictions will be modified or
eliminated, as appropriate) to be issued under the Indenture or the New
Securities Indenture.
"New Securities Indenture" means an indenture between the Company, the
Subsidiary Guarantors and the New Securities Trustee, identical in all material
respects with the Indenture (except that the cash interest and interest rate
step-up provisions will be modified or eliminated, as appropriate).
"New Securities Trustee" means a bank or trust company reasonably
satisfactory to the Purchaser, as trustee with respect to the New Securities
under the New Securities Indenture.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any
portion of the Securities or the New Securities, covered by such Registration
Statement, and all amendments and supplements to the Prospectus, including
post-effective amendments.
"Registered Exchange Offer" means the proposed offer to the Holders to issue
and deliver to such Holders, in exchange for the securities, a like principal
amount of the New Securities.
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"Registration Statement" means any Exchange Offer Registration Statement or
Shelf Registration Statement that covers any of the Securities or the New
Securities pursuant to the provisions of this Agreement, amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Securities" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to Section 3
hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement of the
Company pursuant to the provisions of Section 3 hereof which covers some or all
of the Securities or New Securities, as applicable, on an appropriate form under
Rule 415 under the Act, or any similar rule that may be adopted by the
Commission, amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Trustee" means the trustee with respect to the Securities under the
Indenture.
"Underwriter" means any underwriter of Securities in connection with an
offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of New Securities by Exchanging
Dealers; Private Exchange. (a) The Issuers shall prepare and, not later than 90
days following the Closing Date, shall file with the Commission the Exchange
Offer Registration Statement with respect to the Registered Exchange Offer. The
Issuers shall cause the Exchange Offer Registration Statement to become
effective under the Act within 150 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration Statement,
the Issuers shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
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exchange Securities for New Securities (assuming that such Holder is not an
affiliate of the Issuers within the meaning of the Act, acquires the New
Securities in the ordinary course of such Holder's business and has no
arrangements with any person to participate in the distribution of the New
Securities) to trade such New Securities from and after their receipt without
any limitations or restrictions under the Act and without material restrictions
under the securities laws of a substantial proportion of the several states of
the United States.
(c) In connection with the Registered Exchange Offer, the Issuers shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than 30 days
and not more than 45 days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Issuers shall:
(i) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all securities so
accepted for exchange; and
(iii) cause the Trustee or the New Securities Trustee, as the case may
be, promptly to authenticate and deliver to each Holder of Securities, New
Securities equal in principal amount to the Securities of such Holder so
accepted for exchange.
(e) The Purchaser and the Issuers acknowledge that, pursuant to
interpretations by the Commission's staff of Section 5 of the Act, and in the
absence of an applicable exemption
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therefrom, each Exchanging Dealer is required to deliver a Prospectus in
connection with a sale of any New Securities received by such Exchanging Dealer
pursuant to the Registered Exchange Offer in exchange for Securities acquired
for its own account as a result of market-making activities or other trading
activities. Accordingly, the Issuers shall:
(i) include the information set forth in Annex A hereto on the cover
of the Exchange Offer Registration Statement, in Annex B hereto in the
forepart of the Exchange Offer Registration Statement in a section setting
forth details of the Exchange Offer, and in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus forming a
part of the Exchange Offer Registration Statement, and include the
information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act during the Exchange Offer
Registration Period for delivery by Exchanging Dealers in connection with
sales of New Securities received pursuant to the Registered Exchange Offer,
as contemplated by Section 4(h) below.
(f) In the event that any Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of an unsold allotment, at the request of
such Purchaser, the Issuers shall issue and deliver to such Purchaser or the
party purchasing New Securities registered under a Shelf Registration Statement
as contemplated by Section 3 hereof from such Purchaser, in exchange for such
Securities, a like principal amount of New Securities. The Issuers shall seek to
cause the CUSIP Service Bureau to issue the same CUSIP number for such New
Securities as for New Securities issued pursuant to the Registered Exchange
Offer.
3. Shelf Registration. If (i) because of any change in law or applicable
interpretations thereof by the Commission's staff, the Issuers determine upon
advice of their outside counsel that they are not permitted to effect the
Registered Exchange Offer as contemplated by Section 2 hereof, or (ii) for any
other reason the Registered Exchange Offer is not consummated within 180 days of
the date hereof, or (iii) any Purchaser so requests with respect to Securities
held by it following consummation of the Registered Exchange Offer, or (iv) any
Holder (other than a Purchaser) is not eligible to participate in the Registered
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Exchange Offer or (v) in the case of any Purchaser that participates in the
Registered Exchange Offer or acquires New Securities pursuant to Section 2(f)
hereof, such Purchaser does not receive freely tradeable New Securities in
exchange for Securities constituting any portion of an unsold allotment (it
being understood that, for purposes of this Section 3, (x) the requirement that
a Purchaser deliver a Prospectus containing the information required by Items
507 and/or 508 of Regulation S-K under the Act in connection with sales of New
Securities acquired in exchange for such Securities shall result in such New
Securities being not "freely tradeable" but (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of New
Securities acquired in the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other trading activities
shall not result in such New Securities being not "freely tradeable"), the
following provisions shall apply:
(a) The Issuers shall as promptly as practicable (but in no event more
than 45 days after so required or requested pursuant to this Section 3),
file with the Commission and thereafter shall cause to be declared effective
under the Act a Shelf Registration Statement relating to the offer and sale
of the Securities or the New Securities, as applicable, by the Holders from
time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement; provided that,
with respect to New Securities received by a Purchaser in exchange for
securities constituting any portion of an unsold allotment, the Issuers may,
if permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Regulation S-K Items 507 and/or 508,
as applicable, in satisfaction of its obligations under this paragraph (a)
with respect thereto, and any such Exchange Offer Registration Statement, as
so amended, shall be referred to herein as, and governed by the provisions
herein applicable to, a Shelf Registration Statement.
(b) The Issuers shall use their best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two
years from the date the Shelf Registration Statement is declared effective
by the Commission or such shorter period that will terminate when all the
Securities or New Securities, as applicable, covered by the Shelf
Registration Statement have been sold
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pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period"). The Issuers shall be deemed
not to have used their best efforts to keep the Shelf Registration Statement
effective during the requisite period if any Issuer voluntarily takes any
action that would result in Holders of securities covered thereby not being
able to offer and sell such securities during that period, unless (i) such
action is required by applicable law, or (ii) such action is taken by such
Issuer in good faith and for valid business reasons (not including avoidance
of such Issuer's obligations hereunder), including the acquisition or
divestiture of assets, so long as such Issuer promptly thereafter complies
with the requirements of Section 4(k) hereof, if applicable.
4. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Issuers shall furnish to you, prior to the filing thereof with
the Commission, a copy of any Shelf Registration Statement and any Exchange
Offer Registration Statement, and each amendment thereof and each amendment
or supplement, if any, to the Prospectus included therein and shall use
their best efforts to reflect in each such document, when so filed with the
Commission, such comments as you reasonably may propose.
(b) The Issuers shall ensure that (i) any Registration Statement and
any amendment thereto and any Prospectus forming part thereof and any
amendment or supplement thereto complies in all material respects with the
Act and the rules and regulations thereunder, (ii) any Registration
Statement and any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming part of any
Registration Statement, and any amendment or supplement to such Prospectus,
does not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading.
(c) (1) The Issuers shall advise you or your representative and, in
the case of a Shelf Registration Statement, the Holders of securities
covered thereby, and,
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if requested by you or your representative or any such Holder, confirm such
advice in writing:
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information.
(2) The Issuers shall advise you or your representative and, in the
case of a Shelf Registration Statement, the Holders of securities covered
thereby, and, in the case of an Exchange Offer Registration Statement, any
Exchanging Dealer which has provided in writing to the Company a telephone
or facsimile number and address for notices, and, if requested by you or
your representative or any such Holder or Exchanging Dealer, confirm such
advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Issuers of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(iii) of the happening of any event that requires the making of
any changes in the Registration Statement or the Prospectus so that, as
of such date, the statements therein are not misleading and do not omit
to state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading (which
advice shall be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made).
(d) The Issuers shall use their best efforts to obtain
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the withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time.
(e) The Issuers shall furnish to each Holder of securities included
within the coverage of any Shelf Registration Statement, without charge, at
least one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits (including those incorporated by
reference).
(f) The Issuers shall, during the Shelf Registration Period, deliver
to each Holder of securities included within the coverage of any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may
reasonably request; and the Issuers consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
securities in connection with the offering and sale of the securities
covered by the Prospectus or any amendment or supplement thereto.
(g) The Issuers shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing, all exhibits
(including those incorporated by reference).
(h) The Issuers shall, during the Exchange Offer Registration Period,
promptly deliver to each Exchanging Dealer, without charge, as many copies
of the Prospectus included in such Exchange Offer Registration Statement and
any amendment or supplement thereto as such Exchanging Dealer may reasonably
request for delivery by such Exchanging Dealer in connection with a sale of
New Securities received by it pursuant to the Registered Exchange Offer; and
the Issuers consent to the use of the Prospectus or any amendment or
supplement thereto by any such Exchanging Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offer or any other offering of
securities pursuant to any Registration Statement, the Issuers shall
register or qualify or
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cooperate with the Holders of securities included therein and their
respective counsel in connection with the registration or qualification of
such securities for offer and sale under the securities or blue sky laws of
such jurisdictions as any such Holders reasonably request in writing and do
any and all other acts or things necessary or advisable to enable the offer
and sale in such jurisdictions of the securities covered by such
Registration Statement; provided, however, that the Issuers will not be
required to qualify generally to do business in any jurisdiction where it is
not then so qualified or to take any action which would subject it to
general service of process or to taxation in any such jurisdiction where it
is not then so subject.
(j) The Issuers shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates representing
Securities to be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such names
as Holders may request prior to sales of securities pursuant to such
Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) above, the Issuers shall promptly prepare a post-effective
amendment to any Registration Statement or an amendment or supplement to the
related Prospectus or file any other required document so that, as
thereafter delivered to purchasers of the Securities included therein, the
Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(l) Not later than the effective date of any such Registration
Statement hereunder, the Issuers shall provide a CUSIP number for the
Securities or New Securities, as the case may be, registered under such
Registration Statement, and provide the applicable trustee with printed
certificates for such Securities or New Securities, in a form eligible for
deposit with The Depository Trust Company.
(m) The Issuers shall use their best efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to its security holders as soon as practicable after the effective
date of the applicable Registration Statement an earnings statement
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satisfying the provisions of Section 11(a) of the Act.
(n) The Issuers shall cause the Indenture or the New Securities
Indenture, as the case may be, to be qualified under the Trust Indenture Act
in a timely manner.
(o) The Issuers may require each Holder of Securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Issuers such
information regarding the Holder and the distribution of such Securities as
the Issuers may from time to time reasonably require for inclusion in such
Registration Statement. No Holder may include any of its Securities in any
Shelf Registration Statement pursuant to this Agreement unless and until
such Holder furnishes to the Issuers in writing, within 20 days after
receipt of a written request therefor, such information as the Issuers may
reasonably request, including, but not limited to, information specified by
Regulation S-K or otherwise required by the Commission for use in connection
with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Issuers all
information required to be disclosed in order to make the information
previously furnished to the Issuers by such Holder not materially
misleading.
(p) The Issuers shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters and Majority
Holders reasonably agree should be included therein and shall make all
required filings of such Prospectus supplement or post-effective amendment
as soon as notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Issuers shall
enter into such agreements (including underwriting agreements) and take all
other appropriate actions in order to expedite or facilitate the
registration or the disposition of the Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the same to
contain indemnification provisions and procedures no less favorable than
those set forth in Section 6 (or such other provisions and procedures
acceptable to the Majority Holders and the Managing Underwriters, if any,)
with respect to all parties to be indemnified pursuant to
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Section 6 from Holders of Securities to the Company.
(r) In the case of any Shelf Registration Statement, the Issuers shall
(i) make reasonably available for inspection by the Holders of Securities to
be registered thereunder, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney, accountant or
other agent retained by the Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties of
the Issuers and their subsidiaries; (ii) cause the Issuers', officers,
directors and employees to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney, accountant or
agent in connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that any information
that is designated in writing by the Issuers, in good faith, as confidential
at the time of delivery of such information shall be kept confidential by
the Holders or any such underwriter, attorney, accountant or agent, unless
such disclosure is made in connection with a court proceeding or required by
law, or such information becomes available to the public generally or
through a third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of Securities
registered thereunder and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not limited to,
those set forth in the Purchase Agreement; (iv) obtain opinions of counsel
to the Issuers and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder of Securities
registered thereunder and the underwriters, if any, in customary form and
covering such matters as are customarily covered in opinions requested in
underwritten offerings; (v) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the Issuers
(and, if necessary, any other independent certified public accountants of
any subsidiary of the Issuers or of any business acquired by the Issuers for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each selling Holder of
securities registered thereunder and the underwriters, if any, in customary
form and covering matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings; and (vi)
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deliver such documents and certificates as may be reasonably requested by
the Majority Holders and the Managing Underwriters, if any, including those
to evidence compliance with Section 4(k) and with any customary conditions
contained in the underwriting agreement or other agreement entered into by
the Issuers. The foregoing actions set forth in clauses (iii), (iv), (v) and
(vi) of this Section 4(r) shall be performed at (A) the effectiveness of
such Registration Statement and each post-effective amendment thereto and
(B) each closing under any underwriting or similar agreement as and to the
extent required thereunder.
(s) In the case of any Exchange Offer Registration Statement, the
Issuers shall, to the extent requested by any Purchaser, (i) make reasonably
available for inspection by such Purchaser, and any attorney, accountant or
other agent retained by such Purchaser, all relevant financial and other
records, pertinent corporate documents and properties of the Issuers and
their subsidiaries; (ii) cause the Issuers' officers, directors and
employees to supply all relevant information reasonably requested by such
Purchaser or any such attorney, accountant or agent in connection with any
such Registration Statement as is customary for similar due diligence
examinations; provided, however, that any information that is designated in
writing by the Issuers, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by such Purchaser or
any such attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such information
becomes available to the public generally or through a third party without
an accompanying obligation of confidentiality; (iii) make such
representations and warranties to such Purchaser, in form, substance and
scope as are customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not limited to,
those set forth in the Purchase Agreement; (iv) obtain opinions of counsel
to the Issuers and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to such Purchaser and
its counsel, addressed to such Purchaser, covering such matters as are
customarily covered in opinions requested in underwritten offerings;(v)
obtain "cold comfort" letters and updates thereof from the independent
certified public accountants of the Issuers(and, if necessary, any other
independent certified public accountants of any subsidiary of the Issuers or
of any business acquired by the Issuers for which financial statements and
financial data are, or are required to be,
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included in the Registration Statement), addressed to such Purchaser, in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten offerings, or if
requested by such Purchaser or its counsel in lieu of a "cold comfort"
letter, an agreed-upon procedures letter under Statement on Auditing
Standards No. 35, covering matters requested by such Purchaser or its
counsel; and (vi) deliver such documents and certificates as may be
reasonably requested by such Purchaser or its counsel, including those to
evidence compliance with Section 4(k) and with conditions customarily
contained in underwriting agreements. The foregoing actions set forth in
clauses (iii), (iv), (v), and (vi) of this Section 4(s) shall be performed
at the close of the Registered Exchange Offer and the effective date of any
post-effective amendment to the Exchange Offer Registration Statement.
5. Registration Expenses. The Issuers shall bear all expenses incurred in
connection with the performance of their obligations under Sections 2, 3 and 4
hereof and, in the event of any Shelf Registration Statement, will reimburse the
Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Purchasers for the reasonable fees and
disbursements of one firm or counsel acting in connection therewith.
6. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Issuers, jointly and severally, agree to indemnify
and hold harmless each Holder of Securities covered thereby (including the
Purchaser and, with respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer), the directors, officers, employees
and agents of each such Holder and each person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement as originally filed or in
any amendment thereof, or in any preliminary Prospectus or Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission
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to state therein a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances under which they were
made not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Issuers will not be liable in
any case to the extent that any such loss, claim, damage or liability arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Issuers by or on behalf of any such
Holder specifically for inclusion therein and provided, further, with respect to
any untrue statement or omission of a material fact made in any Preliminary
Prospectus, the indemnity agreement contained in this Section 6(a) shall not
inure to the benefit of any Holder (or any of the directors, officers and
employees of such Holder or any controlling person of such Holder) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities concerned, to the extent that any such loss, claim, damage or
liability of such Holder occurs under circumstances where it shall have been
determined by a court of competent jurisdiction by final and nonappealable
judgment that (x) the Issuers had previously furnished copies of the Prospectus
to the Holder, (y) the untrue statement or omission of a material fact contained
in the Preliminary Prospectus was corrected in the Prospectus and (z) there was
not sent or given to such person, at or prior to the written confirmation of the
sale of such Securities to such person, a copy of the Prospectus. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
The Issuers, jointly and severally, also agree to indemnify or contribute to
Losses of, as provided in Section 6(d), any underwriters of Securities
registered under a Shelf Registration Statement, their officers and directors
and each person who controls such underwriters on substantially the same basis
as that of the indemnification of the Purchaser and the selling Holders provided
in this Section 6(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement as provided in Section 4(q)
hereof.
(b) Each Holder of Securities covered by a Registration Statement
(including each Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof, each Exchanging Dealer) severally agrees to
indemnify and hold harmless (i) the Issuers, (ii) each of their directors, (iii)
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each of their respective officers who signs such Registration Statement and (iv)
each person who controls the Issuers within the meaning of either the Act or the
Exchange Act to the same extent as the foregoing indemnity from the Issuers to
each such Holder, but only with reference to written information relating to
such Holder furnished to the Issuers by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder
may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel (and local
counsel) if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and counsel to the
indemnified party shall have reasonably concluded that there may be legal
defenses available to such indemnified party and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time
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after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 6 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several obligation
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively, "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however, that in
no case shall any Purchaser or any subsequent Holder of any Security or New
Security be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Security, or in the case of a
New Security, applicable to the Security which was exchangeable into such New
Security, as set forth on the cover page of the Final Memorandum, nor shall any
underwriter be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such underwriter under
the Registration Statement which resulted in such Losses. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Issuers shall be deemed to be equal to
the proceeds from the Initial Placement net of purchase discounts and
commissions (before deducting
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expenses) as set forth on the cover page of the Final Memorandum. Benefits
received by the Purchasers shall be deemed to be equal to the total purchase
discounts and commissions as set forth on the cover page of the Final
Memorandum, and benefits received by any other Holders shall be deemed to be
equal to the value of receiving Securities or New Securities, as applicable,
registered under the Act. Benefits received by any underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Registration Statement
which resulted in such Losses. Relative fault shall be determined by reference
to whether any alleged untrue statement or omission relates to information
provided by the indemnifying party, on the one hand, or by the indemnified
party, on the other hand. The parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 6,
each person who controls a Holder within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and each person who
controls the Issuers within the meaning of either the Act or the Exchange Act,
each officer of the Issuers who shall have signed the Registration Statement and
each director of the Issuers shall have the same rights to contribution as the
Company or the Subsidiary Guarantors respectively, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder or the
Issuers or any of the officers, directors or controlling persons referred to in
Section 6 hereof, and will survive the sale by a Holder of securities covered by
a Registration Statement.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, entered into, nor shall any of them, on or after the date hereof, enter
into, any agreement with respect to their securities that is inconsistent with
the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
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(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Issuers have obtained the written consent of the
Holders of at least a majority of the then outstanding aggregate principal
amount of Securities (or, after the consummation of any Exchange Offer in
accordance with Section 2 hereof, of New Securities); provided that, with
respect to any matter that directly or indirectly affects the rights of any
Purchaser hereunder, the Issuers shall obtain the written consent of each such
Purchaser against which such amendment, qualification, supplement, waiver or
consent is to be effective. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by the
Majority Holders, determined on the basis of securities being sold rather than
registered under such Registration Statement.
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand- delivery, first-class mail, telex,
telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such holder
to the Issuers in accordance with the provisions of this Section 7(c), which
address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in like
manner to Salomon Brothers Inc.;
(2) if to you, initially at the respective addresses set forth in the
Purchase Agreement; and
(3) if to the Issuers, initially at the address of the Company set
forth in the Purchase Agreement with copies as indicated therein.
All such notices and communications shall be deemed to have been duly given
when received.
The Purchasers or the Issuers by notice to the other may designate
additional or different addresses for subsequent notices or communications.
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(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Issuers thereto, subsequent Holders of Securities and/or New Securities. The
Issuers hereby agree to extend the benefits of this Agreement to any Holder of
Securities and/or New Securities and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State.
(h) Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Issuers, etc. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities or New
Securities is required hereunder, Securities or New Securities, as applicable,
held by the Issuers or their Affiliates (other than subsequent Holders of
Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
Please confirm that the foregoing correctly sets forth the agreement between
the Issuers and you.
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Very truly yours,
OXFORD AUTOMOTIVE, INC.
By: /s/ Donald C. Campion
-----------------------------------
Name: Donald C. Campion
Title: Senior Vice President
BMG NORTH AMERICA LIMITED
By: /s/ Donald C. Campion
-----------------------------------
Name: Donald C. Campion
Title: Treasurer
LOBDELL EMERY CORPORATION
By: /s/ Donald C. Campion
-----------------------------------
Name: Donald C. Campion
Title: Treasurer
WINCHESTER FABRICATION
CORPORATION
By: /s/ Donald C. Campion
-----------------------------------
Name: Donald C. Campion
Title: Treasurer
CREATIVE FABRICATION CORPORATION
By: /s/ Donald C. Campion
-----------------------------------
Name: Donald C. Campion
Title: Treasurer
PARALLEL GROUP INTERNATIONAL, INC.
By: /s/ Donald C. Campion
-----------------------------------
Name: Donald C. Campion
Title: Treasurer
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CONCEPT MANAGEMENT CORPORATION
By: /s/ Donald C. Campion
-----------------------------------
Name: Donald C. Campion
Title: Treasurer
LEWIS EMERY CAPITAL CORPORATION
By: /s/ Donald C. Campion
-----------------------------------
Name: Donald C. Campion
Title: Treasurer
RPI HOLDINGS, INC.
By: /s/ Donald C. Campion
-----------------------------------
Name: Donald C. Campion
Title: Treasurer
HOWELL INDUSTRIES, INC.
By: /s/ Donald C. Campion
-----------------------------------
Name: Donald C. Campion
Title: Treasurer
BMG HOLDINGS INC.
By: /s/ Donald C. Campion
-----------------------------------
Name: Donald C. Campion
Title: Treasurer
LASERWELD INTERNATIONAL, L.L.C
By: Lobdell Emery Corporation,
Its Sole Member
By: /s/ Donald C. Campion
-----------------------------------
Name: Donald C. Campion
Title: Treasurer
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Accepted April 1, 1998
SALOMON BROTHERS INC
By: /s/ Thomas J. Spoto
-----------------------------------
Name: Thomas J. Spoto
Title: Associate
25
ANNEX A
Annex A
Each broker-dealer that receives New Securities for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Securities. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of New
Securities received in exchange for Securities where such New Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities. The Issuers have agreed that, starting on the Expiration
Date (as defined herein) and ending on the close of business on the first
anniversary of the Expiration Date, they will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
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ANNEX B
Annex B
Each broker-dealer that receives New Securities for its own account in exchange
for Securities, where such Securities were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such New
Securities. See "Plan of Distribution."
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ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Securities for its own account pursuant
to the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Securities. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of New Securities received in exchange for Securities
where such Securities were acquired as a result of market-making activities or
other trading activities. The Issuers have agreed that, starting on the
Expiration Date and ending on the close of business on the first anniversary of
the Expiration Date, they will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until ________, 199_, all dealers effecting transactions in the New
Securities may be required to deliver a prospectus.
The Issuers will not receive any proceeds from any sale of New Securities by
broker-dealers. New Securities received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the New Securities or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such New Securities. Any
broker-dealer that resells New Securities that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such New Securities may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a broker-dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of one year after the Expiration Date, the Issuers will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of
28
Transmittal. The Issuers have agreed to pay all expenses incident to the
Exchange Offer (including the expenses of one counsel for the holders of the
Securities) other than commissions or concessions of any brokers or dealers and
will indemnify the holders of the Securities (including any broker-dealers)
against certain liabilities, including liabilities under the Securities Act.
If applicable, add information required by Regulation S-K Items 507 and/or
508.
29
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND
WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name: ____________________________________
Address: _________________________________
_________________________________
Rider B
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of New
Securities. If the undersigned is a broker-dealer that will receive New
Securities for its own account in exchange for securities, it represents that
the Securities to be exchanged for New securities were acquired by it as a
result of market-making activities or other trading activities and acknowledges
that it will deliver a prospectus in connection with any resale of such New
Securities; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.