1
EXHIBIT 10.11
OXFORD AUTOMOTIVE, INC.
$35,000,000
10 1/8% SENIOR SUBORDINATED NOTES DUE 2007
PURCHASE AGREEMENT
New York, New York
March 24, 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 "Initial Purchaser"), $35,000,000
principal amount of its 10 1/8% Senior Subordinated Notes Due 2007 (the
"Securities"), to be guaranteed on a senior subordinated basis (the "Subsidiary
Guarantees") by BMG North America Limited, an On- tario 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,
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"), and to be
issued under an indenture (the "Indenture") dated as of June 15, 1997 between
the Company, the Subsidiary Guarantors and First Trust National Association, as
trustee (the "Trustee").
The sale of the Securities to the Initial Purchaser will be made without
registration of the Securities under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon exemptions from the registration
requirements of the Securities Act. You have advised the Company that the
Initial Purchaser will offer and sell the Securities purchased hereunder in
accordance with Section 4 hereof as soon as you deem advisable.
In connection with the sale of the Securities, the Company has prepared a
final offering memorandum, dated March 24, 1998 (including any and all exhibits
thereto and any information or documents incorporated by reference therein, the
"Final Memorandum"). The Final Memorandum sets forth certain information
concerning the Company, the Subsidiary Guarantors and the Securities. The
Company and the Subsidiary Guarantors, jointly and severally, hereby confirm
that they
2
2
have authorized the use of the Final Memorandum, and any amendment or supplement
thereto, in connection with the offer and sale of the Securities by the Initial
Purchaser. Unless stated to the contrary, all references herein to the Final
Memorandum are to the Final Memorandum at the Execution Time (as defined below)
and are not meant to include any amendment or supplement, or any information
incorporated by reference therein, subsequent to the Execution Time and any
references herein to the terms "amend," "amendment" or "supplement" with respect
to the Final Memorandum shall be deemed to refer to and include any information
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the Execution Time which is incorporated by reference
therein.
The holders of the Securities will be entitled to the benefits of the
Registration Agreement dated the date hereof, among the Company, the Subsidiary
Guarantors and the Initial Purchaser (the "Registration Agreement").
Capitalized terms used herein without definitions have the respective
meanings assigned to them in the Final Memorandum.
1. Representations and Warranties. The Company and the Subsidiary Guarantors,
jointly and severally, represent and warrant to, and agree with the Initial
Purchaser as set forth below in this Section 1.
(a) Each of the Company, the Subsidiary Guarantors and their
respective subsidiaries is a corporation, a limited liability company or a
partnership, duly incorporated or formed, and is validly existing as a
corporation, a limited liability company or a partnership in good standing
under the laws of the jurisdiction in which it is chartered, organized or
formed and is duly qualified to do business as a foreign corporation,
limited liability company or partnership and is in good standing under the
laws of each jurisdiction which requires such qualification wherein it owns
or leases material properties or conducts material business, except in such
jurisdictions in which the failure to so qualify would not have a material
adverse effect on the Company, the Subsidiary Guarantors and their
respective subsidiaries taken as a whole.
(b) Each of the Company, the Subsidiary Guarantors and their
respective subsidiaries has full power (corporate and other) to own or lease
its properties and conduct its business as described in the Final
Memorandum; and each of the Company and the Subsidiary Guarantors has full
power (corporate and other) to issue
3
3
the Securities and to enter into this Agreement, the Indenture, the
Subsidiary Guarantees and the Registration Agreement (collectively, the
"Transaction Documents") to which it is a party and to carry out all the
terms and provisions hereof and thereof to be carried out by it, including,
without limitation, the issuance, sale and delivery of the Securities.
(c) The issued shares of capital stock of each of the Company's
subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable and, except as otherwise set forth in the Final
Memorandum, are owned beneficially, directly or indirectly, by the Company
free and clear of any security interests, liens, encumbrances, preemptive
rights or claims.
(d) The Company's authorized capital stock consists of 400,000 shares
of common stock, of which 309,750 shares are issued and outstanding. Except
as set forth in the Final Memorandum, no holders of outstanding shares of
capital stock of the Company are entitled as such to any preemptive or other
rights to subscribe for any of the Securities.
(e) The consolidated financial statements and schedules of the Company
and its consolidated subsidiaries included in the Final Memorandum present
fairly in all material respects the financial position of the Company and
its consolidated subsidiaries and the results of operations and changes in
financial condition as of the dates and periods therein specified. Such
financial statements and schedules have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved (except as otherwise noted therein). The pro forma
financial statements of the Company and its subsidiaries and the related
notes thereto included in the Final Memorandum have been properly compiled
on the bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to
give effect to the transactions and circumstances referred to therein and to
the knowledge of the Company such pro forma financial statements and the
related notes thereto have been prepared in accordance with the Securities
and Exchange Commission's (the "Commission") rules and guidelines with
respect to pro forma financial statements, except as may be required with
respect to the proposed acquisition of the Eaton Suspension Division. The
selected financial data set forth under the caption "Selected Consolidated
Historical Financial Data" and "Pro Forma Combined Financial Data" in the
Final Memorandum present fairly in
4
4
all material respects, on the basis stated in the Final Memorandum, the
information included therein.
(f) Each of Price Waterhouse LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and Deloitte &
Touche, who have certified certain financial statements of BMG North America
Limited and delivered their respective reports with respect to the audited
consolidated financial statements and schedules included in or incorporated
by reference in the Final Memorandum, are independent public accountants
within the meaning of the Securities Act and the applicable rules and
regulations thereunder.
(g) The execution, delivery and performance of this Agreement have
been duly authorized by the Company and the Subsidiary Guarantors, this
Agreement has been duly executed and delivered by the Company and the
Subsidiary Guarantors and, upon the due execution and delivery by the other
parties hereto, this Agreement will constitute a legal, valid and binding
obligation of the Company and the Subsidiary Guarantors, enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, moratorium, reorganization or other similar laws or
court decisions relating to or affecting the rights of creditors generally
or of general principles of equity (whether considered in a proceeding in
equity or at law) and the unenforceability under certain circumstances under
law or court decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy. This Agreement
conforms in all material respects to the description thereof contained in
the Final Memorandum.
(h) No legal or governmental proceedings are pending to which the
Company or any of its subsidiaries is a party or to which the property of
the Company or any of its subsidiaries is subject that are not described in
the Final Memorandum, and no such proceedings have been threatened against
the Company or any of its subsidiaries or with respect to any of their
respective properties, except in each case for such proceedings that, if the
subject of an unfavorable decision, ruling or finding, would not,
individually or in the aggregate, result in a material adverse effect on the
condition (financial or otherwise), business prospects, net worth or results
of operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect"), or have a Material Adverse Effect on the ability
of the Company or any Subsidiary Guarantor to perform its obligations under
any
5
5
of the Transaction Documents.
(i) The issuance, offering and sale of the Securities to the Initial
Purchaser by the Company and the Subsidiary Guarantors pursuant to this
Agreement, the compliance by the Company and the Subsidiary Guarantors with
the other provisions of this Agreement and the authorization, execution and
delivery by the Company and the Subsidiary Guarantors of this Agreement and
the other Transaction Documents to which it is a party and the consummation
of the other transactions contemplated herein and therein do not (i) require
the consent, approval, authorization, registration or qualification of or
with any governmental authority, except such as have been obtained and such
as may be required under state securities or blue sky laws or, with respect
to the obligations under the Registration Agreement, except such as may be
required under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), or as may be required to register the Securities under the
Securities Act or (ii) conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under, (A) any
indenture, mortgage, deed of trust, lease or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or any of their respective properties are
bound, or (B) the charter documents or bylaws of the Company or any of its
subsidiaries or (C) any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any arbitrator
applicable to the Company or any of its subsidiaries, except in each case
for such conflicts, breaches or violations that would not, individually or
in the aggregate, result in a Material Adverse Effect.
(j) The Company and each of its subsidiaries have good and marketable
title to all items of real property and good title to all material personal
property owned by each of them, in each case free and clear of any security
interests, liens, encumbrances, equities, claims and other defects, except
such as do not materially and adversely affect the value of such property
and do not interfere with the use made or proposed to be made of such
property by the Company or its subsidiaries, and the Company and its
subsidiaries have valid, subsisting and enforceable leases for the
properties described in the Final Memorandum as leased by them, with
exceptions in each case as are not material and do not interfere with the
business of the Company and its subsidiaries, taken as a whole, in each case
except as described in or contemplated by the Final Memorandum.
6
6
(k) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company or any of its
Subsidiary Guarantors, is threatened or imminent that would result in a
Material Adverse Effect, except as described in or contemplated by the Final
Memorandum.
(l) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; and neither the Company nor any of its subsidiaries has any
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a cost
that would not result in a Material Adverse Effect, except as described in
or contemplated by the Final Memorandum.
(m) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company,
except as described in the Final Memorandum.
(n) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities required to conduct their respective
businesses except for those the failure to possess which, individually or in
the aggregate, would not have a Material Adverse Effect, and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect, except as described in or contemplated by the Final
Memorandum.
(o) The Company and its subsidiaries have filed all foreign, federal,
state and local tax returns that are required to be filed through the date
hereof or have requested extensions thereof and have paid all taxes (other
than immaterial amounts of franchise taxes with respect to immaterial
subsidiaries and immaterial amounts of severance taxes) required to be paid
by them and any other assessment, fine or penalty levied against them, to
7
7
the extent that any of the foregoing is due and payable, except where the
failure to pay such assessment, fine or penalty levied against them would
not singly or in the aggregate have a Material Adverse Effect and except for
any such assessment, fine or penalty that is currently being contested in
good faith or as described in or contemplated by the Final Memorandum.
(p) Neither the Company nor any of its subsidiaries is in violation of
any federal or state law or regulation relating to occupational safety and
health or to the storage, handling or transportation of hazardous or toxic
materials, and the Company and its subsidiaries have received all permits,
licenses or other approvals required of them under applicable federal and
state occupational safety and health and environmental laws and regulations
to conduct their respective businesses, and the Company and its subsidiaries
are in compliance with all terms and conditions of any such permit, license
or approval, except any such violation of law or regulation, failure to
receive required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals which
would not, singly or in the aggregate, result in a Material Adverse Effect,
except as described in or contemplated by the Final Memorandum.
(q) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(r) No default exists, and no event has occurred which, with notice or
lapse of time or both, would constitute a default in the due performance and
observance of any terms, covenant or condition of any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or any of their respective properties is bound or may be
affected in any material adverse respect with regard to property, business
or
8
8
operations of the Company and its subsidiaries, taken as a whole, except for
such defaults that would not result in a Material Adverse Effect.
(s) The Indenture has been duly and validly authorized and the
Registration Agreement, the Securities and the Subsidiary Guarantees have
been duly and validly authorized and, in the case of the Registration
Agreement, when duly executed and delivered by the parties thereto and, in
the case of the Securities, when duly issued, authenticated and delivered in
accordance with the terms of the Indenture, endorsed by each Subsidiary
Guarantor and paid for in accordance with the terms of this Agreement, (A)
the Securities will be validly issued and outstanding and will constitute
valid and binding obligations of the Company enforceable against the Company
in accordance with their terms and entitled to the benefits of the Indenture
and the Registration Agreement and (B) the Subsidiary Guarantees will
constitute valid and binding obligations of the Subsidiary Guarantors
enforceable against the Subsidiary Guarantors in accordance with their
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, moratorium, reorganization or other similar laws or court
decisions relating to or affecting the rights of creditors generally or of
general principles of equity (whether considered in a proceeding in equity
or at law). The Securities, the Subsidiary Guarantees, the Indenture and the
Registration Agreement conform in all material respects to the description
thereof contained in the Final Memorandum.
(t) Except as may otherwise be disclosed in the Final Memorandum, the
Company and its subsidiaries conduct their business in compliance with all
applicable laws, rules and regulations of the jurisdictions in which they
are conducting business, except where the failure to be so in compliance
would not have a Material Adverse Effect.
(u) The Final Memorandum, at the date hereof, does not, and at the
Closing Date (as defined below) will not (and any amendment or supplement
thereto, at the date thereof and at the Closing Date, will not), contain any
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; provided, however, that no
representation or warranty is made by the Company and its subsidiaries with
respect to the information contained in or omitted from the Final
Memorandum, or any amendment or supplement thereto, in reliance upon and in
conformity
9
9
with information furnished in writing to the Company or the Subsidiary
Guarantors by or on behalf of the Initial Purchaser specifically for
inclusion therein.
(v) Neither the Company, the Subsidiary Guarantors nor any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under the
Securities Act ("Regulation D")), nor any person acting on its or their
behalf (provided that no representation is made as to the Initial Purchaser
or any person acting on its behalf), has, directly or indirectly, (i) sold,
offered for sale, solicited offers to buy or otherwise negotiated in respect
of any security (as defined in the Securities Act) which is or will be
integrated with the sale of the Securities and requires registration of the
Securities under the Securities Act or (ii) engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with the offering of the Securities.
(w) Assuming the Securities are issued, sold and delivered as
contemplated by the Final Memorandum and this Agreement; that each of the
representations, warranties and covenants of the Initial Purchaser contained
in this Agreement are true, correct and complete; and that the Initial
Purchaser complies with the covenants in this Agreement, it is not necessary
in connection with the offer and sale and delivery of the Securities in the
manner contemplated by this Agreement and the Final Memorandum to register
the Securities or the Subsidiary Guarantees under the Securities Act or to
qualify the Indenture under the Trust Indenture Act.
(x) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(y) None of the Company, the Subsidiary Guarantors nor any of their
respective Affiliates, nor any person acting on its or their behalf
(provided that no representation is made as to the Initial Purchaser or any
person acting on its behalf), has engaged in any directed selling efforts
with respect to the Securities, and each of them has complied with the
offering restrictions requirement of Regulation S ("Regulation S") under the
Securities Act. Terms used in this paragraph have the meanings given to them
by Regulation S.
(z) The Company has been advised by the National Association of
Securities Dealers, Inc. PORTAL Market that the Securities have been
designated PORTAL eligible securities in accordance with the rules and
regulations of the National Association of Securities Dealers, Inc.
10
10
(aa) Neither the Company nor any Subsidiary Guarantor is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), without taking account of any
exemption arising out of the number of holders of the Company's or the
Subsidiary Guarantors' securities.
(bb) Neither the Company nor any Subsidiary Guarantor has paid or
agreed to pay to any person any compensation for soliciting another to
purchase any securities of the Company or the Subsidiary Guarantors (except
as contemplated by this Agreement).
(cc) The information provided by the Company pursuant to Section 5(h)
hereof will not, at the date thereof, contain any 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.
(dd) To the knowledge of the Company and each of the Subsidiary
Guarantors, except as described in the Final Memorandum and except as would
not reasonably be expected to result in a Material Adverse Effect, (A)
neither the Company nor any of its subsidiaries is in violation of, or has
received any notice that it is subject to liability under, any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code or
rule of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, decree, judgment or
injunction relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, indoor air, surface
water, groundwater, land surface or subsurface strata and natural
resources), including, without limitation, those relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances or constituents, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "Environmental Laws"), (B)
the Company and its subsidiaries have all permits, licenses, authorizations
and approvals required under any applicable Environmental Laws, all of which
are in full force and effect, and are each in compliance with any applicable
Environmental Laws, (C) neither the Company nor any subsidiary has received
notice that there are any pending or threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices
of noncompliance, violation or potential
11
11
responsibility or liability, investigation or proceedings pursuant to any
Environmental Laws against the Company or of its subsidiaries, or any of
their respective predecessors-in-interest for which the Company or any of
its subsidiaries is liable and (D) neither the Company nor any subsidiary
has received notice that there are any past or present events, conditions or
circumstances which have been alleged to form the basis of an order to
conduct responsive or corrective action, or an action, suit or proceeding by
any private party or governmental agency, against or affecting, or requiring
capital or operating expenditures by, the Company or any of the subsidiaries
pursuant to any Environmental Laws.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company agrees to
sell to the Initial Purchaser, and the Initial Purchaser agrees to purchase
from the Company, at a purchase price of 104.59% of the principal amount
thereof, $35,000,000 aggregate principal amount of Securities.
3. Delivery and Payment. Delivery of and payment for the Securities shall be
made at 10:00 AM, New York City time, on April 1, 1998, or such later date
as the Initial Purchaser shall designate, which date and time may be
postponed by agreement between the Initial Purchaser and the Company (such
date and time of delivery and payment for the Securities being herein called
the "Closing Date"). Delivery of the Securities shall be made to the Initial
Purchaser against payment by the Initial Purchaser of the purchase price
thereof to or upon the order of the Company by wire transfer in federal
(same-day) funds or such other manner of payment as may be agreed by the
Company and the Initial Purchaser. Delivery of the Securities shall be made
at such location as the Initial Purchaser shall reasonably designate at
least one business day in advance of the Closing Date and payment for the
Securities shall be made at the office of Cahill Gordon & Reindel ("Counsel
for the Initial Purchaser"), 80 Pine Street, New York, New York or such
other place as the parties may otherwise agree. Certificates for the
Securities shall be registered in such names and in such denominations as
the Initial Purchaser may request not less than three full business days in
advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Initial Purchaser in New York, New York, not
later than 1:00 PM, New York City time, on the business day prior to the
Closing Date.
12
12
4. Offering of Securities. The Initial Purchaser represents and warrants to and
agrees with the Company that:
(a) It has not offered or sold, and will not offer or sell, any
Securities except (i) to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Securities Act) and
that, in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of such Securities is aware
that such sale is being made in reliance on Rule 144A, or (ii) in accordance
with the restrictions set forth in Exhibit A hereto.
(b) Neither it nor any person acting on its behalf has made or will
make offers or sales of the Securities in the United States by means of any
form of general solicitation or general advertising within the meaning of
Regulation D in the United States.
5. Agreements. The Company and each of the Subsidiary Guarantors agree with the
Initial Purchaser that:
(a) The Company will furnish to the Initial Purchaser and to Counsel
for the Initial Purchaser, without charge, during the period referred to in
paragraph (c) below, as many copies of the Final Memorandum (including any
documents incorporated by reference therein) and any amendments and
supplements thereto as it may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to the
offering.
(b) The Company will not amend or supplement the Final Memorandum
without the prior written consent of the Initial Purchaser.
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchaser, any event occurs as a result of which
the Final Memorandum, as then amended or supplemented, would include any
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, or if it should be necessary to
amend or supplement the Final Memorandum to comply with applicable law, the
Company will promptly notify the Initial Purchaser of the same and, subject
to the requirements of paragraph (b) of this Section 5, will prepare and
provide to the Initial Purchaser pursuant to paragraph (a) of this Section 5
an amendment or supplement which will correct such statement or omission or
effect such compliance.
13
13
(d) The Company will arrange for the qualification of the Securities
for sale by the Initial Purchaser under the laws of such jurisdictions as
the Initial Purchaser may designate and will maintain such qualifications in
effect so long as required for the sale of the Securities. Each of the
Company and the Subsidiary Guarantors will promptly advise the Initial
Purchaser of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(e) The Company and the Subsidiary Guarantors will not, and will not
permit any of their respective Affiliates to, resell any Securities which
constitute "restricted securities" under Rule 144 that have been acquired by
any of them.
(f) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf will, directly or indirectly, make offers or
sales of any security, or solicit offers to buy any security, under
circumstances the offering of which security will be integrated with the
sale of the Securities in a manner that would require the registration of
the Securities under the Securities Act.
(g) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States.
(h) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, the Company
will, during any period in which it is not subject to and in compliance with
Section 13 or 15(d) of the Exchange Act, provide to each holder of such
restricted securities and to each prospective purchaser (as designated by
such holder) of such restricted securities, upon the request of such holder
or prospective purchaser, any information required to be provided by Rule
144A(d)(4) under the Securities Act. This covenant is intended to be for the
benefit of the holders, and the prospective purchasers designated by such
holders, from time to time of such restricted securities.
(i) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf will engage in any directed selling efforts
with respect to the
14
14
Securities, and each of them will comply with the offering restrictions
requirement of Regulation S. Terms used in this paragraph have the meanings
given to them by Regulation S.
(j) The Company will cooperate with the Initial Purchaser and use its
best efforts to permit the Securities to be eligible for clearance and
settlement through The Depository Trust Company.
(k) The Company will not, until 90 days following the Closing Date,
without the prior written consent of the Initial Purchaser, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or
announce the offering of, any debt securities issued or guaranteed by the
Company or any of its subsidiaries (other than the Securities); provided,
however, that the foregoing will not apply to borrowings from banks under
bank credit facilities or to the issuance of debt securities to the seller
of assets or businesses acquired by the Company or subsidiaries as part of
the purchase price therefor provided that each seller agrees not to resell
such debt securities for a period of 90 days following the Closing Date.
(l) The Company will apply the net proceeds from the sale of the
Securities sold by it substantially in accordance with its statements under
the caption "Use of Proceeds" in the Final Memorandum.
(m) The Company shall include information substantially in the form
set forth in Exhibit A in the Final Memorandum.
6. Conditions to the Obligations of the Initial Purchaser. The obligations of
the Initial Purchaser to purchase the Securities shall be subject to the
accuracy, in all material respects, of the representations and warranties on
the part of the Company and the Subsidiary Guarantors contained herein at
the date and time that this Agreement is executed and delivered by the
parties hereto (the "Execution Time"), and the Closing Date, to the accuracy
of the statements of the Company and the Subsidiary Guarantors made in any
certificates pursuant to the provisions hereof, to the performance by the
Company and the Subsidiary Guarantors of their obligations hereunder and to
the following additional conditions:
(a) The Company shall have furnished to the Initial Purchaser the
opinion of Dykema Gossett PLLC, counsel for the Company and the Subsidiary
Guarantors, dated the Closing Date, to the effect that
15
15
(i) each of the Company and the Subsidiary Guarantors and
each other subsidiary of the Company has been duly incorporated or
organized and is validly existing as a corporation or limited liability
company in good standing under the laws of the jurisdiction in which it
is chartered or organized, with full corporate power and authority to
own its properties and conduct its business as described in the Final
Memorandum, and is duly qualified to do business as a foreign
corporation or limited liability company and is in good standing under
the laws of each jurisdiction listed on Schedule I hereto;
(ii) the Indenture has been duly authorized, executed and
delivered, and constitutes a legal, valid and binding instrument
enforceable against the Company and the Subsidiary Guarantors in
accordance with its terms (subject, as to the enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in
effect) except that such counsel shall express no opinion concerning
the enforceability of waivers or defenses therein; the Securities and
the Subsidiary Guarantees are in the form contemplated by the Indenture
and have been duly and validly authorized and, when the Securities are
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchaser
pursuant to this Agreement, will constitute legal, valid and binding
obligations of the Company and the Subsidiary Guarantors entitled to
the benefits of the Indenture, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, moratorium, reorganization or other
similar laws or court decisions relating to or affecting the rights of
creditors generally or of general principles of equity (whether
considered in a proceeding in equity or at law);
(iii) insofar as the Final Memorandum contains a discussion of
specific legal proceedings or regulatory matters, including the
information contained in the Final Memorandum under the headings
"Business - Legal Proceedings," "Business Regulatory Matters" and
"Description of Certain Indebtedness," to such counsel's knowledge such
discussion fairly summarizes the matters therein described;
(iv) this Agreement has been duly authorized,
16
16
executed and delivered by the Company and the Subsidiary Guarantors;
(v) to such counsel's knowledge, no consent, approval,
authorization or order of any court or governmental agency or body is
required for the consummation of the transactions contemplated herein,
except such as may be required under the blue sky or securities laws of
any jurisdiction in connection with the purchase and sale of the
Securities by the Initial Purchaser;
(vi) none of the issue and sale of the Securities, the
execution and delivery of the Indenture, the issuance of the Subsidiary
Guarantees, the consummation of any other of the transactions herein or
therein contemplated nor the fulfillment of the terms hereof or thereof
will conflict with, result in a breach or violation of, or constitute a
default under any Law applicable to the Company or the charter or
by-laws of the Company or the Subsidiary Guarantors or the terms of any
indenture or other agreement or instrument known to such counsel and to
which the Company or any of its subsidiaries is a party or bound or any
judgment, order or decree known to such counsel to be applicable to the
Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries except to the
extent any such breach, violation or default will not have a Material
Adverse Effect;
(vii) assuming the accuracy of the representations and
warranties and compliance with the agreements contained herein, no
registration of the Securities or the Subsidiary Guarantees under the
Securities Act is required, and no qualification of the Indenture or
the Subsidiary Guarantees under the Trust Indenture Act is necessary,
for the offer and sale by the Initial Purchaser of the Securities in
the manner contemplated by this Agreement;
(viii) neither the Company nor any of the Subsidiary Guarantors
is an "investment company" within the meaning of the Investment Company
Act without taking account of any exemption arising out of the number
of holders of the Company's or the Subsidiary Guarantors' securities;
and
(ix) to the best of such counsel's knowledge,
17
17
there are no legal or governmental actions, suits or proceedings
pending or threatened to which the Company or any of its subsidiaries
is or is threatened to be made a party or of which property owned or
leased by the Company or any of its subsidiaries is or is threatened to
be made the subject, which actions, suits or proceedings could,
individually or in the aggregate, prevent or adversely affect the
transactions contemplated by the Transaction Documents or the
Securities or result in a Material Adverse Effect in the condition
(financial or otherwise) of the Company; and except as may otherwise be
described in the Final Memorandum, neither the Company nor any of its
subsidiaries is a party or subject to the provisions of any injunction,
judgment, decree or order of any court, regulatory body, administrative
agency or other governmental body which could have a Material Adverse
Effect on the condition (financial or otherwise) of the Company.
Such counsel shall also state that although such counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained or incorporated by
reference in the Final Memorandum, such counsel has participated in the
preparation of the Final Memorandum, including review and discussion of the
contents thereof, and nothing has come to the attention of such counsel that
has caused them to believe that at the Execution Time the Final Memorandum,
including the documents incorporated by reference therein, contained an
untrue statement of material fact or omitted to state 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 or
that any amendment or supplement to the Final Memorandum, as of its
respective date, and as of the Closing Date contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules and other
financial and statistical data included or incorporated by reference in the
Final Memorandum).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any
18
18
jurisdiction other than the State of New York, the State of Michigan or the
United States, to the extent they deem proper and specified in such opinion,
upon the opinion of other counsel of good standing whom they reasonably
believe to be reliable and who are satisfactory to counsel for the Initial
Purchaser and (B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public officials.
All references in this Section 6(a) to the Final Memorandum shall be
deemed to include any amendment or supplement thereto at the Closing Date.
(b) The Initial Purchaser shall have received from Counsel for the
Initial Purchaser such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the Final Memorandum (as
amended or supplemented at the Closing Date) and other related matters as
the Initial Purchaser may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(c) The Company shall have furnished to the Initial Purchaser a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Final Memorandum, any amendment or supplement to
the Final Memorandum and this Agreement and that:
(i) the representations and warranties of the Company and
the Subsidiary Guarantors in this Agreement are true and correct in all
material respects on and as of the Closing Date with the same effect as
if made on the Closing Date, and the Company and the Subsidiary
Guarantors have complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date; and
(ii) since the date of the most recent financial statements
included in the Final Memorandum, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not arising
from transactions in the ordinary course of business, except at set
forth in or contemplated by the Final Memorandum (exclusive of any
amendment or supplement
19
19
thereto).
(d) At the Execution Time and at the Closing Date, Price Waterhouse
LLP shall have furnished to the Initial Purchaser a letter or letters, dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Initial Purchaser.
(e) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Final Memorandum, there shall not have
been (i) any change or decrease specified in the letter or letters referred
to in paragraph (d) of this Section 6 or (ii) any change, or any development
involving a prospective change, in or affecting the business or properties
of the Company and its subsidiaries the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the reasonable judgment of
the Initial Purchaser, so material and adverse as to make it impractical or
inadvisable to market the Securities as contemplated by the Final
Memorandum.
(f) The Company shall have furnished to the Initial Purchaser the
opinion of Fasken Campbell Godfrey, special Canadian counsel for the Company
and the Subsidiary Guarantors, dated the Closing Date, substantially in the
form of Exhibit B hereto.
(g) On or prior to the Closing Date, the Company and the Subsidiary
Guarantors shall have furnished to the Initial Purchaser such further
information, certificates and documents as the Initial Purchaser may
reasonably request.
(h) On or prior to the Closing Date, the Registration Agreement shall
have been executed substantially in the form hereto delivered to you and
shall have been delivered to you and the Trustee.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Initial Purchaser and Counsel for the Initial Purchaser,
this Agreement and all obligations of the Initial Purchaser hereunder may be
canceled at, or at any time prior to, the Closing Date by the Initial Purchaser.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
20
20
The documents required to be delivered by this Section<0- 95>6 will be
delivered at the office of Counsel for the Initial Purchaser, at 80 Pine Street,
New York, New York, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities provided for herein
is not consummated because any condition to the obligations of the Initial
Purchaser set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company or the Subsidiary Guarantors
to perform any agreement herein or comply with any provision hereof other
than by reason of a default by the Initial Purchaser in payment for the
Securities on the Closing Date, the Company and the Subsidiary Guarantors
will, jointly and severally, reimburse the Initial Purchaser severally upon
demand for all reasonable out-of-pocket expenses (including reasonable fees
and disbursements of Cahill Gordon & Reindel) that shall have been incurred
by them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company and the Subsidiary
Guarantors, jointly and severally, agree to indemnify and hold harmless the
Initial Purchaser, the directors, officers, employees and agents of the
Initial Purchaser and each person who controls the Initial Purchaser within
the meaning of either the Securities 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 Securities 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
Final Memorandum or any information provided by the Company to any holder or
prospective purchaser of the Securities pursuant to Section 5(h) hereof, or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein,
in the 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 neither the Company nor the
Subsidiary Guarantors will be liable in any such case to the extent
21
21
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 in the Final Memorandum, or in any amendment thereof
or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Initial
Purchaser specifically for inclusion therein.
(b) he Initial Purchaser agrees to indemnify and hold harmless each of
the Company and the Subsidiary Guarantors, their respective directors,
officers and each person who controls the Company or a Subsidiary Guarantor
within the meaning of either the Securities Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company and the Subsidiary
Guarantors to the Initial Purchaser, but only with reference to written
information relating to the Initial Purchaser furnished to the Company by or
on behalf of the Initial Purchaser specifically for inclusion in the Final
Memorandum (or in any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which the Initial Purchaser
may otherwise have. The Company and the Subsidiary Guarantors acknowledge
that the statements set forth in the last paragraph of the cover page and
under the heading "Plan of Distribution" in the Final Memorandum constitute
the only information furnished in writing by or on behalf of the Initial
Purchaser for inclusion in the Final Memorandum (or in any amendment or
supplement thereto).
(c) romptly after receipt by an indemnified party under this Section 8
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 8, 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
22
22
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 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 the indemnified party shall have reasonably concluded on the
advice of counsel that there may be legal defenses available to it 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 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 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Subsidiary Guarantors
on the one hand and the Initial Purchaser on the other hand agree 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 the
Company and the Subsidiary Guarantors or the Initial Purchaser, as
applicable, may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Subsidiary Guarantors
on the one hand or the Initial Purchaser on the other hand from the offering
of the Securities;
23
23
provided, however, that in no case shall the Initial Purchaser be
responsible for any amount in excess of the purchase discount or commission
applicable to the Securities purchased by the Initial Purchaser hereunder.
If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Subsidiary Guarantors on one
hand and the Initial Purchaser on the other hand shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and the Subsidiary Guarantors or the
Initial Purchaser, as applicable, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company and the
Subsidiary Guarantors shall be deemed to be equal to the proceeds from the
offering net of purchase discounts and commissions (before deducting
expenses), and benefits received by the Initial Purchaser shall be deemed to
be equal to the total purchase discounts and commissions received by the
Initial Purchaser from the Company in connection with the purchase of the
Securities hereunder. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information
provided by the Company, the Subsidiary Guarantors or the Initial Purchaser.
The Company, the Subsidiary Guarantors and the Initial Purchaser 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 Securities
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each
person who controls the Initial Purchaser within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee and
agent of the Initial Purchaser shall have the same rights to contribution as
the Initial Purchaser, and each person who controls the Company or the
Subsidiary Guarantors within the meaning of either the Securities Act or the
Exchange Act and each officer and director of the Company or the Subsidiary
Guarantors shall have the same rights to contribution as the Company and the
Subsidiary Guarantors, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Initial
24
24
Purchaser, by notice given to the Company prior to delivery of and payment
for the Securities, if prior to such time (i) any of the Company's
securities shall have been suspended by the Commission or trading in
securities generally on the New York Stock Exchange or the NASDAQ National
Market shall have been suspended or limited or minimum prices shall have
been established on either of such exchanges, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to
make it, in the judgment of the Initial Purchaser, impracticable or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Memorandum.
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the
Company, the Subsidiary Guarantors or their respective officers and of the
Initial Purchaser set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or
on behalf of the Initial Purchaser or the Company, the Subsidiary Guarantors
or any of their respective officers, directors or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment
for the Securities. The provisions of Sections 7 and 8 hereof shall survive
the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective only
on receipt, and, if sent to the Initial Purchaser, will be mailed, delivered
or telegraphed and confirmed to them, care of Salomon Brothers Inc, at Seven
World Trade Center, New York, New York 10048; or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at Oxford
Automotive, Inc., 1250 Stephenson Highway, Troy, Michigan 48083.
12. Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and,
except as expressly set forth in Section 5(h) hereof, no other person will
have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New
25
25
York without regard to principles of conflicts of law thereof.
14. Business Day. For purposes of this Agreement, "business day" means each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in the City of New York, New York are authorized or
obligated by law, executive order or regulation to close.
15. Counterparts. This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original, but all such counterparts
will together constitute one and the same instrument.
26
26
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
Agreement and your acceptance shall represent a binding agreement among the
Company, the Subsidiary Guarantors and the Initial Purchaser.
Very truly yours,
OXFORD AUTOMOTIVE, INC.
By: /s/ Donald C. Campion
-------------------------------------
Name: Donald C. Campion
Title: Senior Vice President and Chief
Financial Officer
BMG NORTH AMERICA LIMITED
By: /s/ Donald C. Campion
-------------------------------------
Name: Donald C. Campion
Title: Vice President, Chief Financial
Officer and Treasurer
LOBDELL EMERY CORPORATION
By: /s/ Donald C. Campion
-------------------------------------
Name: Donald C. Campion
Title: Vice President, Chief Financial
Officer and Treasurer
WINCHESTER FABRICATION CORPORATION
By: /s/ Donald C. Campion
-------------------------------------
Name: Donald C. Campion
Title: Vice President, Chief Financial
Officer and Treasurer
CREATIVE FABRICATION CORPORATION
By: /s/ Donald C. Campion
-------------------------------------
Name: Donald C. Campion
Title: Vice President, Chief Financial
Officer and Treasurer
27
27
BMG HOLDINGS INC.
By: /s/ Donald C. Campion
-------------------------------------
Name: Donald C. Campion
Title: Vice President, Chief Financial
Officer and Treasurer
LASERWELD INTERNATIONAL, L.L.C.
By: /s/ Donald C. Campion
-------------------------------------
Name: Donald C. Campion
Title: Vice President, Chief Financial
Officer and Treasurer
PARALLEL GROUP INTERNATIONAL, INC.
By: /s/ Donald C. Campion
-------------------------------------
Name: Donald C. Campion
Title: Vice President, Chief Financial
Officer and Treasurer
CONCEPT MANAGEMENT CORPORATION
By: /s/ Donald C. Campion
-------------------------------------
Name: Donald C. Campion
Title: Vice President, Chief Financial
Officer and Treasurer
LEWIS EMERY CAPITAL CORPORATION
By: /s/ Donald C. Campion
-------------------------------------
Name: Donald C. Campion
Title: Vice President, Chief Financial
Officer and Treasurer
RPI HOLDINGS, INC.
By: /s/ Donald C. Campion
-------------------------------------
Name: Donald C. Campion
Title: Vice President, Chief Financial
Officer and Treasurer
28
28
HOWELL INDUSTRIES, INC.
By: /s/ Donald C. Campion
-------------------------------------
Name: Donald C. Campion
Title: Vice President, Chief Financial
Officer and Treasurer
29
29
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
Salomon Brothers Inc
By /s/ Thomas J. Spoto
-------------------------------
Name: Thomas J. Spoto
Title: Associate
30
30
SCHEDULE I
1. Lobdell Emery Corporation, a Michigan corporation, is authorized to transact
business in the State of Indiana.
2. Howell Industries, Inc., a Michigan corporation, is authorized to transact
business in the State of Ohio.
31
EXHIBIT A
Selling Restrictions for Offers and
Sales Outside the United States
(1) (a) The Securities have not been and will not be registered under the
Securities Act and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except in accordance with Regulation
S under the Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act. The Initial Purchaser represents and agrees
that, except as otherwise permitted by Section 4(a)(i) or (ii) of the Agreement
to which this is an exhibit, it has offered and sold the Securities, and will
offer and sell the Securities, (i) as part of their distribution at any time and
(ii) otherwise until 40 days after the later of the commencement of the offering
and the Closing Date, only in accordance with Rule 903 of Regulation S under the
Securities Act. Accordingly, the Initial Purchaser represents and agrees that
neither it nor any of its affiliates nor any person acting on its or their
behalf has engaged or will engage in any directed selling efforts with respect
to the Securities, and that it and they have complied and will comply with the
offering restrictions requirement of Regulation S. The Initial Purchaser agrees
that, at or prior to the confirmation of sale of Securities (other than a sale
of Securities pursuant to Section 4(a)(i) or (ii) of the Agreement to which this
is an exhibit), it shall have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Securities from it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and
[specify closing date of the offering], except in either case in accordance
with Regulation S or Rule 144A under the Securities Act. Terms used above
have the meanings given to them by Regulation S."
(b) The Initial Purchaser also represents and agrees that it has not
entered and will not enter into any contractual arrangement with any distributor
with respect to the distribution of the Securities, except with its affiliates
A-1
32
or with the prior written consent of the Company.
(c) Terms used in this section have the meanings given to them by
Regulation S.
(2) The Initial Purchaser represents and agrees that (i) it has not offered
or sold and will not offer or sell, in the United Kingdom, by means of any
document, any Securities other than to persons whose ordinary business it is to
buy or sell shares or debentures, whether as principal or as agent (except in
circumstances which do not constitute an offer to the public within the meaning
of the Companies Act 1985 of Great Britain), (ii) it has complied and will
comply with all applicable provisions of the Financial Services Act 1986 of the
United Kingdom with respect to anything done by it in relation to the Securities
in, from or otherwise involving the United Kingdom, and (iii) it has only issued
or passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the Securities to a person who is
of a kind described in Article 9(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1988 or is a person to whom the
document may otherwise lawfully be issued or passed on.
A-2
33
Annex 1
[SALOMON BROTHERS INC LETTERHEAD]
___________, 1998
Price Waterhouse LLP
2301 West Big Beaver
Troy, Michigan 48084
Ladies and Gentlemen:
Reference is hereby made to the Purchase Agreement (the "Purchase
Agreement") dated February [_____], 1998 among the undersigned (the "Initial
Purchasers") and Oxford Automotive, Inc. (the "Company") and the Subsidiary
Guarantors listed therein pursuant to which the Company will sell to the Initial
Purchaser, and the Initial Purchaser will purchase from the Company, $35,000,000
principal amount of the Company's [_____]% Senior Subordinated Notes Due 2007
(the "Securities").
Pursuant to Section 6(d) of the Purchase Agreement, you are required to
deliver certain letters, in form and substance satisfactory to us, setting forth
the matters described in such Section (the "Auditor's Letters"). In connection
with your delivery of the Auditor's Letters, we confirm to you that:
(i) we are knowledgeable with respect to the due diligence review
process that would be performed if this placement of Securities were being
registered pursuant to the Securities Act of 1933, as amended (the "Act");
and
(ii) we will be reviewing certain information relating to the Company
and the Subsidiary Guarantors that will be included or incorporated by
reference in the Final Memorandum (as defined in the Purchase Agreement) and
this review process, applied to the information relating to the Company and
the Subsidiary Guarantors, will be substantially consistent with the due
diligence review process that we would perform if this placement of
Securities were being registered pursuant to the Act.
In accordance with the foregoing, we hereby request that you deliver to us
the Auditor's Letters.
34
-2-
This letter is being furnished to you solely for the purpose of obtaining the
Auditor's Letters and may not be relied upon or used by you for any other
purpose, or given or shown to any other person, without our prior written
consent.
Very truly yours,
SALOMON BROTHERS INC
By:
--------------------------
Name:
Title: