EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
Dated as of June 9, 1998
by and among
Tower Automotive, Inc.,
Tower Automotive Capital Trust
and
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
PaineWebber Incorporated
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of June 9, 1998 by and among Tower Automotive, Inc., a
Delaware corporation (the "COMPANY"), Tower Automotive Capital Trust (a
statutory business trust formed under the Delaware Business Trust Act) (the
"Trust") and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, Xxxxxx X.
Xxxxx & Co. Incorporated, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
and PaineWebber Incorporated (each an "INITIAL PURCHASER" and, collectively,
the "INITIAL PURCHASERS"), each of whom has agreed to purchase the Trust's
6 3/4% Trust Convertible Preferred Securities (liquidation preference $50 per
Preferred Security) (the " PREFERRED SECURITIES") pursuant to the Purchase
Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated June 9,
1998 (the "PURCHASE AGREEMENT"), by and among the Company, the Trust and the
Initial Purchasers. In order to induce the Initial Purchasers to purchase
the Preferred Securities, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this
Agreement is a condition to the obligations of the Initial Purchasers set
forth in Section 9 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: An affiliate of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
BUSINESS DAY: Any day except a Saturday, Sunday or other day in the
City of Chicago, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
DAMAGES PAYMENT DATE: With respect to the Debentures, each Interest
Payment Date.
DECLARATION. Means the Amended and Restated Declaration of Trust dated
June 9, 1998 among the Company, The First National Bank of Chicago, First
Chicago Delaware Inc. and the Administrative Trustees named therein.
DEBENTURES: Up to $266,800,000 aggregate principal amount of 6 3/4%
Convertible Subordinated Debentures due June 30, 2018 of the Company being
issued (or authorized to be issued) pursuant to the Indenture.
DISTRIBUTION DATE: As defined in the Declaration.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
FILING DATE: The 90th day after the Closing Date.
GLOBAL CERTIFICATEHOLDER. Means each holder of a Global Certificate (as
defined in the Declaration).
GLOBAL DEBENTUREHOLDER: Means each holder of a Global Debenture (as
defined in the Indenture).
GUARANTEE: The Guarantee by the Company set forth in Section 5.1 of
that certain Guarantee Agreement between the Company and The First National
Bank of Chicago relating to the Preferred Securities of the Trust.
HOLDERS: As defined in Section 2 hereof.
INDEMNIFIED HOLDER: As defined in Section 7(a) hereof.
INDENTURE: The Junior Convertible Subordinated Indenture, dated the
Closing Date, between the Company and The First National Bank of Chicago, as
trustee (the "TRUSTEE"), pursuant to which the Debentures are to be issued, as
such Indenture is amended or supplemented from time to time in accordance with
the terms thereof.
INTEREST PAYMENT DATE: As defined in the Indenture and the Debentures.
NASD: National Association of Securities Dealers, Inc.
PERSON: An individual, partnership, corporation, trust, unincorporated
organization, or a government or agency or political subdivision thereof.
PREFERRED SECURITIES. As defined in the preamble.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus
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supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such Prospectus.
RECORD HOLDER: With respect to any Damages Payment Date, each Person
who is a Holder of Preferred Securities on the record date with respect to
the Distribution Date on which such Damages Payment Date shall occur, or, if
Debentures have been issued in exchange for Preferred Securities, each Person
who is a Holder of Debentures on the record date with respect to the Interest
Payment Date on which such Damages Payment Date shall occur.
REGISTRATION DEFAULT: As defined in Section 4 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company and
the Trust that covers any of the Transfer Restricted Securities pursuant to
the provisions of this Agreement, including the Prospectus included therein,
all amendments and supplements thereto (including post-effective amendments)
and all exhibits and material incorporated by reference therein.
SHELF REGISTRATION STATEMENT: As defined in Section 3 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: The Preferred Securities and the
Guarantee, the Debentures and the shares of Common Stock into which the
Preferred Securities and the Debentures are convertible, upon original
issuance thereof, and at all times subsequent thereto, until in the case of
any such securities or shares, (a) the date on which it has been registered
effectively pursuant to the Securities Act and disposed of in accordance with
the Registration Statement relating to it, (b) the date on which either such
Preferred Securities and Guarantee, Debentures or the shares of Common Stock
issued upon conversion of such Preferred Securities and Debentures are
distributed to the public pursuant to Rule 144 (or any similar provisions
then in effect) or are salable pursuant to Rule 144(k) promulgated by the
Commission pursuant to the Securities Act or (c) the date on which it ceases
to be outstanding.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A registration in
which securities of the Company are sold to an underwriter for reoffering to
the public.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 3. SHELF REGISTRATION
(a) SHELF REGISTRATION. The Company and the Trust agree to file with
the Commission as promptly as reasonably practicable after the Closing Date,
but in no event later
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than the Filing Date, a Registration Statement for an offering to be made on
a continuous basis pursuant to Rule 415 under the Act covering all of the
Transfer Restricted Securities (the "Shelf Registration Statement"). The
Company and the Trust shall use their best efforts to cause such Shelf
Registration Statement to become effective on or prior to 150 days after the
Closing Date. The Company and the Trust shall use their best efforts to keep
the Shelf Registration Statement discussed in this Section 3(a) continuously
effective, supplemented and amended as required by and subject to the
provisions of Sections 5(b) and (c) hereof to the extent necessary to ensure
that it is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 3(a), and to ensure
that it conforms with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of at least one year (as extended pursuant to Section
5(c)) following the Closing Date; provided, however, that the Company shall
not be required to maintain the effectiveness of such Shelf Registration
Statement upon the occurrence of the earlier of: (i) when all the Preferred
Securities covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement; (ii) when all Debentures issued
to Holders in exchange for the Preferred Securities have been sold pursuant
to the Registration Statement; (iii) when all shares issued upon conversion
of any such Preferred Securities or any such Debentures that have not been
sold pursuant to the Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement; and (iv) the date when Holders of the
Transfer Restricted Securities who are not Affiliates of the Trust or the
Company are able to sell all such securities immediately without restriction
pursuant to Rule 144(k) under the Act or any successor rate thereto.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH
THE SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 30 days after receipt of a
request therefor, such information specified in item 507 of Regulation S-K
under the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to include any of its Transfer
Restricted Securities in any Shelf Registration Statement or receive
Liquidated Damages pursuant to Section 4 hereof in the event that such Holder
fails to deliver such information within the specified period; provided,
however, that when such Holder furnishes such information to the Company,
such Holder shall be entitled to receive Liquidated Damages, if any, from the
date such Holder furnished such information and shall be entitled to include
its Transfer Restricted Securities in the Registration Statement.
Notwithstanding the foregoing, the Company shall not be required to file a
post-effective amendment or supplement to its Registration Statement or
Prospectus, as the case may be, to permit a Holder to include its Transfer
Restricted Securities after the Shelf Registration Statement has been
declared effective by the Commission more than once in any fiscal quarter.
Each Holder as to which any Shelf Registration Statement is being effected
agrees to furnish promptly to the Company all information required to be
disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading. A Holder that has
delivered to the Company the information required by this paragraph is herein
referred to as a "Participating Holder."
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Any Person that acquires Transfer Restricted Securities from a
Participating Holder (excluding any Transfer Restricted Securities that were
not identified on the Participating Holder's information furnished hereunder)
will be entitled to have such Transfer Restricted Securities included in the
Shelf Registration Statement so long as such transferee provides the Company
with updated information. If such transferee's updated information is
received on or prior to the 10th day prior to the effective time, such
transferee will be entitled to have such transferee's Transfer Restricted
Securities included in the Shelf Registration Statement at the effective
time. If such transferee's updated information is received subsequent to
such 10th day, the Transfer Restricted Securities covered by such information
will be included in the Shelf Registration Statement reasonably promptly
after receipt (which date of inclusion may be subsequent to the effective
time, subject to the prior paragraph).
(c) Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities shall have the right to sell their Transfer Restricted
Securities pursuant to an Underwritten Offering on one occasion.
SECTION 4. LIQUIDATED DAMAGES
If (i) any Shelf Registration Statement required by this Agreement is
not filed with the Commission on or prior to the date specified for such
filing in this Agreement (ii) any such Shelf Registration Statement has not
been declared effective by the Commission on or prior to the date specified
for such effectiveness in this Agreement, or (iii) any Shelf Registration
Statement required by this Agreement is filed and declared effective but
shall thereafter cease to be effective or fail to be usable for its intended
purpose without being succeeded immediately by a post-effective amendment to
such Registration Statement that cures such failure and that is itself
declared effective immediately (each such event referred to in clauses (i)
through (iii), a "REGISTRATION DEFAULT"), then the Company agrees to pay
liquidated damages to each Participating Holder of Transfer Restricted
Securities. With respect to Registration Defaults described in clause (i) or
(ii), the amount of liquidated damages shall be, for the first 90-day period
immediately following the occurrence of such Registration Default, an amount
equal to .25% of the liquidation preference or principal amount per Transfer
Restricted Security per annum and the amount of liquidated damages shall
increase to .50% thereafter. With respect to a Registration Default described
in clause (iii), if the Shelf Registration Statement ceases to be effective
for more than 90 days, whether or not consecutive during any 12-month period,
the amount of liquidated damages will be .50% of the liquidation preference
or principal amount per Transfer Restricted Security per annum from the 91st
day of the applicable 12-month period until such time as the Shelf
Registration Statement again becomes effective. If applicable, an equivalent
amount of liquidated damages per share (subject to adjustments in the event
of stock splits, stock recombinations, stock dividends and the like) of
Common Stock constituting Transfer Restricted Securities held by a
Participating Holder shall be paid as long as the Registration Default
continues until all Registration Defaults have been cured. Notwithstanding
anything to the contrary set forth herein, (1) upon filing of the Shelf
Registration Statement, in the case of (i) above, (2) upon the effectiveness
of the Shelf Registration Statement, in the case of (ii) above, or (3) upon
the filing of a prospectus supplement, a post-effective amendment to the
Shelf Registration Statement, an additional Registration Statement
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or any other document with the Commission that causes the Shelf Registration
Statement to again be declared effective or made usable in the case of (iii)
above, the liquidated damages payable with respect to the Transfer Restricted
Securities as a result of such clause (i), (ii), or (iii), as applicable,
shall cease.
All accrued liquidated damages shall be paid to the Global
Debentureholder or the Global Certificateholder by wire transfer of
immediately available funds or by federal funds check and to Holders of
Debentures, Preferred Securities or Common Stock by mailing checks to their
registered addresses on each Damages Payment Date. All obligations of the
Company set forth in the preceding paragraph that are outstanding with
respect to any Transfer Restricted Security at the time such security ceases
to be a Transfer Restricted Security shall survive until such time as all
such obligations with respect to such security shall have been satisfied in
full.
SECTION 5. REGISTRATION PROCEDURES
(a) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, the Company and the Trust shall comply with all the
provisions of Section 5(b) below and shall use its best efforts to effect
such registration to permit the sale of the Transfer Restricted Securities
being sold in accordance with the intended method or methods of distribution
thereof (as indicated in the information furnished to the Company pursuant to
Section 3(b) hereof), and pursuant thereto the Company and the Trust will
prepare and file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in accordance
with the intended method or methods of distribution thereof within the time
periods and otherwise in accordance with the provisions hereof.
(b) GENERAL PROVISIONS. In connection with any Registration
Statement and any related Prospectus required by this Agreement to permit the
sale or resale of Transfer Restricted Securities, the Company and the Trust
shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for
the period specified in Section 3 of this Agreement, as applicable. Upon
the occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable for resale
of Transfer Restricted Securities during the period required by this
Agreement, the Company shall file promptly an appropriate amendment to
such Registration Statement, (1) in the case of clause (A), correcting
any such misstatement or omission, and (2) in the case of clauses (A) and
(B), use its best efforts to cause such amendment to be declared effective
and such Registration Statement and the related Prospectus to become
usable for their intended purpose(s) as soon as practicable thereafter;
provided, however, that the Company may also file any other document with
the Commission that causes the Shelf Registration Statement to again be
declared effective or made usable for resale of Transfer Restricted
Securities.
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(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary
to keep the Registration Statement effective for the applicable period set
forth in Section 3 hereof, or such shorter period as will terminate when
all Transfer Restricted Securities covered by such Registration Statement
have been sold; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462,
as applicable, under the Act in a timely manner; and comply with the
provisions of the Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) advise the underwriter(s), if any, and Participating
Holders, if requested by such Persons, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request
by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Act
or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or sale
in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening of
any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Registration
Statement in order to make the statements therein not misleading, or that
requires the making of any additions to or changes in the Prospectus in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Company shall use its best efforts
to obtain the withdrawal or lifting of such order at the earliest
possible time;
(iv) furnish to the Initial Purchaser(s), each Participating
Holder and each of the underwriter(s) in connection with such sale,
if any, before filing with the Commission, a copy of the Registration
Statement and the Prospectus included therein in the form proposed to be
initially filed with the Commission, which documents will be subject to
the review and comment of such Holders and underwriter(s) in connection
with such sale, if any, for a period of at least five Business Days, and
the Company will not file any such Registration Statement or Prospectus
to which the Participating Holders of the Transfer Restricted Securities
covered by such Registration Statement or the
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underwriter(s) in connection with such sale, if any, shall reasonably
object within five Business Days after the receipt thereof. A
Participating Holder or underwriter, if any, shall be deemed to have
reasonably objected to such filing if such Registration Statement or
Prospectus, as applicable, as proposed to be filed, contains a material
misstatement or omission or fails to comply with the applicable
requirements of the Act;
(v) upon written request, provide copies of any document that
has been incorporated by reference into a Registration Statement or
Prospectus to the Initial Purchasers and Participating Holders;
(vi) make available at reasonable times for inspection by the
selling Holders, any managing underwriter participating in any disposition
pursuant to such Registration Statement and any attorney or accountant
retained by such selling Holders or any of such underwriter(s) in
connection with an Underwritten Offering, all financial and other records,
pertinent corporate documents and properties of the Company and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney or
accountant in connection with such Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and
prior to its effectiveness, subject to an undertaking to maintain the
confidentiality of such information;
(vii) if requested by any Participating Holders or the
underwriter(s) in connection with an Underwritten Offering, if any,
promptly include in any Registration Statement or Prospectus, pursuant
to a supplement or post-effective amendment if necessary, such information
as such Participating Holders and underwriter(s), if any, may reasonably
request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities, information with respect to the principal amount
of Transfer Restricted Securities being sold to such underwriter(s),
the purchase price being paid therefor and any other terms of the offering
of the Transfer Restricted Securities to be sold in such Underwritten
Offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as reasonably practicable after the
Company is notified of the matters to be included in such Prospectus
supplement or post-effective amendment;
(viii) furnish to each Participating Holder and each of the
underwriter(s) in connection with an Underwritten Offering, if any, without
charge, at least one copy of the Registration Statement, as declared
effective by the Commission;
(ix) deliver to each Participating Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus in the case of an Underwritten
Offering) and any amendment or supplement thereto as such Persons
reasonably may request; the Company hereby consents to the use (in
accordance with law) of the Prospectus and any amendment or supplement
thereto by each of the Participating Holders and each of the
underwriter(s), if any, in connection
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with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(x) enter into such agreements (including an underwriting
agreement) and make such representations and warranties and take all such
other actions in connection therewith in order to expedite or facilitate
the disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement as may be reasonably
requested by any underwriter in connection with any sale or resale pursuant
to any Registration Statement contemplated by this Agreement in connection
with an Underwritten Offering, and in such connection, the Company shall:
(A) furnish (or in the case of paragraphs (2) and (3), use
its best efforts to furnish) to each underwriter, if any, upon the
effectiveness of the Registration Statement:
(1) a certificate, dated the date of effectiveness of
the Shelf Registration Statement signed on behalf of the
Company by (x) the President and (y) the chief financial
officer of the Company and one of the Administrative
Trustees (as defined in the Declaration), confirming, as
of the date thereof, the matters set forth in Sections
6(cc), 9(a) and 9(b) of the Purchase Agreement and such
other similar matters as the underwriter(s) may
reasonably request;
(2) an opinion, dated the date of effectiveness of
the Registration Statement of counsel for the Company and
the Trust covering matters similar to those set forth in
paragraph (e) of Section 9 of the Purchase Agreement and
such other matter as the underwriters may reasonably
request, and in any event including a statement to the
effect that such counsel has participated in conferences
with officers and other representatives of the Company,
representatives of the independent public accountants for
the Company and have considered the matters required to
be stated therein and the statements contained therein,
although such counsel has not independently verified the
accuracy, completeness or fairness of such statements;
and that such counsel advises that, on the basis of the
foregoing, no facts came to such counsel's attention that
caused such counsel to believe that the Registration
Statement, at the time such Registration Statement or any
post-effective amendment thereto became effective,
contained an untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Registration Statement as of its date contained an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading. Without limiting the
foregoing, such counsel may state further that such
counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or
fairness of the financial statements, notes and schedules
and other financial data included in any Registration
Statement contemplated by this Agreement or the related
Prospectus; and
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(3) a customary comfort letter, dated as of the date of
effectiveness of the Registration Statement from the Company's
independent accountants, in the customary form and covering matters
of the type customarily covered in comfort letters to underwriters
in connection with primary underwritten offerings, and affirming
the matters set forth in the comfort letters delivered pursuant to
Section 9 of the Purchase Agreement, without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any sale or resale
pursuant to any Registration Statement the indemnification provisions
and procedures of Section 7 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by the underwriter(s), if any, to evidence
compliance with clause (A) above and with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Company pursuant to this clause (x).
The above shall be done at each closing under such underwriting or
similar agreement, as and to the extent required thereunder, and if at any
time the representations and warranties of the Company contemplated in (A)(1)
above cease to be true and correct, the Company shall so advise the
underwriter(s) promptly and if requested by such Persons, shall confirm such
advice in writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the Participating Holders, the
underwriter(s), if any, and their respective counsel in connection with
the registration and qualification of the Transfer Restricted Securities
under the securities or Blue Sky laws of such jurisdictions as the
Participating Holders or underwriter(s), if any, may reasonably request
and do any and all other acts or things necessary or advisable to enable
the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the applicable Registration Statement; PROVIDED,
HOWEVER, that the Company shall not be required to register or qualify
as a foreign corporation where it is not now so qualified or to take any
action that would subject it to the service of process in suits or to
taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so
subject;
(xii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Participating Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and to register such
Transfer Restricted Securities in such denominations and such names as
the Holders or the underwriter(s), if any, may reasonably request at
least two Business Days prior to such sale of Transfer Restricted
Securities;
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(xiii) use its best efforts to cause the disposition of the
Transfer Restricted Securities covered by the Registration Statement to
be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
or the underwriter(s), if any, to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
clause (xi) above;
(xiv) subject to Section 5(b)(i), if any fact or event
contemplated by Section 5(b)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain 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;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration Statement
covering such Transfer Restricted Securities and provide the Trustee
under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xvi) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter (including any "qualified independent underwriter")
that is required to be retained in accordance with the rules and
regulations of the NASD, and use its best efforts to cause such
Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the
Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
(xvii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the effective
date of the Registration Statement (as such term is defined in paragraph
(c) of Rule 158 under the Act);
(xviii) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee and the Holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its best
efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner;
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(xix) concurrently with the effectiveness of the Shelf
Registration Agreement, list all Common Stock covered by such
Registration Statement on any securities exchange on which the Common
Stock is then listed.
(c) RESTRICTIONS ON HOLDERS. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 5(b)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(b)(xiv) hereof, or until it is
advised in writing by the Company that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings
that are incorporated by reference in the Prospectus (the "Advice"). If so
directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of either such notice. In
the event the Company shall give any such notice, the time period regarding
the effectiveness of such Registration Statement set forth in Section 3, as
applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
5(b)(i) or Section 5(b)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by Section
5(b)(xiv) hereof or shall have received the Advice.
SECTION 6. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including without limitation: (i)
all registration and filing fees and expenses (including filings made by any
Holder with the NASD (and, if applicable, the reasonable fees and expenses of
any "qualified independent underwriter") and its counsel that may be required
by the rules and regulations of the NASD); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws;
(iii) all expenses of printing, messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company and one
designated counsel for Holders of Transfer Restricted Securities in
connection with an Underwritten Offering; (v) all application and filing fees
in connection with listing the Preferred Securities and the Guarantee,
Debentures and Common Stock on a national securities exchange pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and
the fees and expenses of any Person, including special experts, retained by
the Company.
12
(b) In connection with the Underwritten Offering, the Company will
reimburse the Holders of Transfer Restricted Securities being registered
pursuant to the Shelf Registration Statement for the reasonable fees and
disbursements of not more than one counsel, who shall be chosen by the
Holders of a majority in principal amount of the Transfer Restricted
Securities for whose benefit such Registration Statement is being prepared.
SECTION 7. INDEMNIFICATION
(a) The Company and the Trust agree to indemnify and hold harmless (i)
each Participating Holder and (ii) each person, if any, who controls (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act) any
Participating Holder (any of the persons referred to in this clause (ii)
being hereinafter referred to as a "controlling person") and (iii) the
respective officers, directors, partners, employees, representatives and
agents of any Participating Holder or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"INDEMNIFIED HOLDER"), to the fullest extent lawful, from and against any and
all losses, claims, damages, liabilities, judgments, actions and expenses
(including without limitation and as incurred, reimbursement of all
reasonable costs of investigating, preparing, pursuing or defending any claim
or action, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, including the reasonable fees and expenses of
counsel to any Indemnified Holder) directly or indirectly caused by, related
to, based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement, preliminary prospectus or Prospectus (or any amendment or
supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses are caused by an untrue statement or
omission or alleged untrue statement or omission that is made in reliance
upon and in conformity with information relating to any of the Participating
Holders furnished in writing to the Company by any of the Participating
Holders expressly for use therein. No indemnification shall be made under
this Section 7(a) if the Prospectus is used after notice is given by the
Company pursuant to 5(c) or with respect to a preliminary Prospectus if a
copy of the final Prospectus was not sent or given by the Indemnified Holder
or his agent if required by law to be so delivered and if such final
Prospectus had been delivered, such delivery would have completely cured the
defect giving rise to such loss, claim, damage, liability, judgment, action
or expense.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against
any of the Indemnified Holders with respect to which indemnity may be sought
against the Company and the Trust, such Indemnified Holder (or the
Indemnified Holder controlled by such controlling person) shall promptly
notify the Company and the Trust in writing (PROVIDED, that the failure to
give such notice shall not relieve the Company or the Trust of its
obligations pursuant to this Agreement). Such Indemnified Holder shall have
the right to employ its own counsel in any such action and the reasonable
fees and expenses of such counsel shall be paid, as incurred, by the Company
and the Trust. The Company and the Trust shall not, in connection with any
one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the
same general allegations or
13
circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any time
for such Indemnified Holders, which firm shall be designated by the Holders.
The Company and the Trust shall not be liable for any settlement of any such
action or proceeding effected without the Company's prior written consent,
which consent shall not be withheld unreasonably, and the Company and the
Trust agree to indemnify and hold harmless each Indemnified Holder from and
against any loss, claim, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Company.
The Company shall not, without the prior written consent of each Indemnified
Holder, settle or compromise or consent to the entry of judgment in or
otherwise seek to terminate any pending or threatened action, claim,
litigation or proceeding involving an Indemnified Holder unless such
settlement, compromise, consent or termination includes an unconditional
release of such Indemnified Holder from all liability arising out of such
action, claim, litigation or proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company and its directors,
officers, and any person controlling (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) the Company and the Trust, its
trustees and their officers, directors, partners, employees, representatives
and agents of each such person, to the same extent as the foregoing indemnity
from the Company and the Trust to each of the Indemnified Holders, but only
with respect to claims and actions based on information relating to such
Holder furnished in writing by such Holder expressly for use in any
Registration Statement or based on the fact that a final Prospectus was not
sent or given by the Holder or his agent if required by law to be so
delivered. In case any action or proceeding shall be brought against the
Company or its directors or officers or any such controlling person or the
Trust or its trustees or their directors or officers or any such controlling
person in respect of which indemnity may be sought against a Holder of
Transfer Restricted Securities, such Holder shall have the rights and duties
given the Company, and the Company and the Trust, such trustees, directors or
officers or such controlling person shall have the rights and duties given to
each Holder by the preceding paragraph. In no event shall any Holder be
liable or responsible for any amount in excess of the amount by which the
total received by such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the amount paid
by such Holder for such Transfer Restricted Securities and (ii) the amount of
any damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
(c) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) or Section 7(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to therein,
then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Holders, on the
other hand, from their sale of Transfer Restricted Securities or if such
allocation is not permitted by applicable law, the relative fault of the
Company, on the one hand, and of the Indemnified Holder, on the other hand,
in connection with the statements or omissions which resulted in such
14
losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of the Company and the
Trust, on the one hand, and of the Indemnified Holder, on the other hand,
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Indemnified Holder and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above shall
be deemed to include, subject to the limitations set forth in the second
paragraph of Section 7(a), any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any
action or claim.
The Company. the Trust and each Holder of Transfer Restricted Securities
agree that it would not be just and equitable if contribution pursuant to
this Section 7(c) were determined by pro rata allocation (even if the Holders
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities or expenses referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Holder or its related
Indemnified Holders shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total received by such Holder
with respect to the sale of its Transfer Restricted Securities pursuant to a
Registration Statement exceeds the sum of (A) the amount paid by such Holder
for such Transfer Restricted Securities PLUS (B) the amount of any damages
which such Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. 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. The Holders' obligations to
contribute pursuant to this Section 7(c) are several in proportion to the
respective principal amount of Transfer Restricted Securities and not joint.
SECTION 8. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company is not subject to Section 13 or 15(d) of the Securities Exchange Act
of 1934, to make available within a reasonable period of time, upon request
of any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such
Transfer Restricted Securities designated by such Holder or beneficial owner,
the information required by Rule 144A(d)(4) under the Act in order to permit
resales of such Transfer Restricted Securities pursuant to Rule 144A.
15
SECTION 9. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in customary underwriting arrangements
entered into in connection therewith and (b) completes and executes all
reasonable questionnaires, powers of attorney, and other documents required
under the terms of such underwriting arrangements.
SECTION 10. SELECTION OF UNDERWRITERS
For any Underwritten Offering, the investment banker or investment
bankers and manager or managers for any Underwritten Offering that will
administer such offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering and must be reasonably acceptable to the Company. Such
investment bankers and managers are referred to herein as the "underwriters."
SECTION 11. MISCELLANEOUS
(a) REMEDIES. Each Holder, in addition to being entitled to exercise
all rights provided herein, in the Indenture, the Purchase Agreement or
granted by law, including recovery of liquidated or other damages, will be
entitled to specific performance of its rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by them of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless (i) in the case
of Section 4 hereof and this Section 11(c)(i), the Company has obtained the
written consent of Holders of all outstanding Transfer Restricted Securities
and (ii) in the case of all other provisions hereof, the Company has obtained
the written consent of Holders of a majority of the then outstanding Transfer
Restricted Securities (on a fully diluted basis). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders of
Transfer Restricted Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Transfer Restricted Securities may be given by
Holders of a majority of the Transfer Restricted Securities (on a fully
converted basis) being sold by such Holders pursuant to such
16
Registration Statement; provided, however, that the provisions of this
sentence may not be amended, modified, or supplemented except in accordance
with the provisions of the immediately preceding sentence.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex, telecopier,
or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar (as defined in the Indenture) under the Indenture, with a copy to
the Registrar under the Indenture; and
(ii) if to the Company:
Tower Automotive, Inc.
0000 XXX Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxx
With a copy to:
Xxxxxxxx & Xxxxx
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: 000-000-0000
Attention: Xxxxxx X. Xxxxx
(iii) if to the Trust:
Tower Automotive Capital Trust
c/o Tower Automotive, Inc.
0000 XXX Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxx
With a copy to:
Xxxxxxxx & Xxxxx
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: 000-000-0000
Attention: Xxxxxx X. Xxxxx
17
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
receipt acknowledged, if telecopied; and on the next Business Day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(e) 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 limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; PROVIDED, HOWEVER, that
this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign acquired Transfer Restricted Securities directly from such Holder.
(f) 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.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(i) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability
of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted
with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TOWER AUTOMOTIVE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title: Vice President and Chief
Financial Officer
TOWER AUTOMOTIVE, INC., as Depositor For
TOWER AUTOMOTIVE CAPITAL TRUST
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title: Vice President and Chief
Financial Officer
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXX X. XXXXX & CO. INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
PAINEWEBBER INCORPORATED
/s/ Herald X. Xxxxx
---------------------------------------
By: Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
By: Herald X. Xxxxx
------------------------------------
Title: Managing Director
19
