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EXHIBIT 10.1
AMENDED AND RESTATED
MANAGEMENT AND CONSULTING AGREEMENT
This Management and Consulting Agreement, dated June 24, 1997, as
amended (this "Agreement"), between Oxford Automotive, Inc., a Michigan
corporation (the "Company"), and The Oxford Investment Group, Inc., a Michigan
corporation ("Consultant") is hereby amended and restated as of July 1, 2000.
BACKGROUND
A. The Company and Consultant are parties to that certain Management
and Consulting Agreement dated June 24, 1997, as amended on November 24, 1997
(the "Original Agreement"). The Company and Consultant desire to amend and
restate the Original Agreement in accordance with Section 11(d) of the Original
Agreement to provide for amendments to Sections 1, 3, 7, and 11(a) of the
Original Agreement.
B. Consultant previously provided consulting and management services to
BMG North America Limited ("BMG") pursuant to a Management and Consulting
Agreement dated October 25, 1995 (the "BMG Agreement") and to Lobdell Emery
Corporation ("Lobdell") pursuant to a Management and Consulting Agreement dated
January 10, 1997 (the "Lobdell Agreement" and together with the BMG Agreement
the "Subsidiary Agreements"). Each of BMG and Lobdell are subsidiaries of the
Company.
C. The Company desires to terminate the Subsidiary Agreements and to
enter into an agreement directly with Consultant to receive various consulting
and management services from Consultant for a period of at least five (5) years
beginning on and after the date hereof, and Consultant is willing to terminate
the Subsidiary Agreements and to provide such services to the Company.
D. Consultant is the owner of the trademarks (the "Marks") and the
federal registrations (and applications therefor) thereof listed in Schedule A,
attached to this Agreement and the Company desires to use these Marks in
connection with its business. Consultant will permit the Company to use the
Marks subject to the terms and conditions stated below.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective agreements hereinafter set forth, the Company and Consultant agree as
follows:
SECTION 1. Services to be Rendered.
Consultant will perform various consulting, management and advisory
services on behalf of the Company with respect to all matters relating to or
affecting the Company's business at its facilities at such reasonable times as
the Company may request. Consultant will perform the following specific services
(the "Consulting Services") upon request:
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(a) Consultant will meet with the Company's officers and/or
managers regarding operations and productivity and will review
treasury aspects of the Company's business;
(b) Consultant will attend meetings with the Company's customers;
(c) Consultant will review with members of management of the
Company the Company's financial plans and assist in analyzing
the Company's strategic plans and business alternatives;
(d) Consultant will advise and assist the Company from time to
time in identifying potential Subject Companies (as defined
below), will advise and assist the Company from time to time
in identifying strategic alternatives for the Company
including, as applicable, identifying Acquiring Companies (as
defined below), and will advise and assist the Company in
connection with any Acquisition Transaction or Disposition
Transaction (each, as defined below); and
(e) Consultant will render such other management and advisory
services as may from time to time be agreed upon by Consultant
and the Company.
The Company acknowledges and agrees that, in the performance of the
Consulting Services, Consultant is not obligated to make available to the
Company any investment or business opportunities that Consultant (including its
directors, officers and employees) becomes aware of in the ordinary course of
its business or as a result of Consultant's affiliation with certain other
entities, regardless of whether any of these entities is in the same line of
business as the Company. The Company recognizes that Consultant is a merchant
banking and business development company and receives substantial numbers of
proposed acquisition transactions each month. The Company acknowledges the right
of and consents to Consultant consummating any such transactions, in any
ownership structure as Consultant deems appropriate, including offering such
transaction to any affiliate, including the Company, if Consultant, in its sole
and complete discretion, determines such decision is appropriate or desirable.
For purposes of this Agreement: (a) the term "Acquisition Transaction"
means any acquisition (by merger, stock purchase, tender offer or otherwise) by
the Company (or a subsidiary of the Company) of another company or companies
(each, a "Subject Company") or the purchase by the Company (or a subsidiary of
the Company) of all or a portion of the assets, or more than 20% of the equity
securities, of one or more Subject Companies; provided however, that in no event
shall the term Acquisition Transaction mean any acquisition by the Company of
any Subject Company for Aggregate Consideration (as defined below) of less than
$2,500,000; and (b) the term Disposition Transaction means any acquisition (by
merger, stock purchase, tender offer or otherwise) of the Company (or any
subsidiary of the Company) by another company or companies (each, an "Acquiring
Company"), or the purchase by an Acquiring Company of all or a portion of the
assets, or more than 20% of the equity securities, of the Company (or a
subsidiary of the Company).
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SECTION 2. Location of Services.
It is understood that Consultant's services will be rendered largely at
Bloomfield Hills, Michigan, but that Consultant will, on reasonable request,
render such Consulting Services at such other places as mutually agreed upon by
the Company and Consultant.
SECTION 3. Fees.
The Company shall pay Consultant for the Consulting Services hereunder
and the License referred to in Section 5, the following cash fees:
(a) The Company shall pay Consultant a base management fee ("Base
Management Fee") of $2,000,000 annually, payable in equal
monthly installments of $166,667 on or before the first (1st)
day of each month on account of the prior month (with the
payment for any partial month pro rated accordingly).
(b) In addition to the Base Management Fee, the Company shall pay
to Consultant the following investment banking fees:
(i) A fee equal to 1.0% of the Aggregate Consideration
(as defined below) with respect to any Acquisition
Transaction consummated with a Subject Company
located in North America, such fee to be contingent
upon consummation of the Acquisition Transaction
and payable at the closing of such transaction;
(ii) A fee equal to 1.25% of the Aggregate Consideration
with respect to any Acquisition Transaction
consummated with a Subject Company located outside
of North America, such fee to be contingent upon
consummation of the Acquisition Transaction and
payable at the closing of such transaction; and
(iii) A fee equal to 0.75% of the Aggregate Consideration
(as defined below) with respect to any Disposition
Transaction consummated with an Acquiring Company,
such fee to be contingent upon consummation of the
Disposition Transaction and payable at the closing
of such transaction;
provided, however, that in no event shall the fee described in
Sections 3b(i), (ii), or (iii) above be less than $200,000.
(c) The Company and Consultant acknowledge that the Base
Management Fee has been determined based upon the Company's
current operations and both parties agree that such Base
Management Fee shall be adjusted from time to time, as
mutually acceptable to the Company and Consultant, to reflect
the increased size and
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complexity of the Company's operations as a result of any
Acquisition Transactions or any other transactions affecting
the Company's operations.
"Aggregate Consideration" shall mean the total proceeds and other
consideration paid and to be paid (which shall be deemed to include amounts paid
and to be paid into escrow) (a) with respect to an Acquisition Transaction, by
the Company to a Subject Company (including any of its affiliates or holders of
its securities), or (b) with respect to a Disposition Transaction, by an
Acquiring Company to the Company (including any of its affiliates or holders of
its securities); including, in either case: (i) cash; (ii) notes, securities and
other property valued at the fair market value thereof; (iii) deferred payments
or payments made in installments; (iv) amounts paid or payable under consulting
agreements, agreements not to compete or similar arrangements; (v) any possible
contingent payments, including payments determined by reference to the future
sales, earnings or other results of the Company, the Subject Company, or the
Acquiring Company, as applicable; (vi) with respect to an Acquisition
Transaction, the book value of all funded debt of the Subject Company or its
affiliates, the payment of which is assumed by the Company; and (vii) with
respect to a Disposition Transaction, the book value of all funded debt of the
Company or its affiliates, the payment of which is assumed by the Acquiring
Company.
For purposes hereof, (i) any such consideration in the form of
securities which are publicly traded prior to the closing (the "Closing") of the
Acquisition Transaction or the Disposition Transaction, as applicable, shall be
valued at the average of their closing price for the twenty (20) trading days
prior to the Closing, (ii) any such consideration in the form of securities
which are not publicly traded prior to the Closing, but become publicly traded
after the Closing, shall be valued at the quoted when issued price of such
securities on the day prior to the Closing (if such quotes are available), and
(iii) any other consideration shall be valued at the fair market value thereof
as determined in good faith by the Company and Consultant, or in the absence of
agreement, by an independent arbiter mutually satisfactory to both parties. In
determining the Aggregate Consideration involving deferred payments or other
consideration, such consideration shall be valued at its fair market value on
the date of Closing and the fee attributable thereto shall be paid at Closing.
No fee payable to any other financial advisor or other person by the
Company in connection with the subject matter of this Agreement shall reduce or
otherwise affect any fee payable to Consultant hereunder.
SECTION 4. Expenses.
In addition to any fees that may be payable to Consultant hereunder,
the Company agrees, from time to time upon request, to reimburse Consultant for
Consultant's out-of-pocket expenses incurred in connection with providing the
Consulting Services hereunder, including reasonable fees and disbursements of
Consultant's attorneys.
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SECTION 5. Trademark License.
Consultant hereby grants to the Company a limited-term, non-exclusive,
non-transferable license ("License") to use the Marks in connection with the
goods and services identified in the federal registrations (and applications
therefor) referred to in Schedule A. This License is granted in accordance with
the following:
(a) This License is granted for the term of this Agreement, but
may be terminated by either party upon reasonable written
notice.
(b) The Company acknowledges that Consultant is the sole and
lawful owner of the Marks and their corresponding federal
registrations (and applications therefor) and agrees that it
will not challenge or contest Consultant's rights in and to
the Marks during the term of this Agreement or at any time
thereafter.
(c) The Company agrees that all of its use of the Marks, pursuant
to this Agreement, shall inure directly and solely to the
benefit of Consultant as the owner of the Marks and as
licensor.
(d) The Company agrees that, for purposes of this Agreement, the
method of manufacture of the products sold under the Marks,
the quality of the products sold under the Marks, the quality
of the services sold under the marks, and the display of the
Marks shall conform to standards set by and be under the
control of Consultant. The Company, as licensee, further
agrees that it will not depart from the standards of quality
for products and services sold under the Marks during the term
of this Agreement.
(e) The Company acknowledges that Consultant, as licensor, is
entitled to inspect its manufacturing and business facilities
during business hours and upon reasonable notice, during the
term of this Agreement, for the sole purpose of determining
whether standards of quality for the products and services are
being maintained in a manner that is consistent and in keeping
with the terms of this Agreement.
(f) The Company agrees that it will not at any time apply for any
registration of any copyright, trademark, service mark or
other designation which would affect the ownership of the
Marks licensed herein, or file any document with any
governmental authority or take any action which would affect
the ownership of the Marks licensed herein or aid or abet
anyone in doing so.
(g) The Company will manufacture, promote, distribute and sell
products and services pursuant to this Agreement in a legal
and ethical manner, in accordance with industry practices and
custom, and in accordance with the intent of this Agreement.
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(h) Upon termination of this Agreement, the Company agrees to
discontinue immediately all use of the Marks and shall, at the
discretion of Consultant, either destroy or turn over to
Consultant any materials, including brochures, containers,
labels or other materials bearing the Marks.
SECTION 6. Indemnification.
The Company shall and hereby agrees to indemnify, defend and hold
harmless Consultant and its affiliates, the respective directors, officers,
agents and employees of Consultant and its affiliates and each other person, if
any, controlling Consultant or any of its affiliates, to the full extent lawful,
from and against any and all liabilities or claims arising out of or in
connection with Consultant's performance of its duties and obligations
hereunder, and will reimburse Consultant and any other party entitled to be
indemnified hereunder for all expenses (including attorneys' fees) as they are
incurred by Consultant or any other such indemnified party in connection with
investigating, preparing or defending any such action or claim. The Company will
not, however, be responsible for any liabilities or claims which are finally
judicially or otherwise determined to have resulted primarily from Consultant's
willful misconduct or gross negligence. The foregoing provisions shall be in
addition to any rights that Consultant or any indemnified party may have at
common law or otherwise, including, but not limited to, any right to
contribution.
The Company further agrees that it will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification may be sought hereunder (whether or not
Consultant or any indemnified party is an actual or potential party to such
claim, action, suit or proceeding) unless such settlement, compromise or consent
includes an unconditional release of Consultant and each other indemnified party
hereunder from all liability arising out of such claim, action, suit or
proceeding.
The provisions of this Section 6 shall survive the termination of this
Agreement.
SECTION 7. Term.
This Agreement will be for the period commencing on the date hereof and
terminating on December 31, 2005 ("Terminate Date"), provided, however, that
either party shall have given written notice to the other, not later than six
(6) months prior to the Termination Date, of its intention to terminate,
otherwise this Agreement will continue for additional one (1) year periods
thereafter. A party shall give notice of intent to terminate, during any such
one (1) year period, not later than December 1 of each such year in which event
this Agreement will terminate on December 31 of such year.
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SECTION 8. Status of Consultant.
This contract calls for the performance of the services of Consultant
as an independent contractor with control over and responsibility for its own
operations and employees, and neither Consultant nor its employees will be
considered officers, employees or agents of the Company for any purpose.
SECTION 9. Confidentiality.
During the term of this Agreement, Consultant shall not and shall not
permit any of its agents or employees to use or disclose to any person or
organization, except as required by law or under court order, any trade secrets
or other confidential information relating to the Company that Consultant may
acquire during the performance of its services without the prior written consent
of the Company. However, the foregoing restrictions shall not apply to the
extent that such information (i) is publicly available or became publicly
available through an action or fault of Consultant, (ii) was already in
Consultant's possession or known to Consultant prior to being disclosed or
provided to Consultant by the Company, or (iii) was or is obtained by the
Company from a third party which is not otherwise bound by a contractual, legal
or fiduciary obligation of confidentiality to the Company with respect to such
information.
SECTION 10. Disputes.
Any dispute or claim involving this Agreement shall be exclusively resolved by
arbitration conducted in accordance with the Rules of the American Arbitration
Association ("AAA") as specified below. Any dispute or claim shall be deemed
waived unless arbitration is demanded within ninety (90) days of the occurrence
giving rise to the dispute or claim. All arbitrations shall be conducted by a
single arbitrator selected from the commercial panel of the Detroit office of
AAA. Arbitrations shall be conducted in Oakland County, Michigan, unless the
Company and Consultant otherwise agree in writing. All arbitrations shall comply
with the following procedures:
(a) The arbitration proceeding shall be limited to presentations
by each party of written argument and exhibits of not more
than thirty (30) pages. Each party shall have two (2) hours to
present its position, and the arbitrator shall render his or
her written decision within fifteen (15) days of the
conclusion of the proceeding;
(b) Any arbitration proceeding shall be commenced within thirty
(30) days of the date in which a party files a claim for
arbitration with AAA. Each party shall serve copies of all
correspondence, filings or submissions upon all other parties
at the same time originally made;
(c) The arbitrator shall have no authority to change any provision
of this Agreement; the arbitrator's sole authority shall be to
interpret or apply the provisions of this Agreement; and
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(d) The decision of the arbitrator shall be final and binding, and
judgment shall enter on the arbitrator's findings in a court
of competent jurisdiction in accordance with MCLA ss.
600.5001, et seq., MSA ss. 27A.5001, et seq.
SECTION 11. Miscellaneous.
(a) Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be by personal delivery or by mail,
addressed to the Company, at 1250 Stephenson Highway, Troy, Michigan 48083 and
addressed to Consultant at 40900 Woodward Avenue, Suite 130, Bloomfield Hills,
Michigan 48304. The addresses so indicated for any party may be changed by
similar written notice.
(b) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be treated as an original but all of which,
collectively, shall constitute a single instrument.
(c) Construction. This Agreement shall be construed in accordance with
the laws of the State of Michigan without regard to its rules regarding choice
of law. The titles of the Sections have been inserted as a matter of convenience
and reference only and shall not control or affect the meaning or construction
of this Agreement.
(d) Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all other agreements or arrangements, oral
and written, between the parties hereto relating to the matters set forth
herein. No representations, inducement, agreement, amendment, promise or
understanding will have any force or effect unless the same is in writing and
validly executed by the parties hereto. Notwithstanding the forgoing, Schedule A
may be modified from time to time by Consultant to reflect any additional Marks
that shall be subject to this Agreement and the registrations (and applications
therefor) relating to such Marks.
(e) Assignment. This Agreement may not be assigned by any party hereto
without the written consent of the other party.
[this space intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written above.
OXFORD AUTOMOTIVE, INC.
By: /s/ Steven M. Abelman
----------------------------------
Its: President and CEO
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THE OXFORD INVESTMENT GROUP, INC.
By: /s/ Selwyn Isakow
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Its: Chairman
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SCHEDULE A
(AS AMENDED July 1, 2000)
<TABLE>
<CAPTION>
MARK COUNTRY APPLICATION SERIAL NO. REGISTRATION NO.
---- ------- ----------------------- ----------------
<S> <C> <C> <C>
OXFORD AUTOMOTIVE United States 75/270,834
OXFORD AUTOMOTIVE United States 75/270,833
and Design
OXFORD AUTOMOTIVE Canada 857,709
OXFORD AUTOMOTIVE Canada 857,708
and Design
OXFORD AUTOMOTIVE Mexico (English) 309501 561907
(Int'l Cl. 6)
OXFORD AUTOMOTIVE Mexico (English) 309503 564291
and Design (Int'l Cl. 6)
OXFORD AUTOMOTIVE Mexico (English) 309502
(Int'l Cl. 42)
OXFORD AUTOMOTIVE Mexico (English) 309504 564292
and Design (Int'l Cl. 42)
OXFORD AUTOMOTRIZ Mexico (Spanish) 310728 564839
(Int'l Cl. 6)
OXFORD AUTOMOTRIZ Mexico (Spanish) 310729
(Int'l Cl. 42)
OXFORD AUTOMOTRIZ Mexico (Spanish) 310730 564484
and Design (Int'l Cl. 6)
OXFORD AUTOMOTRIZ Mexico (Spanish) 310731 565433
and Design (Int'l Cl. 42)
OXFORD AUTOMOTIVE France 97/696967 97 696 967
OXFORD AUTOMOTIVE France 97/696966 97 696 966
and Design
OXFORD AUTOMOTIVE Germany 397 47 065.7 397 47 065
OXFORD AUTOMOTIVE Germany 397 47 066.5 397 47 066
and Design
</TABLE>
A-1
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<TABLE>
<CAPTION>
MARK COUNTRY APPLICATION SERIAL NO. REGISTRATION NO.
---- ------- ---------------------- ----------------
<S> <C> <C> <C>
OXFORD AUTOMOTIVE Spain 2.116.950
(Int'l Cl. 6)
OXFORD AUTOMOTIVE Spain 2.116.952
and Design (Int'l Cl. 6)
OXFORD AUTOMOTIVE Spain 2.116.951
(Int'l Cl. 42)
OXFORD AUTOMOTIVE Spain 2.116.953
and Design (Int'l Cl. 42)
OXFORD AUTOMOTIVE United Kingdom 2147070
and OXFORD AUTOMOTIVE
and Design
OXFORD AUTOMOTIVE Italy TO97C002601
OXFORD AUTOMOTIVE Italy TO97C002600
and Design
OXFORD AUTOMOTIVE Denmark 0222/1999
OXFORD AUTOMOTIVE Denmark 02223/1999
and Design
OXFORD AUTOMOTIVE Venezuela 16000-98
OXFORD AUTOMOTRIZ Venezuela 15999-98
</TABLE>
A-2
