SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.__)
Tower Automotive, Inc.
(Name of Issuer)
Common Stock, par value $.01 per share
(Title of class of securities)
891707 10 1
(CUSIP number)
John R. Leekley, General Counsel
MascoTech, Inc., 21001 Van Born Road
Taylor, Michigan 48180
313-274-7405
(Name, address and telephone number of person
authorized to receive notices and communications)
May 31, 1996
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1 (b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [X].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
(Page 1 of 8 Pages)
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CUSIP NO. 891707-10-1 13D Page 2 of 8 Pages
1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON
MascoTech, Inc.
38-2513957
2) CHECK THE APPROPRIATE BOX IF MEMBER OF A GROUP (A)[ ](B)[ ]
3) SEC USE ONLY
4) SOURCE OF FUNDS
00
5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E) [ ]
6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7) SOLE VOTING POWER
0
8) SHARED VOTING POWER
785,000
9) SOLE DISPOSITIVE POWER
785,000
10) SHARED DISPOSITIVE POWER
0
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
985,000
12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9%
14) TYPE OF REPORTING PERSON
CO
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CUSIP No. 891707-10-1 13D Page 3 of 8 Pages
ITEM 1. SECURITY AND ISSUER.
Common Stock, par value $.01 per share, of Tower Automotive, Inc.
("Tower"), 4508 IDS Center, Minneapolis, Minnesota 55402
ITEM 2. IDENTITY AND BACKGROUND.
Information Relating to MascoTech, Inc.
a) This Schedule is being filed by MascoTech, Inc., a Delaware
corporation ("MascoTech").
b) The principal executive and business offices of MascoTech are
located at 21001 Van Born Road, Taylor, Michigan 48180.
c) MascoTech is a manufacturer and supplier of metal-worked products
for the automotive industry.
Information Relating to the Executive Officers and Directors of MascoTech.
(a) and (b) (c)
Present Principal Occupation
Name and Business Address and Position with MascoTech
Richard A. Manoogian Chairman of the Board and Chief
21001 Van Born Road Executive Officer of MascoTech
Taylor, Michigan 48180
Peter A. Dow Private Investor; Director of
191 Ridge Road MascoTech
Grosse Pointe Farms, Michigan
48236
Roger T. Fridholm President of The St. Clair
The St. Clair Group Group; Director of MascoTech
15840 Lakeview
Grosse Pointe, Michigan 48230
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CUSIP No. 891707-10-1 13D Page 4 of 8 Pages
(a) and (b) (continued) (c) (continued)
Present Principal Occupation
Name and Business Address and Position with MascoTech
Eugene A. Gargaro, Jr. Vice President and Secretary of
21001 Van Born Road Masco Corporation; Director of
Taylor, Michigan 48180 MascoTech
Erwin H. Billig Director of MascoTech
21001 Van Born Road
Taylor, Michigan 48180
John A. Morgan Partner, Morgan Lewis Githens
767 Fifth Avenue & Ahn, investment bankers;
44th Floor Director of MascoTech
New York, New York 10153
Lee M. Gardner President and Chief
21001 Van Born Road Operating Officer of MascoTech
Taylor, Michigan 48180
Timothy Wadhams Vice President, Controller
21001 Van Born Road and Treasurer of MascoTech
Taylor, Michigan 48180
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CUSIP No. 891707-10-1 13D Page 5 of 8 Pages
General
d) MascoTech has not been and, to the best of MascoTech's knowledge,
none of the above-named persons has been convicted in a criminal proceeding
during the last five years.
e) MascoTech has not and, to the best of MascoTech's knowledge, none of
the above-named persons has, during the last five years, been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction
resulting in a judgement, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
f) To the best of MascoTech's knowledge, all of the above-named
individuals are citizens of the United States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On May 31, 1996, MascoTech sold all of the capital stock of its subsidiary
MascoTech Stamping Technologies, Inc. to a subsidiary of Tower and received in
exchange cash, a promissory note, 785,000 shares of Tower common stock and
warrants to purchase 200,000 shares of Tower common stock at a price of $18 per
share. The closing price of Tower common stock on May 31, 1996 as reported in
THE WALL STREET JOURNAL was $24-1/8 per share.
ITEM 4. PURPOSE OF TRANSACTION.
The 785,000 shares of Tower common stock and warrants to purchase 200,000
shares of Tower common stock at $18 per share were acquired by MascoTech as part
of the consideration received by MascoTech for the sale of all of the capital
stock of MascoTech's subsidiary MascoTech Stamping Technologies, Inc. MascoTech
presently intends to dispose of the Tower common stock held by it, including the
shares of common stock issuable upon exercise of the warrants, subject to market
conditions and other factors. Tower has filed a registration statement with the
Securities and Exchange Commission for an offering of Tower common stock, and
MascoTech intends to sell up to 500,000 shares of Tower common stock in connec-
tion with the offering by Tower.
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CUSIP No. 891707-10-1 13D Page 6 of 8 Pages
ITEM 5. INTEREST IN SECURITIES OF ISSUER.
None of the persons identified in response to Item 2 beneficially owns any
shares of Tower common stock.
As of May 31, 1996, MascoTech beneficially owned 985,000 shares of Tower
common stock, of which (i) 785,000 shares were held directly, and (ii) 200,000
shares were issuable upon exercise of warrants (at a purchase price of $18 per
share). Based on the number of shares of Tower common stock outstanding as
reported in Tower's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996, MascoTech may be deemed to be the beneficial owner of 8.9% of
Tower common stock (including shares issuable upon exercise of the warrant).
In connection with acquiring the shares of Tower common stock and warrants
therefor, MascoTech entered into a Registration Rights and Voting Agreement with
Tower (the "Registration Agreement"). Under the Registration Agreement,
MascoTech agreed to vote its shares of Tower common stock in the same manner as
Onex U.S. Investments, Inc., an Ontario corporation ("Onex"), votes its shares
of Tower common stock, and agreed to execute and deliver to Onex proxies to vote
MascoTech's shares of Tower common stock. Without MascoTech's express consent,
MascoTech's shares will not be voted for any matter which would change the
shares of Tower common stock held by MascoTech or Onex or convert or exchange
such shares into or for different securities, except that MascoTech's consent
would not be required if the shares held by MascoTech and Onex are changed
identically or converted into or exchanged for the same type of securities in
proportion to their respective holdings of Tower common stock, on terms consis-
tent with Tower's Certificate of Incorporation, as is reasonably determined by
Onex.
The Registration Agreement continues until the earliest of (i) the date
MascoTech or any affiliate ceases to own such shares of Tower common stock, (ii)
the date the MascoTech shares cease to be a "restricted security" under Rule
144, or (iii) May 31, 2006.
MascoTech may be considered to share voting power with Onex with respect
to the 785,000 shares of Tower common stock held by it. MascoTech has sole
power to dispose of or direct the disposition of 785,000 shares of Tower common
stock held by it.
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CUSIP No. 891707-10-1 13D Page 7 of 8 Pages
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Neither MascoTech nor, to the best of its knowledge, any of the individu-
als referred to in response to Item 2 above, have any material contracts,
arrangements, understandings or relationships with any person with respect to
any securities of Tower, except for the Stock Purchase Warrant and the Registra-
tion Agreement described in Item 5 above.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 99.a Registration Rights and Voting Agreement dated as of May 31,
1996 between Tower Automotive, Inc. and MascoTech, Inc.
Exhibit 99.b Stock Purchase Warrant.
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CUSIP No. 891707-10-1 13D Page 8 of 8 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
June 10, 1996
MASCOTECH, INC.
By /s/Timothy Wadhams
Timothy Wadhams
Vice President
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EXHIBIT INDEX
Exhibit
Exhibit 99.a Registration Rights and Voting Agreement dated as of May 31,
1996 between Tower Automotive, Inc. and MascoTech, Inc.
Exhibit 99.b Stock Purchase Warrant.
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Exhibit 99.a
REGISTRATION RIGHTS AND VOTING AGREEMENT
REGISTRATION RIGHTS AND VOTING AGREEMENT dated as of May 31, 1996
between Tower Automotive, Inc., a Delaware corporation (the "Company"), and
MascoTech, Inc., a Delaware corporation ("MascoTech").
WHEREAS, the parties to this Agreement are parties to a stock
purchase agreement dated as of the date hereof (the "Purchase Agreement")
pursuant to which the Company has agreed to issue certain shares of its Common
Stock, par value $.01 per share (the "Common Stock"), and certain warrants to
purchase Common Stock;
WHEREAS, the execution and delivery of this Agreement is a condition
to the closing under the Purchase Agreement; and
WHEREAS, the Company currently contemplates the public offering of
approximately 2,000,000 shares of its Common Stock in conjunction with the
public resale by certain of the Company's shareholders of approximately
2,500,000 shares of Common Stock (the "Current Offering").
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. The following terms, as used herein, have the
following meanings:
"1933 Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended and
the rules and regulations thereunder.
"Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in Detroit, Michigan are authorized by law to close.
"Commission" means the Securities and Exchange Commission.
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"Common Stock" shall have the meaning assigned to such term in the
first recital hereto.
"Current Offering" shall have the meaning assigned such term in the
third recital hereto.
"Exercise Period" shall have the meaning assigned such term in
Section 1A of the Stock Purchase Warrants.
"MascoTech Shares" means all shares of Common Stock owned by
MascoTech from time to time that are "restricted securities" within the
meaning of Rule 144 under the 1933 Act.
"Onex" means Onex U.S. Investments, Inc., an Ontario corporation.
"Organic Change" shall have the meaning assigned such term in Section
2B of the Stock Purchase Warrants.
"Person" means an individual, a corporation, a partnership, limited
liability company, an association, a trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Piggyback Registration" means a Piggyback Registration as defined in
Section 2.2.
"Purchase Agreement" shall have the meaning assigned such term in the
first recital hereto.
"Registrable Securities" means (i) any Common Stock issued or
issuable pursuant to the Purchase Agreement, (ii) any Common Stock or other
securities issued or issuable with respect to the Common Stock referred to in
clause (i) and (iii) the Warrant Shares. A Registrable Security will cease to
be a Registrable Security when it has been sold in an offering registered
under the 1933 Act or pursuant to Rule 144 (or any successor rule) adopted
thereunder.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in Section 2.1.
"Stock Purchase Warrants" means the warrant certificates evidencing
the Warrants.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
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"Warrants" means the stock purchase warrants issued pursuant to the
Purchase Agreement and any warrants issued in exchange for, in substitution of
or on transfer of such warrants.
"Warrant Shares" means the shares of Common Stock or other securities
issued or issuable upon exercise of the Warrants.
ARTICLE II
REGISTRATION RIGHTS
2.1 Participation in Current Offering. The Company shall file a
registration statement relating to the Current Offering prior to or promptly
following the closing under the Purchase Agreement and shall include in such
offering, if MascoTech so requests (such request to be given on or prior to
the date hereof), not less than 50% of the Registrable Securities. If
MascoTech requests the inclusion in such offering of more than 50% of the
Registrable Securities, the excess of the number of Registrable Securities
requested to be included over 50% shall be subject to reduction pursuant to
Section 2.4. Any Registrable Securities included in the Current Offering will
be offered on the same terms and conditions as the other shares of Common
Stock included in such offering.
2.2. Shelf Registration. (a) As soon as practicable following the
date hereof, the Company shall prepare and file with the Commission a shelf
registration statement (as amended and supplemented from time to time, the
"Shelf Registration Statement") relating to the Registrable Securities in
accordance with Rule 415 under the 1933 Act (or any similar rule that may be
adopted by the Commission) and will use its best efforts to cause such Shelf
Registration Statement to be declared effective no later than the later of:
(i) 90 calendar days following the date hereof and (ii) 120 calendar days
following the closing date of the Current Offering, and to keep such Shelf
Registration Statement continuously effective and in compliance with the 1933
Act and usable for resale or other disposition of such Registrable Securities
subject to Sections 2.2(c), 2.2(d) and 3.1(d) below, for the period commencing
on the date on which the Commission declares such Shelf Registration Statement
effective and ending on the earlier of (x) the expiration of the first 180
calendar-day period following the expiration of the Exercise Period relating
to the Warrants during which there is no Delay Period and (y) the first date
on which there are no Registrable Securities.
(b) If MascoTech so elects, such offering may be in the form of an
underwritten offering. MascoTech shall select the managing Underwriters and
any additional investment bankers and managers to be used in connection with
such offering, provided that such managing Underwriters and additional
investment bankers must be reasonably satisfactory to the Company.
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(c) MascoTech shall only be permitted to make sales of Registrable
Securities under the Shelf Registration Statement during the thirty (30)
business days beginning on the second business day following the date on which
the Company publicly announces its quarterly or annual earnings (the "Selling
Periods"); provided that MascoTech may, during such period of time which is
not a Selling Period, make sales of Registrable Securities under Shelf
Registration Statement, upon receiving the written consent of the Company
(such consent not to be unreasonably withheld).
(d) The Company shall have the right to refuse use of the Shelf
Registration Statement (a "Delay Period") for a reasonable length of time (but
in any case not to exceed 90 days) and from time to time, if the Company's
board of directors or senior management determine, with respect to the
advisability (as determined in good faith) of deferring public disclosure of
material corporate developments or other information, that use of the Shelf
Registration Statement and the disclosure required to be made therein would
not be in the best interests of the Company at such time; provided that there
shall not be more than one Delay Period in any calendar year. The Company
shall use its reasonable efforts to minimize the length of any Delay Period.
The Company shall provide written notice to MascoTech of the beginning and end
of each Delay Period.
2.3. Piggyback Registration. If the Company proposes to file a
registration statement under the 1933 Act with respect to an offering of
Common Stock (i) for the Company's own account (other than a registration
statement on Form S-4 or S-8 (or any substitute form that may be adopted by
the Commission)) or (ii) for the account of any of its holders of Common
Stock, then the Company shall give written notice of such proposed filing to
MascoTech as soon as practicable (but in no event less than 10 calendar days
before the anticipated filing date), and such notice shall offer MascoTech the
opportunity to register such number of Registrable Securities as MascoTech may
request on the same terms and conditions as the Company's or such holder's
Common Stock (a "Piggyback Registration").
2.4. Reduction of Offering. Notwithstanding anything contained
herein, if the managing Underwriter of an offering described in Section 2.3
delivers a written opinion to the Company that the size of the offering that
MascoTech, the Company and any other Persons intend to make is such that the
success of the offering would be materially and adversely affected, then the
amount of Registrable Securities to be offered for the account of MascoTech
shall be reduced to the extent necessary to reduce the total amount of
securities to be included in such offering to the amount recommended by such
managing Underwriter; provided that if securities are being offered for the
account of Persons other than the Company and MascoTech, then the proportion
by which the amount of such Registrable Securities intended to be offered for
the account of MascoTech is reduced shall not exceed the proportion by which
the amount of such securities intended to be offered for the account of such
other Persons is reduced.
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2.5. Third Party Registration Rights. Prior to the consummation of any
Organic Change, the Company shall make appropriate provision to insure that,
so long as this Agreement is in effect, MascoTech and each Person to whom the
registration rights granted hereby have been or may be assigned pursuant to
the terms hereof is granted registration rights equivalent to those granted
hereby with respect to all securities of any Person other than the Company
that: (i) as a result of the operation of Section 2B of the Stock Purchase
Warrants, may be issued or issuable upon exercise of the Warrants or (ii) as a
result of such Organic Change may be acquired or acquirable with respect to or
in exchange for Registrable Securities of the Company.
ARTICLE III
REGISTRATION PROCEDURES
3.1. Filings; Information. Whenever MascoTech requests that any
Registrable Securities be registered pursuant to Sections 2.1 or 2.3 or with
respect to the Shelf Registration Statement, the Company will use its best
efforts to effect the registration and the sale of such Registrable Securities
in accordance with the intended method of disposition thereof as quickly as
practicable and in connection with any such request and the Shelf Registration
Statement, the Company and MascoTech agree as follows:
(a) The Company will, prior to filing a registration statement or
prospectus or any amendment or supplement thereto, furnish to MascoTech and
each applicable managing Underwriter, if any, without charge, copies
thereof, and thereafter furnish to MascoTech and each such Underwriter, if
any, without charge, such number of copies of such registration statement,
each amendment and supplement thereto (in each case including all exhibits
thereto and documents incorporated by reference therein) and the prospectus
included in such registration statement (including each preliminary
prospectus) and such other documents as MascoTech or each such Underwriter
may reasonably request in order to facilitate the disposition of the
Registrable Securities.
(b) After the filing of the registration statement, the Company will
promptly notify MascoTech of any stop order issued or, to the knowledge of
the Company, threatened to be issued by the Commission and take all
reasonable actions required to prevent the entry of such stop order or to
remove it if entered at the earliest possible date.
(c) The Company will use its best efforts in cooperation with
MascoTech and the Underwriters or agents, as the case may be, to (i)
register or qualify the Registrable Securities for offer and sale under
such other securities or blue sky laws of such jurisdictions in the United
States as MascoTech reasonably requests and (ii) cause such Registrable
Securities to be registered with or approved by such other governmental
agencies or authorities
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as may be necessary by virtue of the business and operations of the Company
and do any and all other acts and things that may be reasonably necessary
or advisable to enable MascoTech to consummate the disposition of
Registrable Securities; provided that the Company will not be required to
(i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (c), (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction.
(d) The Company will immediately notify MascoTech, at any time when
a prospectus relating to the sale of the Registrable Securities is required
by law to be delivered in connection with sales by an Underwriter or
dealer, of the occurrence of any event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered
to the purchasers of such Registrable Securities, such prospectus will not
contain an untrue statement of a material fact or omit to state any
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 shall promptly make available to MascoTech and to
the Underwriters any such supplement or amendment. MascoTech agrees that,
upon receipt of any notice from the Company of the occurrence of any event
of the kind described in the preceding sentence, MascoTech will forthwith
discontinue the offer and sale of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until receipt
by MascoTech and the Underwriters of the copies of such supplemented or
amended prospectus and, if so directed by the Company, MascoTech will
deliver to the Company all copies, other than permanent file copies then in
MascoTech's possession, of the most recent prospectus covering such
Registrable Securities at the time of receipt of such notice.
(e) The Company will make available for inspection by MascoTech, any
Underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other professional retained by
MascoTech or any such Underwriter (collectively, the "Inspectors"), all
financial and other pertinent records, pertinent corporate documents and
properties of the Company (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees
to supply all information reasonably requested by any Inspectors in
connection with such registration statement. Records which the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless
(i) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such registration statement or (ii) the release
of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction. MascoTech agrees that information
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obtained by it as a result of such inspections shall be deemed confidential
and shall not be used by it for any purpose other than as described in this
paragraph (e) unless and until such information is made generally available
to the public. MascoTech further agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction,
give notice to the Company and allow the Company, at its expense, to
undertake appropriate action to prevent disclosure of the Records deemed
confidential.
(f) The Company will comply with the 1933 Act and the rules and
regulations of the Commission thereunder and the 1934 Act and the rules and
regulations of the Commission thereunder so as to permit the completion of
the distribution of the Registrable Securities pursuant to the registration
statement in accordance with the intended method or methods of distribution
contemplated in the prospectus relating thereto.
(g) Upon the request of MascoTech or the managing Underwriter or
agent, as the case may be, or if required by the rules, regulations or
instructions applicable to the registration form used by the Company, or by
the 1933 Act or by any other rules and regulations thereunder in connection
with the offering of Registrable Securities, the Company will prepare a
prospectus supplement that complies with the 1933 Act and the rules and
regulations of the Commission thereunder and that sets forth the aggregate
amount of the Registrable Securities being sold, the name or names of any
Underwriters or agents participating in the offering, the price at which
the Registrable Securities are to be sold, any discounts, commissions or
other items constituting compensation, and such other information as
MascoTech or the managing Underwriter or agent, as the case may be, and the
Company deem appropriate in connection with the offering of the Registrable
Securities prior to its being used or filed with the Commission.
(h) Upon the request of the Company, MascoTech will promptly
furnish in writing to the Company such information regarding the
distribution of the Registrable Securities as may be legally required in
connection with such registration as may be reasonably requested by the
Company.
(i) The Company will enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions as
are reasonably required in order to expedite or facilitate the disposition
of such Registrable Securities.
(j) The Company will furnish to MascoTech and to each Underwriter a
signed counterpart, addressed to MascoTech or such Underwriter, of (i) an
opinion or opinions of counsel to the Company and (ii) a comfort letter or
comfort letters from the Company's independent public accountants, each in
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customary form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as MascoTech or the
managing Underwriter reasonably requests.
(k) The Company will make generally available to its security
holders, as soon as reasonably practicable, an earnings statement covering
a period of 12 months, beginning within three months after the effective
date of the registration statement used to sell any Registrable Securities,
which earnings statement shall satisfy the provisions of Section 11(a) of
the 1933 Act and the rules and regulations of the Commission thereunder.
(l) The Company will use its best efforts to cause all such
Registrable Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed.
(m) MascoTech agrees to give the Company written notice of its
intent to sell any Registrable Securities under the Shelf Registration
Statement at least three business days prior to such sale. MascoTech
agrees to complete and execute all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of any underwritten offering in which MascoTech proposes to
participate.
3.2. Registration Expenses. In connection with the Shelf
Registration Statement and in connection with any Piggyback Registration
(including the Current Offering), the Company shall pay the following expenses
incurred in connection with such registration: (i) all registration and filing
fees, (ii) fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with
blue sky qualifications of the Registrable Securities), (iii) printing
expenses, (iv) fees and expenses incurred in connection with the listing of
the Registrable Securities, (v) fees and expenses of counsel and independent
certified public accountants for the Company and (vi) the reasonable fees and
expenses of any additional experts retained by the Company in connection with
such registration. MascoTech shall pay any underwriting fees, discounts or
commissions and transfer taxes attributable to the sale of Registrable
Securities and any out-of-pocket expenses of MascoTech.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
4.1. Indemnification by the Company. The Company agrees to
indemnify and hold harmless MascoTech, its officers and directors, and each
Person, if any, who controls MascoTech within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act from and against any and all
losses, claims, damages and
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liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus relating
to the Registrable Securities (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by 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 or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to
MascoTech or the plan of distribution furnished in writing to the Company by
or on behalf of MascoTech expressly for use therein; provided that the
foregoing indemnity agreement with respect to any (i) preliminary prospectus
shall not inure to the benefit of MascoTech if a copy of the most current
prospectus at the time of the delivery of the Registrable Securities was not
provided to the purchaser and such current prospectus would have cured the
defect giving rise to such loss, claim, damage or liability and was in fact
previously furnished to the MascoTech and the managing Underwriters, if any,
and (ii) prospectus shall not inure to the benefit of MascoTech if such untrue
statement or alleged untrue statement, omission or alleged omission is
corrected in an amendment or supplement to the prospectus and if having
previously been furnished by or on behalf of the Company with copies of the
prospectus as so amended or supplemented, MascoTech thereafter fails to
deliver such prospectus as so amended or supplemented at least one business
day prior to the sale of Registrable Securities to the person asserting such
loss, claim, damage or liability who purchases such Registrable Securities
which are the subject thereof. The Company also agrees to indemnify any
Underwriters of the Registrable Securities, their officers and directors and
each person who controls such Underwriters on substantially the same basis as
that of the indemnification of MascoTech provided in this Section 4.1.
4.2. Indemnification by MascoTech. MascoTech agrees to indemnify
and hold harmless the Company, its officers and directors, and each Person, if
any, who controls the Company within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing
indemnity from the Company to MascoTech, but only with reference to
information relating to MascoTech or the plan of distribution furnished in
writing by or on behalf of MascoTech expressly for use in any registration
statement or prospectus relating to the Registrable Securities, or any
amendment or supplement thereto, or any preliminary prospectus. MascoTech
also agrees to indemnify and hold harmless any Underwriters of the Registrable
Securities, their officers and directors and each person who controls such
Underwriters on substantially the same basis as that of the indemnification of
the Company provided in this Section 4.2.
4.3. Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to Section 4.1 or
Section 4.2, such Person (the "Indemnified Party") shall promptly notify the
Person against whom such
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indemnity may be sought (the "Indemnifying Party") in writing and the
Indemnifying Party, upon the request of the Indemnified Party, shall assume
the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Party and shall assume the payment of all
fees and expenses. In any such proceeding, any Indemnified Party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the Indemnifying
Party and the Indemnified Party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the Indemnified Party and the Indemnifying
Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for all such Indemnified Parties, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case
of any such separate firm for the Indemnified Parties, such firm shall be
designated in writing by the Indemnified Parties. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent, or if there be a final
judgment for the plaintiff, the Indemnifying Party shall indemnify and hold
harmless such Indemnified Parties from and against any loss or liability (to
the extent stated above) by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from all liability arising out of such proceeding.
4.4. Contribution. To the extent the indemnification provided for
in this Article IV is unavailable to an Indemnified Party in respect of any
losses, claims, damages or liabilities referred to herein, then in lieu of
such indemnification (i) as between the Company and any other selling
shareholders, on the one hand, and MascoTech, on the other hand, the Company,
such other selling shareholders and MascoTech shall contribute to such
aggregate losses, liabilities, claims, damages and expenses in such proportion
as is appropriate to reflect the relative benefits received by the Company and
any such selling shareholders on the one hand and MascoTech on the other from
the offering of the Securities, or if such allocation is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits but also the relative fault of the Company and any such
selling shareholders, on the one hand, and of MascoTech, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations and (ii) as between the Company, any other selling
shareholders and MascoTech, on the one hand, and the Underwriters or agents,
on the other hand, the Company, such selling shareholders,
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MascoTech and such Underwriters or agents shall contribute to such aggregate
losses, liabilities, claims, damages and expenses in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of the Company, any such selling shareholders and MascoTech, on the one
hand, and the Underwriters or agents, on the other hand, in connection with
the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company, such selling shareholders
and MascoTech and the Underwriters or agents shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company, such selling shareholders and MascoTech bear to the total
underwriting discounts and commissions received by the Underwriters or agents,
in each case as set forth in the prospectus. The relative fault of the
Company, any other selling shareholders, MascoTech and the Underwriters or
agents shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
the Company, such selling shareholders, MascoTech or such Underwriters or
agents and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and MascoTech agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation or by any other method of allocation that 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 or liabilities 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 Article IV,
MascoTech shall not be required to contribute any amount in excess of the
amount by which the net proceeds of the offering (before deducting expenses)
received by MascoTech exceeds the amount of any damages which MascoTech 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 1933 Act) shall
be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
ARTICLE V
VOTING OF THE MASCOTECH SHARES
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5.1 Voting of the MascoTech Shares. (a) MascoTech shall vote the
MascoTech Shares in the same manner as the Common Stock held by Onex is voted,
on the election of directors and on all other matters which are submitted to a
vote (or consent in lieu of voting) of the Company's stockholders, and for
this purpose, shall execute and deliver to Onex (or its designees) proxies to
vote the MascoTech Shares in the same manner as the Common Stock held by Onex
is voted. Without limiting the generality of the foregoing, to the extent
permitted by law, MascoTech, by its execution of this Agreement, irrevocably
constitutes and appoints Onex or its designee MascoTech's proxy to vote all of
the MascoTech Shares at any meeting of stockholders of the Company or to give
consent in lieu of voting on any matter which is submitted for a vote or
consent to the stockholders, provided that the MascoTech Shares are voted or
consent is given with respect to such shares in the same manner as with
respect to the Common Stock held by Onex. Notwithstanding anything to the
contrary contained in this Article V, the MascoTech Shares shall not, except
with the express consent of MascoTech be voted in favor of any resolution the
effect of which will be to change the MascoTech Shares or the Common Stock
held by Onex or convert or exchange the MascoTech Shares or the Common Stock
held by Onex into or for different securities unless in every such case the
MascoTech Shares and the Common Stock held by Onex are thereby changed
identically or converted into or exchanged for the same type of securities in
proportion to their respective holdings of Common Stock in each case on terms
consistent with the rights and preferences set forth in the Company's
Certificate of Incorporation, as is reasonably determined by Onex.
(b) The voting agreement set forth in this Article V shall continue
with respect to each MascoTech Share until the earlier of: (i) the date on
which MascoTech or any affiliate of MascoTech no longer owns such MascoTech
Share, (ii) the date on which such MascoTech Share ceases to be a "restricted
security" within the meaning of Rule 144 under the 1933 Act, or (iii) the
tenth anniversary of the date of this Agreement.
ARTICLE VI
MISCELLANEOUS
6.1. Rule 144. The Company covenants that it will file any reports
required to be filed by it under the 1933 Act and the 1934 Act and that it
will take such further action as MascoTech may reasonably request to the
extent required from time to time to enable MascoTech to sell Registrable
Securities without registration under the 1933 Act within the limitation of
the exemptions provided by Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission. Upon the request of MascoTech, the Company
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will deliver to MascoTech a written statement as to whether it has complied
with such reporting requirements.
6.2. Transfer of Registration Rights. None of the rights of
MascoTech under this Agreement shall be assignable by MascoTech without the
prior written consent of the Company.
6.3. Notices. All notices, requests and other communications to
either party hereunder shall be in writing (including telecopy or similar
writing) and shall be given,
If to the Company, to:
Tower Automotive, Inc.
6303 28th Street, S.E.
Grand Rapids, MI 49546
Telecopier: (616) 954-7554
Attention: Anthony A. Barone
If to MascoTech, to:
MascoTech, Inc.
21001 Van Born Road
Taylor, MI 48180
Telecopier: (313) 374-6227
Attention: President
With a copy to:
MascoTech, Inc.
21001 Van Born Road
Taylor, MI 48180
Telecopier: (313) 374-6229
Attention: General Counsel
or such other address or telecopier number as such party may hereafter specify
for that purpose by notice to the other party hereto. Each such notice,
request or other communication shall be effective when delivered at the
address specified in this Section 6.3.
6.4. Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or waived if, and
only if, such amendment or waiver is in writing and signed, in the case of an
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amendment, by MascoTech and the Company, or in the case of a waiver, by the
party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or future exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
6.5. Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Neither this Agreement nor any
provision hereof is intended to confer upon any Person other than the parties
hereto any rights or remedies hereunder.
6.6. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have
received a counterpart hereof signed by the other party hereto.
6.7. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersede all prior agreements, understandings and negotiations, both written
and oral, between the parties with respect thereto. No representation,
inducement, promise, understanding, condition or warranty not set forth herein
or therein has been made or relied upon by any of the parties hereto.
6.8. Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of Michigan, without regard to the
conflicts of law rules of such state.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
TOWER AUTOMOTIVE, INC.
By:/s/ Anthony Barone
Name:Anthony Barone
Title:
MASCOTECH, INC.
By:/s/ Keith N. Junk
Name: Keith N. Junk
Title:Vice President
Exhibit 99.b
The security represented by this certificate was originally issued
on May 31, 1996, and has not been registered under the Securities
Act of 1933, as amended (the "Securities Act"), and may not be
transferred without registration under the Securities Act or an
exemption from registration thereunder. Prior to any sales or
transfers of this certificate, except pursuant to an effective
registration statement under the Securities Act, the holder hereof
shall deliver to the issuer hereof an opinion of counsel,
satisfactory to the issuer, that such registration is not required.
TOWER AUTOMOTIVE, INC.
STOCK PURCHASE WARRANT
Date of Issuance: May 31, 1996 Certificate No. W-1
FOR VALUE RECEIVED, Tower Automotive, Inc., a Delaware corporation (the
"Company"), hereby grants to MascoTech, Inc. (the "Registered Holder") the
right to purchase from the Company 200,000 fully paid and non-assessable shares
of the Company's common stock, par value $0.01 per share ("Common Stock") at a
price per share of $18.00 (as adjusted from time to time in accordance herewith,
the "Exercise Price"). This Warrant is issued pursuant to the terms of the
Stock Purchase Agreement, dated as of May 31, 1996 (the "Purchase Agreement"),
between the Company and the Registered Holder. Certain capitalized terms used
herein are defined in Section 3 hereof. The amount and kind of securities
obtainable pursuant to the rights granted hereunder and the purchase price for
such securities are subject to adjustment pursuant to the provisions contained
in this Warrant.
For income tax purposes, the value of this Warrant on the date
hereof is $2.0 million.
This Warrant is subject to the following provisions:
Section 1A. Exercise of Warrant.
1A. Exercise Period. The Registered Holder may exercise, in whole
or in part (but not as to a fractional share of Common Stock), the purchase
rights represented by this Warrant at any time and from time to time after the
Date of Issuance to and including May 31, 2000 or, if such day is not a business
day, then on the next succeeding business day (the "Exercise Period").
1B. Exercise Procedure.
(i) This Warrant shall be deemed to have been exercised when the
Company has received all of the following items (the "Exercise Time"):
<PAGE>
(a) a completed Exercise Agreement, as described in paragraph 1C
below, executed by the Person exercising all or part of the purchase rights
represented by this Warrant (the "Purchaser");
(b) this Warrant; and
(c) a wire transfer of immediately available funds to the Company
in an amount equal to the product of the Exercise Price multiplied by the
number of shares of Common Stock being purchased upon such exercise (the
"Aggregate Exercise Price").
(ii) Certificates for shares of Common Stock purchased upon
exercise of this Warrant shall be delivered by the Company to the Purchaser
within five business days after the date of the Exercise Time. Unless this
Warrant has expired or all of the purchase rights represented hereby have been
exercised, the Company shall prepare a new Warrant, substantially identical
hereto, representing the rights formerly represented by this Warrant which have
not expired or been exercised and shall, within such five-day period, deliver
such new Warrant to the Person designated for delivery in the Exercise
Agreement.
(iii) The Common Stock issuable upon the exercise of this Warrant
shall be deemed to have been issued to the Purchaser at the Exercise Time, and
the Purchaser shall be deemed for all purposes to have become the record holder
of such Common Stock at the Exercise Time notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates
representing such Warrant Shares shall not then be actually delivered to the
Holder.
(iv) The issuance of certificates for shares of Common Stock upon
exercise of this Warrant shall be made without charge to the Registered Holder
or the Purchaser for any issuance tax in respect thereof or other cost incurred
by the Company in connection with such exercise and the related issuance of
shares of Common Stock. Each share of Common Stock issuable upon exercise of
this Warrant shall, upon payment of the Exercise Price therefor, be validly
issued, fully paid and nonassessable and free from all liens and charges with
respect to the issuance thereof.
(v) The Company shall not close its books against the transfer of
this Warrant or of any share of Common Stock issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely exercise
of this Warrant. The Company shall from time to time take all such action as
may be necessary to assure that the par value per share of the unissued Common
Stock acquirable upon exercise of this Warrant is at all times equal to or less
than the Exercise Price then in effect.
(vi) Notwithstanding any other provision hereof, if an exercise of
any portion of this Warrant is to be made in connection with a registered public
offering or the sale of the Company, the exercise of any portion of this Warrant
may, at the election of the holder hereof, be conditioned upon the consummation
of the public offering or sale of the Company in which case such exercise shall
not be deemed to be effective until the consummation of such transaction.
(vii) The Company shall at all times reserve and keep available out
of its authorized but unissued shares of Common Stock solely for the purpose of
issuance upon the exercise of the Warrants, such number of shares of Common
Stock issuable upon the exercise of all
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outstanding Warrants. All shares of Common Stock which are so issuable shall,
when issued, be duly and validly issued, fully paid and nonassessable and free
from all taxes, liens and charges. The Company shall take all such actions as
may be necessary to assure that all such shares of Common Stock may be so issued
without violation of any applicable law or governmental regulation or any
requirements of any domestic securities exchange upon which shares of Common may
be listed (except for official notice of issuance which shall be immediately
delivered by the Company upon each such issuance). The Company shall not take
any action which would cause the number of authorized but unissued shares of
Common Stock to be less than the number of such shares required to be reserved
hereunder for issuance upon exercise of the Warrant.
(viii) Upon any exercise of this Warrant, the Company may require
customary investment representations from the Registered Holder and the
Purchaser to assure that the issuance of the Common Stock hereunder shall not
require registration or qualification under the Securities Act or any state
securities laws.
1C. Exercise Agreement. Upon any exercise of this Warrant, the
Exercise Agreement shall be substantially in the form set forth in Exhibit I
hereto, except that if the shares of Common Stock are not to be issued in the
name of the Person in whose name this Warrant is registered, the Exercise
Agreement shall also state the name of the Person to whom the certificates for
the shares of Common Stock are to be issued, and if the number of shares of
Common Stock to be issued does not include all the shares of Common Stock
purchasable hereunder, it shall also state the name of the Person to whom a new
Warrant for the unexercised portion of the rights hereunder is to be delivered.
Such Exercise Agreement shall be dated the actual date of execution thereof.
1D. Fractional Shares. If a fractional share of Common Stock
would, but for the provisions of paragraph 1A, be issuable upon exercise of the
rights represented by this Warrant, the Company shall, within five business days
after the date of the Exercise Time, deliver to the Purchaser a check payable to
the Purchaser in lieu of such fractional share in an amount equal to the
difference between the Market Price of such fractional share as of the date of
the Exercise Time and the Exercise Price of such fractional share.
Section 2. Adjustment of Exercise Price and Number of Shares. In
order to prevent dilution of the rights granted under this Warrant, the Exercise
Price shall be subject to adjustment from time to time as provided in this
Section 2, and the number of shares of Common Stock obtainable upon exercise of
this Warrant shall be subject to adjustment from time to time as provided in
this Section 2.
2A. (i) Subdivision or Combination of Common Stock. If the
Company at any time after the date hereof (a) declares a dividend or makes a
distribution on its shares of capital stock payable in Common Stock or (b)
subdivides (by any stock split, stock dividend or recapitalization) its
outstanding shares of Common Stock into a greater number of shares, the Exercise
Price in effect immediately prior to such subdivision shall be proportionately
reduced and the number of shares of Common Stock obtainable upon exercise of
this Warrant shall be proportionately increased. If the Company at any time
combines (by reverse stock split or recapitalization) its outstanding shares of
Common Stock into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination shall be proportionately increased
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<PAGE>
and the number of shares of Common Stock obtainable upon exercise of this
Warrant shall be proportionately decreased.
(ii) Sale of Common Stock at Less than Market Price. In case the
Company shall issue or sell any Common Stock (other than Common Stock issued (a)
upon exercise of the Warrants, (b) pursuant to the Company's Independent
Director Stock Option Plan, the 1994 Key Employee Stock Option Plan or pursuant
to any similar Common Stock related employee or director compensation plan or
agreement of the Company approved by the Company's board of directors (the
"Board of Directors"), (c) upon exercise, exchange or conversion of any security
either issued on or prior to the date hereof or the issuance of which caused an
adjustment hereunder, or (d) pursuant to any registered public offering of
Common Stock) without consideration or for a consideration per share less than
95% of the Market Price (as defined below) per share of Common Stock, the
Exercise Price to be in effect after such issuance or sale shall be determined
by multiplying the Exercise Price in effect immediately prior to such issuance
or sale by a fraction, the numerator of which shall be the sum of (x) the number
of shares of Common Stock outstanding immediately prior to the time of such
issuance or sale multiplied by the Market Price per share of Common Stock
immediately prior to such issuance or sale and (y) the aggregate consideration,
if any, to be received by the Company upon such issuance or sale, and the
denominator of which shall be the product of the aggregate number of shares of
Common Stock outstanding immediately after such issuance or sale and the Market
Price per share of Common Stock immediately prior to such issuance or sale. In
case any portion of the consideration to be received by the Company shall be in
a form other than cash, the fair market value of such noncash consideration
shall be utilized in the foregoing computation. Such fair market value shall be
determined by the Board of Directors of the Company. The Registered Holders
shall be notified promptly of any consideration other than cash to be received
by the Company and furnished with a description of the consideration and the
fair market value thereof, as determined by the Board of Directors.
(iii) Setting Record Date for Issuance of Certain Rights, Options or
Warrants. In case the Company shall fix a record date for the issuance of
rights, options or warrants to the holders of its Common Stock or other
securities entitling such holders to subscribe for or purchase for a period
expiring within 60 days of such record date shares of Common Stock (or
securities convertible into shares of Common Stock) at a price per share of
Common Stock (or having a conversion price per share of Common Stock, if a
security convertible into shares of Common Stock) less than 95% of the Market
Price per share of Common Stock on such record date, the maximum number of
shares of Common Stock issuable upon exercise of such rights, options or
warrants (or conversion of such convertible securities) shall be deemed to have
been issued and outstanding as of such record date and the Exercise Price shall
be adjusted pursuant to paragraph 2A(ii) hereof, as though such maximum number
of shares of Common Stock had been so issued for an aggregate consideration
payable by the holders of such rights, options, warrants or convertible
securities prior to their receipt of such shares of Common Stock. In case any
portion of such consideration shall be in a form other than cash, the fair
market value of such noncash consideration shall be determined as set forth in
paragraph 2A(ii) hereof. Such adjustment shall be made successively whenever
such record date is fixed; and in the event that such rights, options or
warrants are not so issued or expire unexercised, or in the event of a change in
the number of shares of Common Stock to which the holders of such rights,
options or warrants are entitled (other than pursuant to adjustment provisions
therein comparable to those contained in this paragraph), the Exercise Price
shall again be adjusted to be the Exercise Price which would then be in effect
if such
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<PAGE>
record date had not been fixed, in the former event, or the Exercise Price which
would then be in effect if such holder had initially been entitled to such
changed number of shares of Common Stock, in the latter event.
(iv) Issuance of Certain Rights, Options or Warrants. In case the
Company shall issue rights, options (other than options issued pursuant to a
plan or agreement described in clause (b) of paragraph (ii)) or warrants
entitling the holders thereof to subscribe for or purchase Common Stock (or
securities convertible into shares of Common Stock) or shall issue convertible
securities, and the price per share of Common Stock of such rights, options,
warrants or convertible securities (including the aggregate amount of additional
consideration payable upon exercise, conversion or exchange of such rights,
options, warrants or convertible securities) is less than 95% of the Market
Price per share of Common Stock, the maximum number of shares of Common Stock
issuable upon exercise of such rights, options or warrants or upon conversion of
such convertible securities shall be deemed to have been issued and outstanding
as of the date of such sale or issuance, and the Exercise Price shall be
adjusted pursuant to paragraph 2A(ii) hereof as though such maximum number of
shares of Common Stock had been so issued for an aggregate consideration equal
to the aggregate consideration paid for such rights, options, warrants or
convertible securities and the aggregate consideration payable by the holders of
such rights, options, warrants or convertible securities prior to their receipt
of such shares of Common Stock. In case any portion of such consideration shall
be in a form other than cash, the fair market value of such noncash
consideration shall be determined as set forth in paragraph 2A(ii) hereof. Such
adjustment shall be made successively whenever such rights, options, warrants or
convertible securities are issued; and in the event that such rights, options or
warrants expire unexercised, or in the event of a change in the number of shares
of Common Stock to which the holders of such rights, options, warrants or
convertible securities are entitled (other than pursuant to adjustment
provisions therein comparable to those contained in this paragraph (iv)), the
Exercise Price shall again be adjusted to be the Exercise Price which would then
be in effect if such rights, options, warrants or convertible securities had not
been issued, in the former event, or the Exercise Price which would then be in
effect if such holders had initially be entitled to such changed number of
shares of Common Stock, in the latter event. No adjustment of the Exercise
Price shall be made pursuant to this paragraph to the extent that the Exercise
Price shall have been adjusted pursuant to paragraph 2A(iii) upon the setting of
any record date relating to such rights, options, warrants or convertible
securities and such adjustment fully reflects the number of shares of Common
Stock to which the holders of such rights, options, warrants or convertible
securities are entitled and the price payable therefor.
(v) Certain Distributions. In case the Company shall fix a record
date for the making of a distribution to holders of Common Stock (including any
such distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness, assets or
other property (other than cash dividends or distributions and dividends payable
in Common Stock or rights, options or warrants referred to in, and for which an
adjustment is made pursuant to, paragraph 2A(iii) hereof), the Exercise Price to
be in effect after such record date shall be determined by multiplying the
Exercise Price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the Market Price per share of Common Stock on
such record date, less the fair market value (determined as set forth in
paragraph 2A(ii) hereof) of the portion of the assets, other property or
evidence of indebtedness so to be distributed which is applicable to one share
of Common Stock, and the denominator of which shall be such Market Price per
share of Common Stock. Such adjustments shall be made successively
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<PAGE>
whenever such a record date is fixed; and in the event that such distribution is
not so made, the Exercise Price shall again be adjusted to be the Exercise Price
which would then be in effect if such record date had not been fixed.
(vi) Extraordinary Dividends. In case in any fiscal quarter (a)
the Company shall distribute to all holders of shares of Common Stock any cash
dividend or distribution or (b) the Company or any of its subsidiaries shall
purchase Common Stock pursuant to a tender offer for a purchase price per share
greater than 105% of the Market Price per share of Common Stock on the date of
purchase, and during such fiscal quarter the sum of (x) all such cash dividends
or distributions, plus (y) the aggregate amount by which the fair market value
(determined as set forth in paragraph 2A(ii) hereof) of the consideration paid
in purchasing all such shares of Common Stock exceeds the Market Price per share
of Common Stock on the date of such purchase multiplied by the number of shares
of Common Stock so purchased, shall exceed the greater of (x) 2.5% of the Market
Price per share of Common Stock multiplied by the number of shares of Common
Stock outstanding at the earlier of the record date for the latest such cash
dividend or distribution or tender offer or the date at which the Company shall
have publicly announced such dividend or distribution or tender offer and (y)
the amount per share of Common Stock of the next preceding quarterly cash
dividend not constituting an Extraordinary Dividend multiplied by the number of
shares of Common Stock outstanding at the record date for such quarterly cash
dividend, then the Exercise Price shall be adjusted on the date of such dividend
or distribution, or the termination of such tender offer, to a price determined
by multiplying the Exercise Price in effect immediately prior to the earlier of
such dates by a fraction, of which the numerator shall be the Market Price per
share of Common Stock on the earlier of such dates less the fair market value
(determined as set forth in paragraph 2A(ii) hereof) of the portion of such
distribution or excess amount which is applicable to one share of Common Stock
and of which the denominator shall be such Market Price per share of Common
Stock on the earlier of such dates.
2B. Reorganization, Reclassification, Consolidation, Merger or
Sale. Any recapitalization, reorganization, reclassification, consolidation,
merger, sale of all or substantially all of the Company's assets or other
transaction, in each case which is effected in such a way that the holders of
Common Stock are entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in exchange for
Common Stock is referred to herein as "Organic Change." Prior to the
consummation of any Organic Change, the Company shall make appropriate provision
to insure that each of the Registered Holders of the Warrants shall thereafter
have the right to acquire and receive, in lieu of or addition to (as the case
may be) the shares of Common Stock immediately theretofore acquirable and
receivable upon the exercise of this Warrant, such shares of stock, securities
or assets (including cash) as may be issued or payable with respect to or in
exchange for the number of shares of Common Stock immediately theretofore
acquirable and receivable upon exercise of this Warrant had such Organic Change
not taken place. The Company shall not effect any such consolidation, merger or
sale, unless prior to the consummation thereof, the successor entity (if other
than the Company) resulting from consolidation or merger or the entity
purchasing such assets assumes by written instrument, the obligation to deliver
to each such holder such shares of stock, securities or assets as, in accordance
with the foregoing provisions, such holder may be entitled to acquire.
2C. Notices.
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(i) Immediately upon any adjustment of the Exercise Price, the
Company shall give written notice thereof to the Registered Holder, setting
forth in reasonable detail and certifying the calculation of such adjustment.
(ii) The Company shall also give written notice to the Registered
Holders at least 20 days prior to the date on which any Organic Change,
dissolution or liquidation shall take place.
2D. Adjustments to Number of Shares. Upon each adjustment of the
Exercise Price as a result of the calculations made in paragraphs (ii), (iii),
(iv), (v) and (vi) of Section 2A, the number of shares for which this Warrant is
exercisable immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Exercise Price, that number of
shares of Common Stock obtained by (a) multiplying the number of shares covered
by this Warrant immediately prior to adjustment by the Exercise Price in effect
immediately prior to such adjustment of the Exercise Price and (b) dividing the
product so obtained by the Exercise Price in effect immediately after such
adjustment of the Exercise Price.
2E. Adjustments to Other Capital Stock. In the event that, at the
time as a result of the provisions of this Section 2, the holder of this Warrant
upon subsequent exercise shall become entitled to receive any shares of capital
stock other than Common Stock, the number of such other shares so receivable
upon exercise of this Warrant shall thereafter be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the
provisions contained herein.
Section 3. Definitions. The following terms have meanings set
forth below:
"Market Price" means as to any security the average of the closing
prices of such security's sales on all domestic securities exchanges on which
such security may at the time be listed, or, if there have been no sales on any
such exchange on any day, the average of the highest bid and lowest asked prices
on all such exchanges at the end of such day, or, if on any day such security is
not so listed, the average of the representative bid and asked prices quoted in
the NASDAQ System as of 4:00 P.M., New York time, on such day, or, if on any day
such security is not quoted in the NASDAQ System, the average of the highest bid
and lowest asked prices on such day in the domestic over-the-counter market as
reported by the National Quotation Bureau, Incorporated, or any similar
successor organization, in each such case averaged over a period of 30 days
consisting of the day as of which "Market Price" is being determined and the 29
consecutive business days prior to such day; provided that if such security is
listed on any domestic securities exchange the term "business days" as used in
this sentence means business days on which such exchange is open for trading.
If at any time such security is not listed on any domestic securities exchange
or quoted in the NASDAQ System or the domestic over-the-counter market, the
"Market Price" shall be the fair value thereof determined jointly by the Company
and the Registered Holder; provided that if such parties are unable to reach
agreement within a reasonable period of time, such fair value shall be
determined by an appraiser jointly selected by the Company and the Registered
Holder. The determination of such appraiser shall be final and binding on the
Company and the Registered Holder, and the fees and expenses of such appraiser
shall be paid by the Company.
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"Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
Section 4. No Voting Rights; Limitations of Liability. This Warrant
shall not entitle the holder hereof to any voting rights or other rights as a
stockholder of the Company. No provision hereof, in the absence of affirmative
action by the Registered Holder to purchase Common Stock, and no enumeration
herein of the rights or privileges of the Registered Holder shall give rise to
any liability of such holder for the Exercise Price of Common Stock acquirable
by exercise hereof or as a stockholder of the Company.
Section 5. Warrant Transferable. This Warrant shall not be sold,
assigned or otherwise transferred, in whole or in part, without the prior
written consent of the Company.
Section 6. Legend. The Common Stock issuable under this Warrant
shall be imprinted with the following legend:
The security represented by this certificate was originally issued
on ________, and has not been registered under the Securities Act of
1933, as amended (the "Securities Act"), and may not be transferred
without registration under the Securities Act or an exemption from
registration thereunder. Prior to any sales or transfers of this
certificate, except pursuant to an effective registration statement
under the Securities Act, the holder hereof shall deliver to the
issuer hereof an opinion of counsel, satisfactory to the issuer,
that such registration is not required.
Section 7. Warrant Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Registered Holder at
the principal office of the Company, for new Warrants of like tenor representing
in the aggregate the purchase rights hereunder, and each of such new Warrants
shall represent such portion of such rights as is designated by the Registered
Holder at the time of such surrender. The date the Company initially issues
this Warrant shall be deemed to be the "Date of Issuance" hereof regardless of
the number of times new certificates representing the unexpired and unexercised
rights formerly represented by this Warrant shall be issued. All Warrants
representing portions of the rights hereunder are referred to herein as the
"Warrants."
Section 8. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Registered Holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any certificate evidencing this Warrant, and in the case of any such loss, theft
or destruction, upon receipt of indemnity reasonably satisfactory to the Company
(provided that if the holder is a financial institution or other institutional
investor its own agreement shall be satisfactory), or, in the case of any such
mutilation upon surrender of such certificate, the Company shall (at its
expense) execute and deliver in lieu of such certificate a new certificate of
like kind representing the same rights represented by such lost, stolen,
destroyed or mutilated certificate and dated the date of such lost, stolen,
destroyed or mutilated certificate.
Section 9. Notices. Except as otherwise expressly provided herein,
all notices referred to in this Warrant shall be in writing and shall be
delivered personally, sent by reputable
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overnight courier service (charges prepaid) or sent by registered or certified
mail, return receipt requested, postage prepaid and shall be deemed to have been
given when so delivered, sent or deposited in the U.S. Mail (i) to the Company,
at its principal executive offices and (ii) to the Registered Holder of this
Warrant, at such holder's address as it appears in the records of the Company
(unless otherwise indicated by any such holder).
Section 10. Amendment and Waiver. Except as otherwise provided
herein, the provisions of the Warrants may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
Registered Holder.
Section 11. Descriptive Headings; Governing Law. The descriptive
headings of the several Sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. The corporation
laws of the State of Delaware shall govern all issues concerning the relative
rights of the Company and its stockholders. All other questions concerning the
construction, validity, enforcement and interpretation of this Warrant shall be
governed by the internal law of the State of Michigan, without giving effect to
any choice of law or conflict of law provision or rule (whether of the State of
Michigan or any other jurisdictions) that would cause the application of the
laws of any jurisdictions other than the State of Michigan.
* * * *
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed and attested by its duly authorized officers and to be dated the Date of
Issuance hereof.
TOWER AUTOMOTIVE, INC.
By/s/ Anthony Barone
Its___________________________
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EXHIBIT I
EXERCISE AGREEMENT
To: Dated:
The undersigned, pursuant to the provisions set forth in the
attached Warrant (Certificate No. W-____), hereby agrees to subscribe for the
purchase of ______ shares of the Common Stock covered by such Warrant and makes
payment herewith in full therefor at the price per share provided by such
Warrant.
Signature ___________________
Address ______________________
