REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of the
7th day of April, 1997, by and among Noble International, Ltd., a Michigan
corporation (the "Company"), Utilase, Inc., a Michigan corporation ("Utilase"),
Xxxxx Xxxxxx Xxxxxxxxx, III, and Xxxxxxx X. Xxxx. Utilase, Xx. Xxxxxxxxx, and
Xx. Xxxx are referred to collectively in this Agreement as the "Shareholders."
Background
A. Xx. Xxxxxxxxx currently holds shares of the Company's Common
Stock.
B. Xx. Xxxx has the right to receive shares of the Company's
Common Stock pursuant to the terms of a Non-Compete Agreement
to be entered into upon the consummation of the transactions
contemplated by the Stock Purchase Agreement among the
Company, Utilase, Inc., a Michigan corporation ("Utilase") and
the shareholders of Utilase, dated as of April 7, 1997 (the
"Purchase Agreement").
C. Utilase may receive shares of the Company's Common Stock
pursuant to the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth in this Agreement, the parties to this Agreement agree as follows:
Agreement
Article I
Registration Rights.
1.1 Definitions. As used in this Agreement, the following terms shall
have the meanings set forth below:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Commission" shall mean the Securities and Exchange
Commission.
(c) "Common Stock" shall mean the Company's common stock.
(d) "1934 Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, all as the same shall be
in effect from time to time.
(e) The terms "register," "registered" and "registration"
shall refer to a registration effected by preparing and filing a registration
statement in compliance with the 1933 Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
(f) "Registration Expenses" shall mean all expenses incurred
in effecting any registration pursuant to this Agreement, including, without
limitation, all registration, qualification, and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company and any
underwriter, blue sky fees and expenses, and expenses of any regular or special
audits incident to or required by any such registration, but shall not include
Selling Expenses (as defined in Section 1.4) and fees and disbursements of
counsel for the Shareholders (but excluding the compensation of regular
employees of the Company, which shall be paid in any event by the Company).
(g) "Rule 144" shall mean Rule 144 as promulgated by the
Commission under the 1933 Act, as such Rule may be amended from time to time.
(h) "1933 Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations thereunder, all as the same shall be in
effect from time to time.
(i) "Shareholders' Shares" shall mean any Common Stock now
owned or hereafter acquired by the Shareholders; provided, however, that the
Shareholders' Shares shall not include any Common Stock which previously have
been registered or which have been sold to the public either pursuant to a
registration statement or Rule 144.
1.2 Requested Registration.
(a) Request for Registration. If the Company shall receive
from the Shareholders a joint written request, not earlier than six months after
the effective date of the first registration statement filed by the Company
covering any underwritten offering of any of its securities to the general
public, that the Company register at least 50% of the Shareholders' Shares
pursuant to this Section 1.2(a) ("Registration Request"), then the Company shall
use its best efforts to effect, as soon as practicable and in any event within
120 days of receipt of the Registration Request, registration (including,
without limitation, filing post-effective amendments, appropriate registration
or qualifications under applicable blue sky or other state securities laws, and
appropriate compliance with the 1933 Act) as would permit the sale and
distribution of the number of the Shareholders' Shares that are specified in the
Registration Request. The registration statement filed pursuant to a
Registration Request may include securities of the Company being sold for the
account of the Company, but only to the extent that such inclusion will not have
an adverse effect on the Shareholders' ability to sell or distribute the full
amount of Shareholders' Shares that are included in such registration statement.
(b) Limitations. Notwithstanding Section 1.2(a), the Company
shall not be obligated to effect a registration pursuant to this Article I (i)
during the period starting with the date of the Company's filing of, and ending
on a date 90 days following the effective date of, any registration statement
pertaining to an underwritten public offering of securities for the account of
the Company; provided, however, that the Company must be actively employing in
good faith its best efforts to cause such registration statement to become
effective, (ii) if the Shareholders do not
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request that such offering be underwritten pursuant to a firm commitment by
underwriters selected by the Shareholders (subject to the consent of the
Company, which consent shall not be unreasonably withheld), or (iii) if the
Company furnishes to the Shareholders a certificate signed by the President of
the Company stating that in the good faith judgment of a majority of the
independent members of the Board, it would be seriously detrimental to the
Company for such registration statement to be filed in the near future and that
it is, therefore, advisable to defer the filing of such registration statement,
then the Company shall have the right to defer such filing for a period of not
more than 60 days after receipt of the Registration Request.
(c) Procedures. If the Company shall request inclusion in any
registration pursuant to Section 1.2 of securities being sold for its own
account, the Shareholders shall offer to include such securities in the
underwriting and may condition such offer on its acceptance of the further
applicable provisions of this Article I. The Company shall, together with the
Shareholders, enter into an underwriting agreement in customary form with the
representative of the underwriter or underwriters selected for such underwriting
by the Shareholders, which underwriters are reasonably acceptable to the
Company. If the representative of the underwriters advises the Shareholders in
writing that marketing factors require a limitation on the number of shares to
be underwritten, the Company shall not limit the number of Shareholders' Shares
to be included in such registration in order to include shares held by holders
of the Common Stock other than the Shareholder or shares registered for the
Company's own account.
(d) Number of Requests. If all of the Shareholders' Shares
specified in the Registration Request to be registered are so registered, the
Shareholders shall not be entitled to make another Registration Request. If,
however, the requested registration is not consummated for any reason, or if not
all of the Shareholders' Shares specified in the Registration Request are not
registered, the Shareholders shall be entitled to make another Registration
Request pursuant to this Section 1.2.
1.3 Company Registration
(a) Registration. If the Company proposes to register any of
its securities either for its own account or the account of holders of Common
Stock other than the Shareholders, other than a registration relating solely to
employee benefit plans or a registration relating to a corporate reorganization
or a registration on any registration form that does not permit secondary sales,
the Company will promptly give to each Shareholder written notice thereof. Upon
the written request of the Shareholders given to the Company within 30 days
after the receipt of such notice by the Shareholders, the Company shall use its
best efforts to include in such registration (and any related registration or
qualification under blue sky laws or other compliance), except as set forth in
Section 1.3(b) below, and in any underwriting involved therein, all the
Shareholders' Shares specified in such request. The Shareholders may specify all
or any number of the Shareholders' Shares in such request. Any request by the
Shareholders under this Section 1.3(a) shall not be considered to be a request
for purposes of Section 1.2.
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(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise each Shareholder as a part of the written notice given
pursuant to Section l.3(a). In such event, the right of the Shareholders to
registration pursuant to this Section 1.3 shall be conditioned upon the
Shareholders' participation in such underwriting and the inclusion of the
Shareholders' Shares in the underwriting to the extent provided in this
Agreement. If the Shareholders propose to distribute Shareholders' Shares
through such underwriting, the Shareholders shall (together with the Company and
the other holders of securities of the Company with registration rights to
participate in such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected by the Company.
Notwithstanding any other provision of this Section 1.3, if the
representative of the underwriters advises the Company in writing that marketing
factors require a limitation on the number of shares to be underwritten or a
limitation on the number of shares that can be sold in a secondary offering, the
Company (i) shall not reduce the number of Shareholders' Shares to be included
in such registration in order to include any shares held by holders of the
Common Stock other than the Shareholders, and (ii) shall, if necessary, reduce
the number of Shareholders' Shares to be included in such registration by an
amount equal to the product of (A) the difference between the total number of
shares sought to be underwritten or sold by the Company and the Shareholders and
the number of shares allowed by the underwriters, and (B) the percentage of the
total number of shares sought to be underwritten or sold that are Shareholders'
Shares.
1.4 Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Sections 1.2, 1.3 and 1.5 of this Agreement and, in addition, reasonable fees of
one counsel for the Shareholders in the case of registrations pursuant to
Section 1.2 shall be borne by the Company. If, however, the Company bears the
Registration Expenses for any registration proceeding begun pursuant to a
Registration Request and subsequently withdrawn by the Shareholders, such
registration proceeding shall be counted as a Registration Request, unless (a)
such withdrawal is based upon material adverse information relating to the
Company that is different from the information publicly available to the
Shareholders or provided to the Shareholders by the Company at or prior to the
time of its Registration Request, or (b) the Shareholders bear the Registration
Expenses for such a registration proceeding. If the Shareholders so bear the
Registration Expenses, such registration shall not be treated as a Registration
Request for purposes of Section 1.2. All underwriting discounts and selling
commissions for the Shareholders incurred in connection with registrations
("Selling Expenses") relating to securities registered pursuant to this
Agreement shall be borne by the Shareholders pro rata on the basis of the number
of shares of securities so registered on their behalf.
1.5 Registration on Form S-3.
(a) The Company shall use its best efforts to qualify for
registration on Form S-3 or any comparable or successor form or forms. After the
Company has qualified for the use of Form S-3, if ever, in addition to the
rights contained in the foregoing provisions of this Article I, the
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Shareholders shall have the right to request registrations on Form S-3 of at
least 50% of the Shareholders' Shares (such requests shall be in writing and
shall state the number of shares of Shareholders' Shares to be disposed of and
the intended methods of disposition of such shares by the Shareholders).
(b) If a request complying with the requirements of Section
1.5(a) of this Agreement is delivered to the Company, the provisions of Section
l.2 of this Agreement shall apply to such registration.
1.6 Registration Procedures. In the case of each registration effected
by the Company pursuant to this Article I, the Company will keep the
Shareholders advised in writing as to the initiation of each registration and as
to the completion thereof. At its expense, the Company will use its best efforts
to take the actions set forth in this Section 1.6.
(a) The Company shall (i) prepare and file with the Commission
a registration statement and such amendments and supplements to such
registration statement as may be necessary to comply with the provisions of the
1933 Act with respect to the disposition of all securities covered by such
registration statement covering the Shareholders' Shares, and (ii) use its best
efforts to cause such registration statement to become and remain effective for
as long as shall be necessary to complete the distribution of the Shareholders'
Shares as requested; provided, however, that before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company
shall furnish to each Shareholder copies of all such documents proposed to be
filed, which documents shall be subject to the review of the Shareholders.
(b) The Company shall furnish to each Shareholder such number
of registration statements, prospectuses, and other documents incident thereto,
including any amendment of or supplement to the prospectus, in conformity with
the requirements of the 1933 Act, as each Shareholder from time to time may
reasonably request.
(c) The Company shall use its best efforts to register and
qualify the Shareholders' Shares covered by the Registration Request under such
other securities or Blue Sky laws of such jurisdictions as the Shareholders may
reasonably request and as shall be reasonably appropriate for the distribution
of the Shareholders' Shares covered by the registration statement.
(d) The Company shall (i) notify each Shareholder of the
happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or incomplete in light
of the circumstances then existing, and (ii) at the request of the Shareholders,
prepare and furnish to each Shareholder a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such shares, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be
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stated therein or necessary to make the statements therein not misleading or
incomplete in light of the circumstances then existing.
(e) The Company shall cause all Shareholders' Shares
registered pursuant to this Agreement to be listed either on the NASDAQ Stock
Market or, as applicable, on each securities exchange on which similar
securities issued by the Company are then listed.
(f) The Company shall otherwise use its best efforts to comply
with all applicable rules and regulations of the Commission.
(g) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 1.2 of this Agreement, the
Company will enter into an underwriting agreement reasonably necessary to effect
the offer and sale of Common Stock, provided, however, that such underwriting
agreement contains customary underwriting provisions and provided further that,
if the underwriter so requests, the underwriting agreement will contain
customary contribution provisions.
1.7 Indemnification.
(a) To the fullest extent permitted by law, the Company will
indemnify and hold harmless the Shareholders, any underwriter (as defined in the
1933 Act) ("Underwriter"), and, as applicable, each of the Shareholders' legal
counsel, accountants, and other professional advisors, against all expenses,
claims, losses, damages, and liabilities (or actions, proceedings, or
settlements in respect thereof) (collectively, "Claims") arising out of or based
on (i) any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular, or other document (including any
related registration statement, notification, or the like) incident to any such
registration, qualification, or compliance, (ii) 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, or (iii) any violation
by the Company of the 1933 Act or any rule or regulation thereunder applicable
to the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification, or compliance. The Company
will reimburse the Shareholders, and, as applicable, each of the Shareholders'
legal counsel, accountants, and other professional advisors for any legal and
any other expenses reasonably incurred in connection with investigating and
defending or settling any such Claim; provided, however, that the Company will
not be liable in any such case to a Shareholder to the extent that any such
Claim arises solely out of or is based solely upon any untrue statement or
omission included in or omitted from written information furnished to the
Company by the Shareholder or Underwriter and stated to be specifically for use
therein. The Company and the Shareholders agree that the indemnity agreement
contained in this Section 1.7(a) shall not apply to amounts paid in settlement
of any such Claim if such settlement is effected without the consent of the
Company (which consent has not been unreasonably withheld).
(b) Each Shareholder will, if Shareholders' Shares are
included in the securities as to which such registration, qualification, or
compliance is being effected, indemnify the Company,
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any Underwriter, and, as applicable, each of the Company's directors, officers,
legal counsel, and accountants and each person who controls the Company within
the meaning of Section 15 of the 1933 Act, against all Claims, insofar as such
Claims arise solely out of or are based solely upon (i) any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular, or other document and provided by the
Shareholder, or (ii) 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. Each Shareholder will reimburse the Company, any
Underwriter, and, as applicable, the Company's directors, officers, legal
counsel, and accountants, persons, or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending any
such Claim, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular, or other
document in reliance upon and in conformity with written information furnished
to the Company by such Shareholder and stated to be specifically for use
therein; provided, however, that the obligations of each Shareholder under this
Agreement shall not apply to amounts paid in settlement of any such Claims if
such settlement is effected without the written consent of the Shareholder
(which consent shall not be unreasonably withheld).
(c) Each party entitled to indemnification under this Section
1.7 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any Claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of such Claim or any
litigation resulting therefrom; provided, however, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld), and the Indemnified Party
may participate in such defense at such party's expense, and provided further
that the failure of any Indemnified Party to give notice as provided in this
Agreement shall not relieve the Indemnifying Party of its obligations under this
Article I, to the extent such failure is not prejudicial. No Indemnifying Party,
in the defense of any such Claim, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such Claim. Each Indemnified Party shall furnish such information
regarding itself or the Claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in connection
with defense of such Claim resulting therefrom.
(d) If the indemnification provided for in this Section 1.7 is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any Claim referred to therein, then the Indemnifying
Party, in lieu of indemnifying such Indemnified Party under this Agreement,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such Claim in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and of the Indemnified
Party on the other in connection with the statements or omissions that resulted
in such Claim as well as any other relevant equitable considerations. The
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relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Indemnifying Party or by the Indemnified
Party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(e) The obligation of the Company and the Shareholders under
this Section 1.7 shall survive the completion of any offering of Shareholders'
Shares in a registration statement under this Article I, and otherwise.
1.8 Information by Shareholders. The Shareholders shall furnish to the
Company such information regarding the Shareholders and the distribution
proposed by the Shareholders as the Company may reasonably request in writing
and as shall be reasonably required in connection with any registration,
qualification, or compliance referred to in this Article I.
1.9 Limitations on Other Registration Rights. From and after the date
of this Agreement, the Company shall not, without the prior written consent of
the Shareholders, enter into any agreement with any holder or prospective holder
of any securities of the Company giving such holder or prospective holder any
registration rights the terms of which are more favorable than the registration
rights granted to the Shareholders under this Agreement.
1.10 1934 Act Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission that may permit the sale of
the Shareholders' Shares to the public without registration, the Company agrees
to use its best efforts to:
(a) Make and keep public information regarding the Company
available as those terms are understood and defined in Rule 144 under the 1933
Act, at all times from and after the effective date of the first registration
under the 1933 Act filed by the Company for an offering of its securities to the
general public;
(b) File with the Commission in a timely manner all reports
and other documents required of the Company under the 1933 Act and the 1934 Act
at any time after it has become subject to such reporting requirements; and
(c) So long as the Shareholders own any Shareholders' Shares,
furnish to each Shareholder upon written request a written statement by the
Company as to its compliance with the reporting requirements of Rule 144, and of
the 1933 Act and the 1934 Act, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed as the
Shareholders may reasonably request in availing itself of any rule or regulation
of the Commission allowing the Shareholders to sell any such securities without
registration.
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Article II
Covenants of the Company.
The Company hereby covenants as follows:
2.1 Financial Information. The Company shall deliver to each
Shareholder copies of its annual reports on Form 10-K and its quarterly reports
on Form 10-Q, respectively, and other reports filed with the Commission within
ten days after the filing of such reports with the Commission.
2.2 Additional Information and Rights. The Company shall permit the
Shareholders to visit and inspect any of the properties of the Company,
including its books of account and other records (and make copies thereof and
take extracts therefrom), and to discuss its affairs, finances and accounts with
the Company's officers and its independent public accountants, all at such
reasonable times and as often as any such person may reasonably request.
Article III
Termination of Registration Rights
Except as set forth below, the right of the Shareholders to request
registration or inclusion in any registration pursuant to Section 1.2, 1.3 or
1.5 shall terminate on such date after the closing of the first
Company-initiated registered public offering of Common Stock as all
Shareholders' Shares held by a Shareholder may immediately be sold under Rule
144 during any 90-day period. The provisions set forth above shall not apply to
any Shareholder who owns more than 1% of the Company's outstanding stock until
the earlier of (i) such time as such holder owns less than 1% of the outstanding
stock of the company, or (ii) the expiration of five years after the closing of
the first registered public offering of Common Stock of the Company.
Article IV
Miscellaneous
4.1 Arbitration. In the event that the Company and the Shareholders
cannot agree as to the disposition of any claim raised under this Agreement, the
unresolved matter shall be resolved by arbitration if a request for arbitration,
as provided in this Section 4.1, is given. Arbitration shall be initiated by
either party making a written demand on the other party and simultaneously
filing copies of the demand, together with the required fees, with the Detroit
Regional Office of the American Arbitration Association ("AAA"). Within 15 days
after receipt of such demand, each party shall designate one arbitrator. These
two arbitrators shall, within 15 days after their appointment, select a third
arbitrator, who shall be experienced in the subject matter of the claim for
which resolution is sought. In the event that the first two arbitrators are
unable to agree upon a third arbitrator, then the arbitrators shall apply to the
AAA to designate and appoint a person who meets these criteria as
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the third arbitrator. In the event the party upon whom the original arbitration
demand was served shall fail to designate its arbitrator, the arbitrator
designated by the party requesting arbitration shall act as the sole arbitrator
and shall be deemed to be single, mutually approved arbitrator to resolve the
matter. Final arbitration of the dispute shall occur within six months of the
giving of the notice of arbitration. The place of arbitration shall be Troy,
Michigan. Arbitration shall be conducted under the auspices of the AAA and the
AAA Rules shall govern all proceedings unless otherwise provided in this Section
4.1. In the case of conflict between the AAA Rules and this Agreement, the
provisions of this Agreement shall govern. The arbitrators' sole power shall be
to interpret the provisions of this Agreement and they shall have no power to
change or modify any provision of this Agreement. The parties shall have the
right to discovery in accordance with the Federal Rules of Civil Procedure
except that discovery may commence immediately upon the service of the demand
for arbitration and except that discovery shall be limited to document requests
and depositions of not more than two people per party, and must occur within
three months of the date of such service of notice of the complaining party. A
party's unreasonable refusal to cooperate in discovery shall be deemed to be a
refusal to proceed with arbitration and, until the arbitration panel is
complete, the parties may enforce their rights (including the right of
discovery) in the circuit courts of the State of Michigan. Such enforcement in
the courts shall not constitute a waiver of a party's right to arbitration. Upon
the completion of the appointment of the arbitration panel, the arbitrators
shall have the power to enforce the parties' discovery rights. It is expressly
agreed that material subject to discovery shall include written documents that
must be created from information that currently exists only in machine-readable
form.
The parties expressly covenant and agree to be bound by the decision of
the arbitration panel and accept any such decision as the final determination of
the matter in dispute. A judgment of any Michigan Circuit Court may be rendered
upon any award made pursuant to this Agreement.
4.2 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of Michigan, without regard to the conflict of laws
principals of that state.
4.3 Successors and Assigns. Except as otherwise expressly provided in
this Agreement, the provisions of this Agreement shall inure to the benefit of,
and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties to this Agreement.
4.4 Entire Agreement; Amendment; Waiver. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subjects of this Agreement. Neither this Agreement nor any term of this
Agreement may be amended, waived, discharged or terminated, except by a written
instrument signed by the Company and each Shareholder.
4.5 Notices, etc. All notices and other communications required or
permitted under this Agreement shall be in writing and shall be mailed by United
States first-class mail, postage prepaid, or delivered personally by hand or
nationally recognized courier or telecopied, addressed as follows.
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If to Noble to:
Noble International, Ltd.
00 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxx
with a copy to:
Jaffe, Raitt, Huer & Xxxxx
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Mr. Xxxxx Sugar
If to Skandalaris to:
Xxxxxx Xxxxxxxxxxx
00 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
with a copy to:
Jaffe, Raitt, Huer & Xxxxx
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Mr. Xxxxx Sugar
If to the Shareholders to:
Utilase, Inc.
00000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx Xxxxxxxxx, III
and to:
Xxxxx Xxxxxx Xxxxxxxxx, III
00000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
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and to:
Xxxxxxx X. Xxxx
00000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
with a copy to:
Xxxxxx Xxxxxxx PLLC
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
4.6 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to the Shareholders, upon any breach or default of the
Company under this Agreement shall impair any such right, power or remedy of the
Shareholders nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default therefore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of the Shareholders of any breach or default under this Agreement or
any waiver on the part of the Shareholders of any provisions or conditions of
this Agreement must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to the Shareholders, shall be
cumulative and not alternative.
4.7 Severability. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained in this Agreement.
4.8 Information Confidential. The Shareholders acknowledge that the
information received by it pursuant to this Agreement may be confidential and
for its use only, and it will not use such confidential information in violation
of the 1934 Act or reproduce, disclose or disseminate such information to any
other person (other than its employees or agents having a need to know the
contents of such information, and its attorneys), except in connection with the
exercise of rights under this Agreement, unless the Company has made such
information available to the public generally or the Shareholders are required
to disclose such information by a governmental body.
4.9 Titles and Subtitles. The titles of the paragraphs and
sub-paragraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
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4.10 Counterparts. This Agreement may be executed in two or more,
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[this space intentionally left blank]
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IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement effective as of the date first above written.
NOBLE INTERNATIONAL, LTD.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: President & CEO
UTILASE, INC.
By: /s/ Xxxxx Xxxxxx Xxxxxxxxx III
------------------------------
Xxxxx Xxxxxx Xxxxxxxxx III,
Chief Executive Officer
/s/ Xxxxxxx X. Xxxx
------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxx Xxxxxx Xxxxxxxxx III
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Xxxxx Xxxxxx Xxxxxxxxx III
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