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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
AGREEMENT, dated as of July , 1998, executed and delivered by
Noble International, Ltd., a Michigan corporation (the "Company"), in favor of
the Holders of Debentures and Registrable Securities (as said terms are defined
herein).
W I T N E S S E T H :
WHEREAS, pursuant to the terms and conditions set forth in the
Company's Offering Memorandum dated July 23, 1998, including the Exhibits
thereto, any and all supplements thereof and amendments thereto, and all
documents incorporated by reference therein (collectively, the "Offering
Memorandum"), the Company is offering for sale up to $40,000,000 principal
amount of its 6% Convertible Subordinated Debentures due 2005 (together with any
so-called "PIK Debentures" paid in lieu of cash interest thereon, the
"Debentures"), the terms of which are governed by the Indenture dated as of July
23, 1998, by and between the Company and American Stock Transfer & Trust
Company, as trustee (the "Indenture"); and
WHEREAS, the Debentures are convertible into shares of Common
Stock of the Company, without par value (the "Conversion Shares"); and
WHEREAS, the Debentures are being offered and sold by the Company
in reliance upon the exemption from the registration provisions of the United
States Securities Act of 1933, as amended (the "Securities Act"), which is
provided by Regulation S of the Securities Act; and
WHEREAS, BlueStone Capital Partners, L.P. ("BlueStone") and
Xxxxxx Xxxxxxx & Co. Limited ("Xxxxxxx"), are acting as the Placement Agents for
the Company in connection with the offer and sale of the Debentures on a "best
efforts" basis; and
WHEREAS, pursuant to the terms and conditions set forth in the
Memorandum and contained in the Debenture Subscription Agreement (the
"Subscription Agreement") which has been executed and delivered by or on behalf
of each of the initial purchasers of Debentures from the Company (the "Initial
Purchasers"), each of the Initial Purchasers is purchasing the principal amount
of Debentures for which it has subscribed; and
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WHEREAS, the terms and conditions of the offering and sale of the
Debentures provide for the execution and delivery of this Agreement.
NOW, THEREFORE, in order to induce the Initial Purchasers to
purchase the Debentures, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged by the Company, the
Company hereby agrees as follows:
I. Definitions. As used in this Agreement, the capitalized terms
set forth below shall have the following meanings:
"Additional Interest" shall have the meaning set forth in Section
6(a) hereof.
"Affiliate" shall mean, as to a specified Person, a Person that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the Person specified.
"AMEX" shall mean the American Stock Exchange.
"BlueStone" shall have the meaning set forth in the preamble.
"Company" shall have the meaning set forth in the preamble, and
shall also include the Company's successors.
"Conversion Shares" shall have the meaning set forth in the
preamble; provided, however, that if at any time the Debentures become
convertible into any other number of shares of Common Stock of the Company, or
into any other securities of the Company or of any other entity, in each case
pursuant to the terms of the Debentures, then, in such event, the term
"Conversion Shares" shall be deemed to mean such other number of shares of
Common Stock or such other securities, as the case may be.
"Debentures" shall have the meaning set forth in the preamble.
"Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as amended.
"Final Closing Date" shall mean the date of the closing of the
last sale of Debentures by the Company.
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"Xxxxxxx" shall have the meaning set forth in the preamble.
"Holder" shall mean each Person who holds Debentures or
Conversion Shares; and each of the successors, assigns and transferees of each
of such Holder.
"Indenture" shall have the meaning set forth in the preamble.
"Initial Purchasers" shall have the meaning set forth in the
preamble.
"Offering Memorandum" shall have the meaning set forth in the
preamble.
"Outstanding Debentures" shall have the meaning set forth in
Section 6(a) hereof.
"Person" shall mean any individual, sole proprietorship,
partnership, corporation, association, joint venture, trust, unincorporated
entity or other entity, or the government of any country or sovereign state, or
of any state, province, municipality or other political subdivision thereof.
"Prospectus" shall mean the Prospectus included in the Shelf
Registration Statement, including any preliminary Prospectus, and any such
Prospectus as amended or supplemented by any Prospectus supplement, including
post-effective amendments, in each case including all material incorporated or
deemed to be incorporated by reference therein.
"Registrable Securities" shall mean the Conversion Shares;
provided, however, that any Conversion Shares shall cease to be Registrable
Securities when they shall have been sold by a Holder pursuant to an effective
Shelf Registration Statement or pursuant to Rule 144.
"Registration Default" shall be the meaning set forth in Section
6(a) hereof.
"Registration Expenses" shall mean any and all expenses incident
to the performance by the Company of its obligations under this Agreement,
including, but not limited to: (i) all SEC and AMEX registration and filing
fees; (ii) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws; (iii) all expenses of printing and
distributing the Shelf Registration Statement, any Prospectus, and any
amendments or supplements thereto; and (iv) the fees and disbursements of
counsel for the Company and of the independent public accountants of the
Company.
"Rule 144" means Rule 144 of the General Rules and Regulations
promulgated under the Securities Act or any successor rule.
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"SEC" shall mean the United States Securities and Exchange
Commission.
"Securities Act" shall have the meaning set forth in the
preamble.
"Shelf Registration Statement" shall mean a registration
statement on an appropriate form under the Securities Act which covers the
resale of the Registrable Securities pursuant to Rule 415 of the General Rules
and Regulations promulgated under the Securities Act, or any similar rule that
may be adopted by the SEC, and all amendments and supplements to such Shelf
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein and all exhibits thereto and all
material incorporated or deemed to be incorporated by reference therein.
"Subscription Agreement" shall have the meaning set forth in the
preamble.
"Underwriter" shall have the meaning set forth in Section 7
hereof.
2. Shelf Registration; Suspension of Use of Prospectus.
(a) The Company shall prepare and, not later than November 30,
1998, shall file with the SEC, and thereafter shall use its best efforts to
cause to be declared effective under the Securities Act as soon as possible
thereafter, and in no event later than January 31, 1999, a Shelf Registration
Statement relating to the offer and sale of the Registrable Securities by the
Holders from time to time in accordance with the methods of distribution
described in the Shelf Registration Statement, which shall be substantially as
set forth on Exhibit A attached hereto and made a part hereof.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the Prospectus
forming part thereof to be used by the Holders for a period of two years from
the Final Closing Date or such shorter period that will terminate when all the
Registrable Securities have been sold pursuant to the Shelf Registration
Statement or Rule 144 (in any such case, such period being called the "Shelf
Registration Period"). The Company shall be deemed not to have used its best
efforts to keep the Shelf Registration Statement effective during the requisite
period if it voluntarily takes any action that would result in Holders of
Registrable Securities not being able to offer and sell such securities pursuant
to the Shelf Registration Statement during that period,
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unless such action is (i) required by applicable law or (ii) pursuant to Section
2(c) hereof, and, in either case, so long as the Company promptly thereafter
complies with the requirements of Section 3(i) hereof, if applicable.
(c) The Company may suspend the use of the Shelf Registration
Statement for a period not to exceed 45 days in any 12 month period for valid
business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, public filings
with the SEC, pending corporate developments and similar events.
3. Registration Procedures. In connection with any Shelf
Registration Statement, the following shall apply:
(a) The Company shall ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part thereof and
any amendment or supplement thereto complies in all material respects with the
Securities Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and (iii) any Prospectus forming part of the Shelf
Registration Statement, and any amendment or supplement to such Prospectus, does
not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) (1) The Company shall advise the Holders and, if requested by
such Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the SEC and when the Shelf Registration Statement or
any post-effective amendment thereto has become effective; and
(ii) of any request by the SEC for amendments or
supplements to the Shelf Registration Statement or the Prospectus included
therein or for additional information.
(2) The Company shall advise the Holders and, if requested by any
such Holder, confirm such advice in writing:
(i) of the issuance by the SEC of any stop order suspending the
effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of
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the securities covered by the Shelf Registration Statement for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the suspension of the use of the Prospectus pursuant to
Section 2(c) hereof or of the happening of any event that
requires the making of any changes in the Shelf Registration
Statement or the Prospectus so that, as of such date, the
statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading (which advice shall be
accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made).
(c) The Company shall use its reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of any Shelf
Registration Statement at the earliest possible time.
(d) The Company shall furnish to each Holder, without charge, at
least one copy of the Shelf Registration Statement in the form declared
effective by the SEC and any post-effective amendment thereto, including
financial statements and schedules (if incorporated by reference), and, if the
Holder so requests in writing, all exhibits (including those incorporated
therein by reference).
(e) The Company shall, during the Shelf Registration Period,
deliver to each Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request; and the Company consents to the use, in compliance with the terms of
this Agreement, of the Prospectus or any amendment or supplement thereto by each
of the Holders of Registrable Securities in connection with the offering and
sale thereof.
(f) Prior to any offering of Registrable Securities pursuant to
any Shelf Registration Statement, the Company shall register or qualify or
cooperate with the Holders thereof and their respective counsel in connection
with the registration or qualification of such securities for offer and sale
under the securities or blue sky laws of such jurisdictions in the United States
as any such Holders reasonably request in writing, and do any and all other acts
or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Registrable Securities; provided, however, that the Company
will not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action which would subject it
to general service of process or to taxation in any such jurisdiction where it
is not then so subject.
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(g) The Company shall use its reasonable best efforts to as
promptly as practicable list the Registrable Securities on each national
securities exchange on which the Shares are then listed, subject to official
notice of issuance.
(h) The Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing the Registrable
Securities free of any restrictive legends and in such denominations and
registered in such names as Holders may request prior to sales of Registrable
Securities pursuant to the Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by paragraph
(b)(2)(iii) above, the Company shall, if required pursuant to the Act or
paragraph (b)(2)(iii) above, promptly prepare a post-effective amendment to the
Shelf Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter delivered
to purchasers of the Registrable Securities, the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(j) The Company may require each Holder to furnish to the Company
with such information regarding the Holder and the distribution of such
securities as the Company may from time to time reasonably require for inclusion
in such Shelf Registration Statement. Any Holder who fails to provide such
information within a reasonable time after receiving such request shall not be
entitled to use the Prospectus.
(k) The Company shall enter into such agreements and take all
other appropriate actions in order to expedite or facilitate the registration or
the disposition of the Registrable Securities.
(l) The Company shall (i) make reasonably available for
inspection by the Holders, and any attorney, accountant or other agent retained
by the Holders, all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries in connection with
such Shelf Registration Statement as is customary for similar due diligence
examinations; and (ii) cause the Company's officers directors and employees to
supply all relevant information reasonably requested by the Holders or any such
attorney, accountant or agent in connection with such Shelf Registration
Statement as is customary for similar due diligence examinations; provided,
however, that any information that is designated in writing by the Company, in
good faith, as confidential at the time of delivery of such information shall be
kept confidential by the Holders or any such
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attorney, accountant or agent, unless disclosure thereof is made in connection
with a court proceeding or required by law, or such information has become
available (not in violation of this agreement) to the public generally or
through a third party without an accompanying obligation of confidentiality, and
the Company shall be entitled to request that such Holders sign a
confidentiality agreement to the foregoing effect.
4. Use of Prospectus. The Holders may not use the Prospectus, in
each case after notice by the Company of the applicable event, (A) during any
period of suspension referred to in Section 2(c), (B) during any period when a
stop order is in effect as referred to in Section 3(b)(2)(i), (C) in the
applicable jurisdiction during any period when the qualification of the
Registrable Securities has been suspended in such jurisdiction, as referred to
in Section 3(b)(2)(ii), and (D) during any suspension period referred to in
Section 3(b)(2)(iii).
5. Registration Expenses. The Company shall be responsible for,
and shall pay in due course, all Registration Expenses. The Company shall not be
responsible for the payment of any underwriting or brokerage fees and discounts.
6. Additional Interest Under Certain Circumstances.
(a) Additional interest ("Additional Interest") with respect to
all of the outstanding Debentures (the "Outstanding Debentures") shall be
assessed as follows if any of the following events occur (each event described
in clauses (i) through (iii) below being hereinafter sometimes called a
"Registration Default"):
(i) if by November 30, 1998, the Shelf Registration
Statement has not been filed with the SEC;
(ii) if by January 31, 1999, the Shelf Registration
Statement has not been declared effective by the SEC; or
(iii) if after the Shelf Registration Statement is
declared effective, (A) such Registration Statement thereafter ceases to be
effective before the second anniversary of Final Closing Date (or, in the event
that Rule 144(k) under the Securities Act is amended to provide for a shorter
holding period, until the end of such shorter period) or the date as of which
all of the Registrable Securities are sold pursuant to the Shelf Registration
Statement or Rule 144; or (B) such Registration Statement or the related
prospectus may no longer be used because either (1) any event occurs as a result
of which the related Prospectus forming part of such Registration Statement
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not
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misleading, or (2) it shall be necessary to amend such Registration Statement or
supplement the related prospectus, to comply with the Securities Act or the
Exchange Act or the respective rules thereunder.
(b) (i) If the Shelf Registration Statement has not been filed
with the SEC within the time period described in clause (a)(i) above, Additional
Interest shall accrue on the Outstanding Debentures over and above the interest
set forth in the title of the Outstanding Debentures as follows: the per annum
interest rate on the Outstanding Debentures will increase by 25 basis points,
such increase remaining in effect until the date on which such Shelf
Registration Statement is filed, on which date the interest rate on the
Outstanding Debentures will revert to the interest rate originally borne by the
Outstanding Debentures, plus any increase in such rate pursuant to clause
(b)(ii) below.
(ii) If the Shelf Registration Statement has not been declared
effective by the SEC within the time period described in clause (a)(ii) above,
then, at such time and on each date that is the successive 30th day following
such time, the per annum interest rate on the Outstanding Debentures (which
interest rate will be the original interest rate on the Outstanding Debentures
plus any increase or increases in such interest rate pursuant to clause (b)(i)
above and pursuant to this clause) will increase by an additional 25 basis
points; provided, however, that the per annum interest rate may not increase by
more than 75 basis points pursuant to this clause and may not increase by more
than 100 basis points pursuant to this clause and clause (b)(i) above. Such
increase or increases will remain in effect until the date on which such Shelf
Registration Statement is declared effective, on which date the interest rate on
the Outstanding Debentures will revert to the interest rate originally borne by
the Outstanding Debentures, plus any Additional Interest that may be payable
pursuant to clause (b)(iii) below.
(iii) If the Company fails to keep the Shelf Registration
Statement continuously effective or usable for the period specified in clause
(a)(iii) above, then at such time as the Shelf Registration Statement is no
longer effective or usable, as the case may be, and on each date thereafter that
is the successive 30th day subsequent to such time and until the earliest of (A)
the date that the Shelf Registration Statement is again deemed effective or
usable, as the case may be, (B) the date that is the second anniversary of the
Final Closing Date (or, in the event that Rule 144(k) under the Securities Act
is amended to provide for a shorter holding period, until the end of such
shorter period) and (C) the date as of which all of the Registrable Securities
have been sold pursuant to the Shelf Registration Statement or Rule 144, the per
annum interest rate on the Outstanding Debentures will increase by 25 basis
points; provided, however, that the per annum interest rate may not increase by
more than 100 basis points pursuant to this clause (b)(iii).
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(c) Anything herein contained to the contrary notwithstanding, a
Registration Default referred to in Section 6(a)(iii)(B) shall be deemed not to
have occurred and be continuing solely as a result of the suspension by the
Company of the use of the Shelf Registration Statement pursuant to the
provisions of Section 2(c) hereof.
(d) Any amounts of Additional Interest due pursuant to clause
(b)(i), (b)(ii) or (b)(iii) of Section 6 above will be payable on the regular
interest payment dates with respect to the Outstanding Debentures. The amount of
Additional Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the Outstanding Debentures, multiplied
by a fraction, the numerator of which is the number of days such Additional
Interest rate was applicable during such period (determined on the basis of a
360-day year comprised of twelve 30-day months), and the denominator of which is
360.
7. Indemnification and Contribution.
(a) In connection with any Shelf Registration Statement, the
Company agrees to indemnify and hold harmless each Holder, each Affiliate of
such Holder, the directors, partners, officers, employees and agents of each
such Holder and each person who controls any such Holder within the meaning of
either the Securities Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Shelf Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any such Holder specifically for inclusion
therein, (ii) the Company will not be liable to any indemnified party under this
indemnity agreement with respect to any Shelf Registration
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Statement or Prospectus to the extent that any such loss, claim, damage or
liability of such indemnified party results from the use of the Prospectus
during a period when the use of the Prospectus has been suspended in accordance
with Section 2(c) hereof, provided that Holders received prior notice of such
suspension; and (iii) the Company shall not be liable to any indemnified party
with respect to any preliminary Prospectus to the extent that any such loss,
claim, damage or liability of such indemnified party results from the fact that
such indemnified party sold Registrable Securities to a person as to whom there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus or of the Prospectus as then amended or supplemented in
any case where such delivery is required by the Securities Act, if the loss,
claim, damage or liability of such indemnified party results from an untrue
statement or omission of a material fact contained in the preliminary Prospectus
which was corrected in the Prospectus or in the Prospectus as then amended or
supplemented. This indemnity agreement will be in addition to any liability
which the Company may otherwise have. The Company also agrees to indemnify and
provide contribution to each person who may be deemed to be an underwriter (for
purposes of the Securities Act) with respect to the Registrable Securities
("Underwriters"), their officers and directors, and each person who controls
each such Underwriter, on substantially the same basis as that of the
indemnification of and contribution to the Holders provided in this Section
7(a).
(b) By its participation in the Shelf Registration Statement,
each Holder shall be deemed to have agreed to indemnify and hold harmless (i)
the Company, (ii) each of its directors, (iii) each of its officers who signs
such Shelf Registration Statement and (iv) each person who controls the Company
within the meaning of either the Act or the Exchange Act to the same extent as
the foregoing indemnity from the Company to each such Holder, but only with
respect to written information relating to such Holder furnished to the Company
by or on behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any such Holder may otherwise have. Each Holder
shall also be deemed to have agreed to indemnify and contribute to each
Underwriter, their officers and directors, and each person who controls each
such Underwriter, on substantially the same basis as that of the indemnification
of and contribution to the Company provided in this Section 7(b). Anything in
this Agreement contained to the contrary notwithstanding, the liability of each
Holder for indemnification or contribution hereunder shall be limited to the
amount of proceeds received by such Holder in the offering giving rise to such
liability.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action,
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such indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the failure so to promptly notify the
indemnifying party will not relieve the indemnifying party from liability under
Section 7(a) or 7(b) hereof unless and to the extent that it is materially
prejudiced thereby. The indemnifying party shall be entitled to appoint counsel
of the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnified party shall not
settle or compromise any action for which it seeks indemnification or
contribution hereunder without the prior written consent of the indemnifying
party, which consent shall not be unreasonably withheld. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in Section 7(a) or
7(b) is unavailable to or insufficient to hold harmless an indemnified party for
any reason, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the aggregate losses,
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claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Shelf Registration Statement which resulted in such losses.
(e) The provisions of this Section 7 shall remain in full force
and effect regardless of any investigation made by or on behalf of any Holder or
the Company or any other persons who are entitled to indemnification pursuant to
the provisions of this Section 7, and shall survive the sale by a Holder of
Registrable Securities pursuant to the Shelf Registration Statement.
8. Rule 144. As long as the Company is subject to the reporting
requirements of Section 13 or 15 of the Exchange Act, the Company shall use its
best efforts to promptly file the reports required to be filed by it pursuant to
Section 13(a) or 15(d) of the Exchange Act and the rules and regulations adopted
by the SEC thereunder. If the Company is at any time not required to file such
reports, it shall promptly make publicly available such information as is
necessary to permit sales of the Conversion Shares pursuant to Rule 144. Upon
the request of any Holder, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements.
9. Amendments. This Agreement may not be amended, modified or
supplemented, and waivers of or consents to departures from the provisions of
this Agreement may not be given, unless it would not have an adverse effect upon
the rights of any of the Holders and the Company has obtained the consent of
Holders then owning a majority of the Registrable Securities. In connection with
the foregoing, the Company hereby acknowledges that pursuant to the terms of the
Subscription Agreement, each of the Placement Agents is empowered to act as
attorney-in-fact for the Holders and their transferees.
10. Successors and Assigns. This Agreement shall inure to the
benefit of, and be binding upon, the Company, the Holders and the other persons
and entities described in Section 7 hereof and their respective successors,
assigns and transferees, including, without limitation and without the need for
an express assignment, subsequent Holders.
11. Third Party Beneficiaries. The Holders from time to time
shall each be a third party beneficiary of the agreements of the Company
contained herein. Each of BlueStone and Xxxxxxx shall have the right, but not
the obligation, to enforce such agreements directly, to the extent it determines
(in its sole discretion), that such enforcement is necessary or desirable in
order to protect the rights of the Holders.
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12. Headings. The headings which are contained in this Agreement
are for the sole purpose of convenience of reference, and shall not limit or
otherwise affect the interpretation of any of the provisions hereof.
13. Governing Law. This Agreement shall be governed by the laws
of the State of New York applicable to contracts made and to be wholly performed
therein.
14. Notices. All notices and other communications hereunder shall
be in writing (which shall include publication), and shall be made by hand
delivery, registered first-class mail, telecopier or any courier providing
overnight delivery, (i) if to the Company or an Initial Holder, at the address
set forth in the Subscription Agreement, (ii) if to a Holder of Shares, to the
address set forth on the books and records of the Company, and (iii) if to a
Holder of Debentures (other than an Initial Holder), in the manner provided in
the Indenture. All such notices and other communications shall be deemed to have
been duly given upon receipt or as otherwise provided in the Indenture.
15. Entire Agreement. This Agreement sets forth the entire
agreement of the Company with respect to the subject matter hereof.
16. Severability. In the event that any one or more of the
provisions of this Agreement, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions of this Agreement shall not be in any
way impaired or affected thereby.
17. Further Assurances. The Company will from time to time after
the date hereof take any and all actions, and execute, acknowledge and deliver
any and all documents and instruments, at its cost and expense, as any Holder
may from time to time reasonably request in order to more fully perfect or
protect the rights intended to be granted to it hereunder.
18. Interpretation. As used in this Agreement, unless the context
otherwise requires: words describing the singular number shall include the
plural and vice versa; words denoting any gender shall include all genders;
words denoting natural persons shall include corporations, partnerships and
other entities, and vice versa; and the words "hereof", "herein" and
"hereunder", and words of similar import, shall refer to this Agreement as a
whole, and not to any particular provision of this Agreement.
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19. Waiver. The failure of the Company or any Holder to at any
time enforce any of the provisions of this Agreement shall not be deemed or
construed to be a waiver of any such provision, nor to in any way affect the
validity of this Agreement or any provision hereof or the right of the Company
or any Holder to thereafter enforce each and every provision of this Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Agreement as of the date above written:
NOBLE INTERNATIONAL, LTD.
By:
---------------------------------
Name:
Title:
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EXHIBIT A
PLAN OF DISTRIBUTION
The Registrable Securities may be sold by the Holders from time
to time to or through persons who may be deemed to be underwriters within the
meaning of the Securities Act, directly to other purchasers, or through agents.
The Shelf Registration Statement is not the exclusive means for resales of
Registrable Securities (e.g., they may be sold pursuant to Rule 144). The sale
of the Registrable Securities may be effected from time to time in one or more
transactions at a fixed price or prices (which may be changed), or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices, or at negotiated prices, on such national securities exchange on
which the Registrable Securities may be listed or have unlisted trading
privileges, or in negotiated transactions, or in a combination of such methods
of sale.
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