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EXHIBIT 2.2
SHARE EXCHANGE AGREEMENT
MEMORANDUM OF AGREEMENT made as of October 1, 1998.
A M O N G:
NOBLE INTERNATIONAL, LTD.,
a Michigan corporation ("Parent"),
- and -
NOBLE CANADA HOLDINGS II LIMITED,
a Nova Scotia corporation ("Holdings"),
- and -
NOBLE CANADA II, INC.,
an Ontario corporation (the "Corporation"),
- and -
WRAYTER INVESTMENTS INC.,
an Ontario corporation ("Wrayter")
- and -
XXXXXX XXXXX, JR.,
an individual ("Xxxxx Xx.") (Wrayter and Xxxxx Xx. together
being the "Sellers")
WHEREAS pursuant to a certain stock purchase agreement dated as of
September 8, 1998 ("Purchase Agreement") among Centrifugal Coaters Inc. ("CCI"),
Parent, the Corporation, Wrayter, Xxxxxxx & Company Inc. ("Xxxxxxx"), 659730
Ontario Inc. ("Blake Corp."), Xxxxx Xx., RoyNat Inc. ("RoyNat"), and First
Ontario Labour Sponsored Investment Fund Ltd. ("First Ontario"), the
shareholders of CCI agreed to sell to the Corporation, and the Corporation
agreed to purchase from such shareholders, all of the outstanding shares in the
capital of CCI in consideration of certain cash payments to RoyNat, First
Ontario, Xxxxxxx and Blake Corp., and of the issuance by the Corporation to the
Sellers of a total of 57,938 Class C Exchangeable Non-Voting Preferred Shares of
the Corporation ("Exchangeable Shares");
AND WHEREAS the parties to the Purchase Agreement agreed that at the
Closing (as defined in the Purchase Agreement), Parent, the Corporation and
Sellers would execute and deliver a share exchange agreement in substantially
the form set forth in Exhibit A to the Purchase Agreement;
Share Exchange Agreement (CCI), Page 1
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NOW THEREFORE in consideration of the respective covenants and
agreements provided in this Agreement and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS. In this Agreement, the following terms shall have the
following meanings:
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling", "controlled by" and "under common control with"), as
applied to any Person, means the possession by another Person, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that first mentioned Person, whether through the ownership of voting
securities, by contract or otherwise.
"AMEX" means the American Stock Exchange.
"BOARD OF DIRECTORS" means the Board of Directors of the Corporation.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a legal
holiday on which banks are not open for business in Toronto, Ontario or Detroit,
Michigan.
"CALL RIGHTS" means collectively the Liquidation Call Right, the
Retraction Call Right and the Redemption Call Right.
"CURRENT MARKET PRICE" has the meaning ascribed thereto in the
Exchangeable Share Provisions.
"DEFAULT EVENT" means any failure of the Corporation to perform any of
its obligations pursuant to the Exchangeable Share Provisions including, without
limitation, its obligation to redeem any Retracted Shares as a result of the
operation of section 4.5 of the Exchangeable Share Provisions.
"EXCHANGE RIGHT" has the meaning ascribed thereto in section 2.1 hereof.
"EXCHANGEABLE SHARE PROVISIONS" means the rights, privileges,
restrictions and conditions set forth in the provisions attaching to the
Exchangeable Shares.
"EXCHANGEABLE SHARES" has the meaning ascribed thereto in the recitals
hereto.
"HOLDERS" means the registered holders from time to time of Exchangeable
Shares including, without limitation, the Sellers, but excluding Parent and its
Affiliates.
Share Exchange Agreement (CCI), Page 2
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"LIEN" means any lien, pledge, adverse claim, security interest,
mortgage, restriction, claim, charge or other encumbrance of any kind or nature
whatsoever.
"LIQUIDATION CALL RIGHT" has the meaning ascribed thereto in the
Exchangeable Share Provisions.
"OBCA" means the Ontario Business Corporations Act, as amended.
"OFFICER'S CERTIFICATE" means, with respect to Parent, Holdings or the
Corporation, as the case may be, a certificate signed by any one of the Chairman
of the Board, the President, any Vice-President or any other senior officer of
such Company, as the case may be.
"PARENT SHARES" means the shares of common stock, no par value, in the
capital of Parent.
"PERSON" includes an individual, partnership, corporation, company,
unincorporated syndicate or organization, trust, trustee, executor,
administrator and other legal representative.
"PURCHASE AGREEMENT" has the meaning ascribed thereto in the recitals
hereto.
"REDEMPTION CALL RIGHT" has the meaning ascribed thereto in the
Exchangeable Share Provisions.
"RETRACTED SHARES" has the meaning ascribed thereto in section 2.6
hereof.
"RETRACTION CALL RIGHT" has the meaning ascribed thereto in the
Exchangeable Share Provisions.
"SUPPORT AGREEMENT" means the support agreement made as of even date
herewith among the Corporation, Holdings and Parent.
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC. The division of this
Agreement into articles, sections and paragraphs and the insertion of headings
are for convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
1.3 NUMBER, GENDER, ETC. In this Agreement, words importing the singular
number only shall include the plural and vice versa, and words importing the use
of any gender shall include all genders.
1.4 DATE FOR ANY ACTION. If any date on which any action is required to
be taken under this Agreement is not a Business Day, such action shall be
required to be taken on the next succeeding Business Day.
1.5 WITHHOLDING OF TAX. All amounts required to be paid, deposited or
delivered hereunder shall be paid, deposited or delivered after deduction of any
amount required by applicable law to be deducted or withheld on account of tax
and the deduction of such amounts
Share Exchange Agreement (CCI), Page 3
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and remittance to the applicable tax authorities shall, to the extent thereof,
satisfy such requirement to pay, deposit or deliver hereunder.
ARTICLE 2
EXCHANGE RIGHT AND EARLY EXCHANGE RIGHTS
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2.1 GRANT AND OWNERSHIP OF THE EXCHANGE RIGHT. Parent hereby grants to
the Holders the right (the "Exchange Right"), upon the occurrence and during the
continuance of a Default Event, to require Parent to purchase from each Holder
all or any part of the Exchangeable Shares held by such Holder, all in
accordance with the provisions of this Agreement. Parent hereby acknowledges
receipt from the Holders of good and valuable consideration (and the adequacy
thereof) for the grant of the Exchange Right by Parent to the Holders.
2.2 LEGENDED SHARE CERTIFICATES. The Corporation shall cause each
certificate representing Exchangeable Shares to bear an appropriate legend
notifying the Holders of the right to exercise the Exchange Right in respect of
the Exchangeable Shares held by a Holder.
2.3 PURCHASE PRICE. The purchase price payable by Parent for each
Exchangeable Share to be purchased by Parent under the Exchange Right shall be
an amount per share equal to the Current Market Price, determined on the date
the Exchange Right is exercised pursuant to section 2.4 (the "Exchange Date"),
which shall be satisfied in full by the Corporation causing to be delivered to
each Holder one Parent Share, or, at a Holder?s election, US $11.50 in cash
("Cash Compensation"); provided that, in the event that a Holder elects to
receive Cash Compensation in lieu of all or part of the Parent Shares to which
such Holder is entitled pursuant to this section, Corporation may elect, at its
sole discretion, to cause to be delivered to such Holder for each Exchangeable
Share one Parent Share instead of the Cash Compensation elected by such Holder.
2.4 EXERCISE OF THE EXCHANGE RIGHT. Subject to the terms and conditions
herein set forth, a Holder shall be entitled, upon the occurrence and during the
continuance of a Default Event, to exercise the Exchange Right with respect to
all or any part of the Exchangeable Shares registered in the name of such Holder
on the books of the Corporation. To exercise the Exchange Right, the Holder
shall deliver to Parent, in person, by courier or by certified or registered
mail, at its principal office or at such other place as Parent may from time to
time designate by written notice to the Holders, the certificates representing
the Exchangeable Shares that such Holder desires Parent to purchase pursuant to
the Exchange Right, duly endorsed in blank, and accompanied by such other
documents and instruments as Parent may reasonably require together with:
(a) a duly completed form of notice of exercise of the Exchange
Right, contained on the reverse of or attached to the Exchangeable Share
certificates, stating (i) that the Holder thereby exercises the Exchange
Right so as to require Parent to purchase from the Holder the number of
Exchangeable Shares specified therein, (ii) that such Holder has good
title to and owns all such Exchangeable Shares to be acquired by Parent
free and clear of all Liens, (iii) the names in which the certificates
representing Parent Shares issuable in connection with the exercise of
the Exchange Right are to be issued, and (iv) the names and addresses of
the Persons to whom such new certificates should be delivered;
Share Exchange Agreement (CCI), Page 4
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(b) payment (or evidence satisfactory to Parent of payment) of
the taxes (if any) payable as contemplated by section 2.7 hereof; and
(c) a certificate or certificates of such Holder satisfactory to
Parent attesting to such Holder's accredited investor status and
investment intent.
If only a part of the Exchangeable Shares represented by any certificate
or certificates delivered to Parent are to be purchased by Parent under the
Exchange Right, a new certificate for the balance of such Exchangeable Shares
shall be issued to the Holder at the expense of the Corporation.
2.5 DELIVERY OF PARENT SHARES: EFFECT OF EXERCISE. Promptly after
receipt of the certificates, duly endorsed in blank, representing the
Exchangeable Shares in respect of which the Exchange Right was exercised
pursuant to section 2.4 hereof (together with such documents and instruments of
transfer and a duly completed form of notice of exercise of the Exchange Right
(and payment of taxes, if any, or evidence thereof in accordance with section
2.4 hereof)), Parent shall notify the Corporation of its receipt of the same
and, subject to section 1.5, Parent shall promptly thereafter deliver or cause
to be delivered to the Holder of such Exchangeable Shares (or to such other
Persons, if any, properly designated by such Holder) (i) the certificates for
the number of Parent Shares issuable in connection with the exercise of the
Exchange Right, which shares shall be duly issued as fully paid and
non-assessable and shall be free and clear of any Liens placed thereon by Parent
or the Corporation, if applicable, or (ii) the corresponding Cash Compensation,
as provided in this Agreement. Immediately upon the exercise of the Exchange
Right, as provided in section 2.4 hereof, the closing of the transaction of
purchase and sale contemplated by the Exchange Right shall be deemed to have
occurred, and the Holder of such Exchangeable Shares shall be deemed to have
transferred to Parent all of its right, title and interest in and to such
Exchangeable Shares free and clear of all Liens and shall cease to be a holder
of such Exchangeable Shares and shall not be entitled to exercise any of the
rights of a holder in respect thereof, other than the right to receive the
purchase price therefor, unless the requisite number of Parent Shares or Cash
Compensation, as the case may be, is not allotted, issued and/or delivered by
Parent to such Holder (or to such other Persons, if any, properly designated by
such Holder) within five Business Days of the Exchange Date, in which case the
rights of the Holder shall remain unaffected until such Parent Shares or Cash
Compensation are so allotted, issued and/or delivered by Parent and any such
cheque or property is so delivered and paid. Concurrently with such Holder
ceasing to be a holder of Exchangeable Shares, the Holder shall be considered
and deemed for all purposes to be a holder of Parent Shares delivered to such
Holder, if any, pursuant to the Exchange Right. The Board of Directors shall
sanction or approve any transfer of Exchangeable Shares made pursuant to an
exercise of the Exchange Right pursuant to the provisions hereof and such
sanction or approval shall be effective as at the closing of the transaction of
purchase and sale of Exchangeable Shares as provided in this section 2.5.
2.6 STAMP OR OTHER TRANSFER TAXES. Upon any sale of Exchangeable Shares
to Parent pursuant to the Exchange Right, the share certificate or certificates
representing Parent Shares to be delivered in connection with the payment of the
purchase price therefor shall be issued in the name of the Holder of the
Exchangeable Shares so sold or in such names as such Holder may otherwise direct
in writing without charge to the Holder, provided, however, that such Holder (a)
shall pay
Share Exchange Agreement (CCI), Page 5
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(and neither Parent nor the Corporation shall be required to pay) any
documentary, stamp, transfer or other similar taxes that may be payable in
respect of any transfer involved in the issuance or delivery of such shares to a
Person other than such Holder or (b) shall establish to the satisfaction of
Parent and the Corporation that such taxes, if any, have been paid.
2.7 NOTICE OF DEFAULT EVENT. Immediately upon the occurrence of a
Default Event, the Corporation and Parent shall give written notice thereof to
the Holders. Such notice shall describe the event that has occurred and shall
specify that, pursuant to this Agreement, the Holders are currently entitled, or
may become entitled at a later date, to exercise the Exchange Right.
2.8 QUALIFICATION OF PARENT SHARES. Parent shall use all reasonable
efforts to obtain all orders required from the applicable Canadian securities
authorities to permit the issuance of the Parent Shares upon any exchange of the
Exchangeable Shares for Parent Shares without registration or qualification
with, or approval of, or the filing of any document including any prospectus or
similar document, or the taking of any proceeding with, or the obtaining of any
order, ruling or consent from, any governmental or regulatory authority under
any Canadian federal or provincial law or regulation or pursuant to the rules
and regulations of any regulatory authority in Canada or the fulfilment of any
other legal requirement before such Parent Shares may be issued and delivered by
the Corporation or Parent to the holder thereof.
ARTICLE 3
AMENDMENTS AND SUPPLEMENTAL AGREEMENTS
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3.1 AMENDMENTS, MODIFICATIONS, ETC. Except as provided for in section
3.2 hereof, this Agreement may not be amended or modified except by an agreement
in writing executed by the Corporation, Holdings, Parent and the Sellers. Any
amendment or modification of this Agreement by the Corporation, Holdings, Parent
and the Sellers shall bind the Sellers, and the Corporation, Holdings, Parent
and the Sellers shall be entitled to rely on such amendment or modification for
all purposes.
3.2 CHANGES IN THE CAPITAL OF PARENT OR THE CORPORATION. Notwithstanding
section 3.1 hereof, at all times after the occurrence of any Capital
Reorganization (as such term is defined in the Exchangeable Share Provisions),
this Agreement shall forthwith be deemed to have been amended and modified as
necessary in order that it shall apply with full force and effect to all new
securities into which Parent Shares or the Exchangeable Shares or both are so
changed and the parties hereto shall execute and deliver an agreement giving
effect to and evidencing such necessary amendments and modifications.
ARTICLE 4
TRANSFERS OF EXCHANGEABLE SHARES
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4.1 APPROVAL OF THE BOARD OF DIRECTORS. Except for any transfers of
Exchangeable Shares to Parent or any of its Affiliates pursuant to the
provisions hereof or the Exchangeable Share Provisions, the Holders of
Exchangeable Shares shall not be entitled to transfer any Exchangeable Shares
except as explicitly permitted pursuant to the articles of incorporation of the
Corporation. Parent and the Board of Directors shall not sanction any transfer
of Exchangeable Shares (other
Share Exchange Agreement (CCI), Page 6
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than to Parent or any of its Affiliates pursuant to the provisions hereof or the
Exchangeable Share Provisions) unless, as a condition precedent to any such
transfer of Exchangeable Shares, the transferee, if it is not a party to this
Agreement, executes and delivers an agreement in form and containing terms
satisfactory to Parent and the Corporation, acting reasonably, whereby the
transferee shall become a party hereto and shall agree to be bound by the
provisions hereof as if the transferee was an original party hereto, and
thereupon the transferee shall have the same rights, and shall be subject to the
same obligations, as the transferor hereunder.
ARTICLE 5
PARENT DISCLOSURE MATERIALS TO BE PROVIDED TO SELLERS
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5.1 DISCLOSURE MATERIALS TO BE SENT BY PARENT TO THE SELLERS. Parent
covenants and agrees with the Holders to send to the Holders at the address of
such Sellers set forth in section 7.3 hereof (or, in the absence of such an
address, at the address of the Holders as shown at the relevant time on the
register of shareholders maintained by the Corporation or otherwise to such
address that may be communicated by such Holder to Parent) all materials that
Parent is required, pursuant to the provisions of the United States Securities
Exchange Act of 1934, as amended, to send from time to time during the term of
this Agreement to holders of Parent Shares resident in the United States
including, without limitation, copies of its annual reports and all proxy
solicitation materials. Upon the request of a Holder, Parent shall send to such
Holder a copy of its quarterly reports.
ARTICLE 6
TERMINATION
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6.1 TERM.
(a) This Agreement, including the Exchange Right, shall come into
force and effect as at and from the date hereof and shall remain in
force and effect until the earliest to occur of the following events, at
which time this Agreement shall terminate:
(i) no outstanding Exchangeable Shares are held by the
Holder;
(ii) the Holder, the Corporation, Holdings and Parent
agree in writing to terminate this Agreement; or
(iii) October 1, 2001.
(b) Notwithstanding anything herein to the contrary, the
provisions of this Agreement shall no longer be applicable to any Person
(including, without limitation, any Seller) that ceases to be a
registered holder of Exchangeable Shares and such Person shall, upon
ceasing to be a registered holder of Exchangeable Shares, be deemed to
have ceased to be a party to this Agreement until, if applicable, such
time as such Person subsequently becomes a party to this Agreement by
executing an agreement referred to in section 4.1 hereof.
Share Exchange Agreement (CCI), Page 7
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ARTICLE 7
GENERAL
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7.1 SEVERABILITY. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality or enforceability of
the remainder of this Agreement shall not in any way be affected or impaired
thereby and this Agreement shall be carried out as nearly as possible in
accordance with its original terms and conditions; provided, however, that if
the provision or provisions so held to be invalid, in the reasonable judgment of
the parties, is or are so fundamental to the intent of the parties and the
operation of this Agreement that the enforcement of the other provisions hereof,
in the absence of such invalid provision or provisions, would damage irreparably
the intent of the parties in entering into this Agreement, the parties shall
agree (i) to terminate this Agreement, or (ii) to amend or otherwise modify this
Agreement so as to carry out the intent and purposes hereof and the transactions
contemplated hereby.
7.2 BINDING AGREEMENT. Subject to the provisions of Article 7 hereof,
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns and, where
applicable, their respective heirs and personal representatives.
7.3 NOTICES TO PARTIES. All notices and other communications between the
parties hereunder shall be in writing and shall be deemed to have been given if
delivered personally or by overnight or registered mail to the parties at the
following addresses (or at such other address for such party as shall be
specified in like notice):
(a) if to Parent at:
Noble International, Ltd.
00 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
(b) if to Holdings at:
Noble Canada Holdings II Limited
00 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
Share Exchange Agreement (CCI), Page 8
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(c) if to the Corporation at:
Noble Canada II, Inc.
00 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
and in all of the above cases, with required additional
copies to:
Jaffe, Raitt, Heuer & Xxxxx, Professional Corporation
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx Sugar
(d) if to Sellers:
Wrayter Investments, Inc.
c/o R. Xxxxxxx X. Xxxxxx
Gowling, Strathy & Xxxxxxxxx
Commerce Court West, Ste. 4900
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx Xxxxx, Jr.
c/o Centrifugal Coaters Inc.
Any notice or other communication given personally shall be deemed to
have been given and received upon delivery thereof unless such day is not a
Business Day or unless such notice or communication was not given during the
normal business hours of the recipient on such day in which case it shall be
deemed to have been given and received upon the immediately following Business
Day.
7.4 RISK OF PAYMENTS BY POST. Whenever payments are to be made or
documents are to be sent to any party, the making of such payment or sending of
such document sent through the post shall be at the risk of the party making the
payment or sending the document.
7.5 COUNTERPARTS. This Agreement and any amendments or supplements
thereto may be executed in counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
7.6 JURISDICTION. This Agreement shall be construed and enforced in
accordance with the laws of the State of Michigan applicable therein.
7.7 ATTORNMENT. Any action brought against Parent or any of its
Subsidiaries shall be brought exclusively in the Michigan or U.S. Federal Courts
located closest to Bloomfield Hills, Michigan.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
Share Exchange Agreement (CCI), Page 9
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SHARE EXCHANGE AGREEMENT (CCI)
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Share Exchange
Agreement to be duly executed as of the date first above written.
NOBLE INTERNATIONAL, LTD. NOBLE CANADA II, INC.
by /s/ XXXXXXX X. XXXX C.S. by /s/ XXXXXXX X. XXXX C.S.
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Name: Xxxxxxx X. Xxxx Name: Xxxxxxx X. Xxxx
Title: Vice President Title: President
NOBLE CANADA HOLDINGS II LIMITED
by /s/ XXXXXXX X. XXXX C.S.
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Name: Xxxxxxx X. Xxxx
Title: President
WRAYTER INVESTMENTS INC.
by /s/ FRASER XXXX X.X. by /s/ XXXXXX XXXXX, JR.
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Name: Xxxxxx Xxxx XXXXXX XXXXX, JR.
Title: President
Share Exchange Agreement (CCI), Page 10
