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EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of September 8, 1998, among Noble International, Ltd., a corporation
incorporated under the laws of the State of Michigan ("Noble"), Noble Canada II,
Inc., a corporation incorporated under the laws of the Province of Ontario,
Canada ("Acquisition"), Centrifugal Coaters Inc., a corporation incorporated
under the laws of the Province of Ontario, Canada ("CCI"), and the shareholders
of CCI (collectively, the "Sellers"): Wrayter Investments Inc. ("Wrayter"),
RoyNat Inc. ("RoyNat"), First Ontario Labour Sponsored Investment Fund Ltd.
("First Ontario"), Xxxxxxx & Company, Inc. ("Xxxxxxx") and 659730 Ontario Inc.
("Blake Corp.").
WHEREAS, Sellers together own all of the issued and outstanding capital
stock of CCI (collectively, the "CCI Shares");
WHEREAS, Sellers wish to sell the CCI Shares to Acquisition and
Acquisition wishes to purchase the CCI Shares from Sellers;
WHEREAS, Acquisition is a Subsidiary (as defined below) of Noble Canada
Holdings II, Limited ("Holdings"), a corporation incorporated under the laws of
Nova Scotia and a wholly owned subsidiary of Noble;
WHEREAS, the respective Boards of Directors of Noble, Acquisition, CCI
and each of the Sellers have approved the transactions contemplated by this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements set forth herein, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Certain terms are used in this Agreement as specifically defined herein.
1.1 Definitions of Certain Terms. The following terms shall have the
meanings set forth below:
"Acquisition Transaction" has the meaning ascribed thereto in
section 5.1 hereof.
"CCI Material Adverse Effect" shall mean an effect that does or
would reasonably be expected to have a material adverse effect on the
financial condition or results of operations of CCI, taken as a whole.
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"Charter Documents" has the meaning ascribed thereto in section
3.1 hereof.
"Closing" has the meaning ascribed thereto in section 2.7 hereof.
"Closing Date" has the meaning ascribed thereto in section 2.7
hereof.
"Director" has the meaning ascribed thereto in section 6.2.8
hereof.
"Exchangeable Shares" has the meaning ascribed thereto in section
2.3 hereof.
"Exchangeable Share Provisions" has the meaning ascribed thereto
in section 2.5 hereof.
"Holdings" has the meaning ascribed thereto in the Recitals to
this Agreement.
"Liens" has the meaning ascribed thereto in section 2.1 hereof.
"Losses" has the meaning ascribed thereto in section 7.1 hereof.
"Noble Common Shares" means common shares of the capital stock of
Noble International, Ltd.
"Noble Material Adverse Effect" shall mean an effect that does or
would reasonably be expected to have a material adverse effect on the
financial condition or results of operations of Noble and its
Subsidiaries, taken as a whole.
"OBCA" means the Ontario Business Corporations Act, as amended.
"Registration Rights Agreement" has the meaning ascribed thereto
in section 2.5 hereof.
"Securities Act" has the meaning ascribed thereto in section 4.2
hereof.
"SEC Reports" has the meaning ascribed thereto in section 4.3
hereof.
"Share Exchange Agreement" has the meaning ascribed thereto in
section 2.3 hereof.
"Support Agreement" has the meaning ascribed thereto in section
2.4 hereof.
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"Subsidiary" shall mean, with respect to any corporation,
association or other business entity, any other corporation,
association, or other business entity a majority (by number of votes) of
the shares of capital stock (or other voting interests) of which is
owned directly or indirectly by such corporation. and shall include any
such other corporation, association or other business entity.
"Tax" means any federal, provincial, state or local tax or any
foreign tax (including, without limitation, any net income, gross
income, profits, premium, estimated, excise, sales, value added, goods
and services, use, occupancy, gross receipts, franchise, license, ad
valorem, severance, capital levy, capital tax, production, stamp,
transfer, withholding, employment, unemployment, payroll or property
tax, customs duty, or any other governmental charge or assessment),
together with any interest, addition to tax, or penalty.
"Tax Act" means the Income Tax Act (Canada), as amended.
"Tax Return" means any return, amended return, declaration,
report, estimate, information return, closing agreement, or statement
required or permitted to be filed under the laws of any jurisdiction in
respect of any Tax.
ARTICLE 2
SALE AND PURCHASE OF STOCK
2.1 Sale and Purchase of CCI Shares. Upon the terms and subject to the
conditions set forth in this Agreement, Sellers shall sell, transfer, assign and
deliver to Acquisition, and Acquisition shall purchase from Sellers, all of
Sellers' right, title and interest in and to the CCI Shares, together with all
rights associated with such CCI Shares, free and clear of all liens,
encumbrances, security interests, mortgages, pledges, charges, agreements,
rights, options, warrants, restrictions and claims of any kind whatsoever,
whether legal or equitable (collectively, "Liens").
2.2. Consideration. In consideration for the sale by Sellers of the CCI
Shares, Acquisition shall pay the following consideration at the Closing (as
defined below):
(a) to First Ontario, CDN$202,717, by certified check or wire
transfer of immediately available funds;
(b) to RoyNat, CDN$202,717, by certified check or wire transfer
of immediately available funds;
(c) to Xxxxxxx, CDN$537,207, by certified check or wire transfer
of immediately available funds;
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(d) to Wrayter, Acquisition shall issue 56,238 Exchangeable
Shares;
(e) to Blake Corp., CDN$405,434, by certified check or wire
transfer of immediately available funds; and
(f) to Xxxxxx Xxxxx, Jr., an individual ("Xxxxx Xx."),
Acquisition shall issue 1,700 Exchangeable Shares.
2.3 Share Exchange Agreement. At the Closing (as defined below),
Wrayter, Xxxxx Xx., Xxxxx, Acquisition and Holdings shall enter into a share
exchange agreement substantially in the form attached as Exhibit A (the "Share
Exchange Agreement") and Acquisition shall create a class of preferred shares of
Acquisition designated as "Class C Exchangeable Non-Voting Preferred Shares"
(the "Exchangeable Shares") that will have the rights, privileges and
restrictions, and be subject to the conditions, set forth in Schedule A of the
Share Exchange Agreement (the "Exchangeable Share Provisions").
2.4 Support Agreement. Prior to the Closing, Noble, Holdings and
Acquisition shall execute and deliver the Support Agreement (the "Support
Agreement") in substantially the form set forth as Exhibit B.
2.5 Registration Rights Agreement. At Closing, Wrayter, Xxxxx Xx. and
Xxxxx shall execute and deliver the First Amendment to Registration Rights
Agreement (the "Registration Rights Amendment") in substantially the form set
forth as Exhibit C, which shall amend that Registration Rights Agreement dated
as of July 24, 1998 between Noble and Wrayter.
2.6 Closing and Closing Date. The execution and delivery of the
documents required to effectuate the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of Gowling, Strathy & Xxxxxxxxx,
Toronto, Ontario on September 28, 1998 (the "Closing Date") or at such other
place and at such time as the parties hereto may agree.
2.7 Contemporaneous Transactions. The parties hereby agree that each of
the transactions contemplated by this Agreement that is in fact consummated
shall, to the extent permitted by applicable law and not otherwise provided for
herein, be deemed consummated substantially contemporaneously with any other
transaction that is in fact consummated pursuant to this Agreement.
2.8 Tax Filings. Wrayter agrees that it will elect, and Noble agrees
that it will cause Acquisition to elect, jointly under subsection 85(1) of the
Tax Act, in the prescribed form and within the prescribed time for purposes of
the Tax Act, that the proceeds of disposition of the CCI Shares held by Wrayter,
and Acquisition's cost of acquiring such CCI Shares shall be such amount as is
directed by Wrayter, within the various limitations provided in subsection 85(1)
of the Tax Act. The aforementioned
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parties hereby agree to file such election as required by the Tax Act and the
regulations thereunder so that the election will have full force and effect for
purposes of the Tax Act.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLERS
In order to induce Noble and Acquisition to enter into this Agreement,
Sellers hereby jointly and severally except as otherwise indicated, represent
and warrant as follows, provided, however, that of the representations and
warranties set forth in this Article 3: (a) each of First Ontario, RoyNat and
Xxxxxxx makes only the representations and warranties set forth in Sections
3.3(b), 3.23, 3.24 and 3.25; and (b) Blake Corp. makes all of the following
representations and warranties only to the extent of the knowledge of Xxxxxx
Xxxxx, Sr. after reasonable inquiry as has been conducted or will be conducted
prior to Closing (provided that: as to (1) any state of facts which existed as
of May 31, 1997, and (2) the representations and warranties contained in
Sections 3,3(b), 3.23, 3.24 and 3.25, Blake Corp. shall be deemed to have
knowledge of such state of facts or representations and warranties, as the case
may be).
3.1 Due Organization, Authorization and Good Standing of CCI. CCI is a
corporation duly organized, validly existing and in good standing under the OBCA
and each Subsidiary of CCI is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation as
listed in Section 3.1 of the disclosure schedule prepared by CCI and provided to
Noble concurrently with the execution of this Agreement, as amended or
supplemented in accordance with Section 5.6 (the "CCI Disclosure Schedule"). CCI
has the requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement to consummate all transactions contemplated
hereby. The execution, delivery and performance by CCI of this Agreement, and
the consummation by CCI of the transactions contemplated hereby, have been duly
and validly authorized and approved by all necessary corporate action in respect
thereof on the part of CCI. This Agreement constitutes the valid and binding
obligation of CCI, enforceable in accordance with its terms. Each of CCI and its
Subsidiaries has full corporate power and authority to carry on its business as
now conducted and to own or lease and to operate its properties and assets where
such properties and assets are now owned, leased or operated by it and where
such business is now conducted by it. Each of CCI and its Subsidiaries is duly
qualified to do business and is in good standing as a foreign corporation and
licensed or qualified to transact business in the jurisdictions set forth in
Section 3.1 of the CCI Disclosure Schedule, which are the only jurisdictions
where such qualification is required by reason of the nature of the business
conducted by it or the properties or assets owned, operated or leased by it,
other than such failures to be so licensed or qualified that in the aggregate
would not have a CCI Material Adverse Effect. True, complete and correct copies
of the charter, By-laws and other analogous organizational
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documents (the "Charter Documents") of CCI and each of its Subsidiaries as in
effect on the date hereof have heretofore been delivered to Noble.
3.2 No Violation or Approval. Each of the Sellers individually
represents and warrants that, except as set forth in Section 3.2 of the CCI
Disclosure Schedule, the execution, delivery and performance by CCI and such
Seller of this Agreement and the consummation of the transactions contemplated
hereby will not result in a breach or violation of, or a default under, or the
acceleration of any payment obligation pursuant to, any law, rule or regulation
applicable to CCI, its Subsidiaries or such Seller, as the case may be, or of
any material agreement or instrument to which any of them is a party or by which
any of them or any of their properties are bound, or any order, judgment or
decree of any court or any governmental agency or body having jurisdiction over
any of them or their properties or in a breach or a default under any of their
Charter Documents. No consent, approval, order or authorization of, declaration
or filing with, any governmental authority or entity or other party is required
to be obtained or made by CCI or such Seller in connection with the execution
and delivery of this Agreement or the consummation by CCI or such Seller of the
transactions contemplated hereby other than (i) any applicable notification
requirement under the Investment Canada Act; and (ii) with respect to CCI and
its Subsidiaries, such failures to obtain or make such other consents,
approvals, orders, authorizations, declarations or filings that in the aggregate
would not have a CCI Material Adverse Effect.
3.3 Capital Stock and Title to Shares.
(a) The authorized capital stock of CCI consists of: an unlimited
number of Class M Common Shares, of which 1,000 shares are outstanding;
an unlimited number of Class X Common Shares, of which 20,000 shares are
outstanding; 3,500,000 Class X Special Shares, of which 3,500,000 shares
are outstanding; an unlimited number of Class Y Common Shares, of which
60,000 shares are outstanding; and an unlimited number of Class Z Common
Shares, of which 20,000 shares are outstanding. Other than as set forth
in Section 3.3 of the CCI Disclosure Schedule, CCI has not issued or
obligated itself to issue, any shares of capital stock or any
outstanding options, warrants, rights, other agreements or commitments
obligating it to issue or sell shares of its capital stock or any
securities or obligations convertible into, or exchangeable for, any
shares of its capital stock. No CCI common shares are held as treasury
stock or by any Subsidiary of CCI, and no preference shares of CCI are
outstanding. All of the outstanding CCI Shares have been validly issued,
fully paid and nonassessable and free of preemptive rights. None of the
outstanding CCI Shares, options, warrants and other securities has been
issued in violation of the preemptive rights of any security holder of
CCI. None of the holders of outstanding CCI Shares is subject to
personal liability solely by reason of being such a holder. Neither CCI
nor any of its Subsidiaries has any outstanding options, warrants,
rights, other agreements or commitments obligating it to issue
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or sell shares of its capital stock or any securities or obligations
convertible into, or exchangeable for, any shares of its capital stock.
Neither CCI nor any of its Subsidiaries has outstanding any bonds,
debentures, notes or other indebtedness the holders of which have the
right to vote (or that are convertible or exercisable into securities
having the right to vote) with holders of CCI Shares on any matter.
There are no shareholders of CCI other than the Sellers.
(b) Each of the Sellers individually represents and warrants that
such Seller is the legal and equitable owner of the CCI Shares listed
adjacent to its name in Section 3.3 of the CCI Disclosure Schedule, free
and clear of all Liens, and that upon consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof,
Acquisition will acquire valid and marketable title to the CCI Shares
transferred by such Seller, free and clear of all Liens.
3.4 Subsidiaries. Except for the equity investments set forth in Section
3.4 of the CCI Disclosure Schedule, CCI does not own, directly or indirectly,
any capital stock, any partnership or equity or other ownership interest in, or
any security issued by, any other corporation, organization, association, entity
or business enterprise, and Section 3.4 of the CCI Disclosure Schedule indicates
which such equity investments are Subsidiaries of CCI and which are minority
ownership interests. Except as set forth in Section 3.4 of the CCI Disclosure
Schedule, CCI owns, directly or indirectly, all of the outstanding shares of
each of the entities listed thereon and identified as Subsidiaries of CCI
(except for directors' qualifying shares or such shares as may be required by
local laws to be owned by residents of the jurisdiction of incorporation) free
and clear of all Liens. All shares of capital stock owned by CCI in any of its
Subsidiaries are duly authorized, validly issued, fully paid and nonassessable.
3.5 Financial Statements and Accounting. At least seven (7) days before
Closing, CCI will furnish Acquisition and/or Noble with true and complete copies
of the following financial statements (collectively, the "Financial
Statements"): (i) consolidated financial statements for the fiscal years ended
May 31, 1998, respectively, audited by Ernst & Young; and (ii) unaudited
statements of income and cash flows for the fiscal quarter ended August 31, 1998
and the accompanying balance sheet as of August 31, 1998, each prepared from the
books and records of CCI and its consolidated Subsidiaries. The Financial
Statements present fairly, in all material respects, the consolidated financial
position of CCI and the results of its operations and its cash flows as of the
respective dates and for the periods presented therein in conformity with
generally accepted accounting principles in Canada as in effect on the
applicable dates of such financial statements ("Canadian GAAP") and applied on a
consistent basis, except as noted therein and except that in the case of the
unaudited financial statements, no notes are included and such unaudited
financial statements may be subject to normal, recurring adjustments that would
be made in the course of an audit and that would not be material. Except as and
to the extent reflected or reserved
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against in the balance sheet as of August 31, 1998 included in the Financial
Statements or as set forth in Section 3.5 of the CCI Disclosure Schedule, CCI
and its Subsidiaries, taken as a whole, do not have any material liabilities or
obligations of any nature. CCI maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of
consolidated financial statements in conformity with Canadian GAAP and to
maintain accountability for assets, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
3.6 Absence of Changes; Operations in the Ordinary Course. Except as set
forth in Section 3.6 of the CCI Disclosure Schedule, since May 31, 1998, neither
CCI nor any of its Subsidiaries has undergone any adverse change in its
financial condition, or suffered any damage, destruction or loss (whether or not
covered by insurance) that adversely affects its financial condition, the
condition of its assets or the ability to conduct its business other than such
changes in financial condition, damage, destruction or loss as in the aggregate
would not have a CCI Material Adverse Effect; and since May 31, 1998, except as
set forth in Section 3.6 of the CCI Disclosure Schedule, there has been no
adverse change in the condition of the business of CCI or any of its
Subsidiaries, whether as a result of any change as to accounts receivable,
inventory or other assets, any loss of competitive position, any natural
disaster, accident, strike, sabotage, or confiscation of property, or any other
event or condition directly affecting or relating to CCI, whether or not related
to any of the foregoing, except for such changes as would not in the aggregate
have a CCI Material Adverse Effect and except as set forth in Section 3.6 of the
CCI Disclosure Schedule, CCI and each of its Subsidiaries has operated its
business in the ordinary course, consistent in all material respects with past
practice. Without limiting the generality of the foregoing, since May 31, 1998,
neither CCI nor any of its Subsidiaries has:
(a) amended the terms of any outstanding indebtedness or incurred
any indebtedness for borrowed money that has not been repaid in full, or
issued or sold any of its debt or equity securities, except in the
ordinary course of business consistent with past practice;
(b) subjected to any Lien or lease any of its properties,
tangible or intangible, except in the ordinary course of business
consistent with past practice;
(c) forgiven or canceled any debts owed to CCI or any of its
Subsidiaries or claims of CCI or any of its Subsidiaries, or waived any
rights, except in the ordinary course of business consistent with past
practice;
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(d) incurred any liability or obligation (whether absolute,
accrued, contingent or otherwise) or made any payment in respect of (i)
any acquisition or disposition of any assets or properties in any
transaction with any officer, director, shareholder or employee of CCI
or any of its Subsidiaries, or any relative by blood or marriage or any
"Affiliate" (as such term is used in the Tax Act) or any other person
not at arms-length (as such term is used under the Tax Act) of or with
CCI or other or any of its Subsidiaries, (ii) except as set forth in
Section 3.6 of the CCI Disclosure Schedule, any other transaction with
any such affiliate or associate of CCI or any of its Subsidiaries, other
than salaries paid to officers, or (iii) any declaration, setting aside
or payment of dividends or other distributions in respect of, or
purchases or redemptions (directly or indirectly) of, any shares of its
capital stock;
(e) entered into or publicly announced an intention to enter into
any agreement (including, without limitation, an agreement in principle)
with respect to, any acquisition of a material amount of assets or
securities or any release or relinquishment of any material contract
rights not in the ordinary course of business;
(f) made any capital expenditures other than in the ordinary
course of business consistent with past practice or as necessary to
maintain existing assets in good repair;
(g) committed any act or omission that constitutes a material
breach or default by CCI or any of its Subsidiaries under any material
contract or material license to which CCI or any of its Subsidiaries is
a party or by which any of them or their respective properties is bound;
(h) made any investment or commitment to make such an investment
in real estate or in any real estate development project;
(i) except as disclosed in the Financial Statements or in Section
3.6 of the CCI Disclosure Schedule: (i) granted to any officer or
employee any increase in compensation in any form (including without
limitation any increase in value of any benefits) in excess of the
amount thereof in effect as of May 31, 1998 other than increases in base
salary or hourly wages of employees other than officers of CCI in the
ordinary course of business in amounts consistent with past practice, of
any severance or termination pay, or entered into any employment
agreement with any employee that is not terminable by the employer,
without cause and without penalty, upon notice of 30 days or less, (ii)
adopted or amended any bonus, profit-sharing, compensation, stock
option, pension, retirement, deferred compensation or other plan,
agreement, trust, fund or arrangement for the benefit of employees
(whether or not legally binding), (iii) hired any employee who shall
have total expected annual compensation in excess of US$100,000, or (iv)
paid or incurred any obligation to pay any bonus
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or fee to any employee (including any officer) of CCI or any of its
Subsidiaries or in connection with the transactions contemplated by this
Agreement; or
(j) agreed in writing or otherwise to do any of the foregoing.
3.7 Assets and Liabilities.
(a) Section 3.7(a) of the CCI Disclosure Schedule contains a
true and complete list of all material furniture, fixtures
and other fixed assets used in connection with or related
to the Business, other than the leased personal property
described in Section 3.9 thereof (the "Leased Personal
Property").
(b) Section 3.7(b) of the CCI Disclosure Schedule contains a
true and complete list of all equipment, machinery, tools,
dies, jigs, patterns, molds, engineering and office
equipment and vehicles used in connection with the
operation of or related to the Business, other than the
Leased Personal Property.
(c) Section 3.7(c) of the CCI Disclosure Schedule contains a
true and complete list of all material third party
warranties and claims for warranties relating to the
Business, its assets or the Leased Personal Property.
(d) The assets listed in Sections 3.7(a), (b) and (c) of the
CCI Disclosure Schedule, along with the Leased Personal
Property and the Real Property as defined below,
constitute all of the assets that are used in connection
with the operation of, or that are related to, the
Business. All of the tangible assets (other than cash and
cash equivalents) and all of the Leased Personal Property
are located at the Real Property.
(e) Section 3.17 of the CCI Disclosure Schedule, as described
below, identifies all material contracts of CCI and its
Subsidiaries (collectively, the "Contracts").
(f) Section 3.7(f) of the CCI Disclosure Schedule identifies
all current short-term and long-term debts and liabilities
of CCI and each of its Subsidiaries (collectively, the
"Liabilities"). The Liabilities represent all of the
indebtedness of CCI and its Subsidiaries to all persons or
entities. CCI and each of its Subsidiaries have complied
in all material respects with the provisions of each note,
xxxx or other instrument establishing or creating any
indebtedness of CCI or its Subsidiaries and are not in
default under any such instrument.
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3.8 Taxes.
(a) For each of its taxation or taxable years or periods ending
on or prior to the date hereof: (i) all Tax Returns that are required to
have been filed by or with respect to CCI or any of its Subsidiaries
have been duly and timely filed and are correct and complete in all
material respects; (ii) all Taxes with respect to or required to have
been paid by CCI or any of its Subsidiaries or for which CCI or any of
its Subsidiaries is or may otherwise be liable (including without
limitation all Consolidated Taxes), whether or not shown on any Tax
Return, have been paid in full if due or accrued for in accordance with
Canadian GAAP in the Financial Statements through the date thereof and
in the books and records of CCI or the relevant Subsidiary in respect of
subsequent periods; and (iii) all Taxes other than those described in
clause (ii) with respect to or required to have been paid by CCI or any
of its Subsidiaries or for which CCI or any of its Subsidiaries is or
may otherwise be liable, whether or not shown on any Tax Return, have
been paid in full if due or accrued for in accordance with Canadian GAAP
in the Financial Statements through the date thereof and in the books
and records of CCI or the relevant Subsidiary in respect of subsequent
periods except for such amounts the nonpayment of which, in the
aggregate, would not result in a CCI Material Adverse Effect.
(b) Except as set forth in Section 3.8 of the CCI Disclosure
Schedule, (i) there are no assessments, reassessments, audits,
proceedings, or litigation in respect of Taxes relating to CCI or any of
its Subsidiaries pending, in progress, or to CCI's knowledge,
threatened, (ii) there are no liens in respect of Taxes upon any
property or assets of CCI or any of its Subsidiaries other than liens
for Taxes that are not yet due and payable, and (iii) neither CCI nor
any of its Subsidiaries has consented to any extension of any statute of
limitations pertaining to Taxes.
(c) CCI and each of its Subsidiaries has collected or withheld
all amounts required to be collected or withheld by it on account of
Taxes or otherwise, and has remitted the same to the appropriate
governmental authority in the manner and within the time required under
any applicable legislation or, if it is not yet due, has set it aside in
appropriate accounts for payment when due.
(d) The liability for Taxes under the Tax Act and all applicable
provincial Tax laws as to each of CCI and its Subsidiaries has been
assessed by Revenue Canada and the Ministry of Revenue or other
applicable taxing authority in each such province, respectively, for all
taxation years up to and including the most recently concluded taxation
year. True and complete copies of the federal and provincial Tax Returns
for CCI and each Subsidiary for the most recently ended taxation year
and copies of all assessments and
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reassessments relating to the most recent taxation year for which the
same are available have been provided to Noble.
(e) There are no circumstances that exist and would result, or
that have existed and resulted, in section 80 of the Tax Act applying to
CCI or any of its Subsidiaries.
3.9 Properties. CCI and each of its Subsidiaries has good and
marketable title to all real property and all tangible personal property
reflected in the August 31, 1998 balance sheet included in the Financial
Statements or acquired since such date (except for property disposed of since
such date in the ordinary course of business consistent with past practice), and
valid leasehold interests in all real and tangible personal properties leased by
it, in each case free and clear of Liens, easements or title imperfections
except (i) Liens for current Taxes not yet due and payable, (ii) encumbrances
and easements that do not materially detract from the value or interfere with
the use by CCI or any of its Subsidiaries, as the case may be, of the properties
affected thereby, (iii) Liens reflected in the Financial Statements, (iv) Liens
of customers on property purchased by CCI in connection with its performance of
contracts to provide products or services to such customers and which in the
aggregate would not have a CCI Material Adverse Effect, and (v) Liens set forth
in Section 3.9 of the CCI Disclosure Schedule. Section 3.9 of the CCI Disclosure
Schedule lists all material leases of real and/or personal property to which CCI
or any of its Subsidiaries is a party or which property is used or leased by CCI
or any of its Subsidiaries. CCI or its Subsidiary, as owner or lessee thereof,
enjoys peaceful and undisturbed possession of all of the real property which it
owns or leases and of the tangible personal property under all material leases.
With regard to all real property owned or used by CCI and its Subsidiaries (the
"Real Property"), except as described in Section 3.9 of the CCI Disclosure
Schedule:
(a) CCI has received all approvals of governmental authorities,
including all licenses and permits required in connection with the
ownership or[ownership or] operation of such building or real property,
such building or real property has been operated and maintained in
accordance with applicable laws, rules and regulations and CCI has not
received any notice, written or oral, of any violation of any applicable
laws, rules or regulations;
(b) the Real Property is supplied with all utilities and other
services necessary and adequate for the operation of such Real Property,
in accordance with all applicable laws, ordinances, rules and
regulations and are provided from adjoining public lands dedicated to
providing such services or permanent, irrevocable, appurtenant easements
benefiting the property;
(c) the Real Property abuts on and has direct vehicular access to
a public road or has access to a public road through a permanent,
irrevocable, appurtenant easement benefiting the property;
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(d) each building and other improvement is located solely on the
Real Property, does not encroach onto adjoining land or onto any portion
of property burdened by any easement, and there are no improvements
located on adjoining land which encroach onto the Real Property;
(e) none of the buildings or other improvements or property
violate any applicable setback requirements, zoning laws and ordinances,
none are subject to "permitted non-conforming use" or "permitted
non-conforming structure" classifications, and none are located within
any flood plain or subject to any similar type restriction for which any
permits or licenses necessary to its use has not been obtained;
(f) CCI has not received any notices or orders from any
governmental body, or any board of fire underwriters or similar fire and
safety rating body, and no such notice or order is or has been
threatened, concerning any violations of laws, municipal ordinances,
fire regulations, insurance regulations, labour regulations or of any
other governmental, administrative or regulatory body or other
requirements of law which affect the Real Property or the facilities
owned or[owned or] leased by the Company; and
(g) the Real Property and all of the structures and structural
components located thereon are in good condition and repair and are free
from material defect.
3.10 Customers, Distributors and Suppliers. Except as set forth in
Section 3.10 of the CCI Disclosure Schedule, neither CCI nor any of its
Subsidiaries has received notice from any person or entity with which it has an
existing agreement, oral or written, for the purchase or distribution of
products or services from CCI or any of its Subsidiaries that it intends to
reduce significantly such purchases or terminate such agreement, whether as a
result of the transactions contemplated hereby or otherwise, other than such
reductions and actions as in the aggregate would not have a CCI Material Adverse
Effect.
3.11 Operations in Conformity With Law, etc. Neither CCI nor any of its
Subsidiaries has been or is in violation of, or in default under, any law, rule,
regulation, order, judgment or decree relating in any manner or applicable to
the business or assets of CCI or any of its Subsidiaries or any of their
respective employees, except for such violations or defaults that in the
aggregate would not have a CCI Material Adverse Effect. Neither CCI or any of
its Subsidiaries, nor, to the knowledge of CCI or any of its Subsidiaries, any
of their respective officers, employees or agents has (a) directly or indirectly
given or agreed to give any illegal gift, contribution, payment or similar
benefit to any supplier, customer, governmental official or employee or other
person who was, is or may be in a position to help or hinder CCI or any of its
Subsidiaries (or assist in
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connection with any actual or proposed transaction) or made or agreed to make
any illegal contribution, or reimbursed any illegal political gift or
contribution made by any other person, to any candidate for Canadian or United
States Federal, provincial, state or local, or foreign public office
(collectively, a "Restricted Activity") that (i) would subject CCI or any of its
Subsidiaries to any damage or penalty in any civil, criminal or governmental
litigation or proceeding that would have, in the aggregate, a CCI Material
Adverse Effect, (ii) if such Restricted Activity had occurred after the Closing
Date, would subject Noble to any damage or penalty in any civil, criminal or
governmental litigation or proceeding that would have, in the aggregate, a CCI
Material Adverse Effect, or (iii) if such Restricted Activities were to cease as
of the date hereof, such cessation would have a CCI Material Adverse Effect.
3.12 Litigation. Except as set forth in Section 3.12 of the CCI
Disclosure Schedule, there are no actions, claims, suits, investigations or
proceedings pending or to CCI's knowledge threatened against CCI or any of its
Subsidiaries pertaining to the business or assets of CCI or any of its
Subsidiaries that, in the aggregate, if adversely determined, would have a CCI
Material Adverse Effect or that question the validity of this Agreement or any
action taken or to be taken pursuant to or in connection with the provisions of
this Agreement, nor to the knowledge of CCI or its subsidiaries is there any
basis for any such action, claim, suit, proceeding or investigation. There are
no judgments, orders, decrees, citations, fines or penalties heretofore assessed
(and not discharged or otherwise satisfied) against CCI or any of its
Subsidiaries under any Canadian or United States Federal, provincial, state or
local, or foreign law except for such judgments, orders, decrees, citations,
fines or penalties that in the aggregate would not have a CCI Material Adverse
Effect.
3.13 Employee Matters; Benefit Plans.
(a) All plans, agreements, policies and arrangements (including
those sponsored by the Federal or any provincial government of Canada),
whether or not reduced to writing and whether or not legally binding, to
which CCI or any of its Subsidiaries contributes or is obligated to
contribute, or under which CCI or any of its Subsidiaries has or may
have any liability for premiums or benefits, and which benefits any
active, former or retired employee, outside director, consultant or
other independent contractor who provides or provided services to or for
the benefit of CCI and its Subsidiaries, are listed in Section 3.13 of
the CCI Disclosure Schedule (the "Plans"). CCI has delivered to Noble a
true, correct and complete copy of each written Plan (or a written
summary of the material terms of any Plan that has not been reduced to
writing) any related trust agreement and annuity or insurance contract,
if any, each Plan's most recent annual report filed with any tax or
governmental authority, if any, and all summary plan descriptions,
employee handbooks, or other similar employee communications with
respect to the Plans.
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(b) Each Plan has been maintained and administered in material
compliance with its terms and with the requirements prescribed by any
and all applicable statutes, orders, rules and regulations, and is, to
the extent required by applicable law or contract, fully funded without
having any deficit or unfunded actuarial liability; all required
employer contributions under any such Plans have been made and the
applicable funds have been funded in accordance with the terms thereof
and no past service funding liabilities exist thereunder; and all
material contributions, reserves or premium payments required to be made
as of the date hereof to the Plans have been made or provided for.
(c) Each Plan that is required or intended to be qualified under
applicable law or registered or approved by a government agency or
authority has been so qualified, registered or approved by the
appropriate governmental agency or authority, and nothing has occurred
since the date of the last qualification, registration or approval to
cause the appropriate governmental agency or authority to revoke, or
otherwise adversely affect, such qualification, registration or
approval.
(d) Except as set forth in Section 3.13 of the CCI Disclosure
Schedule, there are no pending or, to CCI's knowledge, anticipated
claims against or otherwise involving any of the Plans and no suit,
action or other litigation (excluding claims for benefits incurred in
the ordinary course of Plan activities) has been brought against or with
respect to any such Plan.
(e) Except as set forth in Section 3.13 of the CCI Disclosure
Schedule, there has been no withdrawal of assets by CCI or its
Subsidiaries from any of the Plans, other than refunds of contributions
or payments of expenses permitted by applicable law.
(f) Except as set forth in Section 3.13 of The CCI Disclosure
Schedule, neither CCI nor any of its Subsidiaries has any obligations
for retiree health and life benefits under any Plan, and there are no
restrictions on the rights of CCI or any of its Subsidiaries to amend or
terminate any such Plan without incurring any liability thereunder.
3.14 Labour Relations. Section 3.14 of the CCI Disclosure Schedule
lists, as of the date hereof, all employees of CCI and its Subsidiaries,
together with their respective positions, years of employment and rates of
remuneration. There is no existing dispute or controversy between CCI or any of
its Subsidiaries and any of CCI's or such Subsidiary's employees that would have
a CCI Material Adverse Effect. Neither CCI nor any of its Subsidiaries is a
party to any collective bargaining agreement with respect to any of its
employees, none of such employees is represented by a labour union and, to CCI's
knowledge, there is no labour union organizing activity by or among such
employees. There are no outstanding proceedings before or orders of any labour
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relations, occupational health and safety, human rights or other similar body or
tribunal concerning employees of CCI or any of its Subsidiaries that could have
a CCI Material Adverse Effect.
3.15 Licenses, etc. CCI and each of its Subsidiaries has all
governmental and regulatory licenses and permits, permits, approvals, consents,
certificates, registrations and other authorizations (collectively,
"Authorizations") necessary for the conduct of its business as presently
conducted except where the failure to obtain or maintain such licenses and
permits would not, in the aggregate, have a CCI Material Adverse Effect. All
such Authorizations are in full force and effect, and no violations have been
recorded in respect thereof. Neither CCI nor any of its Subsidiaries is in
violation of any such Authorization, and no proceeding or investigation is
pending or, to CCI"s or any of its Subsidiaries" knowledge, threatened that
would have the effect, directly or indirectly, of revoking or limiting in any
way any such Authorizations. Section 3.15 of the CCI Disclosure Schedule
contains a true and complete list of all Authorizations.
3.16 Environmental Matters. Except as disclosed at Section 3.16 of the
CCI Disclosure Schedule: CCI and each of its Subsidiaries is and has at all
times been in compliance in all material respects with all applicable Canadian
and United States federal, provincial, state and local, and foreign laws,
regulations, by-laws, ordinances, orders, directives and decisions and policies,
instructions, guidelines and similar guidance of any ministry, department or
administrative or regulatory agency relating to environmental, natural resources
or health and safety matters or the manufacture, processing, distribution, use,
treatment, storage, disposal, discharges, packing, transport, handling,
containment, clean-up or other remediation of Hazardous Substances
(collectively, "Environmental Laws"); and there is no suit, claim, action,
investigation or proceeding pending or threatened against CCI or any of its
Subsidiaries or, to CCI's and each Subsidiary's knowledge, any basis therefor,
in respect of (i) noncompliance by CCI or any of its Subsidiaries with any
Environmental Laws, (ii) personal injury, wrongful death, other tortious
conduct, or relating to materials, commodities or products held, used, sold,
transferred, manufactured or disposed of by or on behalf of CCI or any of its
Subsidiaries, containing or incorporating any hazardous or toxic materials,
commodities or Hazardous Substances, or (iii) the presence or release or
threatened release into the environment of any pollutant, contaminant,
deleterious or toxic or hazardous material, substance or waste, chemical waste,
deleterious, toxic or hazardous material or substance, whether solid, liquid or
gas (each a "Hazardous Substance"), whether generated by CCI or any of its
Subsidiaries or located at or about a site leased or otherwise used by CCI or
any of its Subsidiaries or heretofore owned, leased or otherwise used by CCI or
any of its Subsidiaries or any predecessor entity. To CCI's and each
Subsidiary's knowledge, there have been no Hazardous Substances of or generated
by CCI or any Subsidiary that have been disposed of or come to rest at any site
that has been included in any published United States Federal, state or local
"superfund" site list or any other list of hazardous or toxic waste sites
published by any governmental authority in Canada or the United States.
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Except as disclosed at Section 3.16 of the CCI Disclosure Schedule, to CCI's and
each Subsidiary's knowledge, there are and have been no underground storage
tanks located on, no polychlorinated biphenyls ("PCBs") or PCB-containing
equipment used or stored on, and no Hazardous Substances, stored on, any site,
leased or otherwise, used by CCI or any Subsidiary. Except as disclosed at
Section 3.16 of the CCI Disclosure Schedule, to CCI's and each Subsidiary's
knowledge, there have been no emissions or releases or threatened emissions or
releases of Hazardous Substances on, upon, into or, from or to any site leased
or otherwise used by CCI or any of its Subsidiaries or heretofore owned, leased
or otherwise used by CCI or any of its Subsidiaries or any predecessor entity.
CCI has delivered to Acquisition true and complete copies of all audits,
evaluations, assessments, studies, tests, reports and minutes of meetings
dealing with environmental and/or health and safety matters relating to any of
CCI, the Subsidiaries or their respective businesses or assets which are or with
reasonable effort could be within the possession or control of CCI.
3.17 Contractual obligations, etc. Section 3.17 of the CCI Disclosure
Schedule contains a true and complete list of all contracts, agreements, deeds,
mortgages, leases (whether or not capitalized), licenses, instruments,
commitments, sales orders, purchase orders, quotations, bids, undertakings,
arrangements or understandings, written or oral (each, a "Contract") to which or
by which CCI or any of its Subsidiaries is a party or otherwise bound or to
which or by which any of CCI's or its Subsidiaries' assets are subject of the
types described below and in effect on the date hereof (Contracts of the type
described below, collectively, the "Contractual obligations").
(a) All Contracts relating to noncompetition;
(b) All Contracts to which any employee is a party;
(c) All Contracts relating to the provision of consulting
services that involve liabilities or obligations of CCI or any of its
Subsidiaries in excess of CDN$150,000 or that have a term extending more
than one year after the Closing Date;
(d) All Contracts (including without limitation options) to sell
(other than sales of products) or lease (as lessor) any property or
asset owned or leased by CCI or any of its Subsidiaries, other than
property or assets having individual values less than CDN$50,000 and an
aggregate value less than CDN$300,000;
(e) All Contracts pursuant to which CCI or any of its
Subsidiaries possesses or uses (including as lessee) any properties or
assets in its business the loss of use of which would have a CCI
Material Adverse Effect, or pursuant to which CCI pays, accrues expenses
of or incurs charges of at least CDN$50,000 per annum;
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(f) All Contracts for the sale of products or provision of
services by CCI or any of its Subsidiaries that individually involve
products or services having a value of at least CDN$250,000 or that have
a term extending more than one year after the Closing Date;
(g) All Contracts with suppliers or providers of goods or
services (other than cleaning, trash removal, facilities maintenance or
repair, or similar services and other than agent or representation
agreements terminable upon no more than one year's notice) to CCI or any
of its Subsidiaries, including without limitation purchase orders, that
individually involve liabilities in excess of CDN$100,000; and
(h) Each other Contract (other than Contracts of the type
described in (a) through (g) of this Section 3.17) that involves
liabilities or obligations of CCI or any of its Subsidiaries in excess
of CDN$150,000 or that has a term extending more than one year after the
Closing Date.
CCI shall make available to Noble upon request a true and complete copy of each
of the Contractual Obligations referred to in (a) through (h) except as
otherwise provided in Section 3.18 below. Other than defaults resulting from
claims, penalties or causes of action disclosed in Section 3.12 or Section 3.17
of the CCI Disclosure Schedule, neither CCI nor any of its Subsidiaries nor, to
the knowledge of CCI or its Subsidiaries, any other party is in default under or
in breach or violation of, nor has an event occurred that (with or without
notice, lapse of time or both) would constitute a default by CCI or any of its
Subsidiaries or to CCI's knowledge by any other party, under any Contractual
Obligations which defaults, in the aggregate, have a CCI Material Adverse
Effect.
3.18 Affiliated Transactions. Except for Contracts described in Section
3.17 of the CCI Disclosure Schedule, none of the directors, officers,
shareholders or employees of CCI or any of its Subsidiaries, or any relative by
blood or marriage or any Affiliate of, or person not dealing at arms length with
any of the foregoing, is currently a party to any Contractual Obligation.
3.19 Patents, Trademarks, etc. Section 3.19 of the CCI Disclosure
Schedule contains a complete and correct list of all patents, patent
applications, trade names, trademarks, trademark applications, service marks,
copyrights and copyright applications owned or used by CCI or any of its
Subsidiaries. CCI and each of its Subsidiaries owns, or pursuant to license
agreements possesses adequate rights to use, all patents, trade names,
trademarks, copyrights, inventions, processes, designs, formulas, trade secrets,
know-how and other intellectual property and proprietary rights (collectively,
the "Intellectual Property Rights") used in or necessary in all material
respects for the conduct of its business with no known conflict with or
infringement of the asserted rights of others. With respect to any such
Intellectual Property Right owned by CCI or any of its Subsidiaries, CCI or such
Subsidiary is the sole and
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exclusive owner of, with all right, title and interest in and to, free and clear
of any Lien, such Intellectual Property Right and CCI and its Subsidiaries have
sole and exclusive rights (and except as reflected in the Financial Statements,
are not contractually obligated to pay any compensation to any third party in
respect thereof) to the use thereof. To the best of CCI's knowledge (i) all
inventions, processes, designs, formulas, trade secrets, knowhow and other
intellectual property that are material and have not been patented or
copyrighted have been kept confidential and (ii) no third party is currently
infringing or has infringed the rights of CCI or any of its Subsidiaries under
any patent, trade name, trademark or copyright owned by CCI or any of its
Subsidiaries.
3.20 Insurance. Section 3.20 of the CCI Disclosure Schedule contains a
summary description of all insurance policies maintained by CCI or its
Subsidiaries, all of which policies are in full force and effect. Such insurance
policies maintained by CCI insure against all normal risk and peril as is
customary in the CCI's industry. No state of facts exists nor has any event
occurred which forms the basis for any present claim against CCI not fully
covered by insurance and reported to the insurers in accordance with the terms
and conditions of the insurance contract(s). No insurer has reserved its rights
or refused to indemnify or defend CCI as the result of any present claims.
3.21 Customer Warranty Coverage. Section 3.21 of the CCI Disclosure
Schedule contains a description of all warranty coverages (including terms of
such coverages, expiration dates, and estimated amounts of liability) extended
by CCI or any of its Subsidiaries for repair or replacement of defective
products or service to its customers as of the date indicated thereon. The
estimated liability for warranty claims is fairly reflected in the Financial
Statements.
3.22. Certain Agreements. Except as set forth in Section 3.22 of the CCI
Disclosure Schedule, neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby or by the Share
Exchange Agreement will (i) result in any payment (including, without
limitation, severance, unemployment compensation, parachute payment, bonus or
otherwise) becoming due to any director, employee or independent contractor of
CCI or its Subsidiaries, from CCI or any of its Subsidiaries under any Plan,
agreement or otherwise, (ii) except as contemplated by the Employment
Agreements, increase any benefits otherwise payable under any Plan or agreement,
or (iii) result in the acceleration of the time of payment or vesting of any
such benefits.
3.23 Brokers, Finders, etc. Each of the Sellers individually represents
and warrants that all negotiations relating to this Agreement and the
transactions contemplated hereby have been carried on without the intervention
of any person acting on behalf of such Seller in such manner as to give rise to
any valid claim against such Seller, CCI, Acquisition or Noble for any brokerage
or finder's commission, fee or similar compensation.
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3.24 Authority of Sellers. Each of the Sellers individually represents
and warrants that: (a) it has, and at the Closing Date will have, all requisite
power and authority (i) to enter into this Agreement and all other instruments
and agreements contemplated hereby to which it is contemplated to be a party,
and (ii) to carry out and perform its respective obligations hereunder and
pursuant to all instruments and agreements contemplated hereby to which it is
contemplated to be a party; (b) it has, and at the Closing Date will have, all
requisite power and authority to sell and transfer to Acquisition, as provided
herein, the CCI Shares which it purports to own; (c) this Agreement is, and all
agreements and instruments contemplated hereby to which it is a party, when
executed and delivered in accordance with the terms hereof will be, valid and
binding obligations of such Seller, enforceable in accordance with their
respective terms.
3.25 Residency of Sellers. Each of the Sellers individually represents
and warrants that it is not a non-resident of Canada for the purposes of the Tax
Act.
3.26 Value and Gross Revenue Thresholds.
(a) For the purposes of this section 3.26, the "Relevant Date" in
respect of an entity means the last day of such entity's most recently
completed fiscal year or, if such entity has not completed a fiscal
year, the Closing Date.
(b) As at the Relevant Date, the aggregate value of the assets of
CCI and each of its affiliates (as such term is used under the
Competition Act (Canada)) as at the time of closing, as stated in the
records of each such entity used to prepare its financial statements
(without deducting any amount for liabilities or encumbrances),
determined in accordance with accounting principles normally used by
such entities and that are generally accepted for the type of business
carried on by such entities, was less than CDN$200 million.
(c) For the 12 months ended on the Relevant Date, the aggregate
gross revenues from sales generated from the assets of CCI and each of
its affiliates as at the time of closing, as stated in the records of
each such entity used to prepare its financial statements (including all
amounts accruing from the sale or lease of goods and all amounts
accruing from the rendering of services, without deducting any expenses
or other amounts incurred or provided for in relation to the sale or
lease of goods or the rendering of services), determined in accordance
with accounting principles that are normally used by such entities and
that are generally accepted for the type of business carried on by such
entities, was less than CDN$200 million.
(d) Since the date of its most recently completed fiscal year,
none of CCI or any of its affiliates as at the time of closing has been
a party to or otherwise been affected by any transaction or event, such
as an acquisition or
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re-evaluation of assets for reporting purposes, which would increase the
value of the assets or gross revenues above the thresholds described in
subsections (b) and (c) above.
3.27 Disclosure; Provision of Information. This Agreement, including the
Exhibits hereto and the CCI Disclosure Schedule, the certificates delivered or
to be delivered in connection herewith, taken as a whole, do not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements herein or therein not misleading, and with regard to all
copies of executed documents, such copies are true and accurate representations
of the original executed documents now in effect.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF NOBLE AND ACQUISITION
Noble and Acquisition jointly and severally represent and warrant to the
Sellers as follows in Section 4.1:
4.1 Due Organization, Authorization and Good Standing of Noble,
Acquisition and Holdings. Noble is a corporation duly organized, validly
existing and in good standing under the laws of the State of Michigan.
Acquisition is a corporation duly organized, validly existing and in good
standing under the laws of the Province of Ontario. Holdings is a corporation
duly organized, validly existing and in good standing under the laws of the
Province of Nova Scotia. Each other Subsidiary of Noble is a corporation or
limited partnership duly organized or formed, validly existing and in good
standing under the laws of the jurisdiction of its organization or formation.
Each of Noble, Acquisition and Holdings has the requisite corporate power and
authority to execute, deliver and perform its respective obligations under this
Agreement and to consummate all transactions contemplated hereby, as the case
may be. The execution, delivery and performance of this Agreement by each of
Noble and Acquisition, and the consummation of the transactions contemplated
hereby by Noble, Acquisition and Holdings, have been duly and validly authorized
and approved by all necessary corporate action in respect thereof on the part of
each of them. This Agreement constitutes the valid and binding obligation of
each of Noble and Acquisition, enforceable in accordance with its terms.
Noble and Acquisition jointly and severally represent and warrant to
Wrayter as follows in Sections 4.2 through 4.6:
4.2 Capital Stock. The authorized capital stock of Noble consists of (i)
20,000,000 shares of common stock, no par value, of which, as of July 24, 1998,
approximately 7,156,825 shares were outstanding; and (ii) 150,000 shares of
preferred stock, $100 par value per share, of which, as of the date hereof,
5,250 shares are outstanding.
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Upon issuance of the Noble Common Shares in exchange for the Exchangeable Shares
as provided in the Share Exchange Agreement and Schedule A thereto, such shares
shall be validly issued, fully paid and nonassessable, free of preemptive rights
and free of all Liens other than such as arise under applicable securities laws.
The Noble Common Shares to be issued pursuant to the Share Exchange Agreement
and Schedule A thereto will be issued in full compliance with all Canadian
provincial securities laws and the United States Securities Act of 1933 (the
"Securities Act") and the rules and regulations promulgated thereunder and all
other relevant securities or blue sky laws of any state or other jurisdiction.
No class of capital stock of Noble is entitled to preemptive rights.
The authorized capital stock of Acquisition consists of an unlimited
number of common shares and 35,360 Exchangeable Shares, of which, as of the date
hereof: 1,000 common shares are outstanding and are owned by Holdings and no
Exchangeable Shares are outstanding. Any Exchangeable Shares issued pursuant to
this Agreement will be, validly issued, fully paid and nonassessable, and free
of preemptive rights. The Exchangeable Shares to be issued pursuant to this
Agreement will be issued in full compliance with all applicable Canadian
provincial securities laws and the rules and regulations promulgated thereunder.
4.3 SEC Reports. Noble has filed all proxy statements, reports and other
documents required to be filed by it under the Exchange Act through June 1,
1998, and Noble has made available to CCI copies of Noble's Annual Report on
Form 10-K for the fiscal year ended December 31, 1997, and all final proxy
statements and reports filed by Noble under the Exchange Act after such date,
each as filed with the SEC (collectively, the "SEC Reports").
4.4 Absence of Changes. From March 31, 1998 to the date of this
Agreement, except as set forth in the SEC Reports (copies of which have all been
provided by Noble to CCI), neither Noble nor any of its Subsidiaries has
undergone any adverse change in its financial condition, or suffered any damage,
destruction or loss (whether or not covered by insurance) that adversely affects
its financial condition, the condition of its assets or the ability to conduct
its business other than such changes in condition, damage, destruction or loss
as in the aggregate would not have an Noble Material Adverse Effect; and from
March 31, 1998 to the date of this Agreement, except as set forth in the SEC
Reports, there has been no adverse change in the condition of the business of
Noble or any of its Subsidiaries, whether as a result of any change as to
accounts receivable, inventory or other assets, any loss of competitive
position, any natural disaster, accident, strike, sabotage, or confiscation of
property, or any other event or condition directly affecting or relating to
Noble, whether or not related to any of the foregoing (including without
limitation labour disputes, environmental audits or disclosures, and
intellectual property disputes), except for such changes as would not in the
aggregate have an Noble Material Adverse Effect.
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4.5 Value and Gross Revenue Thresholds; Investor Status.
(a) For the purposes of this section 4.5, the "Relevant Date" in
respect of an entity means the last day of such entity's most recently
completed fiscal year or, if such entity has not completed a fiscal
year, the Closing Date.
(b) As at the Relevant Date, the aggregate value of the assets of
Acquisition and each of its affiliates (as such term is used under the
Competition Act (Canada)) as at the time of closing, as stated in the
records of each such entity used to prepare its financial statements
(without deducting any amount for liabilities or encumbrances),
determined in accordance with accounting principles normally used by
such entities and that are generally accepted for the type of business
carried on by such entities, was less than CDN$200 million.
(c) For the 12 months ended on the Relevant Date, the aggregate
gross revenues from sales generated from the assets of Acquisition and
each of its affiliates as at the time of closing, as stated in the
records of each such entity used to prepare its financial statements
(including all amounts accruing from the sale or lease of goods and all
amounts accruing from the rendering of services, without deducting any
expenses or other amounts incurred or provided for in relation to the
sale or lease of goods or the rendering of services), determined in
accordance with accounting principles that are normally used by such
entities and that are generally accepted for the type of business
carried on by such entities, was less than CDN$200 million.
(d) Since the date of its most recently completed fiscal year,
none of Acquisition or any of its affiliates as at the time of closing
has been a party to or otherwise been affected by any transaction or
event, such as an acquisition or re-evaluation of assets for reporting
purposes, which would increase the value of the assets or gross revenues
above the thresholds described in subsections (b) and (c) above.
(e) Acquisition is a "WTO Investor" for the purposes of the
Investment Canada Act.
4.6 Disclosure. This Agreement, including the Exhibits hereto and the
certificates delivered or to be delivered in connection herewith and the SEC
Reports referenced hereby, taken as a whole, do not contain any untrue statement
of material fact or omit to state a material fact necessary to make the
statements herein or therein not misleading.
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ARTICLE 5
CERTAIN COVENANTS
5.1 Exclusivity; Acquisition Proposals. Unless and until this Agreement
shall have been terminated by either party pursuant to Section 8.1 hereof,
except as required by law, CCI and Sellers shall not (and each shall use its
best efforts to ensure that none of its officers, directors, agents,
representatives or affiliates) take, directly or indirectly, any of the
following actions with any party other than Acquisition and its designees or
agents: (i) solicit, encourage, initiate or participate in any negotiations,
inquiries or discussions with respect to any offer or proposal to acquire any
of CCI's business, assets or capital shares whether by arrangement,
amalgamation, merger, consolidation, other business combination, purchase of
assets, tender or exchange offer or otherwise (each of the foregoing an
"Acquisition Transaction"); (ii) disclose any information not customarily
disclosed to any person concerning CCI's business or properties or afford to
any person or entity access to CCI's properties, books or records, except in
the ordinary course of business consistent with past practice and as required
pursuant to a governmental request for information; (iii) enter into or execute
any agreement relating to an Acquisition Transaction, plan of reorganization,
or other agreement calling for the sale of any of CCI's business and
properties; or (iv) make or authorize any public statement, recommendation or
solicitation with respect to any Acquisition Transaction or any offer or
proposal relating to an Acquisition Transaction other than with respect to this
Agreement.
5.2 Notification of Certain Matters. Between the date hereof and the
Closing Date, each party shall give prompt notice in writing to the other
parties of: (i) any information that indicates that any of its representations
or warranties contained herein was not true and correct as of the date hereof or
will not be true and correct at and as of the Closing Date with the same force
and effect as if made at and as of the Closing Date (except for changes
permitted or contemplated by this Agreement); (ii) the occurrence of any event
that will result, or has a reasonable prospect of resulting, in the failure of
any condition specified in ARTICLE 6 hereof to be satisfied and; (iii) any
notice or other communication from any third party alleging that the consent of
such third party is or may be required in connection with the transactions
contemplated by this Agreement or that such transactions otherwise may violate
the rights of or confer remedies upon such third party.
5.3 Other Limitations on Conduct of Business Prior to Closing. CCI and
Wrayter hereby covenant and agree with Noble that, prior to Closing, unless the
prior written consent of Noble shall have been obtained, and except as otherwise
contemplated herein, CCI's business shall be operated, only in the usual,
regular and ordinary course of business consistent with past practices Sellers
and CCI hereby covenant and agree with Noble that, prior to Closing. Sellers
hereby covenant and agree with Noble that, prior to Closing, unless the prior
written consent of Noble shall have been obtained, and except as otherwise
contemplated herein: (i) they will use their reasonable efforts to preserve
intact CCI's business organization and assets and maintain their rights and
franchises; (ii) they will not authorize for issuance, issue or obligate CCI or
Sellers to issue any shares of its capital stock or any options, warrants or
rights, or enter into any other agreements or commitments obligating it to issue
or
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sell shares of its capital stock or any securities or obligations convertible
into, or exchangeable for, any shares of its capital stock; and (iii) they will
take no action that would (a) materially adversely affect the ability of Noble,
Sellers, Acquisition or CCI to obtain any necessary approvals of any third
parties or any governmental authorities required for the transactions
contemplated hereby or materially increase the period of time necessary to
obtain such approvals, or (b) materially adversely affect Sellers', Noble's,
Acquisition's or CCI's ability to perform their respective covenants and
agreements under this Agreement.
5.4 Access to Information. CCI and Wrayter shall, subject to applicable
law, afford Noble and its accountants, counsel and other representatives
reasonable access during the period prior to the Closing Date to the following
information relating to CCI: (a) all financial statements, properties, books,
contracts, commitments and records, and (b) all other information concerning the
business, properties and personnel of such entities, as Noble may reasonably
request. No information or knowledge obtained after the date hereof in any
investigation pursuant to this Section 5.4 shall affect or be deemed to modify
any representation or warranty contained herein or the conditions to the
obligations of the parties to consummate the transactions contemplated herein.
5.5 Further Assurances. Subject to the terms and conditions herein
provided, and subject to its fiduciary obligations under law, each of the
parties agrees to use all reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated by this Agreement, including without limitation
the taking of all reasonable actions necessary to satisfy each condition
precedent set forth in ARTICLE 6, to comply promptly with all legal requirements
that may be imposed on any of them with respect to this Agreement or to procure
any consent, approval, order or authorization of, or any exemption by, any
governmental entity, or other third party, required to be obtained or made in
connection with this Agreement or the taking of any action contemplated hereby.
5.6 Amendments to CCI Disclosure Schedule. The parties agree that CCI
may amend and/or supplement any part of the CCI Disclosure Schedule in its
discretion at any time after the date of this Agreement through and including
the date (the "Schedule Cutoff") seven (7) days prior to the Closing Date and
such amendments and supplements shall be deemed part of this Agreement as of the
date hereof. Notwithstanding anything to the contrary in this Section 5.6, no
amendments or supplements may be made to the CCI Disclosure Schedule after the
Schedule Cutoff without the written consent of Noble and Acquisition.
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ARTICLE 6
CONDITIONS PRECEDENT
6.1 Conditions Precedent to CCI's and Sellers' Obligation to Close. The
obligations of CCI and Sellers to consummate the transactions contemplated by
this Agreement shall be subject to the satisfaction, prior to or substantially
contemporaneously with the Closing, of the following conditions, compliance with
which, or the occurrence of which may be waived in whole or in part by CCI and
Sellers in writing.
6.1.1 Representations; Covenants; Certificate. The
representations and warranties of Noble and Acquisition contained in
ARTICLE 4 hereof (except for clause (i) of the first sentence of Section
4.2 to the extent it refers to the number of issued and outstanding
shares of Noble Common Shares) shall be true in all material respects as
of the date of this Agreement and as of the Closing Date with the same
effect as though made as of the Closing Date; Noble and Acquisition
shall in all material respects have performed and complied with all
their respective obligations and covenants required by this Agreement to
be performed or complied with prior to Closing; and each of Noble and
Acquisition shall have delivered to CCI and Sellers a certificate, dated
the Closing Date and signed by the President or a Vice President of such
company, as its respective obligations and covenants hereunder.
6.1.2 Opinion of Counsel for Noble and Acquisition. Sellers shall
have received from each of Jaffe, Raitt, Heuer & Xxxxx, Professional
Corporation, counsel for Noble and Acquisition, a legal opinion, dated
the Closing Date, with respect to legal matters related to this
Agreement and the transactions contemplated hereby and in form and
substance reasonably acceptable to CCI and Sellers.
6.1.3 Injunctions. No temporary restraining order, preliminary or
permanent injunction or other order by any Canadian or United States
Federal or provincial or state court or governmental body prohibiting
the consummation of the transactions contemplated by this Agreement
shall have been issued and shall not have expired or been withdrawn or
reversed.
6.1.4 Closing Documents. Noble, Acquisition and Holdings shall
have executed and delivered to Sellers and/or CCI, as the case may be,
or shall execute and deliver at Closing, all documents contemplated
hereby and shall deliver at Closing all of the Exchangeable Shares
required to be delivered to Wrayter and Xxxxx Xx. hereunder.
6.1.5 Payment of Indebtedness to RoyNat and First Ontario. Noble,
Acquisition and CCI shall, prior to Closing, cause full payment to be
made to each of RoyNat and First Ontario, respectively, under those
certain Absolute Assignments of Security and Indebtedness among
Acquisition, CCI and RoyNat and First Ontario, respectively, dated as of
the date hereof, to be paid by certified check or by wire transfer of
immediately available funds.
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6.1.6 Indemnification of Blake Corp. on Leases. At Closing,
Acquisition will agree to indemnify Blake Corp. from all liability from
and after the date of Closing which arises from Blake Corp.'s guarantee
of certain leases of property used by CCI, said indemnity to be
reasonably acceptable in form and substance to Blake Corp.
6.1.7 Consummation of Letter of Xxxxxx Xxxxx, Sr. Xxxxx, CCI,
Xxxxxx Xxxxx, Sr. and Blake Corp. shall have consummated, prior to or
concurrent with the Closing, all of the transactions set forth in that
letter of Xxxxxx Xxxxx, Sr. dated 8 September 1998, a copy of which is
attached hereto as Exhibit D.
6.2 Conditions Precedent to Obligations of Noble and Acquisition. The
obligations of Noble and Acquisition to effect the transactions contemplated by
this Agreement shall be subject to the satisfaction, prior to or substantially
contemporaneously with Closing, of the following conditions, compliance with
which, or the occurrence of which, may be waived in whole or in part by Noble
and Acquisition in writing:
6.2.1 Due Diligence. The results of the due diligence
investigation of CCI by Noble and Acquisition shall be satisfactory to
Noble and Acquisition in their sole discretion.
6.2.2 Representations; Covenants; Certificate. The
representations and warranties of Sellers contained in ARTICLE 3 hereof
shall be true in all material respects as of the date of this Agreement
and the Closing Date with the same effect as though made as of the
Closing Date; CCI and Sellers shall in all material respects have
performed and complied with all their respective obligations and
covenants required by this Agreement to be performed or complied with
prior to Closing; and each of the Sellers shall have delivered to Noble
certificates, dated the Closing Date and signed by its respective
President or a Vice President, confirming all representations and
warranties made by such Seller in this Agreement.
6.2.3 Opinion of Counsel for CCI and Sellers. Noble and
Acquisition shall have received from (i) Gowling, Strathy & Xxxxxxxxx,
counsel for CCI and Wrayter, (ii) Xxxxxx Xxxxx Ball, counsel for Blake
Corp., and (iii) counsel for Xxxxxxx, legal opinions, each dated the
Closing Date, with respect to legal matters related to this Agreement
and the transactions contemplated hereby and in form and substance
reasonably acceptable to Noble and Acquisition.
6.2.4 Required Consents. Consents and waivers required from any
governmental authority with respect to the consummation of this
Agreement and the transactions contemplated hereby shall have been
filed, occurred, or been obtained, other than such consents, the failure
to obtain which would not have
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any CCI or Noble Material Adverse Effect or any material adverse effect
on the consummation of this Agreement.
6.2.5 Pre-Closing Documents. Sellers and CCI shall have delivered
to Acquisition, prior to the Closing Date: (i) a certified copy of each
of the Charter Documents of CCI, dated the Closing Date; (ii) a
Certificate of Status for CCI from the Province of Ontario, dated not
earlier than five (5) days prior to the Closing Date; (iii) a certified
copy of the resolutions of the board of directors of CCI authorizing the
execution of this Agreement and all other documents and instruments
contemplated hereby, and the performance of all acts required to be
performed by CCI hereunder; (iv) certified copies of the Charter
Documents of each of the Sellers other than First Ontario and RoyNat,
dated the Closing Date; (v) Certificates of Status for each of the
Sellers from the Province of Ontario, dated not earlier than five (5)
days prior to the Closing Date; (vi) certified copies of the resolutions
of the board of directors of each of the Sellers authorizing the
execution of this Agreement and all other documents and instruments
contemplated hereby, and the performance of all acts required to be
performed by such Seller hereunder (or, in the case of First Ontario and
RoyNat, certified copies of resolutions of the boards of directors
appointing the President and Director of Merchant Banking of First
Ontario and RoyNat, respectively); and (vii) a certificate of the
Secretary or Assistant Secretary of CCI and each of the Sellers,
respectively, other than First Ontario and RoyNat, dated the Closing
Date as to the incumbency and signature of the officer or officers
signing this Agreement on behalf of CCI or such Seller, as the case may
be, and all other documents and instruments required to be executed and
delivered by CCI or such Seller hereunder, together with satisfactory
evidence of the incumbency and signature of each such Secretary or
Assistant Secretary.
6.2.6 Closing Documents. CCI and each of the Sellers shall each
have executed and delivered to Noble or Acquisition, as the case may be,
or shall execute and deliver at Closing, all documents contemplated
hereby and shall deliver at Closing all of the CCI Shares required to be
delivered to Acquisition hereunder.
6.2.8 No Action Under Competition Act. Neither the Director of
Investigation and Research (the "Director") appointed under the
Competition Act (Canada) nor any of his representatives shall have
advised Noble, Acquisition or CCI, or any of their representatives, that
the Director intends to commence an inquiry or make an application under
the Competition Act (Canada) in respect of any transaction contemplated
by this Agreement.
6.2.9 Cancellation of Class M Shares Held by Xxxxx Xx. At least
seven (7) days before Closing, Xxxxx Xx. shall have agreed in writing to
the cancellation or waiver of 1,000 Class M Common Shares of CCI which
Xxxxx Xx. owns or
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would otherwise be entitled to own, in consideration solely of the
Exchangeable Shares to be delivered to him pursuant to Section 2.2(f),
said writing to incorporate the representations and warranties given in
Article 4 hereof.
ARTICLE 7
INDEMNIFICATION
7.1 Indemnification of Noble and Acquisition. Each of the Sellers,
individually, agrees to indemnify and hold Noble and Acquisition, their
Subsidiaries, officers, directors, successors and assigns, harmless from and
against any and all claims, demands, proceedings, damages, liabilities, losses,
costs or expenses (including without limitation, all legal and other
professional fees and disbursements, interest, penalties and amount paid in
settlement) ("Losses") which any of them may incur, suffer or become liable for,
directly or indirectly, as a result of or in connection with:
(a) Any and all monetary damages or deficiency resulting from any
misrepresentation, breach of warranty, and/or nonfulfillment of any
agreement or covenant on the part of such Seller, under this Agreement
or resulting from any misrepresentation or omission from any
certificate, schedule, list, or other instrument to be furnished by such
Seller to Noble and Acquisition under this Agreement; and
(b) Any and all actions, suits, proceedings, demands,
assessments, judgments, costs, and expenses including reasonable
attorneys fees, incident to any of the foregoing;
provided, however, that within sixty (60) days after learning of the assertion
of any claim against which Noble and/or Acquisition claim indemnification
hereunder, Noble and/or Acquisition, as the case may be, shall notify such
Seller and afford it the opportunity to assume the defense or monetary
settlement thereof at such Seller's own expense with counsel of such Seller's
choosing, and Noble and/or Acquisition, as the case may be, shall have
cooperated fully to make available to such Seller all pertinent information
under their control or in their possession. Noble and Acquisition shall have the
right to join in the defense of any such claim with counsel of their own
choosing and at their own expense.
7.2 Indemnification of Sellers.
(a) Acquisition hereby agrees to indemnify and hold Sellers,
their successors and permitted assigns harmless from and against any and
all liability, loss, cost or expense which Sellers may suffer or become
liable for as a result or in connection with:
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(i) Any and all liabilities, obligations and claims, which
arise from the operation of the business of CCI after the Closing
Date, other than to the extent resulting from any malfeasance,
misfeasance, negligence, or actions of Sellers or any matter
referred to in Section 7.1; and
(ii) Any and all monetary damages or deficiency resulting
from any misrepresentation, breach of warranty, and/or
nonfulfillment of any agreement or covenant on the part of
Acquisition under this Agreement or resulting from any
misrepresentation or omission from any certificate, schedule,
list, or other instrument to be furnished by Acquisition to
Sellers under this Agreement.
(b) Noble hereby agrees to indemnify and hold Sellers, their
successors and permitted assigns harmless from and against any and all
liability, loss, cost or expense which Sellers may suffer or become
liable for as a result or in connection with any and all monetary
damages or deficiency resulting from any misrepresentation, breach of
warranty, and/or nonfulfillment of any agreement or covenant on the part
of Noble under this Agreement or resulting from any misrepresentation or
omission from any certificate, schedule, list, or other instrument to be
furnished by Noble to Sellers under this Agreement.
(c) With regard to the indemnification provisions of subsections
(a) and (b) above, within sixty (60) days after learning of the
assertion of any claim against which a Seller claim indemnification
hereunder, such Seller shall notify Acquisition and/or Noble, as the
case may be, and afford Acquisition and/or Noble the opportunity to
assume the defense or monetary settlement thereof at their own expense
with counsel of their choosing, and such Seller shall have cooperated
fully to make available to Acquisition and/or Noble all pertinent
information under its control or in its possession. Sellers shall have
the right to join in the defense of any such claim with counsel of their
own choosing and at Sellers' own expense.
7.3 Failure to Provide Timely Notice. Notwithstanding the notice
requirements provided in Sections 7.1 and 7.2, the right to indemnification
under this Agreement shall not be affected by any failure to give or any delay
in giving such notice unless, and then only to the extent that, the rights and
remedies of the party to whom such notice was to have been given shall have been
prejudiced.
7.4 Minimization of Indemnities. The parties hereto shall each use
reasonable efforts to minimize the obligation of the other to indemnify under
this Agreement, by, among other reasonable things and without limiting the
generality of the foregoing, taking such reasonable remedial action as it
believes may minimize such obligation and seeking to the maximum extent possible
reimbursement from insurance carriers under applicable insurance policies
covering any such liability.
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7.5 Assignment of Claims. The parties agree that upon satisfaction of
the obligation to indemnify hereunder, and in consideration thereof, to assign
to the party making such payment or giving such credit, any and all claims,
causes of action and demands of whatever kind and nature which such indemnified
party may have against any person, firm or other entity giving rise to such
indemnified loss, and to reasonably cooperate in any efforts to recover
therefrom.
7.6 Acquisition's Right to Settle Claims. After Closing, notwithstanding
anything herein contained to the contrary, in the event that, in order to
protect CCI and its business and assets after acquisition of the CCI Shares by
Acquisition hereunder, Acquisition shall desire to cause CCI to settle any
claims or actions, the defense of which Sellers would otherwise be entitled to
assume pursuant to the provisions hereof, Acquisition shall be entitled to cause
CCI to so settle such claim or action, after first giving Sellers not less than
ten (10) days prior written notice of such claim or action and the proposed
settlement, and the terms of such settlement shall be binding upon Sellers so
long as they are commercially reasonable.
ARTICLE 8
MISCELLANEOUS
8.1 Termination. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and abandoned at any time
before Closing as herein provided:
(a) By the mutual consent of Noble, on one hand, and all of the
Sellers, on the other hand;
(b) By either Noble, on one hand, or all of the Sellers, on the
other hand, if there has been a material breach on the part of the
other(s) of any representation, warranty, covenant or agreement
contained herein that cannot be or has not been cured within ten days
after written notice of such breach to the breaching party(ies);
(c) By all of the Sellers, if the Closing shall not have occurred
by October 10, 1998 other than as a result of the failure of CCI or
Sellers to satisfy their respective obligations hereunder.
(d) By Noble, if the Closing shall not have occurred by October
10, 1998 other than as a result of the failure of Noble, Acquisition or
Holdings to satisfy their respective obligations hereunder.
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In the event of termination and abandonment under this Section 8.1, this
Agreement shall forthwith become null and void and there shall be no liability
on the part of any of the parties hereto or any of their respective officers and
directors; provided, however, that the provisions of ARTICLE 7, Section 8.3, and
Section 8.4 hereof, and the respective provisions referenced therein, shall
survive any termination of this Agreement as provided therein and in the event
of a termination pursuant to Section 8.1(b) the breaching party(ies) shall be
liable for all out-of-pocket costs and expenses incurred in connection with the
transactions contemplated hereby.
8.2 Amendments and Supplements. At any time before Closing, this
Agreement, the Share Exchange Agreement and the Registration Rights Agreement
may be amended or supplemented by a written instrument signed by all of the
parties to each such agreement and approved by their respective Boards of
Directors.
8.3 Survival of Representations and Warranties. All representations and
warranties made by the parties hereunder, including but not limited to the
representations and warranties in ARTICLE 3, ARTICLE 4 and Section 8.7 shall
survive the Closing and shall remain in full force and effect for a period of
two (2) years following the actual Closing Date.
8.4 Expenses. Whether or not Closing takes place, all costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expenses.
8.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the Province of Ontario and the
federal laws of Canada applicable therein.
8.6 Notice. All notices and other communications required or permitted
hereunder shall be in writing (including any facsimile transmission or similar
writing), and shall be sent either by telecopy, hand delivery, or reputable
overnight courier, addressed as follows or to such other address or addresses of
which the respective party shall have notified the other party. Each such notice
or other communication shall be effective (i) if given by telecopy, when such
telecopy is transmitted and the appropriate answer back is received, (ii) if
given by reputable overnight courier, one business day after being delivered to
such courier or (iii) if given by any other means, when received at the address
specified in this Section.
(a) if to Noble at:
Noble International, Ltd.
00 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
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(b) if to Holdings at:
Noble Canada Holdings II, Limited
c/o Noble International, Ltd.
00 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
(c) if to the Corporation at:
Noble Canada, Inc.
c/o Noble International, Ltd.
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
RoyNat Inc.
Attn: Xx. Xxxxxx Xxx
00 Xxxx Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
First Ontario Labour Sponsored Investment Fund Ltd.
Attn: Xx. Xxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
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Xxxxxxx & Company Inc.
Xxx Xxxxx Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Xx. Xxxxx X.X. Xxxxxxx
659730 Ontario Inc.
000 Xxxxxxxxx Xxxx Xxxx, Xxx 0000
Xxxxxxxx, Xxxxxxx X0X 0X0
Attn: Mr. Xxxxxx Xxxxx, Sr.
with copies to:
Gowling, Strathy & Xxxxxxxxx (for Wrayter)
Commerce Court West, Ste. 4900
Xxxxxxx, Xxxxxxx X0X 0X0
Fax: (000) 000-0000
Attention: R. Xxxxxxx X. Xxxxxx
Xxxxxx, Xxxxx & Ball (for Blake Corp.)
000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx X0X 0X0
Fax:
Attention: Xxxx Xxxx
Xxxxx Xxxxx (for RoyNat and First Ontario)
00 Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Xxxxxx Brands
(e) if to CCI:
c/o Noble International, Ltd.
00 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
and
x/x Xxxxxxx, Xxxxxxx & Xxxxxxxxx
Commerce Court West, Ste. 4900
Xxxxxxx, Xxxxxxx X0X 0X0
Fax: (000) 000-0000
Attention: R. Xxxxxxx X. Xxxxxx
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8.6 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.
8.7 Whole Agreement. Each of the Sellers acknowledges and agrees, one
with the other, that this Agreement constitutes the only agreement with respect
to the sale of the CCI Shares and none of the Sellers nor any of their
shareholders, officers or directors or any affiliates or associates thereof is
receiving any consideration for the CCI Shares other than the consideration
recited in Section 2.2 and 6.1.7 hereof.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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STOCK PURCHASE AGREEMENT - CENTRIFUGAL COATERS INC.
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be duly executed as of the date first above written.
NOBLE CCI
----- ---
NOBLE INTERNATIONAL, LTD. CENTRIFUGAL COATERS INC.
By: /s/ XXXXXXX X. XXXX By: /s/ XXXXXX XXXX
----------------------------- -----------------------------
Its: Vice President Its: President
----------------------------- -----------------------------
ACQUISITION
-----------
NOBLE CANADA II, INC.
By: /s/ XXXXXXX X. XXXX
-----------------------------
Its: President
-----------------------------
SELLERS
-------
WRAYTER INVESTMENTS INC. FIRST ONTARIO LABOUR
SPONSORED INVESTMENT FUND LTD.
By: /s/ XXXXXX XXXX By: /s/ XXX XXXXXXX
----------------------------- -----------------------------
Its: President Its: President
----------------------------- -----------------------------
ROYNAT INC. XXXXXXX & COMPANY INC.
By: /s/ XXX XXX By: /s/ XXXX XXXXXXX
----------------------------- -----------------------------
Its: President Its: President
----------------------------- -----------------------------
659730 ONTARIO INC.
By: /s/ XXXXXX XXXXX
-----------------------------
Its: President
-----------------------------
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STOCK PURCHASE AGREEMENT
CENTRIFUGAL COATERS INC.
EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A Share Exchange Agreement, with Exchangeable Share Provisions
Exhibit B Support Agreement
Exhibit C Registration Rights Amendment
Exhibit D Letter of Xxxxxx Xxxxx, Sr.
SCHEDULES
Schedule 3.1 Incorporations and jurisdictions
Schedule 3.2 Approvals and violations in connection with sale
Schedule 3.3 Stockholders and related rights
Schedule 3.4 Subsidiaries
Schedule 3.5 Financial matters
Schedule 3.6 Changes and exemptions to financial covenants
Schedule 3.7(a) Fixed assets (non-leased)
Schedule 3.7(b) Equipment and machinery
Schedule 3.7(c) Warranties
Schedule 3.7(f) Liabilities
Schedule 3.8 Tax matters
Schedule 3.9 Properties, liens and leases
Schedule 3.10 Notices from customers, distributors and suppliers
Schedule 3.12 Litigation
Schedule 3.13 Employee matters and benefit plans
Schedule 3.14 Labour relations
Schedule 3.15 Licenses and authorizations
Schedule 3.17 Contractual obligations
Schedule 3.19 Intellectual property
Schedule 3.20 Insurance
Schedule 3.21 Customer warranties
Schedule 3.22 Certain agreements
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