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EXHIBIT 2.3
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of July 24, 1998, among Noble International, Ltd., a corporation
incorporated under the laws of the State of Michigan ("Noble"), Noble Canada,
Inc., a corporation incorporated under the laws of the Province of Ontario,
Canada ("Acquisition"), Tiercon Holdings Inc., a corporation incorporated under
the laws of the Province of Ontario, Canada ("Tiercon"), and Wrayter Investments
Inc., a corporation incorporated under the laws of the Province of Ontario,
Canada and the sole shareholder of Tiercon ("Seller").
WHEREAS, Tiercon has entered into a certain Share Purchase Agreement
dated July 2, 1998 (the "Triam Agreement"), between Tiercon and TRIAM Automotive
Inc. ("Triam"), for the purchase by Tiercon of all of the outstanding shares of
TRIAM Automotive Canada, Inc. ("Triam Canada");
WHEREAS, Seller wishes to sell to Acquisition and Acquisition wishes to
purchase from Seller, all of the issued and outstanding capital stock of Tiercon
(collectively, the "Tiercon Shares");
WHEREAS, Acquisition is a Subsidiary (as defined below) of Noble Canada
Holdings, 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 and
Tiercon 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.
"Charter Documents" has the meaning ascribed thereto in
section 3.1 hereof.
"Closing" has the meaning ascribed thereto in section 2.7
hereof.
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"Closing Date" has the meaning ascribed thereto in section 2.7
hereof.
"Director" has the meaning ascribed thereto in section 6.2.8
hereof.
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"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.
"Hunter Agreement" has the meaning ascribed thereto in section
2.6 hereof.
"Liens" has the meaning ascribed thereto in section 2.1
hereof.
"Losses" has the meaning ascribed thereto in section 7.1
hereof.
"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.
"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.
"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.
Stock Purchase Agreement (Tiercon), Page 3
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"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.
"Tiercon 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 Tiercon, taken
as a whole.
"Triam Documents" has the meaning ascribed thereto in section
3.8 hereof.
"Xxxxxx Agreement" has the meaning ascribed thereto in section
2.6 hereof.
"Xxxx Agreement" has the meaning ascribed thereto in section
2.6 hereof.
ARTICLE 2
SALE AND PURCHASE OF STOCK
2.1 Sale and Purchase of Tiercon Shares. Upon the terms and subject to
the conditions set forth in this Agreement, Seller shall sell, transfer, assign
and deliver to Acquisition, and Acquisition shall purchase from the Seller, all
of Seller's right, title and interest in and to the Tiercon Shares, together
with all rights associated with such Tiercon 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 Seller of the
Tiercon Shares, Acquisition shall issue to Seller 80,000 Exchangeable Shares (as
defined below).
2.3 Share Exchange Agreement. At the Closing (as defined below),
Seller, Noble, Acquisition and Noble Canada Holdings, Ltd. ("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 T 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, Seller and Noble shall
execute and
Stock Purchase Agreement (Tiercon), Page 4
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deliver the Registration Rights Agreement (the "Registration Rights Agreement")
in substantially the form set forth as Exhibit C.
2.6 Agreements with C.E.O., Chairman and C.O.O. At Closing, Acquisition
shall execute and enter into: (a) an Employment Agreement between Tiercon and
Xxxxxx Xxxx, as President and Chief Executive Officer of Tiercon (the "Xxxx
Agreement") in substantially the form set forth as Exhibit D; (b) a Services
Agreement between Tiercon and Xxxxxxx Xxxxxx, as Chairman of the Board of
Directors of Tiercon (the "Hunter Agreement") in substantially the form set
forth as Exhibit E; and (c) an Employment Agreement between Tiercon and Xxxxx
Xxxxxx, as Vice-President and Chief Operating Officer of Tiercon (the "Xxxxxx
Agreement") in substantially the form set forth as Exhibit F.
2.7 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 July 24, 1998 (the "Closing Date") or at such other place
and at such time as the parties hereto may agree.
2.8 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.
2.9 Tax Filings. The Seller 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 Seller's proceeds of disposition of its Tiercon Shares and
Acquisition's cost of acquiring the Tiercon Shares shall be such amount as is
directed by Seller, within the various limitations provided in subsection 85(1)
of the Tax Act. The 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 SELLER
In order to induce Noble and Acquisition to enter into this Agreement,
Seller hereby represents and warrants as follows:
3.1 Due Organization, Authorization and Good Standing of Tiercon and
Seller. Each of Tiercon and Seller is a corporation duly organized, validly
existing and in good standing under the Ontario Business Corporations Act.
Tiercon and Seller each has the requisite corporate power and authority to
execute, deliver and perform its respective obligations under this Agreement to
consummate all transactions contemplated hereby. The execution, delivery and
performance by Tiercon and Seller of this Agreement, and the consummation by
Tiercon and
Stock Purchase Agreement (Tiercon), Page 5
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Seller 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 Tiercon or Seller, as the case may be. This Agreement constitutes
the valid and binding obligation of each of Tiercon and Seller, enforceable in
accordance with its terms. Each of Tiercon and Seller 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.
Neither Tiercon nor Seller are required to be licensed, qualified or registered
to conduct business in any jurisdiction other than its jurisdiction of
incorporation, other than where such failures to be so licensed, qualified or
registered in the aggregate would not have a Tiercon Material Adverse Effect.
True, complete and correct copies of the charter, By-laws and other analogous
organizational documents (the "Charter Documents") of Tiercon and Seller as in
effect on the date hereof have heretofore been delivered to Noble or will be
delivered prior to Closing.
3.2 No Violation or Approval. Except as set forth in this Section 3.2
and in Exhibit G attached hereto, the execution, delivery and performance by
Tiercon and 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 Tiercon or Seller, as the case may be, 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 Tiercon in connection with the execution and delivery of
this Agreement or the consummation by Tiercon of the transactions contemplated
hereby other than (i) the expiration of the waiting period under Part IX of the
Competition Act (Canada) with respect to the acquisition of Triam Canada by
Tiercon; (ii) any applicable notification requirement under the Investment
Canada Act; and (iii) such failures to obtain or make such other consents,
approvals, orders, authorizations, declarations or filings that in the aggregate
would not have a Tiercon Material Adverse Effect.
3.3 Capital Stock. The authorized capital stock of Tiercon consists of
an unlimited number of common shares of which 1,000 shares have been issued and
are outstanding. Other than such 1,000 issued and outstanding shares, Tiercon
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 preference shares of Tiercon are outstanding. All of the outstanding
Tiercon Shares have been validly issued, fully paid and nonassessable and free
of preemptive rights. None of the outstanding Tiercon Shares has been issued in
violation of the preemptive rights of any security holder of Tiercon. No holder
of outstanding Tiercon Shares is subject to personal liability solely by reason
of being such a holder. Tiercon has no outstanding bonds, debentures, notes or
other indebtedness the holders of which have the right to vote (or that are
convertible or exercisable
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into securities having the right to vote) with holders of Tiercon Shares on any
matter.
3.4 Subsidiaries. Tiercon 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. There are no Subsidiaries of Tiercon.
3.5 Title to Tiercon Shares. Seller is the legal and equitable owner of
all issued and outstanding Tiercon Shares, free and clear of all Liens. There
are no other shareholders of Tiercon. Upon consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof, Acquisition
will acquire valid and marketable title to the Tiercon Shares, free and clear of
all Liens.
3.6 Authority of Seller. Seller 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, and (ii) to carry out and
perform their obligations hereunder and pursuant to all instruments and
agreements contemplated hereby. Seller has, and at the Closing Date will have,
all requisite power and authority to sell and transfer the Tiercon Shares to
Acquisition as provided herein. This Agreement is, and all agreements and
instruments contemplated hereby, when executed and delivered in accordance with
the terms hereof will be, valid and binding obligations of Seller, enforceable
in accordance with their respective terms.
3.7 Accuracy of Representations in Triam Agreement. To the best
knowledge of Seller and its officers, directors and shareholders, each and every
representation and warranty made by Triam in Article 4 of the Triam Agreement
and each and every representation and warranty made by Tiercon in Article 5 of
the Triam Agreement (each of which is incorporated herein by reference) is, was
and will be accurate, true and correct (with the exception of those items
expressly set forth in writing from Tiercon to Noble prior to Closing) as of the
date of this Agreement, the date of execution of the Triam Agreement, the
closing of the transactions contemplated by the Triam Agreement, and the date
upon which Closing of the transactions contemplated in this Agreement takes
place.
3.8 Triam Agreement and Related Documents. The Triam Agreement and all
documents and instruments contemplated thereby (including but not limited to all
indemnity agreements among any of Triam, Magna Automotive, Tiercon and Sellers)
(collectively, the "Triam Documents") will remain in full force and effect and
will not be void, voidable, discharged or otherwise affected by the change in
ownership of Tiercon or the sale of shares from Seller to Acquisition as
contemplated in this Agreement and neither Tiercon nor Seller has agreed to or
permitted, nor will agree to or permit, any amendment thereto or waiver of any
requirement thereof or default thereunder.
3.9 No Assets or Liabilities Other Than in Connection With the Triam
Agreement. Tiercon has owned and now owns no assets and has carried on no
business or operations, and owes or is subject to, and through Closing will
incur or be subject to, no liabilities, actual,
Stock Purchase Agreement (Tiercon), Page 7
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contingent or otherwise (including liabilities for taxes) other than (a) the
rights and obligations accruing to Tiercon pursuant to the Triam Agreement and
the transactions expressly contemplated thereby, and (b) professional and
environmental auditors' fees incurred in connection with Tiercon's acquisition
of Triam Canada.
3.10 Brokers, Finders, etc. Except for the services of Tiercon's
financial advisors, Newpoint Capital Partners Inc., 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 Tiercon or Seller in
such manner as to give rise to any valid claim against Tiercon, Acquisition or
Noble for any brokerage or finder's commission, fee or similar compensation.
3.11 Residency of Seller. The Seller is not a non-resident of Canada
for the purposes of the Tax Act.
3.12 Value and Gross Revenue Thresholds.
(a) For the purposes of this section 3.12, 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 Tiercon 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
Tiercon 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 Tiercon 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.
Stock Purchase Agreement (Tiercon), Page 8
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3.13 Disclosure; Provision of Information. This Agreement, including
the Exhibits hereto, and 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
In order to induce Tiercon and Seller to enter into this Agreement,
Noble and Acquisition jointly and severally represent and warrant as follows:
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.
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 are outstanding; and (ii) 150,000 shares of
preferred stock, $100 par value per share, of which, as of the date hereof, no
shares are outstanding. 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 80,000 Exchangeable Shares, of which, as of the date
hereof, 1,000 common shares
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are outstanding and all of which are owned by Holdings. All of the outstanding
common shares of Acquisition have been, and 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 Tiercon 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 Tiercon), 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.
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
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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.
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, Tiercon and Seller shall not (and it 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
Tiercon'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 Tiercon's business or properties or afford to
any person or entity access to Tiercon'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 Tiercon'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.
Stock Purchase Agreement (Tiercon), Page 11
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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. Seller
and Tiercon hereby covenant and agree with Noble that, prior to Closing: (i)
unless the prior written consent of Noble shall have been obtained and except as
otherwise contemplated herein, Tiercon's business shall be operated, only in the
usual, regular and ordinary course of business consistent with past practices;
(ii) they will use their reasonable efforts to preserve intact Tiercon's
business organization and assets and maintain their rights and franchises; (iii)
they will not authorize for issuance, issue or obligate itself 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 sell shares of its
capital stock or any securities or obligations convertible into, or exchangeable
for, any shares of its capital stock; and (iv) they will take no action that
would (a) materially adversely affect the ability of Noble, Seller, Acquisition
or Tiercon 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 Seller's, Noble's, Acquisition's or Tiercon's
ability to perform its respective covenants and agreements under this Agreement.
5.4 Access to Information. Seller and Tiercon 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 Tiercon and, to the full extent available
to Tiercon or Seller, Triam Canada: (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
Stock Purchase Agreement (Tiercon), Page 12
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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.
ARTICLE 6
CONDITIONS PRECEDENT
6.1 Conditions Precedent to Tiercon's and Seller's Obligation to Close.
The obligations of Tiercon and Seller 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 Tiercon and Seller 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 Tiercon and Seller 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. Seller
shall have received from each of Jaffe, Raitt, Heuer & Xxxxx,
Professional Corporation, counsel for Noble, and Xxxxxx, Xxxx & Xxxx,
counsel for Acquisition, respectively, 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 Tiercon and Seller.
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 Seller, Tiercon, Xxxx or Xxxxxx, 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 Seller hereunder.
Stock Purchase Agreement (Tiercon), Page 13
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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 Tiercon, Seller and Triam Canada 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 Seller 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; Tiercon and Seller 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 Seller shall have delivered to Noble a
certificate, dated the Closing Date and signed by its President or a
Vice President, as to all of the obligations and covenants of Seller
hereunder.
6.2.3 Opinion of Counsel for Tiercon and Seller. Noble and
Acquisition shall have received from Gowling, Strathy & Xxxxxxxxx,
counsel for Tiercon and Seller, 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 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 any Tiercon or Noble Material
Adverse Effect or any material adverse effect on the consummation of
this Agreement.
6.2.5 Pre-Closing Documents. Seller and Tiercon shall have
delivered to Acquisition, prior to the Closing Date: (i) a certified
copy of the Articles of Incorporation of Tiercon, dated the Closing
Date; (ii) a true, correct and complete copy of the By-Laws of Tiercon
certified as such as of the Closing Date by the Secretary or Assistant
Secretary of Tiercon; (iii) a Certificate of Status for Tiercon from
the Province of Ontario, dated not earlier than five (5) days prior to
the Closing Date; (iv) a certified copy of the resolutions of the board
of directors of Tiercon 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 Tiercon hereunder;
(v) a certified copy of the Articles of Incorporation of Seller, dated
the Closing Date; (vi) a true, correct and complete copy of the By-Laws
of Seller certified as such as of the Closing Date by the Secretary or
Assistant Secretary of Seller; (vii) a Certificate of Status for Seller
from the Province of
Stock Purchase Agreement (Tiercon), Page 14
15
Ontario, dated not earlier than five (5) days prior to the Closing
Date; (viii) a certified copy of the resolutions of the board of
directors of Seller 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 Seller hereunder;
and (ix) a certificate of the Secretary or Assistant Secretary of each
of Tiercon and Seller, respectively, dated the Closing Date as to the
incumbency and signature of the officer or officers signing this
Agreement on behalf of Tiercon or Seller, as the case may be, and all
other documents and instruments required to be executed and delivered
by Tiercon or Seller hereunder, together with satisfactory evidence of
the incumbency and signature of each such Secretary or Assistant
Secretary.
6.2.6 Closing of Triam Canada Acquisition. Tiercon's
acquisition of Triam Canada pursuant to the Triam Documents shall have
closed or shall be ready to close not later than simultaneously with
the Closing of the transactions contemplated by this Agreement.
6.2.7 Closing Documents. Tiercon, Seller, Xxxx and Xxxxxx
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 Tiercon
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 Tiercon, 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.
ARTICLE 7
INDEMNIFICATION
7.1 Indemnification of Noble and Acquisition. Seller 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 Tiercon or Seller, under this
Agreement or resulting from any misrepresentation or omission from any
certificate, schedule, list, or other instrument to be furnished by
Tiercon or Seller to Noble and Acquisition under this Agreement; and
Stock Purchase Agreement (Tiercon), Page 15
16
(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 Seller and
afford it the opportunity to assume the defense or monetary settlement thereof
at Seller's own expense with counsel of Seller's choosing, and Noble and/or
Acquisition, as the case may be, shall have cooperated fully to make available
to 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 Seller. Acquisition hereby agrees to indemnify
and hold Seller, its successors and permitted assigns harmless from and against
any and all liability, loss, cost or expense which Seller may suffer or become
liable for as a result or in connection with:
(a) Any and all liabilities, obligations and claims, which
arise from the operation of the business of Tiercon after the Closing
Date, other than to the extent resulting from any malfeasance,
misfeasance, negligence, or actions of Seller or any matter referred to
in Section 7.1; and
(b) 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 and/or Acquisition under
this Agreement or resulting from any misrepresentation or omission from
any certificate, schedule, list, or other instrument to be furnished by
Noble and/or Acquisition to Seller under this Agreement;
provided, however, that within sixty (60) days after learning of the assertion
of any claim against which a Seller claims indemnification hereunder, such
Seller shall notify Acquisition and afford it the opportunity to assume the
defense or monetary settlement thereof at its own expense with counsel of its
choosing, and such Seller shall have cooperated fully to make available to
Acquisition all pertinent information under its control or in its possession.
Seller shall have the right to join in the defense of any such claim with
counsel of its own choosing and at Seller's 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
Stock Purchase Agreement (Tiercon), Page 16
17
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.
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 Tiercon and its business and assets after acquisition of the
Tiercon Shares by Acquisition hereunder, Acquisition shall desire to cause
Tiercon to settle any claims or actions, the defense of which Seller would
otherwise be entitled to assume pursuant to the provisions hereof, Acquisition
shall be entitled to cause Tiercon to so settle such claim or action, after
first giving Seller not less than five (5) days prior written notice of such
claim or action and the proposed settlement, and the terms of such settlement
shall be binding upon Seller so long as they are commercially reasonable.
ARTICLE 8
MISCELLANEOUS
8.1 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 hereto and approved by their respective Boards of Directors.
8.2 Survival of Representations and Warranties. The representations and
warranties made by Seller in Section 3.7 of this Agreement shall survive the
Closing and shall remain in full force and effect for a period of eighteen (18)
months following the actual Closing Date. All other representations and
warranties made by the parties hereunder, including but not limited to all other
representations and warranties in ARTICLE 3 and ARTICLE 4, shall survive the
Closing and shall remain in full force and effect for a period of two (2) years
following the actual Closing Date.
8.3 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.
8.4 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.
Stock Purchase Agreement (Tiercon), Page 17
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8.5 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: Xxxxxx X. Xxxxxxxxxxx and
Xxxxxxx X. Xxxx
(b) if to Holdings at:
Noble Canada Holdings, Ltd.
c/o Xxxxxxxx Leblovic
Xxxxxx, Xxxx & Xxxx
0 Xxxxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Fax: (000) 000-0000
With a copy to:
Noble International, Inc.
00 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx and
Xxxxxxx X. Xxxx
(c) if to the Corporation at:
Noble Canada, Inc.
c/o Xxxxxxxx Leblovic
Xxxxxx, Xxxx & Xxxx
0 Xxxxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Fax: (000) 000-0000
Stock Purchase Agreement (Tiercon), Page 18
19
With a copy to:
Noble International, Ltd.
00 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxxxx and Xxxxxxx 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
and
Xxxxxx, Xxxx & Xxxx
0 Xxxxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Fax: (000) 000-0000
Attention: Xxxxxxxx Leblovic
(d) if to Seller:
Wrayter Investments, Inc.
c/o R. Xxxxxxx X. Xxxxxx
Gowling, Strathy & Xxxxxxxxx
Commerce Court West, Ste. 4900
Xxxxxxx, Xxxxxxx X0X 0X0
(e) if to Tiercon:
Xxxxxx, Xxxx & Xxxx
0 Xxxxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Fax: (000) 000-0000
Attention: Xxxxxxxx Leblovic
and
Gowling, Strathy & Xxxxxxxxx
Commerce Court West, Ste. 4900
Stock Purchase Agreement (Tiercon), Page 19
20
Xxxxxxx, Xxxxxxx X0X 0X0
Fax: (000) 000-0000
Attention: R. Xxxxxxx X. Xxxxxx
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.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
Stock Purchase Agreement (Tiercon), Page 20
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STOCK PURCHASE AGREEMENT
TIERCON HOLDINGS INC.
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
NOBLE ACQUISITION
NOBLE INTERNATIONAL, LTD. NOBLE CANADA, INC.
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
TIERCON SELLER
TIERCON HOLDINGS INC. WRAYTER INVESTMENTS INC.
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
Stock Purchase Agreement (Tiercon), Page 21
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EXHIBIT G
Stock Purchase Agreement (Tiercon), Page 22
