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EXHIBIT 2.3
STOCK EXCHANGE AGREEMENT
by and among
NOBLE COMPONENTS & SYSTEMS, INC.
and
NOBLE INTERNATIONAL, LTD.
and
PRESTOLOCK INTERNATIONAL, LTD.,
CASS RIVER COATINGS, INC. d/b/a VASSAR INDUSTRIES,
MONROE ENGINEERING PRODUCTS, INC. AND SKANDY CORP.
EFFECTIVE AS OF
March 31, 1998
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STOCK EXCHANGE AGREEMENT
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THIS STOCK EXCHANGE AGREEMENT (the "Agreement") is made and entered into
effective as of March 31, 1998, by and between NOBLE COMPONENTS & SYSTEMS, INC.,
a Michigan corporation ("NCS"), NOBLE INTERNATIONAL, LTD., a Michigan
corporation ("NIL"), PRESTOLOCK INTERNATIONAL, LTD., a Michigan corporation
("Prestolock"), CASS RIVER COATINGS, INC. d/b/a VASSAR INDUSTRIES, a Michigan
corporation ("Vassar"), MONROE ENGINEERING PRODUCTS, INC., a Michigan
corporation ("Monroe") and SKANDY CORP., a Michigan corporation ("Skandy").
WHEREAS, NCS desires to issue and exchange with NIL and NIL desires to
exchange and acquire from NCS the Common Shares (as hereinafter defined) on the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
ARTICLE I
EXCHANGE OF COMMON SHARES
1.01 EXCHANGE OF COMMON SHARES. Subject to the terms and conditions
hereof, NIL shall acquire from NCS and NCS shall issue to NIL, Fifteen Thousand
(15,000) shares of NCS's common stock (the "NCS Shares") on the date hereof in
exchange for Thirty Nine Thousand Nine Hundred Fifty Six (39,956) common shares
of Prestolock; Thirty Thousand (30,000) common shares of Vassar; One Thousand
Eight Hundred Fifty (1,850) common shares of Monroe and Five Thousand (5,000)
common shares of Skandy, which represent all of the issued and outstanding
capital stock of Prestolock, Vassar, Monroe and Skandy (collectively the "Common
Shares").
1.02 PAYMENT AND DELIVERY. Upon the execution and delivery of this
Agreement by NCS and NIL, or as soon thereafter as practically possible, NCS
will deliver to NIL individual certificates representing the NCS Shares,
registered in the name of NIL and NIL shall deliver to NCS the Common Shares.
1.03 INTERNAL REVENUE CODE SECTION 368. It is the intent of the parties
hereto that the exchange described herein shall qualify as a tax free exchange
pursuant to IRC ss.368(a)(1)(B).
1.04 CLOSING AND CLOSING DATE. The closing of the transactions
contemplated by this Agreement ("Closing") shall take place at 10:00 a.m., local
time, on March 31, 1998 ("Closing Date") at the offices of NIL, or at such other
time, place and date as shall be mutually agreed on by NCS and NIL and shall be
effective as of March 31, 1998.
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ARTICLE II
REPRESENTATIONS OF NOBLE COMPONENTS & SYSTEMS, INC.
NCS represents and warrants as follows:
2.01 AUTHORIZATION. It has the full capacity, power and authority to
execute, deliver and perform its obligations under this Agreement and it has
taken all necessary corporate action to authorize the execution, delivery and
performance of its obligations hereunder and to consummate the transactions
contemplated hereby.
2.02 AUTHORIZED AND OUTSTANDING CAPITAL STOCK. The authorized capital
stock of NCS consists of Fifty Thousand (50,000) shares of common stock none of
which has been issued or pledged.
2.03 BINDING OBLIGATIONS. This Agreement, when executed and delivered by
the parties, will be its legally valid and binding obligation, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and by general principles of
equity.
2.04 INVESTMENT INTENT. It is acquiring the Common Shares for its own
account for investment purposes only and the Common Shares are not being
purchased with a view towards resale or distribution; and it is able to bear the
economic risk of ownership of the Common Shares for an indefinite period of time
and has no present or foreseeable need to dispose of any portion of its
investment in Prestolock, Vassar, Monroe and/or Skandy and is aware that it will
be unable to readily liquidate its investment in Prestolock, Vassar, Monroe
and/or Skandy
.
2.05 NO CONFLICT. The execution, delivery and performance by it of this
Agreement and the consummation of the transactions contemplated hereby does not
and will not: (i) violate any provisions of law applicable to it; (ii) result in
or require the creation or imposition of any lien upon any of its properties or
assets.
ARTICLE III
REPRESENTATIONS OF NOBLE INTERNATIONAL, LTD.
NIL represents and warrants as follows:
3.01 AUTHORIZATION. It has the full legal capacity, power and authority
to execute, deliver and perform its obligations under this Agreement. NIL is the
lawful record owner of the Common Shares, and the same are and shall be
delivered to NCS free and clear of all pledges, security interests, options,
liens, encumbrances and claims or rights of every kind therein or thereto,
except such claim from Comerica Bank granted pursuant to an Amended and Restated
Loan Agreement dated December 30, 1997 and the delivery of such Common Shares to
NCS pursuant to the provisions of this Agreement will transfer lawful, valid,
marketable title thereto.
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3.02 BINDING OBLIGATION. This Agreement, when executed and delivered by
the parties, will be its legally valid and binding obligation, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and by general principles of
equity.
3.03 NO CONFLICT. The execution, delivery and performance by it of this
Agreement and the consummation of the transactions contemplated hereby does not
and will not: (i) violate any provisions of law applicable to it; (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any of its contractual obligations; (iii) result in or
require the creation or imposition of any lien upon any of his property or
assets; or (iv) require any approval or consent of any Person.
3.04 INVESTMENT INTENT. It is acquiring the NCS Shares for its own
account for investment purposes only and the NCS Shares are not being purchased
with a view towards resale or distribution; and it is able to bear the economic
risk of ownership of the NCS Shares for an indefinite period of time and has no
present or foreseeable need to dispose of any portion of its investment in NCS
and is aware that it will be unable to readily liquidate its investment in NCS.
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ARTICLE IV
REPRESENTATIONS OF PRESTOLOCK, VASSAR, MONROE AND SKANDY
Prestolock, Vassar, Monroe and Skandy represents and warrants as
follows:
4.01 AUTHORIZATION. They have the full capacity, power and authority to
execute, deliver and perform their obligations under this Agreement and they
have taken all necessary corporate action to authorize the execution, delivery
and performance of their obligations hereunder and to consummate the
transactions contemplated hereby.
4.02 AUTHORIZED AND OUTSTANDING CAPITAL STOCK. The authorized capital
stock of Prestolock consists of Sixty Thousand (60,000) shares of common stock;
the authorized capital stock of Vassar consists of Fifty Thousand (50,000)
shares of common stock; the authorized capital stock of Monroe consists of Fifty
Thousand (50,000) shares of common stock and the authorized capital stock of
Skandy consists of Fifty Thousand (50,000) shares of common stock. NIL is the
record owner of Thirty Nine Thousand Nine Hundred Fifty Six (39,956) shares of
Prestolock; Thirty Thousand (30,000) shares of Vassar; One Thousand Eight
Hundred Fifty (1,850) shares of Monroe and Five Thousand (5,000) shares of
Skandy, which represents all of the issues and outstanding shares of the capital
stock of Prestolock, Vassar, Monroe and Skandy, which have been validly issued,
are fully paid and non-assessable.
4.03 BINDING OBLIGATIONS. This Agreement, when executed and delivered by
the parties, will be its legally valid and binding obligation, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and by general principles of
equity.
4.04 NO CONFLICT. The execution, delivery and performance by it of this
Agreement and the consummation of the transactions contemplated hereby does not
and will not: (i) violate any provisions of law applicable to it; (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any of its contractual obligations; (iii) result in or
require the creation or imposition of any lien upon any of its properties or
assets; or (iv) require any approval or consent of any person under any
contractual obligations, except for such approvals or consents as have been
obtained or which it shall make all reasonable efforts to obtain.
4.05 FINANCIAL STATEMENTS. The balance sheet of Prestolock, Vassar,
Monroe and Skandy as of December 31, 1997 and the related statements of income,
changes in stockholders's equity and cash flows for the twelve (12) month period
then ended, together with the notes thereto, and the reviewed financial
statement of Prestolock, Vassar, Monroe and Skandy for the period ending
December 31, 1997 (the "Financial Statements") are in accordance with the books
and records of Prestolock, Vassar, Monroe and Skandy, present fairly the
financial position and the results of the operations, changes in stockholders'
equity and cash flow of Prestolock, Vassar, Monroe and Skandy for the period
then ending, and have been prepared in conformity with generally accepted
accounting principles consistently applied with the prior periods except as may
otherwise by indicated in the notes thereto.
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4.06 UNREPORTED AND CONTINGENT LIABILITIES. Except as expressly set
forth in the Financial Statements, and except as otherwise incurred by
Prestolock, Vassar, Monroe and Skandy in the ordinary course of their business,
Prestolock, Vassar, Monroe and Skandy have no obligations or liabilities,
whether accrued, absolute, fixed, known or unknown, contingent or otherwise,
existing, arising out of or relating to any transaction entered into, or state
of facts existing, on or prior to the date of this Agreement. For purposes of
this Section, the phrase "in the ordinary course of business" shall not include
liabilities arising out of breach or contract, breach of warranty, tort
infringement or any violation of law, including, but not limited to, health,
safety and Environmental laws. Prestolock, Vassar, Monroe and Skandy are not
directly or indirectly liable upon or with respect to, or obligated in any way
to provide funds in respect of, or to guarantee or assume any indebtedness or
obligation of any person or entity.
ARTICLE V
AFFIRMATIVE COVENANTS OF NCS
From and after the date hereof, so long as any of the NCS Shares remain
outstanding, NCS shall perform and comply with, and shall cause each of its
Subsidiaries to perform and comply with, all covenants in this Article V
applicable to such Person as follows:
5.01 FINANCIAL STATEMENTS AND OTHER REPORTS. NCS will maintain, and
cause each of its subsidiaries to maintain, a system of accounting established
and administered in accordance with sound business practices to permit
preparation of financial statements in conformity with GAAP. NCS will deliver to
each holder of the NCS Shares, with reasonable promptness, such business or
financial information and data with respect to NCS or any subsidiary as from
time to time may be reasonably requested by any holder of the NCS Shares.
5.02 INSPECTION. NCS shall permit any authorized representative(s)
designated by any holder of the NCS Shares to visit and inspect any of the
properties of NCS or any of its subsidiaries, including its and their financial
and accounting records, and to make copies and take extracts therefrom, and to
discuss its and their affairs, finances and business with its and their officers
and independent certified public accountants, at such reasonable times during
normal business hours and as often as may be reasonably requested.
ARTICLE VI
MISCELLANEOUS
6.01 EXPENSES. NCS shall pay its costs, fees and expenses incurred by it
in connection with the negotiation, review, documentation, preparation and
closing of this Agreement. NIL shall pay all costs, fees and expenses incurred
by them in connection with the negotiation, review, documentation, preparation
and closing of this Agreement.
6.02 SURVIVAL. All representations, warranties, agreements and covenants
contained herein shall survive the execution and delivery of this Agreement, and
the purchase of the NCS Shares contemplated hereby and any disposition thereof,
notwithstanding any investigation made at any time by any of the parties hereto.
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6.03 REMEDIES. Each holder of any of the NCS Shares will be entitled to
enforce its rights under this Agreement specifically and to exercise all other
rights existing in its favor. Money damages may not be an adequate remedy for
any breach of the provisions of this Agreement and, accordingly, the parties may
apply to any court of law or equity of competent jurisdiction (as contemplated
by Section 6.05) for specific performance and/or injunctive relief in order to
enforce or prevent any violation of the provisions of this Agreement.
6.04 NOTICES. Any notice, request, claim, demand or other communication
to be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when delivered
personally or mailed by certified or registered mail, return receipt requested,
and postage prepaid, to the recipient. Such notices, demands and other
communication will be sent as follows:
(i) To Noble: Xxxxxxx X. Xxxx, Esq.
00 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
(ii) If to NCS: Xxxxxxx X. Xxxx, Esq.
00 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
or, in either of the foregoing cases to such other address as such party may
hereafter specify for such purpose by notice to the other party referred to
above.
6.05 CONSENT TO JURISDICTION. NCS and NIL hereby consent to the
jurisdiction of any state or federal court located within the state of Michigan
and irrevocably agree that all actions or proceedings relating to this agreement
shall be litigated in such courts. NCS and NIL waive any objection which it or
they may have based on improper venue or forum non conveniens to the conduct of
any proceeding in any such court and waive personal service of any and all
process upon it and them and consent that all such service of process be made by
mail or messenger directed to it or them at the addresses set forth in section
6.04 and that service so made shall be deemed to be completed upon the earlier
of actual receipt or three (3) days after the same shall have been posted to the
party's address set forth in section 6.04 Nothing contained in this section 6.05
shall affect the right of any party to serve legal process in any other manner
permitted by law.
6.06 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, all of
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
provided that this Agreement shall not be assignable by any party without the
prior written consent of the others, other than by operation of law.
6.07 AMENDMENTS AND WAIVERS. Except as otherwise provided herein, any
provision of this Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by NCS and the holders of a
majority of the then outstanding NCS Shares issued and sold hereunder. Except as
otherwise provided in this Agreement, any failure of either of the parties to
comply with any obligation, covenant, agreement or condition herein may be
waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
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6.08 ENTIRE AGREEMENT. This Agreement shall constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede
all other understandings, oral or written, with respect to the subject matter
hereof.
6.09 GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the internal laws of the state of Michigan. Without regard to
conflicts of laws principles.
6.10 SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable under any applicable law in any jurisdiction, such provision will
be ineffective only to the extent of such invalidity, illegality or
unenforceability in such jurisdiction, without invalidating the remainder of
this Agreement in such jurisdiction or any provision hereof in any other
jurisdiction.
6.11 HEADINGS. The Section and Subsection headings of the Articles
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
6.12 COUNTERPARTS; EFFECTIVENESS. This Agreement and any amendments,
waivers, consents or supplements may be executed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto.
6.13 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided
herein, the rights and remedies herein provided shall be cumulative and not
exclusive of any other rights or remedies provided by law or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
effective as of the date first above written.
NOBLE COMPONENTS
NOBLE INTERNATIONAL, LTD. & SYSTEMS, INC.
/s/ Xxxxx X. Xxxxx, III /s/ Xxxxxxxxxxx X. Xxxxx
----------------------------------- -------------------------------------
By: Xxxxx X. Xxxxx, III By: Xxxxxxxxxxx X. Xxxxx
Its: President Its: President
MONROE ENGINEERING PRESTOLOCK
PRODUCTS, INC. INTERNATIONAL, LTD.
/s/ Xxxxxx X. Xxxxxxxxxxx /s/ Xxxxxxxxxxx X. Xxxxx
----------------------------------- -------------------------------------
By: Xxxxxx X. Xxxxxxxxxxx By: Xxxxxxxxxxx X. Xxxxx
Its: Chief Executive Officer Its: President
CASS RIVER COATINGS, INC. D/B/A
VASSAR INDUSTRIES SKANDY CORP.
/s/ Xxxxxxxxxxx X. Xxxxx /s/ Xxxxxx Xxxxxxxx
----------------------------------- -------------------------------------
By: Xxxxxxxxxxx X. Xxxxx By: Xxxxxx Xxxxxxxx
Its: Chief Executive Officer Its: President
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