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EXHIBIT 2.5
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of July 24, 1998 (this
"Agreement") by and among NOBLE INTERNATIONAL LTD., a Michigan corporation (the
"Company"), and WRAYTER INVESTMENTS, INC. ("Wrayter" or the "Securityholder").
RECITALS
A. Pursuant to a certain Share Exchange Agreement (the "Exchange
Agreement") entered into on July 24, 1998 by and between the Company, Noble
Canada Holdings Ltd., Noble Canada Inc., Tiercon Holdings Inc. ("Tiercon"), and
Wrayter, the Securityholder owns, or has the right to acquire, shares of the
common stock, no par value, of the Company (the "Common Stock").
B. Subject to the restrictions set forth in the Exchange Agreement,
upon the exercise of their right to exchange, the Securityholder shall have the
registration rights set forth in this Agreement.
C. The Company and the Securityholder are entering into this Agreement
to set forth the terms and conditions applicable to the registration rights
which the Company has agreed to provide to the Securityholder.
NOW, THEREFORE, the parties hereto agree as follows:
I. DEFINITIONS
1.1 Definitions. (a) In addition to the terms defined elsewhere herein,
the following terms have the following meanings when used herein with initial
capital letters:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with,
such Person. For the purposes of this definition, "control" when used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"AGREEMENT" means this Agreement, as the same may be amended from time
to time.
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized by law to remain
closed.
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"CHARTER" means the Certificate of Incorporation of the Company, as
amended from time to time.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means common stock, no par value, of the Company.
"DIRECTOR" means a member of the Board of Directors.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"INITIAL PUBLIC OFFERING" means the first Public Offering of Common
Stock of the Company.
"PERSON" means an individual, corporation, partnership, trust, limited
liability company, association or any other entity or organization, including
without limitation a government or political subdivision or an agency or
instrumentality thereof.
"PUBLIC OFFERING" means any primary or secondary public offering of
Common Stock of the Company pursuant to an effective registration statement
under the Securities Act, other than pursuant to a registration statement on
Form S-4 or Form S-8 or any successor or similar form.
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"REGISTRABLE SECURITIES" means, as the context requires, (a) with
respect to any Person holding Common Stock of the Company and entitled to
registration rights under the terms of this Agreement or any other agreement
with the Company, such shares of Common Stock and any additional shares of
Common Stock ("Additional Shares") subsequently paid, issued or distributed in
respect of such shares by way of stock dividend or distribution or stock split
or in connection with a combination of shares, recapitalization, reorganization,
merger, consolidation, pursuant to the Charter or otherwise, (b) with respect to
any Person holding options of the Company and entitled to registration rights
under the terms of this Agreement or any other agreement with the Company, the
Shares of Common Stock issuable upon exercise of such options and any Additional
Shares Issued in respect thereof, and (c) with respect to any Person holding
warrants or the Company and entitled to registration rights under the terms of
this Agreement or any other agreement with the Company, the shares of Common
Stock issuable upon exercise of such warrants and any Additional Shares issued
in respect thereof. Notwithstanding the foregoing, Registrable Securities will
cease to be Registrable Securities when and to the extent that (i) a
registration statement relating to such securities has been declared effective
under the Securities Act and such Registrable Securities have been disposed of
pursuant to such effective Registration Statement, (ii) such Registrable
Securities have been transferred to a party in violation of the Exchange
Agreement, (iii) such Registrable Securities have ceased to be outstanding, (iv)
such securities may be sold in a single transaction without registration
pursuant to Rule 144, or (v) such securities may be sold without registration
pursuant to Regulation S.
"REGISTRATION EXPENSES" means all (i) registration and filing fees with
the Commission, (ii) fees and expenses of compliance with state securities or
blue sky laws (including without limitation reasonable fees and disbursements of
a qualified independent underwriter, if any, counsel in connection therewith and
the reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) printing expenses, (iv)
internal expenses of the Company (including without limitation all salaries and
expenses of officers and employees performing legal or accounting duties), (v)
fees and expenses of counsel and independent public accountants for the Company,
(vi) fees and expenses of any additional experts retained by the Company in
connection with such registration, (vii) fees and expenses of listing the
Registrable Securities, if any, (viii) transfer taxes, and (ix) reasonable fees
and expenses of one counsel for the Securityholder, which counsel will be
selected by the Securityholder.
"REGULATION D" means Regulation D under the Securities Act.
"REGULATION S" means Regulation S under the Securities Act.
"RULE 144" means Rule 144 under the Securities Act, as such rule may be
amended from time to time.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITYHOLDER" means Wrayter Investments, Inc.
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"SHELF REGISTRATION" means a registration statement on the appropriate
form pursuant to Rule 415 tinder the Securities Act (or any successor rule that
may be adopted by the Commission).
"EXCHANGE AGREEMENT" means the Share Exchange Agreement dated as the
date hereof by and among the parties hereto and certain other Persons.
"TRANSFEREE" means any Person to whom the Securityholder transfers any
Common Stock (other than in a sale pursuant to an effective registration
statement under the Securities Act or without registration pursuant to Rule 144)
in accordance with the Exchange Agreement and who agrees in writing to be bound
by and to comply with all applicable provisions of this Agreement.
"UNDERWRITER" means a securities dealer who purchases any Registrable
Securities as a principal in connection with a distribution of such Registrable
Securities and not as part of such dealer's market-making activities.
II. REGISTRATION RIGHTS
2.1 Demand Registration.
(a) Subject to paragraphs (c), (d) and (e) of this Section
2.1, at any time and from time to time following the first anniversary
of the execution and delivery of the Exchange Agreement, the
Securityholder may make a written request for registration under the
Securities Act of all or part of the Registrable Securities (a "Demand
Registration"); provided, however, that:
(i) the Company will not be obligated to effect a
Demand Registration unless the aggregate value of the shares
proposed to be offered pursuant to a single registration by
the Securityholder equals or exceeds $500,000;
(ii) the Company will not be obligated to effect and
bear the cost of effecting a Demand Registration on more than
a total of one occasion; provided that if the Securityholder
or any other holders of Registrable Securities making a Demand
Registration agree to bear all administrative, filing and
professional costs of effecting such Demand Registration, then
the Company will be obligated to effect such Demand
Registration, but only on a total of one occasion; and
(iii) notwithstanding anything to the contrary in
clause (ii) above, the Company will not be obligated to effect
more than a total of two Demand Registrations.
Such request will specify the number of shares of Registrable Securities
proposed to be offered
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for sale by the Securityholder and will also specify the intended method of
disposition thereof.
(b) If, in connection with any Demand Registration, the
Company, the Securityholder or any other holders of Registrable
Securities exercising registration rights also desire to sell shares of
Common Stock and the managing Underwriter of such offering advises the
Company, and the Securityholder in writing that the total number of
shares requested to be so included in such registration exceeds the
number of shares of Common Stock which can be sold in such offering or
that the success or pricing of the offering would be materially and
adversely affected by the inclusion of all of the shares of Common
Stock requested to be so included, then the Company will include in
such registration (i) first, the Registrable Securities requested to be
included by the Securityholder and such other holders exercising
registration rights, allocated pro rata among them in accordance with
the number of Registrable Securities held by each of them so that the
total number of Registrable Securities to be included in such offering
for the account of all such Persons will not exceed the number
recommended by such managing Underwriter, (ii) second, the shares of
Common Stock the Company proposes to offer for sale, which number of
shares to be registered will be reduced to the extent necessary to
reduce the total number of shares to be included in such offering to
the number recommended by such managing Underwriter and (iii) third,
such number of other shares of Common Stock as the holders thereof
desire to offer for sale and the Company and the managing Underwriter
recommend be included in such offering.
(c) Notwithstanding the foregoing provisions of this Section
2.1, the Securityholder may not request a Demand Registration (i) if a
registration statement has been filed by the Company with the
Commission, unless such registration statement has been withdrawn or
has been effective for a period of at least 90 Calendar days, or (ii)
if an underwritten offering of Common Stock (whether for the account of
the Company or any other security holders) has been consummated within
the preceding nine months; provided, however, the limitations in
clauses (i) and (ii) of this sentence will not apply if the
Securityholder was not given the opportunity, in accordance with
Section 2.2, to include its Registrable Securities in the registration
statement described in clause (i) or the underwritten offering
described in clause (ii) (as applicable).
(d) Notwithstanding the foregoing provisions of this Section
2.1, the Securityholder will not have the right to initiate or demand a
registration hereunder unless it proposes to include therein
Registrable Securities which it believes in good faith to have a value
of at least $500,000.
(e) Notwithstanding the foregoing provisions of this Section
2.1, in the event the Company receives notice of a Demand Registration,
the Company may elect once, but only once, by written notice to the
Securityholder within 20 days after receipt of such notice, to proceed
with a registration of Common Stock for the Company's account in lieu
of proceeding with the Demand Registration, in which case the
provisions of Section 2.2 (and not this Section 2.1) will apply. If the
Company exercises the right described in the preceding sentence, the
Security Holders will not be deemed (for purposes of determining
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the number of future Demand Registrations that may be demanded under
the terms of this Agreement) to have exercised the right to request a
Demand Registration unless at least 80% of the Registrable Securities
that the Securityholder desired to include in such registration were
included pursuant to Section 2.2.
(f) The Securityholder shall be permitted to remove all or any
part of the Registrable Securities held by the Securityholder from any
Demand Registration at any time prior to the effective date of the
registration statement covering such Registrable Securities; provided,
however, if, as a result of the removal of such Registrable Securities,
such registration statement is withdrawn by the Company, such Demand
Registration shall nonetheless count as a Demand Registration for
purposes of determining the number or future Demand Registration, which
can be requested pursuant to Section 2.1(a) hereof, unless the
Securityholder reimburses the Company for all Registration Expenses
incurred by the Company in connection with such withdrawn Demand
Registration.
2.2 Piggyback Rights.
(a) If the Company proposes to file a registration statement
under the Securities Act with respect to an offering of any shares of
Common Stock (i) for its own account (other than a registration
statement on Form S-4 or S-8 (or any substitute form that may be
adopted by the Commission)) or (ii) for the account of any holder of
its securities having registration rights under the terms of this
Agreement or any other agreement with the Company, including without
limitation a Demand Registration, then the Company will give written
notice of such proposed offering to the Securityholder as soon as
practicable (provided that the Securityholder will be given such notice
not less than 20 calendar days prior to the deadline set by the Company
for electing to include Registrable Securities in such offering), and
such notice will offer such holders the opportunity, in accordance with
Section 2.2(b), to register such number of shares of Registrable
Securities as the Securityholder may request on the same terms and
conditions as the registration of the Company's or such other holders'
shares of Common Stock. If the Company so elects, the offering
contemplated by this Section 2.2 will be in the form of an underwritten
offering. The Company will select the managing Underwriter and any
additional Underwriter in connection with the offering.
(b) Whenever the Company proposes to file a registration
statement in accordance with Section 2.2(a), the Company will include
in such registration all Registrable Securities which the
Securityholder requests to be included therein; provided, however, that
if the managing Underwriter of an underwritten offering under this
Section 2.2 advises the Company and the Securityholder in writing that
the total number of shares requested to be included in such
registration exceeds the number of shares of Common Stock which can be
sold in such offering or that the success or pricing of the offering
would be materially and adversely affected by the inclusion of all of
the shares of Common Stock requested to be included, then (except in
the case of a Demand Registration, as to which Section 2.l(b) will
govern), the Company will include in such
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registration (i) first, the shares of Common Stock the Company proposes
to offer for sale for its own account, (ii) second, the Registrable
Securities requested to be included by the Securityholder and any other
holders of Registrable Securities exercising registration rights,
allocated pro rata among them in accordance with the number of
Registrable Securities held by each of them so that the total number of
Registrable Securities to be included in such offering for the account
of all such Persons will not exceed the number recommended by such
managing Underwriter, and (iii) third; such number of other shares of
Common Stock as the holders thereof desire to offer for sale and the
Company and the managing Underwriter recommend be included in such
offering.
(c) A request by the Securityholder to include Registrable
Securities in a proposed underwritten offering pursuant to this Section
2.2 will not be deemed to be a request for a Demand Registration
pursuant to Section 2.1.
2.3 Sale of Warrants to Underwriters. Notwithstanding anything in this
Agreement to the contrary (but subject to the last sentence of this Section
2.3), in the case of any offering subject to the provisions hereof which is an
underwritten offering, in lieu of exercising any warrant prior to or
simultaneously with the filing or the effectiveness of any registration
statement filed in connection therewith, the holder of such warrant may,
provided that the Company shall have been advised by the managing Underwriter
that such sale would not adversely affect the overall offering or pricing
thereof, sell such warrant or portion thereof to the underwriter or underwriters
of the offering being registered upon the undertaking of such underwriter or
underwriters to exercise such warrant or portion thereof before making any
distribution pursuant to such registration statement and to include the Common
Stock issued upon such exercise among the Registrable Securities being offered
pursuant to such registration statement. Subject to the next succeeding
sentence, the Company agrees to cause such Common Stock to be included among
tile Registrable Securities being offered pursuant to such registration
statement to be issued within such time as will permit such underwriter or
underwriters to make and complete the distribution contemplated by the
underwriting. In no event. however, shall the Company be required pursuant to
the provisions of this Section 2.3 to include in such registration statement
more shares of Common Stock than the holder of such warrant would otherwise be
entitled to include in such registration statement pursuant to the terms of this
Agreement.
III. REGISTRATION PROCEDURES
3.1 Filings: information. Whenever the Securityholder (the "Registering
Securityholder") requests that any Registrable Securities be registered pursuant
to Article II, the Company will use its best efforts to effect the registration
of such Registrable Securities to the extent required by Article II, as promptly
as is practicable, and in connection with any such request:
(a) The Company will as expeditiously as possible prepare and
file with the Commission a registration statement on any form for which
the Company then qualifies and which counsel for the Company deems
appropriate and available for the sale of the
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Registrable Securities to be registered thereunder in accordance with
the intended method of distribution thereof, and use its best efforts
to cause such filed registration statement to become and remain
effective for a period of not less than 90 calendar days or, if less,
the period required for such Registrable Securities to be sold;
provided, however, that if the Company furnishes to the Registering
Securityholder a certificate signed by the Company's Chief Executive
Officer stating that the Board of Directors has determined that it
would be materially detrimental or otherwise materially disadvantageous
to the Company or its stockholders (whether because of any proposed
material transaction or otherwise) for such a registration statement to
be filed as expeditiously as possible, the Company will have a period
of not more than 120 calendar days within which to file such
registration statement measured from the date of the Company's receipt
of the Registering Securityholder's request for registration;
(b) The Company will, if requested, prior to filing such
registration statement or any amendment or supplement thereto, furnish
to the Registering Securityholder and each applicable Underwriter, if
any, copies thereof, and thereafter furnish to the Registering
Securityholder and each such Underwriter, if any, such number of copies
of such registration statement, amendment and supplement thereto (in
each case including all exhibits thereto and documents incorporated by
reference therein) and the prospectus included in such registration
statement (including each preliminary prospectus) as the Registering
Securityholder of each such Underwriter may reasonably request in order
to facilitate the sale of the Registrable Securities;
(c) After the filing of the registration statement, the
Company will promptly notify the Registering Securityholder of any stop
order issued or, to the Company's knowledge, threatened to be issued by
the Commission or any state, securities agency or authority and take
all reasonable actions required to prevent the entry of such stop order
or to remove it if entered;
(d) The Company will endeavor to qualify the Registrable
Securities for offer and sale under such other securities or blue sky
laws of such jurisdictions in the United States as the Registering
Securityholder reasonably requests; provided, however, that the Company
will not be required to (i).qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this subsection (d), (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any
such jurisdiction;
(e) The Company will as promptly as is practicable notify the
Registering Securityholder, at any time when a prospectus relating to
the sale of the Registrable Securities is required by law to be
delivered in connection with sales by an Underwriter or dealer, of the
occurrence of any event requiring the preparation of a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not
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misleading and promptly make available to the Registering
Securityholder and to the Underwriters any such supplement or
amendment. The Registering Securityholder agrees that, upon receipt of
any notice from the Company of the occurrence of any event of the kind
described in the preceding sentence, the Registering Securityholder
will forthwith discontinue the offer and sale of Registrable Securities
pursuant to the registration statement covering such Registrable
Securities until receipt by the Registering Securityholder and the
Underwriters of the copies of such supplemented or amended prospectus
and, if so directed by the Company, the Registering Securityholder will
deliver to the Company all copies, other than permanent file copies
then in the Registering Securityholder possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt
of such notice. In the event the Company gives such notice, the Company
will extend the period during which such registration statement will be
effective as provided in Section 3.1(a) by the number of days during
the period from and including the date of the giving of such notice to
the date when the Company will make available to the Registering
Securityholder such supplemented or amended prospectus;
(f) The Company will enter into customary agreements
(including in the case of an underwritten offering an underwriting
agreement in customary form) and the Company and its officers will take
such other actions as are reasonably required in order to expedite or
facilitate the sale of such Registrable Securities, including
participation in any "road show" undertaken in connection with such
sale;
(g) The Company will furnish to the Registering Securityholder
and to each Underwriter a signed counterpart, addressed to the
Registering Securityholder or such Underwriter, of (i) an opinion or
opinions of counsel to the Company and (ii) a comfort letter or comfort
letters from the Company's independent public accountants, each in
customary form and covering such matters of the type customarily
covered by opinions or comfort letters, as the case may be, as the
Registering Securityholder or the managing Underwriter may reasonably
request;
(h) The Company will make generally available to its security
holders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
effective date of the registration statement, which earnings statement
will satisfy the provisions of Section 11(a) of the 1933 Act and the
rules and regulations either Commission thereunder;
(i) The Company will use its reasonable efforts to cause all
such Registrable Securities to be listed on each securities exchange on
which securities of the same class issued by the Company are then
listed;
(j) The Company may require the Registering Securityholder
promptly to furnish in writing to the Company such information
regarding the Registering Securityholder, the plan of distribution of
the Registrable Securities and other information as the Company may
from time to time reasonably request or as may be legally required in
connection with such registration. The furnishing of such information
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will be a condition to the Company's obligations hereunder;
(k) The Company will notify the Registering Securityholder,
its counsel and the managing underwriters, if any, as soon as possible
and (if requested by any such Person) confirm such notice in writing,
(i) when a prospectus relating to the Registrable Securities or any
prospectus supplement or post-effective amendment has been filed and,
with respect to a registration statement relating to the Registrable
Securities or any post-effective amendment, when the same has become
effective, (ii) of any request by the Commission for amendments or
supplements to a registration statement relating to the Registrable
Securities or related prospectus or for additional information, (iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement relating to the Registrable
Securities or the initiation of any proceedings for that purpose, (iv)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of any of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, and (v) of the Company's reasonable
determination that a post-effective amendment to a registration
statement relating to the Registrable Securities would be appropriate
or that there exist circumstances not yet disclosed to the public which
make further suits under such registration statement inadvisable
pending such disclosure and post-effective amendment;
(l) Upon the occurrence of any event contemplated by paragraph
(a) above, promptly prepare a supplement or post-effective amendment to
the registration statement relating to the Registrable Securities or
related prospectus or any document incorporated therein by reference or
file any other required document so that (i) such registration
statement will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) as
thereafter delivered to the purchasers of the registrable securities
being sold thereunder, such prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein in light of the circumstances
under which they were made, not misleading:
(m) Make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a registration statement
relating to the Registrable Securities, at the lifting at any
suspension of the qualification of any of the Registrable Securities
for sale in any jurisdiction, at the earliest possible moment;
(n) (i) If reasonably requested by the managing underwriter or
any Registering Securityholder, promptly incorporate in a prospectus
supplement or post-effective amendment such information concerning such
Registering Securityholder, the managing underwriter or underwriters or
the intended method of distribution as the managing underwriter or
underwriters or the Registering Securityholder reasonably requests to
be included therein and as is appropriate in the reasonable judgment of
the Company including, without limitation, information with respect to
the number of shares of the Registrable Securities being sold to such
underwriter or underwriters, the purchase price being paid therefor by
such underwriter or underwriters, the purchase price
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being paid therefor by such underwriter or underwriters and with
respect to any other terms of the underwritten (or best efforts
underwritten) offering of the Registrable Securities to be sold in such
offering; and (ii) make all required filings of such prospectus
supplement or post-effective amendment as promptly as practicable after
being notified of the matters to be incorporated therein;
(o) Furnish to each Registering Securityholder and each
managing underwriter, if any, without charge, one manually signed copy
of the registration statement relating to the Registrable Securities
and any post-effective amendments thereto, including financial
statements and schedules and, upon request, all documents incorporated
therein by reference and all exhibits (including those incorporated by
reference);
(p) Provide a transfer agent and registrar for the Registrable
Securities not later than the effective date of the registration
statement relating to the Registrable Securities.
3.2 Registration Expenses. Registration Expenses incurred in connection
with any registration made or requested to be made pursuant to Article II will
be borne by the Company, whether or not any such registration statement becomes
effective, to the extent permitted by applicable law. The Registering
Securityholder will pay, on a pro rata basis, any underwriting fees, discounts
or commissions attributable to the sale of the Registrable Securities.
3.3 Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Registering Securityholder, its officers, directors, members,
managers and agents, and each Person, if any, who controls each such Registering
Securityholder within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act from and against any and all losses, claims, damages,
liabilities and expenses caused by any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus relating to the Registrable Securities (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
furnished in writing to the Company by or on behalf of such Registering
Securityholder expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus will not inure to
the benefit of any Registering Securityholder if a copy of the current
prospectus was not provided, in the manner required by applicable regulations,
to the applicable purchaser by such Registering Securityholder and such current
copy of the prospectus would have cured the defect giving rise to such loss,
claim, damage, liability or expenses. The Company also agrees to indemnify any
Underwriters of the Registrable Securities, their officers and directors and
each Person who controls such underwriters on substantially the same basis as
that of the indemnification of the Registering Securityholder provided in this
Section 3.3.
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3.4 Indemnification by Registering Securityholder. Each Registering
Securityholder registering shares pursuant to Article II agrees, severally but
not jointly, to indemnify and hold harmless the Company, its officers and
Directors and each Person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Registering
Securityholder, but only with reference to information related to such
Registering Securityholder furnished in writing by or on behalf of such
Registering Securityholder expressly for use in any registration statement of
prospectus relating to the Registrable Securities, or any amendment or
supplement thereto or any preliminary prospectus; provided, however. that in no
event will the liability of any Registering Securityholder under this Section
3.4 be greater in amount than the dollar amount of the proceeds received by such
holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation. Each such Registering Securityholder also agrees to
indemnify and hold harmless any Underwriters of the Registrable Securities,
their officers and directors and each Person who controls such Underwriters on
such terms as provided for in underwriting agreement relating to such offering.
3.5 Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) is instituted involving any person in
respect of which indemnity may be sought pursuant to Section 3.3 or Section 3.4,
such Person will promptly notify the Person against whom such indemnity may be
sought in writing and the indemnifying party upon request of the indemnified
party will retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and will pay the fees and disbursements of such
counsel related to the proceeding; provided, however, that the failure to so
notify the indemnifying Person shall not relieve the indemnifying party from any
liability that it may otherwise have to such indemnified Person, except to the
extent the indemnifying Person shall have been materially prejudiced by such
failure. In any such proceeding, any indemnified party will have the right to
retain its own counsel, but the fees and expenses of such counsel will be at the
expense of such indemnified party unless (a) the indemnifying party and the
indemnified party have mutually agreed to the retention of such counsel or (b)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnified party and the indemnifying party and representation
of both parties by the same counsel would be inappropriate due to actual of
potential differing interests between them, in which case the fees and expenses
of such counsel will be paid by the Company. It is understood that the
indemnifying party will not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for all such indemnified parties, and that all such
reasonable fees and expenses will be reimbursed as they are incurred. In the
case of the retention of any such separate firm for the indemnified parties,
such firm will be designated in writing by the indemnified parties. The
indemnifying party will not be liable for any settlement or any proceeding
effected without its consent, but if settled with such consent, or if there be a
final judgment for the plaintiff, the indemnifying party will indemnify and hold
harmless such indemnified parties from and against any loss or liability (to the
extent stated above) by reason of such settlement or judgment.
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3.6 Contribution.
(a) If the indemnification provided for herein is for any
reason unavailable to the indemnified parties in respect of any losses,
claims, damages or liabilities referred to herein, then each such
indemnifying party, in lieu of indemnifying such indemnified party,
will contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the
Company, the Registering Securityholder and any Underwriter in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault of the Company, the
Registering Securityholder and the Underwriter will be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by such party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(b) The Company and each Registering Securityholder agree that
it would not be just and equitable if contribution pursuant to this
Section 3.6 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding subsection. The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the immediately
preceding subsection will be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 3.6, no Registering Securityholder will be required to
contribute any amount by reason of such untrue or alleged untrue
statement or omission or alleged omission in excess of the amount
received by such Registering Securityholder upon the sale of the
Registrable Securities giving rise to such contribution obligation. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation.
3.7 Participation in Underwritten Registrations. Notwithstanding any
other provision of this Agreement, no Person may participate in any underwritten
registration hereunder unless such Person (a) agrees to sell such Person's
securities on the basis provided in any reasonable underwriting arrangements
approved by the Company or other Persons entitled hereunder to approve such
arrangements and (b) completes and executes all customary questionnaires, powers
of attorney, indemnities, underwriting agreements, "lock-up" agreements and
other documents reasonably required under the terms of such underwriting
arrangements and these registration rights.
3.8 Rule 144. The Company will file any reports required to be filed by
it under the Securities Act and the Exchange Act and will take such further
action as any Securityholder may reasonably request to the extent required from
time to time to enable the Securityholder to sell
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Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 under the Exchange Act, as
such Rule may be amended from time to time, or other appropriate rule or
regulation adopted by the Commission. Upon the request of any Securityholder,
the Company will deliver to the Securityholder a written statement as to whether
the Company has complied with such reporting requirements.
3.9 Restrictions on Public Sale by Holders of Registrable Securities.
(a) If and to the extent requested by the managing Underwriter
or Underwriters in the case of an underwritten Public Offering, each of
the Securityholder agrees not to effect, except as part of such
registration, any sale of the shares of Common Stock or a similar
security of the Company, or any securities convertible into or
exchangeable or exercisable for such securities during such time period
(not to exceed 180 days) to which the Company agrees not to effect any
sale of securities in connection therewith, or to which the Registering
Securityholder agrees if the Company does not include any securities
therein. In addition, each of the Securityholder agrees to execute any
customary lock-up agreement reasonably requested by the managing
Underwriter to confirm its agreement in accordance with the preceding
sentence, but only if identical lock-up agreements are required of all
Securityholder.
(b) Nothing in this Agreement will diminish or otherwise
affect the restrictions on transfer contained in the Securityholder
Agreement.
3.10 Representation Concerning Future Registration Rights. Nothing in
this Agreement shall be deemed to limit in any way the right of the Company to
grant registration rights on the Company=s securities to any person at any time
prior to or subsequent to the execution of this Agreement.
IV. MISCELLANEOUS
4.1 Headings. The headings in this Agreement are for convenience of
reference only and will not control or affect the meaning or construction of any
provisions hereof.
4.2 Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter of this Agreement. This
Agreement supersedes all prior agreements and understandings, both oral and
written, among the parties with respect to the subject matter of this Agreement.
This Agreement is not intended to confer upon any Person other than the parties
hereto and thereto any rights or remedies hereunder or thereunder.
4.3 Notices. Any notice, request, instruction or other document
required or permitted to be given hereunder by any party hereto to another party
hereto will be in writing and will be given to such party at its address set
forth in Annex I attached hereto, with, in the case of the Company, a copy sent
to the Company's Secretary at the Company's principal executive offices or to
such other address as the party to whom notice is to be given may provide in a
written
15
notice to the party giving such notice, a copy of which written notice will be
on file with the Secretary of the Company. Each such notice, request or other
communication will be effective (a) if given by certified mail, 96 hours after
such communication is deposited in the mails with certified postage prepaid
addressed as aforesaid, (b) one Business Day after being furnished to a
nationally recognized overnight courier for next Business Day delivery, and (c)
on the date sent if sent by electronic facsimile transmission, receipt
confirmed.
4.4 Governing Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of Michigan without regard to the
conflict of laws rules of such state, and the laws of the United States.
4.5 Severability. The invalidity or unenforceability of any provisions
of this Agreement in any jurisdiction will not affect the validity, legality or
enforceability of the remainder of this Agreement in such jurisdiction or the
validity, legality or enforceability of this Agreement, including any such
provision, in any other jurisdiction, it being intended that all rights and
obligations of the parties hereunder will be enforceable to the fullest extent
permitted by law.
4.6 Termination. All other rights and obligations hereunder will extend
and continue to apply until such time as all Registrable Securities may be
offered and sold without registration under the Securities Act. The provisions
of Sections 3.3, 3.4. 3.5 and 3.6 shall survive any termination of this
Agreement.
4.7 Successors, Assigns and Transferees.
(a) The provisions of this Agreement will be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted transferees. Except as expressly contemplated
hereby, neither this Agreement nor any provision hereof will be
construed so as to confer any right or benefit upon any Person other
than the parties to this Agreement and their respective successors and
permitted assigns.
4.8 Amendments; Waivers.
(a) No failure or delay on the part of any party in exercising
any right, power or privilege hereunder will operate as a waiver
thereof, nor will any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein provided will be
cumulative and not exclusive of any rights or remedies provided by law.
(b) Neither this Agreement nor any term or provision hereof
may be amended or waived except by an instrument in writing signed by
the Company and the Securityholder owning a majority of the Registrable
Securities then held by such other Securityholder and entitled to the
benefits of this Agreement.
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4.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be an original with the same effect as if the
signatures thereto and hereto were upon the same instrument.
4.10 Remedies. The parties hereby acknowledge that money damages would
not be adequate compensation for the damages that a party would suffer by reason
of a failure of any other party to perform any of the obligations under this
Agreement. Therefore, each party hereto agrees that specific performance is the
only appropriate remedy under this Agreement and hereby waives the claim or
defense that any other party has an adequate remedy at law.
4.11 Consent to Jurisdiction. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of any court located in Oakland County,
Michigan or the United States Federal Court sitting in the Eastern District of
Michigan (including any appellate court therefrom) over any suit, action or
proceeding arising out of or relating to this Agreement. Each of the parties
hereto consents to process being served in any such suit, action or proceeding
by serving a copy thereof upon the agent for service of process, provided that
to the extent lawful and possible, written notice of such service will also be
mailed to such party, as the case may be. Each of the parties hereto agrees that
such service will be deemed in every respect effective service of process upon
such party hereto, in any such suit, action or proceedings, and will be taken
and held to be valid personal service upon such party. Nothing in this
subsection will affect or limit any right to serve process in any manner
permitted by law, to bring proceedings in the courts of any jurisdiction or to
enforce in any lawful manner a judgment obtained in one jurisdiction in any
other jurisdiction. Each of the parties hereto waives any right it may have to
assert the doctrine of forum non conveniens or to object to venue to the extent
any proceeding is brought in accordance with this Section 4.11. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
NOBLE INTERNATIONAL, LTD.
By:
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Name:
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Title:
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WRAYTER INVESTMENTS, INC.
By:
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Name:
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Title:
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