ESCROW AGREEMENT
This Escrow Agreement (this "Escrow Agreement") dated as of April 7,
1997, by and among Noble International, Ltd., a Michigan corporation ("Noble"),
Utilase, Inc., a Michigan corporation ("Utilase"), and Jaffe, Raitt, Heuer &
Xxxxx, Professional Corporation (the "Escrow Agent").
Background
A. Pursuant to a Stock Purchase Agreement dated as of April 7, 1997, to
which Noble, Utilase, a subsidiary of DCT, Inc., a Michigan corporation
("DCT"), and the shareholders of Utilase are parties (the "Purchase
Agreement"), Noble is to acquire all of the outstanding shares of
common stock of Utilase.
B. The parties desire to place in escrow with the Escrow Agent the Escrow
Shares (as defined in the Purchase Agreement).
NOW, THEREFORE, the parties to this Agreement agree as follows.
Agreement
1. Noble hereby deposits with the Escrow Agent Certificate No. 42
evidencing 506 shares of Noble Common Stock (the "Escrow Shares"). The Escrow
Agent hereby acknowledges receipt of the Escrow Shares and agrees to hold and
disburse the Escrow Shares in accordance with the terms contained in this Escrow
Agreement. The certificates evidencing the Escrow Shares shall be registered in
the name of Utilase, Inc. The Escrow Agent shall hold the Escrow Shares in
escrow for Noble and Utilase pursuant to this Agreement as their interests may
appear.
2. (a) If the transactions contemplated by the Purchase Agreement are
consummated, the Escrow Agent shall return the Escrow Shares to Noble on the
Closing Date (as defined in the Purchase Agreement).
(b) If the Purchase Agreement is terminated, then in accordance with
Section 8.2(ii) of the Purchase Agreement, the Escrow Agent shall deliver the
Escrow Shares to Utilase or to Noble upon such termination, as provided in
Section 8.2(ii) of the Purchase Agreement.
3. Notwithstanding paragraph 2, the Escrow Agent shall not deliver the
Escrow Shares to Noble or Utilase unless (a) a written demand (the "Release
Demand") for the Escrow Shares has been received by the Escrow Agent from Noble
or Utilase, as the case may be (the "Demanding Party"), and (b) either no
objection to such demand has been received by the Escrow Agent as
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provided below, or such objection has been withdrawn as so provided, or the
Escrow Agent has received a certified copy of the decision of the arbitrator
referred to in paragraph 4 directing such delivery. Any Release Demand shall be
in writing and shall specify in reasonable detail the basis for the demand. Upon
receipt of a Release Demand, the Escrow Agent shall transmit a copy thereof to
the other party in the manner provided in paragraph 8 hereof within 5 business
days. Utilase or Noble, as the case may be (the "Objecting Party"), may object
to such Release Demand by giving a written objection (an "Objection"),
specifying the basis therefor, to the Escrow Agent. Upon its receipt of such an
Objection, the Escrow Agent shall transmit a copy thereof to the Demanding Party
in the manner provided in paragraph 8 hereof within 5 business days. A Release
Demand or Objection may be withdrawn at any time by written notice to the Escrow
Agent from the Demanding Party or the Objecting Party, as the case may be. The
Escrow Agent shall comply with a Release Demand as promptly as practicable if no
such Objection is given to the Escrow Agent within the period ending 15 days
after the copy of the Release Demand is given to the Objecting Party as provided
above, or if such objection is withdrawn. Compliance with this paragraph 3 shall
completely discharge the duties of the Escrow Agent with respect to delivery of
the Escrow Shares in response to a Release Demand.
4. Any dispute arising out of or relating to this Agreement or the
breach, termination or validity hereof or thereof, shall be finally settled by
arbitration conducted expeditiously in accordance with the Center for Public
Resources Rules for Non-Administered Arbitration of Business Disputes by an
independent and impartial arbitrator selected by the agreement of Noble and
Utilase. The arbitration shall be governed by the United States Arbitration Act,
9 U.S.C. ss.ss.1-16, and judgment on the award rendered by the arbitrator may be
entered by any court having jurisdiction thereof. The place of arbitration shall
be Oakland County, Michigan, or such other place as the parties may agree. The
arbitrator is not empowered to award damages in excess of compensatory damages
and each party hereby irrevocably waives any damages in excess of compensatory
damages. One-half of the fees and expenses of such arbitrator shall be borne by
Noble and one-half shall be borne by Utilase.
5. Any cash dividends paid upon the Escrow Shares shall be paid to the
Escrow Agent to be held in the name of Utilase, Inc in an interest bearing trust
account. Utilase shall not be entitled to vote Escrow Shares upon any matters
submitted to the holders of Noble Common Stock for its vote, unless the Escrow
Shares are delivered to Utilase pursuant to Section 3. All non-cash
distributions upon the Escrow Shares shall be held by the Escrow Agent as part
of the Escrow Shares and any cash dividends and interest earned thereon shall be
deemed to be part of the Escrow Shares and shall be delivered by the Escrow
Agent with delivery of the Escrow Shares pursuant to Paragraph 2 hereof.
6. The Escrow Agent shall not be liable for any action taken by it in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement, and may rely upon any
certificate, request or document believed by it to be genuine and to have been
signed and delivered by the proper party or parties. Noble and Utilase hereby
expressly acknowledge and agree that Escrow agent is acting as counsel to Noble
in all matters relating to the
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Purchase Agreement. In such capacity, Escrow Agent has an undivided duty of
loyalty to Noble. In recognition of this duty, Noble and Utilase each hereby
waives any claim or defense against Escrow Agent based on a breach of any duty
of Escrow Agent, whether as fiduciary or for alleged conflict of interest, other
than a breach based on Escrow Agent's willful breach, bad faith or gross
negligence, excluding in all such cases, an alleged conflict of interest.
7. For its services hereunder the Escrow Agent shall be entitled to
receive reimbursement for its reasonable costs and expenses incurred in
connection with such services and shall be indemnified and held harmless against
any loss, liability or expense incurred without gross negligence or bad faith on
its part and arising out of or in connection with its services hereunder,
including the costs and expenses of defending itself against any claim of
liability hereunder. Noble and Utilase shall be jointly and severally liable for
such compensation and costs.
8. All notices, demands, claims, requests, undertakings, consents,
opinions and other communications which may or are required to be given
hereunder or with respect hereto shall be in writing, shall be given either by
personal delivery or by mail, facsimile transmission, telegraph, telex or
similar means of communication, and except for demands and objections pursuant
to paragraph 3, which shall be effective when received by the Escrow Agent,
shall be deemed to have been given or made when personally delivered, when
delivered to the telegraph or telephone company, charges prepaid, and otherwise
when received, addressed to the respective parties as follows:
(a) If to Noble:
Noble International, Ltd.
00 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxx
with a copy to:
Jaffe, Raitt, Heuer & Xxxxx, Professional Corporation
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Sugar, Esq.
or to such other address as Noble may from time to time designate by notice to
Utilase and the Escrow Agent with respect to future notices, demands and other
communications to Noble;
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(b) If to Utilase:
Utilase, Inc.
00000 Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxx Xxxxxxxxx, III
with a copy to:
Stone, Biber & X'Xxxxx, P.C.
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
or to such other address as Utilase may from time to time designate by notice to
Noble and the Escrow Agent with respect to future notices, demands and other
communications to Utilase; and
(c) If to the Escrow Agent:
Jaffe, Raitt, Heuer & Xxxxx, Professional Corporation
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Sugar, Esq.
or to such other address as the Escrow Agent may from time to time designate by
notice to Noble and Utilase with respect to future notices, demands and other
communications to the Escrow Agent.
9. If there is any stock split, stock dividend, reclassification,
merger or other change with respect to the Noble Common Stock, the Escrow Shares
shall be equitably adjusted to reflect such event. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs and successors, but may not be assigned by any party hereto.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart. This
Agreement shall be governed by the laws of the State of Michigan.
10. The Escrow Agent may resign as Escrow Agent following thirty (30)
days written notice to Noble and Utilase. The Escrow Agent may be removed and
replaced following thirty (30) days prior written notice to the Escrow Agent by
Noble and Utilase. In either event, the duties of the Escrow Agent shall
terminate thirty (30) days after the date of such written notice (or as of such
earlier date as may be mutually agreed) and the Escrow Agent shall deliver the
balance of the Escrow Shares then in its possession to a successor escrow agent
as shall be appointed by Noble and Utilase,
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or failing such appointment, the Escrow Agent may petition any court of
competent jurisdiction for the appointment of a successor escrow agent or other
appropriate relief, and such resulting appointment shall be binding upon Noble
and Utilase and the Escrow Agent. Upon acknowledgment by any successor escrow
agent of the receipt of the remaining balance of the Escrow Shares, the Escrow
Agent shall be fully released and relieved of all duties, responsibilities and
obligations under this Agreement, except for any liability with respect to any
previous acts, steps or omissions resulting from its own gross negligence or bad
faith as set forth in paragraph 6 and 7 of this Agreement.
11. This Agreement constitutes the entire understanding among Noble,
Utilase and Escrow Agent as to the subject matter of this Agreement and no
waiver or modification of the terms of this Agreement shall be valid unless in
writing and signed by Noble, Utilase and Escrow Agent and only to the extent
therein set forth.
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The parties have duly executed this Escrow Agreement as of April 7,
1997.
NOBLE INTERNATIONAL, LTD.
By:/s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------
Xxxxxx X. Xxxxxxxxxxx
-------------------------
(Printed Name)
President & CEO
-------------------------
(Title)
UTILASE, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------
Xxxxx X. Xxxxx
-------------------------
(Printed Name)
Assistant Secretary
-------------------------
(Title)
JAFFE, RAITT, HEUER & XXXXX,
Professional Corporation
By: /s/ Xxxxx Sugar
------------------------
Xxxxx Sugar
------------------------
(Printed Name)
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