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As filed with the Securities and Exchange Commission on November 25, 1998.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NOBLE INTERNATIONAL, LTD.
(Exact name of registrant as specified in its charter)
Michigan 38-3139487
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
(248) 433-3093
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Michael C. Azar, Esq.
General Counsel
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
(248) 433-3093
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copy to:
Teresa Tormey Fineman, Esq.
Oppenheimer Wolff & Donnelly LLP
500 Newport Center Drive, Suite 700
Newport Beach, California 92660
(949) 719-6000
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement
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If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ________________
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT TO BE MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED(1) OFFERING PRICE AGGREGATE REGISTRATION FEE
REGISTERED PER UNIT(2) OFFERING
PRICE(2)
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<S> <C> <C> <C> <C>
Common Stock,
no par value per share 2,111,580 shares $8.50 $17,948,430 $4,990
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(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, this
Registration Statement includes an indeterminate number of additional
shares as may be issuable as a result of stock splits or stock dividends
which occur during this continuous offering.
(2) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the amount of the registration fee based upon the average of
the high and low prices of registrant's Common Stock reported on the
American Stock Exchange on November 18, 1998.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
(SUBJECT TO COMPLETION DATED NOVEMBER 25, 1998)
NOBLE INTERNATIONAL, LTD.
[LOGO]
2,111,580 SHARES
OF COMMON STOCK
-----------------------
This Prospectus relates to shares of Common Stock of Noble
International, Ltd. that may be offered for sale for the account of certain
shareholders identified herein. Up to 2,111,580 shares of our Common Stock are
being registered, of which 1,919,404 shares will be issued and sold only upon
the exercise of certain Warrants or conversion of certain Debentures and
Preferred Stock. No period of time has been fixed within which the shares
covered by this Prospectus may be offered or sold.
The selling shareholders may sell all or any portion of their shares of
Common Stock in one or more transactions on the American Stock Exchange or in
private, negotiated transactions. The selling shareholders will determine the
prices at which they sell their shares. We will not receive any of the proceeds
from the sale of the shares of Common Stock by the selling shareholders.
However, we may receive proceeds from the exercise of the Warrants.
On November 18, 1998, there were 7,156,825 shares of Common Stock
outstanding. The Common Stock is listed on the American Stock Exchange and
traded under the symbol "NIL." On November 18, 1998, the last reported sale
price of the Common Stock was $8.50 per share.
We may amend or supplement this Prospectus from time to time by filing
amendments or supplements as required. You should read this entire Prospectus
and any amendments or supplements carefully before you make your investment
decision.
-----------------------
THE SHARES OF COMMON STOCK OFFERED OR SOLD UNDER THIS
PROSPECTUS INVOLVE A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING AT PAGE 5.
-----------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-----------------------
The date of this Prospectus is __________, 1998.
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WE HAVE NOT AUTHORIZED ANY PERSON TO GIVE YOU ANY SUPPLEMENTAL
INFORMATION OR TO MAKE ANY REPRESENTATIONS FOR US. YOU SHOULD NOT RELY UPON ANY
INFORMATION ABOUT OUR COMPANY THAT IS NOT CONTAINED IN THIS PROSPECTUS OR IN ONE
OF OUR PUBLIC REPORTS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ("SEC")
AND INCORPORATED INTO THIS PROSPECTUS. INFORMATION CONTAINED IN THIS PROSPECTUS
OR IN OUR PUBLIC REPORTS MAY BECOME STALE. THE INFORMATION CONTAINED IN THIS
PROSPECTUS IS ACCURATE ONLY AS OF THE DATE OF THIS PROSPECTUS, REGARDLESS OF THE
TIME OF DELIVERY OF THIS PROSPECTUS OR OF ANY SALE OF THE SHARES. THE SELLING
SHAREHOLDERS ARE OFFERING TO SELL, AND SEEKING OFFERS TO BUY, SHARES OF OUR
COMMON STOCK ONLY IN JURISDICTIONS WHERE OFFERS AND SALES ARE PERMITTED.
TABLE OF CONTENTS
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AVAILABLE INFORMATION........................................................................3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE..............................................3
NOBLE........................................................................................4
FORWARD LOOKING STATEMENTS...................................................................4
RISK FACTORS.................................................................................5
USE OF PROCEEDS..............................................................................9
SELLING SHAREHOLDERS.........................................................................9
PLAN OF DISTRIBUTION........................................................................12
LEGAL MATTERS...............................................................................12
EXPERTS.....................................................................................12
</TABLE>
IN THIS PROSPECTUS, "NOBLE," "COMPANY," "WE," "US," AND "OUR" REFER TO NOBLE
INTERNATIONAL, LTD.
<PAGE> 5
AVAILABLE INFORMATION
We file annual, quarterly, and current reports, proxy statements, and
other documents with the SEC. You may read and copy any document we file at the
SEC's public reference room at Judiciary Plaza Building, 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549. You should call 1-800-SEC-0330 for more
information on the public reference room. The SEC maintains an Internet site at
http://www.sec.gov where certain reports, proxy and information statements, and
other information regarding issuers (including the Company) may be found. In
addition, such material concerning the Company may be inspected at the offices
of the American Stock Exchange, 86 Trinity Place, New York, New York 10006.
This Prospectus is part of a registration statement filed with the SEC.
The registration statement contains more information than this Prospectus
regarding the Company and its Common Stock, including certain exhibits filed.
You can get a copy of the registration statement from the SEC at the address
listed above or from its Internet site.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate" into this Prospectus information we
file with it in other documents. This means that we can disclose important
information to you by referring to other documents that contain that
information. The information incorporated by reference is considered to be part
of this Prospectus, and information we file later with the SEC will
automatically update and supersede this information. We incorporate by reference
the documents listed below, except to the extent information in those documents
is different from the information contained in this Prospectus, and all future
documents filed with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act of 1934 until we terminate the offering of these shares.
* Annual Report on form 10-K for the year ended December 31, 1997
* Quarterly Reports on Form 10-Q for the quarters ended March 31,
June 30, and September 30, 1998
* Current Reports on Form 8-K dated January 6, 1998, August 10,
1998 (as amended October 7, 1998), and October 16, 1998
* Definitive Proxy Statement on Schedule 14A dated March 18, 1998
* The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A filed November 6, 1997
We will provide without charge to each person, including any beneficial
owner of Common Stock, to whom this Prospectus is delivered, upon the written or
oral request of such person, a copy of any and all of the documents that have
been incorporated by reference in this Prospectus (not including exhibits to
such documents unless such exhibits are specifically incorporated by reference
therein). Requests should be directed to:
Noble International, Ltd.
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
Attention: Michael C. Azar, Secretary
Telephone (248) 433-3093
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NOBLE
Noble International, Ltd. is a leading supplier of automotive
components, component assemblies and value-added services to the automotive
industry. Our customers include automobile manufacturers, such as Daimler
Chrysler AG, Ford Motor Company and General Motors Corporation (which are
sometimes referred to in this Prospectus as "OEMs"), as well as other companies
which are suppliers to automobile manufacturers (sometimes referred to as "Tier
I" suppliers).
We believe that the Company is one of the few suppliers to Tier I
companies, or "Tier II" suppliers, to provide integrated manufacturing, design,
planning, engineering and other value-added services to our customers.
Our primary operations include:
* laser welding of automotive tailored blanks
* laser welding and cutting of automotive components
* steel blanking and slitting
* progressive die stamping of metal automotive components
* injection molding of plastic automotive components
* painting and coating of interior and exterior automotive
components
* design, engineering and assembly of glovebox latches
Our principal executive offices of the Company are located at 33
Bloomfield Hills Parkway, Suite 155, Bloomfield Hills, Michigan 48304, and our
telephone number is (248) 433-3093.
FORWARD LOOKING STATEMENTS
This Prospectus contains and incorporates by reference forward-looking
statements which reflect our current view (as of the date such forward-looking
statement is made) with respect to future events, prospects, projections or
financial performance. These forward-looking statements are subject to certain
uncertainties and other factors that could cause actual results to differ
materially from those made, implied or projected in such statements. The words
"believe," "expect," "anticipate," "project," and similar expressions identify
"forward-looking statements" which speak only as of the date of the statement
made. We undertake no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise.
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RISK FACTORS
You should consider carefully the following risk factors, as well as the
other information contained in this Prospectus, in evaluating an investment in
the Company's Common Stock.
SUBSTANTIAL OUTSTANDING INDEBTEDNESS
In order to finance our operations, including costs related to the
consummation of various acquisitions, we have incurred substantial indebtedness.
Our credit facilities are secured by substantially all of our assets as well as
the assets of our subsidiaries. In addition to certain financial covenants, our
credit facilities restrict our ability to incur additional indebtedness, pledge
assets, declare dividends or make distributions to shareholders. As of the date
of this Prospectus, we are in compliance with all of the terms of our credit
facilities. There can be no assurance, however, that we will be able to comply
with the terms of our credit facilities in the future.
DEBT SERVICE OBLIGATIONS
Our business is subject to all of the risks associated with substantial
leverage, including the risk that available cash may not be adequate to make
required payments. Our ability to satisfy outstanding debt obligations from cash
flow will be dependent upon our future performance and will be subject to
financial, business and other factors, many of which may be beyond our control.
In the event that we do not have sufficient cash resources to satisfy our
repayment obligations, we will be in default, which would have a material
adverse effect on our business. To the extent that we are required to use cash
resources to satisfy interest payments to the holders of outstanding debt
obligations, we will have less resources available for other purposes.
RELIANCE ON MAJOR CUSTOMERS
Sales to the automotive industry account for the substantial majority of
our sales. In addition, our sales are highly concentrated among a few major
OEMs. Thus, the loss of any of our significant customers could have a material
adverse effect on our business. As is typical in the automotive supply industry,
we have no long-term contracts with any of our customers. Our customers provide
annual estimates of their requirements, however, sales are made on a short-term
purchase order basis. There is substantial and continuing pressure from the
major OEMs and Tier I suppliers to reduce costs, including the cost of products
purchased from outside suppliers. If in the future we are unable to generate
sufficient production cost savings to offset price reductions, our gross margins
could be adversely affected.
LIMITED CONSOLIDATED OPERATING HISTORY
We have a limited consolidated operating history with regard to a
significant portion of our operations. Our historical results of operations for
1997 and 1998 do not include all of the results of operations of significant
businesses acquired in November 1997, July 1998 and October 1998. As a result,
such data is not necessarily indicative of the results that would have been
achieved if all of the businesses acquired had been operated on an integrated
basis or of the results that may be realized on a consolidated basis in the
future.
RISKS RELATING TO ACQUISITIONS
The automotive component supply industry is undergoing consolidation as
OEMs and Tier I suppliers seek to reduce both their costs and their supplier
base. Future acquisitions may be made in order to enable us to expand into new
geographic markets, add new customers, provide new products, expand
manufacturing and service capabilities and increase automotive model penetration
with existing customers. Integration of the recent acquisitions, or any future
acquisitions, may place a strain upon our financial and
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managerial resources. The full benefits of our acquisitions will require: (i)
the integration of administrative, finance, purchasing, engineering, sales and
marketing organizations; (ii) the coordination of production efforts; and (iii)
the implementation of appropriate operational, financial and management systems
and controls. There can be no assurance that we will be able to integrate these
operations successfully. If we fail to successfully integrate an acquired
business, our business could be harmed.
FAILURE TO OBTAIN BUSINESS ON NEW AND REDESIGNED MODEL INTRODUCTIONS
Our product lines are subject to change as our customers, including both
OEMs and Tier I suppliers, introduce new or redesigned products. We compete for
new business both at the beginning of the development phase of new vehicle
models, which generally begins two to five years prior to the marketing of such
models to the public, and upon the redesign of existing models. Our failure to
obtain business on new models, or to retain or increase business on redesigned
existing models, would adversely affect our business.
DEPENDENCE ON CONTINUOUS IMPROVEMENT OF PRODUCTION TECHNOLOGIES
Our ability to continue to meet customer demands with respect to
performance, cost, quality and service will depend, in part, upon our ability to
remain technologically competitive with our production processes. The investment
of significant additional capital or other resources may be required to meet
this continuing challenge. Our inability to improve our production technologies
could have a material adverse effect on our business.
DESIGN AND ENGINEERING RESOURCES
OEMs and Tier I suppliers are increasingly requiring their suppliers to
provide more design and engineering input at earlier stages in the product
development process. The direct costs of design and engineering are generally
borne by our customers. However, we bear the indirect cost associated with the
allocation of limited design and engineering resources to such product
development projects. Despite our up-front dedication of design and engineering
resources, our customers are under no obligation to order the subject components
or systems from us following their development. In addition, when we deem it
strategically advisable, we may also bear the direct up-front design and
engineering costs as well. There can be no assurance that our dedication of
design and engineering resources, or up-front design and engineering
expenditures, will not have a material adverse effect on our financial condition
or results of operations.
INDUSTRY CYCLICALITY AND SEASONALITY
The automotive industry is highly cyclical and dependent on consumer
spending. Economic factors adversely affecting automotive production and
consumer spending could adversely impact our business. In addition, the
automotive component supply industry is somewhat seasonal. Revenue and operating
income generally increase during the second calendar quarter of each year as a
result of the automotive industry's spring selling season, which is the peak
sales and production period of the year. Revenue and operating income generally
decreases during July and December of each year as a result of scheduled OEM
plant shut-downs for vacations and holidays, as well as changeovers in
production lines for new model years.
RISK OF LABOR INTERRUPTIONS
Substantially all of the hourly employees of the OEMs and many Tier I
suppliers are represented by labor unions and work pursuant to collective
bargaining agreements. The failure of any of our significant customers to reach
agreement with a labor union on a timely basis, resulting in either a work
stoppage or strike, could have a material adverse effect on our business. The
production workers at our Canadian injection molded plastics plant are
represented by a union. This plant has never been subject to a
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strike, lockout or other major work stoppage. The current collective bargaining
agreement with these production workers expires on February 4, 2000. In
addition, the production workers at our Ohio and Indiana steel processing
facilities are represented by a union. These plants have also never been subject
to a strike, lockout or other major work stoppage. The current collective
bargaining agreements with these production workers expire in June 1999, June
2000 and December 2000.
COMPETITION
The automotive component supply is highly competitive. Competition in
the sale of our products is primarily based on engineering, product design,
process capability, quality, cost, delivery and responsiveness. Many of our
competitors are companies, or divisions or subsidiaries of companies, that are
larger and have greater financial and other resources. There can be no assurance
that our products will be able to compete successfully with the products of
these other companies.
PRODUCT LIABILITY EXPOSURE
We face an inherent business risk of exposure to product liability
claims if the failure of one of our products results in personal injury or
death. There can be no assurance that material product liability losses will not
occur in the future. In addition, if any of our products prove to be defective,
we may be required to participate in a recall involving such products. We
maintain insurance against product liability claims, but there can be no
assurance that such coverage will be adequate or will continue to be available
to us on acceptable terms or at all. A successful claim brought against us in
excess of available insurance coverage or a requirement to participate in any
product recall could have a material adverse effect on our business.
IMPACT OF ENVIRONMENTAL REGULATION
We are subject to the requirements of federal, state and local
environmental and occupational health and safety laws and regulations. We cannot
assure that we will always be in complete compliance with all such requirements.
We have made and will continue to make expenditures to comply with environmental
requirements. If a release of hazardous substances occurs on or from our
properties or from any of our disposals at offsite disposal locations, or if
contamination is discovered at any of our current or former properties, we may
be held liable, and the amount of such liability could be material.
DEPENDENCE ON KEY PERSONNEL
Our business is greatly dependent on the efforts and abilities of Robert
J. Skandalaris, our Chief Executive Officer, Lloyd P. Jones, III, our President,
and our other executive officers. We have an employment agreement with Mr.
Skandalaris. We do not, however, have employment agreements with Mr. Jones or
any of our other executive officers. We do not maintain key-person life
insurance on our executives. The loss of the services of Mr. Skandalaris could
have a material adverse effect on our business.
CONTROL BY EXISTING SHAREHOLDERS
Robert J. Skandalaris owns and/or controls approximately 43.4% of the
outstanding Common Stock. As a result, Mr. Skandalaris is able to exert
significant influence over the outcome of all matters submitted to a vote of the
shareholders, including the election of directors, amendments to our Articles of
Incorporation and approval of significant corporate transactions. Such
consolidation of voting power could also have the effect of delaying, deterring
or preventing a change in control that might be beneficial to other
shareholders.
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ANTI-TAKEOVER PROVISIONS
Certain provisions of our Articles of Incorporation and Bylaws may
inhibit changes in control of the Company not approved by our Board of
Directors. These provisions include: (i) a prohibition on shareholder action
through written consents; (ii) a requirement that special meetings of
shareholders be called only by the Board of Directors; (iii) advance notice
requirements for shareholder proposals and nominations; (iv) limitations on the
ability of shareholders to amend, alter or repeal the Bylaws; and (v) the
authority of the Board of Directors to issue, without shareholder approval,
preferred stock with such terms as the Board of Directors may determine. The
Company will also be afforded the protections of Sections 790 through 799 of the
Michigan Business Corporation Act, which could have similar effects.
RISKS ASSOCIATED WITH INTERNATIONAL OPERATIONS
We recently expanded our presence internationally through the
acquisition of two operating subsidiaries in Ontario, Canada. Our business
strategy includes the continued expansion of international operations. As we
expand our international operations, we will increasingly be subject to the
risks associated with such operations, including: (i) fluctuations in currency
exchange rates, (ii) compliance with local laws and other regulatory
requirements, (iii) restrictions on the repatriation of funds, (iv) inflationary
conditions, (v) political and economic instability, (vi) war or other
hostilities, (vii) overlap of tax structures, and (viii) expropriation or
nationalization of assets. The inability to effectively manage these and other
risks could adversely affect our business.
DIVIDEND POLICY
We currently intend to retain any earnings to support our growth
strategy and do not anticipate paying dividends in the foreseeable future. As a
holding company, our ability to pay dividends in the future will be dependent
upon the receipt of dividends or other payments from our operating subsidiaries.
The payment of dividends by our subsidiaries, other than in stock, is
restricted by our credit facilities. Our ability to pay dividends, other than in
stock, is also subject to limitations under the terms of various credit
facilities.
SHARES ELIGIBLE FOR FUTURE SALE
We cannot predict the effect that future sales of Common Stock will have
on the market price of the Common Stock. Sales of substantial amounts of Common
Stock, or the perception that such sales could occur, could adversely affect the
market price of the Common Stock. Approximately 3,856,825 of the shares of
Common Stock currently issued and outstanding are "restricted securities" as
that term is defined under Rule 144 under the Securities Act of 1933 and may not
be sold unless they are registered or unless an exemption from registration,
such as the exemption provided by Rule 144, is available. All of these
restricted securities are currently eligible for resale pursuant to Rule 144,
subject to the volume and manner of sale limitations prescribed by Rule 144.
YEAR 2000
We have conducted an evaluation of the actions necessary in order to
ensure that our business critical computer systems will be able to function
without disruption with respect to the application of dating systems in the Year
2000. As a result of these evaluations, we are engaged in the process of
upgrading, replacing and testing certain of our information and other computer
systems so as to be able to operate without disruption due to Year 2000 issues.
Remedial actions are scheduled to be completed during the second quarter of 1999
and, based upon information currently available, we do not anticipate that the
costs of our remedial actions will be material to our results of operation or
financial condition. However, there can be no assurance that the remedial
actions being implemented will be able to be completed by the time necessary to
avoid dating systems problems or that the cost of doing so will not be material.
If we are
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unable to complete our remedial actions in the planned time frame,
contingency plans will be developed to address those business critical systems
which may not be Year 2000 compliant. In addition, disruptions with respect to
the computer systems of vendors or customers, which systems are outside our
control, could impair our ability to obtain necessary materials or products or
to sell to or service our customers. Disruptions of our computer systems, or the
computer systems of our vendors or customers, as well as the cost of avoiding
such disruption, could have a material adverse effect upon our financial
condition and results of operations.
POSSIBLE VOLATILITY OF TRADING PRICE
The trading price of the Common Stock could be subject to significant
fluctuations in response to, among other factors, variations in operating
results, developments in the automotive industry, general economic conditions,
fluctuations in interest rates and changes in securities analysts'
recommendations regarding our securities. Such volatility may adversely affect
the market price of the Common Stock.
USE OF PROCEEDS
The proceeds from the sale of the shares are solely for the account of
the selling shareholders. Accordingly, we will not receive any proceeds from the
sale of the shares from the selling shareholders. However, we may receive
proceeds from the exercise of certain Warrants to purchase up to 330,000 of the
shares of Common Stock offered hereby. We intend to use any proceeds received
from the exercise of Warrants for our general working capital needs.
SELLING SHAREHOLDERS
This Prospectus relates to the offering of 2,111,580 shares of Common
Stock by the persons named in the following tables. Certain of the selling
shareholders are holders of $20.76 million in principal amount of 6% convertible
debentures issued by the Company in a private offering ("Debentures"). The
holders of Debentures have the right to exchange their Debentures for an
aggregate of 1,450,466 shares of Common Stock at a price of $14.3125 per share
(subject to adjustment in certain events). Other selling shareholders are
holders of representatives' warrants issued in connection with the Company's
November 1997 initial public offering ("Warrants"). These Warrant holders have
the right to purchase an aggregate of up to 330,000 shares of Common Stock at a
price of $10.80 per share (subject to adjustment in certain events). The
remainder of the selling shareholders obtained the right to registration of an
aggregate of 331,114 shares of Common Stock by agreement either in connection
with our November 1997 acquisition of Noble Metal Processing, Inc. (formerly
known as Utilase, Inc.), our July 1998 acquisition of Tiercon Industries, Inc.
(formerly Tiercon Holdings, Inc.), or our October 1998 acquisition of Tiercon
Coaters, Inc. (formerly Centrifugal Coaters, Inc.
The following tables set forth certain information, as of November 25,
1998, and as adjusted to reflect the sale of the shares offered hereby, with
respect to the beneficial ownership of Common Stock by the selling shareholders.
Our registration of these shares of Common Stock does not necessarily mean that
the selling shareholders will sell all or any of such shares. Except as
otherwise indicated in the footnotes to the tables below, prior to the date of
this Prospectus, none of the selling shareholders had ever held any position or
office or had any material relationship with the Company or any of its
subsidiaries and the selling shareholders possess sole voting and investment
power with respect to the shares shown.
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DEBENTURE HOLDERS(1)
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MAXIMUM NUMBER OF PERCENT
NAME SHARES TO BE SOLD(2) OF CLASS(3)
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Credit Foncier de Monaco 27,947 *
Vereins und Westbank 139,737 1.6
Bank Sal Oppenheim Zurich in 34,934 *
favor of Ellis AG
Infidar Investment Advisory Ltd. 34,934 *
Leonardo L.P. 41,921 *
Ramius Fund, Ltd. 20,960 *
Raphel, L.P. 6,986 *
Daiwa Europe, Ltd. 209,606 2.4
Courcoux Bouvet 10,480 *
Bank Insinger de Beaufort N.V. 13,275 *
Clariden Bank 57,292 *
Banque Privee Edmond de 13,973 *
Rothschild SA Luxenbourg
in favor of Trust Invest
Weghsteen & Driege N.V., S.A. 27,947 *
Marint Limited 69,868 *
Pictet & Cie for the account 17,467 *
of Van Dalen & Associates
Deutsche Bank de Bary - 69,868 *
Custody, Amsterdam
Vereinsbank, Int. Luxembourg 34,934 *
Leopold Joseph & Sons 9,082 *
(Guernsey) Ltd.
Generale Bank, Curacao N.V. 32,838 *
in Favor of Oyens & Van
Eaghen, Rotterdam
Robert Flemings & Co. Limited 209,606 2.4
Gacita Limited 349,344 4.1
Carousel Trading 17,467 *
</TABLE>
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(1) No shares of Common Stock are currently held by the Debenture holders.
Shares of Common Stock will be issued only upon conversion of the
debentures.
(2) Shares numbers have been calculated based upon the principal amount of
the Debentures and the initial conversion price of $14.3125 per share.
(3) Assumes the conversion of all of the Debentures.
* Indicates less then 1%.
10
<PAGE> 13
REPRESENTATIVES' WARRANTS HOLDERS(4)
------------------------------------
<TABLE>
<CAPTION>
NAME MAXIMUM NUMBER OF PERCENT
---- SHARES TO BE SOLD OF CLASS(5)
----------------- -----------
<S> <C> <C>
BlueStone Capital Partners, LP 181,500 2.4
Rodman & Renshaw, Inc. 89,100 1.2
Julia S. Heckman 41,400 *
Andrew C. Swartz 2,000 *
John J. Borer, III 10,000 *
Michael Sellinger 1,000 *
Karl Schmidt 5,000 *
</TABLE>
- --------------------
(4) No shares of Common Stock are currently held by the Warrant holders.
Shares will be issued only upon the exercise of Warrants at an exercise
price of $10.80 per share.
(5) Assumes exercise of all of the Warrants.
* Indicates less than 1%.
OTHER RIGHTS HOLDERS
--------------------
<TABLE>
<CAPTION>
SHARES BENEFICIALLY
OWNED AS OF MAXIMUM
NAME NOVEMBER 25, 1998 NUMBER OF
---- ------------------------- SHARES PERCENT
NUMBER PERCENT OF CLASS TO BE SOLD OF CLASS
------ ---------------- ---------- --------
<S> <C> <C> <C> <C>
James Bronce Henderson, III(6) 133,686 1.8% 133,686 1.9
Jeffrey A. Moss (7) -- -- 58,490 *
Wrayter Investments Inc.(8)(9) -- -- 80,000 1.1
Robert Blake, Jr.(9) -- -- 58,938 *
</TABLE>
- --------------------
(6) Mr. Henderson is the Chairman of our Board of Directors.
(7) Mr. Moss will receive an aggregate of 58,490 shares, payable at the rate
of 11,698 shares per annum commencing November 24, 1999, as consideration
for a covenant not to compete with the Company delivered in connection
with the acquisition of Noble Metal Processing, Inc.
(8) Wrayter Investments Inc. is controlled by Fraser Wray, the President of
our Tiercon Industries, Inc. subsidiary.
(9) These shareholders currently hold shares of exchangeable Preferred Stock
of Noble Canada, Inc. delivered in connection with the acquisitions of
Tiercon Industries, Inc. and Tiercon Coaters, Inc.
11
<PAGE> 14
PLAN OF DISTRIBUTION
Shares of Common Stock covered hereby may be offered and sold from time
to time by the selling shareholders. The selling shareholders will act
independently of the Company in making decisions with respect to the timing,
manner and size of each sale. The selling shareholders may sell the shares being
offered hereby: (i) on the American Stock Exchange, or otherwise at prices and
at terms then prevailing or at prices related to the then current market price;
or (ii) in private sales at negotiated prices directly or through a broker or
brokers, who may act as agent or as principal or by a combination of such
methods of sale.
Any broker-dealer participating in such transactions as agent may
receive commissions from the selling shareholders (and, if acting as agent for
the purchaser of such shares, from such purchaser). Usual and customary
brokerage fees will be paid by the selling shareholders. Broker-dealers may
agree with the selling shareholders to sell a specified number of shares at a
stipulated price per share, and, to the extent such a broker-dealer is unable to
do so acting as agent for the selling shareholders, to purchase as principal any
unsold shares at the price required to fulfill the broker-dealer commitment to
the selling shareholders. Broker-dealers who acquire shares as principal may
thereafter resell such shares from time to time in transactions (which may
involve crosses and block transactions and which may involve sales to and
through other broker-dealers, including transactions of the nature described
above) on the American Stock Exchange, in negotiated transactions or by a
combination of such methods of sale or otherwise at market prices prevailing at
the time of sale or at negotiated prices, and in connection with such resales
may pay to or receive from the purchasers of such shares commissions computed as
described above.
The selling shareholders and any underwriter, dealer or agent
who participates in the distribution of such shares may be deemed to be
"underwriters" under the Securities Act of 1933, and any discount, commission or
concession received by such persons might be deemed to be an underwriting
discount or commission. The Company has agreed to indemnify the selling
shareholders against certain liabilities arising under the Securities Act of
1933. The selling shareholders may indemnify any broker-dealer that
participates in transactions involving the sale of the shares against certain
liabilities, including liabilities arising under the Securities Act of 1933.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon by Oppenheimer Wolff & Donnelly LLP, counsel to the Company
EXPERTS
The Company's consolidated financial statements incorporated by
reference in this Prospectus have been audited by Grant Thornton LLP,
independent auditors, as set forth in their report included therein and
incorporated herein by reference. Such financial statements are, and audited
financial statements to be included in subsequently filed documents will be,
incorporated herein by reference in reliance upon the reports of Grant Thornton
LLP pertaining to such financial statements (to the extent covered by consents
filed with the SEC) and upon the authority of such firm as experts in auditing
and accounting.
12
<PAGE> 15
PART II
INFORMATION NOT REQUIRED
IN PROSPECTUS
ITEM 14. ITEMIZED STATEMENT OF EXPENSES.
The table below sets forth the estimated expenses (except the SEC
registration fee, which is an actual expense) in connection with the offer and
sale of the shares of Common Stock of the registrant covered by this
Registration Statement.
<TABLE>
<CAPTION>
<S> <C>
SEC Registration Fee $ 4,990
Legal Fees and Expenses $15,000
Accounting Fees and Expenses $ 1,500
Printing Fees and Expenses $ 1,500
AMEX Listing Fees $17,500
Miscellaneous $ 1,000
-------
Total $41,490
-------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
MICHIGAN STATUTES
Sections 561 to 571 of the Michigan Business Corporation Act set forth
the conditions and limitations governing the indemnification of officers,
directors and other persons as follows:
Section 561. Indemnification for Expenses, Judgments, Fines and
Settlements; Plea of Nolo Contendere, Effect. A corporation shall have power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal. administrative or investigative and whether formal or informal,
other than an action by or in the right of the corporation, by reason of the
fact that he or she is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise,
whether for profit or not, against expenses, including attorneys' fees,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if the person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation or its shareholders, and with respect to any criminal action or
proceeding, if the person had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit, or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
does not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the corporation or its shareholders, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his or her conduct was unlawful.
Section 562. Indemnification for Expense Incurred for Defense or
Settlement of Litigation; Negligence or Misconduct; Extent of Indemnification. A
corporation has the power to indemnify a person who was or is a party or is
threatened to be made a party to a threatened, pending, or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he or she is or was a director, officer, employee, or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, partner, trustee, employee, or agent of another foreign
or domestic
II-1
<PAGE> 16
corporation, partnership, joint venture, trust, or other enterprise, whether for
profit or not, against expenses, including attorneys' fees, and amounts paid in
settlement actually and reasonably incurred by the person in connection with the
action or suit, if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation or its shareholders. Indemnification shall not be made for a claim,
issue, or matter in which the person has been found liable to the corporation
except to the extent authorized in section 564c.
Section 563. Success in Defense of Litigation. To the extent that a
director, officer, employee, or agent of a corporation has been successful on
the merits or otherwise in defense of an action, suit, or proceeding referred to
in Section 561 or 562, or in defense of a claim, issue, or matter in the action,
suit, or proceeding, he or she shall be indemnified against actual and
reasonable expenses, including attorneys' fees, incurred by him or her in
connection with the action, suit, or proceeding and an action, suit, or
proceeding brought to enforce the mandatory indemnification provided in this
subsection.
Section 564a. Determining Permissibility of Indemnification and
Reasonableness of Expenses. (1) An indemnification under section 561 or 562,
unless ordered by the court, shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee, or agent is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in sections 561 and 562 and
upon an evaluation of the reasonableness of expenses and amounts paid in
settlement. This determination and evaluation shall be made in any of the
following ways:
(a) By a majority vote of a quorum of the board consisting of
directors who are not parties or threatened to be made parties to the action,
suit, or proceeding.
(b) If a quorum cannot be obtained under subdivision (a), by
majority vote of a committee duly designated by the board and consisting solely
of 2 or more directors not at the time parties or threatened to be made parties
to the action, suit, or proceeding.
(c) By independent legal counsel in a written opinion, which
counsel shall be selected in 1 of the following ways:
(i) By the board or its committee in the manner prescribed
in subdivision (a) or (b).
(ii) If a quorum of the board cannot be obtained under
subdivision (a) and a committee cannot be designated under subdivision (b), by
the board.
(d) By all independent directors who are not parties or
threatened to be made parties to the action, suit, or proceeding.
(e) By the shareholders, but shares held by directors, officers,
employees, or agents who are parties or threatened to be made parties to the
action, suit, or proceeding may not be voted.
(2) In the designation of a committee under subsection (1)(b) or in the
selection of independent legal counsel under subsection (1)(c)(ii), all
directors may participate.
(3) If a person is entitled to indemnification under section 561 or 562
for a portion of expenses, including reasonable attorneys' fees, judgments,
penalties, fines, or amounts paid in settlement, but not for the total amount,
the corporation may indemnify the person for the portion of the expenses,
judgments, penalties, fines or amounts paid in settlement for which the person
is entitled to be indemnified.
II-2
<PAGE> 17
Section 564b. Advancement of Reasonable Expenses Prior to Final
Disposition; Conditions. (1) A corporation may pay or reimburse the reasonable
expenses incurred by a director, officer, employee, or agent who is a party or
threatened to be made a party to an action, suit, or proceeding in advance of
final disposition of the proceeding if all of the following apply:
(a) The person furnishes the corporation a written affirmation of
his or her good faith belief that he or she has met the applicable standard of
conduct set forth in sections 561 and 562.
(b) The person furnishes the corporation a written undertaking,
executed personally or on his or her behalf, to repay the advance if it is
ultimately determined that he or she did not meet the standard of conduct.
(c) A determination is made that the facts then known to those
making the determination would not preclude indemnification under this act.
(2) The undertaking required by subsection (1)(b) must be an unlimited
general obligation of the person but need not be secured.
(3) Determinations and evaluations under this section shall be made in
the manner specified in section 564a.
Section 564c. Application to Court for Indemnification. A director,
officer, employee, or agent of the corporation who is a party or threatened to
be made a party to an action, suit, or proceeding may apply for indemnification
to the court conducting the proceeding or to another court of competent
jurisdiction. On receipt of an application, the court after giving any notice it
considers necessary may order indemnification if it determines that the person
is fairly and reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not he or she met the applicable standard of conduct
set forth in sections 561 and 562 or was adjudged liable as described in section
562, but if he or she was adjudged liable, his or her indemnification is limited
to reasonable expenses incurred.
Section 565. Nonexclusivity of Statute; Rights of Other Persons;
Continuation of Rights. (1) The indemnification or advancement of expenses
provided under sections 561 to 564c is not exclusive of other rights to which a
person seeking indemnification or advancement of expenses may be entitled under
the articles of incorporation, bylaws, or a contractual agreement. The total
amount of expenses advanced or indemnified from all sources combined shall not
exceed the amount of actual expenses incurred by the person seeking
indemnification or advancement of expenses.
(2) The indemnification provided for in sections 561 to 565 continues as
to a person who ceases to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, personal representatives, and administrators
of the person.
Section 567. Insurance Against Liability. A corporation shall have power
to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee, or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, partner, trustee,
employee, or agent of another corporation, partnership, joint venture, trust, or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity or arising out of his or her status as such,
whether or not the corporation would have power to indemnify him or her against
liability under sections 561 to 565.
II-3
<PAGE> 18
Section 569. Corporation; Construction of References to. For purposes of
sections 561 to 567, "corporation" include all constituent corporations absorbed
in a consolidation or merger and the resulting or surviving corporation, so that
a person who is or was a director, officer, partner, trustee, employee, or agent
of such constituent corporation or is or was serving at the request of the
constituent corporation as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust, or other
enterprise whether for profit or not shall stand in the same position under the
provisions of this section with respect to the resulting or surviving
corporation as the person would if he or she had served the resulting or
surviving corporation in the same capacity.
Section 571. Definitions. For the purposes of sections 561 to 567:
(a) "Fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan.
(b) "Other enterprises" shall include employee benefit plans.
(c) "Serving at the request of the corporation" shall include any
service as a director, officer, employee, or agent of the corporation which
imposes duties on, or involves services by, the director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or its
beneficiaries.
(d) A person who acted in good faith and in a manner he or she
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be considered to have acted in a manner "not
opposed to the best interests of the corporation or its shareholders as referred
to in sections 561 and 562.
Articles of Incorporation
Article VIII of the Company's Articles of Incorporation limits the
liability for breaches of fiduciary duty by directors to the fullest extent
provided by law as follows:
A director of the corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for a breach of
fiduciary duty as a director, except for liability: (a) for any breach
of the director's duty of loyalty to the corporation or its
shareholders; (b) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (c)
resulting from a violation of Section 551(1) of the Michigan Business
Corporation Act; or (d) for any transaction from which the director
derived any improper personal benefit. In the event the Michigan
Business Corporation Act is amended to authorize corporate action
further eliminating or limited to the fullest extent permitted by the
amended Michigan Business Corporation Act, as so amended. Any repeal,
modification or adoption of any provision in these Articles of
Incorporation inconsistent with this Article shall not adversely affect
any right or protection of a director of the corporation existing at the
time of such repeal, modification or adoption.
Bylaws
Article VII of the Company's Bylaws provides for indemnification of the
Company's directors, officers and agents to advance expenses for defense of
litigation and to purchase and maintain insurance on behalf of any director or
officer of the Company against any liability asserted against or incurred by
them in
II-4
<PAGE> 19
such capacity or arising out of their status as such whether or not the Company
would have power to indemnify such director or officer against any liability
under the provisions of such Articles or Michigan law and authorize the Board to
extend such indemnity to others as follows:
7.1 Third Party Proceeding. The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to a threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal, other than an
action by or in the right of the Corporation, by reason of the fact that he or
she is or was a director or officer of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, partner, or trustee of
another foreign or domestic corporation, partnership, joint venture, trust, or
other enterprise, whether for profit or not, against expenses, including
attorneys' fees, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him or her in connection with the action,
suit, or proceeding. If the person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation or its shareholders, and the person submits a written claim for
indemnification as hereinafter provided, and with respect to a criminal action
or proceeding, if the person had no reasonable cause to believe his or her
conduct was unlawful, and the person submits a written claim for indemnification
as hereinafter provided. The termination of an action, suit, or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, does not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Corporation or its shareholders,
or, with respect to a criminal action or proceeding, did not have reasonable
cause to believe that his or her conduct was unlawful. The right to
indemnification conferred in this Section shall be a contract right. The
Corporation may, by action of its Board of Directors, or by action of any person
to whom the Board of Directors has delegated such authority, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
7.2 Derivative Shareholder Liability. The Corporation shall indemnify
any person who was or is a party to or is threatened to be made a party to a
threatened, pending, or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a director or officer of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, partner, or trustee of
another foreign or domestic corporation, partnership, joint venture, trust, or
other enterprise, whether for profit or not, against expenses, including
attorneys' fees, and amounts paid in settlement actually and reasonably incurred
by the person in connection with the action or suit, if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to
the best interests of the Corporation or its shareholders, and the person
submits a written claim of indemnification as hereinafter provided. However,
indemnification shall not be made for a particular action, issue, or matter in
which the person has been found liable to the Corporation unless and only to the
extent that the court in which the action or suit was brought (or another court
of competent jurisdiction) has determined upon application that, despite the
adjudication of liability but in view of all the relevant circumstances, the
person is fairly and reasonably entitled to indemnification for the reasonable
expenses he or she incurred. The right to indemnification conferred in this
Section shall be a contract right. The Corporation may, by action of its Board
of Directors, or by action of any person to whom the Board of Directors has
delegated such authority, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
7.3 Determination of Indemnification. Any indemnification under Section
7.1 or 7.2 of this Article, unless ordered by a court, shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in
Section 7.1 or 7.2 of this Article and upon an evaluation of the reasonableness
of expenses and amounts paid in settlement. This determination and
II-5
<PAGE> 20
evaluation shall occur within 30 days after a written claim for indemnification
has been received by the Corporation, and shall be made in any of the following
ways:
(1) By a majority vote of a quorum of the board consisting of directors
who are not parties or threatened to be made parties to the action, suit or
proceeding;
(2) If the quorum described in subparagraph (1) is not obtainable, then
by a majority of a committee duly designated by the board and consisting solely
of two or more directors not at the time parties or threatened to be made
parties to the action, suit, or proceeding;
(3) By independent legal counsel in a written opinion, which counsel
shall be selected in one of the following ways:
(A) By the board or its committee in the manner prescribed in
subparagraphs (1) and (2),
(B) If a quorum of the board cannot be obtained under
subparagraph (1) and a committee cannot be designated under subparagraph (2), by
the board;
(4) By all independent directors who are not parties or threatened to be
made parties to the action, suit, or proceeding; and
(5) By the shareholders, but shares held by directors, officers,
employees, or agents who are parties or threatened to be made parties to the
action, suit, or proceeding may not be voted.
In the designation of a committee under subparagraph (2) or in the
selection of independent legal counsel under subparagraph (3)(B), all directors
may participate.
If a person is entitled to indemnification under Sections 7.1 or 7.2 of
this Article for a portion of expenses, including reasonable attorneys' fees,
judgments, penalties, fines, and amounts paid in settlement, but not for the
total amount thereof, the Corporation shall indemnify the person for the portion
of the expenses, judgments, penalties, fines, or amounts paid in settlement for
which the person is entitled to be indemnified.
7.4 Payment of Defense Expenses in Advance. The Corporation shall pay or
reimburse the reasonable expenses incurred by a director or officer who is a
party or threatened to be made a party to an action, suit, or proceeding in
advance of final disposition of the proceeding if all of the following apply:
(1) The person furnishes the Corporation a written affirmation of his or
her good faith belief that he or she has met the applicable standard of conduct
set forth in Sections 7.1 and 7.2.
(2) The person furnishes the Corporation a written undertaking, executed
personally or on his or her behalf to repay the advance if it is ultimately
determined that he or she did not meet the standard of conduct.
(3) A determination is made that the facts then known to those making
the determination would not preclude indemnification under this section or the
Michigan Business Corporation Act.
The undertaking shall be by unlimited general obligation of the person
on whose behalf advances are made but need not be secured. Determination of
payments under Section 7.4 shall be made in the manner described in Section
7.3(1)-(5).
II-6
<PAGE> 21
7.5 Right of Officer or Director to Bring Suit. If a claim for
indemnification under this Section is not paid in full by the Corporation within
forty-five (45) days after a written claim has been received by the Corporation,
the officer or director who submitted the claim (hereinafter the "indemnitee")
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such suit
or in a suit brought by the Corporation to recover advances, the indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
claim. In any action brought by the indemnitee to enforce a right under this
Section (other than an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final disposition where the
required undertaking, if any, has been tendered to the Corporation) it shall be
a defense that, and in any action brought by the Corporation to recover advances
the Corporation shall be entitled to recover such advances if, the indemnitee
has not met the applicable standard of conduct set forth in Section 7.1 or
Section 7.2. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the indemnitee is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Sections 7.1 or 7.2, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or its shareholders) that the indemnitee has not met such
applicable standard of conduct, shall be a defense to an action brought by the
indemnitee or create a presumption that the indemnitee has not met the
applicable standard of conduct. In any action brought by the indemnitee to
enforce a right hereunder or by the Corporation to recover payments by the
Corporation of advances, the burden of proof shall be on the Corporation.
7.6 Other Indemnification. The indemnification or advancement of
expenses provided under Sections 7.1 through 7.5 is not exclusive to other
rights to which a person seeking indemnification or advancement of expenses may
be entitled under the Corporation's Articles of Incorporation, bylaws, or a
contractual agreement. However, the total amount of expenses advanced or
indemnified from all sources combined shall not exceed the amount of actual
expenses incurred by the person seeking indemnification or advancement of
expenses. The indemnification provided for in Sections 7.1 through 7.5 continues
as to a person who ceases to be a director, officer, partner, or trustee and
shall inure to the benefit of the heirs, executors, and administrations of the
person.
7.7 Liability Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, partner, trustee, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him or her and incurred by him or her in any such
capacity or arising out of his or her status as such, whether or not the
Corporation would have power to indemnify him or her against liability under the
Michigan Business Corporation Act or this section.
7.8 Definitions. For purposes of this section, "the Corporation"
includes all constituent corporations absorbed in a consolidation or merger and
the resulting or surviving corporation, so that a person who is or was a
director, officer, employee, or agent of the constituent corporation or is or
was serving at the request of the constituent corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise whether for
profit or not shall stand in the same position under the provisions of this
paragraph with respect to the resulting or surviving corporation as the person
would if he or she had served the resulting or surviving corporation in the same
capacity.
7.9 Employee Benefit Plans. For purposes of this section, "other
enterprises" shall include employee benefit plans; "fines" shall include any
excise taxes assessed on a person with respect to an
II-7
<PAGE> 22
employee benefit plan; and "serving at the request of the Corporation" shall
include any service as a director or officer of the Corporation which imposes
duties on, or involves services by, the director or officer with respect to an
employee benefit plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner he or she reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be considered to have acted in a manner "not opposed to the best interests of
the Corporation or its shareholders" as referred to in Sections 7.1 and 7.2.
7.10 Severability. The invalidity or unenforceability of any provision
of this Article VII shall not effect the validity or enforceability of the
remaining provisions of this Article VII.
ITEM 16. EXHIBITS.
4.1 Articles of Incorporation of the Registrant, as amended (incorporated
by reference to Exhibit 3.1 to the Registrant's Registration Statement
on Form S-1 (File No. 333-27149)).
4.2 Amended and Restated Bylaws of Registrant (incorporated by reference
to Exhibit 3.2 to the Registrant's Registration Statement on Form S-1
(File No. 333-27149)).
4.3 Specimen Common Stock Certificate (incorporated by reference to
Exhibit 5 to the Registrant's Registration Statement on Form 8-A (File
No. 001-13581)).
4.4 Registration Rights Agreement, dated July 23, 1998, executed and
delivered by the Registrant in favor of the Holders of Debentures and
Registrable Securities (incorporated by reference to Exhibit 4.1 to
the Registrant's Current Report on Form 8-K dated August 10, 1998).
4.5 Representatives' Warrant Agreement, including form of Warrant
(incorporated by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-1 (File No. 333-27149)).
4.6 Registration Rights Agreement dated April 7, 1997 among the
Registrant, Utilase, Inc., James Bronce Henderson, III and Jeffrey A.
Moss (incorporated by reference to Exhibit 10.49 to the Registrant's
Registration Statement on Form S-1 (File No. 333-27149)).
4.7 Registration Rights Agreement dated July 24, 1998 among the
Registrant, Noble Canada Holdings, Limited, Noble Canada, Inc. and
Wrayter Investments Inc. (incorporated by reference to Exhibit 2.5 to
the Registrant's Current Report on Form 8-K dated August 10, 1998).
4.8 First Amendment to Registration Rights Agreement dated October 1, 1998
among the Registrant, Wrayter Investments Inc. and Robert Blake, Jr.
(incorporated by reference to Exhibit 2.3 to the Registrant's Current
Report on Form 8-K dated October 16, 1998).
5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly LLP.
24.1 Consent of Oppenheimer Wolff & Donnelly LLP (included in Exhibit 5.1).
24.2 Consent of Grant Thornton LLP.
25.1 Power of Attorney (included on Page II-11 of this Registration
Statement).
II-8
<PAGE> 23
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the maximum aggregate offering price may be
reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) under the Securities
Act, if in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement relating to the
securities offered herein, and the offering of such securities at this time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act
II-9
<PAGE> 24
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-10
<PAGE> 25
SIGNATURES
----------
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Bloomfield Hills, State of Michigan on November 25,
1998.
NOBLE INTERNATIONAL, LTD.
By: /s/ ROBERT J. SKANDALARIS
----------------------------------
Robert J. Skandalaris
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert J. Skandalaris and Michael C. Azar
and each or any one of them, his or her true and lawful attorneys-in-fact and
agents, each acting alone, with full powers of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any all capacities,
to sign any or all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting onto said attorneys-in-fact and agents, each acting alone,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, each acting alone, or
his or her substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ ROBERT J. SKANDALARIS Chief Executive Officer November 25, 1998
- ------------------------------- (Principal Executive
ROBERT J. SKANDALARIS Officer) and Director
/s/ LLOYD P. JONES, III President, Chief Operating November 25, 1998
- ------------------------------- Officer and Director
LLOYD P. JONES, III
/s/ DANIEL W. SAMPSON Chief Financial Officer November 25, 1998
- ------------------------------- (Principal Accounting
DANIEL W. SAMPSON Officer)
</TABLE>
II-11
<PAGE> 26
<TABLE>
<CAPTION>
<S> <C> <C>
- ------------------------------- Chairman of the Board of November __, 1998
JAMES BRONCE HENDERSON, III Directors
/s/ DANIEL J. McENROE Director November 25, 1998
- -------------------------------
DANIEL J. McENROE
- ------------------------------- Director November __, 1998
TIMOTHY F. HEALY
/s/ ANTHONY R. TERSIGNI Director November 25, 1998
- -------------------------------
ANTHONY R. TERSIGNI
/s/ MICHAEL R. HOTTINGER Director November 25, 1998
- -------------------------------
MICHAEL R. HOTTINGER
</TABLE>
II-12
<PAGE> 27
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Page or
Exhibit Location
- ------- --------
<S> <C> <C>
4.1 Articles of Incorporation of the Registrant, as amended (incorporated
by reference to Exhibit 3.1 to the Registrant's Registration Statement
on Form S-1 (File No. 333-27149)).
4.2 Amended and Restated Bylaws of Registrant (incorporated by reference
to Exhibit 3.2 to the Registrant's Registration Statement on Form S-1
(File No. 333-27149)).
4.3 Specimen Common Stock Certificate (incorporated by reference to
Exhibit 5 to the Registrant's Registration Statement on Form 8-A (File
No. 001-13581)).
4.4 Registration Rights Agreement, dated July 23, 1998, executed and
delivered by the Registrant in favor of the Holders of Debentures and
Registrable Securities (incorporated by reference to Exhibit 4.1 to
the Registrant's Current Report on Form 8-K dated August 10, 1998).
4.5 Representatives' Warrant Agreement, including form of Warrant
(incorporated by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-1 (File No. 333-27149)).
4.6 Registration Rights Agreement dated April 7, 1997 among the
Registrant, Utilase, Inc., James Bronce Henderson, III and Jeffrey A.
Moss (incorporated by reference to Exhibit 10.49 to the Registrant's
Registration Statement on Form S-1 (File No. 333-27149)).
4.7 Registration Rights Agreement dated July 24, 1998 among the
Registrant, Noble Canada Holdings, Limited, Noble Canada, Inc. and
Wrayter Investments Inc. (incorporated by reference to Exhibit 2.5 to
the Registrant's Current Report on Form 8-K dated August 10, 1998).
4.8 First Amendment to Registration Rights Agreement dated October 1, 1998
among the Registrant, Wrayter Investments Inc. and Robert Blake, Jr.
(incorporated by reference to Exhibit 2.3 to the Registrant's Current
Report on Form 8-K dated October 16, 1998).
5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly LLP.
24.1 Consent of Oppenheimer Wolff & Donnelly LLP (included in Exhibit 5.1).
24.2 Consent of Grant Thornton LLP.
25.1 Power of Attorney (included on Page II-11 of this Registration
Statement).
</TABLE>
<PAGE> 1
Exhibit 5.1
FILE NO.
63100.09
November 25, 1998
Noble International, Ltd.
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
Re: Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Noble International, Ltd., a Michigan
corporation (the "Company"), in connection with the registration for resale of
up to 2,111,580 shares of the Company's Common Stock, no par value (the
"Shares"), pursuant to the Company's Registration Statement on Form S-3 to be
filed with the Securities and Exchange Commission on November 25, 1998 (the
"Registration Statement").
In acting as counsel for the Company and arriving at the opinions
expressed below, we have examined and relied upon original or copies, certified
or otherwise identified to our satisfaction, of such records of the Company,
agreements and other instruments, certificates of officers and representatives
of the Company, certificates of public officials and other documents as we have
deemed necessary or appropriate as a basis for the opinions expressed herein.
In connection with our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents tendered to us as originals,
the legal capacity of natural persons and the conformity to original documents
of all documents submitted to us as certified or photostatic copies.
Based upon the foregoing, and subject to the qualifications and
limitations set forth herein, it is our opinion that the Shares have been duly
authorized and, when issued, delivered and paid for in accordance with the terms
referred to in the Registration Statement, will be validly issued, fully paid
and nonassessable.
We express no opinion with respect to laws other than the laws of the
State of Michigan and the federal laws of the United States of America, and we
assume no responsibility as to the applicability thereto, or the effect thereon,
of the laws of any other jurisdiction.
<PAGE> 2
Noble International, Ltd.
November 25, 1998
Page 2
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to its use as part of the Registration Statement. In
giving this consent, we do not admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
We are furnishing this opinion to the Company solely for its benefit in
connection with the Registration Statement as described above. It is not to be
used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
OPPENHEIMER WOLFF & DONNELLY LLP
<PAGE> 1
Exhibit 24.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated February 12, 1998 accompanying the consolidated
financial statements of Noble International, Ltd. and subsidiaries appearing in
the Annual Report on Form 10-K for the year ended December 31, 1997 which is
incorporated by reference in this Registration Statement. We consent to the
incorporation by reference in the Registration Statement of the aforementioned
report and the use of our name as it appears under the caption "Experts."
GRANT THORNTON LLP
Detroit, Michigan
November 23, 1998
