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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): July 24, 1998
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NOBLE INTERNATIONAL, LTD.
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(Exact name of registrant as specified in its charter)
Michigan 001-13581 38-3139487
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
33 Bloomfield Hills Parkway, Suite 155, Bloomfield Hills, Michigan 48304
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (248) 433-3093
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N/A
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(Former name or former address, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On July 24, 1998, Noble International, Ltd. (the "Company") consummated
the acquisition, through its wholly-owned subsidiary Noble Canada Holdings,
Ltd., a Nova Scotia corporation ("NCH"), and NCH's wholly-owned subsidiary Noble
Canada, Inc., an Ontario corporation ("Noble Canada"), of all of the outstanding
capital stock of Tiercon Holdings, Inc., an Ontario corporation ("Tiercon"),
including Tiercon's wholly-owned subsidiary Triam Automotive Canada, Inc., an
Ontario corporation ("Triam"). The aggregate consideration paid for the
acquisitions of Tiercon and Triam (collectively, the "Tiercon/Triam
Acquisition") consisted of approximately $32 million in cash and 80,000 shares
of Noble Canada's Class T Non-Voting Exchangeable Preferred Shares, which are
exchangeable for 80,000 shares of the Company's common stock, no par value
("Common Stock"). The cash portion of the Tiercon/Triam purchase price was
funded from the Company's line of credit with Comerica Bank (which was
subsequently reduced using proceeds from the Company's private offering of
debentures as described under Item 9 below).
Triam is a Tier II supplier of injection molded plastic components to
the automotive industry. Triam's primary products are painted exterior body trim
components, such as rocker panels and body side moldings. For each of 1996 and
1997, Triam was named "Supplier of the Year" for exterior moldings by General
Motors Corporation ("GM"), placing Triam among the top 300 of GM's global
suppliers. Triam currently operates two leased facilities with an aggregate of
approximately 197,000 square feet in Stoney Creek, Ontario, Canada and has
approximately 255 employees. Triam operates approximately 24 high pressure
injection molding machines ranging in capacity from 80 tons to 3,300 tons.
ITEM 5. OTHER EVENTS.
Effective August 1, 1998, in connection with planned operational
changes, Christopher L. Morin resigned as a member of the Company's Board of
Directors and as Chief Operating Officer in order to assume a new position as
Chief Executive Officer of Noble Metal Technologies, Inc., the Company's
wholly-owned subsidiary. The vacancy left by Mr. Morin's resignation was filled
by the appointment of Lloyd P. Jones, III, the Company's President.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial statements of businesses acquired.
The financial statements required by Rule 3-05 of Regulation S-X
in connection with the Tiercon/Triam Acquisition will be provided by an
amendment to this report filed within 60 days of the date hereof.
(b) Pro forma financial information.
The pro forma financial information required by Rule 11-01 of
Regulation S-X with regard to the Tiercon/Triam Acquisition will be provided by
an amendment to this report filed within 60 days of the date hereof.
(c) Exhibits.
2.1 Share Purchase Agreement between Triam Automotive, Inc. and
Tiercon Holdings, Inc. dated July 2, 1998.
2.2 Agreement Amending the Share Purchase Agreement between Magna
International, Inc. and Tiercon Holdings, Inc. dated July 24, 1998.
2.3 Stock Purchase Agreement among Noble International, Ltd.,
Noble Canada, Inc., Tiercon Holdings, Inc., and Wrayter Investments, Inc. dated
July 24, 1998.
2.4 Share Exchange Agreement among Noble International, Ltd.,
Noble Canada Holdings, Limited, Noble Canada, Inc., and Wrayter Investments,
Inc. dated July 24, 1998.
2.5 Registration Rights Agreement among Noble International, Ltd.
and Wrayter Investments, Inc. dated July 24, 1998.
4.1 Indenture between Noble International, Ltd. and American
Stock Transfer & Trust Company dated as of July 23, 1998.
4.2 Registration Rights Agreement executed and delivered by Noble
International, Ltd. in favor of the Holders of Debentures and Registrable
Securities dated July 23, 1998.
ITEM 9. SALES OF EQUITY SECURITIES PURSUANT TO REGULATION S.
The Company has offered, and will continue to offer for sale (the
"Offering") until August 31, 1998, subject to extension to September 15, 1998,
to persons who are not "United States persons" as that term is defined in Rule
902 of Regulation S promulgated under the Securities Act of 1933, as amended
(the "Act"), up to an aggregate of $40 million principal amount of 6%
Convertible Subordinated Debentures due 2005 (the "Debentures"). Initial
closings of the Offering
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were held on July 31 and August 10, 1998 resulting in gross proceeds to the
Company of $15.5 million and $5.25 million, respectively. The Debentures are
listed on Luxembourg Stock Exchange. BlueStone Capital Partners, L.P. and Robert
Fleming & Co. Limited, as placement agents, have and will receive fees equal to
6% of the gross proceeds of the Offering.
The Debentures have and will be issued under an Indenture dated as of
July 23, 1998 (the "Indenture"), between the Company and American Stock Transfer
& Trust Company, as trustee (the "Trustee"). The Debentures are unsecured,
subordinated obligations of the Company limited (except for the PIK Debentures,
as defined below) to $40 million aggregate principal amount, and will mature on
July 31, 2005 (the "Maturity Date"). The Debentures bear interest at the rate of
6% per annum, payable semi-annually in arrears on January 31 and July 31 of each
year (each an "Interest Payment Date"), commencing January 31, 1999, subject to
increases in such interest rate based upon failure of the Company to comply with
certain covenants contained in the Registration Rights Agreement (as defined
below) until such covenants have been complied with, and at the rate of 10% per
annum on any overdue principal and (to the extent permitted by applicable law)
on any overdue interest, until paid in full. Interest on the Debentures accrues
from July 31, 1998 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for. Interest is computed on the basis
of a 360-day year of twelve 30-day months. During the PIK Payment Period (the
36-month period expiring on July 31, 2001), the Company will issue to the
appropriate holders of the Debentures on each Interest Payment Date, by giving
notice to the Trustee to authenticate for original issue, PIK ("payment in
kind") Debentures, in lieu of cash interest, in integral multiples of $1,000 and
in an aggregate principal amount equal to the amount of cash interest that would
otherwise be paid to such holders on such Interest Payment Date. Each PIK
Debenture will be identical to, and immediately fungible with, the Debentures
originally issued in sales pursuant to the Offering. Each issuance of PIK
Debentures will be made pro rata with respect to the outstanding Debentures,
subject to the payments of cash in lieu of fractional PIK Debentures in the
event that any such payment of interest in PIK Debentures would result in the
issuance of a PIK Debenture which is less than $1,000 or an integral multiple of
$1,000. If the Company shall default in issuing any PIK Debentures on an
Interest Payment Date, the amount of interest evidenced thereby shall thereafter
be payable in cash. The Debentures have and will be sold in denominations of
$100,000 and integral multiples of $10,000 at a price equal to 100% of the
principal amount thereof plus accrued interest thereon, if any, from July 31,
1998, but are immediately transferrable (in book entry form only except in
limited circumstances) in principal denominations of $1,000 or integral
multiples thereof.
The Debentures are subordinated in right of payment to the prior payment
in full of all existing and future Senior Indebtedness (as hereinafter defined)
of the Company. The term "Senior Indebtedness" includes all present and future
obligations incurred by the Company and/or any of its subsidiaries under any
loan or credit agreement with a bank or other institutional lender, under any
guarantee of such obligations, to finance the acquisition of capital assets, for
indebtedness to sellers in connection with the acquisition of businesses and
under capitalized leases.
The Debentures are convertible into shares of Common Stock at $14.3125
per share (the "Conversion Price"), subject to adjustment upon the occurrence of
certain events, at any time commencing November 30, 1998 and prior to the close
of business on the Maturity Date, unless previously redeemed or repurchased.
Pursuant to a separate agreement (the "Registration Rights
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Agreement"), the Company has agreed, for the benefit of the holders of the
Debentures, that it will, at its cost, file a shelf registration statement (the
"Shelf Registration Statement") with the Securities and Exchange Commission (the
"Commission") with respect to resales of the shares of Common Stock issued or
issuable upon conversion of the Debentures by November 30, 1998. The
Registration Rights Agreement also provides that the Company will use its best
efforts to have such Shelf Registration Statement declared effective by the
Commission as soon as possible, and in no event later than January 31, 1999.
Further, the Company is required to use its best efforts to maintain such Shelf
Registration Statement continuously effective under the Act for a period of two
years from the final closing date of the Offering or a shorter period, which
will terminate when all of the shares of Common Stock issued upon conversion of
the Debentures have been sold pursuant to the Shelf Registration Statement or
Rule 144 under the Act, provided that the Company may suspend the use of the
Shelf Registration Statement for a period not to exceed 45 days in any 12 month
period for valid business reasons, including acquisitions and divestitures of
assets, filings with the Commission, pending corporate developments and similar
reasons.
On January 31, 2004 and on each January 31 and July 31 thereafter, up to
and including the Maturity Date (each a "Principal Payment Date"), the Company
will cause to be redeemed for cash (at 100%) of the principal amount thereof,
together with accrued interest to the payment date), 25% of the aggregate
principal amount of the Debentures outstanding on each such date, except that
the last such payment (due on the Maturity Date) will be equal to the total
aggregate principal amount of the Debentures outstanding on, and interest
accrued as of, the Maturity Date. Each such redemption of Debentures will be
made pro rata with respect to the outstanding Debentures. In addition, the
Debentures are redeemable, at the option of the Company, at any time on or after
January 31, 2000, at an initial Redemption Price equal to 110.0% of the
principal amount thereof, reducing to a Redemption Price equal to 100.5% of the
principal amount thereof at any time after July 31, 2004, in each case, plus
accrued and unpaid interest to the Redemption Date. The Debentures may also be
redeemed, in whole but not in part, at the option of the Company, at a cash
Redemption Price equal to 100% of their principal amount plus accrued and unpaid
interest top the date of redemption upon the occurrence of certain changes in
United States federal income tax laws.
Upon a change in control of the Company, each holder of Debentures has
the right during the 45-day period following notice thereof from the Company to
require the Company to repurchase all or a portion of such holder's Debentures
at a cash purchase price equal to 100% of the principal amount of such
Debentures, plus accrued and unpaid interest to the date of repurchase.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NOBLE INTERNATIONAL, LTD.,
A Michigan Corporation
(Registrant)
Date: August 10, 1998 By: /s/ MICHAEL C. AZAR
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Michael C. Azar,
Secretary and General Counsel
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
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<C> <S>
2.1 Share Purchase Agreement between Triam Automotive, Inc. and
Tiercon Holdings, Inc. dated July 2, 1998.
2.2 Agreement Amending the Share Purchase Agreement between Magna
International, Inc. and Tiercon Holdings, Inc. dated July 24,
1998.
2.3 Stock Purchase Agreement among Noble International, Ltd., Noble
Canada, Inc., Tiercon Holdings, Inc., and Wrayter Investments,
Inc. dated July 24, 1998.
2.4 Share Exchange Agreement among Noble International, Ltd., Noble
Canada Holdings, Limited, Noble Canada, Inc., and Wrayter
Investments, Inc. dated July 24, 1998.
2.5 Registration Rights Agreement among Noble International, Ltd. and
Wrayter Investments, Inc. dated July 24, 1998.
4.1 Indenture between Noble International, Ltd. and American Stock
Transfer & Trust Company dated as of July 23, 1998.
4.2 Registration Rights Agreement executed and delivered by Noble
International, Ltd. in favor of the Holders of Debentures and
Registrable Securities dated July 23, 1998.
</TABLE>
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EXHIBIT 2.1
TRIAM AUTOMOTIVE INC.
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TIERCON HOLDINGS INC.
SHARE PURCHASE AGREEMENT
JULY 2, 1998
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THIS SHARE PURCHASE AGREEMENT is made the 2nd day of July, 1998
BETWEEN:
TRIAM AUTOMOTIVE INC., a corporation governed by the laws
of Ontario, (the "Vendor"),
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TIERCON HOLDINGS INC., a corporation governed by the laws of
Ontario, (the "Purchaser").
RECITALS:
A. The Vendor beneficially owns and controls all of the issued and outstanding
shares of TRIAM Automotive Canada Inc., a corporation governed by the laws of
Ontario (the "Company").
B. The Vendor has agreed to sell to the Purchaser and the Purchaser has agreed
to purchase from the Vendor all of the issued and outstanding shares of the
Company, on the terms and conditions of this Agreement.
NOW THEREFORE, the parties agree as follows:
ARTICLE 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
1.1 DEFINITIONS - Whenever used in this Agreement, unless there is something
inconsistent in the subject matter or context, the following words and terms
shall have the meanings set out below:
"AFFILIATE" has the meaning given in the Business Corporations Act
(Ontario), as amended from time to time;
"AGREEMENT" means this Share Purchase Agreement, including all
schedules, and all instruments supplementing or amending or confirming
this Agreement and references to "ARTICLE" or "SECTION" mean and refer
to the specified Article or Section of this Agreement;
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"AUDITOR" means Ernst & Young, Chartered Accountants;
"BENEFIT PLANS" means all plans, arrangements, agreements, programs,
policies or practices, whether oral or written, formal or informal,
funded or unfunded, to which the Company is a party to or bound by or
under which the Company has any liability or contingent liability,
relating to any health, dental, disability, unemployment insurance,
vacation pay, severance pay, pay equity, hospital or medical expense
programme or pension, retirement, profit sharing, stock bonus or other
benefit plan with respect to any of its Employees or former employees,
individuals working on contract with it or other individuals providing
services to it of a kind normally provided by employees;
"BOOKS AND RECORDS" means all books and records of the Company,
including financial, corporate, operation and sales books, records,
books of account, sales and purchase records, lists of suppliers and
customers, business reports, plans and projections and all other
documents, files, records, correspondence, and other data and
information, financial or otherwise, including without limitation, all
data and information stored on computer-related media;
"BUSINESS" means the manufacture of interior and exterior moldings,
painted body side and rocker moldings, and enclosure applications
carried on by the division of the Company known as the Plastics
Division;
"BUSINESS DAY" means a day, other than a Saturday or Sunday, on which
the principal commercial banks located at the City of Toronto are open
for business during normal banking hours;
"CLAIMS" means any claim, demand, action, cause of action, damage, loss,
costs, liability or expense, including, without limitation, reasonable
professional fees and all costs incurred in investigating or pursuing
any of the foregoing or any proceeding relating to any of the foregoing;
"CLOSING" means the completion of the sale to and purchase by the
Purchaser of the Purchased Shares under this Agreement;
"CLOSING DATE" means the 24th day of July, 1998 or such other date as
the Parties may agree in writing as the date upon which the Closing
shall take place;
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"CLOSING STATEMENT" has the meaning given in Section 3.5;
"CLOSING TIME" means 10 o'clock a .m. Toronto time, on the Closing Date
or such other time on such date as the Parties may agree in writing as
the time at which the Closing shall take place;
"COMPANY" means TRIAM Automotive Canada Inc.;
"COMPETITION ACT APPROVAL" means (a) the issuance of an advance ruling
certificate pursuant to section 102 of the Competition Act (Canada) by
the Director of Investigation and Research appointed under the
Competition Act (Canada) (the "Director") to the effect that he is
satisfied that he would not have sufficient grounds upon which to apply
to the Competition Tribunal for an order under section 92 of such Act
with respect to the transactions contemplated by this Agreement; or (b)
that the waiting period under section 123 of the Competition Act
(Canada) shall have expired and (i) the Purchaser shall not have been
advised in writing by the Director that the Director has determined to
make an application for an order under section 92 of the Competition Act
(Canada)in respect of the transactions contemplated by this Agreement;
(ii) the Director shall not have made an application for an order under
section 100 of the Competition Act (Canada) in respect of the
transactions contemplated by this Agreement (or if made, that such order
shall have been rescinded on terms and conditions acceptable to the
Purchaser and the Vendor); (iii) to the knowledge of the Purchaser and
the Vendor, the Director shall not have commenced an inquiry in respect
of such transactions under section 10 of the Competition Act (Canada)
(or if commenced, that such inquiry shall have been terminated and any
action required to be taken shall be acceptable to the Purchaser and the
Vendor); and (iv) to the knowledge of the Purchaser and the Vendor, no
application under section 9 of the Competition Act (Canada) has been
made to the Director in respect of the transactions contemplated by this
Agreement (or if made, that any resulting inquiry shall have been
terminated and any action required to be taken shall be acceptable to
the Purchaser and the Vendor);
"CONTRACTS" means all contracts, licences, leases, agreements,
commitments, entitlements and engagements of the Company;
"CONTROL" has the meaning given in the Business Corporations Act
(Ontario);
"EFFECTIVE DATE" means 3 July 1998;
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"EFFECTIVE DATE BALANCE SHEET" means the statement of assets and
liabilities of the Company, as at the Effective Date, together with an
unqualified opinion of the Auditor to the effect that the Effective Date
Balance Sheet has been prepared in accordance with GAAP consistently
applied with those used in the Pro Forma Balance Sheet and presents
fairly in all material respects the assets and liabilities of the
Company, including the Shareholder Advances, as at the Effective Date;
"EMPLOYEES" means all persons employed or retained by the Company,
including, for greater certainty, those employees on long term
disability leave, Workers' Compensation leave, pregnancy or parental
leave or any other leave of absence;
"ENCUMBRANCES" means any pledge, lien, charge, security agreement,
lease, title retention agreement, mortgage, encumbrance, option or
adverse claim, of any kind or character whatsoever;
"ENVIRONMENT" means the environment or natural environment as defined in
any Environmental Law and includes, without limitation, air, surface,
water, ground water, land surface, soil, subsurface strata, a sewer
system and the environment in the workplace;
"ENVIRONMENTAL DISCLOSURE" has the meaning given Section 4.16;
"ENVIRONMENTAL LAWS" means all Laws relating in full or in part to the
protection of the Environment, and includes, without limitation, those
Environmental Laws relating to the storage, generation, use, handling,
manufacture, processing, labelling, advertising, sale, display,
transportation, treatment, release and disposal of Hazardous Substances;
"GAAP" has the meaning given in Section 1.5;
"GOVERNMENTAL AUTHORITY" means any government, regulatory authority,
governmental department, agency, commission, board, tribunal, crown
corporation, or court or other law, rule or regulation-making entity
having or purporting to have jurisdiction on behalf of any nation, or
province or state or other subdivision thereof or any municipality,
district or other subdivision thereof;
"GOVERNMENTAL AUTHORIZATIONS" means all authorizations, approvals,
licenses or permits issued to the Company in connection with the
Business by any Governmental
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Authorities;
"HAZARDOUS SUBSTANCE" means any pollutant, contaminant, waste of any
nature, hazardous substance, hazardous material, toxic substance,
dangerous substance or dangerous good as defined, judicially interpreted
or identified in any Environmental Law;
"LAWS" means all applicable laws, by-laws, rules, regulations, orders,
ordinances, protocols, codes, notices, directions, policies, codes of
practice and judgements and all common and civil law or other
requirements of any Governmental Authority;
"LEASED PREMISES" means the premises which are the subject of the Real
Property Leases;
"MATERIAL ADVERSE EFFECT" means any event, change or circumstance which
individually or in the aggregate materially and adversely affects the
Business, business practices, operations, assets, income or financial
condition of the Company such that the balance sheet of the Company
would be negatively impacted by an amount in excess of $500,000 or such
that the Purchaser would be unable to continue to operate the Business
after Closing on substantially the same basis as the Business is
presently carried on;
"NOTICE" has the meaning given in Section 11.3;
"PARTIES" means the Vendor and the Purchaser collectively, and "Party"
means any one of them;
"PERMITTED ENCUMBRANCES" means those Encumbrances set out in Schedule
1.1;
"PERSON" means any individual, sole proprietorship, partnership,
unincorporated association, unincorporated syndicate, unincorporated
organization, trust, body corporate, Governmental Authority, and a
natural person in such person's capacity as trustee, executor,
administrator or other legal representative;
"PRO FORMA BALANCE SHEET" means the pro forma balance sheet of the
Company, for the period ending April 30, 1998 after giving effect to the
Reorganization, a copy of which is annexed as Schedule 4.10;
"PURCHASE PRICE" has the meaning given in Section 3.1;
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"PURCHASED SHARES" means all of the issued and outstanding shares in the
capital of the Company;
"REAL PROPERTY LEASES" means those leases and subleases of real property
relating to real property used or occupied by the Company described in
Schedule 4.15;
"REORGANIZATION" has the meaning given in Section 2.1;
"SHAREHOLDER ADVANCES" means all amounts advanced to the Company by the
Vendor as shareholder loans or otherwise and reflected in the Books and
Records;
"SHAREHOLDER ADVANCES NOTICE" has the meaning given in Section 2.3;
"SHAREHOLDERS EQUITY" means, at any time, that amount properly
classified as shareholders equity in accordance with GAAP, consistently
applied.
"SHAREHOLDER ADVANCES PRICE" means the amount of the Shareholders
Advances as at the Closing Date less the reduction in Shareholders
Equity from $1,700,000, being the amount of Shareholders Equity as at 30
April 1998 as reflected on the Pro Forma Balance Sheet, to the amount of
Shareholders Equity on the Effective Date;
"TAX RETURNS" includes, without limitation, all returns, reports,
declarations, elections, notices, filings, information returns and
statements filed in respect of Taxes; and
"TAXES" includes, without limitation, all taxes, duties, fees, premiums,
assessments, imposts, levies and other charges of any kind whatsoever
imposed by any Governmental Authority, together with all interest,
penalties, fines, additions to tax or other additional amounts imposed
in respect thereof, including, without limitation, those levied on, or
measured by, or referred to as income, gross receipts, profits, capital,
transfer, land transfer, sales, goods and services, use, value-added,
excise, stamp, withholding, business, franchising, property, payroll,
employment, health, social services, education and social security, all
surtaxes, all customs duties and import and export taxes, all license,
franchise and registration fees and all unemployment insurance, health
insurance and Canada, Quebec and other government pension plan premiums.
1.2 CERTAIN RULES OF INTERPRETATION - In this Agreement and the Schedules:
(a) TIME - time is of the essence in the performance of the Parties'
respective
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obligations;
(b) CURRENCY - unless otherwise specified, all references to money
amounts are to Canadian currency;
(c) HEADINGS - the descriptive headings of Articles and Sections are
inserted solely for convenience of reference and are not intended
as complete or accurate descriptions of the content of such
Articles or Sections;
(d) SINGULAR, ETC. - the use of words in the singular or plural, or
with a particular gender, shall not limit the scope or exclude
the application of any provision of this Agreement to such person
or persons or circumstances as the context otherwise permits;
(e) CONSENT - whenever a provision of this Agreement requires an
approval or consent by a Party to this Agreement and notification
of such approval or consent is not delivered within the
applicable time limit, then, unless otherwise specified, the
Party whose consent or approval is required shall be conclusively
deemed to have withheld its approval or consent;
(f) CALCULATION OF TIME - unless otherwise specified, time periods
within or following which any payment is to be made or act is to
be done shall be calculated by excluding the day on which the
period commences and including the day on which the period ends
and by extending the period to the next Business Day following if
the last day of the period is not a Business Day;
(g) BUSINESS DAY - whenever any payment to be made or action to be
taken under this Agreement is required to be made or taken on a
day other than a Business Day, such payment shall be made or
action taken on the next Business Day following such day.
1.3 ENTIRE AGREEMENT - This Agreement together with the agreements and other
documents to be delivered pursuant to this Agreement, constitute the entire
agreement between the Parties pertaining to the subject matter of this Agreement
and supersede all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the Parties including the letter of
intent dated June 3, 1998 and confidentiality agreement dated_____ , 1998 and
there are no warranties, representations or other agreements between the Parties
in connection with the
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subject matter of this Agreement except as specifically set forth in this
Agreement and any document delivered pursuant to this Agreement. No supplement,
modification or waiver or termination of this Agreement shall be binding unless
executed in writing by the Party to be bound thereby.
1.4 APPLICABLE LAW - This Agreement shall be construed in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein and
shall be treated, in all respects, as an Ontario contract.
1.5 ACCOUNTING PRINCIPLES - All reference to generally accepted accounting
principles means those principles recommended, from time to time, in the
Handbook of the Canadian Institute of Chartered Accountants and all accounting
terms not otherwise defined in this Agreement have the meanings assigned to them
in accordance with Canadian generally accepted accounting principles.
1.6 KNOWLEDGE -
(a) Any reference to the knowledge of the Vendor shall mean to the
best of the knowledge of the Vice President- Finance of the
Vendor after making due inquiries of senior management of the
Company.
(b) Any reference to the knowledge of the Purchaser shall mean to the
best of the knowledge of the president, chief financial officer
and advisors of the Purchaser after making due inquiries. The
Purchaser shall be deemed to have knowledge of the written
materials provided to or made available to the Purchaser and/or
its advisors by the Vendor.
1.7 DISCLOSURE - The Purchaser acknowledges and agrees that any information,
matter, circumstance, agreement, document or other thing disclosed in any
Schedule to this Agreement shall be deemed to be disclosed in every other
Schedule for purposes of the representations and warranties of the Company and
the Vendor contained in this Agreement.
1.8 SCHEDULES - The schedules to this Agreement, as listed below, are an
integral part of this Agreement:
<TABLE>
<CAPTION>
Schedule Description
-------- -----------
<S> <C>
Schedule 1.1 Permitted Encumbrances
Schedule 2.1 Reorganization
Schedule 4.8 Required Consents
</TABLE>
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<TABLE>
<S> <C>
Schedule 4.11 Liabilities
Schedule 4.10 Pro Forma Balance Sheet
Schedule 4.14 Restrictive Covenants
Schedule 4.15 Real Property Leases
Schedule 4.20 Litigation
Schedule 7.7 Terms of Strategic Alliance Agreement
Schedule 8.4 Terms of Non-Competition Agreement
Schedule 9.7 Contracts with Guarantees by Vendor
</TABLE>
ARTICLE 2
PURCHASE AND SALE
2.1 PRE-CLOSING TRANSACTION - Immediately prior to the Closing Time, the Vendor
shall have completed a reorganization of the Company to transfer out of the
Company all assets and liabilities and obligations unrelated to the Business
(the "Reorganization") and to effect the changes set out in Schedule 2.1.
2.2 ACTION BY VENDOR AND PURCHASER - At the Closing Time,
(a) PURCHASE AND SALE OF PURCHASED SHARES - The Vendor shall sell
and the Purchaser shall purchase the Purchased Shares for the
Purchase Price payable as provided in this Agreement;
(b) PAYMENT OF PURCHASE PRICE - The Purchaser shall deliver to the
Vendor the Purchase Price as provided Section 3.3;
(c) TRANSFER AND DELIVERY OF THE PURCHASED SHARES - The Vendor shall
transfer and deliver to the Purchaser share certificates
representing the Purchased Shares duly endorsed in blank for
transfer, or accompanied by irrevocable security transfer powers
of attorney duly executed in blank, in either case by the
holders of record, and shall take such steps as shall be
necessary to cause the Company to enter the Purchaser or its
nominee(s) upon the books of the Company as the holder of the
Purchased Shares and to issue one or more share certificates to
the Purchaser or its nominee(s) representing the Purchased
Shares.
<PAGE> 11
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(d) SHAREHOLDER ADVANCES - The Purchaser shall acquire from the
Vendor or cause the Company to repay the Shareholder Advances by
payment of the Shareholder Advances Price. For the purposes of
Closing, the Shareholder Advances Price shall be an estimated
amount calculated from the amounts set out on the Shareholder
Advances Notice subject to adjustment by the Closing Statement.
(e) OTHER DOCUMENTS - The Vendor and Purchaser shall deliver such
other documents as may be necessary to complete the transactions
provided for herein.
2.3 SHAREHOLDER ADVANCES NOTICE - The Vendor shall deliver written notice of the
estimated amount of the Shareholder Advances as at the Closing Date (the
"Shareholder Advances Notice") and the Effective Date Balance Sheet no later
than 5 Business Days prior to the Closing Date. If the report of the Auditor on
the Effective Date Balance Sheet is not available at the time for the delivery
of the Shareholder Advances Notice, then the Effective Date Balance Sheet shall
be delivered without the report of the Auditor and the report of the Auditor
shall be delivered to the Purchaser when it is issued by the Auditor.
2.4 PLACE OF CLOSING - The Closing shall take place at the Closing Time at the
offices of Gowling, Strathy & Henderson or at such other place as may be agreed
upon by the Vendor and the Purchaser.
ARTICLE 3
PURCHASE PRICE AND LOAN PURCHASE OR REPAYMENT
3.1 PURCHASE PRICE - The amount payable by the Purchaser for the Purchased
Shares (the "Purchase Price"), exclusive of all applicable sales and transfer
taxes, shall be the amount of $45,556,840 less $19,600,000 being the amount of
the Shareholder Advances as at April 30, 1998 as reflected in the Pro Forma
Balance Sheet.
3.2 DEPOSIT -
(a) The Vendor acknowledges prior receipt from the Purchaser of a
deposit in the amount of $250,000 held by counsel to the Vendor
(the "Deposit"). At Closing, the deposit, plus all accrued
interest on the Deposit, shall be applied in satisfaction of an
equivalent amount of the Purchase Price payable for the
Purchased Shares.
<PAGE> 12
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(b) If the transaction contemplated by this Agreement is not
completed by reason of the default of the Purchaser, the full
amount of the Deposit, plus all accrued interest on the Deposit,
shall become the property of and be retained by the Vendor to
compensate it for expenses incurred in connection with the
transaction contemplated in this Agreement and the delay caused
to the Vendor's efforts to sell the Purchased Shares. The
entitlement of the Vendor to retain the Deposit in such
circumstances shall not limit the Vendor's right to exercise any
other rights which the Vendor may have against the Purchaser in
respect of such default.
(c) If the transaction contemplated by this Agreement is not
completed for any reason other than the default of the
Purchaser, the full amount of the Deposit, plus all accrued
interest on the Deposit, shall be returned forthwith by the
Vendor to the Purchaser.
3.3 SATISFACTION OF PURCHASE PRICE - At the Closing Time, the Purchaser shall
satisfy the Purchase Price as follows:
(a) as to the amount of the Deposit, plus all accrued interest on
the Deposit, by release to the Vendor of such amount by Vendor's
counsel; and
(b) as to the balance of the Purchase Price, by payment of such
amount to the Vendor by wire transfer of immediately available
funds to an account designated by the Vendor or by the delivery
to the Vendor of a certified cheque or bank draft made payable
in lawful money of Canada.
3.4 PAYMENT FOR SHAREHOLDER ADVANCES - At the Closing Time, the Purchaser shall
pay or cause the Company to repay the Shareholder Advances by payment of the
Shareholder Advances Price by wire transfer of immediately available funds to an
account designated by the Vendor or by the delivery to the Vendor of a certified
cheque or bank draft made payable in lawful money of Canada, in the amount of
the Shareholder Advances Price estimated in accordance with Section 2.3 which
amount is subject to adjustment in accordance with the Closing Statement.
3.5 DELIVERY OF CLOSING STATEMENT - As soon as reasonably practical after the
Closing Date and in any event not later than 45 days thereafter, the Vendor
shall prepare and deliver to the Purchaser a closing statement ("Closing
Statement") as to the amount of the Shareholder Advances on the Closing Date,
verified by its bankers.
<PAGE> 13
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3.6 PAYMENT OF ADJUSTED SHAREHOLDER ADVANCES - If there is an adjustment of the
amount of Shareholder Advances Price by virtue of the Closing Statement, and if
no Objection Notice is given within the 15 day period provided for in Section
3.7(a), the Vendor or the Purchaser, as the case may be, shall, within 5 days
following the end of such 15 day period, pay to the other by wire transfer of
immediately available funds, certified cheque or bank draft the amount by which
the amount of the Shareholder Advances Price is to be adjusted.
3.7 OBJECTION TO EFFECTIVE DATE BALANCE SHEET OR CLOSING STATEMENT -
(a) DELIVERY OF OBJECTION NOTICE - In the event that the Purchaser
objects in good faith to the Effective Date Balance Sheet and/or
the Closing Statement, the Purchaser shall so advise the Vendor
by delivery to the Vendor of a written notice (the "Objection
Notice") within 15 days after the delivery to the Purchaser of
the Closing Statement. The Objection Notice shall set out the
reasons for the Purchaser's objection as well as the amount
under dispute and reasonable details of the calculation of such
amount.
(b) AGREEMENT OF PARTIES - In the event that the Parties agree on a
resolution of the dispute set out in the Objection Notice, the
Parties shall confirm this resolution in writing and shall
thereafter be bound by such resolution.
(c) ARBITRATION - In the event that the Parties are unable to settle
the dispute with respect to the Effective Date Balance Sheet
and/or Closing Statement within 30 days after the delivery by
the Purchaser to the Vendor of the Objection Notice, the dispute
shall forthwith, and in any event within 60 days after the
delivery by the Purchaser to the Vendor of the Objection Notice,
be referred to an international accounting firm unrelated to
either party to be chosen by lot which shall act as the sole
arbitrator (the "Arbitrator"). The arbitration and the
appointment of the Arbitrator shall, except to the extent
provided for in this Section, be conducted in Toronto in
accordance with the Arbitration Act (Ontario). The Purchaser and
the Vendor shall cooperate in completing any arbitration as
expeditiously as possible and the Arbitrator may hire such
experts as may appear to be appropriate. All of the costs and
expenses of the arbitration shall be borne equally by the
Parties or in such other manner as the Arbitrator may determine
to be appropriate. Arbitration under this Section shall be in
substitution for and precludes the bringing of any action in any
court in connection with any objection made by the Purchaser
pursuant to this Section.
<PAGE> 14
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(d) DETERMINATION OF ARBITRATOR - The determination of the
Arbitrator shall be made within 30 days after the date on which
the dispute was referred to it and the determination of the
Arbitrator shall be final and binding on all Parties. The
Effective Date Balance Sheet and/or the Closing Statement shall
be adjusted in accordance with the determination of the
Arbitrator.
(e) PAYMENT IN ACCORDANCE WITH DETERMINATION - Within 5 days after
resolution, by agreement of the Parties, of the dispute which
was the subject of the Objection Notice or, failing such
resolution, within 5 days after the final determination of the
arbitration, the Vendor or the Purchaser, as the case may be,
shall pay to the other by wire transfer of immediately available
funds, certified cheque or bank draft the amount by which the
Shareholder Advances Price is to be adjusted as a result of such
resolution or final determination.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE VENDOR
The Vendor hereby represents and warrants to the Purchaser, the matters set out
below.
4.1 INCORPORATION AND REGISTRATION - The Company is a corporation duly
incorporated and validly existing under the laws of the Province of Ontario and
has all necessary corporate power, authority and capacity to own its property
and assets and to carry on its business as presently conducted. The Company is
registered, licensed and qualified as an extra-provincial or foreign corporation
in all jurisdictions, in which the nature of the business or the property or
assets owned or leased by it makes such qualification necessary.
4.2 SUBSIDIARIES - The Company does not own, or have any interest in any shares
of any other corporation.
4.3 RIGHT TO SELL - The Vendor is a corporation duly incorporated and validly
existing under the laws of the Province of Ontario. The Vendor is or will be on
Closing the sole registered and beneficial owner of the Purchased Shares free
and clear of all Encumbrances. The Vendor has or will have on Closing the
exclusive right to dispose of the Purchased Shares as provided in this Agreement
and such disposition will not violate, contravene, breach or offend against in
any material respect or result in any default under any material indenture,
mortgage, lease,
<PAGE> 15
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agreement, obligation, instrument, charter or by-law provision, statute,
regulation, order, judgment, decree, licence, permit or law to which the Vendor
is a party or subject or by which the Vendor is bound or affected, except for
those violations, contraventions, breaches, offences and defaults which do not
prevent the Vendor from transferring the Purchased Shares to the Purchaser in
accordance with this Agreement. The Purchased Shares are not subject to the
terms of any shareholders' agreement.
4.4 CAPITALIZATION - The authorized and issued share capital of the Company
consists of an unlimited number of common shares of which 910,089 common shares
have been duly and validly issued and are outstanding as fully paid and
non-assessable shares of the Company. No options, warrants or other rights to
purchase shares or other securities of the Company and no securities or
obligations convertible into or exchangeable for shares or other securities of
the Company have been authorized or agreed to be issued or are outstanding.
4.5 TITLE TO THE ASSETS - Except as identified elsewhere in this Agreement, the
Company is the sole beneficial and (where its interests are registrable) the
sole registered and beneficial owner of all of its assets and interests in
assets, real and personal, with good and valid title, free and clear of all
Encumbrances other than Permitted Encumbrances. In particular, without limiting
the generality of the foregoing, since April 30, 1998 there has been no
assignment, subletting or granting of any licence (of occupation or otherwise)
of or in respect of any of the Company's assets or any granting of any agreement
or right capable of becoming an agreement or option for the purchase of any of
the assets other than pursuant to the provisions of, or as disclosed in, this
Agreement or pursuant to purchase orders for inventory and tooling in the
ordinary course and minor dispositions of fixed assets.
4.6 DUE AUTHORIZATION - The Vendor has all necessary corporate power, authority
and capacity to enter into this Agreement and to carry out its obligations under
this Agreement. The execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement have been, or
prior to Closing will be, duly authorized by all necessary corporate action on
the part of the Vendor.
4.7 ENFORCEABILITY OF OBLIGATIONS - This Agreement constitutes a valid and
binding obligation of the Vendor enforceable against it in accordance with its
terms, subject, however, to limitations with respect to enforcement imposed by
law in connection with bankruptcy or similar proceedings and to the extent that
equitable remedies such as specific performance and injunction are in the
discretion of the court from which they are sought.
<PAGE> 16
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4.8 ABSENCE OF CONFLICTING AGREEMENTS - Except for the need for consent under
certain of the Contracts for a change of control of the Company on Closing, the
Company will not be a party to, bound or affected by or subject to any
indenture, mortgage, lease, agreement, obligation, instrument, charter or by-law
provision, statute, regulation, order, judgment, decree, licence, permit or law
which would be violated, contravened, breached by, or under which default would
occur or an Encumbrance would be created as a result of the execution and
delivery of this Agreement or any other agreement to be entered into under the
terms of this Agreement, or the performance by the Vendor of any of its
obligations provided for under this Agreement or any other agreement
contemplated herein; except in each case where such violation, contravention,
breach, default or Encumbrance would not have a Material Adverse Effect. A list
of the material Contracts which require a consent on the change of control of
the Company on Closing is set out on Schedule 4.8 to this Agreement.
4.9 REGULATORY APPROVALS - No governmental or regulatory authorization,
approval, order, consent or filing is required, other than Competition Act
Approval and consents or assignments to the Governmental Authorizations, on the
part of the Vendor or the Company, in connection with the execution, delivery
and performance of this Agreement or any other documents and agreements to be
delivered under this Agreement or the performance of the Vendor's obligations
under this Agreement or any other documents and agreements to be delivered under
this Agreement.
4.10 PRO FORMA BALANCE SHEET - The Pro Forma Balance Sheet has been prepared in
accordance with GAAP applied on a basis consistent with those of the preceding
period and present fairly the assets, liabilities and financial position of the
Company as at April 30, 1998 on a pro forma basis assuming the completion of the
Reorganization. Schedule 2.1 sets out all the steps of the transactions required
to implement the Reorganization.
4.11 ASSETS AND LIABILITIES - The assets of the Company on the Closing referred
to in Section 4.5 hereof comprise all assets necessary to operate the Business
in all material respects in the same manner as it has been operated by the
Company in the past. The Company does not have any assets or liabilities, except
those (a) which are related to the Business and are reflected on the Pro Forma
Balance Sheet; (b) which have been acquired or incurred, as the case may be, in
the ordinary course of business since April 30, 1998; or (c) which are disclosed
in Schedule 4.11.
4.12 NO INDEBTEDNESS - Other than the Shareholder Advances, the Company has no
liability or obligation for borrowed money.
<PAGE> 17
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4.13 BUSINESS IN COMPLIANCE WITH LAW - To the knowledge of the Vendor, in all
material respects the operations of the Company have been and are now conducted
in compliance with all applicable Laws of each jurisdiction in which the Company
carries on or has carried on business and the Company has not received any
notice of any alleged breach of any such Laws; and the Company has all necessary
permits, and licences required by the Company to enable it to carry on its
business in compliance with applicable Laws; except in each case where failure
to comply would not have a Material Adverse Effect.
4.14 RESTRICTIVE COVENANTS - Except as disclosed in Schedule 4.14, the Company
is not a party to or bound or affected by any commitment, agreement or document
containing any covenant expressly limiting the freedom of the Company to compete
in any line of business, transfer or move any of its assets or operations which
would have a Material Adverse Effect.
4.15 REAL PROPERTY LEASES -
(a) The Vendor has provided complete copies of the Real Property
Leases, including all amendments thereto and renewals thereof,
to the Purchaser.
(b) The Real Property Leases are valid and subsisting leases, in
full force and effect, and enforceable in all material respects
in accordance with their terms, and the Company has a good and
marketable leasehold interest in the leased premises described
therein.
(c) There are no material ongoing negotiations with respect to the
renewal, repudiation or amendment of the Real Property Leases.
(d) All interests held by the Company as lessee under the Real
Property Leases are free and clear of all Encumbrances of any
nature and kind whatsoever except for Encumbrances which would
not have a Material Adverse Affect.
(e) To the Vendor's knowledge, all payments required to be made by
the Company pursuant to the Real Property Leases have been duly
paid and the Company is not otherwise in material default, or
with the passing of time or the giving of notice, or both, would
be in material default in meeting its obligations under any of
the Real Property Leases and the Company has not received any
notice from any lessor under the Real Property Leases or other
party in that regard.
<PAGE> 18
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(f) To the Vendor's knowledge, the leased premises described in the
Real Property Leases comply in all material respects with all
applicable municipal laws and zoning by-laws and neither the
Company nor the Vendor has received any notification of and is
not aware of any outstanding or pending deficiency notice or
work order in respect of the leased premises, or any of them,
described in the Real Property Leases.
(g) To the Vendor's knowledge, the lessors under the Real Property
Leases are not in material default of their obligations under
the Real Property Leases and have completed in all material
respects the leased premises as required by the Real Property
Leases.
(h) To the Vendor's knowledge, there are no pending or threatened
expropriation, condemnation or similar proceedings against the
leased premises, or any of them, described in the Real Property
Leases.
(i) To the Vendor's knowledge, no application has been made for the
rezoning of the lands affected by the Real Property Leases and
the Vendor is not aware of any pending application for rezoning.
4.16 ENVIRONMENTAL MATTERS -
(a) The Vendor has delivered or made available to the Purchaser true
and complete copies of all audits, evaluations, assessments,
studies, tests and reports prepared after 18 February 1998 (the
"Environmental Disclosure") dealing with the Environment and/or
Environmental Laws.
(b) The Vendor has all material permits, licences, approvals or
Certificates of Approval required pursuant to Environmental Laws
for the operations of the Company.
(c) To the Vendor's knowledge, except as disclosed in the
Environmental Disclosure, the Vendor has not used, stored,
generated, handled, manufactured, processed, labelled, sold,
transported, treated, released or disposed of Hazardous
Substances, except in compliance in all material respects with
Environmental Laws.
(d) To the Vendor's knowledge, except as disclosed in the
Environmental Disclosure,
<PAGE> 19
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there have been no releases by the Company of any Hazardous
Substance on the Leased Premises, except in compliance in all
material respects with Environmental Laws.
(e) To the Vendor's knowledge, except as disclosed in the
Environmental Disclosure, there have been no releases of
Hazardous Substances on any property adjoining the Leased
Premises, except in compliance in all material respects with
Environmental Laws.
(f) To the Vendor's knowledge, except as disclosed in the
Environmental Disclosure, there are no Hazardous Substances in
any amount on the Leased Premises which are present in
concentrations requiring remediation pursuant to Environmental
Laws, including any Guideline of the Canadian Council or
Ministry of the Environment Guidelines for Use at Contaminated
Sites in Ontario, except in compliance in all material respects
with Environmental Laws.
(g) To the Vendor's knowledge, except as disclosed in the
Environmental Disclosure, none of the Vendor or its directors or
officers has received any notice of any violations of
Environmental Laws and there have been no actions commenced or
threatened by any party alleging non-compliance with
Environmental Laws and there are no reasonable grounds which
would give rise to any claim alleging non-compliance with
Environmental Laws.
(h) To the Vendor's knowledge, except as disclosed in the
Environmental Disclosure, none of the Vendor or its directors or
officers has received any notice that any of them may be
responsible for any containment, clean-up, remediation or
corrective action or any work, repairs, construction, or capital
expenditures required to be made pursuant to Environmental Laws,
including, without limitation, any notice or other communication
that they may be a potentially responsible person, a person
responsible, or otherwise liable in connection with any
Hazardous Substance.
(i) To the Vendor's knowledge, except as disclosed in the
Environmental Disclosure, there are no above-ground or
underground storage tanks on the Leased Premises except in
compliance in all material respects with Environmental Laws.
(j) To the Vendor's knowledge, except as disclosed in the
Environmental Disclosure,
<PAGE> 20
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there are no polychlorinated biphenyls (PCBs or PCB waste) on or
in any part of the Leased Premises except as may be contained in
light ballasts and except in compliance in all material respects
with Environmental Laws.
(k) To the Vendor's knowledge, except as disclosed in the
Environmental Disclosure, there are no asbestos containing
materials on or in the Leased Premises that are in a condition
or state requiring removal, or abatement or management under, or
that are otherwise in material violation of applicable
Environmental Laws.
(l) To the Vendor's knowledge, except as disclosed in the
Environmental Disclosure, the Vendor has not used any waste
disposal site or waste management system or otherwise disposed
of or transported or arranged for the transportation of any
Hazardous Substances at or to any place or location outside of
Canada, except in compliance in all material respects with
Environmental Laws.
4.17 EMPLOYMENT AND LABOUR MATTERS - The Vendor has made available all records
concerning Employees and copies of all employment plans and notices, employment
agreements and collective agreements. There are no written contracts of
employment entered into with any Employees or any oral contracts of employment
which are not terminable on the giving of reasonable notice in accordance with
applicable law. To the knowledge of the Vendor, the Company has been and is
being operated in full material compliance with all Laws relating to the
Employees; except where any failure to comply would not result in a Material
Adverse Effect.
4.18 PENSION AND OTHER BENEFIT PLANS - The Vendor has no pension plan for the
benefit of the Employees. The Vendor has made available to the Purchaser copies
or summaries of all Benefit Plans.
4.19 CONTRACTS - To the knowledge of the Vendor, the Contracts are all in good
standing and no default exists under such contracts on the part of any of the
parties to such Contracts except for a default or defaults which individually or
in the aggregate would not have a material adverse effect on the Business;
except where such default would not have a Material Adverse Effect.
4.20 LITIGATION - Except as disclosed in Schedule 4.11 or 4.20, there is no
suit, action, litigation, investigation, claim, complaint, grievance,
prosecution or proceeding, including appeals and applications for review, in
progress, or, to the Vendor's knowledge, pending or threatened against or
relating to the Company before any court, Governmental Authority, commission,
board, bureau, agency or arbitration panel which, if determined adversely to the
<PAGE> 21
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Company, would, (a) have a Material Adverse Affect on the properties, business,
future prospects or financial condition of the Company, (b) enjoin, restrict or
prohibit the transfer of all or any part of the Purchased Shares as contemplated
by this Agreement, or (c) prevent the Vendor from fulfilling all of its
obligations set out in this Agreement or arising from this Agreement, and the
Vendor has no knowledge of any existing ground on which any such action, suit,
litigation or proceeding might be commenced with any reasonable likelihood of
success.
4.21 TAX MATTERS -
(a) The Company has duly and timely filed its Tax Returns with the
appropriate Governmental Authority and has duly, completely and
correctly reported all income and all other amounts and
information required to be reported thereon.
(b) The Company has duly and timely paid all Taxes, including all
instalments on account of Taxes for the current year, that are
due and payable by it and the Company has established reserves
that are reflected in the Pro Forma Balance Sheet (and that will
be reflected on the Effective Date Balance Sheet) that are
adequate for the payment by the Company of all Taxes that are
not yet due and payable (and that will not be due and payable by
the Closing Date) and that relate to periods ending on or prior
to the Closing Date. The reserves include amounts for any and
all taxes payable as a consequence of implementing the
Reorganization.
(c) The Company has not requested, or entered into any agreement or
other arrangement or executed any waiver providing for, any
extension of time within which (i) to file any Tax Return
covering any Taxes for which the Company is or may be liable;
(ii) to file any elections, designations or similar things
relating to Taxes for which the Company is or may be liable;
(iii) the Company is required to pay or remit any Taxes or
amounts on account of Taxes; or (iv) any Governmental Authority
may assess or collect Taxes for which the Company is or may be
liable.
(d) The Canadian federal and provincial income and capital tax
liabilities of the Company have been assessed by the relevant
taxing authorities and notices of assessment have been issued to
the Company by the relevant taxing authorities for all taxation
years prior to and including the taxation year ended 31 January
1997.
(e) There are no actions, suits, proceedings, investigations, audits
or claims now
<PAGE> 22
-22-
pending or, to the knowledge of the Vendor, threatened, against
the Company in respect of any Taxes and there are no matters
under discussion, audit or appeal with any Governmental
Authority relating to Taxes, except for an Ontario Ministry of
Finance routine audit currently under way with respect to the
taxation years ended 31 January 1996 and 31 January 1997.
(f) The Company has duly and timely withheld from any amount paid or
credited by it to or for the account or benefit of any Person,
including, without limitation, any of its employees, officers
and directors and any non-resident Person, the amount of all
Taxes and other deductions required by any applicable law, rule
or regulation to be withheld from any such amount and has duly
and timely remitted the same to the appropriate Governmental
Authority.
4.22 RESIDENCE OF THE VENDOR - The Vendor is not a non-resident of Canada for
the purposes of the Income Tax Act (Canada).
4.23 RECORDS- All Books and Records of the Company have been made available to
the Purchaser, including those relating to the Reorganization. To the knowledge
of the Vendor, the Books and Records contain complete and accurate records of
all financial transactions concerning the Company. The minute books include
complete and accurate minutes of all meetings of the directors or shareholders
of the Company, as applicable, held to date or resolutions passed by the
directors or shareholders on consent, since the date of its incorporation. The
share certificate book, register of shareholders, register of transfers and
register of directors of the Company are complete and accurate.
4.24 NO BROKER - The Vendor has carried on all negotiations relating to this
Agreement and the transactions contemplated in this Agreement directly and
without intervention on its behalf of any other party in such manner as to give
rise to any valid claim for a brokerage commission, finder's fee or other like
payment.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Vendor the matters set out
below.
5.1 INCORPORATION - The Purchaser is a corporation duly incorporated and validly
existing under the laws of Ontario.
<PAGE> 23
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5.2 DUE AUTHORIZATION - The Purchaser has all necessary corporate power,
authority and capacity to enter into this Agreement and to carry out its
obligations under this Agreement. The execution and delivery of this Agreement
and the consummation of the transaction contemplated under this Agreement have
been duly authorized by all necessary corporate action of the Purchaser.
5.3 ENFORCEABILITY OF OBLIGATIONS - This Agreement constitutes a valid and
binding obligation of the Purchaser enforceable against it in accordance with
the terms of this Agreement, subject, however, to limitations with respect to
enforcement imposed by law in connection with bankruptcy or similar proceedings
and to the extent that equitable remedies such as specific performance and
injunction are in the discretion of the court from which they are sought.
5.4 ABSENCE OF CONFLICTING AGREEMENTS - The Purchaser is not a party to, bound
or affected by or subject to any indenture, mortgage, lease, agreement,
obligation, instrument, charter or by-law provision, statute, regulation, order,
judgment, decree, license, permit or law which would be violated, contravened or
breached by, or under which any default would occur or a lien, claim,
restriction or encumbrance would be created as a result of the execution and
delivery by it of this Agreement or the performance by it of any of the terms of
this Agreement.
5.5 INVESTMENT CANADA - The Purchaser is WTO Investor within the meaning of the
Investment Canada Act (Canada).
5.6 LITIGATION - There is no suit, action, litigation, investigation, claim,
complaint or proceeding before any Governmental Authority in progress or, to the
knowledge of the Purchaser, pending or threatened against or relating to the
Purchaser, which, if determined adversely to the Purchaser, would, prevent the
Purchaser from paying to the Vendor, the Purchase Price; enjoin, restrict or
prohibit the transfer of all or any part of the Purchased Shares as contemplated
by this Agreement; or prevent the Purchaser from fulfilling all of its
obligations set out in this Agreement or arising from this Agreement, and the
Purchaser has no knowledge of any existing ground on which any such action,
suit, litigation or proceeding might be commenced with any reasonable likelihood
of success.
5.7 FINANCING - Subject to completion of due diligence, the Purchaser has made
adequate arrangements for financing to complete the purchase of the Purchased
Shares on the Closing Date in accordance with this Agreement.
<PAGE> 24
-24-
5.8 NO BROKER - Except for the services of the financial advisors to the
Purchaser, Newpoint Capital Partners Inc., the Purchaser has carried on all
negotiations relating to this Agreement and the transactions contemplated in
this Agreement directly and without the intervention on its behalf of any other
party in such manner as to give rise to any valid claim for a brokerage
commission, finder's fee or other like payment.
ARTICLE 6
SURVIVAL
6.1 NATURE AND SURVIVAL -
(a) Subject to subsection (b), all representations, warranties and
covenants contained in this Agreement on the part of each of the
Parties shall survive the Closing, the execution and delivery
under this Agreement of any share or security transfer
instruments or other documents of title to any of the Purchased
Shares and the payment of the consideration for the Purchased
Shares.
(b) Representations and warranties, concerning tax matters set out
in Section 4.21 shall survive for a period of 90 days after the
relevant authorities shall no longer be entitled to assess
liability for tax against the Company for any particular
taxation year ended on or prior to the Closing Date, having
regard without limitation, to any waivers given by the Company
in respect of any taxation year. All other representations and
warranties shall only survive for a period of 18 months from the
Closing Date. If no claim shall have been made under this
Agreement against a Party for any incorrectness in or breach of
any representation or warranty made in this Agreement prior to
the expiry of these survival periods, such Party shall have no
further liability under this Agreement with respect to such
representation or warranty.
(c) Notwithstanding the limitations set out in subsection (b) any
Claim which is based on title to the Purchased Shares,
intentional misrepresentation or fraud may be brought at any
time.
ARTICLE 7
PURCHASER'S CONDITIONS PRECEDENT
<PAGE> 25
-25-
The obligation of the Purchaser to complete the purchase of the Purchased Shares
under this Agreement shall be subject to the satisfaction of, or compliance
with, at or before the Closing Time, each of the following conditions precedent
(each of which is acknowledged to be inserted for the exclusive benefit of the
Purchaser and may be waived by it in whole or in part).
7.1 TRUTH AND ACCURACY OF REPRESENTATIONS OF VENDOR AT THE CLOSING TIME - All of
the representations and warranties of the Vendor made in or pursuant to this
Agreement shall be true and correct in all material respects as at the Closing
Time and with the same effect as if made at and as of the Closing Time (except
as such representations and warranties may be affected by the occurrence of
events or transactions expressly contemplated and permitted by this Agreement)
and the Purchaser shall have received a certificate from a senior executive of
the Vendor, confirming, to the best of his knowledge, information and belief
(after due inquiry), the truth and correctness of the representations and
warranties of the Vendor.
7.2 PERFORMANCE OF OBLIGATIONS - The Vendor shall have performed or complied
with, in all material respects, all its obligations, covenants and agreements
under this Agreement.
7.3 RECEIPT OF CLOSING DOCUMENTATION - All documentation relating to the due
authorization and completion of the sale and purchase of the Purchased Shares
under this Agreement and all actions and proceedings taken on or prior to the
Closing in connection with the performance by the Vendor of its obligations
under this Agreement, shall be satisfactory to the Purchaser, acting reasonably,
and the Purchaser shall have received copies of all such documentation or other
evidence as it may reasonably request in order to establish the consummation of
the transactions contemplated hereby and the taking of all corporate proceedings
in connection therewith in compliance with these conditions, in form (as to
certification and otherwise) and substance reasonably satisfactory to the
Purchaser.
7.4 OPINION OF SOLICITORS FOR THE COMPANY - The Vendor shall have delivered to
the Purchaser a letter of opinion dated the Closing Date, in form and substance
reasonably satisfactory to the Purchaser, from the solicitors for the Company
and the Vendor as to certain matters set out in Sections 4.1, 4.2, 4.3, 4.4, 4.6
and 4.7 provided that, insofar as the opinions expressed therein are based on
matters of fact, such opinions may be based upon certificates of an officer of
the Vendor, public officials and an officer of the Company and such other
evidence as counsel may reasonably deem appropriate.
7.5 COMPETITION ACT APPROVAL - Competition Act Approval shall have been
obtained.
<PAGE> 26
-26-
7.6 NO PROCEEDINGS - There shall be no injunction or restraining order issued
preventing, and no pending or threatened claim, action, litigation or judicial
or administrative proceeding, or investigation against any Party by any
Governmental Authority, for the purpose of enjoining or preventing the
consummation of the transactions contemplated in this Agreement or otherwise
claiming that this Agreement or the consummation thereof is improper or would
give rise to proceedings under any statute or rule of law.
7.7 STRATEGIC ALLIANCE AGREEMENT - Decoma Exterior Trim Inc. and the Company
shall have executed and delivered a Strategic Alliance Agreement on the terms
set out on Schedule 7.7.
7.8 SUBSTANTIAL DAMAGE - No substantial damage by fire or other hazard to the
assets of the Company shall have occurred prior to the Closing Time. However, if
such damage does occur and is in an amount of less than $5,000,000 and is fully
covered by insurance, the amount payable under such insurance shall be applied
to repair the damage or retained by the Company and the Parties shall complete
the transaction provided for in this Agreement.
7.9 DIRECTORS AND OFFICERS OF THE COMPANY AND SUBSIDIARIES - The Board of
Directors of the Company at the Closing Time shall consist of individuals
nominated by the Purchaser and there shall have been delivered to the Purchaser
on or before the Closing Time the resignations of all individuals who are
presently directors or officers of the Company (except to the extent that the
Vendor shall have been notified to the contrary by the Purchaser) and duly
executed comprehensive releases from each such individual and from the Vendor of
all their claims respectively, against the Company except for any claims for
current unpaid remuneration.
7.10 SOFTWARE LICENCE - The Company shall have entered into a software licence
agreement with respect to the CMS software upon terms and conditions not
materially different from those under which such software is now licensed to the
Company.
7.11 CONSENTS -The Company shall have obtained any consents required by the Real
Property Leases to the sale of the Purchased Shares by the Vendor to the
Purchaser.
If any of the foregoing conditions in this Article has not been fulfilled by the
Closing Date, the Purchaser may terminate this Agreement by notice in writing to
the Vendor, in which event, except as provided in Section 3.2, the Purchaser is
released from all obligations under this Agreement, and unless the Purchaser can
show that the condition relied upon could reasonably have been performed by the
Vendor, the Vendor is also released from all obligations under this
<PAGE> 27
-27-
Agreement. However, the Purchaser may waive compliance with any condition in
whole or in part if it sees fit to do so, without prejudice to its rights of
termination in the event of non-fulfilment of any other condition, in whole or
in part, or to its rights to recover damages for the breach of any
representation, warranty, covenant or condition contained in this Agreement.
ARTICLE 8
VENDOR'S CONDITIONS PRECEDENT
The obligations of the Vendor to complete the sale of the Purchased Shares under
this Agreement shall be subject to the satisfaction of or compliance with, at or
before the Closing Time, each of the following conditions precedent (each of
which is acknowledged to be inserted for the exclusive benefit of the Vendor and
may be waived by it in whole or in part).
8.1 TRUTH AND ACCURACY OF REPRESENTATIONS OF THE PURCHASER AT CLOSING TIME - All
of the representations and warranties of the Purchaser made in or pursuant to
this Agreement shall be true and correct in all material respects as at the
Closing Time and with the same effect as if made at and as of the Closing Time
and the Vendor shall have received a certificate from a senior executive of the
Purchaser confirming to the best of his knowledge, the truth and correctness of
such representations and warranties.
8.2 PERFORMANCE OF OBLIGATIONS - The Purchaser shall have performed or complied
with, in all material respects, all its obligations, covenants and agreements
under this Agreement.
8.3 COMPETITION ACT APPROVAL - Competition Act Approval shall have been
received.
8.4 NON-COMPETITION - The Purchaser and the Company shall have executed and
delivered to the Vendor a non-competition agreement on the terms set out on
Schedule 8.4.
8.5 NO PROCEEDINGS - There shall be no injunction or restraining order issued
preventing, and no pending or threatened claim, action, litigation or judicial
or administrative proceeding, or investigation against any Party by any
Governmental Authority, for the purpose of enjoining or preventing the
consummation of the transactions contemplated in this Agreement or otherwise
claiming that this Agreement or the consummation thereof is improper or would
give rise to proceedings under any statute or rule of law.
8.6 OPINION OF SOLICITORS FOR THE PURCHASER - The Purchaser shall have delivered
to the
<PAGE> 28
-28-
Vendor a letter of opinion dated the Closing Date, in form and substance
reasonably satisfactory to the Vendor from the solicitors for the Purchaser as
to certain matters set out in Sections 5.1, 5.2 and 5.3 provided that, insofar
as the opinions expressed therein are based on matters of fact, such opinions
may be based upon certificates of an officer of the Purchaser and public
officials and such other evidence as counsel may reasonably deem appropriate.
8.7 STRATEGIC ALLIANCE AGREEMENT - Decoma Exterior Trim Inc. and the Company
shall have executed and delivered a Strategic Alliance Agreement on the terms
set out on Schedule 7.7.
8.8 SOFTWARE LICENCE - The Company shall have entered into a software licence
agreement with respect to the CMS software upon terms and conditions not
materially different from those under which such software is now licensed to the
Company.
If any of the foregoing conditions in this Article has not been fulfilled by the
Closing Date, the Vendor may terminate this Agreement by notice in writing to
the Purchaser, in which event, except as provided in Section 3.2, the Vendor is
released from all obligations under this Agreement, and unless the Vendor can
show that the condition relied upon could reasonably have been performed by the
Purchaser, the Purchaser is also released from all obligations under this
Agreement. However, the Vendor may waive compliance with any condition in whole
or in part if it sees fit to do so, without prejudice to its rights of
termination in the event of non-fulfilment of any other condition in whole or in
part or to its rights to recover damages for the breach of any representation,
warranty, covenant or condition contained in this Agreement.
ARTICLE 9
OTHER COVENANTS OF THE PARTIES
9.1 CONDUCT OF BUSINESS PRIOR TO CLOSING - During the period from the date of
this Agreement to the Closing Time, the Vendor will cause the Company to do the
following:
(a) CONDUCT BUSINESS IN THE ORDINARY COURSE - Except as otherwise
contemplated or permitted by this Agreement, conduct its
business in the ordinary and normal course, consistent with past
practice and regular customer service and business policies and
not, without the prior written consent of the Purchaser, enter
into any transaction which, if effected before the date of this
Agreement, would constitute a breach of the representations,
warranties or agreements of the Vendor contained in this
Agreement.
<PAGE> 29
-29-
(b) CONTINUE INSURANCE - Continue in force all policies of insurance
maintained by the Company and give all notices and present
claims under all insurance policies in a timely fashion.
(c) PERFORM OBLIGATIONS - Comply in all material respects with all
Laws affecting the operation of the Company and perform all
material obligations under the Contracts.
(d) APPROVALS - Co-operate with the Purchaser and use all reasonable
efforts and diligently pursue obtaining Competition Act
Approval.
9.2 ACCESS FOR INVESTIGATION - The Vendor shall permit the Purchaser and its
representatives, between the date of this Agreement and the Closing Time,
without interference to the ordinary conduct of its business, to have free and
unrestricted access during normal business hours to the premises and to all the
Books and Records, including information with respect to the Reorganization, and
to the properties and assets of the Company and to furnish to the Purchaser such
financial and operating data and other information as the Purchaser shall from
time to time reasonably request to enable confirmation of the matters warranted
in Article 4. Without limiting the generality of the foregoing, it is agreed
that the accounting representatives of the Purchaser shall be afforded ample
opportunity to make a full investigation of all aspects of the financial affairs
of the Company.
9.3 ACTIONS TO SATISFY CLOSING CONDITIONS - Each of the Parties agrees to take
all such actions as are within its power to control, and to use its best efforts
to cause other actions to be taken which are not within its power to control, so
as to ensure compliance with each of the conditions and covenants set forth in
Articles 7, 8 or 9 which are for the benefit of any other Party.
9.4 PRESERVATION OF RECORDS - The Purchaser shall take all reasonable steps to
preserve and keep the records of the Company delivered to it in connection with
the completion of the transactions contemplated by this Agreement for a period
of 6 years from the Closing Date, or for any longer period as may be required by
any Law or Governmental Authority, and shall make such records available to the
Vendor as may be reasonably required by it in connection with a Claim by the
Purchaser against the Vendor under this Agreement. The Vendor acknowledges that
the Purchaser shall not be liable to the Vendor in the event of any accidental
destruction of such records, caused otherwise than by the negligence of the
Purchaser.
<PAGE> 30
-30-
9.5 STUB PERIOD RETURNS - The Vendor shall cause to be prepared and filed on a
timely basis, all Tax Returns for the Company for any period which ends on or
before the Closing Date and for which Tax Returns have not been filed as of such
date. The Purchaser shall cause to be prepared and filed on a timely basis, all
Tax Returns for the Company for periods beginning and ending after the Closing
Date. The Vendor and the Purchaser shall cooperate fully with each other and
make available to each other in a timely fashion such data and other information
as may reasonably be required for the preparation of any Tax Return, including
information with respect to the Reorganization, of the Company for a period
ending on, prior to or including the Closing Date and shall preserve such data
and other information until the expiration of any applicable limitation period
under any applicable law with respect to Taxes.
9.6 NAME - Within 90 days of Closing, the Purchaser shall take steps to change
the name of the Company to a name which does not include the name "TRIAM," shall
discontinue all use of the name "TRIAM" as and from the Closing Date and shall,
as soon as practical after Closing, but in any event not less than 90 days after
Closing, change all signage bearing the name "TRIAM." The Purchaser acknowledges
that it has no right, title or interest in or to the trade name, trademark or
corporate name or style "TRIAM", except as provided for in this Agreement or as
the Vendor may otherwise agree.
9.7 GUARANTEES - The Purchaser shall assume from the Vendor the obligations
under all guarantees and indemnities by the Vendor of the Real Property Leases
or other Contracts of the Company relating to the Business to the extent the
same can be assigned. A list of the material guarantees and indemnities of the
Vendor is set out on Schedule 9.7 to this Agreement. Whether or not such
guarantees, indemnities and obligations are assignable, the Purchaser shall
indemnify and save harmless the Vendor from and against any and all liabilities
in connection with the operations of the Business both before and after Closing
and, in particular, under any guarantee, indemnity or other hold harmless
agreement by which the Vendor is bound or under which the Vendor may be liable
in connection with the operations of the Business both before and after Closing.
The obligation of the Purchaser to indemnify and hold the Vendor harmless under
this Section 9.7 shall not extend to any liabilities whose existence constitutes
a breach of a representation or warranty made by the Vendor to the Purchaser.
9.8 EMPLOYEE BENEFITS, INSURANCE AND LETTERS OF CREDIT - On or prior to Closing,
the Company and the Purchaser shall have made arrangements satisfactory to the
Purchaser and the Vendor for (a) the provision of a benefit to Employees
reasonably comparable in value to the deferred profit sharing plan of the Vendor
which was provided by the Company prior to the
<PAGE> 31
-31-
acquisition of the Vendor by Magna International Inc., (b) the provision of
benefits to the Employees which will replace the Vendor's group wide Benefit
Plans and which will, in the aggregate, be equal in all material respects to
those Benefit Plans currently provided by the Company, (c) insurance for the
Company and the Business, (d) any other service or supply arrangements presently
shared by the Company and the Vendor or its Affiliates and (e) the replacement
of any outstanding letters of credit with respect to the Company.
9.9 LITIGATION ASSISTANCE - Upon receipt of a written request from the Vendor,
the Purchaser shall make available, upon reasonable notice and upon commercially
reasonable terms, (a) the services of Marvin Dendekker or any other employee of
the Purchaser and (b) copies of all documents of the Company reasonably required
by the Vendor in connection with any litigation or proceeding to which the
Vendor is a party and which relates to the conduct of the Business prior to
Closing.
9.10 U.S. EMPLOYEES - On or prior to Closing, the Purchaser or an Affiliate of
the Purchaser shall offer employment to Richard Singh, Christopher Jacobs and
Cheryl Miller.
ARTICLE 10
INDEMNIFICATION
10.1 MUTUAL INDEMNIFICATIONS FOR BREACHES OF COVENANTS AND WARRANTY, ETC. - The
Vendor covenants and agrees with the Purchaser, and the Purchaser covenants and
agrees with the Vendor (the Party or Parties so covenanting and agreeing to
indemnify another Party being referred to in this Section as the "Indemnifying
Party" and the Party so to be indemnified being called the "Indemnified Party")
to indemnify and save harmless the Indemnified Party, effective as and from the
Closing Time, from and against all Claims which may be made or brought against
the Indemnified Party or which it may suffer or incur, directly or indirectly,
as a result of or in connection with any non-fulfilment of any covenant or
agreement on the part of the Indemnifying Party under this Agreement or any
incorrectness in or breach of any representation or warranty of the Indemnifying
Party contained in this Agreement or in any certificate or other document
furnished by the Indemnifying Party pursuant to this Agreement. The foregoing
obligation of indemnification in respect of such Claims shall be subject to:
(a) the limitation mentioned in Section 6.1 respecting the survival
of the representations and warranties of the Parties;
(b) the requirement that the Indemnifying Party shall, in respect of
any Claim made
<PAGE> 32
-32-
by any third person, be afforded an opportunity at its sole
expense to resist, defend and compromise such Claim;
(c) the limitation that, for Claims made in connection with any
representation or warranty, the Indemnifying Party shall not be
required to pay any such amount until the aggregate of such
Claims exceeds $500,000 and upon the aggregate of such Claims
exceeding $500,000 the Indemnifying Party shall be required to
pay the amount owing in respect of all of such Claims exceeding
$500,000;
(d) the limitation that the Indemnified Party shall be required to
exhaust all recourse any insurance for the benefit of the
Company or the Purchaser prior to making a claim for
indemnification; and
(e) the Purchaser shall have no right to indemnification in respect
of a breach of any representation or warranty of the Vendor
where the Purchaser had actual knowledge of such breach prior to
the Closing including as a result of a disclosure of facts or
information constituting such breach having been made to the
Purchaser in writing or in documents made available to the
Purchaser or its advisors prior to the Closing Time.
10.2 VENDOR INDEMNITY FOR NON-BUSINESS RELATED OBLIGATIONS - The Vendor shall
indemnify and save harmless the Purchaser and/or the Company, without
duplication, from and against any Claim arising in connection with the matters
set out in Schedules 4.11 and 2.1 in accordance with Section 10.4, except that
the Purchaser shall not have the rights described in Section 10.4(d).
10.3 PURCHASER INDEMNITY FOR GUARANTEES - The Purchaser shall indemnify and save
harmless the Vendor from and against any Claim arising in respect of the
guarantees discussed in Section 9.7 in accordance with Section 10.4.
10.4 INDEMNIFICATION PROCEDURES FOR THIRD PARTY CLAIMS -
(a) In the case of Claims made by a third Party with respect to
which indemnification is sought, the Party seeking
indemnification shall give prompt written notice, and in any
event within 20 days, to the other Party of any such Claims made
upon it, provided that in the event of a failure to give such
notice, such failure shall not preclude the Party seeking
indemnification to obtain such indemnification but its
<PAGE> 33
-33-
right to indemnification may be reduced to the extent that such
delay prejudiced the defense of the Claim or increased the
amount of liability or cost of defense and provided that,
notwithstanding anything else herein contained, no claim for
indemnification in respect of the breach of any representation
or warranty contained herein may be made unless notice of such
claim has been given prior to the expiry of the survival period
applicable to such representation and warranty pursuant to
Section 6.1.
(b) The Indemnifying Party shall have the right, by notice to the
Indemnified Party given not later than 30 days after receipt of
the notice described in subsection (a) to assume the control of
the defense, compromise or settlement of the Claim, provided
that such assumption shall, by its terms, be without cost to the
Indemnified Party and provided the Indemnifying Party
acknowledges in writing its obligation to indemnify the
Indemnified Party in accordance with the terms contained in this
Section in respect of that Claim.
(c) Upon the assumption of control of any Claim by the Indemnifying
Party as set out in subsection (b), the Indemnifying Party shall
diligently proceed with the defence, compromise or settlement of
the Claim at its sole expense, including, if necessary,
employment of counsel reasonably satisfactory to the Indemnified
Party and, in connection therewith, the Indemnified Party shall
cooperate fully, but at the expense of the Indemnifying Party
with respect to any out-of-pocket expenses incurred, to make
available to the Indemnifying Party all pertinent information
and witnesses under the Indemnified Party's control, make such
assignments and take such other steps as in the opinion of
counsel for the Indemnifying Party are reasonably necessary to
enable the Indemnifying Party to conduct such defence.
(d) The Indemnified Party shall also have the right to participate
in the negotiation, settlement or defence of any claim or demand
at its own expense.
(e) The final determination of any Claim pursuant to this Section,
including all related costs and expenses, will be binding and
conclusive upon the Parties as to the validity or invalidity, as
the case may be, of such Claim against the Indemnifying Party.
(f) Should the Indemnifying Party fail to give notice to the
Indemnified Party as
<PAGE> 34
-34-
provided in subsection (b), the Indemnified Party shall be
entitled to make such settlement of the Claim as in its sole
discretion may appear advisable, and such settlement or any
other final determination of the Claim shall be binding upon the
Indemnifying Party.
ARTICLE 11
GENERAL
11.1 PUBLIC NOTICES - All public notices to third parties and all other
publicity concerning the transactions contemplated by this Agreement shall be
jointly planned and coordinated by the Vendor and the Purchaser and no Party
shall act unilaterally in this regard without the prior approval of the other
Party, such approval not to be unreasonably withheld, except:
(a) in the case of the Vendor for communications made in confidence
to the employees of the Company affected by such transactions;
or
(b) where required to do so by law or by the applicable regulations
or policies of any provincial or Canadian or other regulatory
agency of competent jurisdiction or any stock exchange in
circumstances where prior consultation with the other Party is
not practicable.
11.2 EXPENSES - Each of the Parties shall pay their respective legal,
accounting, and other professional advisory fees, costs and expenses incurred in
connection with the purchase and sale of the Purchased Shares and the
preparation, execution and delivery of this Agreement and all documents and
instruments executed pursuant to this Agreement and any other costs and expenses
incurred.
11.3 NOTICES - Any notice or other writing required or permitted to be given
under this Agreement or for the purposes of this Agreement (in this Section
referred to as a "Notice") shall be in writing and shall be sufficiently given
if delivered or if transmitted by facsimile or other form of recorded
communication tested prior to transmission to such Party:
(a) in the case of a Notice to the Vendor at:
Magna International Inc.
337 Magna Drive
<PAGE> 35
-35-
Aurora, Ontario
L4G 7K1
Attention: J. Brian Colburn
Executive Vice-President, Special
Projects and Secretary
Fax: (905) 726-7164
with a copy to:
Osler, Hoskin & Harcourt
P.O. Box 50
1 First Canadian Place
Suite 6100
Toronto, Ontario
M5X 1B8
Attention: Linda D. Robinson
Fax: (416) 862-6666
(b) in the case of a Notice to the Purchaser at:
Centrifugal Coaters Inc.
2125 Wycroft Road
Oakville, Ontario
L6L 5L7
Attention: Fraser Wray
Fax: (905) 827-1512
with a copy to:
Gowling, Strathy & Henderson
4900 Commerce Court West
Toronto, Ontario M5L 1J3
<PAGE> 36
-36-
Attention: R. Douglas S. Hunter
Fax: (416) 862-7661
or at such other address as the Party to whom such Notice is to be given shall
have last notified the Party giving the same in the manner provided in this
Section. Any Notice delivered to the Party to whom it is addressed as provided
above shall be deemed to have been given and received on the day it is so
delivered at such address, provided that if such day is not a Business Day then
the Notice shall be deemed to have been given and received on the next Business
Day. Any Notice transmitted by facsimile or other form of recorded communication
shall be deemed given and received on the first Business Day after its
transmission.
11.4 ASSIGNMENT - This Agreement and the benefits and burdens under this
Agreement may be assigned by the Purchaser to an Affiliate. This Agreement and
the benefits and burdens under this Agreement may be assigned by the Vendor to
Magna International Inc. or to an Affiliate of Magna International Inc.
(collectively, "Magna") following the amalgamation or wind-up of the Vendor into
Magna. Subject to the foregoing, this Agreement shall enure to the benefit of
and be binding upon the Parties and their respective successors (including any
successor by reason of amalgamation of any Party) and permitted assigns.
11.5 FURTHER ASSURANCES - The Parties shall, with reasonable diligence, do all
such things and provide all such reasonable assurances as may be required to
consummate the transactions contemplated by this Agreement, and each Party shall
provide such further documents or instruments required by the other Party as may
be reasonably necessary or desirable to effect the purpose of this Agreement and
carry out its provisions, whether before or after the Closing.
11.5B FACSIMILE - This Agreement may be executed and delivered by facsimile.
<PAGE> 37
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11.6 COUNTERPARTS - This Agreement may be executed by the Parties in separate
counterparts each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF the Parties have duly executed this Agreement.
TRIAM AUTOMOTIVE INC.
By:
TIERCON HOLDINGS INC.
By:
<PAGE> 1
EXHIBIT 2.2
THIS AGREEMENT AMENDING THE SHARE PURCHASE AGREEMENT is
made the 24th day of July, 1998
BETWEEN:
MAGNA INTERNATIONAL INC., a corporation governed by
the laws of Ontario, (the "Vendor"),
- and -
TIERCON HOLDINGS INC., a corporation governed by the laws of
Ontario, (the "Purchaser").
RECITALS:
A. TRIAM Automotive Inc. ("TAI"), as vendor, and the Purchaser entered into a
share purchase agreement dated July 2, 1998 (the "Share Purchase Agreement")
with respect the sale by TAI to the Purchaser of all of the issued and
outstanding shares (the "Purchased Shares") in the capital of TRIAM Automotive
Canada Inc., a corporation governed by the laws of Ontario (the "Company").
B. TAI has transferred the Purchased Shares to the Vendor, and TAI has assigned
all of its rights and obligations under the Share Purchase Agreement to the
Vendor.
C. The Vendor and the Purchaser wish to record by this amending agreement
certain amendments to the Share Purchase Agreement and certain agreements which
have been entered into with respect to the terms of the closing of the purchase
and sale contemplated by the Share Purchase Agreement.
NOW THEREFORE, in consideration of the closing of the purchase and sale
contemplated by the Share Purchase Agreement and for other valuable
consideration, the parties agree as follows:
1. SHARE PURCHASE AGREEMENT DEFINITIONS
Unless defined in this Amending Agreement, all words in this Amending Agreement
beginning with an initial capital shall have the meaning ascribed to them in the
Share Purchase Agreement.
2. AFFECT OF REDUCTION IN SHAREHOLDERS EQUITY
<PAGE> 2
a. The definition of "Shareholders Advances Purchase Price"
contained in Section 1.1 shall be amended by removing the words "
less the reduction in Shareholders Equity from $1,700,000, being
the amount of Shareholders Equity as at 30 April 1998 as
reflected on the Pro Forma Balance Sheet, to the amount of
Shareholders Equity on the Effective Date".
b. Section 3.1 shall be amended to read:
'The amount payable by the Purchaser for the Purchased Shares
(the "Purchase Price"), exclusive of all applicable sales and
transfer taxes, shall be the amount of $27,000,000 less the sum
of $1,721,279 being a reasonable pre-estimate of the anticipated
losses that will be suffered by the Business as a result of the
current strikes affecting certain operations of General Motors.'
c. Section 3.7 (e) shall be amended by adding the words "or the
Purchase Price, as the case may be," after the words
"Shareholders Advances Price" in the second last line of Section
3.7(e).
3. AUDITED EFFECTIVE DATE BALANCE SHEET
If as a result of the audit of the Effective Date Balance Sheet the operating
loss of the Company from April 30, 1998 to the Effective Date is greater or less
than $553,119, then the Purchase Price for the Purchased Shares will be adjusted
by the amount of such difference (or the difference which may be determined
under Section 3.7 of the Share Purchase Agreement), and the Vendor or the
Purchaser, as the case may be, shall pay to the other by wire transfer of
immediately available funds, certified cheque or bank draft the amount by which
the Purchase Price is to be adjusted.
For greater certainty, the only objection which the Purchaser can make under
Section 3.7 to the Effective Date Balance Sheet is with respect to the amount of
the operating loss of the Company between April 30, 1998 and the Effective Date.
4. DEFERRED TAXES
The Purchaser shall have no claim against the Vendor under any provision of the
Share Purchase Agreement by reason of the fact that the deferred taxes of the
Company as at the
<PAGE> 3
Effective Date or the Closing Date are greater than the amount reflected on the
Pro Forma Balance Sheet.
IN WITNESS WHEREOF the Parties have duly executed this Agreement.
MAGNA INTERNATIONAL INC.
By:___________________________________
TIERCON HOLDINGS INC.
By:___________________________________
<PAGE> 1
EXHIBIT 2.3
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of July 24, 1998, among Noble International, Ltd., a corporation
incorporated under the laws of the State of Michigan ("Noble"), Noble Canada,
Inc., a corporation incorporated under the laws of the Province of Ontario,
Canada ("Acquisition"), Tiercon Holdings Inc., a corporation incorporated under
the laws of the Province of Ontario, Canada ("Tiercon"), and Wrayter Investments
Inc., a corporation incorporated under the laws of the Province of Ontario,
Canada and the sole shareholder of Tiercon ("Seller").
WHEREAS, Tiercon has entered into a certain Share Purchase Agreement
dated July 2, 1998 (the "Triam Agreement"), between Tiercon and TRIAM Automotive
Inc. ("Triam"), for the purchase by Tiercon of all of the outstanding shares of
TRIAM Automotive Canada, Inc. ("Triam Canada");
WHEREAS, Seller wishes to sell to Acquisition and Acquisition wishes to
purchase from Seller, all of the issued and outstanding capital stock of Tiercon
(collectively, the "Tiercon Shares");
WHEREAS, Acquisition is a Subsidiary (as defined below) of Noble Canada
Holdings, Limited ("Holdings"), a corporation incorporated under the laws of
Nova Scotia and a wholly owned subsidiary of Noble;
WHEREAS, the respective Boards of Directors of Noble, Acquisition and
Tiercon have approved the transactions contemplated by this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements set forth herein, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Certain terms are used in this Agreement as specifically defined herein.
1.1 Definitions of Certain Terms. The following terms shall have the
meanings set forth below:
"Acquisition Transaction" has the meaning ascribed thereto in
section 5.1 hereof.
"Charter Documents" has the meaning ascribed thereto in
section 3.1 hereof.
"Closing" has the meaning ascribed thereto in section 2.7
hereof.
JRHW Draft Dated 8/7/98, Page 1
<PAGE> 2
"Closing Date" has the meaning ascribed thereto in section 2.7
hereof.
"Director" has the meaning ascribed thereto in section 6.2.8
hereof.
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<PAGE> 3
"Exchangeable Shares" has the meaning ascribed thereto in
section 2.3 hereof.
"Exchangeable Share Provisions" has the meaning ascribed
thereto in section 2.5 hereof.
"Holdings" has the meaning ascribed thereto in the Recitals to
this Agreement.
"Hunter Agreement" has the meaning ascribed thereto in section
2.6 hereof.
"Liens" has the meaning ascribed thereto in section 2.1
hereof.
"Losses" has the meaning ascribed thereto in section 7.1
hereof.
"Noble Material Adverse Effect" shall mean an effect that does
or would reasonably be expected to have a material adverse effect on
the financial condition or results of operations of Noble and its
Subsidiaries, taken as a whole.
"Registration Rights Agreement" has the meaning ascribed
thereto in section 2.5 hereof.
"Securities Act" has the meaning ascribed thereto in section
4.2 hereof.
"SEC Reports" has the meaning ascribed thereto in section 4.3
hereof.
"Share Exchange Agreement" has the meaning ascribed thereto in
section 2.3 hereof.
"Support Agreement" has the meaning ascribed thereto in
section 2.4 hereof.
"Subsidiary" shall mean, with respect to any corporation,
association or other business entity, any other corporation,
association, or other business entity a majority (by number of votes)
of the shares of capital stock (or other voting interests) of which is
owned directly or indirectly by such corporation. and shall include any
such other corporation, association or other business entity.
"Tax" means any federal, provincial, state or local tax or any
foreign tax (including, without limitation, any net income, gross
income, profits, premium, estimated, excise, sales, value added, goods
and services, use, occupancy, gross receipts, franchise, license, ad
valorem, severance, capital levy, capital tax, production, stamp,
transfer, withholding, employment, unemployment, payroll or property
tax, customs duty, or any other governmental charge or assessment),
together with any interest, addition to tax, or penalty.
Stock Purchase Agreement (Tiercon), Page 3
<PAGE> 4
"Tax Act" means the Income Tax Act (Canada), as amended.
"Tax Return" means any return, amended return, declaration,
report, estimate, information return, closing agreement, or statement
required or permitted to be filed under the laws of any jurisdiction in
respect of any Tax.
"Tiercon Material Adverse Effect" shall mean an effect that
does or would reasonably be expected to have a material adverse effect
on the financial condition or results of operations of Tiercon, taken
as a whole.
"Triam Documents" has the meaning ascribed thereto in section
3.8 hereof.
"Turner Agreement" has the meaning ascribed thereto in section
2.6 hereof.
"Wray Agreement" has the meaning ascribed thereto in section
2.6 hereof.
ARTICLE 2
SALE AND PURCHASE OF STOCK
2.1 Sale and Purchase of Tiercon Shares. Upon the terms and subject to
the conditions set forth in this Agreement, Seller shall sell, transfer, assign
and deliver to Acquisition, and Acquisition shall purchase from the Seller, all
of Seller's right, title and interest in and to the Tiercon Shares, together
with all rights associated with such Tiercon Shares, free and clear of all
liens, encumbrances, security interests, mortgages, pledges, charges,
agreements, rights, options, warrants, restrictions and claims of any kind
whatsoever, whether legal or equitable (collectively, "Liens").
2.2. Consideration. In consideration for the sale by Seller of the
Tiercon Shares, Acquisition shall issue to Seller 80,000 Exchangeable Shares (as
defined below).
2.3 Share Exchange Agreement. At the Closing (as defined below),
Seller, Noble, Acquisition and Noble Canada Holdings, Ltd. ("Holdings") shall
enter into a share exchange agreement substantially in the form attached as
Exhibit A (the "Share Exchange Agreement") and Acquisition shall create a class
of preferred shares of Acquisition designated as "Class T Exchangeable
Non-Voting Preferred Shares" (the "Exchangeable Shares") that will have the
rights, privileges and restrictions, and be subject to the conditions, set forth
in Schedule A of the Share Exchange Agreement (the "Exchangeable Share
Provisions").
2.4 Support Agreement. Prior to the Closing, Noble, Holdings and
Acquisition shall execute and deliver the Support Agreement (the "Support
Agreement") in substantially the form set forth as Exhibit B.
2.5 Registration Rights Agreement. At Closing, Seller and Noble shall
execute and
Stock Purchase Agreement (Tiercon), Page 4
<PAGE> 5
deliver the Registration Rights Agreement (the "Registration Rights Agreement")
in substantially the form set forth as Exhibit C.
2.6 Agreements with C.E.O., Chairman and C.O.O. At Closing, Acquisition
shall execute and enter into: (a) an Employment Agreement between Tiercon and
Fraser Wray, as President and Chief Executive Officer of Tiercon (the "Wray
Agreement") in substantially the form set forth as Exhibit D; (b) a Services
Agreement between Tiercon and Douglas Hunter, as Chairman of the Board of
Directors of Tiercon (the "Hunter Agreement") in substantially the form set
forth as Exhibit E; and (c) an Employment Agreement between Tiercon and Steve
Turner, as Vice-President and Chief Operating Officer of Tiercon (the "Turner
Agreement") in substantially the form set forth as Exhibit F.
2.7 Closing and Closing Date. The execution and delivery of the
documents required to effectuate the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of Gowling, Strathy & Henderson,
Toronto, Ontario on July 24, 1998 (the "Closing Date") or at such other place
and at such time as the parties hereto may agree.
2.8 Contemporaneous Transactions. The parties hereby agree that each of
the transactions contemplated by this Agreement that is in fact consummated
shall, to the extent permitted by applicable law and not otherwise provided for
herein, be deemed consummated substantially contemporaneously with any other
transaction that is in fact consummated pursuant to this Agreement.
2.9 Tax Filings. The Seller agrees that it will elect, and Noble agrees
that it will cause Acquisition to elect, jointly under subsection 85(1) of the
Tax Act, in the prescribed form and within the prescribed time for purposes of
the Tax Act, that Seller's proceeds of disposition of its Tiercon Shares and
Acquisition's cost of acquiring the Tiercon Shares shall be such amount as is
directed by Seller, within the various limitations provided in subsection 85(1)
of the Tax Act. The parties hereby agree to file such election as required by
the Tax Act and the regulations thereunder so that the election will have full
force and effect for purposes of the Tax Act.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
In order to induce Noble and Acquisition to enter into this Agreement,
Seller hereby represents and warrants as follows:
3.1 Due Organization, Authorization and Good Standing of Tiercon and
Seller. Each of Tiercon and Seller is a corporation duly organized, validly
existing and in good standing under the Ontario Business Corporations Act.
Tiercon and Seller each has the requisite corporate power and authority to
execute, deliver and perform its respective obligations under this Agreement to
consummate all transactions contemplated hereby. The execution, delivery and
performance by Tiercon and Seller of this Agreement, and the consummation by
Tiercon and
Stock Purchase Agreement (Tiercon), Page 5
<PAGE> 6
Seller of the transactions contemplated hereby, have been duly and validly
authorized and approved by all necessary corporate action in respect thereof on
the part of Tiercon or Seller, as the case may be. This Agreement constitutes
the valid and binding obligation of each of Tiercon and Seller, enforceable in
accordance with its terms. Each of Tiercon and Seller has full corporate power
and authority to carry on its business as now conducted and to own or lease and
to operate its properties and assets where such properties and assets are now
owned, leased or operated by it and where such business is now conducted by it.
Neither Tiercon nor Seller are required to be licensed, qualified or registered
to conduct business in any jurisdiction other than its jurisdiction of
incorporation, other than where such failures to be so licensed, qualified or
registered in the aggregate would not have a Tiercon Material Adverse Effect.
True, complete and correct copies of the charter, By-laws and other analogous
organizational documents (the "Charter Documents") of Tiercon and Seller as in
effect on the date hereof have heretofore been delivered to Noble or will be
delivered prior to Closing.
3.2 No Violation or Approval. Except as set forth in this Section 3.2
and in Exhibit G attached hereto, the execution, delivery and performance by
Tiercon and Seller of this Agreement and the consummation of the transactions
contemplated hereby will not result in a breach or violation of, or a default
under, or the acceleration of any payment obligation pursuant to, any law, rule
or regulation applicable to Tiercon or Seller, as the case may be, any material
agreement or instrument to which any of them is a party or by which any of them
or any of their properties are bound, or any order, judgment or decree of any
court or any governmental agency or body having jurisdiction over any of them or
their properties or in a breach or a default under any of their Charter
Documents. No consent, approval, order or authorization of, declaration or
filing with, any governmental authority or entity or other party is required to
be obtained or made by Tiercon in connection with the execution and delivery of
this Agreement or the consummation by Tiercon of the transactions contemplated
hereby other than (i) the expiration of the waiting period under Part IX of the
Competition Act (Canada) with respect to the acquisition of Triam Canada by
Tiercon; (ii) any applicable notification requirement under the Investment
Canada Act; and (iii) such failures to obtain or make such other consents,
approvals, orders, authorizations, declarations or filings that in the aggregate
would not have a Tiercon Material Adverse Effect.
3.3 Capital Stock. The authorized capital stock of Tiercon consists of
an unlimited number of common shares of which 1,000 shares have been issued and
are outstanding. Other than such 1,000 issued and outstanding shares, Tiercon
has not issued or obligated itself to issue, any shares of capital stock or any
outstanding options, warrants, rights, other agreements or commitments
obligating it to issue or sell shares of its capital stock or any securities or
obligations convertible into, or exchangeable for, any shares of its capital
stock. No preference shares of Tiercon are outstanding. All of the outstanding
Tiercon Shares have been validly issued, fully paid and nonassessable and free
of preemptive rights. None of the outstanding Tiercon Shares has been issued in
violation of the preemptive rights of any security holder of Tiercon. No holder
of outstanding Tiercon Shares is subject to personal liability solely by reason
of being such a holder. Tiercon has no outstanding bonds, debentures, notes or
other indebtedness the holders of which have the right to vote (or that are
convertible or exercisable
Stock Purchase Agreement (Tiercon), Page 6
<PAGE> 7
into securities having the right to vote) with holders of Tiercon Shares on any
matter.
3.4 Subsidiaries. Tiercon does not own, directly or indirectly, any
capital stock, any partnership or equity or other ownership interest in, or any
security issued by, any other corporation, organization, association, entity or
business enterprise. There are no Subsidiaries of Tiercon.
3.5 Title to Tiercon Shares. Seller is the legal and equitable owner of
all issued and outstanding Tiercon Shares, free and clear of all Liens. There
are no other shareholders of Tiercon. Upon consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof, Acquisition
will acquire valid and marketable title to the Tiercon Shares, free and clear of
all Liens.
3.6 Authority of Seller. Seller has, and at the Closing Date will have,
all requisite power and authority (i) to enter into this Agreement and all other
instruments and agreements contemplated hereby, and (ii) to carry out and
perform their obligations hereunder and pursuant to all instruments and
agreements contemplated hereby. Seller has, and at the Closing Date will have,
all requisite power and authority to sell and transfer the Tiercon Shares to
Acquisition as provided herein. This Agreement is, and all agreements and
instruments contemplated hereby, when executed and delivered in accordance with
the terms hereof will be, valid and binding obligations of Seller, enforceable
in accordance with their respective terms.
3.7 Accuracy of Representations in Triam Agreement. To the best
knowledge of Seller and its officers, directors and shareholders, each and every
representation and warranty made by Triam in Article 4 of the Triam Agreement
and each and every representation and warranty made by Tiercon in Article 5 of
the Triam Agreement (each of which is incorporated herein by reference) is, was
and will be accurate, true and correct (with the exception of those items
expressly set forth in writing from Tiercon to Noble prior to Closing) as of the
date of this Agreement, the date of execution of the Triam Agreement, the
closing of the transactions contemplated by the Triam Agreement, and the date
upon which Closing of the transactions contemplated in this Agreement takes
place.
3.8 Triam Agreement and Related Documents. The Triam Agreement and all
documents and instruments contemplated thereby (including but not limited to all
indemnity agreements among any of Triam, Magna Automotive, Tiercon and Sellers)
(collectively, the "Triam Documents") will remain in full force and effect and
will not be void, voidable, discharged or otherwise affected by the change in
ownership of Tiercon or the sale of shares from Seller to Acquisition as
contemplated in this Agreement and neither Tiercon nor Seller has agreed to or
permitted, nor will agree to or permit, any amendment thereto or waiver of any
requirement thereof or default thereunder.
3.9 No Assets or Liabilities Other Than in Connection With the Triam
Agreement. Tiercon has owned and now owns no assets and has carried on no
business or operations, and owes or is subject to, and through Closing will
incur or be subject to, no liabilities, actual,
Stock Purchase Agreement (Tiercon), Page 7
<PAGE> 8
contingent or otherwise (including liabilities for taxes) other than (a) the
rights and obligations accruing to Tiercon pursuant to the Triam Agreement and
the transactions expressly contemplated thereby, and (b) professional and
environmental auditors' fees incurred in connection with Tiercon's acquisition
of Triam Canada.
3.10 Brokers, Finders, etc. Except for the services of Tiercon's
financial advisors, Newpoint Capital Partners Inc., all negotiations relating to
this Agreement and the transactions contemplated hereby have been carried on
without the intervention of any person acting on behalf of Tiercon or Seller in
such manner as to give rise to any valid claim against Tiercon, Acquisition or
Noble for any brokerage or finder's commission, fee or similar compensation.
3.11 Residency of Seller. The Seller is not a non-resident of Canada
for the purposes of the Tax Act.
3.12 Value and Gross Revenue Thresholds.
(a) For the purposes of this section 3.12, the "Relevant Date"
in respect of an entity means the last day of such entity's most
recently completed fiscal year or, if such entity has not completed a
fiscal year, the Closing Date.
(b) As at the Relevant Date, the aggregate value of the assets
of Tiercon and each of its affiliates (as such term is used under the
Competition Act (Canada)) as at the time of closing, as stated in the
records of each such entity used to prepare its financial statements
(without deducting any amount for liabilities or encumbrances),
determined in accordance with accounting principles normally used by
such entities and that are generally accepted for the type of business
carried on by such entities, was less than Cdn. $200 million.
(c) For the 12 months ended on the Relevant Date, the
aggregate gross revenues from sales generated from the assets of
Tiercon and each of its affiliates as at the time of closing, as stated
in the records of each such entity used to prepare its financial
statements (including all amounts accruing from the sale or lease of
goods and all amounts accruing from the rendering of services, without
deducting any expenses or other amounts incurred or provided for in
relation to the sale or lease of goods or the rendering of services),
determined in accordance with accounting principles that are normally
used by such entities and that are generally accepted for the type of
business carried on by such entities, was less than Cdn. $200 million.
(d) Since the date of its most recently completed fiscal year,
none of Tiercon or any of its affiliates as at the time of closing has
been a party to or otherwise been affected by any transaction or event,
such as an acquisition or re-evaluation of assets for reporting
purposes, which would increase the value of the assets or gross
revenues above the thresholds described in subsections (b) and (c)
above.
Stock Purchase Agreement (Tiercon), Page 8
<PAGE> 9
3.13 Disclosure; Provision of Information. This Agreement, including
the Exhibits hereto, and the certificates delivered or to be delivered in
connection herewith, taken as a whole, do not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
herein or therein not misleading, and with regard to all copies of executed
documents, such copies are true and accurate representations of the original
executed documents now in effect.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF NOBLE AND ACQUISITION
In order to induce Tiercon and Seller to enter into this Agreement,
Noble and Acquisition jointly and severally represent and warrant as follows:
4.1 Due Organization, Authorization and Good Standing of Noble,
Acquisition and Holdings. Noble is a corporation duly organized, validly
existing and in good standing under the laws of the State of Michigan.
Acquisition is a corporation duly organized, validly existing and in good
standing under the laws of the Province of Ontario. Holdings is a corporation
duly organized, validly existing and in good standing under the laws of the
Province of Nova Scotia. Each other Subsidiary of Noble is a corporation or
limited partnership duly organized or formed, validly existing and in good
standing under the laws of the jurisdiction of its organization or formation.
Each of Noble, Acquisition and Holdings has the requisite corporate power and
authority to execute, deliver and perform its respective obligations under this
Agreement and to consummate all transactions contemplated hereby, as the case
may be. The execution, delivery and performance of this Agreement by each of
Noble and Acquisition, and the consummation of the transactions contemplated
hereby by Noble, Acquisition and Holdings, have been duly and validly authorized
and approved by all necessary corporate action in respect thereof on the part of
each of them. This Agreement constitutes the valid and binding obligation of
each of Noble and Acquisition, enforceable in accordance with its terms.
4.2 Capital Stock. The authorized capital stock of Noble consists of
(i) 20,000,000 shares of common stock, no par value, of which, as of July 24,
1998, approximately 7,156,825 shares are outstanding; and (ii) 150,000 shares of
preferred stock, $100 par value per share, of which, as of the date hereof, no
shares are outstanding. Upon issuance of the Noble Common Shares in exchange for
the Exchangeable Shares as provided in the Share Exchange Agreement and Schedule
A thereto, such shares shall be validly issued, fully paid and nonassessable,
free of preemptive rights and free of all Liens other than such as arise under
applicable securities laws. The Noble Common Shares to be issued pursuant to the
Share Exchange Agreement and Schedule A thereto will be issued in full
compliance with all Canadian provincial securities laws and the United States
Securities Act of 1933 (the "Securities Act") and the rules and regulations
promulgated thereunder and all other relevant securities or blue sky laws of any
state or other jurisdiction. No class of capital stock of Noble is entitled to
preemptive rights.
The authorized capital stock of Acquisition consists of an unlimited
number of common shares and 80,000 Exchangeable Shares, of which, as of the date
hereof, 1,000 common shares
Stock Purchase Agreement (Tiercon), Page 9
<PAGE> 10
are outstanding and all of which are owned by Holdings. All of the outstanding
common shares of Acquisition have been, and any Exchangeable Shares issued
pursuant to this Agreement will be, validly issued, fully paid and
nonassessable, and free of preemptive rights. The Exchangeable Shares to be
issued pursuant to this Agreement will be issued in full compliance with all
applicable Canadian provincial securities laws and the rules and regulations
promulgated thereunder.
4.3 SEC Reports. Noble has filed all proxy statements, reports and
other documents required to be filed by it under the Exchange Act through June
1, 1998, and Noble has made available to Tiercon copies of Noble's Annual Report
on Form 10-K for the fiscal year ended December 31, 1997, and all final proxy
statements and reports filed by Noble under the Exchange Act after such date,
each as filed with the SEC (collectively, the "SEC Reports").
4.4 Absence of Changes. From March 31, 1998 to the date of this
Agreement, except as set forth in the SEC Reports (copies of which have all been
provided by Noble to Tiercon), neither Noble nor any of its Subsidiaries has
undergone any adverse change in its financial condition, or suffered any damage,
destruction or loss (whether or not covered by insurance) that adversely affects
its financial condition, the condition of its assets or the ability to conduct
its business other than such changes in condition, damage, destruction or loss
as in the aggregate would not have an Noble Material Adverse Effect; and from
March 31, 1998 to the date of this Agreement, except as set forth in the SEC
Reports, there has been no adverse change in the condition of the business of
Noble or any of its Subsidiaries, whether as a result of any change as to
accounts receivable, inventory or other assets, any loss of competitive
position, any natural disaster, accident, strike, sabotage, or confiscation of
property, or any other event or condition directly affecting or relating to
Noble, whether or not related to any of the foregoing (including without
limitation labour disputes, environmental audits or disclosures, and
intellectual property disputes), except for such changes as would not in the
aggregate have an Noble Material Adverse Effect.
4.5 Value and Gross Revenue Thresholds; Investor Status.
(a) For the purposes of this section 4.5, the "Relevant Date"
in respect of an entity means the last day of such entity's most
recently completed fiscal year or, if such entity has not completed a
fiscal year, the Closing Date.
(b) As at the Relevant Date, the aggregate value of the assets
of Acquisition and each of its affiliates (as such term is used under
the Competition Act (Canada)) as at the time of closing, as stated in
the records of each such entity used to prepare its financial
statements (without deducting any amount for liabilities or
encumbrances), determined in accordance with accounting principles
normally used by such entities and that are generally accepted for the
type of business carried on by such entities, was less than Cdn. $200
million.
(c) For the 12 months ended on the Relevant Date, the
aggregate gross
Stock Purchase Agreement (Tiercon), Page 10
<PAGE> 11
revenues from sales generated from the assets of Acquisition and each
of its affiliates as at the time of closing, as stated in the records
of each such entity used to prepare its financial statements (including
all amounts accruing from the sale or lease of goods and all amounts
accruing from the rendering of services, without deducting any expenses
or other amounts incurred or provided for in relation to the sale or
lease of goods or the rendering of services), determined in accordance
with accounting principles that are normally used by such entities and
that are generally accepted for the type of business carried on by such
entities, was less than Cdn. $200 million.
(d) Since the date of its most recently completed fiscal year,
none of Acquisition or any of its affiliates as at the time of closing
has been a party to or otherwise been affected by any transaction or
event, such as an acquisition or re-evaluation of assets for reporting
purposes, which would increase the value of the assets or gross
revenues above the thresholds described in subsections (b) and (c)
above.
(e) Acquisition is a "WTO Investor" for the purposes of the
Investment Canada Act.
4.6 Disclosure. This Agreement, including the Exhibits hereto and the
certificates delivered or to be delivered in connection herewith and the SEC
Reports referenced hereby, taken as a whole, do not contain any untrue statement
of material fact or omit to state a material fact necessary to make the
statements herein or therein not misleading.
ARTICLE 5
CERTAIN COVENANTS
5.1 Exclusivity; Acquisition Proposals. Unless and until this Agreement
shall have been terminated by either party pursuant to Section 8.1 hereof,
except as required by law, Tiercon and Seller shall not (and it shall use its
best efforts to ensure that none of its officers, directors, agents,
representatives or affiliates) take, directly or indirectly, any of the
following actions with any party other than Acquisition and its designees or
agents: (i) solicit, encourage, initiate or participate in any negotiations,
inquiries or discussions with respect to any offer or proposal to acquire any of
Tiercon's business, assets or capital shares whether by arrangement,
amalgamation, merger, consolidation, other business combination, purchase of
assets, tender or exchange offer or otherwise (each of the foregoing an
"Acquisition Transaction"); (ii) disclose any information not customarily
disclosed to any person concerning Tiercon's business or properties or afford to
any person or entity access to Tiercon's properties, books or records, except in
the ordinary course of business consistent with past practice and as required
pursuant to a governmental request for information; (iii) enter into or execute
any agreement relating to an Acquisition Transaction, plan of reorganization, or
other agreement calling for the sale of any of Tiercon's business and
properties; or (iv) make or authorize any public statement, recommendation or
solicitation with respect to any Acquisition Transaction or any offer or
proposal relating to an Acquisition Transaction other than with respect to this
Agreement.
Stock Purchase Agreement (Tiercon), Page 11
<PAGE> 12
5.2 Notification of Certain Matters. Between the date hereof and the
Closing Date, each party shall give prompt notice in writing to the other
parties of: (i) any information that indicates that any of its representations
or warranties contained herein was not true and correct as of the date hereof or
will not be true and correct at and as of the Closing Date with the same force
and effect as if made at and as of the Closing Date (except for changes
permitted or contemplated by this Agreement); (ii) the occurrence of any event
that will result, or has a reasonable prospect of resulting, in the failure of
any condition specified in ARTICLE 6 hereof to be satisfied and; (iii) any
notice or other communication from any third party alleging that the consent of
such third party is or may be required in connection with the transactions
contemplated by this Agreement or that such transactions otherwise may violate
the rights of or confer remedies upon such third party.
5.3 Other Limitations on Conduct of Business Prior to Closing. Seller
and Tiercon hereby covenant and agree with Noble that, prior to Closing: (i)
unless the prior written consent of Noble shall have been obtained and except as
otherwise contemplated herein, Tiercon's business shall be operated, only in the
usual, regular and ordinary course of business consistent with past practices;
(ii) they will use their reasonable efforts to preserve intact Tiercon's
business organization and assets and maintain their rights and franchises; (iii)
they will not authorize for issuance, issue or obligate itself to issue any
shares of its capital stock or any options, warrants or rights, or enter into
any other agreements or commitments obligating it to issue or sell shares of its
capital stock or any securities or obligations convertible into, or exchangeable
for, any shares of its capital stock; and (iv) they will take no action that
would (a) materially adversely affect the ability of Noble, Seller, Acquisition
or Tiercon to obtain any necessary approvals of any third parties or any
governmental authorities required for the transactions contemplated hereby or
materially increase the period of time necessary to obtain such approvals, or
(b) materially adversely affect Seller's, Noble's, Acquisition's or Tiercon's
ability to perform its respective covenants and agreements under this Agreement.
5.4 Access to Information. Seller and Tiercon shall, subject to
applicable law, afford Noble and its accountants, counsel and other
representatives reasonable access during the period prior to the Closing Date to
the following information relating to Tiercon and, to the full extent available
to Tiercon or Seller, Triam Canada: (a) all financial statements, properties,
books, contracts, commitments and records, and (b) all other information
concerning the business, properties and personnel of such entities, as Noble may
reasonably request. No information or knowledge obtained after the date hereof
in any investigation pursuant to this Section 5.4 shall affect or be deemed to
modify any representation or warranty contained herein or the conditions to the
obligations of the parties to consummate the transactions contemplated herein.
5.5 Further Assurances. Subject to the terms and conditions herein
provided, and subject to its fiduciary obligations under law, each of the
parties agrees to use all reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated by this Agreement, including without limitation
the taking of all reasonable actions necessary to satisfy each condition
precedent set forth in
Stock Purchase Agreement (Tiercon), Page 12
<PAGE> 13
ARTICLE 6, to comply promptly with all legal requirements that may be imposed on
any of them with respect to this Agreement or to procure any consent, approval,
order or authorization of, or any exemption by, any governmental entity, or
other third party, required to be obtained or made in connection with this
Agreement or the taking of any action contemplated hereby.
ARTICLE 6
CONDITIONS PRECEDENT
6.1 Conditions Precedent to Tiercon's and Seller's Obligation to Close.
The obligations of Tiercon and Seller to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction, prior to or
substantially contemporaneously with the Closing, of the following conditions,
compliance with which, or the occurrence of which may be waived in whole or in
part by Tiercon and Seller in writing.
6.1.1 Representations; Covenants; Certificate. The
representations and warranties of Noble and Acquisition contained in
ARTICLE 4 hereof (except for clause (i) of the first sentence of
Section 4.2 to the extent it refers to the number of issued and
outstanding shares of Noble Common Shares) shall be true in all
material respects as of the date of this Agreement and as of the
Closing Date with the same effect as though made as of the Closing
Date; Noble and Acquisition shall in all material respects have
performed and complied with all their respective obligations and
covenants required by this Agreement to be performed or complied with
prior to Closing; and each of Noble and Acquisition shall have
delivered to Tiercon and Seller a certificate, dated the Closing Date
and signed by the President or a Vice President of such company, as its
respective obligations and covenants hereunder.
6.1.2 Opinion of Counsel for Noble and Acquisition. Seller
shall have received from each of Jaffe, Raitt, Heuer & Weiss,
Professional Corporation, counsel for Noble, and Davies, Ward & Beck,
counsel for Acquisition, respectively, a legal opinion, dated the
Closing Date, with respect to legal matters related to this Agreement
and the transactions contemplated hereby and in form and substance
reasonably acceptable to Tiercon and Seller.
6.1.3 Injunctions. No temporary restraining order, preliminary
or permanent injunction or other order by any Canadian or United States
Federal or provincial or state court or governmental body prohibiting
the consummation of the transactions contemplated by this Agreement
shall have been issued and shall not have expired or been withdrawn or
reversed.
6.1.4 Closing Documents. Noble, Acquisition and Holdings shall
have executed and delivered to Seller, Tiercon, Wray or Hunter, as the
case may be, or shall execute and deliver at Closing, all documents
contemplated hereby and shall deliver at Closing all of the
Exchangeable Shares required to be delivered to Seller hereunder.
Stock Purchase Agreement (Tiercon), Page 13
<PAGE> 14
6.2 Conditions Precedent to Obligations of Noble and Acquisition. The
obligations of Noble and Acquisition to effect the transactions contemplated by
this Agreement shall be subject to the satisfaction, prior to or substantially
contemporaneously with Closing, of the following conditions, compliance with
which, or the occurrence of which, may be waived in whole or in part by Noble
and Acquisition in writing:
6.2.1 Due Diligence. The results of the due diligence
investigation of Tiercon, Seller and Triam Canada by Noble and
Acquisition shall be satisfactory to Noble and Acquisition in their
sole discretion.
6.2.2 Representations; Covenants; Certificate. The
representations and warranties of Seller contained in ARTICLE 3 hereof
shall be true in all material respects as of the date of this Agreement
and the Closing Date with the same effect as though made as of the
Closing Date; Tiercon and Seller shall in all material respects have
performed and complied with all their respective obligations and
covenants required by this Agreement to be performed or complied with
prior to Closing; and Seller shall have delivered to Noble a
certificate, dated the Closing Date and signed by its President or a
Vice President, as to all of the obligations and covenants of Seller
hereunder.
6.2.3 Opinion of Counsel for Tiercon and Seller. Noble and
Acquisition shall have received from Gowling, Strathy & Henderson,
counsel for Tiercon and Seller, a legal opinion, dated the Closing
Date, with respect to legal matters related to this Agreement and the
transactions contemplated hereby and in form and substance reasonably
acceptable to Noble and Acquisition.
6.2.4 Required Consents. Consents and waivers required from
any governmental authority with respect to the consummation of this
Agreement and the transactions contemplated hereby shall have been
filed, occurred, or been obtained, other than such consents, the
failure to obtain which would not have any Tiercon or Noble Material
Adverse Effect or any material adverse effect on the consummation of
this Agreement.
6.2.5 Pre-Closing Documents. Seller and Tiercon shall have
delivered to Acquisition, prior to the Closing Date: (i) a certified
copy of the Articles of Incorporation of Tiercon, dated the Closing
Date; (ii) a true, correct and complete copy of the By-Laws of Tiercon
certified as such as of the Closing Date by the Secretary or Assistant
Secretary of Tiercon; (iii) a Certificate of Status for Tiercon from
the Province of Ontario, dated not earlier than five (5) days prior to
the Closing Date; (iv) a certified copy of the resolutions of the board
of directors of Tiercon authorizing the execution of this Agreement and
all other documents and instruments contemplated hereby, and the
performance of all acts required to be performed by Tiercon hereunder;
(v) a certified copy of the Articles of Incorporation of Seller, dated
the Closing Date; (vi) a true, correct and complete copy of the By-Laws
of Seller certified as such as of the Closing Date by the Secretary or
Assistant Secretary of Seller; (vii) a Certificate of Status for Seller
from the Province of
Stock Purchase Agreement (Tiercon), Page 14
<PAGE> 15
Ontario, dated not earlier than five (5) days prior to the Closing
Date; (viii) a certified copy of the resolutions of the board of
directors of Seller authorizing the execution of this Agreement and all
other documents and instruments contemplated hereby, and the
performance of all acts required to be performed by Seller hereunder;
and (ix) a certificate of the Secretary or Assistant Secretary of each
of Tiercon and Seller, respectively, dated the Closing Date as to the
incumbency and signature of the officer or officers signing this
Agreement on behalf of Tiercon or Seller, as the case may be, and all
other documents and instruments required to be executed and delivered
by Tiercon or Seller hereunder, together with satisfactory evidence of
the incumbency and signature of each such Secretary or Assistant
Secretary.
6.2.6 Closing of Triam Canada Acquisition. Tiercon's
acquisition of Triam Canada pursuant to the Triam Documents shall have
closed or shall be ready to close not later than simultaneously with
the Closing of the transactions contemplated by this Agreement.
6.2.7 Closing Documents. Tiercon, Seller, Wray and Hunter
shall each have executed and delivered to Noble or Acquisition, as the
case may be, or shall execute and deliver at Closing, all documents
contemplated hereby and shall deliver at Closing all of the Tiercon
Shares required to be delivered to Acquisition hereunder.
6.2.8 No Action Under Competition Act. Neither the Director of
Investigation and Research (the "Director") appointed under the
Competition Act (Canada) nor any of his representatives shall have
advised Noble, Acquisition or Tiercon, or any of their representatives,
that the Director intends to commence an inquiry or make an application
under the Competition Act (Canada) in respect of any transaction
contemplated by this Agreement.
ARTICLE 7
INDEMNIFICATION
7.1 Indemnification of Noble and Acquisition. Seller agrees to
indemnify and hold Noble and Acquisition, their Subsidiaries, officers,
directors, successors and assigns, harmless from and against any and all claims,
demands, proceedings, damages, liabilities, losses, costs or expenses (including
without limitation, all legal and other professional fees and disbursements,
interest, penalties and amount paid in settlement) ("Losses") which any of them
may incur, suffer or become liable for, directly or indirectly, as a result of
or in connection with:
(a) Any and all monetary damages or deficiency resulting from
any misrepresentation, breach of warranty, and/or nonfulfillment of any
agreement or covenant on the part of Tiercon or Seller, under this
Agreement or resulting from any misrepresentation or omission from any
certificate, schedule, list, or other instrument to be furnished by
Tiercon or Seller to Noble and Acquisition under this Agreement; and
Stock Purchase Agreement (Tiercon), Page 15
<PAGE> 16
(b) Any and all actions, suits, proceedings, demands,
assessments, judgments, costs, and expenses including reasonable
attorneys fees, incident to any of the foregoing;
provided, however, that within sixty (60) days after learning of the assertion
of any claim against which Noble and/or Acquisition claim indemnification
hereunder, Noble and/or Acquisition, as the case may be, shall notify Seller and
afford it the opportunity to assume the defense or monetary settlement thereof
at Seller's own expense with counsel of Seller's choosing, and Noble and/or
Acquisition, as the case may be, shall have cooperated fully to make available
to Seller all pertinent information under their control or in their possession.
Noble and Acquisition shall have the right to join in the defense of any such
claim with counsel of their own choosing and at their own expense.
7.2 Indemnification of Seller. Acquisition hereby agrees to indemnify
and hold Seller, its successors and permitted assigns harmless from and against
any and all liability, loss, cost or expense which Seller may suffer or become
liable for as a result or in connection with:
(a) Any and all liabilities, obligations and claims, which
arise from the operation of the business of Tiercon after the Closing
Date, other than to the extent resulting from any malfeasance,
misfeasance, negligence, or actions of Seller or any matter referred to
in Section 7.1; and
(b) Any and all monetary damages or deficiency resulting from
any misrepresentation, breach of warranty, and/or nonfulfillment of any
agreement or covenant on the part of Noble and/or Acquisition under
this Agreement or resulting from any misrepresentation or omission from
any certificate, schedule, list, or other instrument to be furnished by
Noble and/or Acquisition to Seller under this Agreement;
provided, however, that within sixty (60) days after learning of the assertion
of any claim against which a Seller claims indemnification hereunder, such
Seller shall notify Acquisition and afford it the opportunity to assume the
defense or monetary settlement thereof at its own expense with counsel of its
choosing, and such Seller shall have cooperated fully to make available to
Acquisition all pertinent information under its control or in its possession.
Seller shall have the right to join in the defense of any such claim with
counsel of its own choosing and at Seller's own expense.
7.3 Failure to Provide Timely Notice. Notwithstanding the notice
requirements provided in Sections 7.1 and 7.2, the right to indemnification
under this Agreement shall not be affected by any failure to give or any delay
in giving such notice unless, and then only to the extent that, the rights and
remedies of the party to whom such notice was to have been given shall have been
prejudiced.
7.4 Minimization of Indemnities. The parties hereto shall each use
reasonable efforts to minimize the obligation of the other to indemnify under
this Agreement, by, among other
Stock Purchase Agreement (Tiercon), Page 16
<PAGE> 17
reasonable things and without limiting the generality of the foregoing, taking
such reasonable remedial action as it believes may minimize such obligation and
seeking to the maximum extent possible reimbursement from insurance carriers
under applicable insurance policies covering any such liability.
7.5 Assignment of Claims. The parties agree that upon satisfaction of
the obligation to indemnify hereunder, and in consideration thereof, to assign
to the party making such payment or giving such credit, any and all claims,
causes of action and demands of whatever kind and nature which such indemnified
party may have against any person, firm or other entity giving rise to such
indemnified loss, and to reasonably cooperate in any efforts to recover
therefrom.
7.6 Acquisition's Right to Settle Claims. After Closing,
notwithstanding anything herein contained to the contrary, in the event that, in
order to protect Tiercon and its business and assets after acquisition of the
Tiercon Shares by Acquisition hereunder, Acquisition shall desire to cause
Tiercon to settle any claims or actions, the defense of which Seller would
otherwise be entitled to assume pursuant to the provisions hereof, Acquisition
shall be entitled to cause Tiercon to so settle such claim or action, after
first giving Seller not less than five (5) days prior written notice of such
claim or action and the proposed settlement, and the terms of such settlement
shall be binding upon Seller so long as they are commercially reasonable.
ARTICLE 8
MISCELLANEOUS
8.1 Amendments and Supplements. At any time before Closing, this
Agreement, the Share Exchange Agreement and the Registration Rights Agreement
may be amended or supplemented by a written instrument signed by all of the
parties hereto and approved by their respective Boards of Directors.
8.2 Survival of Representations and Warranties. The representations and
warranties made by Seller in Section 3.7 of this Agreement shall survive the
Closing and shall remain in full force and effect for a period of eighteen (18)
months following the actual Closing Date. All other representations and
warranties made by the parties hereunder, including but not limited to all other
representations and warranties in ARTICLE 3 and ARTICLE 4, shall survive the
Closing and shall remain in full force and effect for a period of two (2) years
following the actual Closing Date.
8.3 Expenses. Whether or not Closing takes place, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses.
8.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the Province of Ontario and the
federal laws of Canada applicable therein.
Stock Purchase Agreement (Tiercon), Page 17
<PAGE> 18
8.5 Notice. All notices and other communications required or permitted
hereunder shall be in writing (including any facsimile transmission or similar
writing), and shall be sent either by telecopy, hand delivery, or reputable
overnight courier, addressed as follows or to such other address or addresses of
which the respective party shall have notified the other party. Each such notice
or other communication shall be effective (i) if given by telecopy, when such
telecopy is transmitted and the appropriate answer back is received, (ii) if
given by reputable overnight courier, one business day after being delivered to
such courier or (iii) if given by any other means, when received at the address
specified in this Section.
(a) if to Noble at:
Noble International, Ltd.
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
Fax: (248) 594-9501
Attention: Robert J. Skandalaris and
Michael C. Azar
(b) if to Holdings at:
Noble Canada Holdings, Ltd.
c/o Nicholas Leblovic
Davies, Ward & Beck
1 First Canadian Place, 44th Floor
Toronto, Ontario M5X 1B1
Fax: (416) 863-0871
With a copy to:
Noble International, Inc.
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
Fax: (248) 594-9501
Attention: Robert J. Skandalaris and
Michael C. Azar
(c) if to the Corporation at:
Noble Canada, Inc.
c/o Nicholas Leblovic
Davies, Ward & Beck
1 First Canadian Place, 44th Floor
Toronto, Ontario M5X 1B1
Fax: (416) 863-0871
Stock Purchase Agreement (Tiercon), Page 18
<PAGE> 19
With a copy to:
Noble International, Ltd.
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
Attn: Robert Skandalaris and Michael Azar
and in all of the above cases, with required additional
copies to:
Jaffe, Raitt, Heuer & Weiss, Professional Corporation
One Woodward Avenue, Suite 2400
Detroit, Michigan 48226
Fax: (313) 961-8358
Attention: Peter Sugar
and
Davies, Ward & Beck
1 First Canadian Place, 44th Floor
Toronto, Ontario M5X 1B1
Fax: (416) 863-0871
Attention: Nicholas Leblovic
(d) if to Seller:
Wrayter Investments, Inc.
c/o R. Douglas S. Hunter
Gowling, Strathy & Henderson
Commerce Court West, Ste. 4900
Toronto, Ontario M5L 1J3
(e) if to Tiercon:
Davies, Ward & Beck
1 First Canadian Place, 44th Floor
Toronto, Ontario M5X 1B1
Fax: (416) 863-0871
Attention: Nicholas Leblovic
and
Gowling, Strathy & Henderson
Commerce Court West, Ste. 4900
Stock Purchase Agreement (Tiercon), Page 19
<PAGE> 20
Toronto, Ontario M5L 1J3
Fax: (416) 862-7661
Attention: R. Douglas S. Hunter
8.6 Counterparts. This Agreement and any amendments or supplements
thereto may be executed in counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
Stock Purchase Agreement (Tiercon), Page 20
<PAGE> 21
STOCK PURCHASE AGREEMENT
TIERCON HOLDINGS INC.
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
NOBLE ACQUISITION
NOBLE INTERNATIONAL, LTD. NOBLE CANADA, INC.
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
TIERCON SELLER
TIERCON HOLDINGS INC. WRAYTER INVESTMENTS INC.
By: ____________________________ By: ______________________________
Its: ____________________________ Its: ______________________________
Stock Purchase Agreement (Tiercon), Page 21
<PAGE> 22
EXHIBIT G
Stock Purchase Agreement (Tiercon), Page 22
<PAGE> 1
EXHIBIT 2.4
SHARE EXCHANGE AGREEMENT
MEMORANDUM OF AGREEMENT made as of July 24, 1998.
A M O N G:
NOBLE INTERNATIONAL, LTD.,
a corporation existing under the
laws of the State of Michigan,
(hereinafter referred to as "Parent"),
- and -
NOBLE CANADA HOLDINGS, LIMITED,
a corporation existing under the laws of the Province of
Nova Scotia, Canada,
(hereinafter referred to as "Holdings"),
- and -
NOBLE CANADA, INC.,
a corporation existing under the laws of the Province of
Ontario, Canada,
(hereinafter referred to as "Corporation"),
- and -
WRAYTER INVESTMENTS INC.,
a corporation existing under the laws of the Province of
Ontario, Canada,
(hereinafter referred to as "Seller").
WHEREAS pursuant to a certain stock purchase agreement dated as of July
24, 1998 ("Purchase Agreement") among TIERCON HOLDINGS INC., Parent, Seller and
the Corporation, Seller agreed to sell to the Corporation, and the Corporation
agreed to purchase from Seller, all of the outstanding shares in the capital of
Target in consideration for the issuance by the Corporation to the Seller of
80,000 Class T Exchangeable Non-Voting Preferred Shares of the Corporation
("Exchangeable Shares");
AND WHEREAS the parties to the Purchase Agreement agreed that at the
Closing (as defined in the Purchase Agreement), Parent, the Corporation and
Seller would execute and deliver a
Share Exchange Agreement (Tiercon), Page 1
<PAGE> 2
share exchange agreement in substantially the form set forth in Exhibit A to the
Purchase Agreement;
NOW THEREFORE in consideration of the respective covenants and
agreements provided in this Agreement and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS. In this Agreement, the following terms shall have the
following meanings:
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling", "controlled by" and "under common control with"), as
applied to any Person, means the possession by another Person, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that first mentioned Person, whether through the ownership of voting
securities, by contract or otherwise.
"AMEX" means the American Stock Exchange.
"BOARD OF DIRECTORS" means the Board of Directors of the Corporation.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a legal holiday
on which banks are not open for business in Toronto, Ontario or Detroit,
Michigan.
"CALL RIGHTS" means collectively the Liquidation Call Right, the Retraction Call
Right and the Redemption Call Right.
"CURRENT MARKET PRICE" has the meaning ascribed thereto in the Exchangeable
Share Provisions.
"DEFAULT EVENT" means any failure of the Corporation to perform any of its
obligations pursuant to the Exchangeable Share Provisions including, without
limitation, its obligation to redeem any Retracted Shares as a result of the
operation of section 4.5 of the Exchangeable Share Provisions.
"EXCHANGE RIGHT" has the meaning ascribed thereto in section 2.1 hereof.
"EXCHANGEABLE SHARE PROVISIONS" means the rights, privileges, restrictions and
conditions set forth in the provisions attaching to the Exchangeable Shares.
"EXCHANGEABLE SHARES" has the meaning ascribed thereto in the recitals hereto.
Share Exchange Agreement (Tiercon), Page 2
<PAGE> 3
"HOLDERS" means the registered holders from time to time of Exchangeable Shares
including, without limitation, the Seller, but excluding Parent and its
Affiliates.
"LIEN" means any lien, pledge, adverse claim, security interest, mortgage,
restriction, claim, charge or other encumbrance of any kind or nature
whatsoever.
"LIQUIDATION CALL RIGHT" has the meaning ascribed thereto in the Exchangeable
Share Provisions.
"OBCA" means the Ontario Business Corporations Act, as amended.
"OFFICER'S CERTIFICATE" means, with respect to Parent, Holdings or the
Corporation, as the case may be, a certificate signed by any one of the Chairman
of the Board, the President, any Vice-President or any other senior officer of
such Company, as the case may be.
"PARENT SHARES" means the shares of common stock, no par value, in the capital
of Parent.
"PERSON" includes an individual, partnership, corporation, company,
unincorporated syndicate or organization, trust, trustee, executor,
administrator and other legal representative.
"PURCHASE AGREEMENT" has the meaning ascribed thereto in the recitals hereto.
"REDEMPTION CALL RIGHT" has the meaning ascribed thereto in the Exchangeable
Share Provisions.
"RETRACTED SHARES" has the meaning ascribed thereto in section 2.6 hereof.
"RETRACTION CALL RIGHT" has the meaning ascribed thereto in the Exchangeable
Share Provisions.
"SUPPORT AGREEMENT" means the support agreement made as of even date herewith
among the Corporation, Holdings and Parent.
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC. The division of this
Agreement into articles, sections and paragraphs and the insertion of headings
are for convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
1.3 NUMBER, GENDER, ETC. In this Agreement, words importing the
singular number only shall include the plural and vice versa, and words
importing the use of any gender shall include all genders.
1.4 DATE FOR ANY ACTION. If any date on which any action is required to
be taken under this Agreement is not a Business Day, such action shall be
required to be taken on the next succeeding Business Day.
1.5 WITHHOLDING OF TAX. All amounts required to be paid, deposited or
delivered hereunder shall be paid, deposited or delivered after deduction of any
amount required by applicable law to be deducted or withheld on account of tax
and the deduction of such amounts and
Share Exchange Agreement (Tiercon), Page 3
<PAGE> 4
remittance to the applicable tax authorities shall, to the extent thereof,
satisfy such requirement to pay, deposit or deliver hereunder.
ARTICLE 2
EXCHANGE RIGHT AND EARLY EXCHANGE RIGHTS
2.1 GRANT AND OWNERSHIP OF THE EXCHANGE RIGHT. Parent hereby grants to
the Holders the right (the "Exchange Right"), upon the occurrence and during the
continuance of a Default Event, to require Parent to purchase from each Holder
all or any part of the Exchangeable Shares held by such Holder, all in
accordance with the provisions of this Agreement. Parent hereby acknowledges
receipt from the Holders of good and valuable consideration (and the adequacy
thereof) for the grant of the Exchange Right by Parent to the Holders.
2.2 LEGENDED SHARE CERTIFICATES. The Corporation shall cause each
certificate representing Exchangeable Shares to bear an appropriate legend
notifying the Holders of the right to exercise the Exchange Right in respect of
the Exchangeable Shares held by a Holder.
2.3 PURCHASE PRICE. The purchase price payable by Parent for each
Exchangeable Share to be purchased by Parent under the Exchange Right shall be
an amount per share equal to the Current Market Price, determined on the date
the Exchange Right is exercised pursuant to section 2.4 (the "Exchange Date"),
which shall be satisfied in full by the Corporation causing to be delivered to
each Holder one Parent Share, or, at a Holder's election, US $11.50 in cash
("Cash Compensation"); provided that, in the event that a Holder elects to
receive Cash Compensation in lieu of all or part of the Parent Shares to which
such Holder is entitled pursuant to this section, Corporation may elect, at its
sole discretion, to cause to be delivered to such Holder for each Exchangeable
Share one Parent Share instead of the Cash Compensation elected by such Holder.
2.4 EXERCISE OF THE EXCHANGE RIGHT. Subject to the terms and conditions
herein set forth, a Holder shall be entitled, upon the occurrence and during the
continuance of a Default Event, to exercise the Exchange Right with respect to
all or any part of the Exchangeable Shares registered in the name of such Holder
on the books of the Corporation. To exercise the Exchange Right, the Holder
shall deliver to Parent, in person, by courier or by certified or registered
mail, at its principal office or at such other place as Parent may from time to
time designate by written notice to the Holders, the certificates representing
the Exchangeable Shares that such Holder desires Parent to purchase pursuant to
the Exchange Right, duly endorsed in blank, and accompanied by such other
documents and instruments as Parent may reasonably require together with:
(a) a duly completed form of notice of exercise of the
Exchange Right, contained on the reverse of or attached to the
Exchangeable Share certificates, stating (i) that the Holder thereby
exercises the Exchange Right so as to require Parent to purchase from
the Holder the number of Exchangeable Shares specified therein, (ii)
that such Holder has good title to and owns all such Exchangeable
Shares to be acquired by Parent free and clear of all Liens, (iii) the
names in which the certificates representing Parent Shares issuable in
connection with the exercise of the Exchange Right are to be issued,
and (iv) the names and addresses of the Persons to whom such new
certificates should be delivered;
Share Exchange Agreement (Tiercon), Page 4
<PAGE> 5
(b) payment (or evidence satisfactory to Parent of payment) of
the taxes (if any) payable as contemplated by section 2.7 hereof; and
(c) a certificate or certificates of such Holder satisfactory
to Parent attesting to such Holder's accredited investor status and
investment intent.
If only a part of the Exchangeable Shares represented by any
certificate or certificates delivered to Parent are to be purchased by Parent
under the Exchange Right, a new certificate for the balance of such Exchangeable
Shares shall be issued to the Holder at the expense of the Corporation.
2.5 DELIVERY OF PARENT SHARES: EFFECT OF EXERCISE. Promptly after
receipt of the certificates, duly endorsed in blank, representing the
Exchangeable Shares in respect of which the Exchange Right was exercised
pursuant to section 2.4 hereof (together with such documents and instruments of
transfer and a duly completed form of notice of exercise of the Exchange Right
(and payment of taxes, if any, or evidence thereof in accordance with section
2.4 hereof)), Parent shall notify the Corporation of its receipt of the same
and, subject to section 1.5, Parent shall promptly thereafter deliver or cause
to be delivered to the Holder of such Exchangeable Shares (or to such other
Persons, if any, properly designated by such Holder) (i) the certificates for
the number of Parent Shares issuable in connection with the exercise of the
Exchange Right, which shares shall be duly issued as fully paid and
non-assessable and shall be free and clear of any Liens placed thereon by Parent
or the Corporation, if applicable, or (ii) the corresponding Cash Compensation,
as provided in this Agreement. Immediately upon the exercise of the Exchange
Right, as provided in section 2.4 hereof, the closing of the transaction of
purchase and sale contemplated by the Exchange Right shall be deemed to have
occurred, and the Holder of such Exchangeable Shares shall be deemed to have
transferred to Parent all of its right, title and interest in and to such
Exchangeable Shares free and clear of all Liens and shall cease to be a holder
of such Exchangeable Shares and shall not be entitled to exercise any of the
rights of a holder in respect thereof, other than the right to receive the
purchase price therefor, unless the requisite number of Parent Shares or Cash
Compensation, as the case may be, is not allotted, issued and/or delivered by
Parent to such Holder (or to such other Persons, if any, properly designated by
such Holder) within five Business Days of the Exchange Date, in which case the
rights of the Holder shall remain unaffected until such Parent Shares or Cash
Compensation are so allotted, issued and/or delivered by Parent and any such
cheque or property is so delivered and paid. Concurrently with such Holder
ceasing to be a holder of Exchangeable Shares, the Holder shall be considered
and deemed for all purposes to be a holder of Parent Shares delivered to such
Holder, if any, pursuant to the Exchange Right. The Board of Directors shall
sanction or approve any transfer of Exchangeable Shares made pursuant to an
exercise of the Exchange Right pursuant to the provisions hereof and such
sanction or approval shall be effective as at the closing of the transaction of
purchase and sale of Exchangeable Shares as provided in this section 2.5.
2.6 STAMP OR OTHER TRANSFER TAXES. Upon any sale of Exchangeable Shares
to Parent pursuant to the Exchange Right, the share certificate or certificates
representing Parent Shares to be delivered in connection with the payment of the
purchase price therefor shall be issued in the name of the Holder of the
Exchangeable Shares so sold or in such names as such Holder may otherwise
Share Exchange Agreement (Tiercon), Page 5
<PAGE> 6
direct in writing without charge to the Holder, provided, however, that such
Holder (a) shall pay (and neither Parent nor the Corporation shall be required
to pay) any documentary, stamp, transfer or other similar taxes that may be
payable in respect of any transfer involved in the issuance or delivery of such
shares to a Person other than such Holder or (b) shall establish to the
satisfaction of Parent and the Corporation that such taxes, if any, have been
paid.
2.7 NOTICE OF DEFAULT EVENT. Immediately upon the occurrence of a
Default Event, the Corporation and Parent shall give written notice thereof to
the Holders. Such notice shall describe the event that has occurred and shall
specify that, pursuant to this Agreement, the Holders are currently entitled, or
may become entitled at a later date, to exercise the Exchange Right.
2.8 QUALIFICATION OF PARENT SHARES. Parent shall use all reasonable
efforts to obtain all orders required from the applicable Canadian securities
authorities to permit the issuance of the Parent Shares upon any exchange of the
Exchangeable Shares for Parent Shares without registration or qualification
with, or approval of, or the filing of any document including any prospectus or
similar document, or the taking of any proceeding with, or the obtaining of any
order, ruling or consent from, any governmental or regulatory authority under
any Canadian federal or provincial law or regulation or pursuant to the rules
and regulations of any regulatory authority in Canada or the fulfilment of any
other legal requirement before such Parent Shares may be issued and delivered by
the Corporation or Parent to the holder thereof.
ARTICLE 3
AMENDMENTS AND SUPPLEMENTAL AGREEMENTS
3.1 AMENDMENTS, MODIFICATIONS, ETC. Except as provided for in section
3.2 hereof, this Agreement may not be amended or modified except by an agreement
in writing executed by the Corporation, Holdings, Parent and the Holder. Any
amendment or modification of this Agreement by the Corporation, Holdings, Parent
and the Holder shall bind the Holder, and the Corporation, Holdings, Parent and
the Holder shall be entitled to rely on such amendment or modification for all
purposes.
3.2 CHANGES IN THE CAPITAL OF PARENT OR THE CORPORATION.
Notwithstanding section 3.1 hereof, at all times after the occurrence of any
Capital Reorganization (as such term is defined in the Exchangeable Share
Provisions), this Agreement shall forthwith be deemed to have been amended and
modified as necessary in order that it shall apply with full force and effect to
all new securities into which Parent Shares or the Exchangeable Shares or both
are so changed and the parties hereto shall execute and deliver an agreement
giving effect to and evidencing such necessary amendments and modifications.
ARTICLE 4
TRANSFERS OF EXCHANGEABLE SHARES
4.1 APPROVAL OF THE BOARD OF DIRECTORS. Except for any transfers of
Exchangeable Shares to Parent or any of its Affiliates pursuant to the
provisions hereof or the Exchangeable Share Provisions, the Holder shall not be
entitled to transfer any Exchangeable Shares except as explicitly
Share Exchange Agreement (Tiercon), Page 6
<PAGE> 7
permitted pursuant to the articles of incorporation of the Corporation. Parent
and the Board of Directors shall not sanction any transfer of Exchangeable
Shares (other than to Parent or any of its Affiliates pursuant to the provisions
hereof or the Exchangeable Share Provisions) unless, as a condition precedent to
any such transfer of Exchangeable Shares, the transferee, if it is not a party
to this Agreement, executes and delivers an agreement in form and containing
terms satisfactory to Parent and the Corporation, acting reasonably, whereby the
transferee shall become a party hereto and shall agree to be bound by the
provisions hereof as if the transferee was an original party hereto, and
thereupon the transferee shall have the same rights, and shall be subject to the
same obligations, as the transferor hereunder.
ARTICLE 5
PARENT DISCLOSURE MATERIALS TO BE PROVIDED TO HOLDER
5.1 DISCLOSURE MATERIALS TO BE SENT BY PARENT TO THE HOLDER. Parent
covenants and agrees with the Holder to send to the Holder at the address of
such Holder set forth in section 7.3 hereof (or, in the absence of such an
address, at the address of the Holder as shown at the relevant time on the
register of Holders maintained by the Corporation or otherwise to such address
that may be communicated by such Holder to Parent) all materials that Parent is
required, pursuant to the provisions of the United States Securities Exchange
Act of 1934, as amended, to send from time to time during the term of this
Agreement to holders of Parent Shares resident in the United States including,
without limitation, copies of its annual reports and all proxy solicitation
materials. Upon the request of the Holder, Parent shall send to the Holder a
copy of its quarterly reports.
ARTICLE 6
TERMINATION
6.1 TERM.
(a) This Agreement, including the Exchange Right, shall come
into force and effect as at and from the date hereof and shall remain
in force and effect until the earliest to occur of the following
events, at which time this Agreement shall terminate:
(i) no outstanding Exchangeable Shares are held by
the Holder;
(ii) the Holder, the Corporation, Holdings and Parent
agree in writing to terminate this Agreement; or
(iii) July 24, 2001.
(b) Notwithstanding anything herein to the contrary, the
provisions of this Agreement shall no longer be applicable to any
Person (including, without limitation, any Seller) that ceases to be a
registered holder of Exchangeable Shares and such Person shall, upon
ceasing to be a registered holder of Exchangeable Shares, be deemed to
have ceased to be a party to this Agreement until, if applicable, such
time as such Person subsequently
Share Exchange Agreement (Tiercon), Page 7
<PAGE> 8
becomes a party to this Agreement by executing an agreement referred to
in section 4.1 hereof.
ARTICLE 7
GENERAL
7.1 SEVERABILITY. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality or enforceability of
the remainder of this Agreement shall not in any way be affected or impaired
thereby and this Agreement shall be carried out as nearly as possible in
accordance with its original terms and conditions; provided, however, that if
the provision or provisions so held to be invalid, in the reasonable judgment of
the parties, is or are so fundamental to the intent of the parties and the
operation of this Agreement that the enforcement of the other provisions hereof,
in the absence of such invalid provision or provisions, would damage irreparably
the intent of the parties in entering into this Agreement, the parties shall
agree (i) to terminate this Agreement, or (ii) to amend or otherwise modify this
Agreement so as to carry out the intent and purposes hereof and the transactions
contemplated hereby.
7.2 BINDING AGREEMENT. Subject to the provisions of Article 7 hereof,
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns and, where
applicable, their respective heirs and personal representatives.
7.3 NOTICES TO PARTIES. All notices and other communications between
the parties hereunder shall be in writing and shall be deemed to have been given
if delivered personally or by overnight or registered mail to the parties at the
following addresses (or at such other address for such party as shall be
specified in like notice):
(a) if to Parent at:
Noble International, Ltd.
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
Fax: (248) 594-9501
Attention: Robert J. Skandalaris and
Michael C. Azar
(b) if to Holdings at:
Noble Canada Holdings, Ltd.
c/o Nicholas Leblovic
Davies, Ward & Beck
1 First Canadian Place, 44th Floor
Toronto, Ontario M5X 1B1
Fax: (416) 863-0871
With a copy to:
Share Exchange Agreement (Tiercon), Page 8
<PAGE> 9
Noble International, Inc.
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
Fax: (248) 594-9501
Attention: Robert J. Skandalaris and
Michael C. Azar
(c) if to the Corporation at:
Noble Canada, Inc.
c/o Nicholas Leblovic
Davies, Ward & Beck
1 First Canadian Place, 44th Floor
Toronto, Ontario M5X 1B1
Fax: (416) 863-0871
With a copy to:
Noble International, Ltd.
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
Attn: Robert Skandalaris and Michael Azar
and in all of the above cases, with required additional copies to:
Jaffe, Raitt, Heuer & Weiss, Professional Corporation
One Woodward Avenue, Suite 2400
Detroit, Michigan 48226
Fax: (313) 961-8358
Attention: Peter Sugar
and
Davies, Ward & Beck
1 First Canadian Place, 44th Floor
Toronto, Ontario M5X 1B1
Fax: (416) 863-0871
Attention: Nicholas Leblovic
(d) if to Seller:
Wrayter Investments, Inc.
c/o R. Douglas S. Hunter
Gowling, Strathy & Henderson
Commerce Court West, Ste. 4900
Toronto, Ontario M5L 1J3
Share Exchange Agreement (Tiercon), Page 9
<PAGE> 10
Any notice or other communication given personally shall be deemed to
have been given and received upon delivery thereof unless such day is not a
Business Day or unless such notice or communication was not given during the
normal business hours of the recipient on such day in which case it shall be
deemed to have been given and received upon the immediately following Business
Day.
7.4 RISK OF PAYMENTS BY POST. Whenever payments are to be made or
documents are to be sent to any party, the making of such payment or sending of
such document sent through the post shall be at the risk of the party making the
payment or sending the document.
7.5 COUNTERPARTS. This Agreement and any amendments or supplements
thereto may be executed in counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
7.6 JURISDICTION. This Agreement shall be construed and enforced in
accordance with the laws of the State of Michigan applicable therein.
7.7 ATTORNMENT. Any action brought against Parent or any of its
Subsidiaries shall be brought exclusively in the Michigan or U.S. Federal Courts
located closest to Bloomfield Hills, Michigan.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
PARENT CORPORATION
NOBLE INTERNATIONAL, LTD. NOBLE CANADA, INC.
by ___________________________C.S. by ___________________________C.S.
Name: Name:
Title: Title:
SELLER HOLDINGS
WRAYTER INVESTMENTS INC. NOBLE CANADA HOLDINGS, LTD.
by ___________________________C.S. by ___________________________C.S.
Name: Name:
Title: Title:
Share Exchange Agreement (Tiercon), Page 10
<PAGE> 1
EXHIBIT 2.5
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of July 24, 1998 (this
"Agreement") by and among NOBLE INTERNATIONAL LTD., a Michigan corporation (the
"Company"), and WRAYTER INVESTMENTS, INC. ("Wrayter" or the "Securityholder").
RECITALS
A. Pursuant to a certain Share Exchange Agreement (the "Exchange
Agreement") entered into on July 24, 1998 by and between the Company, Noble
Canada Holdings Ltd., Noble Canada Inc., Tiercon Holdings Inc. ("Tiercon"), and
Wrayter, the Securityholder owns, or has the right to acquire, shares of the
common stock, no par value, of the Company (the "Common Stock").
B. Subject to the restrictions set forth in the Exchange Agreement,
upon the exercise of their right to exchange, the Securityholder shall have the
registration rights set forth in this Agreement.
C. The Company and the Securityholder are entering into this Agreement
to set forth the terms and conditions applicable to the registration rights
which the Company has agreed to provide to the Securityholder.
NOW, THEREFORE, the parties hereto agree as follows:
I. DEFINITIONS
1.1 Definitions. (a) In addition to the terms defined elsewhere herein,
the following terms have the following meanings when used herein with initial
capital letters:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with,
such Person. For the purposes of this definition, "control" when used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"AGREEMENT" means this Agreement, as the same may be amended from time
to time.
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized by law to remain
closed.
<PAGE> 2
"CHARTER" means the Certificate of Incorporation of the Company, as
amended from time to time.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means common stock, no par value, of the Company.
"DIRECTOR" means a member of the Board of Directors.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"INITIAL PUBLIC OFFERING" means the first Public Offering of Common
Stock of the Company.
"PERSON" means an individual, corporation, partnership, trust, limited
liability company, association or any other entity or organization, including
without limitation a government or political subdivision or an agency or
instrumentality thereof.
"PUBLIC OFFERING" means any primary or secondary public offering of
Common Stock of the Company pursuant to an effective registration statement
under the Securities Act, other than pursuant to a registration statement on
Form S-4 or Form S-8 or any successor or similar form.
<PAGE> 3
"REGISTRABLE SECURITIES" means, as the context requires, (a) with
respect to any Person holding Common Stock of the Company and entitled to
registration rights under the terms of this Agreement or any other agreement
with the Company, such shares of Common Stock and any additional shares of
Common Stock ("Additional Shares") subsequently paid, issued or distributed in
respect of such shares by way of stock dividend or distribution or stock split
or in connection with a combination of shares, recapitalization, reorganization,
merger, consolidation, pursuant to the Charter or otherwise, (b) with respect to
any Person holding options of the Company and entitled to registration rights
under the terms of this Agreement or any other agreement with the Company, the
Shares of Common Stock issuable upon exercise of such options and any Additional
Shares Issued in respect thereof, and (c) with respect to any Person holding
warrants or the Company and entitled to registration rights under the terms of
this Agreement or any other agreement with the Company, the shares of Common
Stock issuable upon exercise of such warrants and any Additional Shares issued
in respect thereof. Notwithstanding the foregoing, Registrable Securities will
cease to be Registrable Securities when and to the extent that (i) a
registration statement relating to such securities has been declared effective
under the Securities Act and such Registrable Securities have been disposed of
pursuant to such effective Registration Statement, (ii) such Registrable
Securities have been transferred to a party in violation of the Exchange
Agreement, (iii) such Registrable Securities have ceased to be outstanding, (iv)
such securities may be sold in a single transaction without registration
pursuant to Rule 144, or (v) such securities may be sold without registration
pursuant to Regulation S.
"REGISTRATION EXPENSES" means all (i) registration and filing fees with
the Commission, (ii) fees and expenses of compliance with state securities or
blue sky laws (including without limitation reasonable fees and disbursements of
a qualified independent underwriter, if any, counsel in connection therewith and
the reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) printing expenses, (iv)
internal expenses of the Company (including without limitation all salaries and
expenses of officers and employees performing legal or accounting duties), (v)
fees and expenses of counsel and independent public accountants for the Company,
(vi) fees and expenses of any additional experts retained by the Company in
connection with such registration, (vii) fees and expenses of listing the
Registrable Securities, if any, (viii) transfer taxes, and (ix) reasonable fees
and expenses of one counsel for the Securityholder, which counsel will be
selected by the Securityholder.
"REGULATION D" means Regulation D under the Securities Act.
"REGULATION S" means Regulation S under the Securities Act.
"RULE 144" means Rule 144 under the Securities Act, as such rule may be
amended from time to time.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITYHOLDER" means Wrayter Investments, Inc.
<PAGE> 4
"SHELF REGISTRATION" means a registration statement on the appropriate
form pursuant to Rule 415 tinder the Securities Act (or any successor rule that
may be adopted by the Commission).
"EXCHANGE AGREEMENT" means the Share Exchange Agreement dated as the
date hereof by and among the parties hereto and certain other Persons.
"TRANSFEREE" means any Person to whom the Securityholder transfers any
Common Stock (other than in a sale pursuant to an effective registration
statement under the Securities Act or without registration pursuant to Rule 144)
in accordance with the Exchange Agreement and who agrees in writing to be bound
by and to comply with all applicable provisions of this Agreement.
"UNDERWRITER" means a securities dealer who purchases any Registrable
Securities as a principal in connection with a distribution of such Registrable
Securities and not as part of such dealer's market-making activities.
II. REGISTRATION RIGHTS
2.1 Demand Registration.
(a) Subject to paragraphs (c), (d) and (e) of this Section
2.1, at any time and from time to time following the first anniversary
of the execution and delivery of the Exchange Agreement, the
Securityholder may make a written request for registration under the
Securities Act of all or part of the Registrable Securities (a "Demand
Registration"); provided, however, that:
(i) the Company will not be obligated to effect a
Demand Registration unless the aggregate value of the shares
proposed to be offered pursuant to a single registration by
the Securityholder equals or exceeds $500,000;
(ii) the Company will not be obligated to effect and
bear the cost of effecting a Demand Registration on more than
a total of one occasion; provided that if the Securityholder
or any other holders of Registrable Securities making a Demand
Registration agree to bear all administrative, filing and
professional costs of effecting such Demand Registration, then
the Company will be obligated to effect such Demand
Registration, but only on a total of one occasion; and
(iii) notwithstanding anything to the contrary in
clause (ii) above, the Company will not be obligated to effect
more than a total of two Demand Registrations.
Such request will specify the number of shares of Registrable Securities
proposed to be offered
<PAGE> 5
for sale by the Securityholder and will also specify the intended method of
disposition thereof.
(b) If, in connection with any Demand Registration, the
Company, the Securityholder or any other holders of Registrable
Securities exercising registration rights also desire to sell shares of
Common Stock and the managing Underwriter of such offering advises the
Company, and the Securityholder in writing that the total number of
shares requested to be so included in such registration exceeds the
number of shares of Common Stock which can be sold in such offering or
that the success or pricing of the offering would be materially and
adversely affected by the inclusion of all of the shares of Common
Stock requested to be so included, then the Company will include in
such registration (i) first, the Registrable Securities requested to be
included by the Securityholder and such other holders exercising
registration rights, allocated pro rata among them in accordance with
the number of Registrable Securities held by each of them so that the
total number of Registrable Securities to be included in such offering
for the account of all such Persons will not exceed the number
recommended by such managing Underwriter, (ii) second, the shares of
Common Stock the Company proposes to offer for sale, which number of
shares to be registered will be reduced to the extent necessary to
reduce the total number of shares to be included in such offering to
the number recommended by such managing Underwriter and (iii) third,
such number of other shares of Common Stock as the holders thereof
desire to offer for sale and the Company and the managing Underwriter
recommend be included in such offering.
(c) Notwithstanding the foregoing provisions of this Section
2.1, the Securityholder may not request a Demand Registration (i) if a
registration statement has been filed by the Company with the
Commission, unless such registration statement has been withdrawn or
has been effective for a period of at least 90 Calendar days, or (ii)
if an underwritten offering of Common Stock (whether for the account of
the Company or any other security holders) has been consummated within
the preceding nine months; provided, however, the limitations in
clauses (i) and (ii) of this sentence will not apply if the
Securityholder was not given the opportunity, in accordance with
Section 2.2, to include its Registrable Securities in the registration
statement described in clause (i) or the underwritten offering
described in clause (ii) (as applicable).
(d) Notwithstanding the foregoing provisions of this Section
2.1, the Securityholder will not have the right to initiate or demand a
registration hereunder unless it proposes to include therein
Registrable Securities which it believes in good faith to have a value
of at least $500,000.
(e) Notwithstanding the foregoing provisions of this Section
2.1, in the event the Company receives notice of a Demand Registration,
the Company may elect once, but only once, by written notice to the
Securityholder within 20 days after receipt of such notice, to proceed
with a registration of Common Stock for the Company's account in lieu
of proceeding with the Demand Registration, in which case the
provisions of Section 2.2 (and not this Section 2.1) will apply. If the
Company exercises the right described in the preceding sentence, the
Security Holders will not be deemed (for purposes of determining
<PAGE> 6
the number of future Demand Registrations that may be demanded under
the terms of this Agreement) to have exercised the right to request a
Demand Registration unless at least 80% of the Registrable Securities
that the Securityholder desired to include in such registration were
included pursuant to Section 2.2.
(f) The Securityholder shall be permitted to remove all or any
part of the Registrable Securities held by the Securityholder from any
Demand Registration at any time prior to the effective date of the
registration statement covering such Registrable Securities; provided,
however, if, as a result of the removal of such Registrable Securities,
such registration statement is withdrawn by the Company, such Demand
Registration shall nonetheless count as a Demand Registration for
purposes of determining the number or future Demand Registration, which
can be requested pursuant to Section 2.1(a) hereof, unless the
Securityholder reimburses the Company for all Registration Expenses
incurred by the Company in connection with such withdrawn Demand
Registration.
2.2 Piggyback Rights.
(a) If the Company proposes to file a registration statement
under the Securities Act with respect to an offering of any shares of
Common Stock (i) for its own account (other than a registration
statement on Form S-4 or S-8 (or any substitute form that may be
adopted by the Commission)) or (ii) for the account of any holder of
its securities having registration rights under the terms of this
Agreement or any other agreement with the Company, including without
limitation a Demand Registration, then the Company will give written
notice of such proposed offering to the Securityholder as soon as
practicable (provided that the Securityholder will be given such notice
not less than 20 calendar days prior to the deadline set by the Company
for electing to include Registrable Securities in such offering), and
such notice will offer such holders the opportunity, in accordance with
Section 2.2(b), to register such number of shares of Registrable
Securities as the Securityholder may request on the same terms and
conditions as the registration of the Company's or such other holders'
shares of Common Stock. If the Company so elects, the offering
contemplated by this Section 2.2 will be in the form of an underwritten
offering. The Company will select the managing Underwriter and any
additional Underwriter in connection with the offering.
(b) Whenever the Company proposes to file a registration
statement in accordance with Section 2.2(a), the Company will include
in such registration all Registrable Securities which the
Securityholder requests to be included therein; provided, however, that
if the managing Underwriter of an underwritten offering under this
Section 2.2 advises the Company and the Securityholder in writing that
the total number of shares requested to be included in such
registration exceeds the number of shares of Common Stock which can be
sold in such offering or that the success or pricing of the offering
would be materially and adversely affected by the inclusion of all of
the shares of Common Stock requested to be included, then (except in
the case of a Demand Registration, as to which Section 2.l(b) will
govern), the Company will include in such
<PAGE> 7
registration (i) first, the shares of Common Stock the Company proposes
to offer for sale for its own account, (ii) second, the Registrable
Securities requested to be included by the Securityholder and any other
holders of Registrable Securities exercising registration rights,
allocated pro rata among them in accordance with the number of
Registrable Securities held by each of them so that the total number of
Registrable Securities to be included in such offering for the account
of all such Persons will not exceed the number recommended by such
managing Underwriter, and (iii) third; such number of other shares of
Common Stock as the holders thereof desire to offer for sale and the
Company and the managing Underwriter recommend be included in such
offering.
(c) A request by the Securityholder to include Registrable
Securities in a proposed underwritten offering pursuant to this Section
2.2 will not be deemed to be a request for a Demand Registration
pursuant to Section 2.1.
2.3 Sale of Warrants to Underwriters. Notwithstanding anything in this
Agreement to the contrary (but subject to the last sentence of this Section
2.3), in the case of any offering subject to the provisions hereof which is an
underwritten offering, in lieu of exercising any warrant prior to or
simultaneously with the filing or the effectiveness of any registration
statement filed in connection therewith, the holder of such warrant may,
provided that the Company shall have been advised by the managing Underwriter
that such sale would not adversely affect the overall offering or pricing
thereof, sell such warrant or portion thereof to the underwriter or underwriters
of the offering being registered upon the undertaking of such underwriter or
underwriters to exercise such warrant or portion thereof before making any
distribution pursuant to such registration statement and to include the Common
Stock issued upon such exercise among the Registrable Securities being offered
pursuant to such registration statement. Subject to the next succeeding
sentence, the Company agrees to cause such Common Stock to be included among
tile Registrable Securities being offered pursuant to such registration
statement to be issued within such time as will permit such underwriter or
underwriters to make and complete the distribution contemplated by the
underwriting. In no event. however, shall the Company be required pursuant to
the provisions of this Section 2.3 to include in such registration statement
more shares of Common Stock than the holder of such warrant would otherwise be
entitled to include in such registration statement pursuant to the terms of this
Agreement.
III. REGISTRATION PROCEDURES
3.1 Filings: information. Whenever the Securityholder (the "Registering
Securityholder") requests that any Registrable Securities be registered pursuant
to Article II, the Company will use its best efforts to effect the registration
of such Registrable Securities to the extent required by Article II, as promptly
as is practicable, and in connection with any such request:
(a) The Company will as expeditiously as possible prepare and
file with the Commission a registration statement on any form for which
the Company then qualifies and which counsel for the Company deems
appropriate and available for the sale of the
<PAGE> 8
Registrable Securities to be registered thereunder in accordance with
the intended method of distribution thereof, and use its best efforts
to cause such filed registration statement to become and remain
effective for a period of not less than 90 calendar days or, if less,
the period required for such Registrable Securities to be sold;
provided, however, that if the Company furnishes to the Registering
Securityholder a certificate signed by the Company's Chief Executive
Officer stating that the Board of Directors has determined that it
would be materially detrimental or otherwise materially disadvantageous
to the Company or its stockholders (whether because of any proposed
material transaction or otherwise) for such a registration statement to
be filed as expeditiously as possible, the Company will have a period
of not more than 120 calendar days within which to file such
registration statement measured from the date of the Company's receipt
of the Registering Securityholder's request for registration;
(b) The Company will, if requested, prior to filing such
registration statement or any amendment or supplement thereto, furnish
to the Registering Securityholder and each applicable Underwriter, if
any, copies thereof, and thereafter furnish to the Registering
Securityholder and each such Underwriter, if any, such number of copies
of such registration statement, amendment and supplement thereto (in
each case including all exhibits thereto and documents incorporated by
reference therein) and the prospectus included in such registration
statement (including each preliminary prospectus) as the Registering
Securityholder of each such Underwriter may reasonably request in order
to facilitate the sale of the Registrable Securities;
(c) After the filing of the registration statement, the
Company will promptly notify the Registering Securityholder of any stop
order issued or, to the Company's knowledge, threatened to be issued by
the Commission or any state, securities agency or authority and take
all reasonable actions required to prevent the entry of such stop order
or to remove it if entered;
(d) The Company will endeavor to qualify the Registrable
Securities for offer and sale under such other securities or blue sky
laws of such jurisdictions in the United States as the Registering
Securityholder reasonably requests; provided, however, that the Company
will not be required to (i).qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this subsection (d), (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any
such jurisdiction;
(e) The Company will as promptly as is practicable notify the
Registering Securityholder, at any time when a prospectus relating to
the sale of the Registrable Securities is required by law to be
delivered in connection with sales by an Underwriter or dealer, of the
occurrence of any event requiring the preparation of a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not
<PAGE> 9
misleading and promptly make available to the Registering
Securityholder and to the Underwriters any such supplement or
amendment. The Registering Securityholder agrees that, upon receipt of
any notice from the Company of the occurrence of any event of the kind
described in the preceding sentence, the Registering Securityholder
will forthwith discontinue the offer and sale of Registrable Securities
pursuant to the registration statement covering such Registrable
Securities until receipt by the Registering Securityholder and the
Underwriters of the copies of such supplemented or amended prospectus
and, if so directed by the Company, the Registering Securityholder will
deliver to the Company all copies, other than permanent file copies
then in the Registering Securityholder possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt
of such notice. In the event the Company gives such notice, the Company
will extend the period during which such registration statement will be
effective as provided in Section 3.1(a) by the number of days during
the period from and including the date of the giving of such notice to
the date when the Company will make available to the Registering
Securityholder such supplemented or amended prospectus;
(f) The Company will enter into customary agreements
(including in the case of an underwritten offering an underwriting
agreement in customary form) and the Company and its officers will take
such other actions as are reasonably required in order to expedite or
facilitate the sale of such Registrable Securities, including
participation in any "road show" undertaken in connection with such
sale;
(g) The Company will furnish to the Registering Securityholder
and to each Underwriter a signed counterpart, addressed to the
Registering Securityholder or such Underwriter, of (i) an opinion or
opinions of counsel to the Company and (ii) a comfort letter or comfort
letters from the Company's independent public accountants, each in
customary form and covering such matters of the type customarily
covered by opinions or comfort letters, as the case may be, as the
Registering Securityholder or the managing Underwriter may reasonably
request;
(h) The Company will make generally available to its security
holders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
effective date of the registration statement, which earnings statement
will satisfy the provisions of Section 11(a) of the 1933 Act and the
rules and regulations either Commission thereunder;
(i) The Company will use its reasonable efforts to cause all
such Registrable Securities to be listed on each securities exchange on
which securities of the same class issued by the Company are then
listed;
(j) The Company may require the Registering Securityholder
promptly to furnish in writing to the Company such information
regarding the Registering Securityholder, the plan of distribution of
the Registrable Securities and other information as the Company may
from time to time reasonably request or as may be legally required in
connection with such registration. The furnishing of such information
<PAGE> 10
will be a condition to the Company's obligations hereunder;
(k) The Company will notify the Registering Securityholder,
its counsel and the managing underwriters, if any, as soon as possible
and (if requested by any such Person) confirm such notice in writing,
(i) when a prospectus relating to the Registrable Securities or any
prospectus supplement or post-effective amendment has been filed and,
with respect to a registration statement relating to the Registrable
Securities or any post-effective amendment, when the same has become
effective, (ii) of any request by the Commission for amendments or
supplements to a registration statement relating to the Registrable
Securities or related prospectus or for additional information, (iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement relating to the Registrable
Securities or the initiation of any proceedings for that purpose, (iv)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of any of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, and (v) of the Company's reasonable
determination that a post-effective amendment to a registration
statement relating to the Registrable Securities would be appropriate
or that there exist circumstances not yet disclosed to the public which
make further suits under such registration statement inadvisable
pending such disclosure and post-effective amendment;
(l) Upon the occurrence of any event contemplated by paragraph
(a) above, promptly prepare a supplement or post-effective amendment to
the registration statement relating to the Registrable Securities or
related prospectus or any document incorporated therein by reference or
file any other required document so that (i) such registration
statement will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) as
thereafter delivered to the purchasers of the registrable securities
being sold thereunder, such prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein in light of the circumstances
under which they were made, not misleading:
(m) Make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a registration statement
relating to the Registrable Securities, at the lifting at any
suspension of the qualification of any of the Registrable Securities
for sale in any jurisdiction, at the earliest possible moment;
(n) (i) If reasonably requested by the managing underwriter or
any Registering Securityholder, promptly incorporate in a prospectus
supplement or post-effective amendment such information concerning such
Registering Securityholder, the managing underwriter or underwriters or
the intended method of distribution as the managing underwriter or
underwriters or the Registering Securityholder reasonably requests to
be included therein and as is appropriate in the reasonable judgment of
the Company including, without limitation, information with respect to
the number of shares of the Registrable Securities being sold to such
underwriter or underwriters, the purchase price being paid therefor by
such underwriter or underwriters, the purchase price
<PAGE> 11
being paid therefor by such underwriter or underwriters and with
respect to any other terms of the underwritten (or best efforts
underwritten) offering of the Registrable Securities to be sold in such
offering; and (ii) make all required filings of such prospectus
supplement or post-effective amendment as promptly as practicable after
being notified of the matters to be incorporated therein;
(o) Furnish to each Registering Securityholder and each
managing underwriter, if any, without charge, one manually signed copy
of the registration statement relating to the Registrable Securities
and any post-effective amendments thereto, including financial
statements and schedules and, upon request, all documents incorporated
therein by reference and all exhibits (including those incorporated by
reference);
(p) Provide a transfer agent and registrar for the Registrable
Securities not later than the effective date of the registration
statement relating to the Registrable Securities.
3.2 Registration Expenses. Registration Expenses incurred in connection
with any registration made or requested to be made pursuant to Article II will
be borne by the Company, whether or not any such registration statement becomes
effective, to the extent permitted by applicable law. The Registering
Securityholder will pay, on a pro rata basis, any underwriting fees, discounts
or commissions attributable to the sale of the Registrable Securities.
3.3 Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Registering Securityholder, its officers, directors, members,
managers and agents, and each Person, if any, who controls each such Registering
Securityholder within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act from and against any and all losses, claims, damages,
liabilities and expenses caused by any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus relating to the Registrable Securities (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
furnished in writing to the Company by or on behalf of such Registering
Securityholder expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus will not inure to
the benefit of any Registering Securityholder if a copy of the current
prospectus was not provided, in the manner required by applicable regulations,
to the applicable purchaser by such Registering Securityholder and such current
copy of the prospectus would have cured the defect giving rise to such loss,
claim, damage, liability or expenses. The Company also agrees to indemnify any
Underwriters of the Registrable Securities, their officers and directors and
each Person who controls such underwriters on substantially the same basis as
that of the indemnification of the Registering Securityholder provided in this
Section 3.3.
<PAGE> 12
3.4 Indemnification by Registering Securityholder. Each Registering
Securityholder registering shares pursuant to Article II agrees, severally but
not jointly, to indemnify and hold harmless the Company, its officers and
Directors and each Person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Registering
Securityholder, but only with reference to information related to such
Registering Securityholder furnished in writing by or on behalf of such
Registering Securityholder expressly for use in any registration statement of
prospectus relating to the Registrable Securities, or any amendment or
supplement thereto or any preliminary prospectus; provided, however. that in no
event will the liability of any Registering Securityholder under this Section
3.4 be greater in amount than the dollar amount of the proceeds received by such
holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation. Each such Registering Securityholder also agrees to
indemnify and hold harmless any Underwriters of the Registrable Securities,
their officers and directors and each Person who controls such Underwriters on
such terms as provided for in underwriting agreement relating to such offering.
3.5 Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) is instituted involving any person in
respect of which indemnity may be sought pursuant to Section 3.3 or Section 3.4,
such Person will promptly notify the Person against whom such indemnity may be
sought in writing and the indemnifying party upon request of the indemnified
party will retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and will pay the fees and disbursements of such
counsel related to the proceeding; provided, however, that the failure to so
notify the indemnifying Person shall not relieve the indemnifying party from any
liability that it may otherwise have to such indemnified Person, except to the
extent the indemnifying Person shall have been materially prejudiced by such
failure. In any such proceeding, any indemnified party will have the right to
retain its own counsel, but the fees and expenses of such counsel will be at the
expense of such indemnified party unless (a) the indemnifying party and the
indemnified party have mutually agreed to the retention of such counsel or (b)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnified party and the indemnifying party and representation
of both parties by the same counsel would be inappropriate due to actual of
potential differing interests between them, in which case the fees and expenses
of such counsel will be paid by the Company. It is understood that the
indemnifying party will not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for all such indemnified parties, and that all such
reasonable fees and expenses will be reimbursed as they are incurred. In the
case of the retention of any such separate firm for the indemnified parties,
such firm will be designated in writing by the indemnified parties. The
indemnifying party will not be liable for any settlement or any proceeding
effected without its consent, but if settled with such consent, or if there be a
final judgment for the plaintiff, the indemnifying party will indemnify and hold
harmless such indemnified parties from and against any loss or liability (to the
extent stated above) by reason of such settlement or judgment.
<PAGE> 13
3.6 Contribution.
(a) If the indemnification provided for herein is for any
reason unavailable to the indemnified parties in respect of any losses,
claims, damages or liabilities referred to herein, then each such
indemnifying party, in lieu of indemnifying such indemnified party,
will contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the
Company, the Registering Securityholder and any Underwriter in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault of the Company, the
Registering Securityholder and the Underwriter will be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by such party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(b) The Company and each Registering Securityholder agree that
it would not be just and equitable if contribution pursuant to this
Section 3.6 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding subsection. The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the immediately
preceding subsection will be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 3.6, no Registering Securityholder will be required to
contribute any amount by reason of such untrue or alleged untrue
statement or omission or alleged omission in excess of the amount
received by such Registering Securityholder upon the sale of the
Registrable Securities giving rise to such contribution obligation. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation.
3.7 Participation in Underwritten Registrations. Notwithstanding any
other provision of this Agreement, no Person may participate in any underwritten
registration hereunder unless such Person (a) agrees to sell such Person's
securities on the basis provided in any reasonable underwriting arrangements
approved by the Company or other Persons entitled hereunder to approve such
arrangements and (b) completes and executes all customary questionnaires, powers
of attorney, indemnities, underwriting agreements, "lock-up" agreements and
other documents reasonably required under the terms of such underwriting
arrangements and these registration rights.
3.8 Rule 144. The Company will file any reports required to be filed by
it under the Securities Act and the Exchange Act and will take such further
action as any Securityholder may reasonably request to the extent required from
time to time to enable the Securityholder to sell
<PAGE> 14
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 under the Exchange Act, as
such Rule may be amended from time to time, or other appropriate rule or
regulation adopted by the Commission. Upon the request of any Securityholder,
the Company will deliver to the Securityholder a written statement as to whether
the Company has complied with such reporting requirements.
3.9 Restrictions on Public Sale by Holders of Registrable Securities.
(a) If and to the extent requested by the managing Underwriter
or Underwriters in the case of an underwritten Public Offering, each of
the Securityholder agrees not to effect, except as part of such
registration, any sale of the shares of Common Stock or a similar
security of the Company, or any securities convertible into or
exchangeable or exercisable for such securities during such time period
(not to exceed 180 days) to which the Company agrees not to effect any
sale of securities in connection therewith, or to which the Registering
Securityholder agrees if the Company does not include any securities
therein. In addition, each of the Securityholder agrees to execute any
customary lock-up agreement reasonably requested by the managing
Underwriter to confirm its agreement in accordance with the preceding
sentence, but only if identical lock-up agreements are required of all
Securityholder.
(b) Nothing in this Agreement will diminish or otherwise
affect the restrictions on transfer contained in the Securityholder
Agreement.
3.10 Representation Concerning Future Registration Rights. Nothing in
this Agreement shall be deemed to limit in any way the right of the Company to
grant registration rights on the Company=s securities to any person at any time
prior to or subsequent to the execution of this Agreement.
IV. MISCELLANEOUS
4.1 Headings. The headings in this Agreement are for convenience of
reference only and will not control or affect the meaning or construction of any
provisions hereof.
4.2 Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter of this Agreement. This
Agreement supersedes all prior agreements and understandings, both oral and
written, among the parties with respect to the subject matter of this Agreement.
This Agreement is not intended to confer upon any Person other than the parties
hereto and thereto any rights or remedies hereunder or thereunder.
4.3 Notices. Any notice, request, instruction or other document
required or permitted to be given hereunder by any party hereto to another party
hereto will be in writing and will be given to such party at its address set
forth in Annex I attached hereto, with, in the case of the Company, a copy sent
to the Company's Secretary at the Company's principal executive offices or to
such other address as the party to whom notice is to be given may provide in a
written
<PAGE> 15
notice to the party giving such notice, a copy of which written notice will be
on file with the Secretary of the Company. Each such notice, request or other
communication will be effective (a) if given by certified mail, 96 hours after
such communication is deposited in the mails with certified postage prepaid
addressed as aforesaid, (b) one Business Day after being furnished to a
nationally recognized overnight courier for next Business Day delivery, and (c)
on the date sent if sent by electronic facsimile transmission, receipt
confirmed.
4.4 Governing Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of Michigan without regard to the
conflict of laws rules of such state, and the laws of the United States.
4.5 Severability. The invalidity or unenforceability of any provisions
of this Agreement in any jurisdiction will not affect the validity, legality or
enforceability of the remainder of this Agreement in such jurisdiction or the
validity, legality or enforceability of this Agreement, including any such
provision, in any other jurisdiction, it being intended that all rights and
obligations of the parties hereunder will be enforceable to the fullest extent
permitted by law.
4.6 Termination. All other rights and obligations hereunder will extend
and continue to apply until such time as all Registrable Securities may be
offered and sold without registration under the Securities Act. The provisions
of Sections 3.3, 3.4. 3.5 and 3.6 shall survive any termination of this
Agreement.
4.7 Successors, Assigns and Transferees.
(a) The provisions of this Agreement will be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted transferees. Except as expressly contemplated
hereby, neither this Agreement nor any provision hereof will be
construed so as to confer any right or benefit upon any Person other
than the parties to this Agreement and their respective successors and
permitted assigns.
4.8 Amendments; Waivers.
(a) No failure or delay on the part of any party in exercising
any right, power or privilege hereunder will operate as a waiver
thereof, nor will any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein provided will be
cumulative and not exclusive of any rights or remedies provided by law.
(b) Neither this Agreement nor any term or provision hereof
may be amended or waived except by an instrument in writing signed by
the Company and the Securityholder owning a majority of the Registrable
Securities then held by such other Securityholder and entitled to the
benefits of this Agreement.
<PAGE> 16
4.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be an original with the same effect as if the
signatures thereto and hereto were upon the same instrument.
4.10 Remedies. The parties hereby acknowledge that money damages would
not be adequate compensation for the damages that a party would suffer by reason
of a failure of any other party to perform any of the obligations under this
Agreement. Therefore, each party hereto agrees that specific performance is the
only appropriate remedy under this Agreement and hereby waives the claim or
defense that any other party has an adequate remedy at law.
4.11 Consent to Jurisdiction. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of any court located in Oakland County,
Michigan or the United States Federal Court sitting in the Eastern District of
Michigan (including any appellate court therefrom) over any suit, action or
proceeding arising out of or relating to this Agreement. Each of the parties
hereto consents to process being served in any such suit, action or proceeding
by serving a copy thereof upon the agent for service of process, provided that
to the extent lawful and possible, written notice of such service will also be
mailed to such party, as the case may be. Each of the parties hereto agrees that
such service will be deemed in every respect effective service of process upon
such party hereto, in any such suit, action or proceedings, and will be taken
and held to be valid personal service upon such party. Nothing in this
subsection will affect or limit any right to serve process in any manner
permitted by law, to bring proceedings in the courts of any jurisdiction or to
enforce in any lawful manner a judgment obtained in one jurisdiction in any
other jurisdiction. Each of the parties hereto waives any right it may have to
assert the doctrine of forum non conveniens or to object to venue to the extent
any proceeding is brought in accordance with this Section 4.11. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
NOBLE INTERNATIONAL, LTD.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
WRAYTER INVESTMENTS, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
<PAGE> 1
EXHIBIT 4.1
================================================================================
NOBLE INTERNATIONAL, LTD.
and
AMERICAN STOCK TRANSFER AND TRUST COMPANY
as Trustee
------------------------------------
INDENTURE
Dated as of July 23, 1998
------------------------------------
$40,000,000
6% Convertible Subordinated
Debentures due 2005
================================================================================
<PAGE> 2
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. Definitions.................................................. 1
Section 1.02. Compliance Certificates and Opinions......................... 13
Section 1.03. Form of Documents Delivered to the
Trustee...................................................... 14
Section 1.04. Acts of Holders of Securities................................ 15
Section 1.05. Notices, etc., to Trustee and Company........................ 16
Section 1.06. Notice to Holders of Securities; Waiver...................... 16
Section 1.07. Effect of Headings and Table of
Contents..................................................... 17
Section 1.08. Successors and Assigns....................................... 17
Section 1.09. Separability Clause.......................................... 17
Section 1.10 Benefits of Indenture........................................ 17
Section 1.11. Governing Law................................................ 18
Section 1.12. Legal Holidays............................................... 18
Section 1.13. Execution in Counterparts.................................... 18
ARTICLE II
THE SECURITIES
Section 2.01. Title, Terms................................................. 18
Section 2.02. Denominations................................................ 19
Section 2.03. Execution, Authentication, Delivery and Dating............... 19
Section 2.04. Form......................................................... 19
Section 2.05. Registration, Registration of Transfer and Exchange
Restrictions on Transfer..................................... 21
Section 2.06. Mutilated, Destroyed, Lost or Stolen Securities.............. 23
Section 2.07. Payment of Interest, Interest Rights Preserved............... 24
Section 2.08. Persons Deemed Owners........................................ 26
Section 2.09. Cancellation................................................. 26
Section 2.10 Computation of Interest...................................... 26
Section 2.11. ISIN and Common Code Numbers................................. 26
ARTICLE III
DEFAULTS, REMEDIES
Section 3.01. Events Of Default............................................ 27
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Section 3.02. Acceleration................................................. 29
Section 3.03. Other Remedies............................................... 29
Section 3.04. Waiver of Past Defaults...................................... 30
Section 3.05. Application of Money Collected............................... 30
Section 3.06. Limitation on Suits.......................................... 30
Section 3.07. Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert.......................... 31
Section 3.08. Restoration of Rights and Remedies........................... 31
Section 3.09. Rights and Remedies Cumulative............................... 32
Section 3.10. Control by Holders of Securities............................. 32
Section 3.11. Undertaking for Costs........................................ 32
Section 3.12. Waiver of Stay or Extension Laws............................. 33
Section 3.13. Collection Suit by Trustee................................... 33
Section 3.14. Trustee May File Proofs of Claim............................. 33
ARTICLE IV
THE TRUSTEE
Section 4.01. Certain Duties And Responsibilities.......................... 33
Section 4.02. Notice of Defaults........................................... 35
Section 4.03. Certain Rights of Trustee.................................... 35
Section 4.04. Not Responsible for Recitals or Issuance of Securities....... 36
Section 4.05. May Hold Securities, Act as Trustee
Under Other Indentures....................................... 36
Section 4.06. Money Held in Trust.......................................... 36
Section 4.07. Compensation and Reimbursement............................... 37
Section 4.08. Corporate Trustee Required; Eligibility;
Disqualification; Conflicting Interest....................... 37
Section 4.09. Resignation and Removal; Appointment of Successor............ 38
Section 4.10 Acceptance of Appointment by Successor....................... 39
Section 4.11. Merger, Conversion, Consolidation or Succession to Business.. 40
Section 4.12. Authenticating Agents........................................ 40
ARTICLE V
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 5.01. Company May Consolidate, Etc. Only on Certain Terms.......... 41
Section 5.02. Successor Substituted........................................ 42
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ARTICLE VI
SUPPLEMENTAL INDENTURE
Section 6.01. Supplemental Indentures without Consent of
Holders of Securities........................................ 43
Section 6.02. Supplemental Indentures with Consent of
Holders of Securities........................................ 43
Section 6.03. Execution of Supplemental Indentures......................... 45
Section 6.04. Effect of Supplemental Indentures............................ 45
Section 6.05. Notation on or Exchange of Securities........................ 45
Section 6.06. Notice of Supplemental Indentures............................ 45
ARTICLE VII
MEETINGS OF HOLDERS OF SECURITIES
Section 7.01. Purposes for which Meetings May Be Called.................... 45
Section 7.02. Call, Notice and Place of Meeting............................ 46
Section 7.03. Persons Entitled to Vote at Meetings......................... 46
Section 7.04. Quorum; Action............................................... 46
Section 7.05. Determination of Voting Rights; Conduct
and Adjournment of Meetings.................................. 47
ARTICLE VIII
COVENANTS
Section 8.01. Payment Covenant............................................. 48
Section 8.02. Maintenance of Office or Agency.............................. 48
Section 8.03. Money for Security Payments to be Held in Trust.............. 49
Section 8.04. Additional Amounts........................................... 51
Section 8.05. Payment of Taxes and Other Claims............................ 52
Section 8.06. Statement by Officers as to Default.......................... 52
Section 8.07. Books and Records............................................ 53
Section 8.08. Maintenance of Insurance..................................... 53
Section 8.09. Maintenance of Corporate Existence, Properties, Etc.......... 53
Section 8.10 Type of Business............................................. 54
Section 8.11. Investments.................................................. 54
Section 8.12. Use of Proceeds.............................................. 54
Section 8.13. Dividends, Etc............................................... 54
Section 8.14. Compliance with Laws, Etc.................................... 55
Section 8.15. Transactions with Affiliates................................. 55
Section 8.16. Limitation on Liens.......................................... 55
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ARTICLE IX
REDEMPTION
Section 9.01. Selection of Securities to be Redeemed....................... 55
Section 9.02. Notice Of Redemption......................................... 56
Section 9.03. Effect of Notice of Redemption............................... 57
Section 9.04. Deposit of Redemption Price.................................. 57
Section 9.05. Securities Redeemed in Part.................................. 57
Section 9.06. Payment of Redemption Price.................................. 57
ARTICLE X
CONVERSION
Section 10.01. Conversion Right............................................. 58
Section 10.02. Conversion Privilege......................................... 58
Section 10.03. Partial Conversion........................................... 59
Section 10.04. Fractions of Shares.......................................... 60
Section 10.05. Taxes on Conversions......................................... 60
Section 10.06. Adjustment of Conversion Price............................... 60
Section 10.07. No Adjustment Under Certain Circumstances.................... 66
Section 10.08. Other Adjustments............................................ 66
Section 10.09. Adjustments For Tax Purposes................................. 66
Section 10.10 Notice of Adjustment......................................... 67
Section 10.11. Notice Of Certain Transactions............................... 67
Section 10.12. Effect Of Reclassifications, Consolidations, Mergers Or
Sales of Assets.............................................. 67
Section 10.13. Company to Reserve Common Stock.............................. 69
ARTICLE XI
SUBORDINATION
Section 11.01. Securities Subordinate to Senior Indebtedness................ 69
Section 11.02. Payment Over of Proceeds Upon Dissolution, Etc............... 69
Section 11.03. Default on Senior Indebtedness............................... 70
Section 11.05. Subrogation to Rights of Holders of Senior Indebtedness...... 72
Section 11.06. Provisions Solely to Define Relative Rights.................. 72
Section 11.07. Trustee to Effectuate Subordination.......................... 73
Section 11.08. No Waiver of Subordination Provisions........................ 73
Section 11.09. Notice to Trustee............................................ 74
Section 11.10. Reliance on Judicial Order or Certificate of
Liquidating Agent............................................ 74
Section 11.11. Trustee Not Fiduciary for Holders of
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Senior Indebtedness.......................................... 75
Section 11.12. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights............................. 75
Section 11.13. Article X Applicable to Paying Agents........................ 75
ARTICLE XII
REPURCHASE ON CHANGE IN CONTROL
Section 12.01. Right To Require Repurchase.................................. 75
Section 12.02. Notices; Method Of Exercising Purchase Right, Etc............ 76
ARTICLE XIII
SATISFACTION AND DISCHARGE
OF INDENTURE; DEPOSITED MONEYS
Section 13.01. Satisfaction and Discharge of Indenture...................... 78
Section 13.02. Application by Trustee of Funds Deposited for
Payment of Securities........................................ 79
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INDENTURE, dated as of July 23, 1998, between NOBLE
INTERNATIONAL, LTD. a Michigan corporation (the "Company"), and AMERICAN STOCK
TRANSFER AND TRUST COMPANY, a New York limited purpose trust company, as Trustee
hereunder (the "Trustee").
RECITALS OF THE COMPANY
A. The Company has duly authorized the creation of an issue of
its 6% Convertible Subordinated Debentures due 2005 (the "Securities") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
B. All things necessary to make the Securities, when the
Securities are executed by the Company and authenticated and delivered
hereunder, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done. Further, all things necessary to duly authorize the issuance of the
Common Stock of the Company issuable upon the conversion of the Securities, and
to duly reserve for issuance the number of shares of Common Stock (as defined
herein) issuable upon such conversion, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural
as well as the singular;
(b) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with
GAAP;
(c) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture as a
<PAGE> 8
whole and not to any particular Article, Section or other subdivision;
(d) "or" is not exclusive; and
(e) unsecured indebtedness shall not be deemed to
be subordinate or junior to secured indebtedness merely by virtue
of its nature as unsecured indebtedness.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 1.04(a).
"Acquisition Indebtedness" means Indebtedness of the Company
and/or any Company Subsidiary payable to any Person in connection with an
Acquisition from such Person, regardless of whether such Indebtedness was
created, incurred or assumed by the Company and/or such Company Subsidiary. As
used in the foregoing definition, "Acquisition" means (a) an investment by the
Company or any Company Subsidiary in any other Person pursuant to which such
Person shall become a Company Subsidiary, whether by capital contribution to
such Person or the acquisition of capital stock or other securities issued by
such Person, or (b) any Person shall be merged with and into the Company or any
Company Subsidiary, or any Company Subsidiary shall merge with and into any
other Person (not a Company Subsidiary) pursuant to which such Person shall
become a Company Subsidiary, or (c) the acquisition by the Company or any
Company Subsidiary of the assets of any Person which constitute all or
substantially all of the assets of such Person or any division or line of
business of such Person.
"Additional Amounts" has the meaning specified in the forms of
Security attached hereto as Exhibits A and B.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AMEX" means the American Stock Exchange.
"Applicable Procedures" means, with respect to any transfer or
exchange of beneficial interests in a Global Security, the rules and procedures
of EUROCLEAR or CEDEL and of the Depositary as in effect from time to time, in
each case, to the extent applicable to such transfer or exchange.
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<PAGE> 9
"Authorized Newspaper" means, so long as the Securities are
listed on a securities exchange and such exchange so requires, a newspaper
published in the city in which such securities exchange is located; provided
that publication in London, England shall be in the Financial Times and for so
long as the Securities are listed on the Luxembourg Stock Exchange, "Authorized
Newspaper" shall include the Luxembourg Wort; provided, further, that if,
because of temporary or permanent suspension of publication or general
circulation of any newspaper or for any other reason, it is impossible or, in
the opinion of the Trustee, impracticable to make reasonable publication of any
notice required herein in a newspaper published in the city in which the
securities exchange is located, then "Authorized Newspaper" shall mean any
publication in an English language newspaper of general circulation in Western
Europe.
"Bankruptcy Law" has the meaning specified in Section
3.01.
"Board of Directors" means either the board of directors of the
Company or any committee of such board.
"Board Resolution" means a resolution duly adopted by the Board
of Directors, a copy of which, certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification, shall have
been delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
Place of Conversion or any other place, as the case may be, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in such Place of Payment, Place of Conversion or other place, as
the case may be, are authorized or obligated by law or executive order to close.
"cash" means such currency of The United States of America as at
the time payment is legal tender for the payment of public and private debts.
"CEDEL" has the meaning specified in Section 2.04(b).
"Change in Control" has the meaning specified in the forms of
Security attached hereto as Exhibits A and B.
"Change in Control Purchase Notice" has the meaning
specified in Section 12.02(a).
"Code" has the meaning specified in Section 2.04(a).
"Commission" means the United States Securities and
Exchange Commission.
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<PAGE> 10
"Common Stock" or "Shares" means the common stock, without par
value, of the Company as authorized by the Company's articles of incorporation,
as amended from time to time. Subject to the provisions of Section 10.12, shares
issuable on conversion of Securities shall include only shares of Common Stock
or shares of any class or classes of common stock resulting from any
reclassification or reclassifications thereof; provided, however, that if at any
time there shall be more than one such resulting class, the shares so issuable
on conversion of Securities shall include shares of all such classes, and the
shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"common stock" includes any stock of any class of capital stock
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the issuer thereof and which is not subject to redemption by the issuer thereof.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Notice" has the meaning specified in Section
12.02(a).
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by an Officer and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Company Subsidiaries" means all entities of which the Company
beneficially owns, directly or indirectly, 50% or more of the total voting power
of shares of capital stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors thereof which is at the time
owned or controlled, directly or indirectly, by the Company or one or more other
Company Subsidiaries or a combination thereof.
"Conversion Agent" means any Person authorized by the Company to
convert Securities in accordance with Article X. The Company has initially
appointed the Trustee as its principal Conversion Agent and Banque
Internationale a Luxembourg S.A., located at 69, route d'Esch, L-2953
Luxembourg, as its Luxembourg Conversion Agent.
"Contractual Obligation" of any Person means any provision of any
agreement, instrument, Security or undertaking
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<PAGE> 11
to which such Person is a party or by which it or any of the property owned by
it is bound.
"Conversion Date" has the meaning set forth in Section
10.02.
"Conversion Price" has the meaning set forth in Section
10.01.
"Conversion Notice" has the meaning set forth in
Section 10.02.
"Conversion Shares" has the meaning set forth in
Section 10.01.
"Convertible Securities" has the meaning set forth in
Section 10.06(d)(1).
"Corporate Trust Office" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered (which at the date of this Indenture is located at 40 Wall Street,
New York, New York 10005).
"corporation" means a corporation, company or similar
association, including, without limitation, a limited liability company,
association, joint-stock company or business trust.
"current market price per share" has the meaning set
forth in Section 10.06(b).
"Custodian" has the meaning specified in Section 3.01.
"Daily Closing Price" of shares of Common Stock of the Company or
any other issuer for a day shall mean the last reported sales price, regular
way, or, in case no sale takes place on such day, the average of the reported
closing bid and asked prices, regular way, in either case as reported on the
AMEX or, if such security is not listed or admitted to trading on the AMEX, on
the principal national securities exchange on which such security is listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the NASDAQ National Market System or, if such security
is not quoted on such National Market System, the average of the closing bid and
asked prices on each such day in the over-the-counter market as reported by
NASDAQ or, if bid and asked prices for such security on each such day shall not
have been reported through NASDAQ, the average of the bid and asked prices of
such day as furnished by any New York Stock Exchange member firm regularly
making a market in such security reasonably selected for such purpose in good
faith by the Board of Directors of the Corporation or a committee thereof. If
the Common Stock or other class of capital stock or security in question is not
publicly
5
<PAGE> 12
held, or so listed, or publicly traded, "Daily Trading Price" shall mean the
amount which a willing buyer would pay a willing seller in an arm's length
transaction as determined by an independent investment banking or appraisal firm
experienced in the valuation of such securities or property selected in good
faith by the Board of Directors or a committee thereof.
"Default" means any event that is or, with the passage of time or
the giving of notice or both, would be an Event of Default.
"Defaulted Interest" has the meaning specified in
Section 2.07.
"Definitive Security" means any Security issued in substantially
the form set forth in Exhibit B hereto.
"Depositary" means has the meaning specified in Section
2.04(b).
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender for
the payment of public and private debts.
"EUROCLEAR" has the meaning specified in Section
2.04(b).
"Event of Default" has the meaning specified in Section
3.01.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended from time to time.
"Final Closing Date" means the last date on which a sale of
Securities is consummated pursuant to the Offering Memorandum.
"Fractional Principal Amount" has the meaning set forth
in Section 2.07.
"GAAP" means generally accepted accounting principles set forth
in the opinions of the Accounting Principles Board of the American Institute of
Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board or such other statements by any such other
entity as may be approved by a significant segment of the accounting profession
in the United States, and which are applicable to the circumstances as of the
date of this Indenture.
"Global Security" means any Security issued in substantially the
form set forth in Exhibit A hereto.
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<PAGE> 13
"Holder" means the Person in whose name the Security is
registered in the Security Register.
"Indebtedness" has the meaning specified in Section
3.01.
"Independent Director" means a Person serving as a member of the
Board of Directors who is not an officer or employee of the Company or a Company
Subsidiary or owner, directly or through an Affiliate of such Person, of in
excess of 5% of the outstanding Common Stock of the Company or a Company
Subsidiary or who has a relationship with the Company or a Company Subsidiary
that would interfere with the exercise of independent judgment in carrying out
the responsibilities of a director, including, without limitation, any Person
who is a party directly or indirectly to a material agreement or transaction or
series of transactions with the Company or a Company Subsidiary.
"Indenture" means this indenture as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Closing Date" means the first date on which a sale of
Securities is consummated pursuant to the Offering Memorandum.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Interest Period" has the meaning specified in
Exhibit B.
"Lien" means any mortgage, pledge, security interest, security
deposit, encumbrance, lien or charge of any kind, including any agreement to
give any of the foregoing, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or agreement to
give any financing statement under the Uniform Commercial Code of any United
States jurisdiction.
"Luxembourg Stock Exchange" means the Bourse de
Luxembourg.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, exercise of the repurchase right set forth in
Article XII or otherwise.
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<PAGE> 14
"Offering Memorandum" means the final Offering Memorandum dated
July 23, 1998 pursuant to which the Securities were initially offered and sold.
"Officer" means any of the following officers of the
Company: the President, the Chief Executive Officer, Chief Operating Officer, a
Vice President or the Chief Financial Officer.
"Officers' Certificate" means a certificate signed by an Officer
and the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee, provided that if the
Treasurer, Assistant Treasurer, the Secretary or an Assistant Secretary of the
Company proposing to sign such Officer's Certificate has also signed such
Certificate in his or her capacity as an Officer, then, such Certificate shall
be signed by a Person serving as the Treasurer, Assistant Treasurer, the
Secretary or Assistant Secretary who is not the signatory Officer.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for, or an employee of, the Company and who shall be acceptable to
the Trustee.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for the payment or redemption of which money in
the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided that if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 2.12,
or in exchange for, or in lieu of, which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company);
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities are present
8
<PAGE> 15
at a meeting of Holders of Securities for quorum purposes or have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such determination as to the presence of a quorum
or upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of, premium, if any, or interest on (including Additional
Amounts), any Securities on behalf of the Company and, except as otherwise
specifically set forth herein, such term shall include the Company if it shall
act as its own Paying Agent. The Company has initially appointed the Trustee as
its principal Paying Agent and Banque International a Luxembourg S.A., located
at 69, route d'Esch, L-2953 Luxembourg, as its Luxembourg Paying Agent.
"Payment Date" has the meaning specified in
Section 2.12.
"Permitted Junior Securities" means securities of the Company or
any other corporation that are equity securities or are subordinated in right of
payment to all Senior Indebtedness that may at the time be outstanding to
substantially the same extent as, or to a greater extend than, the Securities
are so subordinated as provided in Article XI.
"Person" means any individual, corporation, partnership, joint
venture, trust, estate, unincorporated organization or government or any agency
or political subdivision thereof.
"PIK Payment Period" means the period commencing on the Initial
Closing Date and expiring on July 31, 2001.
"PIK Securities" means additional Securities issued by the
Company on each Interest Payment Date during the PIK Payment Period, in lieu of
cash interest that would otherwise be paid on such Interest Payment Date, in an
aggregate principal amount equal to the amount of such cash interest, which PIK
Securities shall be identical to the Securities issued on the Initial Closing
Date or the Final Closing Date, except that such PIK Securities shall be dated
the Interest Payment Date as of which
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<PAGE> 16
they were issued and shall bear interest from their date of issuance.
"Place of Conversion" means any city in which any
Conversion Agent is located.
"Place of Payment" means any city in which any Paying
Agent is located.
"Placement Agents" means BlueStone Capital Partners,
L.P. and Robert Fleming & Co. Limited.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 2.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Payment Date" has the meaning set forth in the forms
of Securities set forth as Exhibits A and B hereto.
"Principal Payment Record Date," for principal payable in respect
of any Security on any Principal Payment Date, means the January 15 or July 15
(whether or not a Business Day), as the case may be, next preceding such
Principal Payment Date.
"Purchase Date" has the meaning specified in
Section 12.01.
"Purchase Price" has the meaning specified in
Section 12.01.
"Record Date" means any Regular Record Date or Special
Record Date.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Rights Agreement" has the meaning specified in the
forms of Securities attached hereto as Exhibits A and B.
"Regular Record Date," for interest payable in respect of any
Security on any Interest Payment Date, means the January
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<PAGE> 17
15 or July 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date.
"Representative" means any trustee, agent or representative (if
any) for an issue of Senior Indebtedness of the Company.
"Requirements of Law" for any Person means the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property to or
which such Person or any of its property is subject.
"Repurchase Right" has the meaning specified in
Section 12.01.
"Responsible Officer", when used with respect to the Trustee,
means any officer within the Corporate Trust Administration (or any successor
group) of the Trustee, including, without limitation, any vice president,
assistant vice president, assistant secretary, corporate trust officer,
assistant corporate trust officer or other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge and
familiarity with the particular subject.
"Securities" has the meaning ascribed to it in the first
paragraph under the caption "Recitals of the Company" and also includes, unless
the context otherwise requires, PIK Securities issued hereunder from time to
time during the PIK Payment Period.
"Securities Act" means the United States Securities Act of 1933,
as amended from time to time.
"Security Register" has the meaning specified in
Section 2.05.
"Security Registrar" or "Registrar" has the meaning
specified in Section 2.05.
"Senior Indebtedness" means without duplication, (i) the
principal of, and premium (if any), unpaid interest and fees on, all present and
future (a) obligations incurred by the Company and/or any of the Company
Subsidiaries (whether as borrower or guarantor) under or pursuant to any loan or
credit agreement between
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<PAGE> 18
or among the Company and/or any of the Company Subsidiaries and one or more
banks and/or other institutional lenders (each, a "Financing Agreement"), or any
agreement between or among the Company and/or any of the Company Subsidiaries
and one or more banks and/or other institutional lenders providing for the
extension, renewal, refunding or refinancing of such obligations (a "Refinancing
Agreement"), whether now existing or hereafter entered into or contracted,
including, without limitation, the principal balance of all loans made
thereunder and interest and fees accruing with respect to such loans and (b) all
other obligations, liabilities, and indebtedness incurred by the Company and/or
any of the Company Subsidiaries under or pursuant to any Financing Agreement or
Refinancing Agreement, including, without limitation, reimbursement obligations
with respect to letters of credit issued pursuant to a Financing Agreement or a
Refinancing Agreement (and all fees, commissions and charges incurred in
connection with the issuance and maintenance of such letters of credit) or
obligations with respect to acceptances issued or overdrafts extended pursuant
to a Financing Agreement or a Refinancing Agreement; (ii) obligations of the
Company and/or any of the Company Subsidiaries under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise assure a creditor against loss in respect of,
indebtedness or obligations of others of the kind referred to in clause (i)
above; (iii) indebtedness incurred by the Company and/or any of the Company
Subsidiaries to finance the acquisition by it of assets classified as capital
assets under GAAP; (iv) obligations of the Company and/or any of the Company
Subsidiaries as lessee under leases required to be capitalized on the balance
sheet of the lessee under GAAP; and (v) Acquisition Indebtedness; in each case,
(x) whether now existing or hereafter arising and whether such indebtedness or
obligations arise or accrue before or after the commencement of any bankruptcy,
insolvency or receivership proceedings, including, without limitation, interest
and fees accruing pre-petition or post-petition at the rate or rates prescribed
in a Financing Agreement or a Refinancing Agreement and costs, expenses, and
attorneys' fees and disbursements, whenever incurred (and, whether or not such
claims, interest, costs, expenses, fees or disbursements are allowed or
allowable in any such proceeding); and (y) unless the document, instrument or
agreement creating or evidencing the indebtedness or obligation or pursuant to
which the same is outstanding, provides (1) that such indebtedness is not
superior in right of payment to the Securities or (2) that such indebtedness or
obligation shall be subordinated to any other such indebtedness or obligation,
unless such indebtedness or obligation expressly provides that it shall be
senior in right of payment to the Securities.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Company pursuant to Section 2.07.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date
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<PAGE> 19
specified in such Security as the fixed date on which the principal of such
Security or such installment of interest is due and payable.
"Tax Law Change" means any change in, or amendment to, the laws
(including any regulations or rulings promulgated thereunder) of the United
States or any political subdivision or taxing authority thereof or therein
affecting taxation, or any change in, or amendment to, the application or
official interpretation of such laws, regulations or rulings.
"Trading Days" means (i) if the Common Stock is listed or
admitted for trading on any national securities exchange, days on which such
national securities exchange is open for business, (ii) if the Common Stock is
quoted on the Nasdaq National Market or any similar system of automated
dissemination of quotations of securities prices, days on which trades may be
effected through such system, or (iii) if the Common Stock is not quoted on the
Nasdaq National Market or similar system or listed or admitted to trading on any
national securities exchange, days on which the Common Stock is traded regular
way in the over-the-counter market and for which a closing bid and a closing
asked price for the Common Stock are available.
"Transfer Agent" has the meaning specified in Section
2.05(a). The Company has initially appointed the Trustee as its
principal Transfer Agent and Banque Internationale a Luxembourg
S.A. as its Luxembourg Transfer Agent.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"United States" has the meaning specified in the forms of
Security set forth in Exhibits A and B.
"United States Alien" has the meaning specified in
Exhibit A.
"Vice President", when used with respect to the Company, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
"Voting Stock" of a Person means all classes of capital stock or
other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
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"Western Europe" means Austria, Belgium, Denmark,
France, Germany, Greece, Ireland, Italy, Luxembourg, the
Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and the
United Kingdom.
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with and,
except in the case of any such application or request as to which the furnishing
of additional documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including the Officers'
Certificate provided for in Section 8.04) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO THE TRUSTEE. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
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<PAGE> 21
Any certificate or opinion of an Officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such Officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. ACTS OF HOLDERS OF SECURITIES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given or taken by Holders of Securities may be embodied in and evidenced by (i)
one or more instruments of substantially similar tenor signed by such Holders in
person or by an agent or proxy duly appointed in writing by such Holders or (ii)
the record of Holders of Securities voting in favor thereof, either in person or
by proxies duly appointed in writing, at any meeting of Holders of Securities
duly called and held in accordance with the provisions of Article VII. Such
action shall become effective when such instrument or instruments or record is
delivered to the Trustee and, where it is hereby expressly required, to the
Company. The Trustee shall promptly deliver to the Company copies of all such
instruments and records delivered to the Trustee. Such instrument or instruments
and record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders of Securities signing such
instrument or instruments and so voting at such meeting. Proof of execution of
any such instrument or of a writing appointing any such agent or proxy, or of
the holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 4.01) conclusive in favor of the Trustee
and the Company if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
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execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The principal amount and serial number of any Security held
by any Person, and the date of his holding the same, shall be proved by the
Security Register.
(d) The fact and date of execution of any such instrument or
writing and the authority of the Person executing the same may also be proved in
any other manner which the Trustee or any Paying Agent deems sufficient; and the
Trustee or any Paying Agent may in any instance require further proof with
respect to any of the matters referred to in this Section 1.04.
(e) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security appertaining thereto and the Holder of
every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(f) The provisions of this Section 1.04 are subject to
the provisions of Section 7.05.
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request,
demand, authorization, direction, notice, consent, election, waiver or Act of
Holders of Securities or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(a) the Trustee or any Paying Agent by any Holder of Securities
or by the Company shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee and received at its
Corporate Trust Office, Attention: Herbert J. Lemmer; or to or with the Paying
Agent in Luxembourg and received at 69, route d'Esch, L-2953 Luxembourg,
Attention: Mr. Marc Schammo.
(b) the Company by the Trustee or by any Holder of Securities
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing, mailed, first-class postage prepaid, or
telecopied and confirmed by mail, first-class postage prepaid, or delivered by
hand or overnight courier, addressed to the Company at 33 Bloomfield Hills
Parkway, Suite 155, Bloomfield Hills, Michigan 48304, Attention: Chief Financial
Officer, or at any other address previously furnished in writing to the Trustee
by the Company.
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Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
SECTION 1.06. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of Securities of any event, such notice
shall be sufficiently given to Holders of Securities if published in an
Authorized Newspaper in the City of London, England and, so long as the
Securities are listed on the Luxembourg Stock Exchange, in Luxembourg or, if not
practicable in London, England or Luxembourg, elsewhere in any country in
Western Europe, on a Business Day, at least twice, the first such publication to
be not earlier than the earliest date and the second such publication to be not
later than the latest date herein prescribed for the giving of such notice. In
addition, notices to any Holder of Securities shall be given by first class
mail, postage prepaid, to such Holders at the address of such Holder as it
appears in the Security Register 15 days prior to such mailing, not earlier than
the earliest date and not later than the latest date prescribed for the giving
of such notice.
Neither the failure to give notice nor any defect in any notice
to any Holder shall affect the sufficiency of any notice to any other Holder.
If, due to the suspension of publication of any Authorized Newspaper or
Authorized Newspapers or any other cause it shall be impracticable to publish
any notice as provided above, or if, due to the suspension of regular mail
service or any other cause it shall be impracticable to give notice by mail,
then such notification shall be given in a manner approved by the Trustee, which
approval shall not be unreasonably withheld, shall constitute sufficient notice
to such Holders for every purpose hereunder.
Notice given pursuant to this Section shall be deemed to have
been given on the date such notice is published or mailed.
Where this Indenture provides for notice, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 1.07. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
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SECTION 1.08. SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 1.09. SEPARABILITY CLAUSE. In case any provision in this
Indenture or the securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.10 BENEFITS OF INDENTURE. Except as provided in the
next sentence, nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors and assigns hereunder and the Holders of Securities, any benefit or
legal or equitable right, remedy or claim under this Indenture. The provisions
of Article XII are intended to be for the benefit of, and shall be enforceable
directly by, the holders of Senior Indebtedness.
SECTION 1.11. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, THE UNITED STATES OF AMERICA, WITHOUT REGARD TO THE CHOICE OF LAW
PRINCIPLES THEREOF.
SECTION 1.12. LEGAL HOLIDAYS. In any case where any Interest
Payment Date, Redemption Date, Repurchase Date or Stated Maturity of any
Security or the last day on which a Holder of a Security has a right to convert
his Security shall not be a Business Day at a Place of Payment or Place of
Conversion, as the case may be, then (notwithstanding any other provision of
this Indenture or of the Securities) payment of interest or principal and
premium, if any, or delivery for conversion of such Security need not be made at
such Place of Payment or Place of Conversion, as the case may be, on or by such
day, but may be made on or by the next succeeding Business Day at such Place of
Payment or Place of Conversion, as the case may be, with the same force and
effect as if made on the Interest Payment Date, Redemption Date or Purchase
Date, or at the Stated Maturity or by such last day for conversion; provided,
however, that in the case that payment is made on such succeeding Business Day,
no interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Purchase Date, Stated Maturity or
last day for conversion, as the case may be.
SECTION 1.13. EXECUTION IN COUNTERPARTS.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
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ARTICLE II
THE SECURITIES
SECTION 2.01. TITLE, TERMS. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
limited to $40,000,000, except for PIK Securities issued pursuant to Section
2.07 and Securities authenticated and delivered in exchange for, or in lieu of,
other Securities (including PIK Securities) pursuant to Section 2.04, 2.05,
2.06, 9.05 or 10.02. The Securities (including PIK Securities) shall be known
and designated as the "6% Convertible Subordinated Debentures due 2005" of the
Company.
SECTION 2.02. DENOMINATIONS. The Securities shall be issuable in
denominations of $1,000 and integral multiples of $1,000.
SECTION 2.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents, under a facsimile of its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. Any such signature may be manual or facsimile.
Securities bearing the manual or facsimile signature of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee or to its order for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee or an Authenticating Agent in accordance with such Company Order shall
authenticate and make available for delivery such Securities as in this
Indenture provided and not otherwise. In connection with any Company Order for
authentication, an Officers' Certificate and Opinion of Counsel pursuant to
Section 1.02 shall not be required.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for execution
by the Trustee or an Authenticating Agent by manual signature of an authorized
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signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Each Security shall be dated the date of its
authentication.
SECTION 2.04. FORM.
(a) FORMS GENERALLY. The Securities shall be in substantially the
forms set forth in Exhibits A and B hereto, the Trustee's certificates of
authentication shall be in substantially the form set forth in Exhibits A and B,
and the conversion notice shall be in substantially the forms set forth
in Exhibits A and B, each of which is hereby incorporated in and expressly made
part of this Indenture, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with applicable law, including, without limitation, the United States Internal
Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder,
the rules of any securities exchange, agreements to which the Company is subject
or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution thereof. The Global Security may be
printed, lithographed, typewritten, mimeographed or otherwise produced, as
determined by the officers of the Company executing such Security, as evidenced
by their execution thereof. The format and spacing of the text of the Global
Security may be varied to facilitate such production. Definitive Securities
shall be printed, lithographed or engraved or produced by any combination of
these methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution thereof. The format and spacing of the text of a
Definitive Security may be varied to facilitate such production.
(b) GLOBAL SECURITIES. Except as otherwise provided in this
Section 2.04(b), the Securities and PIK Securities, when issued, shall be issued
in the form of a Global Security, the form of which is set forth in Exhibit A.
Each Global Security shall be deposited on behalf of the subscribers for the
Securities represented thereby with a common depositary (the "Depositary"), for
credit to their respective accounts (or to such other accounts as they may
direct) at Morgan Guaranty Trust Company of New York, Brussels office, or its
successor as operator of the Euroclear Clearance System ("EUROCLEAR"), or Cedel
Bank, societe anonyme ("CEDEL"). The principal amount of the Global Security
evidencing Securities may be increased from time to time after the Initial
Closing Date by means of appropriate adjustments made on the records of the
Trustee or the
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Authenticating Agent, whereupon the Trustee or the Authenticating Agent will
instruct the Depositary or its authorized representative to make a corresponding
adjustment to its records, but in no event shall the principal amount as so
increased exceed U.S.$47,762,092 in the aggregate at any time.
The Securities shall bear the legends set forth on their
respective forms in Exhibits A and B. The Trustee shall not issue any unlegended
Security until it has received an Officers' Certificate from the Company
directing it to do so.
The Depositary or its nominee shall be the Holder of
the Global Security, and owners of beneficial interests in the Securities
represented by the Global Security shall hold such interests pursuant to the
Applicable Procedures. Any such owner's beneficial ownership of any such
Securities will be shown only on, and the transfer of such ownership interest
shall be effected only through, records maintained by EUROCLEAR or CEDEL.
Transfer of interests in the Global Security shall be subject to the provisions
of Section 2.05(b).
Unless (A) the Depositary notifies the Company that it is
unwilling or unable to continue as the depositary for the Global Security, and a
successor depository is not appointed within 90 days of such notice, or (B) an
Event of Default has occurred and is continuing with respect to a Global
Security, owners of beneficial interests in a Global Security will not be
entitled to have any portions of such Global Security registered in their names,
will not receive or be entitled to receive physical delivery of Definitive
Securities and will not be considered the owners or holders of the Global
Security. Upon the occurrence of an event described in the preceding sentence,
the Depository shall cause the Global Security to be exchanged for Definitive
Securities as provided in the next paragraph.
Definitive Securities issued in exchange for a Global Security
pursuant to the preceding paragraph, shall have an aggregate principal amount
equal to that of such Global Security or portion thereof to be so exchanged,
shall be registered in such names and be in such authorized denominations as the
Depositary shall designate and shall bear any legends required hereunder. Any
Global Security to be exchanged in whole shall be surrendered by the Depositary
to the Trustee, as Security Registrar. Upon any surrender of a Global Security,
the Trustee shall authenticate and deliver the Securities issuable on such
exchange to or upon the order of the Depositary or an authorized representative
thereof. In the event of the occurrence of any of the events specified in the
preceding paragraph, the Company will promptly make available to the Trustee a
reasonable supply of Definitive Securities.
Except as otherwise set forth in this Indenture or a Global
Security, owners of beneficial interests in the Securities
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evidenced by a Global Security will not be entitled to any rights under the
Indenture with respect to such Global Security, and the Depositary or its
nominee may be treated by the Company, the Trustee and any agent of the Company
or the Trustee as the owner and Holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any such agent from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or its
nominee or impair, as between the Depositary or its nominee and such owners of
beneficial interests, the operation of the Applicable Procedures.
SECTION 2.05. REGISTRATION, REGISTRATION OF TRANSFER
AND EXCHANGE RESTRICTIONS ON TRANSFER.
(a) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company designated pursuant to Section 8.02
being herein sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of transfers of Securities.
The Trustee is hereby appointed Security Registrar (the "Security Registrar" or
"Registrar") for the purpose of registering Securities and transfers and
exchanges of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 8.02 for such
purpose (a "Transfer Agent"), the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations and of a
like aggregate principal amount and bearing such restrictive legends as may be
required by this Indenture.
At the option of the Holder, and subject to the other provisions
of this Section 2.05, Securities may be exchanged for other Securities of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Global Security to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange, and subject to the
other provisions of this Section 2.05, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.
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All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and subject to the other provisions of this Section 2.05,
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 2.04 or 10.02 (other than, in the case of
Securities, where Conversions Shares are to be issued or delivered in a name
other than that of the Holder of the Security) not involving any transfer.
In the event of a redemption of the Securities in part, the
Company will not be required (a) to register the transfer of, or exchange, any
Security for a period of 15 days immediately preceding the date notice is given
identifying the serial numbers of the Securities called for such redemption or
(b) to register the transfer of, or exchange any Security, or portion thereof,
called for redemption.
(b) Notwithstanding any other provisions of this Indenture or the
Securities, transfers of a Global Security and transfers and exchanges of
interests therein or of other Securities of the kind described in clauses (1)
and (2) below shall be made only in accordance with this Section 2.05(b).
Transfers and exchanges subject to this Section 2.05 shall also be subject to
the other provisions of this Indenture that are not inconsistent with this
Section 2.05.
(1) A Global Security may not be transferred, in
whole or in part, to any Person other than the Depositary or a nominee thereof,
and no such transfer to any such other Person may be registered; provided, that
this Clause (1) shall not prohibit any transfer of a Security that is issued in
exchange for a Global Security but is not itself a Global Security. No transfer
of a Security to any Person shall be effective under this Indenture or the
Securities unless and until such Security has been registered in the name of
such Person. Nothing in this Section 2.05(b)(1) shall prohibit or render
ineffective any transfer of a beneficial interest in a Global Security effected
in accordance with the Applicable Procedures.
(2) In the event that a Global Security is exchanged for
Securities other than Global Securities, such other Securities may in turn be
exchanged (on transfer or otherwise) for Securities that are not Global
Securities or for beneficial interests in a Global Security (if any is then
outstanding) only
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in accordance with such procedures as may be adopted by the Company and the
Trustee from time to time.
As used in this Section 2.05, the term "transfer" encompasses any
sale, pledge, transfer or other disposition of a Security.
(c) None of the Trustee, the Paying Agents, or the Registrar, nor
any of their agents, shall (1) have any duty to monitor compliance with or with
respect to any federal or state or other securities or tax laws or (2) have any
duty to obtain documentation on any transfers or exchanges other than as
specifically required hereunder.
SECTION 2.06. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES. If
any mutilated Security is surrendered to the Trustee, the Company shall execute,
the Trustee or an Authenticating Agent shall authenticate and the Trustee shall
deliver in exchange therefor a new Security of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
If there be delivered to the Company and either to the Trustee:
(1) evidence to their satisfaction of the destruction,
loss or theft of any Security, and
(2) such security, bond or indemnity as may be reasonably
satisfactory to the Company and the Trustee to save each of them and any agent
of either of them harmless,
then, in the absence of actual notice to the Company and the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute,
the Trustee or an Authenticating Agent shall authenticate and the Trustee shall
deliver, in lieu of any such destroyed, lost or stolen Security for a new
Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
Upon the issuance of any new Security under this Section 2.06,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Paying Agents
connected therewith).
Every new Security issued pursuant to this Section 2.06 in lieu
of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and
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such new Security, shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities duly issued
hereunder.
The provisions of this Section 2.06 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies of any Holder with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 2.07. PAYMENT OF INTEREST, INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the immediately preceding Regular Record Date.
On each Interest Payment Date during the PIK Payment Period, the
Company shall, in lieu of the payment of interest in cash, execute, and require
the Trustee (upon Company Order given not less than 10 days prior to such
Interest Payment Date) to authenticate for original issue, and issue to the
appropriate Holders, PIK Securities in an aggregate principal amount equal to
the amount of cash interest not paid on such Interest Payment Date. The issuance
of such PIK Securities shall constitute full payment of such interest. Each
issuance of PIK Securities in lieu of the payment of interest in cash shall be
made pro rata with respect to the Outstanding Securities; provided, however, in
the event that any such payment of PIK Securities would result in the issuance
of any PIK Security in a principal amount which is less than $1,000 or which is
not an integral multiple of $1,000 (such principal amount, if less than $1,000,
or, if such principal amount is greater than $1,000, the difference between such
principal amount and the highest integral multiple of $1,000 which is less than
such principal amount, being hereinafter referred to as a "Fractional Principal
Amount"), the Company shall cause the Paying Agent to pay the Holders otherwise
entitled to Fractional Principal Amounts of PIK Securities a payment in cash in
lieu thereof equal to, at the Company's option, either (a) each such Holder's
proportionate interest in the net proceeds from the sale or sales in the open
market by the Company, on behalf of all such Holders, of the aggregate of the
Fractional Principal Amounts or (b) the amount of such Holder's Fractional
Principal Amount. If the Company defaults in issuing the requisite PIK
Securities on an Interest Payment Date during the PIK Payment Period, the
Company will thereafter be obligated to pay the aggregate amount of accrued
interest required to be paid on such Interest Payment Date in cash as provided
below. PIK Securities shall be subject to all of the provisions of this
Indenture and, when issued, will be issued in the form of one Global Security
subject to the provisions of Section 2.04(b).
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Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date ("Defaulted
Interest") shall forthwith cease to be payable to the Holder of such Security on
the relevant Regular Record Date by virtue of having been Holder on such date,
and such Defaulted Interest (and interest on such Defaulted Interest to the
extent lawful) may be paid by the Company in any lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may be
listed and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this paragraph, such manner of payment shall be deemed practicable by the
Trustee. The Company may pay the Defaulted Interest to the persons who are
Holders of the Securities on a subsequent special record date ("Special Record
Date"). The Company shall fix or cause to be fixed any such Special Record Date
and payment date to the reasonable satisfaction of the Trustee and shall
promptly mail to each Holder of a Security a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
Subject to the foregoing provisions of this Section and Section
2.05, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Security which is converted after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date (other
than any Security whose Stated Maturity is prior to such Interest Payment Date),
interest payable on such Interest Payment Date shall be payable on such Interest
Payment Date notwithstanding such conversion, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name
such Security (or one or more Predecessor Securities) is registered at the close
of business on such Regular Record Date. Except as otherwise expressly provided
in the immediately preceding sentence, in the case of any Security which is
converted, interest payable after the date of conversion of such Security shall
not be payable.
SECTION 2.08. PERSONS DEEMED OWNERS. Prior to due presentment of
a Security for registration of transfer, and prior to the effective registration
of such transfer in the Security Register the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of receiving payment
of principal of, premium, if any, and (subject to Sections 2.05 and 2.07)
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any agent of
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the Company or the Trustee shall be affected by notice to the contrary.
SECTION 2.09. CANCELLATION. All Securities surrendered for
payment, redemption, repurchase, registration of transfer or exchange or
conversion shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee. All Securities so delivered to the Trustee shall be
canceled promptly by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section 2.09,
except as otherwise permitted by this Indenture. Unless otherwise requested by
the Company and confirmed in writing, the Trustee shall, from time to time but
not less than once annually, destroy all canceled Securities and deliver to the
Company a certificate of destruction, which certificate shall specify the
number, principal amount and, the form of each canceled Security so destroyed.
SECTION 2.10 COMPUTATION OF INTEREST. Interest on the Securities
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.11. ISIN AND COMMON CODE NUMBERS. The Company in
issuing Securities may use "ISIN" and Common Code numbers (if then generally in
use), and, if so, the Trustee shall use such "ISIN" and Common Code numbers in
addition to serial numbers, in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such ISIN and Common Code numbers either as printed on
the Securities or as contained in any notice of a redemption and that reliance
may be placed only on the serial or other identification numbers printed on the
Securities, and any such redemption or repurchase shall not be affected by any
defect in or omission in the ISIN or Common Code numbers.
ARTICLE III
DEFAULTS, REMEDIES
SECTION 3.01. EVENTS OF DEFAULT. "Event of Default", wherever
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
XI or be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any interest (including any
Additional Amount) upon any Security when it becomes due and
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payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of any Security at
its Maturity; or default in the payment of the Redemption Price or Purchase
Price of any Security when the same becomes due (whether or not such payment is
prohibited by the provisions of this Indenture); or
(c) the failure to deliver Conversion Shares (together with cash,
if any, in lieu of fractional shares) when such Conversion Shares (and cash, if
any, in lieu of fractional shares) are required to be delivered following the
conversion of a Security (or portion thereof) and continuation of such default
for a period of 10 days; or
(d) the Company fails to perform or observe any covenant
contained in this Indenture or in the Securities (other than a covenant, the
default in the performance or observance of which is specifically dealt with
elsewhere in this Section), and continuance of such default for a period of 30
days after there has been given to the Company by the Trustee or to the Company
and the Trustee by the Holders of not less than 25% in principal amount of the
Outstanding Securities a written notice specifying such default; or
(e) Default by the Company or a Company Subsidiary under any
mortgage, indenture, loan agreement or other instrument (other than the
Securities) under which there shall be issued or by which there may be secured
or evidenced any Indebtedness (as defined below) in a principal amount in excess
of $1,000,000 (individually or in the aggregate) by the Company or such Company
Subsidiary, whether such Indebtedness now exists or is created, incurred or
assumed by the Company or a Company Subsidiary after the Initial Closing Date,
which default is (i) caused by a failure to pay when due and after the
expiration of any applicable grace period, the principal of, premium, if any, or
interest on such Indebtedness or (ii) or is caused by the failure to comply with
any covenant or condition contained in any such mortgage, indenture, loan
agreement or other instrument if the effect of such default is to entitle (after
giving effect to any applicable notice or cure rights) the holders of such
Indebtedness (or a trustee of or for such holders) to then cause such
Indebtedness to become due prior to its stated maturity, or result in the
acceleration of the maturity of such Indebtedness and, in each case, the
principal amount of any such Indebtedness, together with the principal amount of
any other such Indebtedness under which there is a default or the maturity of
which has been so accelerated; or
(f) a final judgment or judgments (other than any judgment as to
which a reputable insurance company has accepted full liability) for the payment
of money in excess of $1,000,000
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are entered by a court or courts of competent jurisdiction against the Company
and/or any Company Subsidiary and remain undischarged for a period of 60 days
(during which execution shall not be effectively stayed or any action shall be
legally taken by any judgment creditor to levy upon assets of the Company and/or
such Company Subsidiary to enforce such judgment); or
(g) the Company or a Company Subsidiary, pursuant to or within
the meaning of any Bankruptcy Law, (i) commences a voluntary case or proceeding,
(ii) consents to the entry of an order for relief against it in an involuntary
case in which it is the debtor, (iii) consents to the appointment of a Custodian
of it or for all or substantially all its property, (iv) makes a general
assignment for the benefit of its creditors, or (v) admits in writing that it
generally is unable to pay its debts as they become due; or (vi) takes any
action for the purpose of effecting any of the foregoing; or
(h) an involuntary case or proceeding under any
Bankruptcy Law is commenced against the Company or a Company Subsidiary in a
court of competent jurisdiction and is not dismissed within 90 days after the
commencing thereof, or a court of competent jurisdiction enters an order under
any Bankruptcy Law that (i) is for relief against the Company or a Company
Subsidiary in an involuntary case, (ii) appoints a Custodian of the Company or a
Company Subsidiary or for all or substantially all its property, and the order
or decree remains unstayed and in effect for 90 days, or (iii) orders the
liquidation of the Company or a Company Subsidiary, and such order remains
unstayed and in effect for 90 days; or
(i) the Company contests the validity or enforceability of a
material provision of this Indenture or any of the Securities or attempts to
terminate or repudiate a material provision of this Indenture or any Security
(other than in a manner expressly permitted by this Indenture or the
Securities).
As used in Section 3.01(e), "Indebtedness" means (a) liabilities
of the Company or a Company Subsidiary (i) for borrowed money or (ii) evidenced
by bonds, debentures, notes or similar instruments (including purchase money
obligations other than for the purchase of inventory or other property acquired
in the ordinary course of business), (b) capitalized lease obligations, (c)
guaranties of the liabilities of others described in clauses (a) and (b) and (d)
renewals, extensions or refundings of any liabilities; "Bankruptcy Law" means
Title 11, United States Bankruptcy Code or any similar Federal or state law for
the relief of debtors; and "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
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SECTION 3.02. ACCELERATION. If an Event of Default (other than an
Event of Default specified in clauses (g) and (h) of Section 3.01 hereof) occurs
and is continuing, the Trustee by notice to the Company, or the Holders of not
less than a majority in principal amount of the Outstanding Securities by notice
to the Company and the Trustee, may declare all the Securities to be due and
payable. Upon such declaration, the principal of, premium, if any, and accrued
and unpaid interest on the Securities shall be due and payable immediately. If
an Event of Default specified in clause (g) or (h) of Section 3.01 hereof
occurs, such an amount shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of the Securities. The Holders of a majority in aggregate principal
amount of the Outstanding Securities by notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of the acceleration.
SECTION 3.03. OTHER REMEDIES. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal, premium, if any, or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding for any right or remedy
available to it even if it does not possess any of the Securities or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any
Holder in exercising any right or remedy accruing upon an Event of Default shall
not impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 3.04. WAIVER OF PAST DEFAULTS. The Holders of a majority
in aggregate principal amount of the Outstanding Securities by notice to the
Trustee may waive an existing Default or Event of Default and its consequences
other than (i) a continuing Default or Event of Default in the payment of
principal of, or interest on, any Security or (ii) a Default or Event of Default
in respect of a provision that under Section 6.02 cannot be amended without the
consent of each Holder affected thereby. When a Default or Event of Default is
waived, it is cured and ceases; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 3.05. APPLICATION OF MONEY COLLECTED. Any money collected
by the Trustee pursuant to this Article III shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on
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account of principal, premium, if any, or interest, upon presentation of the
Securities, or both, as the case may be, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 4.07;
SECOND: To the payment of all Senior Indebtedness to
the extent required by Article XI.
THIRD: To the payment of the amounts then due and unpaid for
principal, premium, if any, interest or Additional Amounts on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal, premium, if any, interest or
Additional Amounts, respectively; and
FOURTH: Any remaining amounts shall be repaid to the
Company.
SECTION 3.06. LIMITATION ON SUITS. No Holder of any Security
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60 day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or
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to obtain or seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such Holders.
SECTION 3.07. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST AND TO CONVERT. Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the principal of,
premium, if any, and (subject to Section 2.07) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption or repurchase, on the Redemption Date or Purchase Date, as the case
may be), and to convert such Security in accordance with Article X, and to
institute suit for the enforcement of any such payment and right to convert, and
such rights shall not be impaired without the consent of such Holder.
SECTION 3.08. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee
or any Holder of a Security has instituted any proceeding to enforce any right
or remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders of Securities shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and such Holders shall
continue as though no such proceeding had been instituted.
SECTION 3.09. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 2.06, each right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities is not intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 3.10. CONTROL BY HOLDERS OF SECURITIES. The Holders of a
majority in principal amount of the Outstanding Securities shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee; provided that
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(a) such direction shall not be in conflict with any
rule of law or with this Indenture;
(b) such direction shall not be unduly prejudicial to
the rights of other holders of the Securities; and
(c) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 3.11. UNDERTAKING FOR COSTS. All parties to this
Indenture agree, and each Holder of any Security, by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court, may in its discretion, assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 3.11 shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder of any Security
for the enforcement of the payment of the principal of, premium, if any, or
interest on any Security or the payment of on or after the respective Stated
Maturity or Maturities expressed in such Security (or, in the case of redemption
or repurchase, on or after the Redemption Date or Repurchase Date, as the case
may be) or for the enforcement of the right to convert any Security in
accordance with Article X.
SECTION 3.12. WAIVER OF STAY OR EXTENSION LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 3.13. COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 3.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole
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amount then due and owing (together with interest on any unpaid interest to the
extent lawful) and the amount provided for in Section 4.07.
SECTION 3.14. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders of the
Securities allowed in any judicial proceedings relative to the Company, its
creditors or its property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 4.07.
ARTICLE IV
THE TRUSTEE
SECTION 4.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of
Default,
(i) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture, but not to verify the contents
thereof.
(b) in case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
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(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(i) this paragraph (c) shall not be construed to limit
the effect of paragraph (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture;
(iv) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it; and
(v) whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 4.02. NOTICE OF DEFAULTS. Within 90 days after the
occurrence of any default hereunder, the Trustee shall give to all Holders of
Securities, in the manner provided in Section 1.06, notice of such Default known
to the Trustee, unless such Default shall have been cured or waived; provided,
however, that in the case of any Default of the character specified in Section
3.01(d), no such notice to Holders of Securities shall be given until at least
30 days after the occurrence thereof.
SECTION 4.03. CERTAIN RIGHTS OF TRUSTEE. Subject to
the provisions of Section 4.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, other
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or
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document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the permissive right of the Trustee to take or refrain from
taking any actions enumerated in this Indenture shall not be construed as a duty
and the Trustee shall not be answerable in such actions other than for its own
negligence or wilful misconduct; and
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(i) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by the Indenture.
SECTION 4.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture, of the Securities, or of the Common Stock issuable upon the
conversion of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 4.05. MAY HOLD SECURITIES, ACT AS TRUSTEE UNDER OTHER
INDENTURES. The Trustee, any Authenticating Agent, any Paying Agent, any
Conversion Agent or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Conversion Agent or such
other agent.
The Trustee may become and act as trustee under other indentures
under which other securities, or certificates of interest or participation in
other securities, of the Company are outstanding in the same manner as if it
were not Trustee hereunder.
SECTION 4.06. MONEY HELD IN TRUST. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 4.07. COMPENSATION AND REIMBURSEMENT. The Company
agrees:
(a) to pay to the Trustee from time to time such compensation as
the Company and the Trustee shall agree upon in a separate written agreement for
all services rendered by it hereunder;
(b) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
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expense, disbursement or advance as may be attributable to its negligence or bad
faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs, expenses and
reasonable attorneys' fees of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
To secure the Company's payment obligations in this Section 4.07,
each of the Trustee and the Paying Agent and the Registrar (if the Trustee is
acting in such capacities) shall have a lien prior to the Securities on all
money or property held or collected by it, in its capacity as Trustee, Paying
Agent or Registrar, as the case may be, except money or property held in trust
to pay principal of or interest on particular Securities. To the extent the same
entity serves in different capacities, it may assert the lien on its behalf in
relation to each of those capacities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 3.01(g) or Section
3.01(h), the expenses (including the reasonable charges of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 4.08. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY;
DISQUALIFICATION; CONFLICTING INTEREST. Any Successor Trustee hereunder shall at
all times be a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, authorized under such
laws to exercise corporate trust powers having a combined capital and surplus of
at least $1,000,000, subject to supervision or examination by federal or state
authority, in good standing and having an established place of business in the
Borough of Manhattan, The City of New York. If such successor Trustee publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company nor any Person directly or
indirectly controlling, controlled by, or under common control with the Company
shall serve as Trustee. If at any time any successor Trustee shall cease to be
eligible in
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accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article and a
successor shall be appointed pursuant to Section 4.09.
SECTION 4.09. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 4.10.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 4.10 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount of the Outstanding Securities, delivered to
the Trustee and the Company. If the instrument of acceptance by a successor
Trustee required by Section 4.10 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of removal, the removed Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(d) if at any time:
(i) the Trustee shall cease to be eligible under
Section 4.08 and shall fail to resign after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months,
(ii) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case (A) the Company by a Board Resolution may remove the
Trustee, or (B) subject to Section 3.11, any Holder of a Security who has been a
bona fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
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(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
and shall comply with the applicable requirements of this Section and Section
4.10. If within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 4.10, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner required by this Section and Section
4.10, any Holder of a Security who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders of Securities in the manner provided in Section 1.06. Each notice shall
include the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 4.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
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SECTION 4.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
provided such corporation shall be otherwise qualified and eligible under this
Article, without, the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 4.12. AUTHENTICATING AGENTS. The Trustee may, with the
consent of the Company, appoint an Authenticating Agent or Agents acceptable to
the Company with respect to the Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon exchange or
substitution pursuant to this Indenture.
Securities authenticated by an Authenticating Agent shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder, and every reference
in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
subject to acceptance by the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of America, any
State thereof, the District of Columbia, England and Wales, or Luxembourg,
authorized under such laws to act as Authenticating Agent and subject to
supervision or examination by government or other fiscal authority. If at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 4.12, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 4.12.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
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continue to be an Authenticating Agent; provided such corporation shall be
otherwise eligible under this Section 4.12, without the execution or filing of
any paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 4.12, the Trustee may appoint a successor
Authenticating Agent which shall be subject to acceptance by the Company. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 4.12.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section 4.12.
If an Authenticating Agent is appointed with respect to the
Securities pursuant to this Section 4.12, the Securities may have endorsed
thereon, in addition to or in lieu of the Trustee's certification of
authentication, an alternative certificate of authentication in the form
indicated by the bracketed text appearing in the form of certificate of
authentication attached to Exhibits A and B hereto.
ARTICLE V
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 5.01. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN
TERMS. The Company shall not consolidate with or merge into any other Person or
convey, transfer, sell or lease or otherwise dispose of all or substantially all
of its assets to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer, sell or lease or
otherwise dispose of all or substantially all of its assets to the Company,
unless:
(a) in case the Company shall consolidate with or merge into
another Person or convey, transfer, sell or lease or otherwise dispose of all or
substantially all of its properties
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and assets to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance, transfer or
sale or other disposition (other than a lease), or which leases, all or
substantially all of the properties and assets of the Company shall be a
corporation, partnership or trust, shall be organized and validly existing under
the laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of and interest (including Additional
Amounts) on all of the Securities, as applicable, and the performance or
observance of every covenant of this Indenture on the part of the Company to be
performed or observed and shall have provided for conversion rights in
accordance with Section 10.12.
(b) immediately after giving effect to such transaction, and
treating any Indebtedness which becomes an obligation of the Company as a result
of such transaction as having been incurred by the Company at the time of such
transaction, no Default or Event of Default shall have occurred and be
continuing; and
(c) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer, lease or other disposition and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture, comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with, together with
any documents required under Section 6.03.
SECTION 5.02. SUCCESSOR SUBSTITUTED. Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any
conveyance, transfer, sale, lease or other disposition of all or substantially
all the properties and assets of the Company in accordance with Section 5.01,
the successor Person formed by such consolidation or into which the Company is
merged, or to which such conveyance, transfer, sale, lease or other disposition
is made, shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in
the case of a conveyance, transfer, sale, lease or other disposition, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
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ARTICLE VI
SUPPLEMENTAL INDENTURE
SECTION 6.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
OF SECURITIES. Without the consent of any Holders of Securities, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, for any
of the following purposes:
(a) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants and obligations of the
Company herein and in the Securities as permitted by this Indenture; or
(b) to add to the covenants of the Company for the benefit of
the Holders of Securities, or to surrender any right or power herein conferred
upon the Company; or
(c) to make provision with respect to the conversion rights of
Holders of Securities pursuant to Section 10.12; or
(d) to make any change in Article XI that would limit or
terminate the benefits available to any holder of Senior Indebtedness (or their
respective Representatives); or
(e) to add guarantees with respect to the Securities or to
secure the Securities; or
(f) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein or
which is otherwise defective, or to make any other provisions with respect to
matters or questions arising under this Indenture or the Securities as the
Company and the Trustee may deem necessary or desirable; provided that such
action pursuant to this clause (f) shall not adversely affect the interests of
the Holders of Securities.
Upon Company Request, accompanied by a Board Resolution
authorizing the execution of any such amendment, and subject to and upon receipt
by the Trustee of the documents required in connection therewith, the Trustee
shall join with the Company in the execution of any supplemental indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations which may be therein contained.
SECTION 6.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS OF
SECURITIES. With the written consent of the Holders of not less than a majority
in principal amount of the
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Outstanding Securities or by a resolution adopted in accordance with Section
7.04, by the Act of such Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent or affirmative vote of the Holder of each
Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount or the
rate of interest payable thereon, or reduce the amount of principal that would
be due and payable upon a declaration of acceleration of the maturity thereof
pursuant to Section 3.02 or a redemption thereof pursuant to Article IX, or
change the obligation of the Company to pay Additional Amounts, or change the
coin or currency in which any Security or the interest thereon or any other
amount in respect thereof is payable, or impair the right to institute suit for
the enforcement of any payment in respect of any Security on or after the Stated
Maturity thereof (or, in the case of redemption or any repurchase, on or after
the Redemption Date or Repurchase Date, as the case may be) or, except as
permitted by Section 10.12, adversely affect the right to convert any Security
as provided in Article X, or modify the provisions of this Indenture with
respect to the subordination of the Securities in a manner adverse to the
Holders of Securities, or
(b) reduce the requirements of Section 7.04 for quorum or voting,
or reduce the percentage in principal amount of the Outstanding Securities the
consent of whose Holders is required for any such supplemental indenture or the
consent of whose Holders is required for any waiver provided for in this
Indenture; or
(c) modify the obligation of the Company to maintain pursuant to
Section 8.02 an office or agency in the State of New York, and a city in a
Western European country, and so long as the Securities are listed on the
Luxembourg Stock Exchange and the rules of such Exchange shall so require, in
Luxembourg; or
(d) modify any of the provisions of this Section or Section 3.10,
except to increase any percentage contained herein or therein or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of
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any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
SECTION 6.03. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing,
or accepting the additional trusts created by any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and (subject to
Sections 4.01 and 4.03) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture, that such supplemental indenture has been duly
authorized, executed and delivered by the Company and constitutes a valid and
legally binding obligation of the Company enforceable against the Company in
accordance with its terms. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 6.04. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 6.05. NOTATION ON OR EXCHANGE OF SECURITIES. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Company and the Trustee, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
SECTION 6.06. NOTICE OF SUPPLEMENTAL INDENTURES. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 6.02, the Company shall give notice to all
Holders of Securities of such fact, setting forth in general terms the substance
of such supplemental indenture, in the manner provided in Section 1.06. Any
failure of the Company to give notice, or any defect therein, shall not in any
way impair or affect the validity of any such supplemental indenture.
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ARTICLE VII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 7.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A
meeting of Holders of Securities may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities.
SECTION 7.02. CALL, NOTICE AND PLACE OF MEETING.
(a) The Trustee may at any time call a meeting of Holders of
Securities for any purpose specified in Section 7.01, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or in the
City of London, England, as the Trustee shall determine. Notice of every meeting
of Holders of Securities, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 1.06, not less than 21 nor more than
180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% in principal amount of the
Outstanding Securities shall have requested the Trustee to call a meeting of the
Holders of Securities for any purpose specified in Section 7.01, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities in the amount specified, as the case may
be, may determine the time and the place in the Borough of Manhattan, The City
of New York, or in the City of London, England, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in paragraph
(a) of this Section.
SECTION 7.03. PERSONS ENTITLED TO VOTE AT MEETINGS. To be
entitled to vote at any meeting of Holders of Securities, a Person shall be (a)
a Holder of one or more Outstanding Securities or (b) a Person appointed by an
instrument in writing (valid under the laws of the State of New York) as proxy
for a Holder or Holders of one or more Outstanding Securities by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel, any
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representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 7.04. QUORUM; ACTION. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities shall constitute a
quorum. In the absence of a quorum within 30 minutes of the time appointed for
any such meeting, the meeting shall, if convened at the request of Holders of
Securities, be dissolved. In any other case, the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
not less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting (subject to repeated applications of this
sentence). Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 7.02(a), except that such notice need be given only once not
less than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage of the principal amount of the Outstanding Securities
which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting
adjourned for a lack of a quorum, the Persons entitled to vote a majority in
principal amount of the Outstanding Securities at the time shall constitute a
quorum for the taking of any action set forth in the notice of the original
meeting.
At a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid, any resolution and all matters (except as
limited by the proviso to Section 6.02) shall be effectively passed and decided
if passed or decided by the Persons entitled to vote not less than a majority in
aggregate principal amount of Outstanding Securities represented and entitled to
vote at such meeting.
Any resolution passed or decisions taken at any meeting
of Holders of Securities duly held in accordance with this Section shall be
binding on all the Holders of Securities, whether or not present or represented
at the meeting. The Trustee shall, in the name and at the expense of the
Company, notify all the Holders of Securities of any such resolutions or
decisions pursuant to Section 1.06.
SECTION 7.05. DETERMINATION OF VOTING RIGHTS; CONDUCT
AND ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities in regard to proof of the holding of Securities
and of the
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appointment of proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved in
the manner specified in Section 1.04 and the appointment of any proxy shall be
proved in the manner specified in Section 1.04.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be the Trustee) of the meeting, unless the meeting
shall have been called by the Company or by Holders of Securities as provided in
Section 7.02(b), in which case the Company or the Holders of Securities calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in principal amount
of the Outstanding Securities represented at the meeting.
(c) At any meeting, each Holder of a Security or proxy shall be
entitled to one vote for each $1,000 principal amount of Securities held or
represented by such Holder; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not outstanding
and ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a Security or
proxy.
(d) Any meeting of Holders of Securities duly called pursuant to
Section 7.02 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of the Outstanding
Securities represented at the meeting, and the meeting may be held as so
adjourned without further notice.
ARTICLE VIII
COVENANTS
SECTION 8.01. PAYMENT COVENANT. The Company covenants and agrees
that it will duly and punctually pay the principal of, premium, if any, and
interest (including Additional Amounts) on the Securities, the Purchase Price
upon repurchase and the Redemption Price upon redemption, in each case, in
accordance with the terms of the Securities and this Indenture. The amount
payable by the Company in respect of any Principal
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Payment Date shall be automatically reduced by the principal amount of all
Securities or portions thereof to be redeemed on such Principal Payment Date
which shall have been surrendered for conversion on or before the close of
business on such Principal Payment Date.
SECTION 8.02. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain (A) in the City and State of New York, an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or for exchange, where Securities may
be presented for conversion and (B) subject to applicable laws and regulations,
in a city in Western Europe, and for so long as the Securities are listed on the
Luxembourg Stock Exchange, in Luxembourg, a Paying Agent, Transfer Agent and
Conversion Agent for the Securities. The Trustee will act as "Registrar" and
initially as principal Paying Agent, Conversion Agent and Transfer Agent for the
Securities. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of the Securities or shall fail to furnish the Trustee with the
address thereof, such presentations, and surrenders of Securities may be made
and notices and demands may be made or served at the Corporate Trust Office of
the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all of such purposes specified above in this Section and may
constitute and appoint one or more Paying Agents, Transfer Agents or Conversion
Agents for the payment of such Securities, in one or more cities, and may from
time to time rescind such designations and appointments; provided, however, that
no such designation, appointment or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the places set
forth in this Section 8.02. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless and until the Company rescinds one or
more such appointments, the Company hereby appoints Banque Internationale a
Luxembourg S.A. as its Luxembourg Paying Agent, Transfer Agent and Conversion
Agent.
SECTION 8.03. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
(a) If the Company shall at any time act as its own Paying Agent
for Securities, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal of, premium, if any, or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
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provided, and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents, it
will, one Business Day prior to each due date of the principal of, premium, if
any, or interest (including Additional Amounts) on any Securities, deposit with
a Paying Agent, in immediately available funds, a sum sufficient to pay the
principal of, premium, if any, or interest (including any Additional Amounts) so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent to execute and deliver
to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee subject to the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of
principal of, premium, if any, or interest (including Additional Amounts) on
Securities in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any Default by
the Company (or any other obligor upon the Securities) in the
making of any payment of principal, premium or interest on the
Securities; and
(iii) at any time during the continuance of any
such Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent, and, upon such payments by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, or interest on any Security and remaining unclaimed for two years after
such principal, premium or interest has become due and payable shall be paid to
the Company, on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such
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Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may, at the
expense of the Company, cause to be published once, in an Authorized Newspaper
in each Place of Payment, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
(b) Any payment to be made in respect of the Securities by the
Company to, or to the order of, any Paying Agent shall be in satisfaction pro
tanto of the obligations of the Company under the Securities. The Company shall
indemnify the Holders against any failure on the part of any Paying Agent to pay
any sum due in respect of the Securities and shall pay such sum to the Trustee
on demand. This indemnity constitutes a separate and independent obligation from
the other obligations of the Company under the Securities, shall give rise to a
separate and independent cause of action, will apply irrespective of any waiver
granted by the Trustee or any Holder and shall continue in full force and effect
despite any judgment, order, claim, or proof for a liquidated amount in respect
of any sum due under the indenture, the securities or any judgment or order.
(c) Notwithstanding the fact that a Paying Agent is not obligated
to make any such payment, if a Paying Agent pays out any amount due under the
terms of the Securities on or after the due date therefor on the assumption that
the corresponding payment for such amount has been or will be made by the
Company and such payment has in fact not been so made by the Company prior to
the time that such Paying Agent makes such payment, then the Company shall, on
demand, reimburse such Paying Agent for the relevant amount, and pay interest to
such Paying Agent on such amount from the date on which it is paid out to the
date of reimbursement at a rate per annum equal to the cost to the Paying Agent
of funding the amount paid out, as certified by such Paying Agent and expressed
as a rate per annum.
SECTION 8.04. ADDITIONAL AMOUNTS. The Company will pay to the
Holder of any Security, Additional Amounts as provided in the forms of Security
set forth in Exhibits A and B hereto. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of, or interest on, or
in respect of, any Security, such mention shall be deemed to include mention of
the payment of Additional Amounts provided for in this Section to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to the provisions of this Section and express mention
of the payment of Additional Amounts (if applicable) in any provisions hereof
shall not be
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construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
At least 10 days prior to January 31, 1999, or an earlier
Redemption Date or Purchase Date (and at least 10 days prior to each date of
payment of principal or interest after such date or such earlier Redemption Date
or Repurchase Date, if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate), the Company will furnish
the Trustee and the Company's Luxembourg Paying Agent with an Officers'
Certificate instructing the Trustee and such Paying Agent whether such payment
of principal of, or interest on, the Securities shall be made to Holders of
Securities who are United States Aliens without withholding for, or on account
of, any tax, assessment or other governmental charge described in the forms of
Securities set forth in Exhibits A and B hereto. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities and the Company will pay to the Trustee or the Luxembourg Paying
Agent the Additional Amounts required by this Section to be paid in the event of
any such withholding. The Company covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against any loss, liability or
expense arising out of or in connection with actions taken or omitted by any of
them in reliance on any Officers' Certificate furnished pursuant to this
Section, except to the extent such loss, liability or expense is attributable to
the Trustee's negligence or bad faith.
SECTION 8.05. PAYMENT OF TAXES AND OTHER CLAIMS. The Company
will promptly pay or discharge, and will cause each Company Subsidiary to pay or
discharge, before the same may become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or such Company
Subsidiary, and (2) all claims for labor, materials and supplies which, if
unpaid, might by law become a Lien or charge upon the property of the Company;
provided, however, that neither the Company nor any Company Subsidiary shall be
required to pay or discharge, or cause to be paid or discharged, any such tax,
assessment, charge or claim (i) whose amount, applicability or validity is being
contested in good faith by appropriate proceedings, or (ii) if the effect of
such failure to pay or discharge would not have a material adverse effect on the
assets, business, operations, properties or condition (financial or otherwise)
of the Company and the Company Subsidiaries taken as a whole.
SECTION 8.06. STATEMENT BY OFFICERS AS TO DEFAULT. The Company
shall deliver to the Trustee within 120 days after the end of each fiscal year
of the Company an Officers' Certificate stating that in the course of
performance by the signatories of their duties as such officers of the Company
they
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would normally obtain knowledge of whether any Default exists and whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture. Such Certificate shall further state, as to each such Officer signing
such Certificate, to the best of the knowledge of such Officer, as of the date
of such Officers' Certificate, (a) whether any such Default or Event of Default
exists and is continuing, (b) whether the Company during the preceding fiscal
year, complied with each and every covenant and obligation of the Company under
this Indenture and the Securities and (c) whether any Default or Event of
Default occurred during such preceding fiscal year and is continuing as of the
date of such Officer's Certificate. If the Officers signing the Certificate know
of such a Default or Event of Default, whether then existing or occurring during
such preceding fiscal year, the Officers' Certificate shall describe such
Default and its status with particularity. The Company shall also promptly
notify the Trustee if the Company's fiscal year is changed so that the end
thereof is on any date other than the then current fiscal year end date.
The Company will deliver to the Trustee, forthwith upon becoming
aware of the existence of a Default, Event of Default or material adverse change
in the financial condition or results of operations of the Company and the
Company Subsidiaries, on a consolidated basis, an Officers' Certificate
specifying with particularity such Default, Event of Default or material adverse
change and further stating what action the Company has taken, is taking or
proposes to take with respect thereto.
SECTION 8.07. BOOKS AND RECORDS. The Company shall, and shall
cause each of the Company Subsidiaries to, keep its books, records and accounts
in accordance with GAAP applied on a basis consistent with preceding years.
SECTION 8.08. MAINTENANCE OF INSURANCE. The Company shall
maintain, and shall cause each Company Subsidiary to maintain, with financially
sound and responsible insurers, insurance with respect to its properties and
business against such casualties and contingencies and in such amounts as are
customary in the case of similarly situated corporations engaged in the same or
similar business.
SECTION 8.09. MAINTENANCE OF CORPORATE EXISTENCE, PROPERTIES,
ETC. Except to the extent otherwise permitted by this Indenture, the Company
shall, and shall cause each Company Subsidiary to, (i) do or cause or cause to
be done all things reasonably necessary to preserve, renew and keep in full
force and effect its corporate existence, except that any Company Subsidiary may
merge with or into the Company or any other Company Subsidiary so long as the
surviving corporation of the Merger is the Company or a Company Subsidiary; (ii)
at all times maintain, preserve and protect all of its patents, trademarks,
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service marks, trade names, service names, copyrights, licenses, permits
franchises and other rights, including distributorship and franchise agreements,
that continue to be useful in some material respect in the conduct of its
business; and (iii) preserve all the remainder of its property useful in the
conduct of its business and keep the same in good repair, working order and
condition (ordinary wear and tear excepted), and from time to time, make, or
cause to be made, all needful and proper repairs, renewals, replacements,
betterments and improvements thereto so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, that nothing in this Section 8.09 shall prevent the Company or any
Company Subsidiary from discontinuing the use, operation or maintenance of any
of such properties, or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors or the board of directors
of such Company Subsidiary, or of any executive officer of the Company or such
Company Subsidiary, as applicable, having managerial responsibility for any such
property, desirable in the conduct of the business of the Company or such
Company Subsidiary.
SECTION 8.10 TYPE OF BUSINESS. The Company shall, and shall cause
each Company Subsidiary to, remain in substantially the same businesses in which
the Company and the Company Subsidiaries are engaged as of the date of this
Indenture or in other types of businesses reasonably related or incidental
thereto, except to the extent that any such business of the Company or any
Company Subsidiary is continued by the Company or any other Company Subsidiary.
SECTION 8.11. INVESTMENTS. The Company shall not, and shall not
permit any Company Subsidiary to, make or have outstanding any loan or advance
to, or own purchase or acquire any obligations (other than accounts receivable
generated in the ordinary course of business) or Securities of, or any interest
in, or make any capital contribution to or acquire all or substantially all of
the assets of, any other Person, other than: (a) strategic investments which in
the good faith business judgment of the Board of Directors of the Company or the
board of directors of the Company Subsidiary which proposes to make such
investment, as the case may be, are in furtherance of the business purposes of
the Company or the Company Subsidiary making such investment; (b) endorsement of
negotiable instruments for collection or deposit in the ordinary course of
business; (c) ownership of stock of the Company Subsidiaries; and (d) redemption
of the Securities as permitted by the Securities under this Indenture.
SECTION 8.12. USE OF PROCEEDS. The Company shall use the proceeds
from the sale of the Securities as specified in the Offering Memorandum pursuant
to which the Securities were offered for sale.
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SECTION 8.13. DIVIDENDS, ETC. The Company will not declare or pay
any dividend on its capital stock (other than stock dividends), and, except as
expressly permitted by this Indenture and the Securities, the Company will not,
and will not permit any Company Subsidiary, to purchase, redeem, retire or
acquire any capital stock or securities of the Company, such Company Subsidiary
or another Company Subsidiary which is, directly or indirectly, convertible into
or exchangeable for capital stock of the Company, such Company Subsidiary or
another Company Subsidiary, or subordinated debt of the Company or such Company
Subsidiary or another Company Subsidiary (except in accordance with the
mandatory provisions of any securities which are or constitute convertible
securities or subordinated indebtedness of any such corporations), or any
option, warrant or other right of the Company to acquire any such capital stock,
convertible securities or subordinated debt; provided that the Company may
exercise its option pursuant to its July 1997 Shareholder Agreements with
certain employee-shareholders to purchase shares of Common Stock of the Company
held by any such shareholder upon death or termination of employment of such
shareholder, provided that at the time the Company may seek to exercise any such
option no Default or Event of Default shall have occurred and be continuing and
immediately after giving effect to the exercise by the Company of such option,
no Default or Event of Default shall have occurred and be continuing.
SECTION 8.14. COMPLIANCE WITH LAWS, ETC. The Company will comply,
and will cause each of the Company Subsidiaries to comply, in all material
respects with all Requirements of Law and Contractual Obligations applicable to
or binding upon any of them.
SECTION 8.15. TRANSACTIONS WITH AFFILIATES. The Company will not,
and will not permit any Company Subsidiary to, directly or indirectly purchase,
acquire or lease any property from, or sell, transfer or lease any property to,
or otherwise deal with, in the ordinary course of business or otherwise, any
Affiliate, except (a) upon terms not less favorable to Company or the Company
Subsidiary than if the Affiliate relationship did not exist and provided the
transaction is approved by a majority of the Independent Directors of the Board
of Directors of the Company; and (b) for the transactions and obligations
disclosed under "Certain Relationships and Related Transactions" in the
Company's Proxy Statement for its 1998 Annual Meeting of Shareholders.
SECTION 8.16. LIMITATION ON LIENS. If the Company or any Company
Subsidiary shall at any time create, incur, assume or permit to exist any Lien
on any assets of the Company or such Company Subsidiary or any income or profits
therefrom, then the Company shall, prior to or simultaneously with the creation,
incurrence, assumption or commencement of existence of such Lien,
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secure or cause to be secured the due and punctual payment of the principal of,
premium, if any, and interest on, and the Redemption Price and Purchase Price in
respect of the Securities, equally and ratably with any and all indebtedness
secured by such Lien; provided, however, that this covenant shall not apply in
the case of Liens arising in the ordinary course of business of the Company or a
Company Subsidiary, as applicable, or Liens on any assets of the Company or a
Company Subsidiary securing Senior Indebtedness.
ARTICLE IX
REDEMPTION
SECTION 9.01. SELECTION OF SECURITIES TO BE REDEEMED. If the
Company, as permitted by the terms of the Securities, shall establish a
Redemption Date for the Securities, then, if less than all the Securities are to
be redeemed (as expressly permitted by the form of Securities set forth as
Exhibits A and B hereto), the Trustee shall select the Securities to be redeemed
on a pro rata basis, by lot or by such method as the Trustee shall deem fair and
appropriate. The Trustee shall make the selection not more than 60 days and not
less than 30 days before the Redemption Date from Outstanding Securities not
previously called for redemption. The Trustee may, by such method as it shall
deem fair and appropriate, select for redemption portions of the principal of
Securities that have denominations of $10,000 or integral multiples thereof.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly of the Securities or portions of Securities to be called
for redemption.
If any Security selected for partial redemption is converted in
part after such selection, the converted portion of such Security shall be
deemed (so far as may be) to be the portion to be selected for redemption. The
Securities (or portions thereof) so selected shall be deemed duly selected for
redemption for all purposes hereof, notwithstanding that any such Security is
converted in whole or in part before the mailing of the notice of redemption.
Upon any redemption of less than all the Securities, the Company and the Trustee
may treat as an Outstanding Security any Security surrendered for conversion
during the period 15 days preceding the mailing of a notice of redemption and
need not treat as an Outstanding Security any Security authenticated and
delivered during such period in exchange for the unconverted portion of any
Security converted in part during such period.
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SECTION 9.02. NOTICE OF REDEMPTION. At least 30 days but not more
than 60 days before a Redemption Date, the Company shall give notice of
redemption in accordance with Section 1.06.
All notices of redemption shall identify the Securities to be
redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if any Security is being redeemed in part, (i) the portion of
the principal amount of such Security to be redeemed and the aggregate principal
amount of Outstanding Securities after such partial redemption, (ii) the last
date on which exchanges or registration of transfers of Securities may be made
pursuant to Section 2.05 hereof and (iii) the serial numbers of the Securities
and the portions thereof called for redemption and that, after the Redemption
Date, upon cancellation of such Security, a new Security or Securities in
principal amount equal to the unredeemed portion will be issued in the name of
the Holder thereof;
(d) the then current Conversion Price and the date on which the
right to convert Securities or portions thereof to be redeemed will expire and
the places where such Securities may be surrendered for conversion;
(e) the names and addresses of the Paying Agents;
(f) that Securities called for redemption must be surrendered to
a Paying Agent outside the United States to collect the Redemption Price plus
accrued and unpaid interest;
(g) on the Redemption Date, the Redemption Price and interest on
the Securities to be redeemed, accrued through the Redemption Date, will become
due and payable and that, unless the Company defaults in making such redemption
payment or the Paying Agents are prohibited from making such payment pursuant to
the terms of this Indenture, interest on Securities called for redemption ceases
to accrue on and after the earlier of the Redemption Date and the Conversion
Date;
At the Company's request, the Trustee shall give notice of
redemption in the Company's name and at its expense.
SECTION 9.03. EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is mailed or otherwise provided, Securities called for redemption
become due and payable on the Redemption Date at the Redemption Price set forth
in the Security.
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SECTION 9.04. DEPOSIT OF REDEMPTION PRICE. Prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 8.03) money sufficient to pay the Redemption
Price of, and accrued interest up to, but not including, such Redemption Date,
in respect of, all Securities to be redeemed on such date (subject to the right
of holders of record on the relevant Record Date to receive interest due on an
Interest Payment Date) unless such Securities have theretofore converted into
Common Stock pursuant to the provisions hereof. The Trustee or such Paying Agent
shall return to the Company any money not required for that purpose.
SECTION 9.05. SECURITIES REDEEMED IN PART. Upon cancellation of a
Security that is redeemed in part, the Company shall issue and the Trustee shall
authenticate for the Holder at the expense of the Company a new Security equal
in principal amount to the unredeemed portion of the Security surrendered.
SECTION 9.06. PAYMENT OF REDEMPTION PRICE. In the event of a
redemption of Securities by the Company, the Company shall pay or cause to be
paid to the Trustee or any Paying Agent the Redemption Price; provided, however,
that installments of interest that mature on or prior to the Redemption Date
shall be payable in cash to the Holders of Securities to be redeemed, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Regular Record Date according to the terms and provisions of Article
II.
ARTICLE X
CONVERSION
SECTION 10.01. CONVERSION RIGHT. A Holder of a Security may
convert the principal amount thereof (or any portion thereof that is an integral
multiple of $1,000) into fully paid and nonassessable shares of Common Stock of
the Company ("Conversion Shares") at any time on or after November 30, 1998 and
prior to the close of business (New York time) on the date of Maturity of such
Security, at the Conversion Price then in effect, except that, with respect to
any Security called for redemption or repurchase, such conversion right shall
terminate at the close of business on the Redemption Date or the Purchase Date,
as the case may be. The number of shares of Common Stock issuable upon
conversion of a Security shall be determined by dividing the principal amount of
the Security to be converted by the conversion price in effect on the Conversion
Date (the "Conversion Price").
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The initial Conversion Price is stated in the forms of the
Securities set forth in the Exhibits A and B hereto and is subject to adjustment
as provided in this Article X.
Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of it. A Holder of Securities is
not entitled to any rights of a holder of Conversion Shares until such Holder of
Securities has converted such Securities into Conversion Shares, and only to the
extent that such Securities are deemed to have been converted into Conversion
Shares under this Article X.
SECTION 10.02. CONVERSION PRIVILEGE. To convert a Security, a
Holder must (1) complete and sign a notice of election to convert substantially
in the forms set forth in Exhibits A and B hereto (each, a "Conversion Notice"),
(2) surrender the Security to a Conversion Agent, (3) furnish appropriate
endorsements or transfer documents if required by the Registrar, Transfer Agent
or Conversion Agent and (4) pay any transfer or similar tax, if required. The
date on which the Holder satisfies all of those requirements is the conversion
date (the "Conversion Date"). As soon as practicable after the Conversion Date,
the Company shall deliver to the Holder through the Conversion Agent, a
certificate for the number of whole Conversion Shares issuable upon such
conversion and a check for any fractional Conversion Share determined pursuant
to Section 10.04 and (except as provided in the next paragraph) for interest on
such Security accrued through the Conversion Date. The person in whose name the
certificate for Conversion Shares is to be registered shall become the
shareholder of record on the Conversion Date and, as of the Conversion Date, the
rights of the Holder of the Securities shall cease as to the portion thereof so
converted; provided, however, that no surrender of a Security on any date when
the stock transfer books of the Company shall be closed shall be effective to
constitute the Person entitled to receive the Conversion Shares upon such
conversion as the shareholder of record of such shares of Common Stock on such
date, but such surrender shall be effective to constitute the Person entitled to
receive such Conversion Shares as the shareholder of record thereof for all
purposes at the close of business on the next succeeding day on which such stock
transfer books are open; provided further that such conversion shall be at the
Conversion Price in effect on the date that such Security shall have been
surrendered for conversion, as if the stock transfer books of the Company had
not been closed.
No payment or adjustment will be made in respect of dividends or
distributions on Conversion Shares. If any Holder surrenders a Security for
conversion after the close of business on the Record Date for the payment of an
installment of interest and prior to the opening of business on the next
Interest Payment Date, then, notwithstanding such conversion, the interest
payable on such Interest Payment Date shall be paid to the Holder of such
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Security on such Record Date. In such event, such Security, when surrendered for
conversion, must be accompanied by payment in funds acceptable to the Company of
an amount equal to the interest payable on such Interest Payment Date on the
portion so converted.
If a holder converts more than one Security at the same time, the
number of whole Conversion Shares issuable shall be based on the total principal
amount of Securities converted.
Upon surrender of a Security that is converted in part, the
Trustee shall authenticate for the Holder a new Security equal in principal
amount to the unconverted portion of the Security surrendered.
SECTION 10.03. PARTIAL CONVERSION
In the case of any Security which is converted in part only, upon
such conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denomination in an aggregate principal amount equal to
the unconverted portion of the principal amount of such Security. A Security may
be converted in part, but only if the principal amounts of such Security, both
to be converted and to remain Outstanding after such conversion, equal
U.S.$10,000 or an integral multiple thereof.
SECTION 10.04. FRACTIONS OF SHARES.
No fractional Conversion Shares shall be issued upon conversion
of any Security. Instead of any fractional Conversion Share which would
otherwise be issuable upon conversion of any Security, the Company shall
calculate and pay a cash adjustment in respect of such fraction (calculated to
the nearest 1/100th of a Share) in an amount equal to the same fraction of the
Conversion Price per Conversion Share at the close of business on the Conversion
Date.
SECTION 10.05. TAXES ON CONVERSIONS.
The issuance of certificates for Conversion Shares upon the
conversion of any Security shall be made without charge to the converting Holder
for such certificates or for any tax in respect of the issuance of such
certificates, and such certificates shall be issued in the respective names of,
or in such names as may be directed by, the Holder or Holders of the converted
Security; provided, however, that in the event that certificates for Conversion
Shares are to be issued in a name other than the name of the Holder of the
Security converted, such Security, when surrendered for conversion, shall be
accompanied by an instrument of transfer, in form satisfactory to the
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Company, duly executed by the Holder thereof or his duly authorized attorney;
and provided further, moreover, that the Company shall not be required to pay
any tax which may be payable in respect of any transfer involved in the issuance
and delivery of any such certificates in a name other than that of the Holder of
the converted Security, and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid
or is not applicable.
SECTION 10.06. ADJUSTMENT OF CONVERSION PRICE.
(a) In case the Company shall pay or make a dividend or other
distribution to all holders of any class of its capital stock in shares of
Common Stock, the Conversion Price in effect at the opening of business on the
day next following the date fixed for the determination of shareholders entitled
to receive such dividend or other distribution shall be reduced by multiplying
such Conversion Price by a fraction, of which the numerator shall be the number
of shares of Common Stock outstanding at the close of business on the date fixed
for such determination, and the denominator shall be the sum of the numerator
and the total number of shares constituting such dividend or other distribution,
such reduction to become effective immediately after the opening of business on
the day next following the date fixed for such determination. For the purposes
of this Section 10.06(a), the number of shares of Common Stock at any time
outstanding shall not include shares of Common Stock held in the treasury of the
Company. The Company will not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Company.
(b) In case the Company shall (by dividend or otherwise)
distribute to all holders of its Common Stock evidences of indebtedness or
assets (including stock or other securities and cash of the Company or any other
issuer, but excluding any regular cash dividends paid out of earned surplus and
any dividend or distribution referred to in Section 10.06(a)), the Conversion
Price shall be reduced so that the same shall equal the product of multiplying
the Conversion Price in effect immediately prior to the effectiveness of the
Conversion Price reduction contemplated by this Section 10.06(b) by a fraction,
of which the numerator shall be the current market price per share (determined
as provided in the next paragraph of this Section 10.06(b)) of the Common Stock
on the date of such effectiveness less the then fair market value of the portion
of the evidences of indebtedness or assets so distributed applicable to one
share of Common Stock, and the denominator shall be such current market price
per share of the Common Stock. Such reduction shall become effective immediately
prior to the opening of business on the day next following the date fixed for
the
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payment of such distribution. Each reference to "fair market value" in this
Section 10.06 shall mean fair market value as reasonably determined in good
faith by the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution filed with the Trustee.
For the purpose of any computation under this Section 10.06, the
"current market price per share" of Common Stock on any date shall be calculated
by the Company and be deemed to be the average of the Daily Closing Prices Per
Share for each of the five consecutive Trading Days selected by the Company
commencing not more than 10 Trading Days before, and ending not later than, the
earlier of the day in question and the day before the "ex date" with respect to
any issuance or distribution requiring such computation. For purposes of this
paragraph, the term "ex date", when used with respect to any issuance or
distribution, means the first date on which the Common Stock trades regular way
on the applicable securities exchange or in the applicable securities market
without the right to receive such issuance or distribution.
(c) In case the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Conversion Price
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately reduced, and,
conversely, in case the outstanding shares of Common Stock shall each be
combined into a smaller number of shares of Common Stock, the Conversion Price
in effect at the opening of business on the day following the day upon which
such combination becomes effective shall be proportionately increased, such
reduction or increase, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such subdivision
or combination becomes effective.
(d) If the Company shall issue or sell any shares of Common Stock
for a consideration per share less than the current market price per share in
effect immediately prior to the time of such issue (determined as provided in
Section 10.06(b)) or sale or for no consideration (excluding any event set forth
in Section 10.06 (a) or (b)), then, forthwith upon such issue or sale, the
Conversion Price shall be reduced to the consideration per share received by the
Company for the shares of Common Stock issued or sold; provided, however, that
the Conversion Price shall not be reduced by reason of (i) the exercise of any
options or warrants to purchase Common Stock which (A) are outstanding on the
date hereof or (B) are granted hereafter pursuant to a stock incentive plan for
the benefit of employees of the Company and Company Subsidiaries which has been
or may be adopted by the stockholders of the Company; or (ii) the issue or grant
of the options referred to in clause (i)(B) above; or (iii) any shares of Common
Stock, Convertible Securities or options or warrants to subscribe for or
purchase Common Stock or Convertible Securities issued by
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the Company as consideration for the acquisition by the Company or any Company
Subsidiary of a controlling interest in another corporation or all or
substantially all of its assets by merger, purchase or otherwise. In no event
shall the Conversion Price be adjusted so that the Conversion Price per share is
less than the par value per share of the Common Stock.
For purposes of this Section 10.06(d), the following shall be
applicable:
(1) If the Company shall in any manner grant (whether directly or
by assumption in a merger or otherwise) any rights to subscribe for or to
purchase, or any warrants or options for the purchase of Common Stock or any
capital stock or securities convertible into or exchangeable for shares of
Common Stock (such convertible or exchangeable stock or securities being herein
called "Convertible Securities"), whether or not such rights, warrants or
options or the right to convert or exchange any such Convertible Securities are
immediately exercisable, and the price per share for which shares of Common
Stock are issuable upon the exercise of such rights, warrants or options or upon
conversion or exchange of such Convertible Securities shall be less than the
current market price per share in effect immediately prior to the time of the
granting of such rights, warrants or options, as the case may be, then the total
maximum number of shares of Common Stock issuable upon the exercise of such
rights, warrants or options or upon conversion or exchange of all such
Convertible Securities issuable upon the exercise of such rights, warrants or
options shall be deemed to be issued as of the date of the issuance of such
rights, warrants or options and the reduction set forth in Section 10.06(d), if
any, shall be effected as of such date. For the purpose of the preceding
sentence, the price per share for which shares of Common Stock are issuable upon
exercise of rights, warrants or options of the type described in the preceding
sentence or upon conversion or exchange of such Convertible Securities shall be
determined by dividing (i) the total amount (in each case as determined in good
faith by the Board of Directors pursuant to Section 10.06(d)(4)), if any,
received or receivable by the Company as consideration for the granting of such
rights, warrants or options, plus the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the exercise of such rights,
warrants or options, or plus, in the case of such rights, warrants or options
which relate to Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable upon the issue or sale of such
Convertible Securities and upon the conversion or exchange thereof, by (ii) the
total number of shares of Common Stock issuable upon the exercise of such
rights, warrants or options or upon the conversion or exchange, at such time of
all such Convertible Securities issuable upon the exercise of such rights,
warrants or options. Except as provided in clause (3) below, no further
adjustment of the Conversion Price shall be made upon the actual issue of such
shares of
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Common Stock or of such Convertible Securities upon exercise of such rights,
warrants or options or upon the actual issuance of such shares of Common Stock
upon conversion or exchange of such Convertible Securities.
(2) If the Company shall in any manner issue (whether directly or
by assumption in a merger or otherwise) or sell any Convertible Securities,
whether or not the right to exchange or convert thereunder is immediately
exercisable, and the price per share for which shares of Common Stock are
issuable upon such conversion or exchange (determined by dividing (i) the total
amount, if any, received or receivable by the Company as consideration for the
issue or sale of such Convertible Securities, plus the minimum aggregate amount
of additional consideration, if any, payable to the Company upon the conversion
or exchange thereof, by (ii) the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such Convertible Securities)
shall be less than the current market price per share in effect immediately
prior to the time of such issue or sale, then the total maximum number of shares
of Common Stock issuable upon conversion or exchange of all such Convertible
Securities shall be deemed to be issued as of the date of the issuance of such
Convertible Securities and the reduction set forth in Section 10.06(d), if any,
shall be effected as of such date, (a) except as otherwise provided in clause
(3) below, no further adjustment of the Conversion Price shall be made upon the
actual issue of such shares of Common Stock upon conversion or exchange of such
Convertible Securities, and (b) if any such issue or sale of such Convertible
Securities is made upon exercise of any rights to subscribe for or to purchase
or any warrant or option to purchase any such Convertible Securities for which
adjustments of the Conversion Price have been or are to be made pursuant to the
provisions of clause (1) above, no further adjustment of the Conversion Price
shall be made by reason of such issue or sale.
(3) Upon the happening of any of the following events, namely, if
the purchase price provided for in any right, warrant or option referred to in
clause (1) above, or the additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities referred to in clauses (1)
or (2) above, or the rate at which any Convertible Securities referred to in
clauses (1) or (2) above are convertible into or exchangeable for shares of
Common Stock, shall change (other than under or by reason of provisions designed
to protect against dilution), the Conversion Price then in effect hereunder
shall forthwith be readjusted (increased or decreased, as the case may be) to
the Conversion Price which would have been in effect at such time had such
rights, warrants or options or Convertible Securities still outstanding provided
for such changed purchase price, additional consideration or conversion rate, as
the case may be, at the time they had initially been granted, issued or sold. On
the expiration of any such option or right referred to
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in clause (1) above, or the termination of any such right to convert or exchange
any such Convertible Securities referred to in clauses (1) or (2) above, the
Conversion Price then in effect hereunder shall forthwith be readjusted
(increased or decreased, as the case may be) to the Conversion Price which would
have been in effect at the time of such expiration or termination had such
right, warrant, option or Convertible Securities, to the extent outstanding
immediately prior to such expiration or termination, never been granted, issued
or sold, and the shares of Common Stock issuable thereunder shall no longer be
deemed to be outstanding. If the purchase price provided for in any such right
or option referred to in clause (1), or the rate at which any Convertible
Securities referred to in clauses (1) or (2) are convertible into or
exchangeable for shares of Common Stock, shall be reduced at any time under or
by reason of provisions with respect thereto designed to protect against
dilution, then in case of the delivery of shares of Common Stock upon the
exercise of any such right, warrant or option or upon conversion or exchange of
any such Convertible Securities, the Conversion Price then in effect hereunder
shall, if not already adjusted, forthwith be adjusted to such amount as would
have been obtained had such right, warrant, option or Convertible Securities
never been issued as to such shares of Common Stock and had adjustments been
made upon the issuance of such shares of Common Stock delivered as aforesaid,
but only if as a result of such adjustment the Conversion Price then in effect
hereunder is thereby reduced.
Notwithstanding the foregoing, if an adjustment has been made to
the Conversion Price as a result of the issuance of any class of rights,
warrants, options or Convertible Securities, and a portion of such class has
been exercised, converted or exchanged, then no increase in the Conversion Price
shall be made by reason of a subsequent change in the purchase price, or
conversion rate, as the case may be, or the expiration, of any such rights,
options or Convertible Securities remaining outstanding.
(4) In case at any time shares of Common Stock or Convertible
Securities or any rights, warrants or options to purchase shares of Common Stock
or Convertible Securities, shall be issued or sold for cash, the consideration
therefor shall be the amount of such cash consideration. In case at any time any
shares of Common Stock, Convertible Securities or any rights, warrants or
options to purchase any such shares of Common Stock or Convertible Securities
shall be issued or sold for consideration other than cash, the amount of the
consideration other than cash received by the Company shall be deemed to be the
fair value of such consideration, as determined reasonably and in good faith by
the Board of Directors.
(5) In case at any time any shares of Common Stock, Convertible
Securities or any rights, warrants or options to
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purchase any shares of Common Stock or Convertible Securities shall be issued in
connection with any merger or consolidation in which the Company is the
surviving corporation, the amount of consideration received therefor shall be
deemed to be the fair market value, of such portion of the assets and business
of the nonsurviving corporation as the Board of Directors may reasonably
determine in good faith to be attributable to such shares of Common Stock,
Convertible Securities, rights or options, as the case may be.
(6) In case at any time any rights, warrants or options to
purchase any shares of Common Stock or Convertible Securities shall be issued in
connection with the issue and sale of other securities of the Company, together
comprising one integral transaction in which no consideration is allocated to
such rights or options by the parties thereto, such rights, warrants or options
shall be deemed to have been issued without consideration; and if a specific
amount of consideration is allocated to such rights, warrants or options, such
rights, warrants or options shall be deemed to have been issued for such
consideration.
(7) In the event of any consolidation or merger of the Company in
which stock or securities of another corporation are issued in exchange for
Common Stock of the Company or in the event of any sale of all or substantially
all of the assets of the Company in exchange for stock or other securities of
another corporation, the Company shall be deemed to have issued a number of
shares of its Common Stock for stock or securities of the other corporation
computed on the basis of the actual exchange ratio on which the transaction was
predicated and for a consideration equal to the fair market value on the date of
such transaction of such stock or securities of the other corporation, as
reasonably determined in good faith by the Board of Directors, and if any such
calculation results in adjustment of the Conversion Price, the determination of
the number of Conversion Shares receivable upon conversion of this Security
immediately prior to such merger, consolidation or sale, for purposes of Section
10.12, shall be made after giving effect to such adjustment of the Conversion
Price.
(e) In case the Company shall fail to take a record of the
holders of its shares of Common Stock for the purpose of entitling them (i) to
receive a dividend or other distribution payable in shares of Common Stock or
Convertible Securities, or (ii) to subscribe for or purchase shares of Common
Stock or Convertible Securities, then such record date shall be deemed to be the
date of the issue or sale of the shares of Common Stock or Convertible
Securities deemed to have been issued or sold as a result of the declaration of
such dividend or the making of such other distribution or the date of the
granting of such right of subscription or purchase, as the case may be.
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SECTION 10.07. NO ADJUSTMENT UNDER CERTAIN CIRCUMSTANCES. No
adjustment in the Conversion Price shall be required unless such adjustment
would require an increase or decrease of at least one percent (1%) in the
Conversion Price; provided, however, that any adjustments which by reason of
this Section 10.07 are not required to be made shall be carried forward and
taken into account in any subsequent adjustment.
SECTION 10.08. OTHER ADJUSTMENTS. In the event that, as a result
of an adjustment made pursuant to Section 10.06 hereof, the holder of any
Security thereafter surrendered for conversion shall become entitled to receive
any shares of capital stock of the Company other than shares of its Common
Stock, then, thereafter, the Conversion Price of such other shares so receivable
upon conversion of any Securities shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in this Article X.
SECTION 10.09. ADJUSTMENTS FOR TAX PURPOSES. The Company may, at
its option, make such reductions in the Conversion Price, in addition to those
required by Section 10.06 hereof, as it determines to be advisable in order that
any stock dividend, subdivision of shares of Common Stock, distribution of
rights to purchase Common Stock or Convertible Securities or distribution of
Convertible Securities made by the Company to holders of Common Stock will not
be taxable to the recipients thereof.
SECTION 10.10 NOTICE OF ADJUSTMENT. Whenever the Conversion Price
is adjusted, the Company shall give notice to the Holders in accordance with
Section 1.06 and file with the Trustee an Officers' Certificate briefly stating
the facts requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence of the correctness of such adjustment.
Copies of such notice will be available to Holders on request at the office of
each Conversion Agent.
SECTION 10.11. NOTICE OF CERTAIN TRANSACTIONS. In the event
that:
(1) the Company takes any action which would require an
adjustment in the Conversion Price;
(2) the Company takes any action that would require a
supplemental indenture pursuant to Section 10.12; or
(3) there is a dissolution or liquidation of the
Company;
a Holder of a Security may wish to convert such Security into shares of Common
Stock prior to the record date for or the
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effective date of the transaction so that he may receive the rights, warrants,
securities or assets which a holder of shares of Common Stock on that date may
receive. Therefore, the Company shall give notice to the Holders in accordance
with Section 1.06 and to the Trustee stating the proposed record or effective
date, as the case may be. Failure to give such notice or any defect therein
shall not affect the validity of any transaction referred to in clause (1), (2)
or (3) of this Section 10.11.
SECTION 10.12. EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS,
MERGERS OR SALES OF ASSETS. If any of the following shall occur, namely:
(a) any reclassification or change of outstanding shares of
Common Stock issuable upon conversion of Securities (other than a change in par
value, or from par value to no par value, or from no par value to par value, or
as a result of a subdivision or combination);
(b) any consolidation or merger to which the Company is a party
other than a merger in which the Company is the continuing corporation and which
does not result in any reclassification of, or change (other than a change in
name, or par value, or from par value to no par value, or from no par value to
par value or as a result of a subdivision or combination) in, outstanding shares
of Common Stock; or
(c) any sale or conveyance of all or substantially all
of the property or business of the Company and the Company
Subsidiaries as an entirety;
then the Company, or such successor or purchasing corporation, as the case may
be, shall, as a condition precedent to such reclassification, change,
consolidation, merger, sale or conveyance, execute and deliver to the Trustee a
supplemental indenture in form satisfactory to the Trustee providing that the
holder of each Security then outstanding shall have the right to convert such
Security into the kind and amount of shares of stock and other securities and
property (including cash) receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder of the number of shares of
Common Stock deliverable upon conversion of such Security immediately prior to
such reclassification, change, consolidation, merger, sale or conveyance. Such
supplemental indenture shall provide for adjustments of the Conversion Price
which shall be as nearly equivalent as may be practicable to the adjustments of
the Conversion Price provided for in this Article X. If, in the case of any such
consolidation, merger, sale or conveyance, the stock or other securities and
property (including cash) receivable thereupon by a holder of Common Stock
includes shares of stock or other securities and property of a corporation other
than the successor or purchasing corporation, as the case may be, in such
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consolidation, merger, sale or conveyance, then such supplemental indenture
shall also be executed by such other corporation and shall contain such
additional provisions to protect the interests of the holders of the Securities
as the Board of Directors of the Company shall reasonably consider necessary by
reason of the foregoing. The provisions of this Section 10.12 shall similarly
apply to successive consolidations, mergers, sales or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 10.12, the Company shall promptly file with the Trustee
an Officers' Certificate briefly stating the reasons therefor, the kind or
amount of shares of stock or securities or property (including cash) receivable
by Holders of the Securities upon the conversion of their Securities after any
such reclassification, change, consolidation, merger, sale or conveyance and any
adjustment to be made with respect thereto. Neither the Trustee nor any
Conversion Agent shall have any duty whatsoever to determine whether a
supplemental indenture under this Section 10.12 is required or what the
provisions of such supplemental indenture should be, but may accept as
conclusive evidence of the correctiveness of such provisions, an Opinion of
Counsel with respect thereto, which the Company shall cause to be furnished to
the Trustee upon request.
SECTION 10.13. COMPANY TO RESERVE COMMON STOCK. The Company shall
at all times reserve and keep available, free from preemptive rights, out of its
authorized and unissued Common Stock, solely for the purpose of effecting the
conversion of Securities, the full number of shares then issuable upon the
conversion in full of all Outstanding Securities.
ARTICLE XI
SUBORDINATION
SECTION 11.01. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS. The
Company covenants and agrees, and each Holder of a Security, by his acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article, the indebtedness represented by the
Securities and the payment of the principal of, premium, if any, accrued
interest on, the Redemption Price or Purchase Price in respect of, each and all
of the Securities are hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness.
SECTION 11.02. PAYMENT OVER OF PROCEEDS UPON
DISSOLUTION, ETC. Upon any distribution of assets of the Company
in the event of
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(a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding,
relative to the Company or to its creditors, as such, or to its assets, or
(b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or
(c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, or
(d) any other event which would constitute an Event of Default
specified in Section 3.01(g) or Section 3.01(h).
then, and in any such event, the holders of Senior Indebtedness
shall be entitled to receive
(1) payment in full of all amounts due or to
become due on or in respect of all Senior Indebtedness, or provision shall be
made for such payment, before the Holders of the Securities are entitled to
receive any payment (other than Permitted Junior Securities) on account of the
principal of, premium if any, accrued interest on, Redemption Price, Purchase
Price or cash in lieu of fractional shares on conversion or in respect of the
Securities, and
(2) any payment or distribution of any kind or
character, whether in cash, property or securities (other than Permitted Junior
Securities), which may be payable or deliverable in respect of the Securities in
any such case, proceeding, dissolution, liquidation or other winding up or
event, including any such payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than Permitted Junior
Securities), including any such payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities, before all Senior
Indebtedness is paid in full, or payment thereof provided for, and if prior to
the time of such payment or distribution, the Trustee or such Holder shall have
received written notice from the Company or a holder of Senior Indebtedness of
the occurrence of any such event and the fact that the Senior Indebtedness has
not been paid in full, then, in such event, such payment or distribution shall
be paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, Custodian, assignee, agent or other Person
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making payment or distribution of assets of the Company for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent necessary to
pay, or provide for the payment of, all Senior Indebtedness in full, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company into, another person or the liquidation or dissolution of the Company
following the conveyance or transfer of its properties and assets substantially
as an entirety to another person upon the terms and conditions set forth in
Article V shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of assets
and liabilities of the Company for the purposes of this Section if the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer such assets substantially as an
entirety, as the case may be, shall as part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article V.
SECTION 11.03. DEFAULT ON SENIOR INDEBTEDNESS. The Company may
not make any payment of the principal of, premium, if any, accrued interest on,
or the Redemption Price or Purchase Price in respect of, the Securities, nor may
the Company acquire any Securities for cash or property (except as otherwise
provided by Article X and other than for capital stock of the Company) if:
(1) a payment default on any Senior Indebtedness has
occurred and is continuing beyond any applicable grace period with respect
thereto; or
(2) a default (other than a default referred to
in the preceding clause (1)) on any Senior Indebtedness occurs and is continuing
that permits holders of such Senior Indebtedness to accelerate the maturity
thereof and the default is the subject of judicial proceedings or the Company
receives a notice of default thereof from any Person who may give such notice
pursuant to the instrument evidencing or document governing such Senior
Indebtedness (a "Senior Indebtedness Default Notice").
If the Company receives a Senior Indebtedness Default Notice,
then a similar notice received within nine months thereafter relating to the
same default on the same issue of Senior Indebtedness shall not be effective for
purposes of this Section 11.03. The Company may resume payment on the Securities
and may acquire Securities if and when:
(a) the default referred to above is cured or waived as provided
or permitted in accordance with the terms of the applicable Senior Indebtedness;
or
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(b) in the case of a default referred to in clause (2) of the
preceding paragraph, 179 or more days pass after the receipt by the Company of
the Senior Indebtedness Default Notice described in clause (2) above; and
this Indenture otherwise permits the payment or acquisition at
that time.
In the event that, notwithstanding the foregoing, the Company
makes a payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and the Trustee, subject to Sections 11.09
and 11.11, or such Holder receives written notice from the Company or a holder
of Senior Indebtedness prior to the receipt of such payment that any such
payment is prohibited, then, and in such event, such payment shall (to the
extent permitted by law) be paid over and delivered forthwith to the Company by
or on behalf of the Person holding such payment for the benefit of the holders
of the Senior Indebtedness.
Nothing contained in this Article XI or elsewhere in this
Indenture or in any of the Securities shall prevent the conversion by a Holder
of any Securities into shares of Common Stock in accordance with the provisions
for conversion of such Securities set forth in this Indenture, including the
payment of cash in lieu of fractional shares of Common Stock in accordance with
Article XI, or in any of such Securities in the event of an occurrence of the
events described in this Section 11.04.
The provisions of this Section shall not apply to any payment
with respect to which Section 11.02 would be applicable.
SECTION 11.04. PAYMENT PERMITTED IF NO DEFAULT. Nothing contained
in this Article XI or elsewhere in this Indenture or in any of the Securities
shall prevent the Company, at any time except during the pendency of any case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshalling of assets and liabilities of the
Company referred to in Section 11.02 or under the conditions described in
Section 11.03, from making payments at any time of the principal of, premium, if
any, accrued interest on, or the Redemption Price or Purchase Price, as the case
may be, in respect of the Securities.
SECTION 11.05. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS. Subject to payment in full of all Senior Indebtedness to the
extent and in the manner set forth in this Article XI, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to
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indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of such Senior Indebtedness to receive payments or distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal amount of, premium, if any, accrued interest on, or the Redemption
Price or Purchase Price, in respect of, the Securities shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders of
the Senior Indebtedness of any cash, property or securities to which the Holders
of the Securities or the Trustee would be entitled, except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 11.06. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of Senior Indebtedness, on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Indebtedness, is intended to rank
equally with all other general obligations of the Company), to pay to the
Holders of the Securities the principal of, premium, if any, accrued interest
on, or the Redemption Price or Purchase Price in respect of the Securities, as
and when the same shall become due and payable in accordance with the terms of
the Securities and this Indenture; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other than
the holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
SECTION 11.07. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder
of a Security, by his acceptance thereof, authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
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SECTION 11.08. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act by any such holder, or by any non-compliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew, increase
or alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
SECTION 11.09. NOTICE TO TRUSTEE. The Company shall give prompt
written notice to a Responsible Officer of the Trustee of any fact known to the
Company which would prohibit the making of any payment to or by the Trustee in
respect of the Securities. Notwithstanding the provisions of this Article or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof from the Company or a holder
of Senior Indebtedness or from any trustee therefor; and, prior to the receipt
of any such written notice, the Trustee shall be entitled in all respects to
assume that no such facts exist.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee therefor). In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution
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pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 11.10. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the Holders of the Securities shall
be entitled to rely upon any final, nonappealable order or decree entered by any
court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, Custodian, receiver, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
SECTION 11.11. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other Person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
or otherWise. The Trustee shall not be charged with knowledge of the existence
of Senior Indebtedness or of any facts that would prohibit any payment hereunder
or that would permit the resumption of any such payment unless a Responsible
Officer of the Trustee shall have received notice to that effect at the address
of the Trustee set forth in Section 11.06. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article XI and no
implied covenants or obligations with respect to holders of Senior Indebtedness
shall be read into this Indenture against the Trustee.
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SECTION 11.12. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR
INDEBTEDNESS; PRESERVATION OF TRUSTEE'S RIGHTS. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness which may at any time be held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 4.07.
SECTION 11.13. ARTICLE X APPLICABLE TO PAYING AGENTS. In case at
any time any Paying Agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided, however, that Sections 11.09
and 11.11 shall not apply to the Company or any Affiliate of the Company if it
or such Affiliate acts as Paying Agent.
ARTICLE XII
REPURCHASE ON CHANGE IN CONTROL
SECTION 12.01. RIGHT TO REQUIRE REPURCHASE. In the event that a
Change in Control shall occur, then each Holder of Securities shall have the
right (the "Repurchase Right"), at such Holder's option, to require the Company
to repurchase, and upon the exercise of such Repurchase Right the Company shall
purchase, all of such Holder's Securities on the date (the "Purchase Date") that
is 45 days after the date of the Company Notice at a purchase price equal to
100% of the principal amount of the Securities to be repurchased plus accrued
and unpaid interest to the Purchase Date (the "Purchase Price"); provided,
however, that installments of interest on Securities whose Stated Maturity is on
or prior to the Purchase Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such on the
relevant Record Date according to their terms and the provisions of Section
2.07. Whenever in this Indenture there is a reference, in any context, to the
principal of any Security as of any time, such reference shall be deemed to
include reference to the Purchase Price payable in respect of such Security to
the extent that such Purchase Price is, was or would be so payable at such time,
and express reference to the Purchase Price in any provision of this Indenture
shall not be construed as excluding the Purchase Price in those provisions of
this Indenture where such express reference is not made.
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SECTION 12.02. NOTICES; METHOD OF EXERCISING PURCHASE RIGHT, ETC.
(a) On or before the 30th day after the occurrence of a Change in Control, the
Company or, at the request and expense of the Company, the Trustee, shall give
to all Holders of Securities, in the manner provided in Section 1.06, notice
(the "Company Notice") of the occurrence of a Change in Control and of the
Repurchase Right set forth herein arising as a result thereof. The Company
shall, so long as the Debentures are listed on the Luxembourg Stock Exchange,
and the rules of such Stock Exchange so require, cause the Company Notice to be
published in an Authorized Newspaper in Luxembourg, and also deliver a copy of
such notice of a repurchase right to the Trustee.
Each Company Notice shall include a form of change in control
purchase notice ("Change in Control Purchase Notice") to be completed by each
Holder and shall state:
(i) the Purchase Date;
(ii) the date by which the Repurchase Right must be exercised
("Repurchase Expiry Date");
(iii) the Purchase Price;
(iv) a description of the procedure which a Holder must follow to
exercise a Repurchase Right and the place or places where such Securities are to
be surrendered for payment of the Purchase Price;
(v) that on the Purchase Date the Purchase Price will become due
and payable upon each such Security designated by the Holder to be repurchased,
and that interest thereon shall cease to accrue on and after the Repurchase
Expiry Date; and
(vi) the Conversion Price then in effect, that at the close of
business on the Repurchase Expiry Date, the right to convert the principal
amount of the Securities to be repurchased will terminate, and the place or
places where such Securities may be surrendered for conversion.
No failure of the Company to give the foregoing notices or defect
therein shall limit any Holder's right to exercise a Purchase Right or affect
the validity of the proceedings for the repurchase of Securities.
If any of the foregoing provisions or other provisions of this
Article are inconsistent with applicable law, such law shall govern.
(b) To exercise a Repurchase Right, a Holder of Securities shall
deliver, in accordance with the procedure set
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<PAGE> 85
forth in the Company Notice, on or before the 45th day after the date of the
Company Notice:
(i) Change in Control Purchase Notice, which Notice shall set
forth:
(A) the name of the Holder;
(B) the principal amount of the Securities to be
repurchased; and
(C) a statement that an election to exercise the
Repurchase Right is being made thereby; and
(ii) the Securities with respect to which the Repurchase Right is
being exercised, which shall be all of such Holder's Securities or any portion
thereof which is an authorized denomination of such Securities. Such Change in
Control Notice shall be irrevocable, except that the right of the Holder to
convert the Securities with respect to which the Repurchase Right is being
exercised shall continue until the close of business on the Purchase Date.
(c) In the event a Repurchase Right shall be exercised in
accordance with the terms hereof, the Company shall pay or cause to be paid to
the Trustee or any Paying Agent the Purchase Price in cash for payment to the
Holder on the Purchase Date provided, however, that installments of interest
that mature on or prior to the Purchase Date shall be payable in cash to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Regular Record Date according to
the terms and provisions of Article II.
(d) If any Security (or portion thereof) surrendered for
repurchase shall not be so paid on the Purchase Date, the principal amount of
such Security (or portion thereof, as the case may be) shall, until paid, bear
interest from the Purchase Date at the rate borne by such Security, and each
Security shall remain convertible into Common Stock until the principal,
together with any accrued and unpaid interest thereon, of such Security (or
portion thereof, as the case may be) shall have been paid or duly provided for.
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE;
DEPOSITED MONEYS
SECTION 13.01. SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall, upon Company Request, cease to
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<PAGE> 86
be of further effect (except as to any surviving rights of conversion, exchange,
or replacement of Securities herein expressly provided for and any right to
receive Additional Amounts as provided in the forms of Securities set forth in
Exhibits A and B hereto and the Company's obligations to the Trustee pursuant to
Section 4.07, and the Trustee, at the expense of the Company, shall execute
proper instruments in form and substance satisfactory to the Trustee
acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and
delivered (other than (1) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.06 and (2)
Securities for whose payment money had theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 8.03) have been delivered
to the Trustee for cancellation; or
(ii) all such Securities not theretofore
delivered to the Trustee or the Paying Agent or its agent for cancellation
(other than Securities referred to in Section 13.01(a)(1) and (2) above):
(1) have become due and payable; or
(2) have been called for redemption pursuant
to Article IX, or provision satisfactory to the Trustee shall have been made for
the giving of notice of redemption as provided in Article IX, and the Company
shall have deposited or caused to be deposited in trust with the Trustee or a
Paying Agent (other than the Company) funds (to be immediately available for
payment) in an amount sufficient to pay at maturity or upon redemption such
Securities not theretofore delivered to the Trustee for cancellation, including
principal, premium, if any, and interest due or to become due to the Maturity
Date, Redemption Date or Purchase Date, as the case may be;
(3) the Company has paid or caused to be paid all
other sums payable thereunder by the Company; and
(4) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
(b) all obligations of the Company in respect of the Securities
shall cease and be discharged, and the Holders of such Securities shall
thereafter be restricted exclusively to such funds for any and all claims of
whatsoever nature on their part under this Indenture or with respect to such
Securities.
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<PAGE> 87
Notwithstanding the satisfaction and discharge of this Indenture,
the rights, remedies, immunities and defenses of the Trustee under this
Indenture, including but not limited to those
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<PAGE> 88
contained in Section 4.01, with respect to actions taken or omitted to be taken
pursuant to this Indenture and events occurring prior to such satisfaction and
discharge, and the obligations of the Company to the Trustee under Section 4.07
shall survive.
SECTION 13.02. APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR
PAYMENT OF SECURITIES. All moneys deposited with the Trustee pursuant to Section
13.01 shall be held in trust and applied by it to the payment to the Holders of
the particular Securities, for the payment or redemption of which such moneys
have been deposited with the Trustee, of all sums due and to become due thereon
for principal, premium, if any, and interest.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
NOBLE INTERNATIONAL, LTD.
By
--------------------------------------
Name: Robert J. Skandalaris
Title: Chief Executive Officer
Attest:
- - --------------------------------------
Name: Michael C. Azar
Title: Secretary
AMERICAN STOCK TRANSFER & TRUST COMPANY
By
--------------------------------------
Name: Herbert J. Lemmer
Title:
Attest:
- - --------------------------------------
Name:
Title:
82
<PAGE> 89
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 23rd day of July, 1998, before me personally came Robert
J. Skandalaris, to me known, who, being by me duly sworn, did depose and say
that he is Chief Executive Officer of NOBLE INTERNATIONAL, LTD., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
--------------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of July, 1998, before me personally came Herbert
J. Lemmer, to me known, who, being by me duly sworn, did depose and say that he
is _____________ of American Stock Transfer & Trust Company, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
--------------------------------------
Notary Public
83
<PAGE> 90
EXHIBIT A
[FORM OF FACE OF GLOBAL SECURITY]
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO
REGULATION S, AN EXEMPTION FROM REGISTRATION PURSUANT TO THE PROVISIONS UNDER
THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE SECURITIES
EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY STATE
SECURITIES LAWS. THESE SECURITIES MAY NOT BE TRANSFERRED, OFFERED OR SOLD PRIOR
TO THE END OF THE ONE YEAR (1) PERIOD (THE "DISTRIBUTION COMPLIANCE PERIOD")
COMMENCING ON THE LATER OF (i) THE DATE THE SECURITIES ARE FIRST OFFERED TO
PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S) OR (ii) THE DATE OF
THE FINAL CLOSING OF THE OFFERING OF THE DEBENTURES BY THE COMPANY, UNLESS SUCH
TRANSFER, OFFER OR SALE (i) IS MADE IN AN "OFFSHORE TRANSACTION" AND NOT TO A
"U.S. PERSON" (OTHER THAN A "DISTRIBUTOR") (AS SUCH TERMS ARE DEFINED IN
REGULATION S) OR (ii) IS MADE PURSUANT TO REGISTRATION OR AN APPLICABLE
EXEMPTION UNDER THE SECURITIES ACT. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE CANNOT BE SOLD EXCEPT PURSUANT TO THE TERMS AND CONDITIONS OF THE
DEBENTURE SUBSCRIPTION AGREEMENT BETWEEN THE COMPANY AND THE INITIAL HOLDER OF
THE SECURITIES REPRESENTED BY THIS CERTIFICATE, A COPY OF WHICH IS ON FILE AT
THE OFFICES OF THE COMPANY."
"BY REQUESTING THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
AFTER THE DISTRIBUTION COMPLIANCE PERIOD, THE HOLDER OF THIS CERTIFICATE
REPRESENTS THAT IF SUCH TRANSFER IS MADE TO A U.S. PERSON, THAT AT THE TIME OF
SUCH TRANSFER THE HOLDER IS NOT AN "AFFILIATE" OF THE COMPANY (AS SUCH TERM IS
DEFINED IN THE SECURITIES ACT) OR AN "UNDERWRITER" OR "DEALER" (AS SUCH TERMS
ARE DEFINED IN THE ACT), IS NOT A "DISTRIBUTOR" AND SUCH TRANSFER IS NOT BEING
MADE AS PART OF A PLAN OR SCHEME TO EVADE THE REGISTRATION PROVISIONS OF THE
SECURITIES ACT."
NOBLE INTERNATIONAL, LTD.
6% CONVERTIBLE SUBORDINATED DEBENTURE DUE 2005
REGISTERED GLOBAL SECURITY
No. ______ $______________
ISIN No. XS0089378268
Common Code 008937826
NOBLE INTERNATIONAL, LTD., a corporation duly organized and
existing under the laws of the State of Michigan (herein
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<PAGE> 91
called the "Company", which term includes any successor Person under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to Banque Internationale a Luxembourg S.A. or registered
assigns, the principal sum of U.S. $___________ (which principal amount may be
increased from time to time by adjustments made in the records of the Trustee or
the Authenticating Agent in accordance with the Indenture, but in no event shall
the principal amount as so increased exceed $47,762,092) in installments as
follows: on each January 31 and July 31 (each, a "Principal Payment Date"),
commencing on January 31, 2004, with the last principal installment being due on
July 31, 2005, the Company will cause to be paid to the Holder of record of this
Security as of the close of business on the Principal Payment Record Date
immediately preceding such Principal Payment Date, a sum in cash equal to 25% of
the aggregate principal amount of this Debenture outstanding on such Principal
Payment Date, except that the last such installment shall be equal to the
aggregate principal amount of the Debenture outstanding on July 31, 2005
(together with accrued interest thereon to such Principal Payment Date); and to
pay interest on the principal amount of this Security outstanding from time to
time from the Initial Closing Date or from the most recent Interest Payment Date
(as defined below) to which interest has been paid or duly provided for,
semiannually in arrears on January 31 and July 31 in each year (each, an
"Interest Payment Date"), commencing January 31, 1999, at the rate of 6% per
annum, until the principal hereof is due, and at the rate of 10% per annum on
any overdue principal and, to the extent permitted by law, on any overdue
interest until paid in full. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the January 15 or July 15 (whether
or not a Business Day) next preceding such Interest Payment Date.
As provided in the Indenture, on each Interest Payment Date
during the PIK Payment Period, interest then due shall be paid by the issuance
of PIK Debentures in an aggregate principal amount equal to the amount of cash
interest that would otherwise be paid on such Interest Payment Date, together
with a cash payment in lieu of any Fractional Principal Amount equal to, at the
Company's option, either (a) the Holder's proportionate interest in the net
proceeds from the sale or sales in the open market of the aggregate of the
Fractional Principal Amounts or (b) the amount of the Holder's Fractional
Principal Amount. Except as otherwise provided in the Indenture, any accrued
interest payable on an Interest Payment Date not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
2
<PAGE> 92
a Special Record Date for the payment of such Defaulted Interest to be fixed by
the Company, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture. Payments
of principal shall be made upon the surrender of this Security at the option of
the Holder at the office of the Paying Agent in Luxembourg, or at such other
office or agency of the Company as may be designated by it for such purpose in
the State of New York or Western Europe, in such coin or currency of The United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts. Payment of interest on this Security may be
made by United States Dollar check drawn on a bank in the Borough of Manhattan,
The City of New York, mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register, or, upon written application
by the Holder to the Registrar setting forth wire instructions not later than
the relevant Record Date, if any, by wire transfer to a United States Dollar
account maintained by the Holder with a bank in the Borough of Manhattan, The
City of New York (provided that such Holder shall have furnished wire
instructions in writing to any Paying Agent no later than 15 days prior to the
relevant payment date).
Each Holder of this Global Security, by acceptance hereof, agrees
that transfers of beneficial interests herein may be effected only through a
book entry system maintained by Euroclear or Cedel, and that ownership of a
beneficial interest in this Global Security shall be required to be reflected in
a book entry.
1. The Company will pay to the Holder of this Security who is a
United States Alien (as defined below) such additional amounts ("Additional
Amounts") as may be necessary in order that every net payment of the principal
of, premium, if any, and interest on this Security (including payment on
redemption or repurchase), and any cash payments made in lieu of issuing
fractional Conversion Shares upon conversion of this Security, after deduction
or withholding for or on account of any present or future tax, assessment or
governmental charge imposed upon or as a result of such payment by the United
States or any political subdivision or taxing authority thereof or therein, will
not be less than the amount provided for in this Security to be then due and
payable; provided, however, that the foregoing obligation to pay Additional
Amounts will not apply to any one or more of the following:
(a) any tax, assessment or other governmental charge which
would not have been so imposed but for (i) the existence of any present or
former connection between such Holder
3
<PAGE> 93
or the beneficial owner (or between a fiduciary, settlor, beneficiary, member,
stockholder of or possessor of a power over such Holder, if such Holder is an
estate, a trust, a partnership or a corporation) and the United States or any
political subdivision or taxing authority thereof or therein, including, without
limitation, such Holder or beneficial owner (or such fiduciary, settlor,
beneficiary, member, stockholder or possessor) being or having been a citizen or
resident of the United States or treated as a resident thereof, or being or
having been engaged in trade or business therein or being or having been present
therein, or having or having had an office, fixed place of business or permanent
establishment therein, (ii) such Holder's or beneficial owner's present or
former status as a personal holding company or a foreign personal holding
company with respect to the United States, a foreign private foundation or other
foreign tax exempt organization described in Section 1443 of the Code, a
controlled foreign corporation or a passive foreign investment company for
United States tax purposes, or a corporation which accumulates earnings to avoid
United States federal income tax, (iii) such Holder or beneficial owner (or such
fiduciary, settlor, beneficiary, member, stockholder or possessor) is considered
as having made an election, the effect of which is to make payments of principal
of, premium, if any, and interest on this Security subject to United States
federal income tax; provided, however, if failure to make such election, would
result in a higher income tax liability related to this Security then such
Holder shall be deemed not to have made such election or (iv) such Holder's
status as a bank extending credit pursuant to a loan agreement entered into in
the ordinary course of business;
(b) any tax, assessment or other governmental charge which would
not have been so imposed but for the presentation by the Holder of this Security
for payment on a date more than 10 days after the date on which such payment
became due and payable or the date on which payment thereof is duly provided,
whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer or personal or
intangible property or any similar tax, assessment or governmental charge;
(d) any tax, assessment or other governmental charge which would
not have been imposed but for the failure to comply with any certification,
information, documentation or other reporting requirements concerning the
nationality, residence, identity or present or former connection with the United
States of the Holder or beneficial owner of this Security, if such compliance is
required by statute, regulation or ruling or other administrative action of the
United States or any political subdivision or taxing authority thereof or
therein as a precondition to relief or exemption from such tax, assessment or
other governmental charge;
4
<PAGE> 94
(e) any tax, assessment or other governmental charge which is
payable otherwise than by deduction or withholding from payments of principal
of, premium, if any, or interest on this Security;
(f) any tax, assessment or other governmental charge imposed on
interest received by a Person holding, actually or constructively, 10% or more
of the total combined voting power of all classes of capital stock of the
Company entitled to vote;
(g) any tax, assessment or other governmental charge required to
be withheld by any Paying Agent from any payment of the principal of, premium,
if any, or interest on this Security, if such payment can be made without such
withholding by any other Paying Agent;
(h) any tax, assessment or other governmental charge imposed on a
Holder that is not a beneficial owner of this Security or that is a partnership
or a fiduciary, but only to the extent that any beneficial owner or beneficiary
or settlor with respect to the fiduciary or member of the partnership would not
have been entitled to the payment of Additional Amounts had the beneficial
owner, beneficiary, settlor or member directly received its beneficial or
distributive share of payments on this Security; and
(i) any combination of items (a), (b), (c), (d), (e), (f), (g)
and (h) above.
2. For purposes of this Security, "United States" means the
United States of America (including the States and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction
(its "possessions" including Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands); and "United
States Alien" means any Person that is, for United States federal income tax
purposes, (a) a foreign corporation; (b) a nonresident alien individual; (c) an
estate, the income of which is not subject to United States federal income
taxation (regardless of its source) or a trust, if a United States court is able
to exercise primary supervision over its administration and one or more United
States persons have the authority to control all substantial decisions of such
trust; (d) a "foreign trust" as defined in Section 7701(a)(31) of the Code; or
(e) a foreign partnership, one or more of the members of which is, for United
States federal income tax purposes, any of the foregoing types of Persons,
estates or trusts.
3. Except as specifically provided herein and in the Indenture,
the Company shall not be required to make any payment with respect to any tax,
assessment or other governmental charge imposed by any government or any
political subdivision or taxing authority thereof or therein. Whenever in this
Security there is
5
<PAGE> 95
a reference, in any context, to the payment of the principal of, premium, if
any, or interest on, any Security, such reference shall be deemed to include a
reference to of the payment of Additional Amounts payable as described in
Paragraph 1 above to the extent that, in such context, Additional Amounts are,
were or would be payable in respect of such Security and express reference to
the payment of Additional Amounts (if applicable) in any provisions of this
Security shall not be construed as excluding reference to Additional Amounts in
those provisions of this Security where such express reference is not made.
4. Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
5. The Indenture and this Global Security shall be deemed to be a
contract made under the laws of the State of New York, United States of America,
and for all purposes shall be governed by and construed in accordance with the
internal substantive law of such State, without giving effect to the choice of
law rules of such State.
6. All terms used in this Global Security which are defined in
the Indenture have the meanings assigned to them in the Indenture.
7. Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof or an Authenticating
Agent by the manual signature of one of their respective authorized signatories,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Global Security
to be duly executed under its corporate seal.
Dated:
NOBLE INTERNATIONAL, LTD.
By:
--------------------------------------
Name:
Title:
Attest:
- - --------------------------------------
Name:
Title:
6
<PAGE> 96
EXHIBIT A
[FORM OF REVERSE]
1. This Security is one of a duly authorized issue of securities
of the Company designated as its 6% Convertible Subordinated Debentures due 2005
(herein called the "Securities"), limited in aggregate principal amount to
$47,762,092 (including PIK Debentures), issued and to be issued under an
Indenture, dated July 23, 1998 (herein called the "Indenture"), between the
Company and American Stock Transfer and Trust, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the holders of Senior Indebtedness, and
the Holders of the Securities and of the terms upon which the Securities are,
and are to be, authenticated and delivered. The Securities are issuable in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Securities in accordance
with the Indenture. The Registrar or Transfer Agent may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents or
certificates and to pay any taxes and fees required by law or permitted by the
Indenture.
2. Prior to January 31, 2000, this Security will not be
redeemable at the option of the Company. On and after that date and prior to
Maturity, the Company may redeem this Security for cash in whole or in part (in
any integral multiple of $1,000), upon not less than 30 nor more than 60 days'
notice to the Holders of the Securities prior to the Redemption Date, at the
Redemption Prices of the Securities, expressed as a percentage of the principal
amount of the Securities to be redeemed, as set forth in the following table,
during each 12- month period beginning on the date specified in such table, in
each case plus accrued and unpaid interest to the Redemption Date (subject to
the right of Holders of record on the relevant Record Date to receive interest
due on an Interest Payment Date).
<TABLE>
<CAPTION>
REDEMPTION PERIOD REDEMPTION
COMMENCEMENT DATE PRICE
---------------- ------
<S> <C> <C>
January 31, 2000 110.0%
July 31, 2000 107.5
July 31, 2001 104.5
July 31, 2002 102.5
July 31, 2003 101.5
July 31, 2004 100.5
</TABLE>
In case of a redemption of the Securities in part,
selection of the Securities for redemption will be made by the
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<PAGE> 97
Trustee, on a pro rata basis, by lot or such other method as the Trustee shall
deem fair and appropriate.
3. If as a result of any change in, or amendment to, the laws
(including any regulations or rulings promulgated thereunder) of the United
States or any political subdivision or taxing authority thereof or therein
affecting taxation, or any change in, or amendment to, the application or
official interpretation of such laws, regulations or rulings (collectively, a
"Tax Law Change"), the Company has or will become obligated to pay to the Holder
of any Security Additional Amounts (as described in Paragraph 1 on the face of
this Security) and such obligation cannot be avoided by the Company taking
reasonable measures available to it, then the Company may, at its option, redeem
the Securities in whole, but not in part, upon not less than 30 nor more than 90
days' notice to the Holders prior to the earliest date on which the Company
would be obligated to pay any such Additional Amounts were a payment in respect
of the Securities then due, provided that at the time such notice of redemption
is given, such obligation to pay such Additional Amounts remains in effect. Any
redemption of Securities pursuant to this Paragraph 3 shall be made at a
Redemption Price equal to 100% of the principal amount plus accrued and unpaid
interest to the Redemption Date and any Additional Amounts then payable. Prior
to the giving of any notice of redemption pursuant to this Paragraph, the
Company shall deliver to the Trustee (a) an Officers' Certificate stating that
the Company is entitled to effect such redemption and setting forth a statement
of facts showing that the conditions precedent to the right of the Company so to
redeem have occurred and (b) an Opinion of Counsel to the effect that the legal
conditions precedent to the right of the Company to effect such redemption have
occurred. In the case of the occurrence of a Tax Law Change, the Company's right
to redeem the Securities shall continue as long as the Company is obligated to
pay such Additional Amounts, notwithstanding that the Company shall have made
payments of Additional Amounts specified in such second paragraph.
4. In the event of a redemption of less than all of the
Securities, the Company will not be required (a) to register the transfer or
exchange of Securities for a period of 15 days immediately preceding the date
notice is given identifying the serial numbers of the Securities called for such
redemption, or (b) to register the transfer or exchange of any Security, or
portion thereof, called for redemption.
5. Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in a Global Security if (A) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security, and a successor depositary is not appointed
by the
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<PAGE> 98
Company within 90 days of such notice, or (B) an Event of Default has occurred
and is continuing.
6. In any case where the Stated Maturity for the payment of the
principal of, premium, if any, or interest, including Additional Amounts, on any
Security or the last day on which a Holder of a Security has a right to convert
his Security shall be, at any Place of Payment or Place of Conversion, as the
case may be, a day on which banking institutions at such Place of Payment or
Place of Conversion are authorized or obligated by law or executive order to
close, then payment of principal, premium, if any, or interest, including
Additional Amounts, or delivery for conversion of such Security need not be made
on or by such date at such place but may be made on or by the next succeeding
day at such place which is not a day on which banking institutions are
authorized or obligated by law or executive order to close, with the same force
and effect as if made on the date for such payment or the date fixed for
redemption, or by such last day for conversion, and no interest shall accrue on
the amount so payable for the period after such date.
7. Subject to and upon compliance with the provisions of the
Indenture, the Holder of this Security is entitled, at its option, at any time
on and after November 30, 1998, and on or before the close of business on July
31, 2005 (the Stated Maturity of the principal amount of this Security), or in
case this Security or a portion hereof is called for redemption or the Holder
hereof has exercised his right to require the Company to repurchase this
Security or a portion thereof, then, in respect of this Security until and
including, but (unless the Company defaults in making the payment due upon
redemption or repurchase, as the case may be) not after, the close of business
on the Redemption Date or the Purchase Date, as the case may be, to convert this
Security (or any portion of the amount hereof that is an integral multiple of
$1,000) into fully paid and nonassessable shares of Common Stock of the Company
("Conversion Shares") at an initial Conversion Price of $14.3125 for each
Conversion Share (or at the then current adjusted Conversion Price, if an
adjustment has been made as provided in the Indenture) by surrender of this
Security, duly endorsed or assigned to the Company or in blank and, in case such
surrender shall be made during the period from the close of business of any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date ("Interest Period"), also accompanied by
payment in United States currency of an amount equal to the interest payable on
such Interest Payment Date on the principal amount of this Security then being
converted, and also a conversion notice duly executed, to the Company at Banque
International a Luxembourg S.A. in Luxembourg, or at such other office or agency
of the Company as may be designated by it for such purpose in the State of New
York or Western Europe (each a "Conversion Agent"); except that if this Security
or any portion hereof has been called for redemption
3
<PAGE> 99
and, pursuant to Section 10.01 of the Indenture, as a result of such redemption
the right to convert this Security or such portion terminates after the Regular
Record Date preceding any Interest Payment Date and on or before such Interest
Payment Date, then, notwithstanding such conversion, the interest payable on
such Interest Payment Date will be paid to the registered Holder of this
Security on such Regular Record Date. In such event, this Security, when
surrendered for conversion, shall be accompanied by payment in United States
currency of an amount equal to the difference between (i) the interest on the
principal amount of this Security or such portion hereof payable on such
Interest Payment Date and (ii) the amount of accrued interest on the principal
amount of this Security or portion hereof to but not including the date of
conversion. Subject to the aforesaid requirement for payment and, in the case of
a conversion after the Regular Record Date preceding any Interest Payment Date
and on or before such Interest Payment Date, to the right of the Holder of this
Security (or any Predecessor Security) of record at such Regular Record Date to
receive an installment of interest (with certain exceptions provided in the
Indenture), payment shall be made on conversion, for interest accrued hereon
from the Interest Payment Date preceding the date of conversion to the
Conversion Date. No payment or adjustment is to be made for dividends on the
Common Stock issued on conversion hereof. The Company shall thereafter deliver
to the Holder the fixed number of Conversion Shares of Common Stock (together
with any cash adjustment, as provided in the Indenture) into which this Security
is convertible and such delivery will be deemed to satisfy the Company's
obligation to pay the principal amount of this Security.
No fractions of shares or scrip representing fractions of shares
will be issued on conversion, but instead of any fractional interest (calculated
to the nearest 1/100th of a share) the Company shall pay a cash adjustment as
provided in the Indenture. The Conversion Price is subject to adjustment as
provided in the Indenture. In addition, the Indenture provides that in case of
certain consolidations or mergers to which the Company is a party or the
transfer of all or substantially all of the property and assets of the Company,
the Indenture shall be amended, without the consent of any Holders of
Securities, so that this Security, if then Outstanding, will be convertible
thereafter, during the period this Security shall be convertible as specified
above, only into the kind and amount of securities, cash and other property
receivable upon such consolidation, merger or transfer by a holder of the number
of shares of Common Stock of the Company into which this Security could have
been converted immediately prior to such consolidation, merger or transfer.
8. If a Change in Control occurs, the Holder of this Security
shall have the right, in accordance with the provisions of the Indenture, to
require the Company to repurchase all or a
4
<PAGE> 100
portion of such Holder's Securities specified in a Change in Control Purchase
Notice for cash at a Purchase Price equal to 100% of the principal amount
thereof plus accrued and unpaid interest to the Purchase Date, provided that any
portion of this Security to be repurchased is an authorized denomination.
Whenever in this Security there is a reference, in any context, to the principal
of any Security as of any time, such reference shall be deemed to include
reference to the Purchase Price payable in respect of such Security to the
extent that such Purchase Price is, was or would be so payable at such time, and
express reference of the Purchase Price in any provision of this Security shall
not be construed as excluding the Purchase Price in those provisions of this
Security when such express reference is not made.
Within 30 days after the occurrence of a Change in Control, the
Company is obligated to give to all Holders of record of the Securities notice,
as provided in the Indenture (the "Company Notice"), of the occurrence of such
Change in Control and of the Repurchase Right arising as a result thereof. The
Company must also deliver a copy of the Company Notice to the Trustee. To
exercise the purchase right, a Holder of such Securities must deliver to the
Company (or an agent designated by the Company for such purpose), the Trustee
and any Paying Agent (including such agent in Luxembourg) on or before the 45th
day after the date of the Company Notice, a Change in Control Purchase Notice,
together with the Securities with respect to which the right is being exercised,
which Securities may be delivered to the Company's designated agent for such
purpose, or if no such agent has been appointed, to the Trustee or to the Paying
Agent in Luxembourg.
Under the Indenture, a "Change in Control" of the Company is
deemed to have occurred at such time as (i) any person (as the term "person" is
used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), other than
the Company, any Company Subsidiary, Robert J. Skandalaris or any employee
benefit plan of either the Company or any Company Subsidiary, files a Schedule
13D or 14D-1 under the Exchange Act (or any successor schedule, form or report)
disclosing that such person has become the beneficial owner of 50% or more of
the total voting power in the aggregate of all classes of capital stock of the
Company then outstanding normally entitled to vote in elections of directors,
with certain exceptions, or (ii) there shall be consummated any consolidation or
merger of the Company (a) in which the Company is not the continuing or
surviving corporation (other than any consolidation or merger effected primarily
to change the jurisdiction of incorporation of the Company) or (b) pursuant to
which the Common Stock would be converted into cash, securities or other
property, in each case, other than a consolidation or merger of the Company in
which the holders of Common Stock immediately prior to the consolidation or
merger have, directly or indirectly, at least a majority of the total voting
power in
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<PAGE> 101
the aggregate of all classes of capital stock of the continuing or surviving
corporation normally entitled to vote in elections of directors immediately
after the consolidation or merger. The Indenture does not permit the Board of
Directors to waive the Company's obligation to purchase Securities at the option
of a Holder in the event of a Change in Control of the Company.
The Company will comply with the provisions of Rule 13e-4, Rule
14e-1 and any other tender offer rules under the Exchange Act which may then be
applicable, and will file Schedule 13E-4 or any other schedule required
thereunder in connection with any offer by the Company to purchase Securities at
the option of the Holders thereof upon a Change in Control.
9. In the event of redemption, repurchase or conversion of this
Security in part only, a new Security or Securities for the unredeemed,
unrepurchased or unconverted portion hereof will be issued in the name of the
Holder hereof.
10. Each Holder of this Security, by acceptance hereof,
acknowledges and agrees to the provisions of the Registration Rights Agreement
among the Company and the Placement Agents (the "Registration Rights
Agreement"), including, without limitation, the obligations of the Company to
pay interest on this Security at the increased rates specified therein upon the
occurrence of certain defaults by the Company in complying with certain
covenants contained in the Registration Rights Agreement and the obligations of
the Holders with respect to a "Shelf Registration Statement" and the
indemnification of the Company to the extent provided in the Registration Rights
Agreement.
The following is a summary of the interest rate increase
provisions of the Registration Rights Agreement, which summary does not purport
to be complete and is subject to, and qualified in its entirety by reference to
the detailed provisions of the Registration Rights Agreement.
The Company agrees, under the Registration Rights Agreement and
subject thereto, for the benefit of the Holders of the Securities and their
successors and transferees that (i) it will, at its cost, file a Shelf
Registration Statement with the Commission with respect to resales of Conversion
Shares by November 30, 1998, (ii) it will use its best efforts to have such
Shelf Registration Statement declared effective by the Commission by January 31,
1999, and (iii) it will use its best efforts to maintain such Shelf Registration
Statement continuously effective under the Securities Act to permit the
prospectus included the Shelf Registration Statement to be used by a holder of
Conversion Shares for a period of two years from the Final Closing Date or a
shorter period, which shorter period will terminate when all of the Conversion
Shares have been sold pursuant to the Shelf Registration Statement or Rule 144
under the Securities Act (the "Shelf Registration Period"), provided that the
Company may
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<PAGE> 102
suspend the use of the Shelf Registration Statement for a period not to exceed
45 days in any 12 month period (during the Shelf Registration Period) for valid
business reasons, including acquisitions and divestitures of assets, filings
with the Commission, pending corporate developments and similar reasons.
If the Company defaults in complying with clause (i) above then,
at such time, the interest rate on the Securities (the "Initial Rate") will
increase by 25 basis points. Such increase will remain in effect until the date
on which such Shelf Registration Statement is filed, on which date the interest
rate on the Securities will revert to the Initial Rate (plus any increases in
the Initial Rate pursuant to the following sentence). If the Shelf Registration
Statement is not declared effective as provided in clause (ii) above, then, at
such time, and on each successive 30th day following such time, the interest
rate on the Securities (which interest rate will be the sum of the Initial Rate
plus any increase in such interest rate pursuant to a default in complying with
clause (i) above plus any increases pursuant to this sentence) will increase by
an additional 25 basis points; provided, however, that the Initial Rate will not
increase by more than 75 basis points pursuant to this sentence and will not
increase by more than 100 basis points pursuant to this sentence and a default
in complying with clause (i) above. Such increase or increases will remain in
effect until the date on which the Shelf Registration Statement is declared
effective, on which date the interest rate on the Securities will revert to the
Initial Rate. If the Company fails to keep the Shelf Registration continuously
effective or useable for the period specified in clause (iii) above, then at
such time as the Shelf Registration Statement is no longer effective or useable,
and on each successive 30th day following such time, and until the earliest of
(a) the date that the Shelf Registration Statement is again deemed effective,
(b) the date that is the second anniversary of the Final Closing Date (or, in
the event that Rule 144(k) under the Securities Act is amended to provide for a
shorter holding period, until the end of such shorter holding period), and (c)
the date as of which all the Conversion Shares have been sold pursuant to the
Shelf Registration Statement or Rule 144, the interest rate on the Securities
will increase by 25 basis points; provided that the interest rate on the
Securities will not increase by more than 100 basis points pursuant to a default
in compliance with clause (ii) above and this sentence. Such increase or
increases will remain effective until the Shelf Registration Statement is again
effective and useable in accordance with clause (iii) above, on which date, the
interest rate on the Securities will revert to the Initial Rate. Notwithstanding
anything to the contrary in the Registration Rights Agreement, a default in
compliance with clause (iii) above will not be deemed to have occurred and be
continuing by reason of a suspension in use of the Shelf Registration Statement
for valid business reasons to the extent set forth above.
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<PAGE> 103
11. The indebtedness evidenced by this Security is, to the extent
and in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness of the Company,
and this Security is issued subject to such provisions of the Indenture with
respect thereto. Each Holder of this Security, by accepting the same, (a) agrees
to and shall be bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee his or its
attorney-in-fact for any and all such purposes.
12. If an Event of Default shall occur and be continuing, the
principal of all the Securities, together with accrued interest to the date of
declaration, may be declared due and payable in the manner and with the effect
provided in the Indenture. Upon indefeasible payment in full in cash (i) of the
amount of principal so declared due and payable, together with accrued interest
to the date of declaration, and (ii) of interest on any overdue principal and
overdue interest, all of the Company's obligations in respect of the payment of
the principal of and interest on the Securities shall terminate.
13. The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities under
the Indenture at any time by the Company and the Trustee with the written
consent of the Holders of a majority in principal amount of the Securities at
the time outstanding. The Indenture also contains provisions permitting the
Holders of a majority in principal amount of the Securities at the time
outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security or such other Security. Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder, the
Company and the Trustee may amend the Indenture or the Securities to evidence
the succession of another Person to the Company and the assumption by such
successor to the covenants and obligations of the Company in the Indenture or
this Security, to cure any ambiguity, omission, defect or inconsistency, to add
guarantees or secure the Securities, to add to the covenants of the Company for
the benefit of Holders or to surrender any right or power conferred upon the
Company, to make provision with respect to conversion rights of Holders in
accordance with Section 10.12 of the Indenture, or to make certain changes in
the subordination provisions.
8
<PAGE> 104
14. No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on (including Additional Amounts, as described on the face
hereof) this Security at the times, places and rate, and in the currency herein
prescribed or to convert this Security as provided in the Indenture.
15. As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of Securities is registrable on the
Security Register upon surrender of a Security for registration of transfer (a)
at the Corporate Trust Office of the Trustee or at such other office or agency
of the Company as may be designated by it for such purpose in the State of New
York, or (b) subject to any laws or regulations applicable thereto and to the
right of the Company to terminate the appointment of any Transfer Agent, at the
office of Banque Internationale a Luxembourg S.A. as the Company's Transfer
Agent in Luxembourg or at such other offices or agencies as the Company may
designate, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees by
the Registrar. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
recover any tax or other governmental charge payable in connection therewith.
16. Securities in certificated form may be presented for transfer
(with the form of transfer endorsed thereon duly executed), at the offices of
any Transfer Agent or at the office of the Registrar, without service charge but
upon payment of any taxes and other governmental charges as provided in the
Indenture. The Trustee has initially been appointed as the Company's principal
Transfer Agent and Banque Internationale a Luxembourg S.A. in Luxembourg has
initially been appointed as the Company's Luxembourg Transfer Agent. Any
registration of transfer or exchange will be effected upon the Transfer Agent or
the Registrar, as the case may be, being satisfied with the documents of title
and identity of the person making the request and, upon registration of such
transfer in the Security Register, and subject to such reasonable regulations as
the Issuer may from time to time agree upon with the Transfer Agents and the
Registrar, all as described in the Indenture. Securities may be transferred in
whole or in part in the principal amount of $1,000 or an integral multiple of
$1,000. In the case of a partial transfer of Debentures, new Securities may be
obtained from the Transfer Agents as described in the Indenture.
9
<PAGE> 105
17. Prior to due presentation of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered, as the owner
thereof for all purposes, whether or not such Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
18. THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF
AMERICA, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
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<PAGE> 106
[FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:
---------------
American Stock Transfer and
Trust Company, as Trustee
[By Authenticating Agent,
as Authenticating Agent]
by:
------------------------
Authorized Signatory
<PAGE> 107
[ASSIGNMENT FORM]
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably appoint
_________________________________________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
_______________________________________________________________________________
(Print or type person's name, address and zip code)
_______________________________________________________________________________
Dated:___________________ Signature:_________________________
<PAGE> 108
[FORM OF CONVERSION NOTICE FOR SECURITIES]
CONVERSION NOTICE
The undersigned Holder of this Security hereby irrevocably
exercises the option to convert this Security, or any portion of the principal
amount hereof (which is an integral multiple of $1,000), below designated, into
shares of Common Stock in accordance with the terms of the Indenture referred to
in this Security, and directs that such Conversion Shares, together with a check
in payment for any fractional share and any Securities representing any
unconverted principal amount hereof, be delivered to and be registered in the
name of the undersigned unless a different name has been indicated below. If
shares of Common Stock or Securities are to be registered in the name of a
Person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto. Any amount required to be paid by the undersigned
on account of interest accompanies this Security.
Dated:_________________________ _________________________________
Signature
If shares or Securities are to be registered in the name of a Person other than
the Holder, please print such Person's name and address:
____________________________________
Name
____________________________________
Address
Social Security or other Taxpayer
Identification Number, if any
____________________________________
<PAGE> 109
EXHIBIT B
[FORM OF FACE OF DEFINITIVE SECURITY]
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO
REGULATION S, AN EXEMPTION FROM REGISTRATION PURSUANT TO THE PROVISIONS UNDER
THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). THE SECURITIES
EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY STATE
SECURITIES LAWS. THESE SECURITIES MAY NOT BE TRANSFERRED, OFFERED OR SOLD PRIOR
TO THE END OF THE ONE YEAR (1) PERIOD (THE "DISTRIBUTION COMPLIANCE PERIOD")
COMMENCING ON THE LATER OF (i) THE DATE THE SECURITIES ARE FIRST OFFERED TO
PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S) OR (ii) THE DATE OF
THE FINAL CLOSING OF THE OFFERING OF THE DEBENTURES BY THE COMPANY, UNLESS SUCH
TRANSFER, OFFER OR SALE (i) IS MADE IN AN "OFFSHORE TRANSACTION" AND NOT TO A
"U.S. PERSON" (OTHER THAN A "DISTRIBUTOR") (AS SUCH TERMS ARE DEFINED IN
REGULATION S) OR (ii) IS MADE PURSUANT TO REGISTRATION OR AN APPLICABLE
EXEMPTION UNDER THE SECURITIES ACT. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE CANNOT BE SOLD EXCEPT PURSUANT TO THE TERMS AND CONDITIONS OF THE
DEBENTURE SUBSCRIPTION AGREEMENT BETWEEN THE COMPANY AND THE INITIAL HOLDER OF
THE SECURITIES REPRESENTED BY THIS CERTIFICATE, A COPY OF WHICH IS ON FILE AT
THE OFFICES OF THE COMPANY."
"BY REQUESTING THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
AFTER THE DISTRIBUTION COMPLIANCE PERIOD, THE HOLDER OF THIS CERTIFICATE
REPRESENTS THAT IF SUCH TRANSFER IS MADE TO A U.S. PERSON, THAT AT THE TIME OF
SUCH TRANSFER THE HOLDER IS NOT AN "AFFILIATE" OF THE COMPANY (AS SUCH TERM IS
DEFINED IN THE SECURITIES ACT) OR AN "UNDERWRITER" OR "DEALER" (AS SUCH TERMS
ARE DEFINED IN THE ACT), IS NOT A "DISTRIBUTOR" AND SUCH TRANSFER IS NOT BEING
MADE AS PART OF A PLAN OR SCHEME TO EVADE THE REGISTRATION PROVISIONS OF THE
SECURITIES ACT."
NOBLE INTERNATIONAL, LTD.
6% CONVERTIBLE SUBORDINATED DEBENTURE DUE 2005
No.________________________ U.S.$_____________
ISIN No. XS0089378268
Common Code 008937826
NOBLE INTERNATIONAL, LTD., a corporation duly organized and
existing under the laws of the State of Michigan (herein called the "Company",
which term includes any successor Person under the Indenture referred to on the
reverse hereof), for value
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<PAGE> 110
received, hereby promises to pay to _______________ or registered assigns, the
principal sum of U.S. $___________ in installments as follows: on each January
31 and July 31 (each, a "Principal Payment Date") commencing on January 31,
2004, and with the final principal installment being due on July 31, 2005, the
Company will cause to be paid to the Holder of record of this Security as of the
close of business on the Principal Payment Record Date immediately preceding
such Principal Payment Date, a sum in cash equal to 25% of the aggregate
principal amount of this Debenture outstanding on such Principal Payment Date,
except that the last such installment shall be equal to the aggregate principal
amount of this Debenture outstanding on July 31, 2005 (together with accrued
interest thereon to such Principal Payment Date); and to pay interest on the
principal amount of this Security outstanding from time to time from the Initial
Closing Date or from the most recent Interest Payment Date (as defined below) to
which interest has been paid or duly provided for, semiannually in arrears on
January 31 and July 31 in each year (each, an "Interest Payment Date"),
commencing January 15, 1999, at the rate of 6% per annum, until the principal
hereof is due, and at the rate of 10% per annum on any overdue principal and, to
the extent permitted by law, on any overdue interest until paid in full. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the January 15 or July 15 (whether or not a Business Day) next preceding such
Interest Payment Date.
As provided in the Indenture, on each Interest Payment Date
during the PIK Payment Period, interest then due shall be paid by the issuance
of PIK Debentures in an aggregate principal amount equal to the amount of cash
interest that would otherwise be paid on such Interest Payment Date, together
with a cash payment in lieu of any Fractional Principal Amount equal to, at the
Company's option, either (a) the Holder's proportionate interest in the net
proceeds from the sale or sales in the open market of the aggregate of the
Fractional Principal Amounts or (b) the amount of the Holder's Fractional
Principal Amount. Except as otherwise provided in the Indenture, any accrued
interest payable on an Interest Payment Date not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Company, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in
2
<PAGE> 111
the Indenture. Payments of principal shall be made upon the surrender of this
Security at the option of the Holder at the office of the Paying Agent, or at
such other office or agency of the Company as may be designated by it for such
purpose in the Borough of Manhattan, The City of New York or Western Europe, in
such coin or currency of The United States of America as at the time of payment
shall be legal tender for the payment of public and private debts, or at such
other offices or agencies as the Company may designate. Payment of interest on
this Security may be made by United States Dollar check drawn on a bank in the
Borough of Manhattan, The City of New York, mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register, or, upon
written application by the Holder to the Registrar setting forth wire
instructions not later than the relevant Record Date, by wire transfer to a
United States Dollar account maintained by the Holder with a bank in the Borough
of Manhattan, The City of New York (provided that such Holder shall have
furnished wire instructions in writing to any Paying Agent no later than 15 days
prior to the relevant payment date).
1. The Company will pay to the Holder of this Security who is a
United States Alien (as defined below) such additional amounts ("Additional
Amounts") as may be necessary in order that every net payment of the principal
of, premium, if any, and interest on this Security (including payment on
redemption or repurchase), and any cash payments made in lieu of issuing
fractional conversion Shares upon conversion of this Security, after deduction
or withholding for or on account of any present or future tax, assessment or
governmental charge imposed upon or as a result of such payment by the United
States or any political subdivision or taxing authority thereof or therein, will
not be less than the amount provided for in this Security to be then due and
payable; provided, however, that the foregoing obligation to pay Additional
Amounts will not apply to any one or more of the following:
(a) any tax, assessment or other governmental
charge which would not have been so imposed but for (i) the existence of any
present or former connection between such Holder or the beneficial owner (or
between a fiduciary, settlor, beneficiary, member, stockholder of or possessor
of a power over such Holder, if such Holder is an estate, a trust, a partnership
or a corporation) and the United States or any political subdivision or taxing
authority thereof or therein, including, without limitation, such Holder or
beneficial owner (or such fiduciary, settlor, beneficiary, member, stockholder
or possessor) being or having been a citizen or resident of the United States or
treated as a resident thereof, or being or having been engaged in trade or
business therein or being or having been present therein, or having or having
had an office, fixed place of business or permanent establishment therein, (ii)
such Holder's or beneficial owner's present or former status as a
3
<PAGE> 112
personal holding company or a foreign personal holding company with respect to
the United States, a foreign private foundation or other foreign tax exempt
organization described in Section 1443 of the Code, a controlled foreign
corporation or a passive foreign investment company for United States tax
purposes, or a corporation which accumulates earnings to avoid United States
federal income tax, (iii) such Holder or beneficial owner (or such fiduciary,
settlor, beneficiary, member, stockholder or possessor) is considered as having
made an election, the effect of which is to make payments of principal of,
premium, if any, and interest on this Security subject to United States federal
income tax; provided, however, if failure to make such election, would result in
a higher income tax liability related to this Security then such Holder shall be
deemed not to have made such election, or (iv) such Holder's status as a bank
extending credit pursuant to a loan agreement entered into in the ordinary
course of business;
(b) any tax, assessment or other governmental charge which would
not have been so imposed but for the presentation by the Holder of this Security
for payment on a date more than 10 days after the date on which such payment
became due and payable or the date on which payment thereof is duly provided,
whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer or personal or
intangible property or any similar tax, assessment or governmental charge;
(d) any tax, assessment or other governmental charge which would
not have been imposed but for the failure to comply with any certification,
information, documentation or other reporting requirements concerning the
nationality, residence, identity or present or former connection with the United
States of the Holder or beneficial owner of this Security, if such compliance is
required by statute, regulation or ruling or other administrative action of the
United States or any political subdivision or taxing authority thereof or
therein as a precondition to relief or exemption from such tax, assessment or
other governmental charge;
(e) any tax, assessment or other governmental charge which is
payable otherwise than by deduction or withholding from payments of principal
of, premium, if any, or interest on this Security;
(f) any tax, assessment or other governmental charge imposed on
interest received by a Person holding, actually or constructively, 10% or more
of the total combined voting power of all classes of capital stock of the
Company entitled to vote;
(g) any tax, assessment or other governmental charge required to
be withheld by any Paying Agent from any payment of
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<PAGE> 113
the principal of, premium, if any, or interest on this Security, if such payment
can be made without such withholding by any other Paying Agent;
(h) any tax, assessment or other governmental charge imposed on a
Holder that is not a beneficial owner of this Security or that is a partnership
or a fiduciary, but only to the extent that any beneficial owner or beneficiary
or settlor with respect to the fiduciary or member of the partnership would not
have been entitled to the payment of Additional Amounts had the beneficial
owner, beneficiary, settlor or member directly received its beneficial or
distributive share of payments on this Security; and
(i) any combination of items (a), (b), (c), (d), (e), (f), (g)
and (h) above.
2. For purposes of this Security, "United States" means the
United States of America (including the States and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction
(its "possessions" including Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands); and "United
States Alien" means any Person that is, for United States federal income tax
purposes, (a) a foreign corporation; (b) a nonresident alien individual; (c) an
estate, the income of which is not subject to United States federal income
taxation (regardless of its source) or a trust, if a United States court is able
to exercise primary supervision over its administration and one or more United
States persons have the authority to control all substantial decisions of such
trust; (d) a "foreign trust" as defined in Section 7701(a)(31) of the Code; or
(e) a foreign partnership, one or more of the members of which is, for United
States federal income tax purposes, any of the foregoing types of Persons,
estates or trusts.
3. Except as specifically provided herein and in the Indenture,
the Company shall not be required to make any payment with respect to any tax,
assessment or other governmental charge imposed by any government or any
political subdivision or taxing authority thereof or therein. Whenever in this
Security there is a reference, in any context, to the payment of the principal
of, premium, if any, or interest on, any Security, such reference shall be
deemed to include a reference to of the payment of Additional Amounts payable as
described in Paragraph 1 above to the extent that, in such context, Additional
Amounts are, were or would be payable in respect of such Security and express
reference to the payment of Additional Amounts (if applicable) in any provisions
of this Security shall not be construed as excluding reference to Additional
Amounts in those provisions of this Security where such express reference is not
made.
5
<PAGE> 114
4. Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
5. The Indenture and this Security shall be deemed to be a
contract made under the laws of the State of New York, United States of America,
and for all purposes shall be governed by and construed in accordance with the
internal substantive law of such State, without giving effect to the choice of
law rules of such State.
6. All terms used in this Security which are defined in the
Indenture have the meanings assigned to them in the Indenture.
7. Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof or an Authenticating
Agent by the manual signature of one of their respective authorized signatories,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Security to be
duly executed under its corporate seal.
Dated:
NOBLE INTERNATIONAL, LTD.
by:________________________________
Name:
Title:
Attest:
____________________________
Name:
Title:
6
<PAGE> 115
EXHIBIT B
[FORM OF REVERSE]
1. This Security is one of a duly authorized issue of securities
of the Company designated as its 6% Convertible Subordinated Debentures due 2005
(herein called the "Securities"), limited in aggregate principal amount to
$40,000,000 (except for PIK Debentures issued pursuant to Section 2.07 of the
Indenture), issued and to be issued under an Indenture, dated July 23, 1998
(herein called the "Indenture"), between the Company and American Stock Transfer
and Trust, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the holders of Senior Indebtedness, and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated and delivered.
The Securities are issuable in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may transfer
or exchange Securities in accordance with the Indenture. The Registrar or
Transfer Agent may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents or certificates and to pay any taxes and fees
required by law or permitted by the Indenture.
2. Prior to January 31, 2000, this Security will not be
redeemable at the option of the Company. On and after that date and prior to
Maturity, the Company may redeem this Security for cash in whole or in part (in
any integral multiple of $1,000), upon not less than 30 nor more than 60 days'
notice to the Holders of the Securities prior to the Redemption Date, at the
Redemption Prices of the Securities, expressed as a percentage of the principal
amount of the Securities to be redeemed, as set forth in the following table,
during each 12- month period beginning on the date specified in such table, in
each case plus accrued and unpaid interest to the Redemption Date (subject to
the right of Holders of record on the relevant Record Date to receive interest
due on an Interest Payment Date).
<TABLE>
<CAPTION>
REDEMPTION PERIOD REDEMPTION
COMMENCEMENT DATE PRICE
---------------- ------
<S> <C> <C>
January 31, 2000 110.0%
July 31, 2000 107.5
July 31, 2001 104.5
July 31, 2002 102.5
July 31, 2003 101.5
July 31, 2004 100.5
</TABLE>
1
<PAGE> 116
In case of a redemption of the Securities in part, selection of
the Securities for redemption will be made by the Trustee, on a pro rata basis,
by lot or such other method as the Trustee shall deem fair and appropriate.
3. If as a result of any change in, or amendment to, the laws
(including any regulations or rulings promulgated thereunder) of the United
States or any political subdivision or taxing authority thereof or therein
affecting taxation, or any change in, or amendment to, the application or
official interpretation of such laws, regulations or rulings (collectively, a
"Tax Law Change"), the Company has or will become obligated to pay to the Holder
of any Security Additional Amounts (as described in Paragraph 1 on the face of
this Security) and such obligation cannot be avoided by the Company taking
reasonable measures available to it, then the Company may, at its option, redeem
the Securities in whole, but not in part, upon not less than 30 nor more than 90
days' notice to the Holders prior to the earliest date on which the Company
would be obligated to pay any such Additional Amounts were a payment in respect
of the Securities then due, provided that at the time such notice of redemption
is given, such obligation to pay such Additional Amounts remains in effect. Any
redemption of Securities pursuant to this Paragraph 3 shall be made at a
Redemption Price equal to 100% of the principal amount plus accrued and unpaid
interest to the Redemption Date and any Additional Amounts then payable. Prior
to the giving of any notice of redemption pursuant to this Paragraph, the
Company shall deliver to the Trustee (a) an Officers' Certificate stating that
the Company is entitled to effect such redemption and setting forth a statement
of facts showing that the conditions precedent to the right of the Company so to
redeem have occurred and (b) an Opinion of Counsel to the effect that the legal
conditions precedent to the right of the Company to effect such redemption have
occurred. In the case of the occurrence of a Tax Law Change, the Company's right
to redeem the Securities shall continue as long as the Company is obligated to
pay such Additional Amounts, notwithstanding that the Company shall have made
payments of Additional Amounts specified in such second paragraph.
4. In the event of a redemption of less than all of the
Securities, the Company will not be required (a) to register the transfer or
exchange of Securities for a period of 15 days immediately preceding the date
notice is given identifying the serial numbers of the Securities called for such
redemption, or (b) to register the transfer or exchange of any Security, or
portion thereof, called for redemption.
2
<PAGE> 117
5. In any case where the Stated Maturity for the payment of the
principal of, premium, if any, or interest, including Additional Amounts, on any
Security or the last day on which a Holder of a Security has a right to convert
his Security shall be, at any Place of Payment or Place of Conversion, as the
case may be, a day on which banking institutions at such Place of Payment or
Place of Conversion are authorized or obligated by law or executive order to
close, then payment of principal, premium, if any, or interest, including
Additional Amounts, or delivery for conversion of such Security need not be made
on or by such date at such place but may be made on or by the next succeeding
day at such place which is not a day on which banking institutions are
authorized or obligated by law or executive order to close, with the same force
and effect as if made on the date for such payment or the date fixed for
redemption, or by such last day for conversion, and interest shall accrue on the
amount so payable for the period after such date.
6. Subject to and upon compliance with the provisions of the
Indenture, the Holder of this Security is entitled, at his option, at any time
on and after November 30, 1998, and on or before the close of business on July
31, 2005 (the Stated Maturity of the principal amount of this Security), or in
case this Security or a portion hereof is called for redemption or the Holder
hereof has exercised his right to require the Company to repurchase this
Security or a portion thereof, then, in respect of this Security until and
including, but (unless the Company defaults in making the payment due upon
redemption or repurchase, as the case may be) not after, the close of business
on the Redemption Date or the Purchase Date, as the case may be, to convert this
Security (or any portion of the amount hereof that is an integral multiple of
$1,000) into fully paid and nonassessable shares of Common Stock of the Company
("Conversion Shares") at an initial Conversion Price of $14.3125 for each
Conversion Share (or at the then current adjusted Conversion Price, if an
adjustment has been made as provided in the Indenture) by surrender of this
Security, duly endorsed or assigned to the Company or in blank and, in case such
surrender shall be made during the period from the close of business of any
Regular Record Date next preceding any
3
<PAGE> 118
Interest Payment Date to the opening of business on such Interest Payment Date
("Interest Period"), also accompanied by payment in United States currency of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted, and also a conversion
notice duly executed, to the Company at Banque International a Luxembourg S.A.
in Luxembourg, or at such other office or agency of the Company as may be
designated by it for such purpose in the State of New York or Western Europe
(each a "Conversion Agent"); except that if this Security or any portion hereof
has been called for redemption and, pursuant to Section 10.01 of the Indenture,
as a result of such redemption the right to convert this Security or such
portion terminates after the Regular Record Date preceding any Interest Payment
Date and on or before such Interest Payment Date, then, notwithstanding such
conversion, the interest payable on such Interest Payment Date will be paid to
the registered Holder of this Security on such Regular Record Date. In such
event, this Security, when surrendered for conversion, shall be accompanied by
payment in United States currency of an amount equal to the difference between
(i) the interest on the principal amount of this Security or such portion hereof
payable on such Interest Payment Date and (ii) the amount of accrued interest on
the principal amount of this Security or portion hereof to but not including the
date of conversion. Subject to the aforesaid requirement for payment and, in the
case of a conversion after the Regular Record Date preceding any Interest
Payment Date and on or before such Interest Payment Date, to the right of the
Holder of this Security (or any Predecessor Security) of record at such Regular
Record Date to receive an installment of interest (with certain exceptions
provided in the Indenture), payment shall be made on conversion, for interest
accrued hereon from the Interest Payment Date preceding the date of conversion
to the Conversion Date. No payment or adjustment is to be made for dividends on
the Common Stock issued on conversion hereof. The Company shall thereafter
deliver to the Holder the fixed number of Conversion Shares of Common Stock
(together with any cash adjustment, as provided in the Indenture) into which
this Security is convertible and such delivery will be deemed to satisfy the
Company's obligation to pay the principal amount of this Security.
No fractions of shares or scrip representing fractions of shares
will be issued on conversion, but instead of any fractional interest (calculated
to the nearest 1/100th of a share) the Company shall pay a cash adjustment as
provided in the Indenture. The Conversion Price is subject to adjustment as
provided in the Indenture. In addition, the Indenture provides that in case of
certain consolidations or mergers to which the Company is a party or the
transfer of all or substantially all of the property and assets of the Company,
the Indenture shall be amended, without the consent of any Holders of
Securities, so that this Security, if then Outstanding, will be convertible
thereafter, during the period this Security shall be convertible as specified
above, only into the kind and amount of securities, cash and other property
receivable upon such consolidation, merger or transfer by a holder of the number
of shares of Common Stock of the Company into which this Security could have
been converted immediately prior to such consolidation, merger or transfer.
7. If a Change in Control occurs, the Holder of this Security
shall have the right, in accordance with the provisions of the Indenture, to
require the Company to repurchase all or a portion of such Holder's Securities
specified in a Change in Control Purchase Notice for cash at a Purchase Price
equal to 100% of the principal amount thereof plus accrued and unpaid
4
<PAGE> 119
interest to the Purchase Date, provided that any portion of this Security to be
repurchased is an authorized denomination. Whenever in this Security there is a
reference, in any context, to the principal of any Security as of any time, such
reference shall be deemed to include reference to the Purchase Price payable in
respect of such Security to the extent that such Purchase Price is, was or would
be so payable at such time, and express reference of the Purchase Price in any
provision of this Security shall not be construed as excluding the Purchase
Price in those provisions of this Security when such express reference is not
made.
Within 30 days after the occurrence of a Change in Control, the
Company is obligated to give to all Holders of record of the Securities notice,
as provided in the Indenture (the "Company Notice"), of the occurrence of such
Change in Control and of the Repurchase Right arising as a result thereof. The
Company must also deliver a copy of the Company Notice to the Trustee. To
exercise the purchase right, a Holder of such Securities must deliver on or
before the 45th day after the date of the Company Notice, a Change in Control
Purchase Notice to the Trustee of the Holder's exercise of such right, together
with the Securities with respect to which the right is being exercised.
Under the Indenture, a "Change in Control" of the Company is
deemed to have occurred at such time as (i) any person (as the term "person" is
used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), other than
the Company, any Company Subsidiary, Robert J. Skandalaris or any employee
benefit plan of either the Company or any Company Subsidiary, files a Schedule
13D or 14D-1 under the Exchange Act (or any successor schedule, form or report)
disclosing that such person has become the beneficial owner of 50% or more of
the total voting power in the aggregate of all classes of capital stock of the
Company then outstanding normally entitled to vote in elections of directors,
with certain exceptions, or (ii) there shall be consummated any consolidation or
merger of the Company (a) in which the Company is not the continuing or
surviving corporation (other than any consolidation or merger effected primarily
to change the jurisdiction of incorporation of the Company) or (b) pursuant to
which the Common Stock would be converted into cash, securities or other
property, in each case, other than a consolidation or merger of the Company in
which the holders of Common Stock immediately prior to the consolidation or
merger have, directly or indirectly, at least a majority of the total voting
power in the aggregate of all classes of capital stock of the continuing or
surviving corporation normally entitled to vote in elections of directors
immediately after the consolidation or merger. The Indenture does not permit the
Board of Directors to waive the Company's obligation to purchase Securities at
the option of a Holder in the event of a Change in Control of the Company.
5
<PAGE> 120
The Company will comply with the provisions of Rule 13e-4, Rule
14e-1 and any other tender offer rules under the Exchange Act which may then be
applicable, and will file Schedule 13E-4 or any other schedule required
thereunder in connection with any offer by the Company to purchase Securities at
the option of the Holders thereof upon a Change in Control.
8. In the event of redemption, repurchase or conversion of this
Security in part only, a new Security or Securities for the unredeemed,
unrepurchased or unconverted portion hereof will be issued in the name of the
Holder hereof.
9. Each Holder of this Security, by acceptance hereof,
acknowledges and agrees to the provisions of the Registration Rights Agreement
among the Company and the Placement Agents (the "Registration Rights
Agreement"), including, without limitation, the obligations of the Company to
pay interest on this Security at the increased rates specified therein upon the
occurrence of certain defaults by the Company in complying with certain
covenants contained in the Registration Rights Agreement and the obligations of
the Holders with respect to a "Shelf Registration Statement" and the
indemnification of the Company to the extent provided in the Registration Rights
Agreement.
The following is a summary of the interest rate increase
provisions of the Registration Rights Agreement, which summary does not purport
to be complete and is subject to, and qualified in its entirety by reference to
the detailed provisions of the Registration Rights Agreement.
The Company agrees, under the Registration Rights Agreement and
subject thereto, for the benefit of the Holders of the Securities and their
successors and transferees that (i) it will, at its cost, file a Shelf
Registration Statement with the Commission with respect to resales of Conversion
Shares by November 30, 1998, (ii) it will use its best efforts to have such
Shelf Registration Statement declared effective by the Commission by January 31,
1999, and (iii) it will use its best efforts to maintain such Shelf Registration
Statement continuously effective under the Securities Act to permit the
prospectus included the Shelf Registration Statement to be used by a holder of
Conversion Shares for a period of two years from the Final Closing Date or a
shorter period, which shorter period will terminate when all of the Conversion
Shares have been sold pursuant to the Shelf Registration Statement or Rule 144
under the Securities Act (the "Shelf Registration Period"), provided that the
Company may suspend the use of the Shelf Registration Statement for a period not
to exceed 45 days in any 12 month period (during the Shelf Registration Period)
for valid business reasons, including acquisitions and divestitures of assets,
filings with the Commission, pending corporate developments and similar reasons.
6
<PAGE> 121
If the Company defaults in complying with clause (i) above then,
at such time, the interest rate on the Securities (the "Initial Rate") will
increase by 25 basis points. Such increase will remain in effect until the date
on which such Shelf Registration Statement is filed, on which date the interest
rate on the Securities will revert to the Initial Rate (plus any increases in
the Initial Rate pursuant to the following sentence). If the Shelf Registration
Statement is not declared effective as provided in clause (ii) above, then, at
such time, and on each successive 30th day following such time, the interest
rate on the Securities (which interest rate will be the sum of the Initial Rate
plus any increase in such interest rate pursuant to a default in complying with
clause (i) above plus any increases pursuant to this sentence) will increase by
an additional 25 basis points; provided, however, that the Initial Rate will not
increase by more than 75 basis points pursuant to this sentence and will not
increase by more than 100 basis points pursuant to this sentence and a default
in complying with clause (i) above. Such increase or increases will remain in
effect until the date on which the Shelf Registration Statement is declared
effective, on which date the interest rate on the Securities will revert to the
Initial Rate. If the Company fails to keep the Shelf Registration continuously
effective or useable for the period specified in clause (iii) above, then at
such time as the Shelf Registration Statement is no longer effective or useable,
and on each successive 30th day following such time, and until the earliest of
(a) the date that the Shelf Registration Statement is again deemed effective,
(b) the date that is the second anniversary of the Final Closing Date (or, in
the event that Rule 144(k) under the Securities Act is amended to provide for a
shorter holding period, until the end of such shorter holding period), and (c)
the date as of which all the Conversion Shares have been sold pursuant to the
Shelf Registration Statement or Rule 144, the interest rate on the Securities
will increase by 25 basis points; provided that the interest rate on the
Securities will not increase by more than 100 basis points pursuant to a default
in compliance with clause (ii) above and this sentence. Such increase or
increases will remain effective until the Shelf Registration Statement is again
effective and useable in accordance with clause (iii) above, on which date, the
interest rate on the Securities will revert to the Initial Rate. Notwithstanding
anything to the contrary in the Registration Rights Agreement, a default in
compliance with clause (iii) above will not be deemed to have occurred and be
continuing by reason of a suspension in use of the Shelf Registration Statement
for valid business reasons to the extent set forth above.
10. The indebtedness evidenced by this Security is, to the extent
and in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness of the Company,
and this Security is issued subject to such provisions of the Indenture with
respect thereto. Each Holder of this Security, by accepting
7
<PAGE> 122
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination so provided and (c) appoints the
Trustee his or its attorney-in-fact for any and all such purposes.
11. If an Event of Default shall occur and be continuing, the
principal of all the Securities, together with accrued interest to the date of
declaration, may be declared due and payable in the manner and with the effect
provided in the Indenture. Upon the indefeasible payment in full in cash (i) of
the amount of principal so declared due and payable, together with accrued
interest to the date of declaration, and (ii) interest on any overdue principal
and overdue interest, all of the Company's obligations in respect of the payment
of the principal of and interest on the Securities shall terminate.
12. The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities under
the Indenture at any time by the Company and the Trustee with the written
consent of the Holders of a majority in principal amount of the Securities at
the time outstanding. The Indenture also contains provisions permitting the
Holders of a majority in principal amount of the Securities at the time
outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security or such other Security. Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder, the
Company and the Trustee may amend the Indenture or the Securities to evidence
the succession of another Person to the Company and the assumption by such
successor to the covenants and obligations of the Company in the Indenture or
this Security, to cure any ambiguity, omission, defect or inconsistency, to add
guarantees or secure the Securities, to add to the covenants of the Company for
the benefit of Holders or to surrender any right or power conferred upon the
Company, to make provision with respect to conversion rights of Holders in
accordance with Section 10.12 of the Indenture, or to make certain changes in
the subordination provisions.
13. No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on (including Additional Amounts, as described on the face
hereof) this Security at the times, places and rate, and in
8
<PAGE> 123
the currency herein prescribed or to convert this Security as provided in the
Indenture.
14. As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of Securities is registrable on the
Security Register upon surrender of a Security for registration of transfer (a)
at the Corporate Trust Office of the Trustee or at such other office or agency
of the Company as may be designated by it for such purpose in the Borough of
Manhattan, The City of New York, or (b) subject to any laws or regulations
applicable thereto and to the right of the Company to terminate the appointment
of any Transfer Agent, at the office of Banque Internationale a Luxembourg S.A.,
as the Company's Transfer Agent in Luxembourg or at such other offices or
agencies as the Company may designate, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Registrar duly executed by, the Holder thereof or his attorney duly authorized
in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees by the Registrar. No service charge shall
be made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to recover any tax or other governmental
charge payable in connection therewith.
15. Prior to due presentation of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered, as the owner
thereof for all purposes, whether or not such Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
16. THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF
AMERICA, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
9
<PAGE> 124
[FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:_________________
American Stock Transfer and
Trust Company, as Trustee
[By Authenticating Agent,
as Authenticating Agent]
by:____________________________
Authorized Signatory
<PAGE> 125
[ASSIGNMENT FORM]
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably appoint
_________________________________________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
(Print or type person's name, address and zip code)
________________________________________________________________________________
Dated:_________________ Signature:_________________________
<PAGE> 126
[FORM OF CONVERSION NOTICE FOR SECURITIES]
CONVERSION NOTICE
The undersigned Holder of this Security hereby irrevocably
exercises the option to convert this Security, or any portion of the principal
amount hereof (which is an integral multiple of $1,000), below designated, into
shares of Common Stock in accordance with the terms of the Indenture referred to
in this Security, and directs that such Conversion Shares, together with a check
in payment for any fractional share and any Securities representing any
unconverted principal amount hereof, be delivered to and be registered in the
name of the undersigned unless a different name has been indicated below. If
shares of Common Stock or Securities are to be registered in the name of a
Person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto. Any amount required to be paid by the undersigned
on account of interest accompanies this Security.
Dated:___________________ ________________________________
Signature
If shares or Securities are to be registered in the name of a Person other than
the Holder, please print such Person's name and address:
____________________________________
Name
____________________________________
Address
Social Security or other Taxpayer
Identification Number, if any
____________________________________
<PAGE> 1
EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
AGREEMENT, dated as of July , 1998, executed and delivered by
Noble International, Ltd., a Michigan corporation (the "Company"), in favor of
the Holders of Debentures and Registrable Securities (as said terms are defined
herein).
W I T N E S S E T H :
WHEREAS, pursuant to the terms and conditions set forth in the
Company's Offering Memorandum dated July 23, 1998, including the Exhibits
thereto, any and all supplements thereof and amendments thereto, and all
documents incorporated by reference therein (collectively, the "Offering
Memorandum"), the Company is offering for sale up to $40,000,000 principal
amount of its 6% Convertible Subordinated Debentures due 2005 (together with any
so-called "PIK Debentures" paid in lieu of cash interest thereon, the
"Debentures"), the terms of which are governed by the Indenture dated as of July
23, 1998, by and between the Company and American Stock Transfer & Trust
Company, as trustee (the "Indenture"); and
WHEREAS, the Debentures are convertible into shares of Common
Stock of the Company, without par value (the "Conversion Shares"); and
WHEREAS, the Debentures are being offered and sold by the Company
in reliance upon the exemption from the registration provisions of the United
States Securities Act of 1933, as amended (the "Securities Act"), which is
provided by Regulation S of the Securities Act; and
WHEREAS, BlueStone Capital Partners, L.P. ("BlueStone") and
Robert Fleming & Co. Limited ("Fleming"), are acting as the Placement Agents for
the Company in connection with the offer and sale of the Debentures on a "best
efforts" basis; and
WHEREAS, pursuant to the terms and conditions set forth in the
Memorandum and contained in the Debenture Subscription Agreement (the
"Subscription Agreement") which has been executed and delivered by or on behalf
of each of the initial purchasers of Debentures from the Company (the "Initial
Purchasers"), each of the Initial Purchasers is purchasing the principal amount
of Debentures for which it has subscribed; and
<PAGE> 2
WHEREAS, the terms and conditions of the offering and sale of the
Debentures provide for the execution and delivery of this Agreement.
NOW, THEREFORE, in order to induce the Initial Purchasers to
purchase the Debentures, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged by the Company, the
Company hereby agrees as follows:
I. Definitions. As used in this Agreement, the capitalized terms
set forth below shall have the following meanings:
"Additional Interest" shall have the meaning set forth in Section
6(a) hereof.
"Affiliate" shall mean, as to a specified Person, a Person that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the Person specified.
"AMEX" shall mean the American Stock Exchange.
"BlueStone" shall have the meaning set forth in the preamble.
"Company" shall have the meaning set forth in the preamble, and
shall also include the Company's successors.
"Conversion Shares" shall have the meaning set forth in the
preamble; provided, however, that if at any time the Debentures become
convertible into any other number of shares of Common Stock of the Company, or
into any other securities of the Company or of any other entity, in each case
pursuant to the terms of the Debentures, then, in such event, the term
"Conversion Shares" shall be deemed to mean such other number of shares of
Common Stock or such other securities, as the case may be.
"Debentures" shall have the meaning set forth in the preamble.
"Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as amended.
"Final Closing Date" shall mean the date of the closing of the
last sale of Debentures by the Company.
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"Fleming" shall have the meaning set forth in the preamble.
"Holder" shall mean each Person who holds Debentures or
Conversion Shares; and each of the successors, assigns and transferees of each
of such Holder.
"Indenture" shall have the meaning set forth in the preamble.
"Initial Purchasers" shall have the meaning set forth in the
preamble.
"Offering Memorandum" shall have the meaning set forth in the
preamble.
"Outstanding Debentures" shall have the meaning set forth in
Section 6(a) hereof.
"Person" shall mean any individual, sole proprietorship,
partnership, corporation, association, joint venture, trust, unincorporated
entity or other entity, or the government of any country or sovereign state, or
of any state, province, municipality or other political subdivision thereof.
"Prospectus" shall mean the Prospectus included in the Shelf
Registration Statement, including any preliminary Prospectus, and any such
Prospectus as amended or supplemented by any Prospectus supplement, including
post-effective amendments, in each case including all material incorporated or
deemed to be incorporated by reference therein.
"Registrable Securities" shall mean the Conversion Shares;
provided, however, that any Conversion Shares shall cease to be Registrable
Securities when they shall have been sold by a Holder pursuant to an effective
Shelf Registration Statement or pursuant to Rule 144.
"Registration Default" shall be the meaning set forth in Section
6(a) hereof.
"Registration Expenses" shall mean any and all expenses incident
to the performance by the Company of its obligations under this Agreement,
including, but not limited to: (i) all SEC and AMEX registration and filing
fees; (ii) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws; (iii) all expenses of printing and
distributing the Shelf Registration Statement, any Prospectus, and any
amendments or supplements thereto; and (iv) the fees and disbursements of
counsel for the Company and of the independent public accountants of the
Company.
"Rule 144" means Rule 144 of the General Rules and Regulations
promulgated under the Securities Act or any successor rule.
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"SEC" shall mean the United States Securities and Exchange
Commission.
"Securities Act" shall have the meaning set forth in the
preamble.
"Shelf Registration Statement" shall mean a registration
statement on an appropriate form under the Securities Act which covers the
resale of the Registrable Securities pursuant to Rule 415 of the General Rules
and Regulations promulgated under the Securities Act, or any similar rule that
may be adopted by the SEC, and all amendments and supplements to such Shelf
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein and all exhibits thereto and all
material incorporated or deemed to be incorporated by reference therein.
"Subscription Agreement" shall have the meaning set forth in the
preamble.
"Underwriter" shall have the meaning set forth in Section 7
hereof.
2. Shelf Registration; Suspension of Use of Prospectus.
(a) The Company shall prepare and, not later than November 30,
1998, shall file with the SEC, and thereafter shall use its best efforts to
cause to be declared effective under the Securities Act as soon as possible
thereafter, and in no event later than January 31, 1999, a Shelf Registration
Statement relating to the offer and sale of the Registrable Securities by the
Holders from time to time in accordance with the methods of distribution
described in the Shelf Registration Statement, which shall be substantially as
set forth on Exhibit A attached hereto and made a part hereof.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the Prospectus
forming part thereof to be used by the Holders for a period of two years from
the Final Closing Date or such shorter period that will terminate when all the
Registrable Securities have been sold pursuant to the Shelf Registration
Statement or Rule 144 (in any such case, such period being called the "Shelf
Registration Period"). The Company shall be deemed not to have used its best
efforts to keep the Shelf Registration Statement effective during the requisite
period if it voluntarily takes any action that would result in Holders of
Registrable Securities not being able to offer and sell such securities pursuant
to the Shelf Registration Statement during that period,
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<PAGE> 5
unless such action is (i) required by applicable law or (ii) pursuant to Section
2(c) hereof, and, in either case, so long as the Company promptly thereafter
complies with the requirements of Section 3(i) hereof, if applicable.
(c) The Company may suspend the use of the Shelf Registration
Statement for a period not to exceed 45 days in any 12 month period for valid
business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, public filings
with the SEC, pending corporate developments and similar events.
3. Registration Procedures. In connection with any Shelf
Registration Statement, the following shall apply:
(a) The Company shall ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part thereof and
any amendment or supplement thereto complies in all material respects with the
Securities Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and (iii) any Prospectus forming part of the Shelf
Registration Statement, and any amendment or supplement to such Prospectus, does
not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) (1) The Company shall advise the Holders and, if requested by
such Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the SEC and when the Shelf Registration Statement or
any post-effective amendment thereto has become effective; and
(ii) of any request by the SEC for amendments or
supplements to the Shelf Registration Statement or the Prospectus included
therein or for additional information.
(2) The Company shall advise the Holders and, if requested by any
such Holder, confirm such advice in writing:
(i) of the issuance by the SEC of any stop order suspending the
effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of
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the securities covered by the Shelf Registration Statement for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the suspension of the use of the Prospectus pursuant to
Section 2(c) hereof or of the happening of any event that
requires the making of any changes in the Shelf Registration
Statement or the Prospectus so that, as of such date, the
statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading (which advice shall be
accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made).
(c) The Company shall use its reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of any Shelf
Registration Statement at the earliest possible time.
(d) The Company shall furnish to each Holder, without charge, at
least one copy of the Shelf Registration Statement in the form declared
effective by the SEC and any post-effective amendment thereto, including
financial statements and schedules (if incorporated by reference), and, if the
Holder so requests in writing, all exhibits (including those incorporated
therein by reference).
(e) The Company shall, during the Shelf Registration Period,
deliver to each Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request; and the Company consents to the use, in compliance with the terms of
this Agreement, of the Prospectus or any amendment or supplement thereto by each
of the Holders of Registrable Securities in connection with the offering and
sale thereof.
(f) Prior to any offering of Registrable Securities pursuant to
any Shelf Registration Statement, the Company shall register or qualify or
cooperate with the Holders thereof and their respective counsel in connection
with the registration or qualification of such securities for offer and sale
under the securities or blue sky laws of such jurisdictions in the United States
as any such Holders reasonably request in writing, and do any and all other acts
or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Registrable Securities; provided, however, that the Company
will not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action which would subject it
to general service of process or to taxation in any such jurisdiction where it
is not then so subject.
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(g) The Company shall use its reasonable best efforts to as
promptly as practicable list the Registrable Securities on each national
securities exchange on which the Shares are then listed, subject to official
notice of issuance.
(h) The Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing the Registrable
Securities free of any restrictive legends and in such denominations and
registered in such names as Holders may request prior to sales of Registrable
Securities pursuant to the Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by paragraph
(b)(2)(iii) above, the Company shall, if required pursuant to the Act or
paragraph (b)(2)(iii) above, promptly prepare a post-effective amendment to the
Shelf Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter delivered
to purchasers of the Registrable Securities, the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(j) The Company may require each Holder to furnish to the Company
with such information regarding the Holder and the distribution of such
securities as the Company may from time to time reasonably require for inclusion
in such Shelf Registration Statement. Any Holder who fails to provide such
information within a reasonable time after receiving such request shall not be
entitled to use the Prospectus.
(k) The Company shall enter into such agreements and take all
other appropriate actions in order to expedite or facilitate the registration or
the disposition of the Registrable Securities.
(l) The Company shall (i) make reasonably available for
inspection by the Holders, and any attorney, accountant or other agent retained
by the Holders, all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries in connection with
such Shelf Registration Statement as is customary for similar due diligence
examinations; and (ii) cause the Company's officers directors and employees to
supply all relevant information reasonably requested by the Holders or any such
attorney, accountant or agent in connection with such Shelf Registration
Statement as is customary for similar due diligence examinations; provided,
however, that any information that is designated in writing by the Company, in
good faith, as confidential at the time of delivery of such information shall be
kept confidential by the Holders or any such
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<PAGE> 8
attorney, accountant or agent, unless disclosure thereof is made in connection
with a court proceeding or required by law, or such information has become
available (not in violation of this agreement) to the public generally or
through a third party without an accompanying obligation of confidentiality, and
the Company shall be entitled to request that such Holders sign a
confidentiality agreement to the foregoing effect.
4. Use of Prospectus. The Holders may not use the Prospectus, in
each case after notice by the Company of the applicable event, (A) during any
period of suspension referred to in Section 2(c), (B) during any period when a
stop order is in effect as referred to in Section 3(b)(2)(i), (C) in the
applicable jurisdiction during any period when the qualification of the
Registrable Securities has been suspended in such jurisdiction, as referred to
in Section 3(b)(2)(ii), and (D) during any suspension period referred to in
Section 3(b)(2)(iii).
5. Registration Expenses. The Company shall be responsible for,
and shall pay in due course, all Registration Expenses. The Company shall not be
responsible for the payment of any underwriting or brokerage fees and discounts.
6. Additional Interest Under Certain Circumstances.
(a) Additional interest ("Additional Interest") with respect to
all of the outstanding Debentures (the "Outstanding Debentures") shall be
assessed as follows if any of the following events occur (each event described
in clauses (i) through (iii) below being hereinafter sometimes called a
"Registration Default"):
(i) if by November 30, 1998, the Shelf Registration
Statement has not been filed with the SEC;
(ii) if by January 31, 1999, the Shelf Registration
Statement has not been declared effective by the SEC; or
(iii) if after the Shelf Registration Statement is
declared effective, (A) such Registration Statement thereafter ceases to be
effective before the second anniversary of Final Closing Date (or, in the event
that Rule 144(k) under the Securities Act is amended to provide for a shorter
holding period, until the end of such shorter period) or the date as of which
all of the Registrable Securities are sold pursuant to the Shelf Registration
Statement or Rule 144; or (B) such Registration Statement or the related
prospectus may no longer be used because either (1) any event occurs as a result
of which the related Prospectus forming part of such Registration Statement
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not
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<PAGE> 9
misleading, or (2) it shall be necessary to amend such Registration Statement or
supplement the related prospectus, to comply with the Securities Act or the
Exchange Act or the respective rules thereunder.
(b) (i) If the Shelf Registration Statement has not been filed
with the SEC within the time period described in clause (a)(i) above, Additional
Interest shall accrue on the Outstanding Debentures over and above the interest
set forth in the title of the Outstanding Debentures as follows: the per annum
interest rate on the Outstanding Debentures will increase by 25 basis points,
such increase remaining in effect until the date on which such Shelf
Registration Statement is filed, on which date the interest rate on the
Outstanding Debentures will revert to the interest rate originally borne by the
Outstanding Debentures, plus any increase in such rate pursuant to clause
(b)(ii) below.
(ii) If the Shelf Registration Statement has not been declared
effective by the SEC within the time period described in clause (a)(ii) above,
then, at such time and on each date that is the successive 30th day following
such time, the per annum interest rate on the Outstanding Debentures (which
interest rate will be the original interest rate on the Outstanding Debentures
plus any increase or increases in such interest rate pursuant to clause (b)(i)
above and pursuant to this clause) will increase by an additional 25 basis
points; provided, however, that the per annum interest rate may not increase by
more than 75 basis points pursuant to this clause and may not increase by more
than 100 basis points pursuant to this clause and clause (b)(i) above. Such
increase or increases will remain in effect until the date on which such Shelf
Registration Statement is declared effective, on which date the interest rate on
the Outstanding Debentures will revert to the interest rate originally borne by
the Outstanding Debentures, plus any Additional Interest that may be payable
pursuant to clause (b)(iii) below.
(iii) If the Company fails to keep the Shelf Registration
Statement continuously effective or usable for the period specified in clause
(a)(iii) above, then at such time as the Shelf Registration Statement is no
longer effective or usable, as the case may be, and on each date thereafter that
is the successive 30th day subsequent to such time and until the earliest of (A)
the date that the Shelf Registration Statement is again deemed effective or
usable, as the case may be, (B) the date that is the second anniversary of the
Final Closing Date (or, in the event that Rule 144(k) under the Securities Act
is amended to provide for a shorter holding period, until the end of such
shorter period) and (C) the date as of which all of the Registrable Securities
have been sold pursuant to the Shelf Registration Statement or Rule 144, the per
annum interest rate on the Outstanding Debentures will increase by 25 basis
points; provided, however, that the per annum interest rate may not increase by
more than 100 basis points pursuant to this clause (b)(iii).
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<PAGE> 10
(c) Anything herein contained to the contrary notwithstanding, a
Registration Default referred to in Section 6(a)(iii)(B) shall be deemed not to
have occurred and be continuing solely as a result of the suspension by the
Company of the use of the Shelf Registration Statement pursuant to the
provisions of Section 2(c) hereof.
(d) Any amounts of Additional Interest due pursuant to clause
(b)(i), (b)(ii) or (b)(iii) of Section 6 above will be payable on the regular
interest payment dates with respect to the Outstanding Debentures. The amount of
Additional Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the Outstanding Debentures, multiplied
by a fraction, the numerator of which is the number of days such Additional
Interest rate was applicable during such period (determined on the basis of a
360-day year comprised of twelve 30-day months), and the denominator of which is
360.
7. Indemnification and Contribution.
(a) In connection with any Shelf Registration Statement, the
Company agrees to indemnify and hold harmless each Holder, each Affiliate of
such Holder, the directors, partners, officers, employees and agents of each
such Holder and each person who controls any such Holder within the meaning of
either the Securities Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Shelf Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any such Holder specifically for inclusion
therein, (ii) the Company will not be liable to any indemnified party under this
indemnity agreement with respect to any Shelf Registration
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<PAGE> 11
Statement or Prospectus to the extent that any such loss, claim, damage or
liability of such indemnified party results from the use of the Prospectus
during a period when the use of the Prospectus has been suspended in accordance
with Section 2(c) hereof, provided that Holders received prior notice of such
suspension; and (iii) the Company shall not be liable to any indemnified party
with respect to any preliminary Prospectus to the extent that any such loss,
claim, damage or liability of such indemnified party results from the fact that
such indemnified party sold Registrable Securities to a person as to whom there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus or of the Prospectus as then amended or supplemented in
any case where such delivery is required by the Securities Act, if the loss,
claim, damage or liability of such indemnified party results from an untrue
statement or omission of a material fact contained in the preliminary Prospectus
which was corrected in the Prospectus or in the Prospectus as then amended or
supplemented. This indemnity agreement will be in addition to any liability
which the Company may otherwise have. The Company also agrees to indemnify and
provide contribution to each person who may be deemed to be an underwriter (for
purposes of the Securities Act) with respect to the Registrable Securities
("Underwriters"), their officers and directors, and each person who controls
each such Underwriter, on substantially the same basis as that of the
indemnification of and contribution to the Holders provided in this Section
7(a).
(b) By its participation in the Shelf Registration Statement,
each Holder shall be deemed to have agreed to indemnify and hold harmless (i)
the Company, (ii) each of its directors, (iii) each of its officers who signs
such Shelf Registration Statement and (iv) each person who controls the Company
within the meaning of either the Act or the Exchange Act to the same extent as
the foregoing indemnity from the Company to each such Holder, but only with
respect to written information relating to such Holder furnished to the Company
by or on behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any such Holder may otherwise have. Each Holder
shall also be deemed to have agreed to indemnify and contribute to each
Underwriter, their officers and directors, and each person who controls each
such Underwriter, on substantially the same basis as that of the indemnification
of and contribution to the Company provided in this Section 7(b). Anything in
this Agreement contained to the contrary notwithstanding, the liability of each
Holder for indemnification or contribution hereunder shall be limited to the
amount of proceeds received by such Holder in the offering giving rise to such
liability.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action,
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such indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the failure so to promptly notify the
indemnifying party will not relieve the indemnifying party from liability under
Section 7(a) or 7(b) hereof unless and to the extent that it is materially
prejudiced thereby. The indemnifying party shall be entitled to appoint counsel
of the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnified party shall not
settle or compromise any action for which it seeks indemnification or
contribution hereunder without the prior written consent of the indemnifying
party, which consent shall not be unreasonably withheld. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in Section 7(a) or
7(b) is unavailable to or insufficient to hold harmless an indemnified party for
any reason, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the aggregate losses,
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claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Shelf Registration Statement which resulted in such losses.
(e) The provisions of this Section 7 shall remain in full force
and effect regardless of any investigation made by or on behalf of any Holder or
the Company or any other persons who are entitled to indemnification pursuant to
the provisions of this Section 7, and shall survive the sale by a Holder of
Registrable Securities pursuant to the Shelf Registration Statement.
8. Rule 144. As long as the Company is subject to the reporting
requirements of Section 13 or 15 of the Exchange Act, the Company shall use its
best efforts to promptly file the reports required to be filed by it pursuant to
Section 13(a) or 15(d) of the Exchange Act and the rules and regulations adopted
by the SEC thereunder. If the Company is at any time not required to file such
reports, it shall promptly make publicly available such information as is
necessary to permit sales of the Conversion Shares pursuant to Rule 144. Upon
the request of any Holder, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements.
9. Amendments. This Agreement may not be amended, modified or
supplemented, and waivers of or consents to departures from the provisions of
this Agreement may not be given, unless it would not have an adverse effect upon
the rights of any of the Holders and the Company has obtained the consent of
Holders then owning a majority of the Registrable Securities. In connection with
the foregoing, the Company hereby acknowledges that pursuant to the terms of the
Subscription Agreement, each of the Placement Agents is empowered to act as
attorney-in-fact for the Holders and their transferees.
10. Successors and Assigns. This Agreement shall inure to the
benefit of, and be binding upon, the Company, the Holders and the other persons
and entities described in Section 7 hereof and their respective successors,
assigns and transferees, including, without limitation and without the need for
an express assignment, subsequent Holders.
11. Third Party Beneficiaries. The Holders from time to time
shall each be a third party beneficiary of the agreements of the Company
contained herein. Each of BlueStone and Fleming shall have the right, but not
the obligation, to enforce such agreements directly, to the extent it determines
(in its sole discretion), that such enforcement is necessary or desirable in
order to protect the rights of the Holders.
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12. Headings. The headings which are contained in this Agreement
are for the sole purpose of convenience of reference, and shall not limit or
otherwise affect the interpretation of any of the provisions hereof.
13. Governing Law. This Agreement shall be governed by the laws
of the State of New York applicable to contracts made and to be wholly performed
therein.
14. Notices. All notices and other communications hereunder shall
be in writing (which shall include publication), and shall be made by hand
delivery, registered first-class mail, telecopier or any courier providing
overnight delivery, (i) if to the Company or an Initial Holder, at the address
set forth in the Subscription Agreement, (ii) if to a Holder of Shares, to the
address set forth on the books and records of the Company, and (iii) if to a
Holder of Debentures (other than an Initial Holder), in the manner provided in
the Indenture. All such notices and other communications shall be deemed to have
been duly given upon receipt or as otherwise provided in the Indenture.
15. Entire Agreement. This Agreement sets forth the entire
agreement of the Company with respect to the subject matter hereof.
16. Severability. In the event that any one or more of the
provisions of this Agreement, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions of this Agreement shall not be in any
way impaired or affected thereby.
17. Further Assurances. The Company will from time to time after
the date hereof take any and all actions, and execute, acknowledge and deliver
any and all documents and instruments, at its cost and expense, as any Holder
may from time to time reasonably request in order to more fully perfect or
protect the rights intended to be granted to it hereunder.
18. Interpretation. As used in this Agreement, unless the context
otherwise requires: words describing the singular number shall include the
plural and vice versa; words denoting any gender shall include all genders;
words denoting natural persons shall include corporations, partnerships and
other entities, and vice versa; and the words "hereof", "herein" and
"hereunder", and words of similar import, shall refer to this Agreement as a
whole, and not to any particular provision of this Agreement.
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19. Waiver. The failure of the Company or any Holder to at any
time enforce any of the provisions of this Agreement shall not be deemed or
construed to be a waiver of any such provision, nor to in any way affect the
validity of this Agreement or any provision hereof or the right of the Company
or any Holder to thereafter enforce each and every provision of this Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Agreement as of the date above written:
NOBLE INTERNATIONAL, LTD.
By:
---------------------------------
Name:
Title:
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EXHIBIT A
PLAN OF DISTRIBUTION
The Registrable Securities may be sold by the Holders from time
to time to or through persons who may be deemed to be underwriters within the
meaning of the Securities Act, directly to other purchasers, or through agents.
The Shelf Registration Statement is not the exclusive means for resales of
Registrable Securities (e.g., they may be sold pursuant to Rule 144). The sale
of the Registrable Securities may be effected from time to time in one or more
transactions at a fixed price or prices (which may be changed), or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices, or at negotiated prices, on such national securities exchange on
which the Registrable Securities may be listed or have unlisted trading
privileges, or in negotiated transactions, or in a combination of such methods
of sale.
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