<PAGE> 1
As filed with the Securities and Exchange Commission on January 29, 1999
Registration No. 333-68001
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3/A
PRE-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NOBLE INTERNATIONAL, LTD.
(Exact name of registrant as specified in its charter)
Michigan 38-3139487
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
(248) 433-3093
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Michael C. Azar, Esq.
General Counsel
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
(248) 433-3093
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
Teresa Tormey Fineman, Esq.
Oppenheimer Wolff & Donnelly LLP
500 Newport Center Drive, Suite 700
Newport Beach, California 92660
(949) 719-6000
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement
---------------
<PAGE> 2
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] __________________
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ___________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
----------------------------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=========================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) UNIT(2) PRICE(2) REGISTRATION FEE(3)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
no par value per share 4,528,598 shares $11.315 $51,241,097.685 $9,255.03
=========================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, this
Registration Statement includes an indeterminate number of additional
shares as may be issuable as a result of stock splits or stock dividends
which occur during this continuous offering.
(2) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the amount of the registration fee based upon the average of
the high and low prices of registrant's Common Stock reported on the
American Stock Exchange on January 27, 1999.
(3) The total registration fee payable by the Registrant is $14,245.03.
However, the Registrant previously paid $4,990 when it filed the Form
S-3, Registration No. 333-68001 on November 25, 1998.
================================================================================
<PAGE> 3
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
(SUBJECT TO COMPLETION DATED JANUARY 29, 1999)
NOBLE INTERNATIONAL, LTD.
[LOGO]
4,528,598 SHARES
OF COMMON STOCK
-----------------------
This Prospectus relates to shares of Common Stock of Noble
International, Ltd. that may be offered for sale for the account of certain
shareholders identified herein. Up to 4,528,598 shares of our Common Stock are
being registered, of which 2,023,405 shares will be issued and sold only upon
the exercise of certain Warrants or conversion of certain Debentures and
Preferred Stock. No period of time has been fixed within which the shares
covered by this Prospectus may be offered or sold.
The selling shareholders may sell all or any portion of their shares of
Common Stock in one or more transactions on the American Stock Exchange or in
private, negotiated transactions. The selling shareholders will determine the
prices at which they sell their shares. We will not receive any of the proceeds
from the sale of the shares of Common Stock by the selling shareholders.
However, we may receive proceeds from the exercise of the Warrants.
On January 27, 1999, there were 7,156,825 shares of Common Stock
outstanding. The Common Stock is listed on the American Stock Exchange and
traded under the symbol "NIL." On January 27, 1999, the last reported sale price
of the Common Stock was $11.685 per share.
We may amend or supplement this Prospectus from time to time by filing
amendments or supplements as required. You should read this entire Prospectus
and any amendments or supplements carefully before you make your investment
decision.
-----------------------
THE SHARES OF COMMON STOCK OFFERED OR SOLD UNDER THIS PROSPECTUS INVOLVE A HIGH
DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING AT PAGE 5.
-----------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-----------------------
The date of this Prospectus is __________, 1999.
<PAGE> 4
WE HAVE NOT AUTHORIZED ANY PERSON TO GIVE YOU ANY SUPPLEMENTAL
INFORMATION OR TO MAKE ANY REPRESENTATIONS FOR US. YOU SHOULD NOT RELY UPON ANY
INFORMATION ABOUT OUR COMPANY THAT IS NOT CONTAINED IN THIS PROSPECTUS OR IN ONE
OF OUR PUBLIC REPORTS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ("SEC")
AND INCORPORATED INTO THIS PROSPECTUS. INFORMATION CONTAINED IN THIS PROSPECTUS
OR IN OUR PUBLIC REPORTS MAY BECOME STALE. THE INFORMATION CONTAINED IN THIS
PROSPECTUS IS ACCURATE ONLY AS OF THE DATE OF THIS PROSPECTUS, REGARDLESS OF THE
TIME OF DELIVERY OF THIS PROSPECTUS OR OF ANY SALE OF THE SHARES. THE SELLING
SHAREHOLDERS ARE OFFERING TO SELL, AND SEEKING OFFERS TO BUY, SHARES OF OUR
COMMON STOCK ONLY IN JURISDICTIONS WHERE OFFERS AND SALES ARE PERMITTED.
TABLE OF CONTENTS
AVAILABLE INFORMATION..........................................................3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE................................3
NOBLE..........................................................................4
FORWARD LOOKING STATEMENTS.....................................................4
RISK FACTORS...................................................................5
USE OF PROCEEDS................................................................9
SELLING SHAREHOLDERS...........................................................9
PLAN OF DISTRIBUTION..........................................................13
LEGAL MATTERS.................................................................13
EXPERTS.......................................................................13
IN THIS PROSPECTUS, "NOBLE," "COMPANY," "WE," "US," AND "OUR" REFER TO NOBLE
INTERNATIONAL, LTD.
2
<PAGE> 5
AVAILABLE INFORMATION
We file annual, quarterly, and current reports, proxy statements, and
other documents with the SEC. You may read and copy any document we file at the
SEC's public reference room at Judiciary Plaza Building, 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549. You should call 1-800-SEC-0330 for more
information on the public reference room. The SEC maintains an Internet site at
http://www.sec.gov where certain reports, proxy and information statements, and
other information regarding issuers (including the Company) may be found. In
addition, such material concerning the Company may be inspected at the offices
of the American Stock Exchange, 86 Trinity Place, New York, New York 10006.
This Prospectus is part of a registration statement filed with the SEC.
The registration statement contains more information than this Prospectus
regarding the Company and its Common Stock, including certain exhibits filed.
You can get a copy of the registration statement from the SEC at the address
listed above or from its Internet site.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate" into this Prospectus information we
file with it in other documents. This means that we can disclose important
information to you by referring to other documents that contain that
information. The information incorporated by reference is considered to be part
of this Prospectus, and information we file later with the SEC will
automatically update and supersede this information. We incorporate by reference
the documents listed below, except to the extent information in those documents
is different from the information contained in this Prospectus, and all future
documents filed with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act of 1934 until we terminate the offering of these shares.
o Annual Report on form 10-K for the year ended December 31, 1997
o Quarterly Reports on Form 10-Q for the quarters ended March 31,
June 30, and September 30, 1998
o Current Reports on Form 8-K dated January 6, 1998, August 10,
1998 (as amended October 7, 1998), and October 16, 1998 (as
amended December 15, 1998)
o Definitive Proxy Statement on Schedule 14A dated March 18, 1998
o The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A filed November 6, 1997
We will provide without charge to each person, including any beneficial
owner of Common Stock, to whom this Prospectus is delivered, upon the written or
oral request of such person, a copy of any and all of the documents that have
been incorporated by reference in this Prospectus (not including exhibits to
such documents unless such exhibits are specifically incorporated by reference
therein). Requests should be directed to:
Noble International, Ltd.
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
Attention: Michael C. Azar, Secretary
Telephone (248) 433-3093
3
<PAGE> 6
NOBLE
Noble International, Ltd. is a leading supplier of automotive
components, component assemblies and value-added services to the automotive
industry. Our customers include automobile manufacturers, such as Daimler
Chrysler AG, Ford Motor Company and General Motors Corporation (which are
sometimes referred to in this Prospectus as "OEMs"), as well as other companies
which are suppliers to automobile manufacturers (sometimes referred to as "Tier
I" suppliers).
We believe that the Company is one of the few suppliers to Tier I
companies, or "Tier II" suppliers, to provide integrated manufacturing, design,
planning, engineering and other value-added services to our customers.
Our primary operations include:
o laser welding of automotive tailored blanks
o laser welding and cutting of automotive components
o steel blanking and slitting
o progressive die stamping of metal automotive components
o injection molding of plastic automotive components
o painting and coating of interior and exterior automotive
components
o design, engineering and assembly of glovebox latches
Our principal executive offices are located at 33 Bloomfield Hills
Parkway, Suite 155, Bloomfield Hills, Michigan 48304, and our telephone number
is (248) 433-3093.
FORWARD LOOKING STATEMENTS
This Prospectus contains and incorporates by reference forward-looking
statements which reflect our current view (as of the date such forward-looking
statement is made) with respect to future events, prospects, projections or
financial performance. These forward-looking statements are subject to certain
uncertainties and other factors that could cause actual results to differ
materially from those made, implied or projected in such statements. The words
"believe," "expect," "anticipate," "project," and similar expressions identify
"forward-looking statements" which speak only as of the date of the statement
made. We undertake no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise.
4
<PAGE> 7
RISK FACTORS
You should consider carefully the following risk factors, as well as the
other information contained in this Prospectus, in evaluating an investment in
the Company's Common Stock.
SUBSTANTIAL OUTSTANDING INDEBTEDNESS
In order to finance our operations, including costs related to the
consummation of various acquisitions, we have incurred substantial indebtedness.
Our credit facilities are secured by substantially all of our assets as well as
the assets of our subsidiaries. In addition to certain financial covenants, our
credit facilities restrict our ability to incur additional indebtedness, pledge
assets, declare dividends or make distributions to shareholders. As of the date
of this Prospectus, we are in compliance with all of the terms of our credit
facilities. There can be no assurance, however, that we will be able to comply
with the terms of our credit facilities in the future.
DEBT SERVICE OBLIGATIONS
Our business is subject to all of the risks associated with substantial
leverage, including the risk that available cash may not be adequate to make
required payments. Our ability to satisfy outstanding debt obligations from cash
flow will be dependent upon our future performance and will be subject to
financial, business and other factors, many of which may be beyond our control.
In the event that we do not have sufficient cash resources to satisfy our
repayment obligations, we will be in default, which would have a material
adverse effect on our business. To the extent that we are required to use cash
resources to satisfy interest payments to the holders of outstanding debt
obligations, we will have less resources available for other purposes.
RELIANCE ON MAJOR CUSTOMERS
Sales to the automotive industry account for the substantial majority of
our sales. In addition, our sales are highly concentrated among a few major
OEMs. Thus, the loss of any of our significant customers could have a material
adverse effect on our business. As is typical in the automotive supply industry,
we have no long-term contracts with any of our customers. Our customers provide
annual estimates of their requirements, however, sales are made on a short-term
purchase order basis. There is substantial and continuing pressure from the
major OEMs and Tier I suppliers to reduce costs, including the cost of products
purchased from outside suppliers. If in the future we are unable to generate
sufficient production cost savings to offset price reductions, our gross margins
could be adversely affected.
LIMITED CONSOLIDATED OPERATING HISTORY
We have a limited consolidated operating history with regard to a
significant portion of our operations. Our historical results of operations for
1997 and 1998 do not include all of the results of operations of significant
businesses acquired in November 1997, July 1998 and October 1998. As a result,
such data is not necessarily indicative of the results that would have been
achieved if all of the businesses acquired had been operated on an integrated
basis or of the results that may be realized on a consolidated basis in the
future.
RISKS RELATING TO ACQUISITIONS
The automotive component supply industry is undergoing consolidation as
OEMs and Tier I suppliers seek to reduce both their costs and their supplier
base. Future acquisitions may be made in order to enable us to expand into new
geographic markets, add new customers, provide new products, expand
manufacturing and service capabilities and increase automotive model penetration
with existing
5
<PAGE> 8
customers. Integration of the recent acquisitions, or any future acquisitions,
may place a strain upon our financial and managerial resources. The full
benefits of our acquisitions will require: (i) the integration of
administrative, finance, purchasing, engineering, sales and marketing
organizations; (ii) the coordination of production efforts; and (iii) the
implementation of appropriate operational, financial and management systems and
controls. There can be no assurance that we will be able to integrate these
operations successfully. If we fail to successfully integrate an acquired
business, our business could be harmed.
FAILURE TO OBTAIN BUSINESS ON NEW AND REDESIGNED MODEL INTRODUCTIONS
Our product lines are subject to change as our customers, including both
OEMs and Tier I suppliers, introduce new or redesigned products. We compete for
new business both at the beginning of the development phase of new vehicle
models, which generally begins two to five years prior to the marketing of such
models to the public, and upon the redesign of existing models. Our failure to
obtain business on new models, or to retain or increase business on redesigned
existing models, would adversely affect our business.
DEPENDENCE ON CONTINUOUS IMPROVEMENT OF PRODUCTION TECHNOLOGIES
Our ability to continue to meet customer demands with respect to
performance, cost, quality and service will depend, in part, upon our ability to
remain technologically competitive with our production processes. The investment
of significant additional capital or other resources may be required to meet
this continuing challenge. Our inability to improve our production technologies
could have a material adverse effect on our business.
DESIGN AND ENGINEERING RESOURCES
OEMs and Tier I suppliers are increasingly requiring their suppliers to
provide more design and engineering input at earlier stages in the product
development process. The direct costs of design and engineering are generally
borne by our customers. However, we bear the indirect cost associated with the
allocation of limited design and engineering resources to such product
development projects. Despite our up-front dedication of design and engineering
resources, our customers are under no obligation to order the subject components
or systems from us following their development. In addition, when we deem it
strategically advisable, we may also bear the direct up-front design and
engineering costs as well. There can be no assurance that our dedication of
design and engineering resources, or up-front design and engineering
expenditures, will not have a material adverse effect on our financial condition
or results of operations.
INDUSTRY CYCLICALITY AND SEASONALITY
The automotive industry is highly cyclical and dependent on consumer
spending. Economic factors adversely affecting automotive production and
consumer spending could adversely impact our business. In addition, the
automotive component supply industry is somewhat seasonal. Revenue and operating
income generally increase during the second calendar quarter of each year as a
result of the automotive industry's spring selling season, which is the peak
sales and production period of the year. Revenue and operating income generally
decreases during July and December of each year as a result of scheduled OEM
plant shut downs for vacations and holidays, as well as changeovers in
production lines for new model years.
RISK OF LABOR INTERRUPTIONS
Substantially all of the hourly employees of the OEMs and many Tier I
suppliers are represented by labor unions and work pursuant to collective
bargaining agreements. The failure of any of our
6
<PAGE> 9
significant customers to reach agreement with a labor union on a timely basis,
resulting in either a work stoppage or strike, could have a material adverse
effect on our business. The production workers at our Canadian injection molded
plastics plant are represented by a union. This plant has never been subject to
a strike, lockout or other major work stoppage. The current collective
bargaining agreement with these production workers expires on February 4, 2000.
In addition, the production workers at our Ohio and Indiana steel processing
facilities are represented by a union. These plants have also never been subject
to a strike, lockout or other major work stoppage. The current collective
bargaining agreements with these production workers expire in June 1999, June
2000 and December 2000.
COMPETITION
The automotive component supply industry is highly competitive.
Competition in the sale of our products is primarily based on engineering,
product design, process capability, quality, cost, delivery and responsiveness.
Many of our competitors are companies, or divisions or subsidiaries of
companies, that are larger and have greater financial and other resources. There
can be no assurance that our products will be able to compete successfully with
the products of these other companies.
PRODUCT LIABILITY EXPOSURE
We face an inherent business risk of exposure to product liability
claims if the failure of one of our products results in personal injury or
death. There can be no assurance that material product liability losses will not
occur in the future. In addition, if any of our products prove to be defective,
we may be required to participate in a recall involving such products. We
maintain insurance against product liability claims, but there can be no
assurance that such coverage will be adequate or will continue to be available
to us on acceptable terms or at all. A successful claim brought against us in
excess of available insurance coverage or a requirement to participate in any
product recall could have a material adverse effect on our business.
IMPACT OF ENVIRONMENTAL REGULATION
We are subject to the requirements of federal, state and local
environmental and occupational health and safety laws and regulations. We cannot
assure that we will always be in complete compliance with all such requirements.
We have made and will continue to make expenditures to comply with environmental
requirements. If a release of hazardous substances occurs on or from our
properties or from any of our disposals at offsite disposal locations, or if
contamination is discovered at any of our current or former properties, we may
be held liable, and the amount of such liability could be material.
DEPENDENCE ON KEY PERSONNEL
Our business is greatly dependent on the efforts and abilities of Robert
J. Skandalaris, our Chairman and Chief Executive Officer, Lloyd P. Jones, III,
our President and Chief Operating Officer, and our other executive officers. We
have an employment agreement with Mr. Skandalaris. We do not, however, have
employment agreements with Mr. Jones or any of our other executive officers. We
do not maintain key-person life insurance on our executives. The loss of the
services of Mr. Skandalaris could have a material adverse effect on our
business.
CONTROL BY EXISTING SHAREHOLDERS
Robert J. Skandalaris owns and/or controls approximately 42.8% of the
outstanding Common Stock. As a result, Mr. Skandalaris is able to exert
significant influence over the outcome of all matters submitted to a vote of the
shareholders, including the election of directors, amendments to our Articles of
Incorporation and approval of significant corporate transactions. Such
consolidation of voting power
7
<PAGE> 10
could also have the effect of delaying, deterring or preventing a change in
control that might be beneficial to other shareholders.
ANTI-TAKEOVER PROVISIONS
Certain provisions of our Articles of Incorporation and Bylaws may
inhibit changes in control of the Company not approved by our Board of
Directors. These provisions include: (i) a prohibition on shareholder action
through written consents; (ii) a requirement that special meetings of
shareholders be called only by the Board of Directors; (iii) advance notice
requirements for shareholder proposals and nominations; (iv) limitations on the
ability of shareholders to amend, alter or repeal the Bylaws; and (v) the
authority of the Board of Directors to issue, without shareholder approval,
preferred stock with such terms as the Board of Directors may determine. The
Company will also be afforded the protections of Sections 790 through 799 of the
Michigan Business Corporation Act, which could have similar effects.
RISKS ASSOCIATED WITH INTERNATIONAL OPERATIONS
We recently expanded our presence internationally through the
acquisition of two operating subsidiaries in Ontario, Canada. Our business
strategy includes the continued expansion of international operations. As we
expand our international operations, we will increasingly be subject to the
risks associated with such operations, including: (i) fluctuations in currency
exchange rates, (ii) compliance with local laws and other regulatory
requirements, (iii) restrictions on the repatriation of funds, (iv) inflationary
conditions, (v) political and economic instability, (vi) war or other
hostilities, (vii) overlap of tax structures, and (viii) expropriation or
nationalization of assets. The inability to effectively manage these and other
risks could adversely affect our business.
DIVIDEND POLICY
We currently intend to retain any earnings to support our growth
strategy and do not anticipate paying dividends in the foreseeable future. As a
holding company, our ability to pay dividends in the future will be dependent
upon the receipt of dividends or other payments from our operating subsidiaries.
The payment of dividends by our subsidiaries, other than in stock, is restricted
by our credit facilities. Our ability to pay dividends, other than in stock, is
also subject to limitations under the terms of various credit facilities.
SHARES ELIGIBLE FOR FUTURE SALE
We cannot predict the effect that future sales of Common Stock will have
on the market price of the Common Stock. Sales of substantial amounts of Common
Stock, or the perception that such sales could occur, could adversely affect the
market price of the Common Stock. Approximately 3,732,561 of the shares of
Common Stock currently issued and outstanding are "restricted securities" as
that term is defined under Rule 144 under the Securities Act of 1933 and may not
be sold unless they are registered or unless an exemption from registration,
such as the exemption provided by Rule 144, is available. All of these
restricted securities are currently eligible for resale pursuant to Rule 144,
subject in most cases to the volume and manner of sale limitations prescribed by
Rule 144.
YEAR 2000
We have conducted an evaluation of the actions necessary in order to
ensure that our business critical computer systems will be able to function
without disruption with respect to the application of dating systems in the Year
2000. As a result of these evaluations, we are engaged in the process of
upgrading, replacing and testing certain of our information and other computer
systems so as to be able to operate without disruption due to Year 2000 issues.
Remedial actions are scheduled to be completed during the second quarter of 1999
and, based upon information currently available, we do not anticipate
8
<PAGE> 11
that the costs of our remedial actions will be material to our results of
operation or financial condition. However, there can be no assurance that the
remedial actions being implemented will be able to be completed by the time
necessary to avoid dating systems problems or that the cost of doing so will not
be material. If we are unable to complete our remedial actions in the planned
time frame, contingency plans will be developed to address those business
critical systems which may not be Year 2000 compliant. In addition, disruptions
with respect to the computer systems of vendors or customers, which systems are
outside our control, could impair our ability to obtain necessary materials or
products or to sell to or service our customers. Disruptions of our computer
systems, or the computer systems of our vendors or customers, as well as the
cost of avoiding such disruption, could have a material adverse effect upon our
financial condition and results of operations.
POSSIBLE VOLATILITY OF TRADING PRICE
The trading price of the Common Stock could be subject to significant
fluctuations in response to, among other factors, variations in operating
results, developments in the automotive industry, general economic conditions,
fluctuations in interest rates and changes in securities analysts'
recommendations regarding our securities. Such volatility may adversely affect
the market price of the Common Stock.
USE OF PROCEEDS
The proceeds from the sale of the shares are solely for the account of
the selling shareholders. Accordingly, we will not receive any proceeds from the
sale of the shares from the selling shareholders. However, we may receive
proceeds from the exercise of certain warrants to purchase up to 330,000 of the
shares of Common Stock offered hereby. We intend to use any proceeds received
from the exercise of warrants for our general working capital needs.
SELLING SHAREHOLDERS
This Prospectus relates to the offering of 4,528,598 shares of Common
Stock by the persons named in the following tables. Certain of the selling
shareholders are holders of $20.76 million in principal amount of 6% convertible
debentures issued by the Company in a private offering ("Debentures"). The
holders of Debentures have the right to exchange their Debentures for an
aggregate of 1,450,466 shares of Common Stock at a price of $14.3125 per share
(subject to adjustment in certain events). Other selling shareholders are
holders of representatives' warrants issued in connection with the Company's
November 1997 initial public offering ("Representatives' Warrants"). These
Representatives' Warrants holders have the right to purchase an aggregate of up
to 435,000 shares of Common Stock at a price of $10.80 per share (subject to
adjustment in certain events). Other selling shareholders are holders of common
stock purchase warrants issued by the Company in a private offering of units
consisting of 7% junior subordinated notes and common stock purchase warrants
("Warrants"). These Warrant holders have the right to purchase an aggregate of
up to 105,000 shares of Common Stock at a price of $10.50 per share (subject to
adjustment in certain events). Robert J. Skandalaris obtained the right to
registration of 2,313,018 shares of Common Stock in connection with a $6 million
loan made by him to the Company in December 1998. The remainder of the selling
shareholders obtained the right to registration of an aggregate of 330,114
shares of Common Stock by agreement either in connection with our November 1997
acquisition of Noble Metal Processing, Inc. (formerly known as Utilase, Inc.),
our July 1998 acquisition of Tiercon Industries, Inc. (formerly Tiercon
Holdings, Inc.), or our October 1998 acquisition of Tiercon Coaters, Inc.
(formerly Centrifugal Coaters, Inc.
The following tables set forth certain information, as of January 27,
1998, and as adjusted to reflect the sale of the shares offered hereby, with
respect to the beneficial ownership of Common Stock
9
<PAGE> 12
by the selling shareholders. Our registration of these shares of Common Stock
does not necessarily mean that the selling shareholders will sell all or any of
such shares. Except as otherwise indicated in the footnotes to the tables below,
prior to the date of this Prospectus, none of the selling shareholders had ever
held any position or office or had any material relationship with the Company or
any of its subsidiaries and the selling shareholders possess sole voting and
investment power with respect to the shares shown.
DEBENTURE HOLDERS(1)
<TABLE>
<CAPTION>
MAXIMUM NUMBER OF PERCENT
NAME SHARES TO BE SOLD(2) OF CLASS(3)
---- -------------------- -----------
<S> <C> <C>
Credit Foncier de Monaco 27,947 *
Vereins und Westbank 139,737 1.6
Bank Sal Oppenheim Zurich in 34,934 *
favor of Ellis AG
Infidar Investment Advisory Ltd. 34,934 *
Leonardo L.P. 41,921 *
Ramius Fund, Ltd. 20,960 *
Raphel, L.P. 6,986 *
Daiwa Europe, Ltd. 209,606 2.4
Courcoux Bouvet 10,480 *
Bank Insinger de Beaufort N.V. 13,275 *
Clariden Bank 57,292 *
Banque Privee Edmond de 13,973 *
Rothschild SA Luxenbourg in
favor of Trust Invest
Weghsteen & Driege N.V., S.A. 27,947 *
Marint Limited 69,868 *
Pictet & Cie for the account of 17,467 *
Van Dalen & Associates
Deutsche Bank de Bary - 69,868 *
Custody, Amsterdam
Vereinsbank, Int. Luxembourg 34,934 *
Leopold Joseph & Sons 9,082 *
(Guernsey) Ltd.
Generale Bank, Curacao N.V. in 32,838 *
Favor of Oyens & Van Eaghen,
Rotterdam
Robert Flemings & Co. Limited 209,606 2.4
Gacita Limited 349,344 4.1
Carousel Trading 17,467 *
</TABLE>
- --------------------
(1) No shares of Common Stock are currently held by the Debenture holders.
Shares of Common Stock will be issued only upon conversion of the
debentures.
(2) Shares numbers have been calculated based upon the principal amount of
the Debentures and the initial conversion price of $14.3125 per share.
(3) Assumes the conversion of all of the Debentures.
* Indicates less then 1%.
10
<PAGE> 13
REPRESENTATIVES' WARRANTS HOLDERS(4)
<TABLE>
<CAPTION>
NAME MAXIMUM NUMBER OF PERCENT
---- SHARES TO BE SOLD OF CLASS(5)
----------------- -----------
<S> <C> <C>
BlueStone Capital Partners, LP 181,500 2.4
Rodman & Renshaw, Inc. 89,100 1.2
Julia S. Heckman 41,400 *
Andrew C. Swartz 2,000 *
John J. Borer, III 10,000 *
Michael Sellinger 1,000 *
Karl Schmidt 5,000 *
</TABLE>
- --------------------
(4) No shares of Common Stock are currently held by the Representatives'
Warrants holders. Shares will be issued only upon the exercise of
Representatives' Warrants at an exercise price of $10.80 per share.
(5) Assumes exercise of all of the Representatives' Warrants.
* Indicates less then 1%.
WARRANT HOLDERS(6)
<TABLE>
<CAPTION>
MAXIMUM NUMBER OF
NAME SHARES TO BE SOLD PERCENT OF CLASS(7)
---- ----------------- -------------------
<S> <C> <C>
Marint Limited 30,000 *
Gacita Limited 30,000 *
Fiduciaria Orefici S.p.A. Sim 15,000 *
Ellis AG 15,000 *
Weghsteen & Driege N.V./S.A. 15,000 *
</TABLE>
- ----------------
(6) No shares of Common Stock are currently held by the Warrant holders.
Shares will be issued only upon the exercise of Warrants at an exercise
price of $10.50 per share.
(7) Assumes exercise of all of the Warrants.
* Indicates less than 1%.
11
<PAGE> 14
OTHER RIGHTS HOLDERS
<TABLE>
<CAPTION>
SHARES BENEFICIALLY
OWNED AS OF MAXIMUM
JANUARY 27, 1999 NUMBER OF
---------------------------- SHARES PERCENT
NAME NUMBER PERCENT OF CLASS TO BE SOLD OF CLASS
---- ------ ---------------- ---------- --------
<S> <C> <C> <C> <C>
Robert J. Skandalaris(8) 3,064,456 42.8% 2,313,018 32.3
James Bronce Henderson, III(9) 133,686 1.8% 133,686 1.9
Jeffrey A. Moss (10) - - 58,490 *
Wrayter Investments Inc.(11)(12) - - 136,238 1.1
Robert Blake, Jr.(13) - - 1,700 *
</TABLE>
- --------------------
(8) Mr. Skandalaris is the Chairman of our Board of Directors and our Chief
Executive Officer.
(9) Mr. Henderson served as the Chairman of our Board of Directors until
December 1998.
(10) Mr. Moss will receive an aggregate of 58,490 shares, payable at the rate
of 11,698 shares per annum commencing November 24, 1999, as
consideration for a covenant not to compete with the Company delivered
in connection with the acquisition of Noble Metal Processing, Inc.
(11) Wrayter Investments Inc. is controlled by Fraser Wray, the President of
our Tiercon Industries, Inc. subsidiary.
(12) These shareholders currently hold shares of exchangeable Preferred Stock
of Noble Canada, Inc. delivered in connection with the acquisitions of
Tiercon Industries, Inc. and Tiercon Coaters, Inc.
* Indicates less than 1%
12
<PAGE> 15
PLAN OF DISTRIBUTION
Shares of Common Stock covered hereby may be offered and sold from time
to time by the selling shareholders. The selling shareholders will act
independently of the Company in making decisions with respect to the timing,
manner and size of each sale. The selling shareholders may sell the shares being
offered hereby: (i) on the American Stock Exchange, or otherwise at prices and
at terms then prevailing or at prices related to the then current market price;
or (ii) in private sales at negotiated prices directly or through a broker or
brokers, who may act as agent or as principal or by a combination of such
methods of sale.
Any broker-dealer participating in such transactions as agent may
receive commissions from the selling shareholders (and, if acting as agent for
the purchaser of such shares, from such purchaser). Usual and customary
brokerage fees will be paid by the selling shareholders. Broker-dealers may
agree with the selling shareholders to sell a specified number of shares at a
stipulated price per share, and, to the extent such a broker-dealer is unable to
do so acting as agent for the selling shareholders, to purchase as principal any
unsold shares at the price required to fulfill the broker-dealer commitment to
the selling shareholders. Broker-dealers who acquire shares as principal may
thereafter resell such shares from time to time in transactions (which may
involve crosses and block transactions and which may involve sales to and
through other broker-dealers, including transactions of the nature described
above) on the American Stock Exchange, in negotiated transactions or by a
combination of such methods of sale or otherwise at market prices prevailing at
the time of sale or at negotiated prices, and in connection with such resales
may pay to or receive from the purchasers of such shares commissions computed as
described above.
The selling shareholders and any underwriter, dealer or agent who
participates in the distribution of such shares may be deemed to be
"underwriters" under the Securities Act of 1933, and any discount, commission or
concession received by such persons might be deemed to be an underwriting
discount or commission. The Company has agreed to indemnify the selling
shareholders against certain liabilities arising under the Securities Act of
1933. The selling shareholders may indemnify any broker-dealer that participates
in transactions involving the sale of the shares against certain liabilities,
including liabilities arising under the Securities Act of 1933.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon by Oppenheimer Wolff & Donnelly LLP, counsel to the Company.
EXPERTS
The Company's consolidated financial statements incorporated by
reference in this Prospectus have been audited by Grant Thornton LLP,
independent auditors, as set forth in their report included therein and
incorporated herein by reference. Such financial statements are, and audited
financial statements to be included in subsequently filed documents will be,
incorporated herein by reference in reliance upon the reports of Grant Thornton
LLP pertaining to such financial statements (to the extent covered by consents
filed with the SEC) and upon the authority of such firm as experts in auditing
and accounting.
13
<PAGE> 16
PART II
INFORMATION NOT REQUIRED
IN PROSPECTUS
ITEM 14. ITEMIZED STATEMENT OF EXPENSES.
The table below sets forth the estimated expenses (except the SEC
registration fee, which is an actual expense) in connection with the offer and
sale of the shares of Common Stock of the registrant covered by this
Registration Statement.
<TABLE>
<S> <C>
SEC Registration Fee $ 14,245
Legal Fees and Expenses $ 15,000
Accounting Fees and Expenses $ 1,500
Printing Fees and Expenses $ 1,500
AMEX Listing Fees $ 17,500
Miscellaneous $ 1,000
----------
Total $ 50,745
----------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
MICHIGAN STATUTES
Sections 561 to 571 of the Michigan Business Corporation Act set forth
the conditions and limitations governing the indemnification of officers,
directors and other persons as follows:
Section 561. Indemnification for Expenses, Judgments, Fines and
Settlements; Plea of Nolo Contendere, Effect. A corporation shall have power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal. administrative or investigative and whether formal or informal,
other than an action by or in the right of the corporation, by reason of the
fact that he or she is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise,
whether for profit or not, against expenses, including attorneys' fees,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if the person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation or its shareholders, and with respect to any criminal action or
proceeding, if the person had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit, or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
does not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the corporation or its shareholders, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his or her conduct was unlawful.
Section 562. Indemnification for Expense Incurred for Defense or
Settlement of Litigation; Negligence or Misconduct; Extent of Indemnification. A
corporation has the power to indemnify a person who was or is a party or is
threatened to be made a party to a threatened, pending, or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he or she is or was a director, officer, employee, or
agent of the corporation, or is or was serving at
II-1
<PAGE> 17
the request of the corporation as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, or other enterprise, whether for profit or not, against
expenses, including attorneys' fees, and amounts paid in settlement actually and
reasonably incurred by the person in connection with the action or suit, if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation or its shareholders.
Indemnification shall not be made for a claim, issue, or matter in which the
person has been found liable to the corporation except to the extent authorized
in section 564c.
Section 563. Success in Defense of Litigation. To the extent that a
director, officer, employee, or agent of a corporation has been successful on
the merits or otherwise in defense of an action, suit, or proceeding referred to
in Section 561 or 562, or in defense of a claim, issue, or matter in the action,
suit, or proceeding, he or she shall be indemnified against actual and
reasonable expenses, including attorneys' fees, incurred by him or her in
connection with the action, suit, or proceeding and an action, suit, or
proceeding brought to enforce the mandatory indemnification provided in this
subsection.
Section 564a. Determining Permissibility of Indemnification and
Reasonableness of Expenses. (1) An indemnification under section 561 or 562,
unless ordered by the court, shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee, or agent is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in sections 561 and 562 and
upon an evaluation of the reasonableness of expenses and amounts paid in
settlement. This determination and evaluation shall be made in any of the
following ways:
(a) By a majority vote of a quorum of the board consisting
of directors who are not parties or threatened to be made parties to the action,
suit, or proceeding.
(b) If a quorum cannot be obtained under subdivision (a), by
majority vote of a committee duly designated by the board and consisting solely
of 2 or more directors not at the time parties or threatened to be made parties
to the action, suit, or proceeding.
(c) By independent legal counsel in a written opinion, which
counsel shall be selected in 1 of the following ways:
(i) By the board or its committee in the manner
prescribed in subdivision (a) or (b).
(ii) If a quorum of the board cannot be obtained
under subdivision (a) and a committee cannot be designated under subdivision
(b), by the board.
(d) By all independent directors who are not parties or
threatened to be made parties to the action, suit, or proceeding.
(e) By the shareholders, but shares held by directors,
officers, employees, or agents who are parties or threatened to be made parties
to the action, suit, or proceeding may not be voted.
(2) In the designation of a committee under subsection (1)(b) or in
the selection of independent legal counsel under subsection (1)(c)(ii), all
directors may participate.
(3) If a person is entitled to indemnification under section 561 or
562 for a portion of expenses, including reasonable attorneys' fees, judgments,
penalties, fines, or amounts paid in
II-2
<PAGE> 18
settlement, but not for the total amount, the corporation may indemnify the
person for the portion of the expenses, judgments, penalties, fines or amounts
paid in settlement for which the person is entitled to be indemnified.
Section 564b. Advancement of Reasonable Expenses Prior to Final
Disposition; Conditions. (1) A corporation may pay or reimburse the reasonable
expenses incurred by a director, officer, employee, or agent who is a party or
threatened to be made a party to an action, suit, or proceeding in advance of
final disposition of the proceeding if all of the following apply:
(a) The person furnishes the corporation a written
affirmation of his or her good faith belief that he or she has met the
applicable standard of conduct set forth in sections 561 and 562.
(b) The person furnishes the corporation a written
undertaking, executed personally or on his or her behalf, to repay the advance
if it is ultimately determined that he or she did not meet the standard of
conduct.
(c) A determination is made that the facts then known to
those making the determination would not preclude indemnification under this
act.
(2) The undertaking required by subsection (1)(b) must be an
unlimited general obligation of the person but need not be secured.
(3) Determinations and evaluations under this section shall be made
in the manner specified in section 564a.
Section 564c. Application to Court for Indemnification. A director,
officer, employee, or agent of the corporation who is a party or threatened to
be made a party to an action, suit, or proceeding may apply for indemnification
to the court conducting the proceeding or to another court of competent
jurisdiction. On receipt of an application, the court after giving any notice it
considers necessary may order indemnification if it determines that the person
is fairly and reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not he or she met the applicable standard of conduct
set forth in sections 561 and 562 or was adjudged liable as described in section
562, but if he or she was adjudged liable, his or her indemnification is limited
to reasonable expenses incurred.
Section 565. Nonexclusivity of Statute; Rights of Other Persons;
Continuation of Rights. (1) The indemnification or advancement of expenses
provided under sections 561 to 564c is not exclusive of other rights to which a
person seeking indemnification or advancement of expenses may be entitled under
the articles of incorporation, bylaws, or a contractual agreement. The total
amount of expenses advanced or indemnified from all sources combined shall not
exceed the amount of actual expenses incurred by the person seeking
indemnification or advancement of expenses.
(2) The indemnification provided for in sections 561 to 565
continues as to a person who ceases to be a director, officer, employee, or
agent and shall inure to the benefit of the heirs, personal representatives, and
administrators of the person.
Section 567. Insurance Against Liability. A corporation shall have power
to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee, or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, partner, trustee,
employee, or agent of another corporation, partnership, joint venture, trust, or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity or arising out of
II-3
<PAGE> 19
his or her status as such, whether or not the corporation would have power to
indemnify him or her against liability under sections 561 to 565.
Section 569. Corporation; Construction of References to. For purposes of
sections 561 to 567, "corporation" include all constituent corporations absorbed
in a consolidation or merger and the resulting or surviving corporation, so that
a person who is or was a director, officer, partner, trustee, employee, or agent
of such constituent corporation or is or was serving at the request of the
constituent corporation as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust, or other
enterprise whether for profit or not shall stand in the same position under the
provisions of this section with respect to the resulting or surviving
corporation as the person would if he or she had served the resulting or
surviving corporation in the same capacity.
Section 571. Definitions. For the purposes of sections 561 to 567:
(a) "Fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan.
(b) "Other enterprises" shall include employee benefit plans.
(c) "Serving at the request of the corporation" shall include any
service as a director, officer, employee, or agent of the corporation which
imposes duties on, or involves services by, the director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or its
beneficiaries.
(d) A person who acted in good faith and in a manner he or she
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be considered to have acted in a manner "not
opposed to the best interests of the corporation or its shareholders as referred
to in sections 561 and 562.
Articles of Incorporation
Article VIII of the Company's Articles of Incorporation limits the
liability for breaches of fiduciary duty by directors to the fullest extent
provided by law as follows:
A director of the corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for a breach of
fiduciary duty as a director, except for liability: (a) for any breach
of the director's duty of loyalty to the corporation or its
shareholders; (b) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (c)
resulting from a violation of Section 551(1) of the Michigan Business
Corporation Act; or (d) for any transaction from which the director
derived any improper personal benefit. In the event the Michigan
Business Corporation Act is amended to authorize corporate action
further eliminating or limited to the fullest extent permitted by the
amended Michigan Business Corporation Act, as so amended. Any repeal,
modification or adoption of any provision in these Articles of
Incorporation inconsistent with this Article shall not adversely affect
any right or protection of a director of the corporation existing at the
time of such repeal, modification or adoption.
II-4
<PAGE> 20
Bylaws
Article VII of the Company's Bylaws provides for indemnification of the
Company's directors, officers and agents to advance expenses for defense of
litigation and to purchase and maintain insurance on behalf of any director or
officer of the Company against any liability asserted against or incurred by
them in such capacity or arising out of their status as such whether or not the
Company would have power to indemnify such director or officer against any
liability under the provisions of such Articles or Michigan law and authorize
the Board to extend such indemnity to others as follows:
7.1 Third Party Proceeding. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to a
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal, other
than an action by or in the right of the Corporation, by reason of the fact that
he or she is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, partner, or
trustee of another foreign or domestic corporation, partnership, joint venture,
trust, or other enterprise, whether for profit or not, against expenses,
including attorneys' fees, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with the
action, suit, or proceeding. If the person acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the Corporation or its shareholders, and the person submits a written claim for
indemnification as hereinafter provided, and with respect to a criminal action
or proceeding, if the person had no reasonable cause to believe his or her
conduct was unlawful, and the person submits a written claim for indemnification
as hereinafter provided. The termination of an action, suit, or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, does not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Corporation or its shareholders,
or, with respect to a criminal action or proceeding, did not have reasonable
cause to believe that his or her conduct was unlawful. The right to
indemnification conferred in this Section shall be a contract right. The
Corporation may, by action of its Board of Directors, or by action of any person
to whom the Board of Directors has delegated such authority, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
7.2 Derivative Shareholder Liability. The Corporation shall
indemnify any person who was or is a party to or is threatened to be made a
party to a threatened, pending, or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
he or she is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, partner, or
trustee of another foreign or domestic corporation, partnership, joint venture,
trust, or other enterprise, whether for profit or not, against expenses,
including attorneys' fees, and amounts paid in settlement actually and
reasonably incurred by the person in connection with the action or suit, if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the Corporation or its shareholders,
and the person submits a written claim of indemnification as hereinafter
provided. However, indemnification shall not be made for a particular action,
issue, or matter in which the person has been found liable to the Corporation
unless and only to the extent that the court in which the action or suit was
brought (or another court of competent jurisdiction) has determined upon
application that, despite the adjudication of liability but in view of all the
relevant circumstances, the person is fairly and reasonably entitled to
indemnification for the reasonable expenses he or she incurred. The right to
indemnification conferred in this Section shall be a contract right. The
Corporation may, by action of its Board of Directors, or by action of any person
to whom the Board of Directors has delegated such authority, provide
indemnification to employees and
II-5
<PAGE> 21
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
7.3 Determination of Indemnification. Any indemnification under
Section 7.1 or 7.2 of this Article, unless ordered by a court, shall be made by
the Corporation only as authorized in the specific case upon a determination
that indemnification of the director or officer is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in
Section 7.1 or 7.2 of this Article and upon an evaluation of the reasonableness
of expenses and amounts paid in settlement. This determination and evaluation
shall occur within 30 days after a written claim for indemnification has been
received by the Corporation, and shall be made in any of the following ways:
(1) By a majority vote of a quorum of the board consisting of
directors who are not parties or threatened to be made parties to the action,
suit or proceeding;
(2) If the quorum described in subparagraph (1) is not obtainable,
then by a majority of a committee duly designated by the board and consisting
solely of two or more directors not at the time parties or threatened to be made
parties to the action, suit, or proceeding;
(3) By independent legal counsel in a written opinion, which counsel
shall be selected in one of the following ways:
(A) By the board or its committee in the manner prescribed
in subparagraphs (1) and (2),
(B) If a quorum of the board cannot be obtained under
subparagraph (1) and a committee cannot be designated under subparagraph (2), by
the board;
(4) By all independent directors who are not parties or threatened
to be made parties to the action, suit, or proceeding; and
(5) By the shareholders, but shares held by directors, officers,
employees, or agents who are parties or threatened to be made parties to the
action, suit, or proceeding may not be voted.
In the designation of a committee under subparagraph (2) or in the
selection of independent legal counsel under subparagraph (3)(B), all directors
may participate.
If a person is entitled to indemnification under Sections 7.1 or 7.2 of
this Article for a portion of expenses, including reasonable attorneys' fees,
judgments, penalties, fines, and amounts paid in settlement, but not for the
total amount thereof, the Corporation shall indemnify the person for the portion
of the expenses, judgments, penalties, fines, or amounts paid in settlement for
which the person is entitled to be indemnified.
7.4 Payment of Defense Expenses in Advance. The Corporation shall
pay or reimburse the reasonable expenses incurred by a director or officer who
is a party or threatened to be made a party to an action, suit, or proceeding in
advance of final disposition of the proceeding if all of the following apply:
(1) The person furnishes the Corporation a written affirmation of
his or her good faith belief that he or she has met the applicable standard of
conduct set forth in Sections 7.1 and 7.2.
II-6
<PAGE> 22
(2) The person furnishes the Corporation a written undertaking,
executed personally or on his or her behalf to repay the advance if it is
ultimately determined that he or she did not meet the standard of conduct.
(3) A determination is made that the facts then known to those
making the determination would not preclude indemnification under this section
or the Michigan Business Corporation Act.
The undertaking shall be by unlimited general obligation of the person
on whose behalf advances are made but need not be secured. Determination of
payments under Section 7.4 shall be made in the manner described in Section
7.3(1)-(5).
7.5 Right of Officer or Director to Bring Suit. If a claim for
indemnification under this Section is not paid in full by the Corporation within
forty-five (45) days after a written claim has been received by the Corporation,
the officer or director who submitted the claim (hereinafter the "indemnitee")
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such suit
or in a suit brought by the Corporation to recover advances, the indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
claim. In any action brought by the indemnitee to enforce a right under this
Section (other than an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final disposition where the
required undertaking, if any, has been tendered to the Corporation) it shall be
a defense that, and in any action brought by the Corporation to recover advances
the Corporation shall be entitled to recover such advances if, the indemnitee
has not met the applicable standard of conduct set forth in Section 7.1 or
Section 7.2. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the indemnitee is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Sections 7.1 or 7.2, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or its shareholders) that the indemnitee has not met such
applicable standard of conduct, shall be a defense to an action brought by the
indemnitee or create a presumption that the indemnitee has not met the
applicable standard of conduct. In any action brought by the indemnitee to
enforce a right hereunder or by the Corporation to recover payments by the
Corporation of advances, the burden of proof shall be on the Corporation.
7.6 Other Indemnification. The indemnification or advancement of
expenses provided under Sections 7.1 through 7.5 is not exclusive to other
rights to which a person seeking indemnification or advancement of expenses may
be entitled under the Corporation's Articles of Incorporation, bylaws, or a
contractual agreement. However, the total amount of expenses advanced or
indemnified from all sources combined shall not exceed the amount of actual
expenses incurred by the person seeking indemnification or advancement of
expenses. The indemnification provided for in Sections 7.1 through 7.5 continues
as to a person who ceases to be a director, officer, partner, or trustee and
shall inure to the benefit of the heirs, executors, and administrations of the
person.
7.7 Liability Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, partner, trustee, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him or her and incurred by him or her in any such
capacity or arising out of his or her status as such, whether or not the
Corporation would have power to indemnify him or her against liability under the
Michigan Business Corporation Act or this section.
II-7
<PAGE> 23
7.8 Definitions. For purposes of this section, "the Corporation"
includes all constituent corporations absorbed in a consolidation or merger and
the resulting or surviving corporation, so that a person who is or was a
director, officer, employee, or agent of the constituent corporation or is or
was serving at the request of the constituent corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise whether for
profit or not shall stand in the same position under the provisions of this
paragraph with respect to the resulting or surviving corporation as the person
would if he or she had served the resulting or surviving corporation in the same
capacity.
7.9 Employee Benefit Plans. For purposes of this section, "other
enterprises" shall include employee benefit plans; "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
"serving at the request of the Corporation" shall include any service as a
director or officer of the Corporation which imposes duties on, or involves
services by, the director or officer with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in a
manner he or she reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be considered to have acted
in a manner "not opposed to the best interests of the Corporation or its
shareholders" as referred to in Sections 7.1 and 7.2.
7.10 Severability. The invalidity or unenforceability of any
provision of this Article VII shall not effect the validity or enforceability of
the remaining provisions of this Article VII.
ITEM 16. EXHIBITS.
4.1 Articles of Incorporation of the Registrant, as amended (incorporated by
reference to Exhibit 3.1 to the Registrant's Registration Statement on
Form S-1 (File No. 333-27149)).
4.2 Amended and Restated Bylaws of Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form S-1 (File
No. 333-27149)).
4.3 Specimen Common Stock Certificate (incorporated by reference to Exhibit
5 to the Registrant's Registration Statement on Form 8-A (File No.
001-13581)).
4.4 Registration Rights Agreement, dated July 23, 1998, executed and
delivered by the Registrant in favor of the Holders of Debentures and
Registrable Securities (incorporated by reference to Exhibit 4.1 to the
Registrant's Current Report on Form 8-K dated August 10, 1998).
4.5 Representatives' Warrant Agreement, including form of Warrant
(incorporated by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-1 (File No. 333-27149)).
4.6 Registration Rights Agreement dated April 7, 1997 among the Registrant,
Utilase, Inc., James Bronce Henderson, III and Jeffrey A. Moss
(incorporated by reference to Exhibit 10.49 to the Registrant's
Registration Statement on Form S-1 (File No. 333-27149)).
4.7 Registration Rights Agreement dated July 24, 1998 among the Registrant,
Noble Canada Holdings, Limited, Noble Canada, Inc. and Wrayter
Investments Inc. (incorporated by reference to Exhibit 2.5 to the
Registrant's Current Report on Form 8-K dated August 10, 1998).
4.8 First Amendment to Registration Rights Agreement dated October 1, 1998
among the Registrant, Wrayter Investments Inc. and Robert Blake, Jr.
(incorporated by reference to
II-8
<PAGE> 24
Exhibit 2.3 to the Registrant's Current Report on Form 8-K dated October
16, 1998).
4.9 Registration Rights Agreement dated December 16, 1998, executed and
delivered by the Registrant in favor of the Holders of Common Stock
Purchase Warrants and Registrable Securities.
4.10 Agreement of Undertaking by and between Registrant and Robert J.
Skandalaris
5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly LLP.
24.1 Consent of Oppenheimer Wolff & Donnelly LLP (included in Exhibit 5.1).
24.2 Consent of Grant Thornton LLP (incorporated by reference to the initial
filing of this Registration Statement on Form S-3 (File No. 333-68001)).
25.1 Power of Attorney (incorporated by reference to the initial filing of
this Registration Statement on Form S-3 (File No. 333-68001)).
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the maximum aggregate offering price may
be reflected in the form of prospectus filed with the Securities
and Exchange Commission pursuant to Rule 424(b) under the
Securities Act, if in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in this Registration
Statement.
II-9
<PAGE> 25
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement relating to the
securities offered herein, and the offering of such securities at this time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-10
<PAGE> 26
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Bloomfield Hills, State of Michigan on January 29,
1999.
NOBLE INTERNATIONAL, LTD.
By: /S/ ROBERT J. SKANDALARIS
--------------------------------------
Robert J. Skandalaris
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ ROBERT J. SKANDALARIS Chief Executive Officer January 29, 1999
- --------------------------------- (Principal Executive Officer) and
Robert J. Skandalaris Chairman of the Board of Directors
President, Chief Operating Officer January 29, 1999
* and Director
- ---------------------------------
LLOYD P. JONES, III
Chief Financial Officer January 29, 1999
* (Principal Accounting Officer)
- ---------------------------------
DANIEL W. SAMPSON
Director January 29, 1999
*
- ---------------------------------
DANIEL J. McENROE
</TABLE>
II-11
<PAGE> 27
<TABLE>
<S> <C> <C>
Director January 29, 1999
*
- ---------------------------------
ANTHONY R. TERSIGNI
Director January 29, 1999
*
- ---------------------------------
MICHAEL R. HOTTINGER
/S/ ROBERT J. SKANDALARIS January 29, 1999
- ---------------------------------
*ROBERT J. SKANDALARIS
AS ATTORNEY-IN-FACT
</TABLE>
II-12
<PAGE> 28
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Page or
Exhibit Location
- ------- --------
<S> <C> <C>
4.1 Articles of Incorporation of the Registrant, as amended (incorporated by
reference to Exhibit 3.1 to the Registrant's Registration Statement on
Form S-1 (File No. 333-27149)).
4.2 Amended and Restated Bylaws of Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form S-1 (File
No. 333-27149)).
4.3 Specimen Common Stock Certificate (incorporated by reference to Exhibit
5 to the Registrant's Registration Statement on Form 8-A (File No.
001-13581)).
4.4 Registration Rights Agreement, dated July 23, 1998, executed and
delivered by the Registrant in favor of the Holders of Debentures and
Registrable Securities (incorporated by reference to Exhibit 4.1 to the
Registrant's Current Report on Form 8-K dated August 10, 1998).
4.5 Representatives' Warrant Agreement, including form of Warrant
(incorporated by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-1 (File No. 333-27149)).
4.6 Registration Rights Agreement dated April 7, 1997 among the Registrant,
Utilase, Inc., James Bronce Henderson, III and Jeffrey A. Moss
(incorporated by reference to Exhibit 10.49 to the Registrant's
Registration Statement on Form S-1 (File No. 333-27149)).
4.7 Registration Rights Agreement dated July 24, 1998 among the Registrant,
Noble Canada Holdings, Limited, Noble Canada, Inc. and Wrayter
Investments Inc. (incorporated by reference to Exhibit 2.5 to the
Registrant's Current Report on Form 8-K dated August 10, 1998).
4.8 First Amendment to Registration Rights Agreement dated October 1, 1998
among the Registrant, Wrayter Investments Inc. and Robert Blake, Jr.
(incorporated by reference to Exhibit 2.3 to the Registrant's Current
Report on Form 8-K dated October 16, 1998).
4.9 Registration Rights Agreement dated December 16, 1998, executed and
delivered by the Registrant in favor of the Holders of Common Stock
Purchase Warrants and Registrable Securities.
4.10 Agreement of Undertaking by and between Registrant and Robert J.
Skandalaris
5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly LLP.
24.1 Consent of Oppenheimer Wolff & Donnelly LLP (included in Exhibit 5.1).
</TABLE>
<PAGE> 29
<TABLE>
<S> <C> <C>
24.2 Consent of Grant Thornton LLP (incorporated by reference to the initial
filing of this Registration Statement on Form S-3 (File No. 333-68001))
25.1 Power of Attorney (incorporated by reference to the initial filing of
this Registration Statement on Form S-3 (File No. 333-68001))
</TABLE>
<PAGE> 1
EXHIBIT 4.9
REGISTRATION RIGHTS AGREEMENT, dated as of December 16, 1998,
executed and delivered by Noble International, Ltd., a Michigan corporation (the
"Company"), in favor of the Holders of Registrable Securities (as 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 Confidential Term Sheet dated November 20, 1998, the exhibits thereto,
any and all supplements thereof and amendments thereto, and all documents
incorporated by reference therein (collectively, the "Offering Documents"), the
Company is offering for sale up to 40 units of its securities (the "Units"),
each Unit consisting of (i) a 7% Junior Subordinated Note due 2003 in the
principal amount of $250,000, bearing interest at the annual rate of 7%, payable
semi-annually in arrears commencing June 1, 1999 (the "Notes"), and (ii)
warrants (the "Warrants") to purchase up to an aggregate of 7,500 shares (the
"Warrant Shares") of the common stock, no par value, of the Company (the "Common
Stock"); and
WHEREAS, the Units, Notes, Warrants and Warrant Shares 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"), for non-public offerings pursuant to Regulation D under
the Securities Act; and
WHEREAS, BlueStone Capital Partners, L.P. ("BlueStone") is
acting as the Placement Agent for the Company in connection with the offer and
sale of the Units on a "best efforts" basis; and
WHEREAS, pursuant to the terms and conditions set forth in the
Offering Documents, including those contained in the Subscription Agreement (the
"Subscription Agreement") which has been executed and delivered by or on behalf
of each of the purchasers of Units from the Company (the "Purchasers"), each of
the Purchasers is purchasing the principal amount of Units for which it has
subscribed; and
WHEREAS, the terms and conditions of the offering and sale of
the Units provide for the execution and delivery of this Agreement.
NOW, THEREFORE, in order to induce the Purchasers to purchase
the Units, 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:
<PAGE> 2
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.
"Confidential Term Sheet" shall have the meaning set forth in
the preamble.
"Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended.
"Holder" shall mean each Person who holds Warrants or Warrant
Shares; and each of the successors, assigns and transferees of each of such
Holder.
"Notes" shall have the meaning set forth in the preamble.
"Offering Documents" shall have the meaning set forth in the
preamble.
"Outstanding Notes" 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.
"Purchasers" shall have the meaning set forth in the preamble.
<PAGE> 3
"Registrable Securities" shall mean the Warrant Shares;
provided, however, that any Warrant 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.
"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.
"Warrants" shall have the meaning set forth in the preamble;
"Warrant Shares" shall have the meaning set forth in the
preamble; provided, however, that if at any time the Warrants become exercisable
for the purchase of any other number of shares of Common Stock, or into any
other securities of any other
<PAGE> 4
entity, in each case pursuant to the terms of the Warrants, then, in such event,
the term "Warrant Shares" shall be deemed to mean such other number of shares of
Common Stock or such other securities, as the case may be.
2. Shelf Registration; Suspension of Use of
Prospectus.
(a) The Company shall prepare and, not later than March 16,
1999, 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 April 14, 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 Initial 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, 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
<PAGE> 5
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light if the circumstances under which they
were made, 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 required to be stated therein or 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 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, in light of the circumstances
under which they were made, 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.
<PAGE> 6
(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.
(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
<PAGE> 7
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 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.
<PAGE> 8
6. Additional Interest Under Certain Circumstances.
(a) Additional interest ("Additional Interest") with respect
to all of the outstanding Notes (the "Outstanding Notes") 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 March 16, 1999, the Shelf Registration
Statement has not been filed with the SEC;
(ii) if by April 14, 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 the Initial 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
a 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 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 Notes over and above the interest set
forth in the title of the Outstanding Notes as follows: the per annum interest
rate on the Outstanding Notes 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 Notes will revert to
the interest rate originally borne by the Outstanding Notes, 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 Notes (which interest
rate will be the original interest rate on the Outstanding Notes 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
<PAGE> 9
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 Notes will revert to the
interest rate originally borne by the Outstanding Notes, 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
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 Notes 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).
(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 Notes. The amount of
Additional Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the Outstanding Notes, 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
<PAGE> 10
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 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, which
notice shall be deemed to have been received by such Holders within 48 hours
after the giving thereof; 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).
<PAGE> 11
(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, 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
<PAGE> 12
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, 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 Warrant 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.
<PAGE> 13
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.
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 a Purchaser, at the address set
forth in the Subscription Agreement and (ii) if to a Holder of Warrant Shares,
to the address set forth on the books and records of the Company. All such
notices and other communications shall be deemed to have been duly given upon
receipt.
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.
<PAGE> 14
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.
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: /s/ Robert J. Skandalaris
----------------------------------
Name:Robert J. Skandalaris
Title: Chief Executive Officer
<PAGE> 15
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.
<PAGE> 1
EXHIBIT 4.10
AGREEMENT OF UNDERTAKING
THIS AGREEMENT OF UNDERTAKING ("Undertaking"), is made this __ day
of December, 1998, by and between Noble International, Ltd., a Michigan
corporation, ("Noble") whose address is 33 Bloomfield Hills Parkway, Ste. 155,
Bloomfield Hills, MI 48304 and Robert J. Skandalaris, an individual,
("Skandalaris") whose address is 2169 Tottenham, Bloomfield Hills, MI 48301.
RECITALS:
(a) On November 24, 1997, in connection with Noble's acquisition of
Noble Metal Processing, Inc., Noble delivered a series of subordinated
promissory notes to DCT, Inc. ("DCT") and John K. Baysore ("Baysore")
which on the date thereof had a principal face amount of $9,560,263.00
and $574,291.00, respectively (collectively the "Series Notes") due
November 24, 2001.
(b) Noble has entered into an agreement with DCT and Baysore for a
discounted prepayment of the Series Notes.
(c) In order to partially finance the prepayment of the Series Notes,
Skandalaris has agreed to lend Noble the sum of $6,000,000.00 on the
condition, among others, that Noble register 2,313,018 of the Noble's
common stock held by Skandalaris (the "Skandalaris Shares").
NOW, THEREFORE, in order to induce Skandalaris to finance the prepayment
of the Series Notes and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged by Noble, Noble agrees as follows:
1. Registration. Noble will, at its cost, file a Registration Statement
or amend any currently filed and effective Registration Statement with the SEC,
in order to register the Skandalaris Shares by January 30, 1999. Noble will use
its best efforts to have such Registration Statement declared effective by the
Securities and Exchange Commission ("SEC") on or before May 15, 1999. Noble will
file such forms and financial statements with the SEC that are necessary to
continuously maintain the effectiveness of such Registration Statement under
applicable securities law during the period ("Registration Period") ending on
December 31, 2001 or the date the Skandalaris Shares have been sold, whichever
occurs first, provided that Noble may suspend the use of such Registration
Statement for a period not to exceed 45 days in any 12
<PAGE> 2
month period (during the Registration Period) for valid business reasons,
including acquisitions and divestitures of assets, filings with the Commission,
pending corporate developments and similar reasons.
2. MISCELLANEOUS
a. No forbearance, indulgence, delay or failure to exercise any
right or remedy with respect to this Agreement shall operate as a waiver or as
an acquiescence in any Default, nor shall any single or partial exercise of any
right or remedy preclude any other or further exercise thereof or the exercise
of any other right or remedy.
b. This Undertaking may not be modified or discharged except by a
writing duly executed by Noble and Skandalaris.
c. The headings of various sections and subsections of this
Undertaking are for convenience of reference only and shall in no way modify any
of the terms or provisions of this Undertaking.
d. All notices required to be given to any of the parties
hereunder shall be in writing and shall be deemed to have been sufficiently
given for all purposes when presented personally to such party, sent by
telecopier (with the original timely mailed), or sent by registered, certified
or express mail, return receipt requested, to such party at its address set
forth below:
if to Noble, to:
Noble International, Ltd.
33 Bloomfield Hills Parkway - Suite 155
Bloomfield Hills, Michigan 48304
Attn: Michael C. Azar
Telecopier No.: (248) 594-9501
if to Skandalaris, to:
Robert J. Skandalaris
2169 Tottenham
Bloomfield Hills, Michigan 48301
-2-
<PAGE> 3
or hereafter given to the other party hereto pursuant to the provisions of this
Undertaking.
e. Noble may not delegate its obligations under this Undertaking
and such attempted delegations shall be null and void. Skandalaris assign,
pledge or otherwise transfer this Agreement without prior written consent of
Noble. This Undertaking inures to the benefit of Skandalaris, his heirs and
representatives and binds Noble, and its successors and assigns.
NOBLE INTERNATIONAL, LTD.
By:________________________________________
Its:_______________________________________
-3-
<PAGE> 1
Exhibit 5.1
FILE NO.
263100.09
January 29, 1999
Noble International, Ltd.
33 Bloomfield Hills Parkway, Suite 155
Bloomfield Hills, Michigan 48304
Re: Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Noble International, Ltd., a Michigan
corporation (the "Company"), in connection with the registration for resale of
up to 4,528,598 shares of the Company's Common Stock, no par value (the
"Shares"), pursuant to the Company's Registration Statement on Form S-3 to be
filed with the Securities and Exchange Commission on January 29, 1999 (the
"Registration Statement").
In acting as counsel for the Company and arriving at the opinions
expressed below, we have examined and relied upon original or copies, certified
or otherwise identified to our satisfaction, of such records of the Company,
agreements and other instruments, certificates of officers and representatives
of the Company, certificates of public officials and other documents as we have
deemed necessary or appropriate as a basis for the opinions expressed herein.
In connection with our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents tendered to us as originals,
the legal capacity of natural persons and the conformity to original documents
of all documents submitted to us as certified or photostatic copies.
Based upon the foregoing, and subject to the qualifications and
limitations set forth herein, it is our opinion that the Shares have been duly
authorized and, when issued, delivered and paid for in accordance with the terms
referred to in the Registration Statement, will be validly issued, fully paid
and nonassessable.
We express no opinion with respect to laws other than the laws of the
State of Michigan and the federal laws of the United States of America, and we
assume no responsibility as to the applicability thereto, or the effect thereon,
of the laws of any other jurisdiction.
<PAGE> 2
Noble International, Ltd.
January 29, 1999
Page 2
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to its use as part of the Registration Statement. In
giving this consent, we do not admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
We are furnishing this opinion to the Company solely for its benefit in
connection with the Registration Statement as described above. It is not to be
used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
OPPENHEIMER WOLFF & DONNELLY LLP
