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EXHIBIT 2.2
STOCK EXCHANGE AGREEMENT
by and among
NOBLE METAL TECHNOLOGIES, INC.
and
NOBLE INTERNATIONAL, LTD.
and
UTILASE, INC., NOBLE METAL PRODUCTS, INC.
and UTILASE PRODUCTION PROCESS, INC.
EFFECTIVE AS OF
March 31, 1998
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STOCK EXCHANGE AGREEMENT
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THIS STOCK EXCHANGE AGREEMENT (the "Agreement") is made and entered into
effective as of March 31, 1998, by and between NOBLE METAL TECHNOLOGIES, INC., a
Michigan corporation ("NMT"), NOBLE INTERNATIONAL, LTD., a Michigan corporation
("NIL"), UTILASE, INC., a Michigan corporation ("Utilase") and NOBLE METAL
PRODUCTS, INC. a Michigan corporation ("NMP") and UTILASE PRODUCTION PROCESS,
INC. ("UPP").
WHEREAS, NMT desires to issue and exchange with NIL and NMT desires to
exchange and acquire from NIL the Common Shares (as hereinafter defined) on the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
ARTICLE I
EXCHANGE OF COMMON SHARES
1.01 EXCHANGE OF COMMON SHARES. Subject to the terms and conditions
hereof, NIL shall acquire from NMT and NMT shall issue to NIL Ten Thousand
(10,000) of NMT's common stock (the "NMT Shares") on the date hereof in exchange
for One Thousand Fifty Three (1,053) common shares of Utilase, Inc. (the
"Utilase Shares"), Three Thousand Five Hundred Eighty Two (3,582) common shares
of NMP (the "NMP Shares") and Five Thousand (5,000) common shares of Utilase
Production Process, Inc. (the "UPP Shares") which represent all of the issued
and outstanding capital stock of Utilase, NMP and UPP (collectively the "Common
Shares").
1.02 PAYMENT AND DELIVERY. Upon the execution and delivery of this
Agreement by NMT and NIL, or as soon thereafter as practically possible, NMT
will deliver to NIL individual certificates representing the NMT Shares,
registered in the name of NIL and NIL shall deliver to NMT the Utilase Shares,
NMP Shares and the UPP Shares.
1.03 INTERNAL REVENUE CODE SECTION 368. It is the intent of the parties
hereto that the exchange described herein shall qualify as a tax free exchange
pursuant to IRC ss.368(a)(1)(B).
1.04 CLOSING AND CLOSING DATE. The closing of the transactions
contemplated by this Agreement ("Closing") shall take place at 10:00 a.m., local
time, on March 31, 1998 ("Closing Date") at the offices of NMT, or at such other
time, place and date as shall be mutually agreed on by NMT and Shareholder and
shall be effective as of March 31, 1998.
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ARTICLE II
REPRESENTATIONS OF NOBLE METAL TECHNOLOGIES, INC.
NMT represents and warrants as follows:
2.01 AUTHORIZATION. It has the full capacity, power and authority to
execute, deliver and perform its obligations under this Agreement and it has
taken all necessary corporate action to authorize the execution, delivery and
performance of its obligations hereunder and to consummate the transactions
contemplated hereby.
2.02 AUTHORIZED AND OUTSTANDING CAPITAL STOCK. The authorized capital
stock of NMT consists of Fifty Thousand (50,000) shares of common stock none of
which has been issued or pledged.
2.03 BINDING OBLIGATIONS. This Agreement, when executed and delivered by
the parties, will be its legally valid and binding obligation, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and by general principles of
equity.
2.04 INVESTMENT INTENT. It is acquiring the Common Shares for its own
account for investment purposes only and the Common Shares are not being
purchased with a view towards resale or distribution; and it is able to bear the
economic risk of ownership of the Common Shares for an indefinite period of time
and has no present or foreseeable need to dispose of any portion of its
investment in Utilase, NMP and/or UPP and is aware that it will be unable to
readily liquidate his investment in Utilase, NMP and/or UPP.
2.05 NO CONFLICT. The execution, delivery and performance by it of this
Agreement and the consummation of the transactions contemplated hereby does not
and will not: (I) violate any provisions of law applicable to it; (ii) result in
or require the creation or imposition of any lien upon any of its properties or
assets.
ARTICLE III
REPRESENTATIONS OF NOBLE INTERNATIONAL, LTD.
NIL represents and warrants as follows:
3.01 AUTHORIZATION. It has the full legal capacity, power and authority
to execute, deliver and perform its obligations under this Agreement. NIL is the
lawful record owner of the Common Shares, and the same are and shall be
delivered to NMT free and clear of all pledges, security interests, options,
liens, encumbrances and claims or rights of every kind therein or thereto,
except such claim from Comerica Bank granted pursuant to an Amended and Restated
Loan Agreement dated December 30, 1997 and the delivery of such Common Shares to
NMT pursuant to the provisions of this Agreement will transfer lawful, valid,
marketable title thereto.
3.02 BINDING OBLIGATION. This Agreement, when executed and delivered by
the parties, will be its legally valid and binding obligation, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and by general principles of
equity.
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3.03 NO CONFLICT. The execution, delivery and performance by it of this
Agreement and the consummation of the transactions contemplated hereby does not
and will not: (i) violate any provisions of law applicable to it; (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any of his contractual obligations; (iii) result in or
require the creation or imposition of any lien upon any of its property or
assets; or (iv) require any approval or consent of any person.
3.04 INVESTMENT INTENT. It is acquiring the NMT Shares for its own
account for investment purposes only and the NMT Shares are not being purchased
with a view towards resale or distribution; and it is able to bear the economic
risk of ownership of the NMT Shares for an indefinite period of time and has no
present or foreseeable need to dispose of any portion of its investment in NMT
and is aware that it will be unable to readily liquidate his investment in NMT.
ARTICLE IV
REPRESENTATIONS OF UTILASE, NMP AND UPP
Utilase, NMP and UPP represent and warrant as follows:
4.01 AUTHORIZATION. They have the full capacity, power and authority to
execute, deliver and perform their obligations under this Agreement and they
have taken all necessary corporate action to authorize the execution, delivery
and performance of their obligations hereunder and to consummate the
transactions contemplated hereby.
4.02 AUTHORIZED AND OUTSTANDING CAPITAL STOCK. The authorized capital
stock of Utilase consists of Fifty Thousand (50,000) shares of common stock; NMP
consists of Sixty Thousand (60,000) shares of common stock and UPP consists of
Sixty Thousand (60,000) shares of common stock. NIL is the record owner of Three
Thousand Five Hundred Eighty-Two (3,582) shares of Utilase; One Thousand
Fifty-Three (1,053) shares of NMP and Five Thousand (5,000) shares of UPP, which
represents all of the issued and outstanding shares of the capital stock of
Utilase, NMP and UPP, which have been validly issued, are fully paid and
non-assessable.
4.03 BINDING OBLIGATIONS. This Agreement, when executed and delivered by
the parties, will be its legally valid and binding obligation, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and by general principles of
equity.
4.04 NO CONFLICT. The execution, delivery and performance by it of this
Agreement and the consummation of the transactions contemplated hereby does not
and will not: (i) violate any provisions of law applicable to it; (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any of its contractual obligations; (iii) result in or
require the creation or imposition of any lien upon any of its properties or
assets; or (iv) require any approval or consent of any person under any
contractual obligations, except for such approvals or consents as have been
obtained or which it shall make all reasonable efforts to obtain.
4.05 FINANCIAL STATEMENTS. The balance sheet of Utilase, NMP and UPP as
of December 31, 1997 and the related statements of income, changes in
stockholders's equity and cash
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flows for the twelve (12) month period then ended, together with the notes
thereto, and the reviewed financial statements of Utilase, NMP and UPP for the
period ending December 31, 1997 (the "Financial Statements") are in accordance
with the books and records of Utilase, NMP and UPP, present fairly the financial
position and the results of the operations, changes in stockholders' equity and
cash flow of Utilase, NMP and UPP for the period then ending, and have been
prepared in conformity with generally accepted accounting principles
consistently applied with the prior periods except as may otherwise by indicated
in the notes thereto.
4.06 UNREPORTED AND CONTINGENT LIABILITIES. Except as expressly set
forth in the Financial Statements, and except as otherwise incurred by Utilase,
NMP and UPP in the ordinary course of their business, Utilase, NMP and UPP have
no obligations or liabilities, whether accrued, absolute, fixed, known or
unknown, contingent or otherwise, existing, arising out of or relating to any
transaction entered into, or state of facts existing, on or prior to the date of
this Agreement. For purposes of this Section, the phrase "in the ordinary course
of business" shall not include liabilities arising out of breach or contract,
breach of warranty, tort infringement or any violation of law, including, but
not limited to, health, safety and Environmental laws. Utilase, NMP and UPP are
not directly or indirectly liable upon or with respect to, or obligated in any
way to provide funds in respect of, or to guarantee or assume any indebtedness
or obligation of any person or entity.
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ARTICLE V
AFFIRMATIVE COVENANTS OF NOBLE METAL TECHNOLOGIES, INC.
From and after the date hereof, so long as any of the NMT Shares remain
outstanding, NMT shall perform and comply with, and shall cause each of its
Subsidiaries to perform and comply with, all covenants in this Article V
applicable to such Person as follows:
5.01 FINANCIAL STATEMENTS AND OTHER REPORTS. NMT will maintain, and
cause each of its subsidiaries to maintain, a system of accounting established
and administered in accordance with sound business practices to permit
preparation of financial statements in conformity with GAAP. NMT will deliver to
each holder of the NMT Shares, with reasonable promptness, such business or
financial information and data with respect to NMT or any subsidiary as from
time to time may be reasonably requested by any holder of the NMT Shares.
5.02 INSPECTION. NMT shall permit any authorized representative(s)
designated by any holder of the NMT Shares to visit and inspect any of the
properties of NMT or any of its subsidiaries, including its and their financial
and accounting records, and to make copies and take extracts therefrom, and to
discuss its and their affairs, finances and business with its and their officers
and independent certified public accountants, at such reasonable times during
normal business hours and as often as may be reasonably requested.
ARTICLE VI
MISCELLANEOUS
6.01 EXPENSES. NMT shall pay its costs, fees and expenses incurred by it
in connection with the negotiation, review, documentation, preparation and
closing of this Agreement. Shareholder shall pay all costs, fees and expenses
incurred by them in connection with the negotiation, review, documentation,
preparation and closing of this Agreement.
6.02 SURVIVAL. All representations, warranties, agreements and covenants
contained herein shall survive the execution and delivery of this Agreement, and
the purchase of the NMT Shares contemplated hereby and any disposition thereof,
notwithstanding any investigation made at any time by any of the parties hereto.
6.03 REMEDIES. Each holder of any of the NMT Shares will be entitled to
enforce its rights under this Agreement specifically and to exercise all other
rights existing in its favor. Money damages may not be an adequate remedy for
any breach of the provisions of this Agreement and, accordingly, the parties may
apply to any court of law or equity of competent jurisdiction (as contemplated
by Section 6.05) for specific performance and/or injunctive relief in order to
enforce or prevent any violation of the provisions of this Agreement.
6.04 NOTICES. Any notice, request, claim, demand or other communication
to be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when delivered
personally or mailed by certified or registered mail, return receipt requested,
and postage prepaid, to the recipient. Such notices, demands and other
communication will be sent as follows:
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(i) To Noble: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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(ii) To NMT: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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or, in either of the foregoing cases to such other address as such party may
hereafter specify for such purpose by notice to the other party referred to
above.
6.05 CONSENT TO JURISDICTION. NMT and Shareholder hereby consent to the
jurisdiction of any state or federal court located within the state of Michigan
and irrevocably agree that all actions or proceedings relating to this agreement
shall be litigated in such courts. NMT and Shareholder waive any objection which
it or they may have based on improper venue or forum non conveniens to the
conduct of any proceeding in any such court and waive personal service of any
and all process upon it and them and consent that all such service of process be
made by mail or messenger directed to it or them at the addresses set forth in
section 6.04 and that service so made shall be deemed to be completed upon the
earlier of actual receipt or three (3) days after the same shall have been
posted to the party's address set forth in section 6.04. Nothing contained in
this section 6.05 shall affect the right of any party to serve legal process in
any other manner permitted by law.
6.06 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, all of
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
provided that this Agreement shall not be assignable by any party without the
prior written consent of the others, other than by operation of law.
6.07 AMENDMENTS AND WAIVERS. Except as otherwise provided herein, any
provision of this Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by NMT and the holders of a
majority of the then outstanding NMT Shares issued and sold hereunder. Except as
otherwise provided in this Agreement, any failure of either of the parties to
comply with any obligation, covenant, agreement or condition herein may be
waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
6.08 ENTIRE AGREEMENT. This Agreement shall constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede
all other understandings, oral or written, with respect to the subject matter
hereof.
6.09 GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the internal laws of the state of Michigan. Without regard to
conflicts of laws principles.
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6.10 SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable under any applicable law in any jurisdiction, such provision will
be ineffective only to the extent of such invalidity, illegality or
unenforceability in such jurisdiction, without invalidating the remainder of
this Agreement in such jurisdiction or any provision hereof in any other
jurisdiction.
6.11 HEADINGS. The Section and Subsection headings of the Articles
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
6.12 COUNTERPARTS; EFFECTIVENESS. This Agreement and any amendments,
waivers, consents or supplements may be executed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto.
6.13 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided
herein, the rights and remedies herein provided shall be cumulative and not
exclusive of any other rights or remedies provided by law or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
effective as of the date first above written.
NOBLE INTERNATIONAL, LTD. NOBLE METAL TECHNOLOGIES, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III By: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Its: President Its: President
UTILASE, INC. NOBLE METAL PRODUCTS, INC.
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
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By: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇
Its: Chief Executive Officer Its: President
UTILASE PRODUCTION
PROCESS, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
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By: ▇▇▇▇▇ ▇▇▇▇▇
Its: President
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