EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made this 14th day
of December, 2001, by and between Noble Automotive Group, Inc., a Michigan
corporation ("Noble" or "Purchaser"), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇") and ▇▇▇▇▇
▇▇▇▇▇▇ ("▇▇▇▇▇▇") (▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ may sometimes be referred to herein
individually as "Owner" and collectively as "Owners"). The Owners and the
Purchaser are referred to from time to time in this Agreement together as the
"Parties" and individually as a "Party."
Background
▇. ▇▇▇▇▇▇▇▇ is the owner of 100 shares of the issued and
outstanding capital stock of Construction Equipment Direct,
Inc., a Tennessee corporation, representing 50% of the issued
and outstanding stock of CED.
▇. ▇▇▇▇▇▇ is the owner of 100 shares of the issued and
outstanding capital stock of Construction Equipment Direct,
Inc., a Tennessee corporation, representing 50% of the issued
and outstanding stock of CED.
C. The Purchaser desires to purchase from the Owners and Owners
desire to sell 162 shares of the issued and outstanding
capital stock of CED (the "Acquired Stock") owned by Owners on
the terms and conditions set forth in this Agreement. The
Acquired Stock represents all of the issued and outstanding
capital stock of CED.
D. Following the sale herein, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ will each own
nineteen (19) shares of the stock of CED and NAG will hold 162
shares of the stock of CED.
WHEREAS, each Owner has deemed it advisable he enter into this
Agreement; and
WHEREAS, Purchaser has deemed it advisable to enter into this
Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, representations, warranties, provisions and covenants contained
herein, the parties hereto, intending to be legally bound, agree as follows:
AGREEMENT
ARTICLE I
PURCHASE AND SALE OF SHARES AND CLOSING
1.1 PURCHASE AND SALE. Upon and subject to the terms and conditions of
this Agreement, the Owners, jointly and severally, will sell, convey, transfer,
assign and deliver the Acquired Stock to the Purchaser, free and clear of all
Liens, and the Purchaser will purchase Acquired Stock from the Owners, as of the
Closing Date (as defined below), so that after
Closing, Purchaser shall own Eight-Nine percent (89%) of CED in exchange for the
considerations set forth below.
1.2 PURCHASE PRICE. The purchase price payable by the Purchaser to the
Owners for the Acquired Stock is Seven Hundred Thousand Dollars ($700,000) (the
"Purchase Price"). The Purchase Price shall be paid as follows:
a. Contemporaneous herewith, Purchaser shall deliver to
▇▇▇▇▇▇▇▇, Fifty Three Thousand Eight Hundred
Forty-Six (53,846) freely trading, unrestricted
shares of the common stock of Buyer, par value $.001.
b. Contemporaneous herewith, Purchaser shall deliver to
▇▇▇▇▇▇, Three Hundred Fifty Thousand and 00/100
Dollars ($350,000).
1.3 CLOSING.
(a) Subject to the conditions set forth in this Agreement, the
closing of the transactions contemplated by this Agreement (the "Closing") will
take place at the offices of Purchaser, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, at
10:00 o'clock a.m., local time, on December 14, 2001, or at such other time,
place and date as may be mutually agreed on by the Parties. The date on which
the Closing occurs is referred to in this Agreement as the "Closing Date" and
the Closing will be deemed to be effective as of the beginning of business on
the Closing Date.
(b) At the Closing, in consideration of the Purchaser's
delivery of the Purchase Price, the Owners will deliver to the Purchaser the
following:
(i) certificates representing the Acquired Stock duly
endorsed for transfer or accompanied by duly executed assignments separate from
certificate.
(ii) An option agreement in favor of Purchaser (the
"Call Option") covering all the shares of CED held by ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ (the
"Owners Stock") which provides that Purchaser may acquire the Owners Stock
jointly or severally for the sum of $1.00, upon the voluntary or involuntary
separation of employment by ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇▇ from CED, whether with or
without cause.
(c) At the Closing, or as soon as practical thereafter,
Purchaser shall deliver to ▇▇▇▇▇▇▇▇, a purchase option agreement (the "Purchase
Option") which provides that ▇▇▇▇▇▇▇▇, or his assigns, may purchase the Acquired
Stock as follows:
(i) $850,000; and
(ii) Bank Fees, Accrued Interest and Principal;
(iii) Investment Banking Fee of $161,000;
(iv) Any other out-of-pocket expenses incurred by
Purchaser.
1.4 CERTAIN DEFINITIONS; CONSTRUCTION AND INTERPRETATION.
(a) For purposes of this Agreement:
"Lien" means any pledge, lien (including any tax
lien), charge, claim, community property interest, condition, equitable
interest, encumbrance, security interest, mortgage, option, restriction on
transfer (including any buy-sell agreement or right of first refusal or offer),
forfeiture, penalty, equity or other right of another person of every nature and
description whatsoever.
"Person" or "person" means an individual or any
corporation, partnership, joint venture, association, limited liability company,
trust, unincorporated organization, or other business organization, any legal
entity, or a government or governmental entity.
(b) The Parties have participated jointly in the negotiation
and drafting of this Agreement. If an ambiguity or question of intent or
interpretation arises, this Agreement will be construed as if drafted jointly by
the Parties and no presumption or burden of proof may arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF OWNERS AND CED
The Owners represent and warrant to the Purchaser that the following
representations and warranties are true and correct.
2.1. ORGANIZATION OF CED; QUALIFICATION; CAPITALIZATION.
(a) CED (i) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Tennessee, and (ii) has all
requisite power and authority to own, lease and operate its respective
properties and to carry on its respective business as now being conducted.
(b) CED is duly qualified or licensed to do business as a
foreign corporation and is in good standing in each jurisdiction in which (i)
property owned, leased or operated by it, or (ii) the nature of its business
makes such qualification necessary.
(c) All issued and outstanding shares of capital stock of CED
are validly issued and outstanding, fully paid and non-assessable, and owned
beneficially and of record by Owners.
(i) CED has not granted, issued or entered into any
security, option, warrant, right, call, subscription, agreement, commitment or
understanding of any nature whatsoever, fixed or contingent, that directly or
indirectly (A) calls for the issuance, sale, pledge
or other disposition of any capital stock or any securities convertible into, or
exchangeable for, or other rights to acquire, any capital stock, or (B)
obligates it to grant, offer or enter into any of the foregoing;
(ii) there are no outstanding phantom stock rights or
other equity-based rights issued by CED;
(iii) there are no outstanding contractual obligations
of CED to repurchase, redeem or otherwise acquire any capital stock;
(iv) as of the date of this Agreement there are no
voting trusts, proxies or other agreements or understandings to which CED is a
party with respect to the (A) voting of capital stock, (B) dividends or
distributions on account of such capital stock, or (C) the transfer or
disposition of such capital stock.
2.2 AUTHORITY; NO VIOLATION OR CONSENT.
(a) CED has full power and authority to enter into this
Agreement and to carry out the transactions contemplated by this Agreement and
all corporate proceedings required to be taken by or on its part to authorize
the execution, delivery and performance of this Agreement have been duly and
properly taken. This Agreement has been duly and validly executed and delivered
by the Owners and constitutes a valid and binding agreement of the Owners
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
or by an implied covenant of good faith and fair dealing.
(b) The execution and delivery of this Agreement, the
consummation of the transactions contemplated by this Agreement, and the
compliance with the terms of this Agreement do not and will not:
(i) conflict with or result in any breach of any
provision of the Articles of Incorporation or bylaws of CED or the terms of any
agreement or other instrument to which CED is a party or by which any of its
property may be bound;
(ii) to Owners' knowledge, violate or conflict with
any law, ordinance, code, rule, regulation, decree, order or ruling of any court
or governmental authority, to which CED or any of its assets or any of the
Acquired Stock is subject;
(iii) require, to the Owners' knowledge, any
authorization, consent, order, permit or approval of, or notice to, or filing,
registration or qualification with, any governmental, administrative or judicial
authority; or
2.3 NO SUBSIDIARIES OR INVESTMENTS. CED does not beneficially own,
directly or indirectly, any outstanding voting stock, capital stock, partnership
interests or other equity interests of any other corporation, limited liability
company, partnership or other entity,
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to Owners that the following
representations and warranties are true and correct.
3.1 ORGANIZATION OF THE PURCHASER. The Purchaser is a corporation and
is duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Purchaser has all requisite power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted.
3.2 AUTHORITY; NO VIOLATION OR CONSENT.
(a) Purchaser has full power and authority to enter into this
Agreement and to carry out the transactions contemplated by this Agreement and
all corporate proceedings required to be taken by or on its part to authorize
the execution, delivery and performance of this Agreement have been duly and
properly taken. This Agreement has been duly and validly executed and delivered
by the Purchaser and constitutes a valid and binding agreement of the Purchaser
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
or by an implied covenant of good faith and fair dealing.
(b) The execution and delivery of this Agreement, the
consummation of the transactions contemplated by this Agreement and the
compliance with the terms of this Agreement do not and will not:
(i) conflict with or result in any breach of any
provision of the Purchaser's Articles of Incorporation or Bylaws or the terms of
any agreement or other instrument to which the Purchaser is a party or by which
it or any of its property may be bound;
(ii) to Purchaser's knowledge, violate or conflict
with any law, ordinance, code, rule, regulation, decree, order or ruling of any
court or governmental authority, to which the Purchaser or any of the
Purchaser's assets is subject; or
(iii) require, to the Purchaser's knowledge, any
authorization, consent, order, permit or approval of, or notice to, or filing,
registration or qualification with, any governmental, administrative or judicial
authority.
ARTICLE IV
COVENANTS OF THE PARTIES
4.1 CONSENTS. Each Party will use its respective commercially
reasonable efforts to obtain consents of all Persons and governmental
authorities necessary to the consummation of the transactions contemplated by
this Agreement.
4.2 FURNISHING INFORMATION; ANNOUNCEMENTS. Each Party will, as soon as
practicable after reasonable request therefor, furnish to the other Parties all
the information concerning the Parties required for inclusion in any statement
or application made to any governmental or regulatory body in connection with
the transactions contemplated by this Agreement. No Party may issue any press
releases or otherwise make any public statement with respect to the transactions
contemplated by this Agreement, without the prior consent of the other Parties,
except as, in the reasonable judgment of the Party determining to issue such
press release or make such public statement, is otherwise required by law or by
any stock exchange or automated quotation system on which the shares of the
Party are listed, and then only upon prompt prior notice to the other Party at
least forty-eight hours prior to making any such press release or public
announcement.
4.3 ADDITIONAL AGREEMENTS. Subject to the terms and conditions of this
Agreement, each of the Parties agrees to use its commercially reasonable
efforts, at its own expense, to take, or cause to be taken, all action and to
do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement. If at any time after the Closing
any further action is necessary to carry out or perform a Party's obligations
under this Agreement, such Party may take, at its own expense, such necessary
action.
ARTICLE V
CONDITIONS TO OBLIGATIONS OF THE PURCHASER
The obligations of the Purchaser required to be performed by it at the
Closing is subject to the satisfaction, at or prior to the Closing, of each of
the following conditions, each of which may be waived by the Purchaser as
provided in this Agreement except as otherwise required by applicable law.
5.1 REPRESENTATIONS AND WARRANTIES; AGREEMENTS. Each of the
representations and warranties of the Owners contained in this Agreement must be
true and correct in all material respects as of the Closing as if made on the
Closing Date. As of the Closing, the Owners must have, in all material respects,
duly performed and complied with each of its obligations required by this
Agreement to be performed by it at or prior to the Closing.
5.2 ABSENCE OF LITIGATION. No order, stay, injunction or decree of any
court of competent jurisdiction may be in effect that prevents or delays the
consummation of any of the
transactions contemplated by this Agreement or that could adversely effect the
transactions contemplated by this Agreement.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF THE OWNERS
The obligations of the Owners required to be performed by it at the
Closing are subject to the satisfaction, at or prior to the Closing, of each of
the following conditions, each of which may be waived by the Owners as provided
in this Agreement except as otherwise required by applicable law.
6.1 REPRESENTATIONS AND WARRANTIES; AGREEMENTS. Each of the
representations and warranties of the Purchaser contained in this Agreement must
be true and correct in all material respects as of the Closing as if made on the
Closing Date. As of the Closing, the Purchaser must have, in all material
respects, duly performed and complied with each of its obligations required by
this Agreement to be performed by it at or prior to the Closing.
6.2 ABSENCE OF LITIGATION. No order, stay, injunction or decree of any
court of competent jurisdiction may be in effect that prevents or delays the
consummation of any of the transactions contemplated by this Agreement or that
could adversely effect the transactions contemplated by this Agreement.
ARTICLE VII
INDEMNIFICATION
7.1. INDEMNIFICATION. The Parties will indemnify each other as set
forth below.
(a) The Owners, jointly and severally, will indemnify and hold
harmless the Purchaser and its stockholders, officers, directors, employees,
representatives, and agents, from and against any and all Losses, as defined in
this section, arising out of, based upon or resulting from (i) any breach of any
representation or warranty of which is contained in or made pursuant to this
Agreement, and (ii) any breach or nonfulfillment by the Owners of any of its
covenants, agreements or other obligations contained in or made pursuant to this
Agreement.
(b) The Purchaser will indemnify and hold harmless, the Owners
from and against any and all Losses arising out of, based upon or resulting from
(i) any breach of any representation or warranty of the Purchaser which is
contained in or made pursuant to this Agreement, and (ii) any breach or
nonfulfillment by the Purchaser of any of its covenants, agreements or other
obligations contained in or made pursuant to this Agreement.
(c) For purposes of this Section 7.1, "Losses" means and
includes damages, liabilities and claims, and (to the extent that the person
that is obligated to provide such indemnification maintains or has maintained
liability insurance and such coverage is applicable to the person entitled to
indemnification (an "Indemnified Party")), insurance benefits paid to or
for the benefit or protection of the Indemnified Party. Losses include all
reasonable fees, costs and expenses related thereto, including the Indemnified
Party's legal expenses; however, notwithstanding anything herein to the
contrary, for purposes of the Agreement "Losses" shall not exceed $500,000 in
the aggregate. Indemnification pursuant to this Section 7.1 shall constitute
each parties' sole and exclusive remedy for any action whatsoever existing under
this Agreement.
7.2 SURVIVAL. Except as otherwise set forth in this Agreement, the
representations, warranties, covenants and agreements contained in this
Agreement, or in any Schedule, certificate, document or statement delivered
pursuant to this Agreement, will survive the Closing for a period of six months
from the date hereof and will be deemed to have been relied upon and will not be
affected in any respect by the Closing.
ARTICLE VIII
MISCELLANEOUS
8.1 TERMINATION. This Agreement may be terminated and the transactions
contemplated by this Agreement may be abandoned at any time prior to the Closing
Date notwithstanding any requisite approval and adoption of this Agreement by
the Parties:
(a) by mutual written consent duly authorized by the Owners
and the Purchaser; or
(b) by the Owners or the Purchaser if any court or
governmental entity of competent jurisdiction has issued an order, decree or
ruling or taken any other action restraining, enjoining or otherwise prohibiting
the transactions contemplated by this Agreement and such order, decree, ruling
or other action is or has become final and non-appealable; or
8.2 NOTICES. All notices or other communications required or permitted
under this Agreement must be given in writing and must be either delivered by
hand or by overnight courier as follows:
If to the Purchaser:
Noble International, Ltd.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Owners:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
or such other address as may be furnished in writing by such Party, and any such
notice or communication will be effective and be deemed to have been given as of
the date so delivered; provided, however, that any notice or communication
changing any of the addresses set forth above will be effective and deemed given
only upon its receipt.
8.3 ASSIGNMENT. This Agreement and all of the provisions of this
Agreement will be binding upon and inure to the benefit of the Parties and their
respective successors and permitted assigns, and the provisions of Article VII
of this Agreement will inure to the benefit of the indemnified parties referred
to therein; provided, however, that neither this Agreement nor any of the
rights, interests, or obligations under this Agreement may be assigned by any of
the Parties without the prior written consent of the other parties, except that
the Owners may assign this Agreement and such rights, interests and obligations
to a wholly owned direct or indirect subsidiary of the Owners.
8.6 COUNTERPARTS. This Agreement may be executed with counterpart
signature pages or in two or more counterparts (including facsimile
transmissions of such signature pages), all of which will be considered one and
the same agreement and each of which will be deemed an original.
8.7 GOVERNING LAW. This Agreement will be governed by the laws of the
United States and the State of Michigan (regardless of the laws that might be
applicable under principles of conflicts or choice of law) as to all matters
including matters of validity, construction, effect and performance.
8.9 THIRD PARTIES. Nothing in this Agreement may be deemed to be for
the benefit of, or enforceable by or on behalf of any Party, including any
employee or former employee of Forming or Processing, any dependent or
beneficiary of any such employee, any labor union or other organization, any
obligee, owner or holder of any obligation or liability, other than the Parties
and the Indemnified Parties.
8.10 EXPENSES. Each Party will pay its own fees and expenses incurred
in connection with this Agreement and the transactions contemplated by this
Agreement (including the fees of any attorneys, financial advisors and others),
whether or not such transactions are consummated.
The Parties executed this Stock Purchase Agreement as of the day and
year first above written.
PURCHASER: NOBLE AUTOMOTIVE GROUP, INC.
By: ________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President and Secretary
OWNERS:
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
CONSTRUCTION EQUIPMENT DIRECT, INC.,
A TENNESSEE CORPORATION
By:
-----------------------------------
Name:
Its:
EXHIBIT A
PROMISSORY NOTE
[TO COME]
EXHIBIT B
PROMISSORY NOTE
[TO COME]