AGREEMENT OF AMENDMENT
THIS AGREEMENT OF AMENDMENT ("Agreement") is entered into this 26th
day of August, 1997, by and among NOBLE INTERNATIONAL, LTD., a Michigan
corporation ("Noble"), UTILASE PRODUCTION PROCESS, INC., a Michigan corporation
("UPP"), XXXXXX X. XXXXXXXXXXX ("Skandalaris"), DCT, INC., a Michigan
corporation ("DCT"), DCT COMPONENT SYSTEMS, INC., a Michigan corporation
("Components"), UTILASE, INC., a Michigan corporation ("Utilase"), XXXXX XXXXXX
XXXXXXXXX, III, INDIVIDUALLY AND AS TRUSTEE UNDER THE XXXXX XXXXXX XXXXXXXXX,
III DECLARATION OF TRUST DATED JANUARY 18, 1986, AS AMENDED ("Xxxxxxxxx"), XXXX
X. XXXXXXX ("Xxxxxxx"), and XXXXX X. XXXXX, INDIVIDUALLY AND AS TRUSTEE UNDER
THE XXXXX X. XXXXX AGREEMENT OF TRUST DATED JULY 25, 1980, as amended
("Stone").
W I T N E S S E T H:
WHEREAS, pursuant to the Stock Purchase Agreement dated as of April 7,
1997, by and among Noble, Utilase and the Shareholders of Utilase, being DCT
and Xxxxxxx (the "Stock Purchase Agreement"), Noble agreed to acquire the
common stock of Utilase owned by DCT and Xxxxxxx on the earlier of the date
that Noble completes an initial public offering ("IPO") of its stock or
December 31, 1997; and
WHEREAS, pursuant to the aforementioned Stock Purchase Agreement,
Noble agreed to and did place in escrow with Jaffe, Raitt, Heuer & Xxxxx, P.C.,
as escrow agent, Stock Certificate No. 42, registered in the name of Utilase,
evidencing five hundred six (506) shares of Noble common stock ("Escrowed
Shares"), to secure certain of Noble's obligations under the Stock Purchase
Agreement; and
WHEREAS, pursuant to the Asset Purchase Agreement dated as of February
28, 1997, by and among UPP, Utilase and Noble (the "Asset Purchase Agreement"),
UPP and Noble executed and delivered to Utilase a Promissory Note dated
February 28, 1997 (the "UPP Note"), pursuant to which UPP and Noble, jointly
and severally, agreed to pay Utilase (i) the sum of Seven Hundred Fifty
Thousand and no/100 Dollars ($750,000.00) on or before the earlier to occur of
(A) July 31, 1997, or (B) the completion of an IPO of Utilase Welding, Inc.;
(ii) the sum of Fifty Thousand and no/100 Dollars ($50,000.00) on or before
February 1, 1998; and (iii) the sum of Fifty Thousand and no/100 Dollars
($50,000.00) on or before February 1, 1999; and
WHEREAS, pursuant to the Letter Agreement dated March 15, 1997 by and
among DCT Companies, Inc., Xxxxx Xxxxxx Xxxxxxxxx, III, individually, Xxxxx X.
Xxxxx, individually, and Noble ("Letter Agreement"), which Letter Agreement
amended certain agreements entered into as of July 1, 1996 relating to
Components, Noble agreed (i) to purchase all of the common stock of Components
owned by Xxxxxxxxx and Xxxxx on the date of the completion of the Noble
IPO on or about June 30, 1997 ("Components Purchase Date") for a formula
purchase price, provided, however that the purchase price so determined would
not be less than One Million and no/100 Dollars ($1,000,000.00), which purchase
price was to have been paid to Xxxxxxxxx and Xxxxx pursuant to a promissory
note or promissory notes; and (ii) to acquire Xxxxxxxxx'x and Stone's remaining
interest in Competitive Technology Investment Company ("Competitive"); and
WHEREAS, pursuant to the Letter Agreement, Noble agreed to pay the
entire principal balance plus accrued interest owing under a certain Line of
Credit Promissory Note dated July 1, 1996 from Components to DCT ("Components
Note") on or before the Components Purchase Date; and
WHEREAS, the parties have agreed that it is in their respective best
interests to amend the foregoing agreements as described below.
NOW, THEREFORE, in consideration of the mutual promises and covenants
described below, the parties agree as follows:
1. Release of Escrowed Shares. Utilase, DCT and Xxxxxxx agree to cause
the Escrowed Shares to be released from escrow and returned to Noble for
cancellation by Noble on its books and to release any and all claims and/or
interest Utilase, DCT and/or Xxxxxxx have or may have in and to the Escrowed
Shares. This Paragraph 1 shall be deemed to be an Amendment to the Stock
Purchase Agreement as it relates to the Escrowed Shares.
2. Purchase of Stock of Utilase. Noble agrees to close on the purchase
of all of the issued and outstanding common stock of Utilase owned by DCT and
Xxxxxxx on or before the earlier to occur of (i) December 31, 1997, or (ii) the
date upon which the underwriting syndicate for Noble deposits the net proceeds
of the IPO into a Noble bank account, (such date being referred to hereinafter
as the "Settlement Date"). Further, clause (iii) of the last sentence of
Section 8.2 of the Stock Purchase Agreement is amended to read as follows:
"that the Company shall use its best efforts to refinance the Interim Financing
Transaction and obtain releases for Noble and its subsidiaries." This Paragraph
2 shall be deemed to be an amendment to the Stock Purchase Agreement.
3. UPP Note. UPP and Noble agree that the entire Eight Hundred Fifty
Thousand and no/100 Dollars ($850,000.00) principal amount due under the UPP
Note shall be due and payable on the earlier to occur of (i) December 31, 1997,
or (ii) the Settlement Date. This Paragraph 3 shall be deemed to be an
amendment to both the Asset Purchase Agreement and the UPP Note.
4. Valuation and Purchase of Stock of Components. Noble
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agrees to consummate the purchase of all of the common stock of Components
owned by Xxxxxxxxx and Xxxxx on or before the earlier to occur of (i) December
31, 1997, or (ii) the Settlement Date, for a purchase price of One Million
Dollars ($1,000,000) in immediately available funds. As part of the sale and
purchase of the common stock of Components owned by Xxxxxxxxx and Stone,
Xxxxxxxxx and Xxxxx shall transfer to Noble, and Noble shall acquire from
Xxxxxxxxx and Xxxxx, their remaining interest in Competitive. This Paragraph 4
shall be deemed to be an amendment to the Letter Agreement.
5. Payment of Components Note. Noble and Skandalaris agree that Noble
shall pay to DCT the entire principal balance plus all accrued interest owing
under the Components Note, on or before the earlier to occur of (i) December
31, 1997, or (ii) the Settlement Date. This Paragraph 5 shall be deemed to be
an amendment to the Letter Agreement.
6. Noble's Right to Purchase. Noble's right to acquire the Utilase
shares and Components shares, as described in the Stock Purchase Agreement and
the Letter Agreement, respectively, are expressly contingent upon each and
every one of the following items occurring simultaneously: (i) Noble's
completion of the purchase of the Utilase shares from DCT and Xxxxxxx; (ii)
UPP's payment of the Eight Hundred Fifty Thousand and no/100 Dollars
($850,000.00) principal amount due under the UPP Note to DCT; (iii) the payment
by Noble to Xxxxxxxxx and Xxxxx of the sum of One Million and no/100 Dollars
($1,000,000.00), in the aggregate, for their shares in Components; (iv) Noble's
purchase of Competitive from Xxxxxxxxx and Xxxxx; and (v) Noble's payment to
DCT of the balance of the principal and accrued interest under the Components
Note. Noble acknowledges and agrees that its failure to fulfill any of its
obligations under the Stock Purchase Agreement, Asset Purchase Agreement, UPP
Note and the Letter Agreement, as amended hereby ("Agreements"), will result in
the forfeiture of its rights under each of the Agreements other than the
Components Agreement dated July 1, 1996, by and among DCT, Noble, Utilase, UPP,
Skandalaris, Henderson, Stone, Components and Xxxxxxx. In the event of a
forfeiture by Noble, each of the Agreements shall be null and void and of no
further force and effect, and Noble and UPP agree to take all actions necessary
to transfer the assets purchased under the Asset Purchase Agreement (the " Job
Shop Assets") back to Utilase.
7. Recitals. The terms, conditions and definitions contained in the
recitals are deemed to be part of the substantive provisions of this Agreement.
8. Other Terms and Conditions. Except as specifically modified and
amended herein, all other terms and conditions of the Stock Purchase Agreement,
the Asset Purchase Agreement, the UPP Note and the Letter Agreement shall
remain in full force and effect.
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9. Additional Documentation. The parties agree to execute any and all
documents reasonably required to consummate the foregoing transactions.
As your agreement and consent to the terms and conditions set forth
above, the parties each sign where their respective names are reflected below,
as of the 26th day of August, 1997.
NOBLE INTERNATIONAL, LTD., a UTILASE PRODUCTION PROCESS,
Michigan corporation INC., a Michigan corporation
/s/ Xxxxxx X. Xxxxxxxxxxx /s/ Xxxxxxx X. Xxxx
_______________________________ ________________________________
By: Xxxxxx X. Xxxxxxxxxxx By: Xxxxxxx X. Xxxx
Its: President Its: Secretary
/s/ Xxxxxx Xxxxxxxxxxx
_______________________________
Xxxxxx Xxxxxxxxxxx
DCT COMPONENT SYSTEMS, INC., DCT, INC., a Michigan
a Michigan corporation corporation
/s/ Xxxxx Xxxxxx Xxxxxxxxx
/s/ Xxxxx X. Xxxxx ________________________________
_______________________________ By: Xxxxx Xxxxxx Xxxxxxxxx, III
By: Xxxxx X. Xxxxx Its: Chief Executive Officer
Its: Secretary
UTILASE, INC., a Michigan
corporation
/s/ Xxxxx Xxxxxx Xxxxxxxxx /s/ Xxxxx Xxxxxx Xxxxxxxxx
_______________________________ ________________________________
Xxxxx Xxxxxx Xxxxxxxxx, III, By: Xxxxx Xxxxxx Xxxxxxxxx, III
individually and as Trustee Its: President
under the Xxxxx X. Xxxxxxxxx, III
Declaration of Trust dated
January 18, 1986 as amended
/s/ Xxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxx
_______________________________ ________________________________
Xxxx X. Xxxxxxx Xxxxx X. Xxxxx, individually
and as Trustee under the Xxxxx
X. Xxxxx Agreement of Trust
dated July 25, 1980
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