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EXHIBIT P
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is entered into as of June 20, 1997, by
and between Alcan Aluminium Limited, a Canadian corporation ("Seller"), and EV
Global Motors Company, a California corporation ("Buyer").
RECITALS
WHEREAS, Seller currently owns 1,401,925 shares of common
stock, $0.01 par value (the "Stock"), of Unique Mobility Inc., a publicly traded
Colorado corporation listed on the American Stock Exchange, Boston Stock
Exchange and Pacific Stock Exchange (the "Company"); and
WHEREAS, Buyer desires to purchase from Seller, and Seller
desires to sell to Buyer, 1,151,925 shares of the Stock (the "Purchased Stock")
on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises
contained herein and for other good and valuable consideration, Seller and Buyer
hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following
definitions shall apply:
"Act" means the Securities Act of 1933, as amended.
"Agreement" means this Stock Purchase Agreement by and between
Seller and Buyer, as amended or supplemented.
"Business of the Company" means the management, business,
operations, financial condition, results of operations, assets, properties and
business prospects of the Company.
"Buyer" means EV Global Motors Company, a California
corporation.
"Company" has the meaning assigned to such term in the
recitals to this Agreement.
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"Encumbrance" means any claim, charge, easement, encumbrance,
lease, covenant, security interest, lien, option, pledge, rights of others, or
restriction (whether on voting, sale, transfer, disposition or otherwise),
whether imposed by agreement, understanding, law, equity or otherwise, except
for any restriction on transfer generally arising under any applicable federal
or state securities law or reporting obligations under Section 13 or Section 16
of the Securities Exchange Act of 1934.
"Purchase Price" has the meaning assigned to such term in
Section 2.
"Purchased Stock" has the meaning assigned to such term in the
recitals to this Agreement.
"Purchased Stock Certificates" means certificates representing
the Purchased Stock, duly endorsed (or accompanied by duly executed stock
powers) for transfer to Buyer.
"Seller" means Alcan Aluminium Limited, a Canadian
corporation.
"Seller's Counsel" means ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇.
"Stock" has the meaning assigned to such term in the recitals
to this Agreement.
2. PURCHASE AND SALE OF PURCHASED STOCK. Subject to the terms
and conditions of this Agreement, and in reliance upon the representations and
warranties hereinafter set forth, Buyer agrees to purchase from Seller, and
Seller agrees to sell, assign, transfer and deliver to Buyer, the Purchased
Stock in exchange for an amount equal to THREE MILLION ONE HUNDRED NINETY
THOUSAND EIGHT HUNDRED THIRTY-TWO AND TWENTY-FIVE ONE-HUNDREDTHS U.S. DOLLARS
($3,190,832.25) (the "Purchase Price"). Upon execution and delivery of this
Agreement, Seller shall deliver the Purchased Stock Certificates to Buyer at the
offices of Seller's Counsel in Los Angeles, California. In consideration for the
sale, assignment and transfer of the Purchased Stock effected hereby,
simultaneously with the receipt by Buyer of the Purchased Stock Certificates,
Buyer shall pay to Seller, and Seller shall have received from Buyer, by bank
cashier's check, the Purchase Price plus $1,486.14.
Promptly following the execution of this Agreement, Seller
shall deliver to the registrar and transfer agent for the Stock, a letter of
instructions requesting such transfer agent to affix the following legend on all
certificates representing the Purchased Stock issued to Buyer in replacement for
the Purchased Stock Certificates:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND ARE "RESTRICTED
SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. THE
SHARES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN
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EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO
EXEMPTION FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH
IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
3. SELLER'S REPRESENTATIONS AND WARRANTIES. In order to induce
Buyer to enter into this Agreement, Seller represents and warrants as follows:
(a) ORGANIZATION. Seller is a corporation duly organized,
validly existing and in good standing under the laws of Canada. Seller has all
necessary corporate power and authority to execute, deliver and perform this
Agreement and to carry on its business as now being conducted. The execution,
delivery and performance of this Agreement have been duly authorized by all
necessary corporate action on the part of Seller and this Agreement has been
duly executed and delivered by Seller.
(b) VALIDITY, BINDING EFFECT. This Agreement constitutes the
legally valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws and
equitable principles relating to or limiting creditors' rights generally.
(c) OWNERSHIP OF PURCHASED STOCK. Seller owns the Purchased
Stock beneficially and of record, free and clear of any Encumbrance and subject
to that certain General Agreement dated as of June 7, 1988 by and between the
Company and Alcan International Limited. Buyer is acquiring good and marketable
title to and complete ownership of the Purchased Stock from Seller, free of any
Encumbrance, except as created pursuant to Section 6 of this Agreement or as
otherwise created by Buyer. To Seller's knowledge, the Purchased Stock is duly
authorized, validly issued and outstanding and is fully paid and nonassessable.
(d) NO CONFLICT. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
conflict with or result in the breach of any of the terms, conditions or
provisions of the Certificate of Amalgamation or By-Laws of Seller or any law,
regulation, order, writ, injunction or decree of any court or governmental
authority, or of any agreement or other material restriction to which Seller is
a party or by which it is bound.
4. BUYER'S REPRESENTATIONS AND WARRANTIES. In order to induce
Seller to enter into this Agreement, Buyer represents and warrants as follows:
(a) ORGANIZATION. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of California.
Buyer has all necessary corporate power and authority to execute, deliver and
perform this Agreement and to carry on its business as now being conducted. The
execution, delivery and performance of this Agreement have been duly authorized
by all necessary corporate action on the part of Buyer and this Agreement has
been duly executed and delivered by Buyer.
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(b) VALIDITY, BINDING EFFECT. This Agreement constitutes the
legally valid and binding obligation of Buyer, enforceable against Buyer in
accordance with its terms except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws and
equitable principles relating to or limiting creditors' rights generally.
(c) INVESTMENT REPRESENTATION. Buyer hereby acknowledges and
agrees that: (i) the Purchased Stock has not been registered under the Act or
qualified with the securities regulatory agency of any state of the United
States; and (ii) it is acquiring the Purchased Stock as an investment for its
own account and not with a view to, or for resale in connection with, any
distribution thereof to any other person or entity.
(d) NO CONFLICT. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
conflict with or result in the breach of any of the terms, conditions or
provisions of the Articles of Incorporation and Bylaws of Buyer or any law,
regulation, order, writ, injunction or decree of any court or governmental
authority, or of any agreement or other material restriction to which Buyer is a
party or by which it is bound.
(e) FINANCING. Buyer has sufficient funds immediately
available to make the payment required by Section 2 of this Agreement.
(f) INVESTMENT RISK. The purchase of the Purchased Stock
involves a high degree of economic risk, including the risk of a complete loss
of Buyer's investment. Buyer has such knowledge and experience in financial and
business matters that Buyer is capable of evaluating the merits and risks of
purchasing the Purchased Stock and Buyer is able to bear the economic risk of
Buyer's investment in the Purchased Stock.
(g) INFORMATION ABOUT THE COMPANY. (i) Buyer and its advisors,
if any, have been furnished with, or otherwise have had full access to, and have
had full opportunity to review all publicly available materials regarding the
Business of the Company; (ii) no representations, warranties or covenants
(including, without limitation, any representations, warranties or covenants
regarding the Business of the Company, or the future value, if any, of the
Purchased Stock) have been made by Seller to Buyer except as set forth in this
Agreement; (iii) Buyer is relying on its own investigation and examination of
the Business of the Company in deciding to purchase the Purchased Stock; and
(iv) even though Seller owns the Purchased Stock, there may exist material
non-public information regarding the Business of the Company of which Seller is
not in possession, and Buyer is not relying on Seller to investigate and
disclose to Buyer any such information which may exist.
(h) RESTRICTED SECURITIES. The shares of the Purchased Stock
are currently (and when purchased by Buyer will continue to be) Restricted
Securities (as such term is defined in Rule 144 promulgated under the Act), are
being offered and sold to Buyer in a transaction not registered under the Act,
and Seller, in transferring and selling the
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Purchased Stock to Buyer, is relying upon the truth and accuracy of the
representations and warranties of Buyer set forth in this Agreement.
5. COVENANT REGARDING PUBLICITY. Buyer and Seller shall
cooperate with each other in connection with all publicity relating to the
transactions contemplated by this Agreement and each agrees not to issue any
press release, publicity statement or other public notice relating to this
Agreement or the transactions contemplated by this Agreement without the other's
prior written consent (which shall not be unreasonably withheld or delayed),
except to the extent that any such press release, publicity statement or other
public notice is required by applicable law.
6. BUYER'S COVENANTS REGARDING RESALE OF THE PURCHASED STOCK.
Buyer hereby covenants and agrees that it shall not offer for sale, sell or
otherwise transfer the Purchased Stock except pursuant to an effective
registration statement under the Act or pursuant to exemption from registration
under the Act.
7. MISCELLANEOUS.
(a) GOVERNING LAW. THIS AGREEMENT, AND THE LEGAL RELATIONS
BETWEEN THE PARTIES WITH RESPECT HERETO, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN SUCH STATE WITHOUT REGARD TO CONFLICT OF LAW DOCTRINES.
(b) HEADINGS. The descriptive headings of the sections of this
Agreement are for convenience only and do not constitute a part of this
Agreement.
(c) ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding of the parties hereto, and incorporates all prior
and contemporaneous discussions, agreements and understandings between the
parties with respect to the subject matter hereof.
(d) COUNTERPARTS. This Agreement and any amendment hereto may
be executed in one or more counterparts and by different parties in separate
counterparts. Such counterparts shall constitute one and the same agreement and
shall become effective when the counterparts have been signed by each party and
delivered to the other party. The facsimile transmission of an executed
counterpart to this Agreement shall be effective as an original.
(e) ATTORNEY'S FEES. In the event of any action by any party
arising under or out of, in connection with or in respect of this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees, costs and
expenses incurred in such action.
(f) MODIFICATION. Neither this Agreement nor any provisions
hereof shall be waived, modified, changed, discharged, terminated, revoked or
cancelled except by an
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instrument in writing signed by the party against whom any change, discharge or
termination is sought.
(g) NOTICES. Any notice or other communication hereunder shall
be given in writing and either delivered in person, transmitted by telex or
telecopy, mailed (postage prepaid), or delivered by private courier service, as
follows:
If to Buyer, addressed to:
EV Global Motors Company
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
O'Melveny & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller, addressed to:
Alcan Aluminium Limited
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
North Point, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇;
or to such other addresses as Seller or Buyer may from time to time designate by
notice as provided herein, provided that notices of change of address shall be
effective only upon the receipt thereof.
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(h) SURVIVAL. All representations, warranties and agreements
of Buyer and Seller made in this Agreement or in any certificate or instrument
delivered pursuant to this Agreement shall survive indefinitely.
(i) EXPENSES. Subject to Section 7(e) above, each party hereto
shall bear all of the expenses (including, without limitation, the fees of its
respective legal counsel, investment advisors and accountants) incurred by or on
behalf of such party in connection with the transactions contemplated hereby,
including any expenses in connection with the negotiation and preparation of
this Agreement.
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IN WITNESS WHEREOF, the undersigned have caused this Stock
Purchase Agreement to be duly executed and delivered as of the date first
written above.
ALCAN ALUMINIUM LIMITED
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
EV GLOBAL MOTORS COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Officer/Secretary
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