<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDED AND RESTATED
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 9 - Final Amendment)*
Unique Mobility, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock $0.01 par value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
909154 10 6
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(CUSIP Number)
P.K. Pal, Esq., Alcan Aluminium Limited
1188 Sherbrooke Street West
Montreal, Quebec, CANADA H3A 3G2
(514) 848-8000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 20, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Amended and Restated Schedule 13D,
and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box _.
NOTE: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
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* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 (the "Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following page)
(Page 1 of 6 Pages)
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CUSIP No. 909154 10 6 13D Page 2 of 6 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Alcan Aluminium Limited
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC, OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY -------------------------------------------
EACH REPORTING 8 SHARED VOTING POWER
PERSON WITH
0
-------------------------------------------
9 SOLE DISPOSITIVE POWER
0
-------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
0%
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE> 3
AMENDED AND RESTATED
SCHEDULE 13D
CUSIP NO. 909154 10 6 Page 3 of 6 Pages
AMENDED AND RESTATED
SCHEDULE 13D
This Amendment No. 9 amends the information contained in the
Statement on Schedule 13D filed by Alcan Aluminium Limited ("Alcan") on June 17,
1988, as amended by Amendment No. 1 filed on June 29, 1988, Amendment No. 2
filed on August 12, 1991, Amendment No. 3 filed on September 11, 1991, Amendment
No. 4 filed on November 12, 1991, Amendment No. 5 filed on December 2, 1991,
Amendment No. 6 filed on May 28, 1992, Amendment No. 7 filed on January 14,
1993, and amended and restated by Amendment No. 8 filed on April 21, 1997 (as
amended and restated, the "Schedule 13D"), and is being filed on behalf of Alcan
pursuant to Rule 13d-2 promulgated under the Securities Exchange Act of 1934, as
amended.
Item 4. Purpose of Transaction.
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Item 4 of the Schedule 13D is hereby amended by adding the
following two paragraphs immediately before the final paragraph of Item 4:
On June 20, 1997, Alcan sold 1,151,925 shares of Stock to EV Global
Motors Company, a California corporation ("Global Motors"), at a price of $2.77
per share, plus two days' interest at a simple rate of 8.5%, for an aggregate
price of $3,190,832.25 plus $1,486.14 in interest, under the terms of the Stock
Purchase Agreement, dated as of June 20, 1997, by and between Alcan and Global
Motors, which is incorporated herein by this reference in its entirety and a
copy of which is attached hereto as EXHIBIT P. In accordance with the Offer,
Millennium Financial Group, Inc. ("Millennium") will receive a commission of
$0.10 per share from Alcan in connection with this sale of 1,151,925 shares of
Stock.
On June 23, 1997, Alcan sold 250,000 shares of Stock to Glorious
Limited - EV Glorious Class D Shares ("Glorious") at a price of $2.77 per share,
for an aggregate price of $692,500, under the terms of the Offshore Securities
Purchase Agreement, dated as of June 23, 1997, by and between Alcan and Glorious
(the "Offshore Purchase Agreement"), which is incorporated herein by this
reference in its entirety and a copy of which is attached hereto as EXHIBIT Q.
In connection with the execution of the Offshore Purchase Agreement, Alcan
received a letter from Glorious dated June 23, 1997, a copy of which is attached
hereto as EXHIBIT R, acknowledging certain matters in connection with the
execution of the Offshore Purchase Agreement and affirming the authority of
Millennium to execute the Offshore Purchase Agreement on behalf of Glorious.
In accordance with the Offer, Millennium will receive a commission of $0.10 per
share from Alcan in connection with this sale of 250,000 shares of Stock.
<PAGE> 4
AMENDED AND RESTATED
SCHEDULE 13D
CUSIP NO. 909154 10 6 Page 4 of 6 Pages
Item 5. Interest in Securities of the Issuer.
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(a) The statements under Item 5(a) of the Schedule 13D are
hereby deleted and replaced in their entirety by the following:
Alcan is the beneficial owner of no shares of Stock. This represents 0%
of Unique's issued and outstanding Stock.
(b) The statements under Item 5(b) of the Schedule 13D are
hereby deleted and replaced in their entirety by the following:
Alcan does not retain voting or dispositive power with respect to any
shares of Stock. To the best of Alcan's knowledge, except as described above, no
executive officer or director of Alcan and no associate of Alcan owns or has a
right to acquire, directly or indirectly, any shares of Stock.
(c) The statements under Item 5(c) of the Schedule 13D are
hereby deleted and replaced in their entirety by the following:
Alcan sold 1,151,925 shares of Stock to Global Motors on June 20, 1997
and sold 250,000 shares of Stock to Glorious on June 23, 1997. A description of
the terms of these transactions is provided under Item 4, above, and is
incorporated herein by reference.
Other than as stated in this Schedule 13D, no transactions in the Stock
were effected during the past 60 days by Alcan, or, to the best of Alcan's
knowledge, by any executive officer, director or affiliated person of Alcan, or
by any subsidiary of Alcan or by any executive officer, director or affiliated
person of any such subsidiary.
(d) The statements under Item 5(d) of the Schedule 13D are
hereby deleted and replaced in their entirety by the following:
Not applicable.
(e) The statements under Item 5(e) of the Schedule 13D are
hereby deleted and replaced in their entirety by the following:
Alcan ceased to be the beneficial owner of more than five percent of
the Stock on June 20, 1997.
Item 7. Material to be Filed as Exhibits.
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Item 7 of the Schedule 13D is hereby amended by adding the
following Exhibits to the list of exhibits:
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AMENDED AND RESTATED
SCHEDULE 13D
CUSIP NO. 909154 10 6 Page 5 of 6 Pages
EXHIBIT P: Stock Purchase Agreement, dated as of
June 20, 1997, by and between Alcan and
Global Motors
EXHIBIT Q: Offshore Securities Purchase Agreement,
dated as of June 23, 1997, by and between
Alcan and Glorious
EXHIBIT R: Letter from Glorious, dated June 23, 1997,
addressed to Alcan
<PAGE> 6
AMENDED AND RESTATED
SCHEDULE 13D
CUSIP NO. 909154 10 6 Page 6 of 6 Pages
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
ALCAN ALUMINIUM LIMITED
By: /s/ Serge Fecteau
----------------------------
Serge Fecteau
Assistant Secretary
June 30, 1997
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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 Jones, Day, Reavis & Pogue.
"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
10880 Wilshire Boulevard, Suite 1400
Los Angeles, California 90024
Attention: President
Telecopy: (310) 441-2651
With a copy to:
O'Melveny & Myers LLP
400 South Hope Street
Los Angeles, California 90071-2899
Attention: D. Stephen Antion, Esq.
Telecopy: (213) 669-6407
If to Seller, addressed to:
Alcan Aluminium Limited
1188 Sherbrooke Street West
Montreal, Quebec H38 3G2
CANADA
Attention: Mr. Michael A. Bell
Telecopy: (514) 848-1444
With a copy to:
Jones, Day, Reavis & Pogue
North Point, 901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Michael Marting, Esq.
Telecopy: (216) 579-0212;
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.
[Remainder of Page Intentionally Left Blank]
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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/ E. P. LeBlanc
----------------------------
Name: E. P. LeBlanc
Title: Executive Vice President
EV GLOBAL MOTORS COMPANY
By: /s/ Irene DiVito
----------------------------
Name: Irene DiVito
Title: Officer/Secretary
S-1
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EXHIBIT Q
---------
OFFSHORE SECURITIES PURCHASE AGREEMENT
BETWEEN
ALCAN ALUMINIUM LIMITED
AND
GLORIOUS LIMITED
EV GLORIOUS CLASS D SHARES
DATED AS OF JUNE 23, 1997
<PAGE> 2
OFFSHORE SECURITIES PURCHASE AGREEMENT
--------------------------------------
THIS OFFSHORE SECURITIES PURCHASE AGREEMENT (this
"Agreement"), dated as of June 23, 1997, between Alcan Aluminium Limited, a
Canadian corporation ("Seller"), and Glorious Limited - EV Glorious Class D
Shares ("Buyer"), sets forth the terms and conditions upon which Buyer will
purchase from Seller 250,000 shares of common stock, $0.01 par value, of Unique
Mobility, Inc., a Colorado corporation ("UMI"), currently held by Seller. This
Agreement is executed and delivered in reliance upon the exemption from
registration afforded by Regulation S, as originally promulgated and as
hereafter amended ("Regulation S") by the U.S. Securities and Exchange
Commission ("SEC"), under the U.S. Securities Act of 1933, as amended (the "1933
Act").
In consideration of the mutual promises and subject to the
terms and conditions hereinafter set forth, Buyer and Seller hereby agree as
follows:
I. DEFINITIONS
The following words and terms as hereinafter used in this
Agreement shall have the meanings set forth below unless otherwise herein
provided or unless the context or use herein clearly indicates another or
different meaning or intent:
1.1 "Affiliate" shall, as applied to any person or entity, mean any
other person or entity directly or indirectly controlling, controlled by or
under common control with, such person or entity.
<PAGE> 3
1.2 "Agreement" shall have the meaning assigned in the introductory
paragraph hereof.
1.3 "Business of UMI" shall have the meaning assigned in Section
4.4(xi).
1.4 "Buyer" shall have the meaning assigned in the introductory
paragraph hereof.
1.5 "Buyer's Agent" shall mean Millennium Financial Group, Inc., with
an address at 1901 Central Drive, Suite 809, Bedford, Texas 76021, U.S.A.
1.6 "Encumbrance" means any claim, charge, easement, encumbrance,
lease, covenant, security interest, lien, option, pledge, rights of others, or
restrictions (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.
1.7 "1933 Act" shall have the meaning assigned in the introductory
paragraph hereof.
1.8 "Purchase Price" shall have the meaning assigned in Section 2.1
hereof.
1.9 "Regulation S" shall have the meaning assigned in the introductory
paragraph hereof.
1.10 "Restricted Period" shall have the meaning assigned in Section
4.4(v) hereof.
1.11 "Restricted Securities" shall have the meaning assigned in Rule
144 promulgated under the 1933 Act.
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1.12 "SEC" shall have the meaning assigned in the introductory
paragraph hereof.
1.13 "Seller" shall have the meaning assigned in the introductory
paragraph hereof.
1.14 "UMI" shall have the meaning assigned in the introductory
paragraph hereof.
1.16 "UMI Certificates" means certificates representing the UMI Shares,
duly endorsed (or accompanied by duly executed stock powers) for transfer to
Buyer.
1.15 "UMI Shares" shall mean 250,000 shares of common stock, $0.01 par
value, of UMI.
Other capitalized words and terms used herein and not defined shall have the
meanings given to them in Regulation S.
II. TRANSACTION
2.1 PURCHASE AND SALE OF SECURITIES. Subject to the terms and
conditions hereinafter set forth, and in reliance upon the representations and
warranties contained herein, Buyer does hereby purchase from Seller, and Seller
does hereby sell, assign, transfer and deliver to Buyer, the UMI Shares in
exchange for an amount equal to Six Hundred Ninety-Two Thousand Five Hundred
U.S. Dollars (US$ 692,500) (the "Purchase Price"). Upon execution and delivery
of this Agreement, Buyer shall pay, by wire transfer to the designated
depository of Seller (which Seller has heretofore notified Buyer of and has
provided appropriate wire transfer instructions) in immediately
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available funds the Purchase Price to Seller as payment in full for all of the
UMI Shares. Immediately upon receipt by Seller of the Purchase Price, Seller
shall deliver the UMI Certificates to Buyer's Agent at the offices of Seller's
counsel, Jones, Day, Reavis & Pogue, 555 West Fifth Street, Suite 4600, Los
Angeles, California 90013-1025, U.S.A.
2.2 TRANSFER AGENT INSTRUCTIONS. Promptly following the execution and
delivery of this Agreement, Seller shall deliver a letter of instructions to the
transfer agent for the UMI Shares, requiring such transfer agent to affix a
legend, in substantially the form set forth in bold on Exhibit A to this
Agreement, on all certificates representing UMI Shares issued in replacement for
the UMI Certificates.
III. REPRESENTATIONS, WARRANTIES AND COVENANTS BY SELLER
Seller hereby represents and warrants to, and covenants with, Buyer as
follows:
3.1 ORGANIZATION AND AUTHORITY. Seller is a corporation duly organized,
validly existing and in good standing under the laws of Canada and has full
power and authority necessary to enter into and perform its obligations under
this Agreement and to consummate the transactions contemplated hereunder.
3.2 AUTHORIZATION AND VALIDITY. The execution, delivery and performance
by Seller of this Agreement have been duly authorized by all requisite corporate
action on the part of Seller. This Agreement has been duly executed and
delivered by Seller and constitutes a legal, valid and binding obligation of
Seller, enforceable in accordance with its terms.
3.3 NO CONFLICT. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will conflict with
or result in
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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.
3.4 OWNERSHIP AND TITLE. Seller owns the UMI Shares beneficially and of
record, free and clear of any Encumbrance, other than Encumbrances created
pursuant to the General Agreement dated as of June 7, 1988, as amended between
Alcan International Limited, a wholly owned subsidiary of Seller, and UMI. Upon
delivery by Seller to Buyer of the UMI Shares, Buyer is acquiring good and
marketable title to and complete ownership of the UMI Shares, free and clear of
any Encumbrance, except for Encumbrances created pursuant to this Agreement or
otherwise created by Buyer.
3.5 OFFSHORE TRANSACTION. (i) Seller has not offered any of the UMI
Shares to any U.S. Person or for the account or benefit of any U.S. Person.
(ii) In regard to this transaction, Seller has not conducted
any Directed Selling Efforts.
IV. REPRESENTATIONS, WARRANTIES AND COVENANTS BY BUYER
Buyer hereby represents and warrants to and covenants with, Seller as
follows:
4.1 ORGANIZATION AND AUTHORITY. Buyer is a duly organized and validly
existing under laws of its jurisdiction of formation and has full power and
authority necessary to enter into and perform its obligations under this
Agreement and to consummate the transactions contemplated hereunder.
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4.2 AUTHORIZATION AND VALIDITY. The execution, delivery and performance
of this Agreement by Buyer have been duly authorized by all requisite action on
the part of Buyer. This Agreement has been duly executed and delivered by Buyer
and constitutes a legal, valid and binding obligation of Buyer, enforceable in
accordance with its terms.
4.3 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
charter and bylaws (or other comparable organizational documents) of Buyer or
any law, regulation, order, writ, injunction or decree of any court or
governmental authority, or of any agreement or other restriction to which Buyer
is a party or by which it is bound.
4.4 OFFSHORE TRANSACTION. (i) Buyer is not a natural person and is not
organized under the laws of any jurisdiction within the United States, was not
formed by a U.S. Person for the purpose of investing in securities not
registered under the 1933 Act and is not otherwise a U.S. Person. Buyer is not
an Affiliate of Seller.
(ii) At the time the buy order for the UMI Shares was
originated, Buyer was outside the United States, and Buyer is outside of the
United States as of the date of the execution and delivery of this Agreement.
(iii) No offer to purchase the UMI Shares was made by Buyer
in the United States.
(iv) Buyer is purchasing the UMI Shares for its own account
and is qualified to purchase the UMI Shares under the laws of its jurisdiction
of residence, and the offer and sale of the UMI Shares will not violate the
securities or other laws of such jurisdiction.
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(v) All offers and sales of any of the UMI Shares by Buyer
prior to the end of the Restricted Period (as hereinafter defined) shall be made
in compliance with all applicable securities laws of any applicable jurisdiction
and in accordance with Rules 903 and 904, as applicable, of Regulation S or
pursuant to registration under the 1933 Act or pursuant to an exemption from
registration under the 1933 Act applicable to Restricted Securities. In any
case, none of the UMI Shares have been or will be offered or sold by Buyer to,
or for the account or benefit of, a U.S. Person or within the United States
until after the end of the forty (40) day period (or such longer period as maybe
hereafter required under Regulation S) commencing on the later of (x) the date
of this Agreement and (y) the date of the first offer of the UMI Shares to
persons other than Distributors (the "Restricted Period"), as certified by Buyer
to Seller, and thereafter only pursuant to registration under the 1933 Act or an
exemption from registration under the 1933 Act applicable to Restricted
Securities and pursuant to applicable securities laws of any state of the United
States or any other jurisdiction.
(vi) The transactions contemplated by this Agreement (a)
have not been and will not be pre-arranged by Buyer with a purchaser located in
the United States or a purchaser which is a U.S. Person, and (b) are not and
will not be a part of a plan or scheme by Buyer to evade the registration
provisions of the 1933 Act.
(vii) Buyer understands and agrees that the UMI Shares have
never been registered under the 1933 Act, are currently (and when purchased by
Buyer will continue to be) Restricted Securities, are being offered and sold to
it in a transaction not registered under the 1933 Act and not subject to the
registration requirements of the 1933 Act and applicable state securities laws
of the United States, and that Seller and
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Buyer are relying upon the rules governing the offer and sales of securities
made outside of the United States and upon the truth and accuracy of the
representations, warranties, and covenants of Buyer set forth in this Agreement.
(viii) Neither Buyer nor any of its affiliates directly or
indirectly has entered, has the intention of entering, or will during the
Restricted Period enter into any put option, short position or other similar
instrument or position with respect to any of the UMI Shares, any rights to
acquire any of the UMI Shares or any securities of the same class as the UMI
Shares.
(ix) Buyer understands and agrees that it has been advised
by Seller to consult its own legal and tax advisors with respect to applicable
resale restrictions and applicable tax considerations regarding the UMI Shares
and that it is solely responsible (and that Seller is not in any way
responsible) for compliance with applicable resale restrictions and applicable
tax legislation.
(x) Buyer understands and agrees that no Federal or State or
foreign government agency has passed on or made any recommendation or
endorsement of the UMI Shares.
(xi) Buyer understands and agrees that (a) it and its
advisors, if any, have been furnished with, or otherwise have had full access
to, and had full opportunity to review all publicly available materials
regarding UMI's management, business, operations, financial condition, results
of operations, assets, properties and business prospects (the "Business of
UMI"), (b) no representations, warranties or covenants (including, without
limitation, any representations, warranties or covenants regarding the Business
of UMI, or the future value, if any, of the UMI Shares have been made by
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Seller to Buyer except as set forth in this Agreement, (c) it is relying on its
own investigation and examination of the Business of UMI in deciding to purchase
the UMI Shares and (d) even though Seller owns the UMI Shares, there may exist
material non-public information regarding the Business of UMI, which Seller is
not in possession of, and Buyer is not relying on Seller to investigate and
disclose to Buyer any such information which may exist.
(xii) Buyer understands and agrees that the purchase of the
UMI Shares involves a high degree of risk, including the risk of a complete loss
of Buyer's investment, and that Buyer has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of purchasing the UMI Shares and is capable of bearing a complete loss of
its investment hereunder.
(xiii) Buyer understands and agrees that the certificates
representing UMI Shares will set forth, in addition to any legends required by
applicable law, a legend in substantially the form set forth in bold on Exhibit
A to this Agreement, and Buyer agrees to comply with the terms of such legend.
4.5 BUYER'S AGENT. Buyer's Agent has been duly appointed and authorized
to act as Buyer's agent, representative and attorney-in-fact for all purposes of
this Agreement, including without limitation execution and delivery of this
Agreement, authorization of payment of the Purchase Price by wire transfer,
receiving notices given or required to be given under this Agreement and
accepting delivery of the UMI Shares from Seller.
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V. MISCELLANEOUS
5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations,
warranties and agreements of Buyer and Seller made in this Agreement shall
survive indefinitely.
5.2 EXPENSES. Each party to this Agreement 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.
5.3 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, inure
to the benefit of, and may be enforced by, each of the parties to this Agreement
and its successors and assigns, provided that no benefit under this Agreement
may be voluntarily assigned by any party without the prior consent of the other
party.
5.4 NOTICES. All notices consents, waivers and other communications by
Seller or Buyer hereunder shall be given (and shall be deemed to have been duly
given) by delivery in person, or by cable, telegram, facsimile or telex, or by
mail (registered or certified, postage prepaid, return receipt requested) to the
respective parties as follows:
(i) If to Buyer:
Glorious Limited
EV Glorious Class D Shares
c/o Millennium Financial Group, Inc.
1901 Central Drive
Suite 809 Bedford, Texas 76021 U.S.A.
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(ii) If to Seller:
Alcan Aluminium Limited
1188 Sherbrooke Street West
Montreal, Quebec, Canada H3A 3G2
Attention: Mr. Michael A. Bell
(iii) Or to such addresses as Seller or Buyer may from time
to time designate by notice as provided herein, except that notices of change of
address shall be effective only upon receipt.
5.5 ENTIRE AGREEMENT. This Agreement supersedes any other agreement,
whether written or oral, that may have been made or entered into by Seller or
Buyer relating to the matters contemplated hereby and constitutes the entire
agreement between the parties.
5.6 SEVERABILITY. Should any part of this Agreement for any reason be
declared by any court of competent jurisdiction to be invalid, such decision
shall not affect the validity of the remaining portion, which shall continue in
full force and effect as if this Agreement had been executed with the invalid
portion eliminated therefrom.
5.7 AMENDMENTS. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a writing executed by
other of the parties hereto.
5.8 HEADINGS. The headings in this Agreement have been inserted for
convenience of reference only and shall not be considered a part of or affect
the construction or interpretation of any provision of this Agreement.
5.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute
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one and the same instrument. The facsimile transmission of an executed
counterpart to this Agreement shall be effective as an original.
5.10 ARBITRATION PROCEDURE. All claims or disputes arising under this
Agreement that are not otherwise resolved by negotiation and agreement between
the parties shall be subject to arbitration under this Agreement. The place of
arbitration shall be in the Borough of Manhattan, New York City, New York.
Except as otherwise expressly provided herein, all arbitration proceedings
commenced hereunder shall be subject to the Uniform Arbitration Act as in effect
in the State of New York and the Commercial Arbitration Rules of the American
Arbitration Association, as amended from time to time. A request for arbitration
shall be in writing, setting forth in detail the claim or claims to be
arbitrated, the amount involved, if any, and the remedy sought. It shall be
delivered to the other party within thirty (30) days of the date of the first
knowledge of the claiming party of the occurrence or conditions giving rise to
the dispute. Any failure to request arbitration within such thirty (30) day
period shall be deemed a waiver of the right to arbitrate the dispute. Within
fifteen (15) days after delivery of the request, the parties shall agree upon an
arbitrator. If the parties are unable to agree upon the arbitrator within such
fifteen (15) days, either party or the parties jointly shall request the
American Arbitration Association to submit to each party an identical panel of
five (5) persons, each of whom (a) shall be a member of a state bar engaged in
the practice of law in the United States or a retired member of a state or the
federal judiciary in the United States, (b) shall be impartial, disinterested
and independent of the parties and their Affiliates, with a reputation for
fairness, and (c) shall have expertise in the process of deciding disputes.
Alternate strikes shall be made
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to the panel, commencing with the party requesting arbitration, until the name
of one person remains. The person thus remaining shall serve as arbitrator for
such arbitration. The decision of the arbitrator shall be limited to selecting
either the position and remedy stated by the party in its request or the
position and remedy stated by the other party in its response to such request.
The arbitrator shall have no power to mediate or compromise any dispute, but
shall have only the limited authority herein provided to review the information
presented by the parties and to select the position and remedy proposed by one
of the parties. The award of the arbitrator shall be final and binding upon the
parties, subject to Section 5.11 hereof.
5.11 APPLICATIONS TO THE COURT. Applications to a court referred to in
Section 10.12 hereof may be made by a party in accordance with the Uniform
Arbitration Act as in effect in the State of New York (a) to confirm an award
entered by the arbitrator and (b) to modify, correct or vacate an award on the
grounds of fraud or manifest disregard of the law.
5.12 GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS BE
INTERPRETED, CONSTRUED, AND GOVERNED BY AND IN ACCORDANCE WITH THE INTERNAL
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK. EACH OF BUYER AND SELLER HEREBY
AGREES IRREVOCABLY THAT ANY ACTION OR PROCEEDING BY OR AGAINST IT PURSUANT TO
SECTION 5.11 HEREOF, SHALL BE BROUGHT IN AND ONLY IN THE COURTS OF THE STATE OF
NEW YORK, OR TO THE EXTENT THAT FEDERAL SUBJECT MATTER JURISDICTION MIGHT EXIST,
ONLY IN THE COURT OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF
NEW
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YORK, AND BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT EACH OF BUYER AND
SELLER HEREBY SUBMITS IRREVOCABLY TO THE JURISDICTION OF EACH SUCH COURT AND
DESIGNATES, APPOINTS, AND EMPOWERS IRREVOCABLY CT CORPORATION SYSTEM, WITH
OFFICES AT 1633 BROADWAY, NEW YORK, NEW YORK, TO RECEIVE ON ITS BEHALF SERVICE
OF PROCESS IN THE STATE OF NEW YORK AND FURTHER CONSENTS IRREVOCABLY TO THE
SERVICE OF PROCESS OUTSIDE THE TERRITORIAL JURISDICTION OF SAID COURTS BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, FACSIMILE, POSTAGE
PREPAID, RETURN RECEIPT REQUESTED, TO ITS ADDRESS SPECIFIED HEREIN.
IN WITNESS WHEREOF, Seller and Buyer have caused this
Agreement to be duly executed and delivered as of the date first above written.
ALCAN ALUMINIUM LIMITED
By: /s/ E. P. LeBlanc
----------------------------------
Title: E. P. LeBlanc
Executive Vice President
GLORIOUS LIMITED
EV GLORIOUS CLASS D SHARES
By: Millennium Financial Group, Inc.,
Agent
By: /s/ S. Gluck
--------------------------------
Title: Sec./Treasurer
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EXHIBIT A
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND SUCH SHARES MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO A REGISTRATION
STATEMENT THEN IN EFFECT UNDER THE SECURITIES ACT, (2) PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
APPLICABLE TO RESTRICTED SECURITIES (AS DEFINED IN THE REGULATIONS
UNDER THE SECURITIES ACT) OR (3) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT AND, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER JURISDICTION. IN THE CASE OF A TRANSFER
OF THE SHARES REPRESENTED BY THIS CERTIFICATE UNDER (2) OR (3) OF THE
PRECEDING SENTENCE, UNIQUE MOBILITY, INC. ("UMI") SHALL HAVE RECEIVED A
LEGAL OPINION FROM COUNSEL ACCEPTABLE TO UMI, IN FORM AND SUBSTANCE
SATISFACTORY TO UMI, TO THE EFFECT THAT SUCH TRANSFER MAY BE LEGALLY
EFFECTED WITHOUT REGISTRATION UNDER THE SECURITIES ACT.
<PAGE> 1
EXHIBIT R
---------
GLORIOUS LTD
Registered Office at Maples & Calder
P.O. Box 309
Ugland House
South Church Street
George Town
Grand Cayman, Cayman Islands, B.W.I.
June 23, 1997
Serge Fecteau, Esq.
Alcan Aluminium
VIA FACSIMILE: 001.514.848.8372
Dear Mr. Fecteau:
In reference to the purchase of 250,000 shares of Unique Mobility restricted
shares, I have been advised of the Offshore Securities Purchase Agreement dated
June 23, 1997. I understand that said securities have not been registered under
the United States Securities Act of 1933. I further understand that the
aforementioned agreement is being executed and delivered in reliance upon the
exemption from registration afforded by Regulation S, under the U.S. Securities
Act of 1933 and is governed in accordance with the internal substantive laws of
the State of New York.
I affirm that Shelley Gluck, Sec./Treasurer of Millennium Financial Group, Inc.,
has been appointed as our agent and has authorization to sign the Offshore
Securities Purchase Agreement on our behalf.
Regards,
/s/ Corrado Guscetti
Corrado Guscetti
Glorious Limited
