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EXHIBIT Q
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OFFSHORE SECURITIES PURCHASE AGREEMENT
BETWEEN
ALCAN ALUMINIUM LIMITED
AND
GLORIOUS LIMITED
EV GLORIOUS CLASS D SHARES
DATED AS OF JUNE 23, 1997
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OFFSHORE SECURITIES PURCHASE AGREEMENT
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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.
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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 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, X.X.X.
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, Xxxxx, Day, Xxxxxx & Xxxxx, 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 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.
0000 Xxxxxxx Xxxxx
Xxxxx 000 Xxxxxxx, Xxxxx 00000 X.X.X.
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(ii) If to Seller:
Alcan Aluminium Limited
0000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0
Attention: Xx. Xxxxxxx X. Xxxx
(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 XXX XXXXXX XX XXX XXXXX XX
XXX XXXX, XX 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 0000 XXXXXXXX, XXX XXXX, XXX XXXX, 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/ X. X. XxXxxxx
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Title: X. X. XxXxxxx
Executive Vice President
GLORIOUS LIMITED
EV GLORIOUS CLASS D SHARES
By: Millennium Financial Group, Inc.,
Agent
By: /s/ X. Xxxxx
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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.