STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of December 7,
1995, is by and among UNIQUE MOBILITY, INC., a Colorado corporation ("Unique"),
and INVACARE CORPORATION, an Ohio corporation ("Invacare").
RECITALS
Invacare desires to purchase and Unique desires to sell shares of common
stock, $.01 par value ("Common Stock") of Unique, and the parties desire to
enter into a supply agreement giving Invacare exclusive worldwide rights to use
and sell motors developed and manufactured by Unique for application to
motorized wheelchairs and other medical products, on the terms and conditions
set out below. Certain capitalized terms are defined in section 7.15 hererof.
NOW, THEREFORE, in consideration of and subject to the agreements,
terms and conditions contained herein, the parties hereto agree as follows:
ARTICLE I
SALE OF STOCK; SUPPLY AGREEMENT; CONFIDENTIALITY AGREEMENT
1.1 Sale of Common Stock. Unique hereby agrees to sell and Invacare hereby
agrees to purchase, on the terms and conditions set forth herein, that
number of shares of the Common Stock (the "Initial Shares") determined by
dividing $500,000 by the Purchase Price (as defined in section 1.2) at the
Initial Closing (as defined in Article II) and an additional number of
shares of Common Stock (the "Additional Shares," and with the Initial
Shares, the "Shares") immediately after completion of Stage I as set forth
on Annex 1 attached hereto (the "Second Investment Date"). The number of
Additional Shares to be purchased on the Second Investment Date shall be
determined by dividing 50% of the amount that the parties agree on the
Second Investment Date is then necessary to be spent by Unique for
production tooling, capital equipment and product launch for the
manufacture of products to be sold to Invacare pursuant to the Supply
Agreement by the Purchase Price.
Certificates evidencing the Initial Shares and the Additional Shares,
properly endorsed or accompanied by appropriate stock powers, shall be
delivered to Invacare at the Initial Closing and on the Second Investment
Date, respectively.
1.2 Purchase Price. The purchase price for the Shares shall be the average
Market Value (as defined in Section 7. 15) per Share for the 30 trading
days preceding the date of the Initial Closing and the Second Investment
Date, as the case may be.
1.3 Supply and Confidentiality Agreements. As a condition to the obligation
of the parties to purchase or sell the Additional Shares the parties must
have executed a mutually acceptable Supply Agreement with respect to the
sale of motors by Unique to Invacare and must have executed a mutually
acceptable Confidentiality Agreement to supersede the Proprietary
Information Exchange Agreement executed by the parties on December 16.
1993.
ARTICLE II
CLOSING
Subject to the conditions stated in this Agreement, the closing (the "Initial
Closing") of the sale and purchase of the Initial Shares shall take place at the
offices of Holme Xxxxxxx & Xxxx LLC in Denver, Colorado at 2:30 p.m. (local
time) on December 7, 1995. At the Closing, the parties hereto shall cause to be
executed, delivered or filed all items required to be executed, delivered or
filed at the Initial Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF UNIQUE
Unique represents and warrants to Invacare as follows:
3.1 Organization of Unique. Unique is a corporation duly organized, validly
existing and in good standing under the laws of the State of Colorado,
has all requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as currently conducted and is
duly qualified to do business and is in good standing in the
jurisdictions where the nature of its business or the character of its
properties makes such qualification necessary, and where the failure to
so qualify would have a material adverse effect on its assets, operations
or financial condition, taken as a whole.
3.2 Capitalization. The authorized capital stock of Unique consists of
50,000,000 shares of Common Stock, of which 10,571,953 shares are issued
and outstanding on the date of this Agreement. All of the outstanding
shares of Common Stock have been duly authorized and are validly issued,
fully paid and nonassessable. Unique has outstanding warrants, options
and rights to purchase shares of Common Stock as set forth in its Annual
Report on Form 10-K for the fiscal year ended October 31, 1994 and its
Quarterly Report on Form 10-Q for the quarter ended July 31, 1995.
3.3 Authority Relative to Agreement. Neither the execution and delivery of
this Agreement by Unique nor consummation of the transactions
contemplated by this Agreement will conflict with or result in a breach
of any of the terms, conditions or provisions of Unique's Articles of
Incorporation or bylaws, or violate any statute or regulation, or any
judgment, order, injunction, decree or ruling of any court or
governmental authority, or (subject to obtaining any required consents)
result in any material breach of any of the terms or provisions of, or
result in a default under, or invalidate or give any other party any
right of cancellation or termination of any agreement, contract, license
or commitment to which Unique is a party or by which Unique is bound,
which breach, default, invalidation, cancellation or termination would
have a material adverse effect on the assets, operations or financial
condition of Unique, taken as a whole.
3.4 SEC Reports. Unique has made available to Invacare a true and complete
copy of each report, schedule, registration statement and definitive
proxy statement filed by Unique with the Securities and Exchange
Commission ("Commission") since October 31, 1992 (as such documents
have since the time of their filing been amended, the "SEC Reports")
which are all the documents (other than preliminary material) that Unique
was required to file with the Commission since such date. As of their
respective dates, the SEC Reports complied in all material respects with
the requirements of the Securities Act or the Exchange Act, as the case
may be, and the rules and regulations of the Commission thereunder
applicable to the SEC Reports, and none of the SEC Reports contained, as
of the respective dates thereof, any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. The financial statements of
Unique included in the SEC Reports complied, as of the respective dates
thereof, as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the
Commission with respect thereto, and have been prepared in accordance
with generally accepted accounting principles as of the respective dates
thereof, applied on a consistent basis during the periods involved
(except as may be indicated in the notes thereto, or in the case of the
unaudited statements, as permitted by Form 1 0-Q) and fairly present
(subject, in the case of the unaudited statement, to normal, recurring
adjustments) the financial position of Unique as at the dates thereof and
the results of its operations and cash flows (or changes in financial
position prior to the approval of FASB 95) for the periods then ended.
3.5 Absence of Certain Changes. Since October 31, 1995 (i) the business of
Unique has been conducted only in the ordinary course; (ii) there have
been no material adverse changes in the assets, operations or financial
condition of Unique, taken as a whole; and (iii) there has been no
material damage, destruction or loss, or other occurrence or development
(whether or not insured against) which singly or in the aggregate
materially adversely affects the assets, operations or financial
condition of Unique, taken as a whole, and, to its best knowledge and
belief, there are no threatened occurrences or developments which would
materially adversely affect the assets, operations or financial condition
of Unique, taken as a whole.
3.6 Articles of Incorporation. Bylaws and Corporate Records. Copies of the
Articles of Incorporation and bylaws of Unique, and all amendments
thereof, certified by the Secretary of Unique, which have been delivered
to Invacare, are complete and correct. The minute books of Unique are
substantially complete and correctly reflect all corporate actions of
Unique requiring action by the directors or shareholders thereof, and
correctly record all resolutions of the board of directors of Unique.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF INVACARE
Invacare represents and warrants to Unique as follows:
4.1 Organization - Authority. Invacare is a corporation duly organized,
validly existing and in good standing under the laws of the state of
Ohio, has all requisite power and authority to carry on its business as
currently conducted and is duly qualified to do business and is in good
standing in the jurisdictions where such qualification is necessary.
Invacare has full corporate power and authority to execute, deliver and
perform this Agreement and has taken all corporate action required by
law, its Certificate of Incorporation, bylaws or otherwise, to
authorize the execution and delivery of this Agreement and consummation
of the contemplated transactions. Neither the execution and delivery of
this Agreement nor consummation of the transactions contemplated by this
Agreement will conflict with or result in a breach of any of the terms,
conditions or provisions of Invacare's Certificate of Incorporation or
bylaws, or violate any statute or regulation, or any judgment, order,
injunction, decree or ruling of any court or governmental authority.
4.2 Investment Purpose. Invacare is acquiring the Shares for its own account
and not with a view to a sale or other distribution of all or any part
thereof. Invacare acknowledges that it has been advised that the Common
Stock is a speculative security, any return on which is not assured.
Invacare acknowledges that it has had an opportunity to ask questions of,
and receive answers from, the officers of Unique concerning Unique and
the Common Stock, and has been provided with all information concerning
Unique which Invacare has requested, which information constitutes all of
the information considered necessary by Invacare to evaluate the
transaction described in this Agreement. Invacare is a resident of the
State of Ohio for purposes of determining the applicability of state
securities laws.
ARTICLE V
COVENANTS OF UNIQUE
Unique covenants and agrees as follows:
5.1 Use of Proceeds. Unique shall use commercially reasonable efforts to
apply the proceeds of the purchase of the Initial Shares as set forth in
Annex 1 and in accordance with the budget, time schedule and
specifications set forth therein.
5.2 Appointment of Board Member. Unique shall nominate one designee of
Invacare to Unique's board of directors at every meeting of Unique's
shareholders held for the election of directors for so long as Invacare
owns at least 100,000 shares of Common Stock and is not in default under
this agreement, the Supply Agreement or the Confidentiality Agreement.
ARTICLE VI
REGISTRATION RIGHTS
6.1 Sale or Transfer of Shares: Legend.
(a) The Registrable Shares shall not be sold or transferred unless either
(i) they first shall have been registered under the Securities Act,
or (ii) the Company first shall have been furnished with an opinion
of legal counsel, reasonably satisfactory to the Company, to the
effect that such sale or transfer is exempt from the registration
requirements of the Securities Act.
(b) Each certificate representing the Registrable Shares shall bear a
legend substantially in the following form:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), and may
not be offered, sold, or otherwise transferred, pledged, or
hypothecated unless and until such shares are registered under the
Act or an opinion of counsel satisfactory to the Company is
furnished to the Company, to the effect that such registration is
not required."
The foregoing legend shall be removed from the certificates representing
any Registrable Shares at the request of the holder thereof, at such
time as they become registered under the Securities act or eligible for
resale pursuant to Rule 1 44(k) under the Securities Act.
6.2 Required Registrations.
(a) Within 90 days following written notice from Invacare, the
Company shall effect the registration of the Registrable Shares on
Form S- 1, Form S-2, Form S- 18 or Form S-3 (or any successor forms)
or other appropriate Registration Statement. Any demand registration
on Form S-1 or Form S-2 pursuant to this Section 6.2 must be
underwritten on a firm commitment basis (provided, however, that the
Company shall not be required to designate an underwriter in such
circumstances nor shall it be required to effect more than one such
registration).
(b) The Company shall pay the registration expenses for the demand
registration required hereunder, provided however, that any
underwriting discounts and selling commissions shall be borne by
Invacare.
(c) The Company shall as expeditiously as possible furnish to
Invacare such reasonable number of copies of the proxy, including a
preliminary proxy, in conformity with the requirements of the
Securities Act and such other documents as Invacare may reasonably
request in order to facilitate the public sale or other disposition
of the Registrable Shares owned by it.
6.3 Termination of Rights. The obligations of the Company to Invacare under
this Section 6 shall terminate at such time as Invacare becomes eligible
to sell Registrable Shares to the public pursuant to Rule 144 of the
Securities Act and owns less than 2 percent of the total number of
outstanding securities of the class to be sold.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 Necessary Acts. All parties to this Agreement shall perform any and all
acts as well as execute any and all documents that may be reasonably
necessary to fully carry out the provisions and intent of this
Agreement.
7.2 Brokerage or Finders' Fees. Invacare and Unique represent to and agree
with each other that no broker or finder has been involved in any manner
in the negotiation, execution or consummation of this Agreement. Unique
agrees to indemnify and save Invacare harmless from and against any and
all claims, liabilities or obligations with respect to brokerage or
finders' fees or commissions in connection with the transactions
contemplated by this Agreement asserted by any person on the basis of
any statement or representation alleged to have been made by Unique.
Invacare agrees to indemnify and save Unique harmless from and against
any all such claims, liabilities or obligations with respect to
brokerage or finders' fees or commissions in connection with the
transactions contemplated by this Agreement asserted by any person or
persons on the basis of any statement or representation alleged to have
been made by Invacare.
7.3 Access to Records. Throughout the period from the date hereof to the
Closing Date, Unique shall afford to Invacare and its accountants and
other representatives access, during normal business hours, to all of
its properties, books, contracts, commitments and records and shall
furnish Invacare during such period with all such documents, copies of
documents (certified if requested by Invacare) and information
concerning its affairs as Invacare may request.
7.4 Notices. Any and all notices, demands, requests or other communications
required or permitted by this Agreement or by law to be served on, given
to or delivered to any party hereto by any other party to this Agreement
shall be in writing and shall be deemed duly served, given, received and
delivered when personally delivered to the party, or in lieu of such
personal delivery, five days after being sent by registered or certified
mail,first-class postage prepaid, properly addressed to the respective
parties as follows:
If to Unique:
Xxxxxx X. French
Unique Mobility, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
If to Invacare:
Xxxxxx X. Xxxxxxx
Invacare Corporation
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000-0000
or to such other address as may be designated by any such addressees by a notice
given in conformity herewith.
7.5 Binding on Successors. This Agreement shall inure to the benefit of and
be binding on the parties hereto and on each of their respective heirs,
executors, administrators, personal representatives, successors and
assignees.
7.6 Severability. Should any provision or portion of this Agreement be held
unenforceable or invalid for any reason, the remaining provisions and
portions of this Agreement shall be unaffected by such holding, unless to
do so would alter substantially the intended effect of this Agreement or
cause a substantial hardship for any party hereto.
7.7 Choice of Law and Forum. This Agreement shall be construed and
governed by the laws, commercial usages and customs of the State of
Colorado, without giving effect to the principles of conflict of laws
thereof. In the event that any dispute, action, proceeding or litigation
arises between the parties based on or arising out of this Agreement, or
any agreement or instrument delivered pursuant to this Agreement, the
parties agree to submit themselves to and irrevocably consent to the
jurisdiction of the courts of the State of Colorado, and any federal
court located in the State of Colorado.
7.8 Headings. The headings of the articles and sections of this Agreement
have been inserted solely for convenience of reference and shall in no
way restrict or modify any of the terms or provisions hereof.
7.9 Sole and Only Agreement. This Agreement and the Proprietary
Information Exchange Agreement executed by the parties on December 16,
1993 constitute the sole and only agreement of the parties hereto
respecting the subject matter of this Agreement and correctly sets forth
the rights, duties and obligations of each party to the other parties in
relation thereto as of its date. Any other prior agreements, promises,
negotiations or representations concerning the subject matter of this
Agreement not expressly set forth in this Agreement shall have no force
or effect.
7.10 Amendment and Extension. This Agreement may not be amended or
extended except by an instrument in writing signed by each of the parties
hereto.
7.11 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same agreement.
7.12 Survival. All representations, warrants and covenants contained in this
Agreement or in any document delivered pursuant hereto shall survive the
Closing.
7.13 Expenses. Each party shall bear its own expenses in connection with the
negotiation, execution and performance of this Agreement.
7.14 Public Announcement. Neither party shall make any public
announcement regarding the transactions contemplated hereby without the
approval of the other party, except as may be required by law.
7.15. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Agreement" means this Stock Purchase Agreement.
"Common Stock" means the common stock, $.01 par value, of Unique.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and
regulations of the Commission issued under such Act, as they each
may, from time to time, be in effect.
"Market Value" of the Common Stock on a given day shall be the last
reported sale price of the Common Stock on the American Stock
Exchange.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of
securities of the Company (other than a registration statement on
Form S-8 or Form S-4, or their successors, or any other form for a
limited purpose, or any registration statement covering only
securities proposed to be issued in exchange for securities or assets
of another corporation).
"Registrable Shares" means (i) the shares of Common Stock
purchased by Invacare pursuant to this Agreement, and (ii) any other
shares of Common Stock of the Company issued in respect of such
shares (because of stock splits, stock dividends, reclassifications,
recapitalizations, or similar events).
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the
Commission issued under such Act. as they each may, from time to
time, be in effect
IN WITNESS WHEREOF, the parties hereto have each duly executed this
Agreement as of the day and year first written above.
Unique Mobility, Inc.
By:"Xxxxxxx X. Xxxxxx"
Xxxxxxx X. Xxxxxx
Executive Vice President
Invacare Corporation
By:"Xxxxxx X. Xxxxxxx"
Xxxxxx X. Xxxxxxx
