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EXHIBIT 7A
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made and entered
into as of the 18th day of February, 1998 by and between Xxxx Xxxxx (the
"Seller") and Asesoria Xxxxx Xxxxx, S.C., a Mexican entity ("Buyer").
W I T N E S S E T H
1. Seller is the owner of at least 500,000 shares of the issued and
outstanding shares of common stock, $.01 par value per share (the "SHARES") of
The UniMark Group, Inc., a Texas corporation (the "CORPORATION").
2. This Agreement provides for the transfer, conveyance and assignment
by the Sellers to the Buyer, in exchange for the consideration hereinafter set
forth, of the Shares.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. SALE AND PURCHASE OF STOCK
Subject to the terms and conditions herein stated, the Seller agrees to
sell, assign, transfer and deliver to the Buyer on the Closing Date, and the
Buyer agrees to purchase from Seller on the Closing Date, the Shares. For the
purchase price hereinafter set forth, and on the terms and subject to the
conditions set forth in this Agreement, Seller will, at the Closing (as
hereinafter defined), sell, assign, convey, transfer and deliver to Buyer, free
and clear of all liens and encumbrances of every kind and description and Buyer
will purchase from Seller, the Shares.
2. PURCHASE PRICE OF STOCK
In consideration of the sale by Seller of the Shares, and in full and
complete payment therefor, Buyers agrees, subject to the terms and conditions
contained herein, to pay Seller as follows:
(a) $2,000,000.00 in cash; and
(b) $500,000.00 by Buyers' execution and delivery to
Seller of a promissory note in substantially the form of
Exhibit "A" attached hereto (the "Note"). The Note will (a)
bear interest at nine percent (9%) per annum compounded
annually and (b) be secured by the Shares pursuant to the
terms of a Pledge Agreement, in substantially the form of
Exhibit "B" attached hereto (the "Pledge Agreement"). In
addition each of the of the partners of Buyer will personally
guarantee payment of the Note.
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3. ESCROW
Simultaneous with the execution of this Agreement:
(a) Buyer shall wire transfer $2,000,000.00 to the Trust
Account of Jordaan & Xxxxxxxxxx, PLLC at NationsBank, NA, and
deliver executed originals of the Note and Pledge Agreement to
Jordaan & Xxxxxxxxxx, PLLC; and
(b) Seller shall deliver to Jordaan & Xxxxxxxxxx, PLLC the
certificates representing the Shares, duly endorsed in blank
by the Seller. Seller agrees to cure any deficiencies with
respect to the endorsement of the certificates representing
the Shares owned by Seller or with respect to the stock power
and rights accompanying any such certificates.
4. CLOSING
The sale referred to in Section 1.1 shall take place at 9 a.m. at the
offices of Jordaan & Xxxxxxxxxx, PLLC on February 18, 1998, or at such other
time and date as the parties hereto shall by written instrument designate. At
the Closing, Jordaan & Xxxxxxxxxx, PLLC will:
(A) release $2,000,000 in cash to Seller;
(B) deliver the Note to Seller;
(C) Deliver and the Pledge Agreement to the Seller; and
(D) Release the Shares to Buyer.
At the Closing, the parties hereto will execute and deliver such documents as
may be necessary to vest complete and indefeasible title to the Shares in Buyer.
Buyer and Seller shall execute and deliver such other documents and instruments
and take such further action as may be necessary or appropriate to consummate
the transactions contemplated by this Agreement.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
Seller hereby represents, warrants and covenants with Buyer as follows:
Section 5.1 Ownership of Shares. Seller is the lawful owner of the Shares,
free and clear of all hypothecs, liens, encumbrances restrictions and claims of
every kind except restrictions imposed by federal and state securities laws;
Seller has full legal right, power and authority to enter into this Agreement
and to sell, assign, transfer and convey the Shares pursuant to this Agreement;
and the delivery to the Buyer of the Shares pursuant to the provisions of this
Agreement will transfer to the
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Buyer valid title thereto, free and clear of all hypothecs, liens, encumbrances,
restrictions and claims of every kind, except restrictions imposed by federal
and state securities laws.
Section 5.2 Validity of Transaction. This Agreement is a valid and legally
binding obligation, enforceable in accordance with its terms, except as limited
by bankruptcy, insolvency and similar laws affecting creditors generally. When
sold, assigned, transferred and conveyed to the Buyer pursuant to this
Agreement, the Shares will be duly authorized, validly issued, fully paid,
nonassessable.
6. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
Section 6.1 Purchase for Investment. Buyer will acquire the Shares for its
own account for investment and not with a view toward any resale or distribution
thereof.
Section 6.2 Validity of Transaction. This Agreement is a valid and legally
binding obligation, enforceable in accordance with its terms, except as limited
by bankruptcy, insolvency and similar laws affecting creditors generally.
7. EXPENSES
Each party shall bear its own costs and expenses, including fees and
expenses of counsel, incurred in connection with the transactions contemplated
by this Agreement.
8. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with the laws
of the State of Texas.
9. PUBLIC ANNOUNCEMENTS
Neither party will make any public announcement or otherwise disclose the
existence or terms of this Agreement without the prior written consent of the
other party.
10. SEVERABILITY
The provisions of this Agreement shall be deemed independent and severable
and the invalidity or partial invalidity or unenforceability of any one
provision shall not affect the validity or enforceability of any other
provision.
11. ADDITIONAL INSTRUMENTS
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Sellers and Buyer shall each execute, acknowledge and deliver to the other
any further instruments or documents that may be reasonably required to give
full force and effect to the provisions of this Agreement and in order to vest
title to the Shares in Buyer.
12. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
when executed and delivered shall be an original, but all counterparts shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective authorized officers, as of the date first above written.
SELLER:
/s/ Xxxx Xxxxx
------------------------------------
Xxxx Xxxxx
BUYER:
Asesoria Xxxxx Xxxxx, S.C.
By: /s/ Xxxxxx Xxxxxxx Xxxxx
---------------------------------
Xxxxxx Xxxxxxx Xxxxx, an
Authorized Officer
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EXHIBIT A
Form of Promissory Note
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PROMISSORY NOTE
$500,000.00 Dallas, Texas February 18, 1998
FOR VALUE RECEIVED, the undersigned, Asesoria Xxxxx Xxxxx, S.C., a Mexican
entity ("Maker"), promises to pay to the order of Xxxx Xxxxx ("Payee"), the
principal sum of Five Hundered Thousand Dollars ($500,000.00), payable as
provided herein, plus accrued interest on the outstanding principal balance, at
a rate of nine percent (9%) per annum as herein specified.
The principal plus accrued interest thereon shall be due and payable by the
Maker to the Payee on the earlier of (a) February 18, 1999 or (b) any sale of
the Shares. Principal and accrued interest under this Note, or any portion
thereof, may be prepaid without penalty. All payments and prepayments shall be
applied first to accrued and unpaid interest, and the balance of any such
payments or prepayments shall be applied to outstanding principal in the order
of maturity.
Not withstanding anything to the contrary contained herein, no provisions
of this Note shall require the payment or permit the collection of interest in
excess of the maximum rate permitted by applicable law. If any interest in
excess of such maximum rate is herein provided for, or shall be adjudicated to
be so provided, in this Note or otherwise in connection with this transaction
giving rise to the execution hereof, the provisions of this paragraph shall
govern and prevail, and neither Maker nor the sureties, guarantors, successors
or assigns of the Maker shall be obligated to pay the excess amount of such
interest or any other excess sum paid for the use, forbearance or detention of
sums loaned pursuant hereto. If for any reason interest in excess of the maximum
rate of interest permitted by applicable law shall be deemed, charged, required
or permitted by a court of competent jurisdiction, any such excess shall be
applied as a payment and reduction of the principal of indebtedness evidenced by
this Note; and, if the principal amount hereof has been paid in full, any
remaining excess shall forthwith be paid to Maker.
This Note is secured by a pledge agreement dated February 18, 1998,
executed by the undersigned in favor of the holder hereto, covering 200,000
shares of Common Stock of The UniMark Group, Inc. (the "Collateral").
This Note is issued and delivered under and is subject to the terms and
provisions of that certain initial Stock Purchase Agreement (the "Purchase
Agreement") dated February 18, 1998, by and among maker and Payee.
Maker, and any endorser or guarantors of this Note and all other persons
who may become liable for all or any part of the obligations represented by this
Note, severally waive presentment for payment, protest, notice of protest and of
nonpayment, notice of intention to accelerate, and notice of acceleration.
In the event of default by Maker in the payment of any part of the
principal or interest on this Note when due and the continuance thereof for ten
(10) days following Maker's receipt of written notice of such default, the
entire unpaid balance of principal and accrued interest on this Note shall,
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at the option of the holder hereof, become immediately due and payable. Failure
by the holder to exercise any option upon one (1) default will not constitute a
waiver thereof or the waiver of the right to exercise such option in the event
of a subsequent default. If after default this Note is placed in the hands of an
attorney for collection or is collected through judicial proceedings, Maker
shall pay, in addition to the sums referred to above, a reasonable sum as
collection or attorneys' fees and all other costs incurred by the holder in
collection of the unpaid amounts due hereunder.
This note is made and is performable in Argyle, Xxxxxx County, Texas, and
Maker waives the right to be sued hereon elsewhere. This Note shall be governed
by and construed in accordance with the laws of the State of Texas and the
applicable laws of the United States of America.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the 18th
day of February, 1998.
MAKER:
Asesoria Xxxxx Xxxxx, S.C.
A Mexican entity
By: /s/ Xxxxxx Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxxxx Xxxxx
An Authorized Officer
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Payment of the preceding promissory note is personally guaranteed by the
undersigned.
/s/ Xxxxxx Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx Xxxxx Xxxxxxx Xxxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx Xxxxx /s/ Xxxxxx X. Fco. Xxxxxxxxx
--------------------------------- ---------------------------------
Xxxxxxx Xxxxxxx Xxxxx Xxxxxx J. Fco. Xxxxxxxxx
/s/ Xxxxxx Xxxxxxx Xxxxx /s/ Xxxxx Xxxxxxxxx Welsh
--------------------------------- ---------------------------------
Xxxxxx Xxxxxxx Xxxxx Xxxxx Xxxxxxxxx Welsh
/s/ Xxxxx Xxxxxxx Xxxxx /s/ Xxxxx Xxxxx Xxxxxxx
--------------------------------- ---------------------------------
Xxxxx Xxxxxxx Xxxxx Xxxxx Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx Xxxxxx /s/ Xxxxx Xxxxxxxxx Xxxxxx
--------------------------------- ---------------------------------
Xxxxx Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxx Xxxxxx
/s/ Xxxx Ma. Xxxxxxxx Xxxxxx
---------------------------------
Xxxx Ma. Xxxxxxxx Xxxxxx
/s/ Xxxxxxxxx Xxxxxxxx Brohez
---------------------------------
Xxxxxxxxx Xxxxxxxx Brohez
/s/ Xxxxx Xxxxxxxx Brohez
---------------------------------
Xxxxx Xxxxxxxx Brohez
/s/ Xxxxxxxx Xxxxxxx Xxxxx
---------------------------------
Xxxxxxxx Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxxxxxxx Xxxxxxxx Xxxxxxx
---------------------------------
Xxxxxxxxx Xxxxxxxx Tarrago
/s/ Xx. Xxxxx Xxxxxx Xxxxxxxx
---------------------------------
Xx. Xxxxx Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxx Xxxxxxxxxx
---------------------------------
Xxxxx Xxxxxxx Xxxxxxxxxx
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EXHIBIT B
Form of Pledge Agreement
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PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement"), dated as of February 18,
1998, between Asesoria Xxxxx Xxxxx, S.C, a Mexican partnership (the "Pledgor"),
and Xxxx Xxxxx (the "Secured Party").
W I T N E S S E T H:
WHEREAS, the Pledgor has entered into that certain Stock Purchase
Agreement dated as of February 18, 1998 (the "Purchase Agreement" certain
capitalized terms used herein which are defined in the Purchase Agreement shall
have the same meanings when used herein, unless otherwise defined herein) with
the Secured Party, pursuant to which, among other things, the Pledgor has agreed
to purchase and the Secured Party has agreed to sell to the Pledgor the Shares
and Pledgor has agreed to execute and deliver the Note; and
WHEREAS, under the terms of the Purchase Agreement, that the Pledgor
has agreed to execute and deliver this Security Agreement and grant the security
interests contemplated hereby; and
WHEREAS, this Agreement, the Purchase Agreement, and the Note are
hereinafter sometimes referred to as the "Loan Documents".
NOW, THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged by it, and in order to induce the Secured party to
sell the Shares, Pledgor agrees with the Secured Party, as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Collateral" is defined in Section 2.1.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from stock splits, reclassifications, warrants,
options, non-cash dividends and other distributions (whether similar or
dissimilar to the foregoing) on or with respect to any Pledged Shares or other
shares of capital stock constituting Collateral, but shall not mean Dividends.
"Dividends" means cash dividends and cash distributions with respect to
any Pledged Shares made out of capital surplus.
"Initial Pledged Shares" means the 200,000 shares of Common Stock of
UniMark.
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"Pledged Property" means all Pledged Shares, and all other pledged
shares of capital stock, all other securities, all assignments of any amounts
due or to become due, all other instruments which are now being delivered by the
Pledgor to the Secured Party or may from time to time hereafter be delivered by
the Pledge or to the Secured Party for the purpose of pledge under this
Agreement or any other Loan Document, and all proceeds of any of the foregoing.
"Pledged Shares" means the Initial Pledged Shares and all other shares
of capital stock of UniMark, if any, which are delivered by the Secured Party as
Pledged Property hereunder.
"Pledgor" is defined in the preamble.
"Purchase Agreement" is defined in the first recital.
"Secured Obligations" is defined in Section 2.2.
"U.C.C." means the Uniform Commercial Code as in effect in the State of
Texas.
"UniMark" means The UniMark group, Inc., a Texas corporation.
SECTION 1.2 Purchase Agreement Definitions. Etc. Unless otherwise
defined herein or the context otherwise requires, terms used in this Agreement,
including its preamble and recitals, have the meanings provided in the Purchase
Agreement. References to the masculine gender shall include the feminine and
neuter genders unless the context otherwise requires.
SECTION 1.3 U.C.C. Definitions. Unless otherwise defined herein or
the context otherwise requires, terms for which meanings are provided in the
U.C.C. are used in this Agreement, including its preamble and recitals, with
such meanings.
ARTICLE 2
PLEDGE
SECTION 2.1 Grant of Security Interest. Pledgor hereby pledges,
assigns, charges, mortgages, delivers and transfers to the Secured Party, and
hereby grants to the Secured Party, a continuing security interest in, all of
the following property (the "Collateral"):
(a) the Initial Pledged Shares;
(b) all Pledged Shares issued from time to time;
(c) all other Pledged Property, whether now or hereafter delivered
to the Secured Party in connection with this Agreement;
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(d) all Dividends, Distributions, interest and other payments and
rights with respect to any Pledged Property; and
(e) all proceeds of any of the foregoing.
SECTION 2.2 Security for Secured Obligations. This Agreement
secures the payment in full of the Note, whether for principal, interest, costs,
fees, expenses or otherwise, and all obligations now or hereafter existing
(collectively, the "Secured Obligations").
SECTION 2.3 Delivery of Pledged Property; Registration of Pledge,
Transfer, etc. All certificates and Instruments representing or evidencing any
Collateral, including all Pledged Shares, shall be delivered to and held by or
on behalf of the Secured Party pursuant hereto, shall be in suitable form for
transfer by delivery, and shall be accompanied by all necessary Instruments of
transfer or assignment, duly executed in blank.
SECTION 2.4 Continuing Security Interest; Transfer of Note. This
Agreement shall
(a) create a continuing security interest in the Collateral;
(b) remain in full force and effect until payment in full of all
Secured Obligations;
(c) be binding upon Pledgor, its successors and assigns; provided
that Pledgor may not assign any of its rights or obligations hereunder
without the prior written consent of the Secured Party; and
(d) inure to the benefit of the Secured Party and his heirs and
legal representatives.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Warranties, etc. Pledgor represents and warrants unto
the Secured Party that as at the date of each pledge hereunder (including each
pledge of Pledged Shares) by Pledgor to the Secured Party of any Collateral,
(a) Pledgor has all requisite power and authority, and has taken all
necessary corporate action, to execute and deliver and perform its
obligations under this Pledge Agreement and to pledge the Collateral
hereunder.
(b) Pledgor will be the legal and beneficial owner of, and will have
good and marketable title to (and will have full right and authority to
pledge and assign) all Collateral, free and clear of all Liens or other
charges or encumbrances, except any Lien or security interest granted
pursuant hereto in favor of the Secured Party.
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(c) The delivery of the Collateral (including the delivery of the
Initial Pledged Shares) to the Secured Party will be effective to
create a valid, perfected, first priority security interest in such
Collateral and all proceeds thereof, securing the Secured Obligations,
and no filing or other action will be necessary to perfect or protect
such security interest.
(d) In the case of any Pledged Shares constituting Collateral, all of
such Pledged Shares will be duly authorized and validly issued, fully
paid, and non-assessable.
ARTICLE 4
COVENANTS
SECTION 4.1 Protect Collateral; Further Assurances. etc. Pledgor
will not sell, assign, transfer, pledge or encumber in any other manner the
Collateral (except in favor of the Secured Party hereunder). Pledgor will
warrant and will use its best efforts to defend the right and title herein
granted unto the Secured Party in and to the Collateral (and all right, title
and interest represented by the Collateral) against the claims and demands of
all Persons whomsoever. Pledgor agrees that at any time, and from time to time,
at the expense of Pledgor, Pledgor will promptly execute and deliver all further
Instruments, and take all further action, that may be necessary or desirable, or
that the Secured Party may reasonably request, in order to perfect and protect
any security interest granted or purported to be granted hereby or to enable the
Secured Party to exercise and enforce its rights and remedies hereunder with
respect to any Collateral.
SECTION 4.2 Stock Powers, etc. Pledgor agrees that all Pledged
Shares (and all other shares of capital stock constituting Collateral) delivered
by Pledgor pursuant to this Agreement will be accompanied by duly executed
undated blank stock powers, or other equivalent Instruments of transfer
acceptable to the Secured Party. Pledgor will, from time to time upon the
request of the Secured Party, promptly deliver to the Secured Party such stock
powers, Instruments and similar documents, satisfactory in form and substance to
the Secured Party, with respect to the Collateral as the Secured Party may
reasonably request and will, from time to time upon the request of the Secured
Party after the occurrence of any Default, promptly transfer any Pledged Shares
or other shares of Stock constituting Collateral into the name of the Secured
Party or any nominee designated by the Secured Party.
SECTION 4.3 Continuous Pledge. Pledgor will, at all times, keep
pledged to the Secured Party pursuant hereto all Pledged Shares and all other
shares of Stock constituting Collateral, all Dividends and Distributions with
respect thereto, and all other Collateral and other securities, instruments,
proceeds and rights from time to time received by or distributable to Pledgor in
respect of any Collateral.
SECTION 4.4 Voting Rights; Dividends, etc. Pledgor agrees to
deliver all Distributions at any time received by it to the Secured Party to be
held as Collateral hereunder and, in addition, to deliver (properly endorsed
where required hereby or requested by the Secured Party) to the Secured Party:
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(a) after any Default shall have occurred and be continuing or if any
Default shall occur as a result thereof, promptly upon receipt thereof
by Pledgor and without any request therefor by the Secured Party, all
Dividends, all other cash payments and all proceeds of the Collateral,
all of which shall be held by the Secured Party as additional
collateral; and
(b) after any Default shall have occurred and be continuing, promptly
upon request of the Secured Party, such proxies and other documents as
may be necessary to allow the Secured Party to exercise the voting
power with respect to any share of capital stock constituting
Collateral;
provided, however, that unless a Default shall have occurred and be continuing
or result therefrom, Pledgor shall be entitled to exercise, in its reasonable
judgment, but in a manner not inconsistent with the terms of the Purchase
Agreement or any other Loan Document (including this Agreement), the voting
power and all other incidental rights of ownership with respect to any Pledged
Shares or other shares of capital stock constituting Collateral (subject to
Pledgor's obligation to deliver to the Secured Party such Pledged Shares and
other shares in pledge hereunder).
All Dividends, Distributions, cash payments and proceeds which may at any time
and from time to time be held by Pledgor but which Pledgor is then obligated to
deliver to the Secured Party, shall, until delivery to the Secured Party, be
held by Pledgor separate and apart from its other property in trust for the
Secured Party. The Secured Party agrees that unless a Default shall have
occurred and be continuing, the Secured Party shall, upon the written request of
Pledgor, promptly deliver such proxies and other documents, if any, as shall be
reasonably requested by Pledgor which are necessary to allow Pledgor to exercise
voting power with respect to any share of capital stock (including Pledged
Shares) constituting Collateral; provided, however that no vote shall be cast,
or consent, waiver or ratification given, or action taken by Pledgor that would
impair any Collateral or be inconsistent with or violate any provision of the
Purchase Agreement or any other Loan Document (including this Agreement).
ARTICLE 5
REMEDIES
SECTION 5.1 Actions upon Event of Default. In addition to its
rights and remedies provided hereunder, whenever an Event of Default shall
occurred and be continuing, the Secured Party shall have all rights and remedies
of a secured party upon default under the U.C.C. or other applicable law. Any
notification required by law of any intended disposition by the Secured Party of
any of the Collateral shall be deemed reasonably and properly given if given at
least 15 days before such disposition. Without limitation of the above, the
secured Party may, whenever an Event of Default shall have occurred and be
continuing, without prior notice to Pledgor, take all or any of the following
actions:
(a) transfer all or any part of the Collateral into the name of the
Secured Party or its nominee, with or without disclosing that such
Collateral is subject to the Lien and security interest hereunder;
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(b) notify the parties obligated on any of the Collateral to make
payment to the Secured Party of any amount due or to become due
thereunder;
(c) enforce collection of any of the Collateral by suit or otherwise,
and surrender, release or exchange all or any part thereof, or
compromise or extend or renew for any period (whether or not longer
than the original period) any obligations of any nature of any party
with respect thereto;
(d) endorse any checks, drafts, or other writings in Pledgor's name
to allow collection of the Collateral;
(e) take control of any proceeds of the Collateral; and
(f) execute (in the name, place and stead of Pledgor) endorsements,
assignments, stock powers and other instruments of conveyance or
transfer with respect to all or any of the Collateral.
SECTION 5.2 Attorney-in-Fact. Pledgor hereby irrevocably appoints
the Secured Party its attorney-in-fact, with full authority in the place and
stead of Pledgor and in the name of Pledgor, the Secured Party, or otherwise,
from time to time in the Secured Party's discretion, to take any action and to
execute any Instrument which the Secured Party may deem necessary or advisable
to accomplish the purposes of this Agreement, including, upon the occurrence and
continuance of an Event of Default, all actions described in Section 5.1.
SECTION 5.3 Private Sales.
(a) Pledgor recognizes that the Secured Party may be unable to effect
a public sale of any or all the Pledged Shares by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act") and applicable state securities laws or otherwise,
and may be compelled to resort to one or more private sales thereof to
a restricted group of purchasers that will be obliged to agree, among
other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof.
Pledgor acknowledges and agrees that any such private sale may result
in prices and other terms less favorable than if such sale were a
public sale and, notwithstanding such circumstances, agrees that any
such private sale shall be deemed to have been made in a commercially
reasonable manner. The Secured Party shall be under no obligation to
delay sale of any of the Pledged Shares for the period of time
necessary to permit the Pledgor to register such securities for public
sale under the Securities Act, or under applicable state securities
laws, even if UniMark would agree to do so.
(b) Pledgor further agrees to use its best efforts to do or cause
to be done all such acts as may be necessary to make such sale or
sales of all or any portion of the Pledged Shares pursuant to this
Section 5.3 valid and binding and in compliance with any and all other
applicable Requirements of Law.
ARTICLE 6
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MISCELLANEOUS
SECTION 6.1 Loan Document. This Agreement is a Loan Document
executed pursuant to the Purchase Agreement and shall (unless otherwise
expressly indicated herein) be construed, administered and applied in accordance
with the terms and provisions thereof.
SECTION 6.2 Amendments, etc. No amendment or waiver of any
provision of this Agreement nor consent to any departure by Pledgor herefrom
shall in any event be effective unless the same shall be in writing, signed by
the Secured Party and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is given.
SECTION 6.3 Obligations Not Affected. The obligations of Pledgor
under this Agreement shall remain in full force and effect without regard to,
and shall not be impaired or affected by:
(a) any amendment or modification or addition or supplement to the
Purchase Agreement, any Note, any other Loan Document, any Instrument
delivered in connection therewith or any assignment or transfer
thereof;
(b) any exercise, non-exercise or waiver by the Secured Party of any
right, remedy, power or privilege under or in respect of, or any
release of any guaranty or collateral provided pursuant to, this
Agreement, the Purchase Agreement, or any Loan Document;
(c) any waiver, consent, extension, indulgence or other action or
inaction in respect of this Agreement, the Purchase Agreement or any
Loan Document or any assignment or transfer of any thereof; or
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like, death or
incompetency of the Pledgor or any other Person, whether or not Pledgor
shall have notice or knowledge of any of the foregoing.
SECTION 6.4 Protection of Collateral. The Secured Party may from
time to time, at its option, perform any act which Pledgor agrees hereunder to
perform and which Pledgor shall fail to perform after being requested in writing
to so perform (it being understood that no such request need be given after the
occurrence and during the continuance of a Default) and the Secured Party may
from time to time take any other action which the Secured Party reasonably deems
necessary for the maintenance, preservation or protection of any of the
Collateral or of its security interest therein.
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SECTION 6.5 Governing Law; Jurisdiction.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF TEXAS.
(b) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY TEXAS STATE OR FEDERAL COURT SITTING IN DALLAS, TEXAS IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR RELATED DOCUMENT (AND PLEDGOR AGREES THAT SUCH JURISDICTION
WILL BE EXCLUSIVE WITH RESPECT TO CLAIMS BROUGHT BY PLEDGOR AGAINST THE SECURED
PARTY), AND EACH HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH TEXAS STATE OR FEDERAL
COURT. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF ANY INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING.
(c) Pledgor hereby irrevocably designates, appoints and empowers
Xxxxxx Xxxxxxx Xxxxx, as its authorized agent to receive, for and on its behalf
and on behalf of its property, service of process in the State of Texas when and
as such legal actions or proceedings may be brought in the courts of the State
of Texas or of the United States of America sitting in Texas, and such service
of process shall be deemed complete upon the date of delivery thereof to such
agent whether or not such agent gives notice thereof to Pledgor, or upon the
earliest of any other date permitted by applicable law. It is understood that a
copy of said process served on such agent will as soon as practicable be
forwarded to Pledgor, at its address set forth below, but Pledgor's failure to
receive such copy shall not affect in any way the service of said process on
said agent as the agent of Pledgor. Pledgor irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of the copies thereof by certified mail, return
receipt requested, postage prepaid, to Pledgor at its address set forth below,
such service to become effective upon the earlier of (i) the date 10 calendar
days after such mailing or (ii) any earlier date permitted by applicable law.
Pledgor agrees that it will at all times continuously maintain an agent to
receive service of process in the State of Texas and in the event that, for any
reason, the agent named above or its successor shall no longer serve as its
agent to receive service of process in the State of Texas on its behalf, it
shall promptly appoint a successor so to serve and shall advise the Secured
Party.
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18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
ASESORIA XXXXX XXXXX, S.C
By: /s/ Xxxxxx Xxxxxxx Xxxxx
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Xxxxxx Xxxxxxx Xxxxx, An Authorized Officer
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
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