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EXHIBIT 99.9
FORM OF SUBSCRIPTION AGENT AGREEMENT
Computershare Trust Company of New York
00 Xxxx Xxxxxx -- 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Reorganization Department
Gentlemen:
The UniMark Group, Inc., a Texas corporation (the "Company") is making
an offer to issue (the "Rights Offering") to the holders of record of its
outstanding shares of Common Stock, par value $0.01 per share (the "Common
Stock"), at the close of business on May 22, 2001 (the "Record Date"), the right
to subscribe for and purchase (each a "Right") shares of Common Stock (the
"Additional Common Stock") at a purchase price of $.73 per share of Additional
Common Stock (the "Subscription Price"), payable by uncertified or certified
check, bank draft (cashier's check) or wire transfer of immediately available
funds, upon the terms and conditions set forth herein. The term "Subscribed"
shall mean submitted for purchase from the Company by a shareholder in
accordance with the terms of the Rights Offering, and the term "Subscription"
shall mean any such submission. The Rights Offering will expire at 5:00 p.m. New
York City Time, on June __, 2001 (the "Expiration Time"), unless the Company
shall have extended the period of time for which the Rights Offering is open, in
which event the term "Expiration Time" shall mean the latest time and date at
which the Rights Offering, as so extended by the Company from time to time,
shall expire.
The Company has filed a Registration Statement (No. 333-) relating to
the Rights and Additional Common Stock (as amended from time to time, the
"Registration Statement") with the Securities and Exchange Commission under the
Securities Act of 1933, as amended. Said Registration Statement was declared
effective on June [ ], 2001. The terms of the Additional Common Stock are more
fully described in the Prospectus forming part of the Registration Statement as
it was declared effective. Copies of the Prospectus, the Instructions for Use of
The UniMark Group, Inc. Subscription Certificates (the "Instructions"), the
Notice of Guaranteed Delivery, the Letter to Shareholders, the Letter to
Brokers, the Letter to Clients of Nominee Holders, the Beneficial Owner Election
Form and the Nominee Holder Certification are annexed hereto as Exhibits 99.2
through 99.8, respectively. All terms used and not defined herein shall have the
same meaning as in the Prospectus. Promptly after the Record Date, the Company
will provide you, if necessary, with a list of holders of Common Stock as of the
Record (the "Record Shareholders List").
The Rights are evidenced by subscription certificates (individually a
"Subscription Certificate," and collectively, the "Subscription Certificates"),
a copy of the form of which is annexed hereto as Exhibit 99.1. The Subscription
Certificates entitle the holders to subscribe, upon payment of the Subscription
Price, for shares of Additional Common Stock at the rate of one (1) share for
each Right evidenced by a Subscription Certificate (the "Basic Subscription
Privilege"). Brokers, dealers or other nominees holding Common Stock on the
Record Date for more than one beneficial owner may (after making a proper
showing, such as delivery of a completed Nominee Holder Certification, to the
Subscription Agent) exercise the number of Rights to which all such beneficial
owners in the aggregate otherwise would have been entitled if they had been
direct record holders of such Common Stock on the Record Date. The Rights
Offering includes an over-subscription privilege entitling the holder of a
Subscription Certificate, if said holder fully exercises its Basic Subscription
Privilege, to Subscribe for and pay the Subscription Price for additional shares
of Additional Common Stock (the "Over-Subscription Privilege"). Reference is
made to the Prospectus under "The Rights Offering -- Basic Subscription
Privilege" and "-- Over-Subscription Privilege" for a complete description of
the Basic Subscription Privilege and the Over-Subscription Privilege.
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The Company hereby appoints you as Subscription Agent (the "Subscription Agent")
for the Rights Offering and agrees with you as follows:
1. As Subscription Agent, you are authorized and directed to:
(A) Issue the Subscription Certificates in accordance with this
Agreement in the names of the holders of the Common Stock of
record on the Record Date, keep such records as are necessary
for the purpose of recording such issuance, and furnish a copy
of such records to the Company. You shall indicate the address
of and the number of Rights issued to each such holder on the
face of the Subscription Certificate and affix such other
identifying information as you deem necessary to identify each
particular shareholder upon return of the executed
Subscription Certificates. The Subscription Certificates may
be signed on behalf of the Subscription Agent by the manual or
facsimile signature of a Vice President or Assistant Vice
President of the Subscription Agent, or by the manual
signature of any of its other authorized officers.
(B) Promptly after you receive the Record Shareholders List:
a) Mail or cause to be mailed, by first class mail, to
each holder of the Common Stock of record on the
Record Date, whose address of record is within the
United States, (i) a Subscription Certificate
evidencing the Rights to which such shareholder is
entitled under the Rights Offering, (ii) a copy of
the Prospectus, (iii) the Instructions, (iv) a Notice
of Guaranteed Delivery and (v) a Letter to
Shareholders;
b) Mail or cause to be mailed, by first class mail, to
the Company on behalf of each holder of the Common
Stock of record on the Record Date, whose address of
record is within Canada, (i) a Subscription
Certificate evidencing the Rights to which such
shareholder is entitled under the Rights Offering,
(ii) a copy of the Prospectus, (iii) the
Instructions, (iv) a Notice of Guaranteed Delivery,
and (v) a Letter to Shareholders; and
c) Mail or cause to be mailed, by air mail, to each
holder of the Common Stock of record on the Record
Date, whose address of record is outside the United
States and Canada, or is an A.P.O. or F.P.O. address
(i) a copy of the Prospectus, (ii) a Notice of
Guaranteed Delivery and (iii) a notice containing
contact information for the Subscription Agent. You
shall refrain from mailing Subscription Certificates
issuable to any holder on the Record Shareholders
List whose address of record is outside the United
States and Canada, or is an A.P.O. or F.P.O. address,
and hold such Subscription Certificates for the
account of such shareholder subject to such
shareholder making satisfactory arrangements with the
Subscription Agent for the exercise or other
disposition of the Rights evidenced thereby, and
follow the instructions of such shareholder for the
exercise, sale or other disposition of such Rights if
such instructions are received at or before 5:00
p.m., New York City Time, on June __, 2001.
(C) Mail or deliver a copy of the Prospectus with certificates for
shares of Additional Common Stock when such certificates are
issued to persons other than the registered holder of the
Subscription Certificate.
(D) Accept Subscriptions upon the due exercise (including payment
of the Subscription Price and delivery of any required
certification of nominee) on or prior to the Expiration Time
of Rights in accordance with the terms of the Subscription
Certificates, the Instructions and the Prospectus.
(E) Subject to the next sentence, accept Subscriptions from
shareholders whose Subscription Certificates are alleged to
have been lost, stolen or destroyed upon receipt by you of an
affidavit of theft, loss or destruction and a bond of
indemnity in form and substance satisfactory to you,
accompanied by payment of the Subscription Price for the total
number of shares of Additional Common Stock Subscribed. Upon
receipt of such affidavit and bond of indemnity and compliance
with any other applicable requirements, stop orders shall be
placed on said Subscription Certificates and you shall
withhold delivery of the shares of Additional Common Stock
Subscribed for until after the Subscription Certificates have
expired and it
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has been determined that the Rights evidenced by the Subscription Certificates
have not otherwise been purported to have been exercised or otherwise
surrendered.
(F) Accept Subscriptions, without further authorization or
direction from the Company, without procuring supporting legal
papers or other proof of authority to sign (including without
limitation proof of appointment of a fiduciary or other person
acting in a representative capacity), and without signatures
of co-fiduciaries, co-representatives or any other person:
(a) if the Subscription Certificate is registered in the
name of a fiduciary and is executed by and the
Additional Common Stock is to be issued in the name
of such fiduciary;
(b) if the Subscription Certificate is registered in the
name of joint tenants and is executed by one of the
joint tenants, provided the certificate representing
the Additional Common Stock is issued in the names
of, and is to be delivered to, such joint tenants;
(c) if the Subscription Certificate is registered in the
name of a corporation and is executed by a person in
a manner which appears or purports to be done in the
capacity of an officer, or agent thereof, provided
the Additional Common Stock is to be issued in the
name of such corporation; or
(d) if the Subscription Certificate is registered in the
name of an individual and is executed by a person
purporting to act as such individual's executor,
administrator or personal representative, provided
the Additional Common Stock is to be registered in
the name of the subscriber as executor or
administrator of the estate of the deceased
registered holder and there is no evidence indicating
the subscriber is not the duly authorized
representative that he purports to be.
(G) Accept Subscriptions not accompanied by Subscription
Certificates if submitted on behalf a holder of Subscription
Certificates by a firm having membership in the New York Stock
Exchange or another national securities exchange or by a
commercial bank or trust company having an office in the
United States together with the Notice of Guaranteed Delivery
and accompanied by proper payment for the total number of
shares of Additional Common Stock Subscribed for by such
holder; provided that such firm complies with the guaranteed
delivery procedures set forth in the Prospectus under the
heading "The Rights Offering -- Guaranteed Delivery
Procedures."
(H) Refer to the Company for specific instructions as to
acceptance or rejection of Subscriptions received after the
Expiration Time, Subscriptions not authorized to be accepted
pursuant to this Paragraph 1, and Subscriptions otherwise
failing to comply with the requirements of the Prospectus and
the terms and conditions of the Subscription Certificates.
(I) Upon acceptance of a Subscription:
(a) hold all monies received in a special account for the
benefit of the Company. Promptly following the
Expiration Time but after the determination as to the
identity of persons to receive and the number of
shares of Additional Common Stock to be issued
pursuant to the Over-Subscription Privilege, you
shall distribute to the Company the funds in such
account and issue certificates for shares of
Additional Common Stock issuable with respect to
Subscriptions which have been accepted.
(b) advise the Company daily by telecopy and confirm by
letter to the attention of Xxxxx X. Xxxxxxx (the
"Company Representative"), as to the total number of
shares of Additional Common Stock Subscribed for
pursuant to the Basic Subscription Privilege, the
total number of shares of Additional Common Stock
Subscribed for pursuant to the Over-Subscription
Privilege and the amount of funds received, with
cumulative totals for each; and, in addition, advise
the Company Representative, by telephone at (817)
491-2992, confirmed by telecopy, of the amount of
funds received identified in accordance with (a)
above, deposited, available or transferred in
accordance with (a) above, with cumulative totals;
and
(c) as promptly as possible but in any event on or before
3:30 p.m., New York City Time, on the first full
business day following the Expiration Time, advise
the Company representative in accordance with (b)
above of the number of shares of Additional Common
Stock Subscribed
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for pursuant to the Basic Subscription Privilege, the
number of shares of Additional Common Stock
Subscribed for pursuant to the Over-Subscription
Privilege, the number of Subscription guarantees
received and the number of shares of Additional
Common Stock unsubscribed for.
(J) Upon completion of the Rights Offering, you shall requisition
certificates from the Transfer Agent for the Common Stock for
shares of Additional Common Stock Subscribed for.
(K) If a shareholder exercised his Over-Subscription Privilege and
is allocated less than all of the additional shares of
Additional Common Stock for which he Subscribed, you shall
take such action as reasonably requested by the Company to
return the excess funds such shareholder paid for additional
shares of Additional Common Stock not allocated to him,
without interest or deduction.
2. You will follow your regular procedures to attempt to reconcile any
discrepancies between the number of shares of Additional Common Stock
that any Subscription Certificate may indicate are to be issued to a
shareholder and the number that the Record Shareholders List indicates
may be issued to such shareholder. In any instance where you cannot
reconcile such discrepancies by following such procedures, you will
consult with the Company for instructions as to the number of shares of
Additional Common Stock, if any, you are authorized to issue. In the
absence of such instructions, you are authorized not to issue any
shares of Additional Common Stock to such shareholder.
3. You will examine the Subscription Certificates received by you as
Subscription Agent to ascertain whether they appear to you to have been
completed and executed in accordance with the Prospectus and the
applicable Instructions. In the event you determine that any
Subscription Certificate does not appear to you to have been properly
completed or executed, or where the Subscription Certificates do not
appear to you to be in proper form for Subscription, or you identify
any other irregularity in connection with the Subscription appears to
you to exist, you will follow, where possible, your regular procedures
to attempt to cause such irregularity to be corrected. You are not
authorized to waive any irregularity in connection with the
Subscription, unless you shall have received from the Company the
Subscription Certificate which was delivered, duly dated and signed by
an authorized officer of the Company, indicating that any irregularity
in such Subscription Certificate has been cured or waived and that such
Subscription Certificate has been accepted by the Company. If any such
irregularity is neither corrected nor waived, you will return to the
subscribing shareholder (at your option by either first class mail
under a blanket surety bond or insurance protecting you and the Company
from losses or liabilities arising out of the non-receipt or
nondelivery of Subscription Certificates or by registered mail insured
separately for the value of such Subscription Certificates) to such
shareholder's address as set forth in the Subscription any Subscription
Certificates surrendered in connection therewith and any other
documents received with such Subscription Certificates, and a letter of
notice to be furnished by the Company explaining the reasons for the
return of the Subscription Certificates and other documents.
4. Each document received by you relating to your duties hereunder shall
be dated and time stamped when received.
5.
(A) For so long as this Agreement shall be in effect, the Company
will reserve for issuance and keep available free from
preemptive rights a sufficient number of shares of Additional
Common Stock to permit the exercise in full of all Rights
issued pursuant to the Rights Offering. Subject to the terms
and conditions of this Agreement, you will request the
Transfer Agent for the Common Stock to issue certificates
evidencing the appropriate number of shares of Additional
Common Stock as required from time to time in order to
effectuate the Subscriptions.
(B) The Company shall endeavor, and be solely responsible, to take
any and all action, including without limitation obtaining the
authorization, consent, lack of objection, registration or
approval of any governmental authority, or the taking of any
other action under the laws of the United States of America or
any political subdivision thereof, to insure that all shares
of Additional Common Stock issuable upon the exercise of the
Subscription Certificates at the time of delivery of the
certificates therefor (subject to payment of the Subscription
Price) will be duly and validly issued and fully paid and
nonassessable shares
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of Common Stock, free from all preemptive rights and taxes,
liens, charges and security interests created by or imposed
upon the Company with respect thereto.
(C) Except as set forth in the Prospectus, the Company shall from
time to time endeavor, and be solely responsible, to take all
action necessary or appropriate to obtain and keep effective
all registrations, permits, consents and approvals of the
Securities and Exchange Commission and any other governmental
agency or authority and make such filings under Federal and
state laws which may be necessary or appropriate in connection
with the issuance, sale, transfer and delivery of Subscription
Certificates or Additional Common Stock issued upon exercise
of Subscription Certificates.
6. If certificates representing shares of Additional Common Stock are to
be delivered by you to a person other than the person in whose name a
surrendered Subscription Certificate is registered, you will issue no
certificate for Additional Common Stock until the Subscription
Certificate so surrendered has been properly endorsed and the person
requesting such exchange has paid any transfer or other taxes or
governmental charges required by reason of the issuance of a
certificate for Additional Common Stock in a name other than that of
the registered holder of the Subscription Certificate surrendered, or
has established to your satisfaction that any such tax or charge either
has been paid or is not payable.
7. Should any issue arise regarding federal income tax reporting or
withholding, you will take such action as the Company instructs you in
writing.
8. The Company may terminate this Agreement at any time by so notifying
you in writing. You may terminate this Agreement upon 30 days' prior
notice to the Company. Upon any such termination, you shall be relieved
and discharged of any further responsibilities with respect to your
duties hereunder. Upon payment of all your outstanding fees and
expenses, you will forward to the Company or its designee promptly any
Subscription Certificate or other document relating to your duties
hereunder that you may receive after your appointment has so
terminated. Sections 9, 11, and 12 of this Agreement shall survive any
termination of this Agreement.
9. As agent for the Company hereunder you:
(A) shall have no duties or obligations other than those
specifically set forth herein or as may subsequently be agreed
to in writing by you and the Company;
(B) shall have no obligation to issue any shares of Additional
Common Stock unless the Company shall have provided a
sufficient number of certificates for such Additional Common
Stock;
(C) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, or
genuineness of any Subscription Certificates surrendered to
you hereunder or shares of Additional Common Stock issued in
exchange therefor, and will not be required to or be
responsible for and will make no representations as to, the
validity, sufficiency, value or genuineness of the Rights
Offering;
(D) shall not take any legal action hereunder without the prior
written approval of the Company; shall not be obligated to
take any legal action hereunder; if, however, you determine to
take any legal action hereunder, and where the taking of such
action might, in your judgment, subject or expose you to any
expense or liability you shall not be required to act unless
you shall have been furnished with an indemnity satisfactory
to you;
(E) may rely on and shall be fully authorized and protected in
acting in good faith or failing in good faith to act upon any
certificate, instrument, opinion, notice, letter, telegram,
telex, facsimile transmission or other document or security
delivered to you and believed by you to be genuine and to have
been signed by the proper party or parties;
(F) shall not be liable or responsible for any recital or
statement contained in the Prospectus or any other documents
relating thereto;
(G) shall not be liable or responsible for any failure on the part
of the Company to comply with any of its covenants and
obligations relating to the Rights Offering, including without
limitation obligations under applicable securities laws;
(H) may rely on and shall be fully authorized and protected in
acting or failing to act upon the written, telephonic or oral
instructions with respect to any matter relating to you acting
as Subscription Agent covered by this Agreement (or
supplementing or qualifying any such actions) of officers of
the Company;
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(I) subject to advance approval by the Company, may consult with
counsel satisfactory to you, and the advice of such counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered, or omitted by you
hereunder in good faith and in accordance with the advice of
such counsel;
(J) may perform any of your duties hereunder either directly or by
or through agents and you shall not be liable or responsible
for any misconduct or negligence on the part of any agent
appointed with reasonable care by you hereunder; and
(K) are not authorized, and shall have no obligation, to pay any
brokers, dealers, or soliciting fees to any person.
10. In the event any question or dispute arises with respect to the proper
interpretation of the Rights Offering or your duties hereunder or the
rights of the Company or of any shareholders surrendering Subscription
Certificates pursuant to the Rights Offering, you shall not be required
to act and shall not be held liable or responsible for your refusal to
act until the question or dispute has been judicially settled (and, if
appropriate, you may file a suit in interpleader or for a declaratory
judgment for such purpose) by final judgment rendered by a court of
competent jurisdiction, binding on all parties interested in the matter
which is no longer subject to review or appeal, or settled by a written
document in form and substance satisfactory to you and executed by the
Company and each such shareholder and party. In addition, you may
require for such purpose, but shall not be obligated to require, the
execution of such written settlement by all the shareholders and all
other parties that may have an interest in the settlement.
11. Any instructions given to you orally, as permitted by any provision of
this Agreement, shall be confirmed in writing by the Company as soon as
practicable. You shall not be liable or responsible and shall be fully
authorized and protected for acting, or failing to act, in accordance
with any oral instructions which do not conform with the written
confirmation received in accordance with this Section unless received
prior to such act or failure to act.
12. Whether or not any Subscription Certificates are surrendered to you,
for your services as Subscription Agent hereunder, the Company shall
pay to you compensation in accordance with Exhibit A attached hereto,
together with reimbursement for out-of-pocket expenses, including
reasonable fees and disbursements of counsel (subject to advance
approval by the Company) subject to the receipt of reasonably
satisfactory documentation thereof and in accordance with Exhibit A.
13. The Company covenants to indemnify and hold you and your officers,
directors, employees, agents, contractors, subsidiaries and affiliates
harmless from and against any loss, liability, damage or expense
(including without limitation any loss, liability, damage or expense
incurred for accepting Subscription Certificates tendered without a
signature guarantee, if required, and the fees and expenses of counsel,
subject to advance approval by the Company) incurred (a) without gross
negligence or bad faith or (b) as a result of your acting or failing to
act upon the Company's instructions, arising out of or in connection
with the Rights Offering, this Agreement or the administration of your
duties hereunder, including without limitation the costs and expenses
of defending and appealing against any action, proceeding, suit or
claim in the premises. In no case shall the Company be liable under
this indemnity with respect to any action, proceeding, suit or claim
against you unless the Company shall be notified by you, by letter or
by telex or facsimile transmission confirmed by letter, of the written
assertion of any action, proceeding, suit or claim made or commenced
against you promptly after you shall have been served with the summons
or other first legal process or have received the first written
assertion giving information as to the nature and basis of the action,
proceeding, suit or claim, but failure so to notify the Company shall
not release the Company of any liability which it may otherwise have on
account of this Agreement. The Company shall be entitled to participate
at its own expense in the defense of any such action, proceeding, suit
or claim. You agree not to settle any claim or litigation in connection
with any such claim or liability with respect to which you may seek
indemnification from the Company without the prior written consent of
the Company.
14. If any provision of this Agreement shall be held illegal, invalid, or
unenforceable by any court, this Agreement shall be construed and
enforced as if such provision had not been contained herein and shall
be deemed an Agreement among us to the full extent permitted by
applicable law.
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15. The Company represents and warrants that (a) it is duly incorporated,
validly existing and in good standing under the laws of its
jurisdiction of incorporation, (b) the making and consummation of the
Rights Offering and the execution, delivery and performance of all
transactions contemplated thereby (including without limitation this
Agreement) have been duly authorized by all necessary corporate action
and will not result in a breach of or constitute a default under the
certificate of incorporation or bylaws of the Company or any indenture,
agreement or instrument to which it is a party or is bound, (c) this
Agreement has been duly executed and delivered by the Company and
constitutes the legal, valid, binding and enforceable obligation of it,
(d) the Rights Offering will comply in all material respects with all
applicable requirements of law and (e) to the best of its knowledge,
there is no litigation pending or threatened as of the date hereof in
connection with the Rights Offering.
16. In the event that any claim of inconsistency between this Agreement and
the terms of the Rights Offering arise, as they may from time to time
be amended, the terms of the Rights Offering shall control, except with
respect to the duties, liabilities and rights, including compensation
and indemnification of you as Subscription Agent, which shall be
controlled by the terms of this Agreement.
17. Set forth in Exhibit B hereto is a list of the names and specimen
signatures of the persons authorized to act for the Company under this
Agreement. The Secretary of the Company shall, from time to time,
certify to you the names and signatures of any other persons authorized
to act for the Company under this Agreement.
18. Except as expressly set forth elsewhere in this Agreement, all notices,
instructions and communications under this Agreement shall be in
writing, shall be effective upon receipt and shall be addressed, if to
the Company, to its address set forth beneath its signature to this
Agreement, or, if to the Subscription Agent, to Computershare Trust
Company of New York, 00 Xxxx Xxxxxx, 00(xx) Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Reorganization Department, or to such other address
as a party hereto shall notify the other parties.
19. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to conflict of
laws, rules or principles, and shall inure to the benefit of and be
binding upon the successors and assigns of the parties hereto; provided
that this Agreement may not be assigned by any party without the prior
written consent of all other parties.
20. No provision of this Agreement may be amended, modified or waived,
except in a written document signed by both parties.
Please acknowledge receipt of this letter and confirm your agreement
concerning your appointment as Subscription Agent, and the arrangements herein
provided, by signing and returning the enclosed copy hereof, whereupon this
Agreement and your acceptance of the terms and conditions herein provided shall
constitute a binding Agreement between us.
Very truly yours,
THE UNIMARK GROUP, INC.
By:
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Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
Address for notices:
The UniMark Group, Inc.
000 XxXxxxx Xxxx
Xxxxxxxxxxx, Xxxxx 00000
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ACCEPTED AS OF THE DATE ABOVE FIRST WRITTEN:
COMPUTERSHARE TRUST COMPANY OF NEW YORK,
AS SUBSCRIPTION AGENT
By:
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Name:
Title:
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