Page 80 of 87 Pages
EXHIBIT F
SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT (this "Shareholders Agreement") dated as of July 17,
1998, by and among M & M NOMINEE L.L.C., a Delaware limited liability company
("Purchaser"), Xxxxxx Xxxxxxx Xxxxx and Xxxxxxxx Xxxxxxx Xxxxx (collectively,
the "Executives"). Certain terms used herein are defined in Section 10.
W I T N E S S E T H
WHEREAS, contemporaneously herewith and conditioned hereon, Purchaser and
The UniMark Group, Inc. (the "Company") are entering into a Purchase Agreement
(the "Purchase Agreement") providing for the issuance by the Company and the
purchase by Purchaser of shares of common stock, par value $0.01 per share, of
the Company (the "Common Stock"); and
WHEREAS, the Executives and Purchaser desire to provide for certain rights
and restrictions with regard to their respective ownership of Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties agree as follows:
1. Restriction of Sale. (a) From the date hereof until the 18 month anniversary
hereof, the Executives shall not sell, transfer, assign, exchange, pledge,
encumber or otherwise dispose of (each, a "Transfer") any shares of Common Stock
that they now own or hereafter acquire or grant any option or right to purchase
such shares or any legal or beneficial interest therein, except in accordance
with the provisions of this Shareholders Agreement. Notwithstanding the
foregoing, nothing herein shall prevent either Executive from effecting a
transfer of Common Stock if he is required to do so pursuant to either the
Margin Agreement between Xxxxxx Xxxxxxx Xxxxx and Everen Securities, Inc. or the
Margin Agreement between Xxxxxxxx Xxxxxxx Xxxxx and First London Securities
Corporation.
(b) Notwithstanding the provisions of Section 1(a), the Executives may
Transfer shares of Common Stock as follows:
(i) each Executive may sell up to 25% of his shares of Common Stock in
a broadly distributed bona fide public offering of Common Stock pursuant to
the Securities Act of 1933, as amended or in regular broker transactions
pursuant to Rule 144A promulgated thereunder;
(ii) each Executive may Transfer his shares of Common Stock with the
prior written consent of Purchaser; and
(iii) each Executive may Transfer his shares to a member of his
immediate family;
provided, however, that in the case of clauses (ii) and (iii) the transferee in
such Transfer agrees in writing to be bound by all the terms of this
Shareholders Agreement (such transferee being herein referred to as the
"Permitted Transferee") applicable to the Executive as if the Permitted
Transferee originally had been a party hereto.
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(c) From the date hereof until the first anniversary of the date hereof,
Purchaser may not Transfer any shares of Common Stock except to an Affiliate of
Purchaser who agrees to be bound by the provisions hereof as if such Affiliate
transferee were originally a party hereto. At any time before, on or after the
first anniversary hereof, Purchaser shall not transfer any shares of Common
Stock to an Affiliate without causing such Affiliate to agree in writing to be
bound by the provisions hereof as if such Affiliate were originally a party
hereto.
2. Buy - Sell Arrangement. (a) At any time after the first anniversary of the
date hereof, but only for so long as both a Governance Termination Event and a
Principal Termination Event have not occurred, if either group believes, in its
good faith judgment that a bona fide dispute exists between the Groups, then
such Group (the "Initiating Group"), by written notice (the "Notice") to the
other Group (the "Other Group"), may initiate a buy-sell option (the "Option")
subject to the terms and conditions set forth below.
(b) The Initiating Group may initiate the Option only if the holders of at
least 75% of its Specified Shares approve such initiation. All other actions
taken with respect to the Option by a Group shall require the approval of the
holders of at least a majority of its Specified Shares.
(c) The Notice shall specify a price per share (or other security) for all
of the Specified Shares owned by the Other Group. The Other Group shall have the
irrevocable Option to elect either (i) to sell (the "Sale Option") to the
Initiating Group (or its designee) all of the Specified Shares owned by the
Other Group at the date of receipt of the Notice (the "Receipt Date") at the
price per share (or other security) set forth in the Notice or (ii) to purchase
(the "Purchase Option") all of the Specified Shares owned by the Initiating
Group on the Receipt Date at the price per share (or other security) set forth
in the Notice. Such election, which shall be irrevocable, shall be made by
written notice from the Other Group to the Initiating Group within 15 days of
the Receipt Date, provided however if the Other Group fails to duly make an
election in this time period, it shall conclusively be deemed to have elected
the Sale Option.
(d) The closing (the "Closing") of the purchase and sale under the Sale
Option or the Purchase Option shall take place at the offices of the Company on
a date specified in writing on at least 5 business days' notice by the Group
purchasing the Specified Shares (the "Buying Group") to the Group selling its
Specified Shares (the "Selling Group"), but in any event within 45 days of the
Receipt Date (subject to adjournment if and to the extent necessary to obtain
any necessary governmental approvals or to satisfy any legal waiting periods).
The purchase price shall be payable by the Buying Group (or its designee) to the
Selling Group in U.S. dollars in cash or immediately available funds at the
Closing. At the Closing, the Selling Group shall transfer its Specified Shares
to the Buying Group (or its designee) and shall deliver such Specified Shares to
the Buying Group (or its designee), with appropriate instruments of transfer,
free and clear of any lien, claim or encumbrance. Pending the Closing, the
Specified Shares of the Selling Group shall be voted by the Buying Group, and
appropriate proxies shall be promptly delivered to effectuate this agreement.
(e) Each Group shall execute and deliver such instruments and agreements,
and shall take such actions, as may be reasonably requested by the other Group
to carry out the purposes of this Section 2.
3. Agreement Not to Compete. (a) Each of the Executives agrees that for so long
as he is employed by, or a director of, the Company or a subsidiary of the
Company, and for 18 months thereafter, he will not (i) engage in any
"Competitive Activity," as defined below, within the world (including, without
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limitation, anywhere in the United States of America) or (ii) directly or
indirectly solicit for employment, including, without limitation, recommending
to any subsequent employer the solicitation for employment of, any employee of
the Company.
(b) Each of the Executives represents and agrees that he has not and, for
so long as he is employed by or a director of the Company or a subsidiary of the
Company, and for three years thereafter, he will not, appropriate for his own
use, disclose to any third party, or authorize anyone else to disclose, unless
authorized by the Company, any secret, confidential, proprietary or financial
information concerning the operations, future plans, methods of doing business,
or financial condition of the Company or any subsidiary or Affiliate thereof, or
any customer lists, customer files or other information relating to the
customers of the Company, or any Subsidiary or affiliate thereof that he
obtained as a result of which his employment with the Company and which is not
otherwise publicly available (unless it became publicly available in violation
of this Section 3(c)).
(c) Should a court of competent jurisdiction determine that any provision
of this Section 3 is unenforceable, in period of time, geographical area, or
otherwise, the parties hereto agree that the provision shall be interpreted and
enforced to the maximum extent which such court deems enforceable.
4. Severability. Any term, provision, covenant or restriction contained in this
Shareholders Agreement held by a court or other governmental authority of
competent jurisdiction to be invalid, void or unenforceable shall be ineffective
to the extent of such invalidity, voidness or unenforceability, but neither the
remaining terms, provisions, covenants or restrictions contained in this
Shareholders Agreement nor the validity or enforceability thereof in any other
jurisdiction shall be affected or impaired thereby. Any term, provision,
covenant or restriction contained in this Shareholders Agreement that is so
found to be so broad as to be unenforceable shall be interpreted to be as broad
as is enforceable.
5. Successors; No Third Party Beneficiaries. The terms and conditions of this
Shareholders Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. Nothing in this
Shareholders Agreement, expressed or implied, is intended to confer upon any
party, other than the parties hereto, and their respective successors and
assigns, any rights, remedies, obligations, or liabilities under or by reason of
this Shareholders Agreement, except as expressly provided herein.
6. Notices. All notices or other communications which are required or permitted
hereunder shall be in writing and delivered personally, or sent by telecopier or
reputable overnight courier and delivered to the applicable address as follows:
If to Xxxxxx Xxxxxxx Xxxxx, to him at:
Industrias Citricolas de Montemorelos, S.A. de C.V.
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxx 0
Xxxxxxxx 00
Xxxxxxxxxxxx, X.X., Xxxxxx C.P 67500
Telecopier: (826) 3-44-17
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with a copy to:
Jakes Jordaan, Esq.
Jordaan & Xxxxxxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
If to Xxxxxxxx Xxxxxxx Xxxxx, to him at:
Operadora Agros, S.A. de C.V.
Rio Xxxx 17
Col. Cuauthemoc
06500 - Mexico, D.F.
Telecopier: 566-7026
with a copy to:
Jakes Jordaan, Esq.
Jordaan & Xxxxxxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
If to Purchaser, to:
M & M Nominee L.L.C.
c/o Soros Fund Management
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
Telecopier: (000) 000-0000
with a copy to:
Promecap, S.C.
Bosque de Alisos Xx. 00X, 0xx xxxx
Xxxxxxx Xxxxxxx xx las Xxxxx
X.X. 00000 Xxxxxx, X.X.
Xxxxxx
Attention: Xxxxxxxx Xxxxxx Peon
Telecopier: 000-000-000-0000
with a copy to:
Xxxxxx Xxxxx, Esq.
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
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7. Specific Performance. The parties hereto agree that if for any reason
Purchaser or the Company shall have failed to perform its obligations under this
Shareholders Agreement, then either party hereto seeking to enforce this
Shareholders Agreement against such non-performing party shall be entitled to
specific performance and injunctive and other equitable relief, and the parties
hereto further agree to waive any requirement for the securing or posting of any
bond in connection with the obtaining of any such injunctive or other equitable
relief. This provision is without prejudice to any other rights that either
party hereto may have against the other party hereto for any failure to perform
its obligations under this Shareholders Agreement.
8. Governing Law. This Shareholders Agreement shall be governed by the laws of
the State of Delaware, without giving effect to the conflict of laws principles
thereof. Each party hereby irrevocably and unconditionally consents to submit to
the exclusive jurisdiction of the courts of the State of Delaware and of the
United States of America located in Wilmington, Delaware, for any Litigation
(and agrees not to commence any Litigation except in any such court). Each party
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any Action in the courts of the State of Delaware or of the United
States of America located in Wilmington, Delaware, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any Action brought in any such court has been brought in an
inconvenient forum.
9. Waiver and Amendment. Any provision of this Shareholders Agreement may be
waived in writing at any time by the party that is entitled to the benefits of
such provision. This Shareholders Agreement may not be modified, amended,
altered or supplemented except upon the execution and delivery of a written
agreement executed by the Purchaser and the Executives.
10. Defined Terms. As used herein, the following terms shall be defined as
follows:
"Affiliate" shall mean, with respect to any Person, any other Person that
directly or indirectly controls, is controlled by, or is under common control
with such Person.
"Competitive Activity" shall mean engaging in any of the following
activities: (i) serving as a director of any Competitor; (ii) directly or
indirectly (x) controlling any Competitor or (y) owning any equity or debt
interests in any Competitor (other than equity or debt interests which are
publicly traded and do not exceed 2% of the particular class of interests then
outstanding) (it being understood that, if any such interests in any Competitor
are owned by an investment vehicle or other entity in which the Employee owns an
equity interest, a portion of the interests in such Competitor owned by such
entity shall be attributed to the Employee, such portion determined by applying
the percentage of the equity interest in such entity owned by the Employee to
the interests in such Competitor owned by such entity); (iii) directly or
indirectly soliciting, diverting, taking away, appropriating or otherwise
interfering with any of the customers or suppliers of the Company or any
Affiliate controlled by the Company; or (iv) employment by (including serving as
an officer of), or providing consulting services to, any Competitor.
"Competitor" shall mean any Person that is engaged in a business similar to
any of the businesses currently or hereafter conducted by the Company or its
subsidiaries (but not including businesses the Company enters into after the
Executive is no longer an employee or director of the Company or any of its
subsidiaries).
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"Control" (and the correlative term "controlling") shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of any Person, whether through the
ownership of equity interests, by contract or otherwise.
"Governance Termination Event" shall be deemed to have occurred when either
(i) the Purchase Agreement has been amended or Purchaser has waived compliance
therewith, or (ii) Purchaser's ownership of Common Stock has fallen, in either
event such that the Company is not obliged to observe the covenants set forth in
Section 4.1 and 4.10 of the Purchase Agreement.
"Group" shall mean the Purchaser Group or the Principal Group.
"Person" shall mean an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a governmental entity.
"Principal Group" shall mean the Executives and any Permitted Transferees
who own any Principal Shares.
"Principal Shares" shall mean the 927,801 shares of Common Stock owned by
the Executives as of the date hereof, including any securities issued in respect
thereof as a dividend or stock-split or in a reorganization, merger,
reclassification or otherwise, but excluding any shares of Common Stock
Transferred other than to a Permitted Transferee.
A "Principal Termination Event" shall be deemed to have occurred when
(i) the Principal Group Transfers (other than to Permitted Transferees) more
than 50% of the Principal Shares owned by the Principals as of the date hereof
(adjusted for any stock splits, stock dividends, recapitalizations and similar
transactions), or (ii) neither Executive is a senior executive or director of
the Company.
"Purchaser Group" shall mean Purchaser and any Affiliates of Purchaser who
own any Purchaser Shares.
"Purchaser Shares" shall mean the shares of Common Stock acquired pursuant
to the Purchase Agreement or the Option Agreement, dated as of the date hereof,
between Purchaser and the Company, including any securities issued in respect
thereof as a dividend or stock-split or in a reorganization, merger,
reclassification or otherwise, but excluding any shares Transferred by Purchaser
other than to Affiliates of Purchaser who agree to be bound by the terms hereof.
"Specified Shares" shall, at any time, mean with respect to (i) the
Purchaser Group, the Purchaser Shares then owned by the Purchaser Group, and
(ii) the Principal Group, the Principal Shares then owned by the Principal
Group.
"Subsidiary" shall mean, with respect to any Person, any other Person more
than 10% of whose outstanding capital stock or equity interests is owned
directly or indirectly by such Person.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Shareholders Agreement as of the date first written above.
PURCHASER:
M & M NOMINEE X.XX.
By:/s/ Xxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Manager
THE EXECUTIVES:
/s/ Xxxxxx Xxxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxxxx Xxxxx
/s/ Xxxxxxxx Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxxx Xxxxxxx Xxxxx
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The undersigned partnership agrees to be bound, as if it were an Executive,
by the provisions of the foregoing agreement with respect to the shares of the
Company that it owns.
XXXXX XXXXX Y ASOCIADOS
By:/s/ Xxxxxx Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx Xxxxx
Title: General Partner
The undersigned company agrees to be bound, as if it were an Executive, by
the provisions of the foregoing agreement with respect to the shares of the
Company that it owns.
AGROS S.A. DE CV SOCIEDAD DE
INVESATOR DE CAPITALES
By:/s/ Xxxxxxxx Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxx Xxxxx
Title: General Director
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