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EXHIBIT 99.2
PURCHASE AGREEMENT
BY AND BETWEEN
THE UNIMARK GROUP, INC.
AND
M & M NOMINEE L.L.C.
Dated as of March ___, 1999
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1. ISSUANCE AND SALE OF NEW SHARES................................................................................1
1.1. DEFINITIONS..............................................................................................1
1.2. ISSUANCE, PURCHASE AND SALE OF THE SHARES................................................................1
1.3. CLOSING..................................................................................................1
1.4. DELIVERIES AT CLOSING....................................................................................1
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................................................................2
2.1. ORGANIZATION AND QUALIFICATION...........................................................................2
2.2. CAPITALIZATION...........................................................................................2
2.3. DUE AUTHORIZATION........................................................................................2
2.4. NON-CONTRAVENTION; CONSENTS AND APPROVALS................................................................2
2.5. SEC REPORTS..............................................................................................3
2.6. UNDISCLOSED LIABILITIES..................................................................................4
2.7. CERTAIN CHANGES..........................................................................................4
2.8. BROKERS..................................................................................................4
2.9. ACCURACY OF INFORMATION..................................................................................4
2.10. OFFERING OF NEW SHARES..................................................................................4
3. REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER...............................................................5
3.1. ORGANIZATION AND QUALIFICATION...........................................................................5
3.2. DUE AUTHORIZATION........................................................................................5
3.3. ACQUISITION FOR INVESTMENT...............................................................................5
3.4. BROKERS..................................................................................................5
3.5. NON-CONTRAVENTION; CONSENTS AND APPROVALS................................................................5
3.6. ACCREDITED INVESTOR......................................................................................6
4. CERTAIN ADDITIONAL AGREEMENTS..................................................................................6
4.1. REGISTRATION RIGHTS AGREEMENT............................................................................6
4.2. OPTION AGREEMENTS........................................................................................6
4.3. NOTICE OF BREACH.........................................................................................6
5. INITIAL AGREEMENT..............................................................................................7
6. INDEMNIFICATION................................................................................................7
6.1. SURVIVAL.................................................................................................7
6.2. INDEMNIFICATION..........................................................................................7
6.3 PROCEDURES FOR CLAIMS....................................................................................8
6.4. CERTAIN PROVISIONS REGARDING INDEMNIFICATION.............................................................9
7. INTERPRETATION................................................................................................10
7.1. HEADINGS; OTHER INTERPRETATION..........................................................................10
8. MISCELLANEOUS.................................................................................................10
8.1. SEVERABILITY............................................................................................10
8.2. SPECIFIC ENFORCEMENT....................................................................................11
8.3. COUNTERPARTS............................................................................................11
8.4. NOTICES AND OTHER COMMUNICATIONS........................................................................11
8.5. AMENDMENTS; TERMINATION; WAIVERS........................................................................12
8.6. COOPERATION.............................................................................................13
8.7. SUCCESSORS AND ASSIGNS; PARTIES IN INTEREST.............................................................13
8.8. EXPENSES................................................................................................13
8.9. TRANSFER OF SHARES......................................................................................13
8.10. GOVERNING LAW; CONSENT TO JURISDICTION.................................................................13
8.11. PUBLICITY..............................................................................................14
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THIS PURCHASE AGREEMENT, dated as of March ___, 1999 (this "Agreement"), by
and between UNIMARK GROUP, INC., a Texas corporation (the "Company") and M & M
Nominee L.L.C., a Delaware limited liability company ("Purchaser").
WHEREAS, the Company and Purchaser are parties to a Purchase Agreement,
dated as of July 17, 1998 (the "Initial Agreement"), pursuant to which (among
other things) the Company sold to Purchaser and Purchaser bought from the
Company 3,305,500 shares of common stock, par value $0.01 per share, of the
Company (the "Common Stock");
WHEREAS, the Company desires to raise funds for capital expenditures and
other corporate purposes; and
WHEREAS, Purchaser desires to purchase from the Company, and the Company
desires to issue to Purchaser, an additional 2,000,000 newly issued shares of
Common Stock (the "New Shares") for a purchase price of U.S.$2.50 per share, or
an aggregate purchase price of U.S.$5 million in cash, and for other
consideration as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties agree as follows:
1. Issuance and Sale of New Shares.
1.1. Definitions. Capitalized terms used but not otherwise defined in this
Agreement shall have the respective meanings ascribed to them in the Initial
Agreement.
1.2. Issuance, Purchase and Sale of the Shares. Upon the terms set forth
herein and subject to the contemporaneous deliveries set forth in Section 1.4,
the Company is issuing to Purchaser, and Purchaser is buying from the Company,
the New Shares for a purchase price equal to U.S.$5 million.
1.3. Closing. The closing of the transactions contemplated hereby (the
"Closing") is taking place at the offices of Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx, New York, New York, contemporaneously herewith.
1.4. Deliveries at Closing. (a) Contemporaneously herewith, the Company is
delivering a certificate or certificates representing the New Shares.
(b) Contemporaneously herewith, Purchaser is delivering the Purchase
Price, payable in cash, in U.S. dollars, by wire transfer of immediately
available funds.
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2. Representations and Warranties of the Company.
The Company represents and warrants as of the date hereof as follows:
2.1. Organization and Qualification. Each of the Company and its
Subsidiaries is a corporation duly organized and existing in good standing under
the laws of the jurisdiction in which it is incorporated and has the power to
own its respective property and to carry on its respective business as now being
conducted. Each of the Company and its Subsidiaries is duly qualified as a
foreign corporation to do business and in good standing in every jurisdiction in
which the nature of the respective business conducted or property owned by it
makes such qualification necessary except where the failure so to qualify would
not, individually or in the aggregate, have or reasonably be expected to have a
Material Adverse Effect.
2.2. Capitalization. As of the date hereof and immediately prior to the
consummation of the transactions contemplated hereby, the authorized capital
stock of the Company consists of 20,000,000 shares of Common Stock, of which (i)
11,938,326 shares are validly issued and outstanding, (ii) no shares are issued
and held in treasury, and (iii) 2,915,190 shares are reserved for issuance upon
exercise of existing Company Options. No shares of Common Stock are held by any
Subsidiary. Each outstanding share of Common Stock is duly authorized, validly
issued, fully paid and nonassessable, and has not been issued in violation of
any preemptive or similar rights. The New Shares being delivered herewith have
been duly authorized, validly issued, fully paid and nonassessable, are being
delivered free and clear of all claims, liens, encumbrances and security
interests, and are eligible for NASDAQ NMS trading without further consents or
actions other than registration with the Commission thereof pursuant to the
Registration Rights Agreement.
2.3. Due Authorization. The execution and delivery of this Agreement and
the issuance and sale of the New Shares by the Company, and compliance by the
Company with all the provisions of the foregoing agreements applicable to it:
(i) are within the corporate power and authority of the Company; (ii) do not or
will not require any approval or consent of the stockholders of the Company,
other than approvals and consents which have been duly obtained; and (iii) have
been authorized by all requisite corporate proceedings on the part of the
Company. This Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding agreement of the Company, enforceable in
accordance with its terms.
2.4. Non-contravention; Consents and Approvals. None of (i) the execution
and delivery by the Company of this Agreement, (ii) the issuance of the New
Shares and (iii) the fulfillment of and compliance with the terms and provisions
hereof applicable to the Company, will:
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(a) conflict with, or result in a breach of any provision of, the
Articles of Incorporation or bylaws of the Company;
(b) violate, or conflict with, or result in a breach of any provision
of, or constitute a default (or an event which, with the giving of notice, the
passage of time or otherwise, would constitute a default) under, or entitle any
party (with the giving of notice, the passage of time or otherwise) to
terminate, accelerate, modify or call a default under, or result in the creation
of any lien, security interest, charge or encumbrance upon any of the properties
or assets of the Company under, any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, deed of trust, license, contract,
undertaking, agreement, lease or other instrument or obligation to which the
Company or any Subsidiary is a party, except in each case for matters (i)
previously disclosed in writing to Purchaser or a Purchaser Designee or (ii)
discussed at a meeting of the Company's Board of Directors at which a Purchaser
Designee was present;
(c) violate any Law applicable to the Company or any Subsidiary or any
of their respective properties or assets; or
(d) require any action or consent or approval of, or review by, or
registration or filing by the Company or any of its Affiliates with, any third
party (including, without limitation, securities authority or exchange) or any
Governmental Authority, other than registrations or other actions required under
federal and state securities laws as are contemplated by the Registration Rights
Agreement;
except in the case of (b), (c) and (d), for any of the foregoing that would not,
individually or in the aggregate, have or reasonably be expected to have a
Material Adverse Effect.
2.5. SEC Reports. Since the date of the Initial Agreement, the Company has
timely filed with the Commission all SEC Documents, except as (i) previously
disclosed in writing to Purchaser or a Purchaser Designee or (ii) discussed at a
meeting of the Company's Board of Directors at which a Purchaser Designee was
present. Such SEC Documents, including any financial statements or schedules
included therein, at the time filed (and, in the case of registration statements
and proxy statements, on the dates of effectiveness and the dates of mailing,
respectively) (a) did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, and (b) complied in all material respects with
the applicable requirements of the Exchange Act and the Securities Act, as the
case may be. The financial statements of the Company included in such SEC
Documents at the time filed (and, in the case of registration statements and
proxy statements, on the dates of effectiveness and the dates of mailing,
respectively) complied as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the
Commission with respect thereto, were prepared in accordance with
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U.S. generally accepted accounting principles applied on a consistent basis
during the periods involved (except as may be indicated in the notes thereto or,
in the case of unaudited statements, as permitted by Form 10-Q of the
Commission), and fairly present (subject, in the case of the unaudited interim
financial statements, to normal, recurring year-end audit adjustments consistent
with past practice), in all material respects, the consolidated financial
position of the Company and the Subsidiaries as at the dates thereof and the
consolidated results of their operations and cash flows for the periods then
ended. No Subsidiary is subject to the periodic reporting requirements of the
Exchange Act or required to file any form, report or other document with the
Commission, any stock exchange or any other comparable Governmental Authority
(domestic or foreign).
2.6. Undisclosed Liabilities. The Company and its Subsidiaries have no
liabilities, contingent or otherwise, not reflected in the Company's balance
sheet as of December 31, 1998 included in the SEC Documents or otherwise
referred to in the SEC Documents, other than any such liabilities incurred in
the ordinary course of business since December 31, 1998 or incurred in
connection herewith, except for liabilities (i) previously disclosed in writing
to Purchaser or a Purchaser Designee or (ii) discussed at a meeting of the
Company's Board of Directors at which a Purchaser Designee was present.
2.7. Certain Changes. Since December 31, 1998 the Company and its
Subsidiaries have operated their respective businesses only in the ordinary
course and no events have occurred which, individually or in the aggregate, have
or would reasonably be expected to have a Material Adverse Effect, other than
changes disclosed or referred to in the SEC Documents or changes (i) previously
disclosed in writing to Purchaser or a Purchaser Designee or (ii) discussed at a
meeting of the Company's Board of Directors at which a Purchaser Designee was
present.
2.8. Brokers. No agent, broker, investment banker or other Person is or
will be entitled to any broker's fee or any other commission or similar fee from
the Company or any Subsidiary in connection with any of the transactions
contemplated by this Agreement.
2.9. Accuracy of Information. None of the representations and warranties of
the Company contained herein or the information, documents or other materials
(other than projections) which have been furnished in writing by the Company or
any of its representatives to the Purchaser in connection with the transactions
contemplated by this Agreement contains any material misstatement of fact, or
omits any material fact required to be stated herein or therein or necessary to
make the statements herein and therein not misleading.
2.10. Offering of New Shares. Neither the Company nor any Person acting on
its behalf has offered any of the New Shares to any Persons in a manner that
could
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reasonably be expected to subject the offering, issuance or sale of any of the
New Shares to the registration requirements of Section 5 of the Securities Act.
3. Representations and Warranties of each Purchaser.
Purchaser represents and warrants as of the date hereof as follows:
3.1. Organization and Qualification. Purchaser is a limited liability
company duly organized and existing in good standing under the laws of Delaware
and has the power to own its respective property and to carry on its respective
business as now being conducted. Purchaser is duly qualified as a foreign
company to do business and in good standing in every jurisdiction in which the
nature of the respective business conducted or property owned by it makes such
qualification necessary, except where the failure to so qualify would not
prevent consummation of the transactions contemplated hereby or have a material
adverse effect on Purchaser's ability to perform its obligations hereunder.
3.2. Due Authorization. The execution and delivery of this Agreement and
compliance by Purchaser with all the provisions of this Agreement applicable to
it: (i) are within the power and authority of Purchaser; and (ii) have been
authorized by all requisite proceedings on the part of Purchaser. This Agreement
has been duly executed and delivered by Purchaser and constitutes a valid and
binding agreement of Purchaser, enforceable in accordance with its terms.
3.3. Acquisition for Investment. Purchaser is acquiring the New Shares for
its own account for the purpose of investment and not with a view to or for sale
in connection with any distribution thereof, and Purchaser has no present
intention or plan to effect any distribution thereof. Purchaser acknowledges
that the New Shares have not been registered under the Securities Act and may be
sold or disposed of in the absence of such registration only pursuant to an
exemption from such registration.
3.4. Brokers. No agent, broker, investment banker or other Person is or
will be entitled to any broker's fee or any other commission or similar fee from
Purchaser in connection with any of the transactions contemplated by this
Agreement.
3.5. Non-contravention; Consents and Approvals. None of (i) the execution
and delivery by Purchaser of this Agreement, and (ii) the fulfillment of and
compliance by Purchaser with the terms and provisions hereof applicable to
Purchaser, will:
(a) conflict with, or result in a breach of any provision of, the
Certificate of Formation or other organizational documents of Purchaser; or
(b) violate, or conflict with, or result in a breach of any provision
of, or constitute a default (or an event which, with the giving of notice, the
passage of time or otherwise, would constitute a default) under, or entitle any
party (with the giving of
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notice, the passage of time or otherwise) to terminate, accelerate, modify or
call a default under, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of Purchaser under,
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, contract, undertaking, agreement, lease or
other instrument or obligation to which Purchaser is a party, except in the case
of this clause (b), for any of the foregoing that would not, individually or in
the aggregate, have or reasonably be expected to have a material adverse effect
on Purchaser's ability to perform its obligations hereunder.
3.6. Accredited Investor. Purchaser is an "accredited investor" within the
meaning of Rule 501 of the Securities Act.
4. Certain Additional Agreements.
4.1. Registration Rights Agreement. In accordance with Section 5 of the
Registration Rights Agreement, the parties hereto agree that the definition of
"Registrable Securities" contained in Section 2 of Registration Rights Agreement
be, and hereby is, amended to delete therefrom the words "Option Shares" and
replace them with the words "shares of Common Stock acquired by the Investor or
any of its Affiliates after the date hereof,".
4.2. Option Agreements. In accordance with Section 18 of the First Option
Agreement and Section 18 of the Second Option Agreement, the parties hereto
agree that First Option and the Second Option be, and they hereby are
terminated, effective immediately.
4.3. Notice of Breach. As promptly as practicable, and in any event not
later than ten days after senior management of the Company becomes aware of any
breach by the Company of any provision of this Agreement, the Company shall
provide Purchaser with written notice specifying the nature of such breach and
any actions proposed to be taken by the Company to cure such breach.
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5. Initial Agreement. Nothing herein shall be interpreted as amending,
revoking or in any way limiting any of the representations, warranties,
covenants, indemnities or other terms of the Initial Agreement or, except as
specifically provided in Section 4.1 hereof, the Registration Rights Agreement.
If, after the date hereof, Purchaser sells shares of Common Stock, then, for the
purpose of determining under Article 4 of the Initial Agreement whether such
Common Stock is comprised of New Shares, Primary Shares or other shares of
Common Stock, such shares shall be deemed to be sold in the following order:
first, shares of Common Stock owned by Purchaser which are neither New Shares
nor Primary Shares; second, New Shares; and finally, Primary Shares.
6. Indemnification.
6.1. Survival. The representations and warranties made in this Agreement or
in documents delivered in connection herewith shall survive the Closing for 18
months from the date hereof (such 18-month period being the "Indemnification
Period") and on the 18 month anniversary of the date hereof shall expire,
together with any right to indemnification for breach thereof except to the
extent a Valid Claim Notice shall have been given with respect to such
representation or warranty prior to the expiration of the applicable
Indemnification Period in accordance with Section 6.3 by the Indemnitee to the
Indemnitor, in which case the representation or warranty alleged in the Valid
Claim Notice to have been breached shall survive, to the extent of the claim set
forth in the Valid Claim Notice only, until such claim is resolved.
Notwithstanding the preceding sentence, the representations and warranties
contained in Section 2.2 shall not expire and the corresponding Indemnification
Period shall be perpetual, without expiration. The covenants and agreements
contained herein (other than the covenant and agreement to indemnify against
breaches of representations and warranties, which shall expire as set forth in
the first and second sentences of this Section 6.1) shall survive the Closing
until the covenants and agreements are complied with in accordance with their
terms.
6.2. Indemnification. (a) Subject to the provisions of this Article 6, the
Company shall defend and indemnify Purchaser, its Affiliates, their directors
and officers and the Purchaser Designees and hold each of them harmless from and
against all Losses which are sustained, incurred or suffered by any of them (i)
by reason of the breach of any of the representations or warranties made by the
Company herein, (ii) by reason of the breach of any of the Company's covenants
and agreements contained herein, or (iii) for Losses in connection with any
Action arising out of the transactions contemplated hereby (other than Actions
arising out of a breach by Purchaser or its Affiliates of the this Agreement or
the documents delivered in connection herewith); provided, however, that
Purchaser, its Affiliates, their directors and officer and the Purchaser
Designees shall not be entitled to any recovery unless a claim for
indemnification is made in accordance with Section 6.3, so as to constitute a
Valid Claim Notice, and within the time period of survival set forth in Section
6.1.
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(b) Subject to the provisions of this Article 6, Purchaser shall defend
and indemnify the Company and its Affiliates and hold each of them harmless from
and against all Losses which are incurred or suffered by any of them (i) by
reason of the breach by Purchaser of any of the representations or warranties
made by it herein or in any document delivered in connection herewith, or (ii)
by reason of the breach of any of its covenants and agreements contained herein
or in any document delivered in connection herewith; provided, however, that the
Company and its Affiliates shall not be entitled to any recovery unless a claim
for indemnification is made in accordance with Section 6.3, so as to constitute
a Valid Claim Notice, and within the time period of survival set forth in
Section 6.1.
6.3 Procedures for Claims. (a) (i) In order for an Indemnitee to be
entitled to any remedy provided for under this Article 6 in respect of, arising
out of or involving a Third Party Claim, the Indemnitee must notify the
Indemnitor in writing of the Third Party Claim (a "Third Party Claim Notice")
promptly following receipt by such Indemnitee of written or oral notice of the
Third Party Claim, which notification, to be a valid Third Party Claim Notice (a
"Valid Third Party Claim Notice"), must be accompanied by a copy of the written
notice, if any, of the Third Party claimant to the Indemnitee asserting the
Third Party Claim, or, if such Third Party Claim shall not have been made in
writing, the written notice of Indemnitee certifying as to the receipt by
Indemnitee of the oral Third Party Claim, and, in each case, setting forth in
reasonable detail, the facts then known by Indemnitee with respect to such Third
Party Claim; provided, however, that the failure to provide such Notice promptly
(so long as a Valid Third Party Claim Notice is given before the expiration of
the Indemnification Period and any extensions thereof, as applicable) shall not
affect the obligations of the Indemnitor hereunder except to the extent the
Indemnitor is actually prejudiced thereby. The Indemnitee shall deliver to the
Indemnitor copies of all other notices and documents (including court papers)
received by the Indemnitee relating to the Third Party Claim.
(ii) The Indemnitor shall have the right to defend against any such
Third Party Claim (including the conduct of any proceedings or settlement
negotiations, provided that the Indemnitor shall not settle any Third Party
Claim without the Indemnitee's consent, which consent shall not be unreasonably
withheld or delayed) with counsel of the Indemnitor's own choosing. The
Indemnitee shall have the right to participate in the defense of any Third Party
Claim and to employ its own counsel (it being understood that the Indemnitor
shall control such defense), at the Indemnitee's own expense. Prior to the time
the Indemnitee is notified by the Indemnitor as to whether the Indemnitor will
assume the defense of a Third Party Claim, the Indemnitee shall take all actions
reasonably necessary to timely preserve the collective rights of the parties
with respect to such Third Party Claim, including responding timely to legal
process. If the Indemnitor shall decline to assume the defense of a Third Party
Claim (or shall fail to notify the Indemnitee of its election to defend such
Third Party Claim) within 30 days
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after the giving by the Indemnitee to the Indemnitor of a Valid Third Party
Claim Notice with respect to the Third Party Claim, the Indemnitee shall defend
against the Third Party Claim and the Indemnitor shall be liable to the
Indemnitee for all reasonable fees and expenses incurred by the Indemnitee in
the defense of the Third Party Claim, including the reasonable fees and expenses
of counsel employed by the Indemnitee, if and to the extent that the Indemnitor
is responsible to indemnify for such Third Party Claim. Regardless of which
party assumes the defense of a Third Party Claim, the parties agree to cooperate
with one another in connection therewith. Such cooperation shall include
providing records and information which are relevant to such Third Party Claim,
and which are not required by law to be kept confidential and making employees
and officers available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder and to act as a
witness or respond to legal process. Whether or not the Indemnitor assumes the
defense of a Third Party Claim, the Indemnitee shall not admit any liability
with respect to, or settle, compromise or discharge, such Third Party Claim
without the Indemnitor's prior written consent (which consent will not be
unreasonably withheld or delayed).
(b) In order for an Indemnitee to be entitled to any indemnification
provided for under this Article 6 in respect of a claim as to which a Third
Party Claim has not been asserted against such Indemnitee (an "Other Claim"),
the Indemnitee must promptly notify the Indemnitor in writing of such Other
Claim (the "Other Claim Notice"), which notification, to be a valid Other Claim
Notice (a "Valid Other Claim Notice"), must certify that the Indemnitee has in
good faith already sustained some (though not necessarily all) Losses, or has a
good faith basis to believe Losses may be sustained, with respect to such claim.
The failure by any Indemnitee to notify the Indemnitor promptly (so long as a
Valid Other Claim Notice is given before the expiration of the Indemnification
Period) shall not relieve the Indemnitor from any liability that it may have to
such Indemnitee under Section 6.2, except to the extent that the Indemnitor has
been actually prejudiced by such failure.
6.4. Certain Provisions Regarding Indemnification. (a) The indemnification
provided in this Article 6 shall be the sole and exclusive remedy for any
inaccuracy or breach of any representation or warranty made by the Company or
Purchaser in this Agreement.
(b) Upon making any payment to an Indemnitee for any indemnification
claim pursuant to this Article 6, the Indemnitor shall be subrogated, to the
extent of such payment, to any rights which the Indemnitee may have against any
other parties with respect to the subject matter underlying such indemnification
claim.
(c) The amount of any Losses shall be computed net of any insurance
proceeds received by the Indemnitee or its Affiliates in connection therewith.
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(d) The amount of any indemnification payment made by the Company to
Purchaser pursuant hereto shall be increased by dividing (x) the amount that
would be payable (but for this Section 6.4(d)), by (y) one minus the Ownership
Fraction. The "Ownership Fraction" means the number of Primary Shares and New
Shares held by Purchaser and its Affiliates at the time of such payment, divided
by the total number of shares of Common Stock outstanding at the time of such
payment.
(e) For purposes of this Article 6, Promecap, S.C. shall be deemed to
be an Affiliate of Purchaser (irrespective of whether or not Promecap, S.C. is
from time to time determined to be an Affiliate pursuant to the definition of
Affiliate contained in Section 7.1 of the Initial Agreement).
(f) Notwithstanding any provision of this Article 6 to the contrary,
(A) the Company shall not be obliged to make any payments in respect of
indemnification for a breach described in clause (i) of Section 6.2(a) until the
aggregate amount of payments that the Company is obliged to pay in respect of
such breaches and breaches described in clause (i) of Section 6.2(a) of the
Initial Agreement (without reference to this Section 6.4(f)) is at least
$250,000, at which point all payments that the Company is obliged to pay in
respect of such breaches shall be payable, and (B) the Company shall not be
obliged to make any payments in respect of indemnification for breaches of
representations and warranties described in clause (i) of Section 6.2(a) and
clause (i) of Section 6.2(a) of the Initial Agreement in excess of $21,500,000.
7. Interpretation.
7.1. Headings; Other Interpretation. The heading references herein and the
table of contents hereto are for convenience purposes only, do not constitute a
part of this Agreement and shall not be deemed to limit or affect any of the
provisions hereof. "Hereby," "hereof," "hereunder" and similar terms shall be
references to this Agreement. In this Agreement, unless the context otherwise
requires, words in the singular number or in the plural number shall each
include the singular number and the plural number. Unless the context otherwise
indicates, references to a Section or Article shall refer (respectively) to a
Section of or Article of this Agreement. The term "dollars" or "$" shall refer
to the currency of the United States.
8. Miscellaneous.
8.1. Severability. If any term, provision, covenant or restriction of this
Agreement or any exhibit hereto is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement and such exhibits shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
It is hereby stipulated and declared to be the
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intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable. Should a court of
competent jurisdiction determine that any provision hereof is unenforceable
because it is excessive in scope, the parties hereto agree that the provision
shall be interpreted and enforced to the maximum extent which such court deems
enforceable.
8.2. Specific Enforcement. Purchaser, on the one hand, and the Company, on
the other, acknowledge and agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction to
prevent breaches of the provisions of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they may be entitled at law or equity.
8.3. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each party and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
8.4. Notices and Other Communications. All notices, consents, requests,
instructions, approvals, financial statements, proxy statements, reports and
other communications provided for herein shall be in writing and shall be
delivered personally, by telecopy (and confirmed by telephone) or sent by
prepaid overnight courier service, to the applicable address set forth below.
If to the Company, to:
The UniMark Group, Inc.
The XxxXxxx Xxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Attention: President
Telecopier:
with a copy to:
Jakes Jordaan, Esq.
Jordaan & Xxxxxxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
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If to Purchaser, to:
M & M Nominee L.L.C.
c/x Xxxxx Fund Managment
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
or to such other address as any party may, from time to time, designate in a
written notice given in a like manner.
8.5. Amendments; Termination; Waivers. This Agreement may not be amended or
terminated except by written agreement of the Company and Purchaser. This
Agreement may not be waived, changed, modified, or discharged orally, but only
by an agreement in writing signed by the party or parties against whom
enforcement of any waiver, change, modification or discharge is sought.
Notwithstanding anything in this Agreement to the contrary, no provision of this
Section 8.5 may be waived, changed or modified.
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8.6. Cooperation. Purchaser and the Company agree to take, or cause to be
taken, all such further or other actions as shall reasonably be necessary to
make effective and consummate the transactions contemplated by this Agreement.
8.7. Successors and Assigns; Parties in Interest. This Agreement may be
assigned by Purchaser to any Affiliate of Purchaser who agrees in writing to be
bound by the provisions hereof. This Agreement may not be assigned by the
Company. All covenants and agreements contained herein shall bind and inure to
the benefit of the parties hereto and their respective successors and assigns.
Except as provided in the preceding sentences and as explicitly provided in
Article 6, nothing in this Agreement, express or implied, is intended to confer
upon any Person any rights or remedies under or by reason of this Agreement.
8.8. Expenses. The Company shall pay all costs and expenses of Purchaser
and its Affiliates (including fees and expenses of counsel and accountants) in
connection with the negotiation, execution and delivery of this Agreement and
all other documents in connection herewith, and the closing of the transactions
contemplated hereby, up to a maximum of $10,000, and shall pay costs and
expenses of Purchaser and its Affiliates (including fees and expenses of counsel
and accountants) of their enforcement of the foregoing.
8.9. Transfer of Shares. (a) Purchaser understands and agrees that the New
Shares have not been registered under the Securities Act or the securities laws
of any state and that they may be sold or otherwise disposed of only in one or
more transactions registered under the Securities Act and, where applicable,
such laws or transactions as to which an exemption from the registration
requirements of the Securities Act and, where applicable, such laws are
available. Purchaser acknowledges that, except as provided in the Registration
Rights Agreement, Purchaser has no right to require the Company to register the
New Shares. Purchaser understands and agrees that each certificate representing
the New Shares shall bear legends substantially in the form as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF
ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE
STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION TO THE REGISTRATION
REQUIREMENTS OF SUCH ACT OR SUCH LAWS."
8.10. Governing Law; Consent to Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
WITHOUT GIVING EFFECT TO THE PRINCIPLES OF
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CONFLICTS OF LAW. EACH OF THE PARTIES HERETO 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, IN EACH CASE
LOCATED IN WILMINGTON, DELAWARE, FOR ANY ACTION IN ANY COURT OR BEFORE ANY
GOVERNMENTAL AUTHORITY ("LITIGATION") ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY (AND AGREES NOT TO COMMENCE
ANY LITIGATION RELATING THERETO EXCEPT IN SUCH COURTS). EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING
OF VENUE OF ANY LITIGATION ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY IN THE COURTS OF THE STATE OF DELAWARE OR THE UNITED STATES
OF AMERICA, IN EACH CASE LOCATED IN WILMINGTON, DELAWARE, AND HEREBY FURTHER
IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY
SUCH COURT THAT ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO
TRIAL BY JURY IN CONNECTION WITH ANY LITIGATION ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
8.11. Publicity. Each of the parties hereto agrees that it will make no
statement regarding the transactions contemplated hereby which is inconsistent
with the press release agreed to by the parties hereto. Notwithstanding the
foregoing, each of the parties hereto may, in documents required to be filed by
it with the Commission or other regulatory bodies, make such statements with
respect to the transactions contemplated hereby as each may be advised is
legally necessary upon advice of its counsel.
IN WITNESS WHEREOF, the Company and Purchaser have caused this
Agreement to be executed and delivered by their respective officers as of the
date first above written.
THE UNIMARK GROUP, INC.
By:
------------------------------------------
Name: Soren Bjorn
Title: President and Chief Executive Officer
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M & M NOMINEE L.L.C.
By:
------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Manager
