EXHIBIT 1
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Stock Purchase Agreement dated July 6, 2004 by and among Cardinal-UniMark
Investors, L.P. and Mexico Strategic Investment Fund, Ltd.
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made as of July 6, 2004, by
Cardinal- UniMark Investors, L.P., a Delaware limited partnership ("Buyer") and
Mexico Strategic Investment Fund Ltd., a Cayman Islands corporation ("Seller").
R E C I T A L S
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WHEREAS, Seller owns 10,519,419 shares of common stock of The UniMark
Group, Inc., a Texas corporation (the "Company") which represents 49.98% of the
outstanding capital stock of the Company (the "Shares"); and
WHEREAS, Seller desires to sell, and Buyer desires to purchase, the Shares
for the consideration and on the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the parties hereto agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1:
1.1 "AFFILIATE" With respect to any Person, a Person which directly or
indirectly through one or more intermediaries controls, is controlled by or is
under common control with such Person. For purposes of this Agreement, the term
"control" shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of stock or other equity interests, by contract or
otherwise.
1.2 "BUYER" As defined in the first paragraph of this Agreement.
1.3 "CLOSING" As defined in Section 2.3.
1.4 "CLOSING DATE" The date and time as of which the Closing actually takes
place.
1.5 "CLOSING DOCUMENTS" As defined in Section 2.4(c).
1.6 "COMPANY" As defined in the Recitals of this Agreement.
1.7 "CONSENT" Any approval, consent, ratification, waiver, or other
authorization
(including any Governmental Authorization).
1.8 "CONTEMPLATED TRANSACTIONS"All of the transactions contemplated by this
Agreement, including:
(a) the sale of the Shares by Seller to Buyer;
(b) the execution, delivery and performance of the Seller's Release;
and
(c) the performance by Buyer and Seller of their respective covenants
and obligations under this Agreement; and
1.9 "CONTRACT" Any agreement, contract, obligation, promise, or undertaking
(whether written or oral and whether express or implied) that is legally
binding.
1.10 "DIRECTOR'S RESIGNATION LETTER" As defined in Section 2.4(a).
1.11 "ENCUMBRANCE" Any charge, claim, community property interest,
condition, equitable interest, lien, option, pledge, security interest, right of
first refusal, defect or imperfection of title or restriction of any kind,
including any restriction on use, voting, transfer, receipt of income, or
exercise of any other attribute of ownership, other than any restrictions or
limitations imposed by applicable Legal Requirements.
1.12 "GOVERNMENTAL AUTHORIZATION" Any approval, consent, license, permit,
waiver or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
1.13 "GOVERNMENTAL BODY" Any regulatory body, legislature, agency,
division, commission, court, tribunal or other body of any federal, state or
local government.
1.14 "KNOWLEDGE" An individual will be deemed to have "Knowledge" of a
particular fact or other matter if such individual is actually aware of such
fact or other matter.
1.15 "LEGAL REQUIREMENT" Any law, constitution, treaty, ordinance,
regulation or order enacted or adopted by any relevant Governmental Body, each
as amended and in effect as of the date hereof.
1.16 "ORDER" Any award, decision, injunction, judgment, order, ruling,
subpoena or verdict entered, issued, made or rendered by any court,
administrative agency or other Governmental Body or by any arbitrator.
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1.17 "ORGANIZATIONAL DOCUMENTS" The articles or certificate of
incorporation and the bylaws of a corporation, the partnership agreement and any
statement of partnership of a general partnership, the limited partnership
agreement and the certificate of limited partnership of a limited partnership,
the limited liability company agreement and the articles of organization of a
limited liability company, any charter or similar document adopted or filed in
connection with the creation, formation or organization of a Person and/or any
amendment to any of the foregoing.
1.18 "PERSON" Any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union or other entity
or Governmental Body.
1.19 "PROCEEDING" Any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
1.20 "PURCHASE PRICE" As defined in Section 2.2.
1.21 "SELLER RELATED PERSON" With respect to the Seller:
(a) any Person that formerly held or currently holds an equity
interest in the Seller;
(b) any Person that formerly served or presently serves as a director,
officer, partner or employee of the Seller, and their respective equity holders,
officers and directors; and
(c) any current or former Affiliate of the Seller (excluding the
Company and its subsidiaries);
it being understood that any reference to "former" in this definition
relates solely to the period commencing on the date that the Seller initially
purchased common stock of the Company.
1.22 "SECURITIES ACT" The Securities Act of 1933 or any successor law, and
regulations and rules issued pursuant to that Act or any successor law.
1.23 "SECURITIES EXCHANGE ACT" The Securities Exchange Act of 1934 or any
successor law, and regulations and rules issued pursuant to that Act or any
successor law.
1.24 "SELLER" As defined in the first paragraph of this Agreement.
1.25 "SELLER'S RELEASE" As defined in Section 2.4(a).
1.26 "SHARES" As defined in the Recitals of this Agreement.
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1.27 "TAX" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental, customs duties, capital stock,
franchise, profits, withholding, social security (or similar), unemployment,
disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or addon minimum, estimated, or other tax
of any kind whatsoever, including any interest, penalty, or addition thereto,
whether disputed or not
1.28 "THREATENED" A claim, Proceeding, dispute, action, or other matter
will be deemed to have been "Threatened" if any demand or statement has been
made (orally or in writing) or any notice has been given (orally or in writing).
2. SALE AND TRANSFER OF SHARES; CLOSING
2.1 SALE OF THE SHARES
At the Closing, on and subject to the terms and conditions of this
Agreement, the Buyer agrees to purchase from the Seller, and the Seller agrees
to sell, assign convey and transfer to the Buyer, all of the Shares free and
clear of all Encumbrances in consideration for the Purchase Price (as defined in
Section 2.2).
2.2 PURCHASE PRICE
The aggregate purchase price payable by the Buyer for the Shares owned
by Seller on the Closing Date shall be Four Million Two Hundred Seven Thousand
Seven Hundred and Sixty Five Dollars ($4,207,765) or $.40 per Share (the
"Purchase Price").
2.3 CLOSING
The closing of the sale of the Shares to the Buyer (the "Closing")
shall take place contemporaneously with the execution and delivery of this
Agreement at such location as mutually acceptable to the Buyer and the Seller.
2.4 CLOSING OBLIGATIONS
At the Closing:
(a) Sellers will deliver (or cause to be delivered):
(i) certificates representing the Shares, duly endorsed by Seller
(or accompanied by duly executed stock powers), with signatures guaranteed by a
commercial bank or by a member firm of the New York Stock Exchange (only if so
required by the Company's transfer agent), for
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transfer to the Buyer; provided that if the certificates are in the name of any
other Person, there shall be included duly executed stock powers with respect to
such Person's stock certificates which shall effect a transfer of such
certificates to the Buyer;
(ii) a release, waiver and indemnity agreement executed by the
Seller in favor of the Buyer and the Company relating to any amounts owed to the
Seller by the Company with respect to the Shares and any other claims of the
Seller and/or Seller Related Persons (other than Promecap, S.C., Madera, LLC and
their respective Affiliates) against the Buyer and the Company and a release,
waiver and indemnity agreement executed by Madera, LLC in favor of the Buyer and
the Company relating to any claims of Madera, LLC and/or Madera, LLC's
subsidiaries, Affiliates (including, without limitation, Promecap, S.C.),
shareholders, partners, officers, directors, employees, attorneys and/or agents
and their respective predecessors, successors and assigns against the Buyer and
the Company each in the forms attached hereto as Exhibit A;
(iii) a copy of a letter executed by Xxxx Xxxxxx pursuant to
which Xxxx Xxxxxx resigned as a director of the Company;
(iv) evidence that the Board of Directors of the Company has
authorized and approved the acquisition of the Shares by the Buyer from the
Seller; and
(v) a certificate dated as of the date hereof executed by the
Seller representing and warranting to the Buyer that each of Seller's
representations and warranties in this Agreement was accurate in all respects as
of the date of this Agreement.
(b) Buyer will deliver:
(i) by wire transfer in immediately available funds, the Purchase
Price to an account designated by Seller; and
(ii) a certificate, dated as of the date hereof, executed by the
Buyer to the effect that each of the Buyer's representations and warranties in
this Agreement was accurate in all respects as of the date of this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Buyer as follows:
3.1 ORGANIZATION AND GOOD STANDING
(a) Seller is a corporation duly incorporated, validly existing and in
good standing under the laws of the Cayman Islands.
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3.2 AUTHORITY; BINDING NATURE OF AGREEMENT
(a) Seller has the full corporate power and authority to enter into
and perform its obligations under this Agreement.
(b) The execution, delivery and performance of this Agreement by
Seller has been duly authorized by all necessary corporate action on the part of
Seller.
(c) This Agreement constitutes the legal, valid and binding obligation
of Seller, enforceable against Seller in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally.
(d) Except for filings required to be made by Seller and its
Affiliates under the Securities Exchange Act with respect to the transactions
contemplated hereby, the Seller is not required to give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any
Governmental Body in order to consummate the transactions contemplated by this
Agreement.
3.3 OWNERSHIP OF SHARES
(a) Seller has, and will transfer to the Buyer at the Closing, good
and valid title to the Shares free of any Encumbrances.
(b) The Shares are validly issued and outstanding, fully paid and
non-assessable.
(c) The Seller is not a party to any option, warrant, purchase right,
or other contract or commitment that could require the Seller to sell, transfer,
or otherwise dispose of the Shares (other than pursuant to this Agreement).
(d) The Seller is not a party to any voting trust, proxy, or other
agreement or understanding with respect to the voting of the Shares.
3.4 NO CONFLICT
Neither the execution and delivery of this Agreement nor the
consummation or performance of any of the Contemplated Transactions by Seller
will, directly or indirectly (with or without notice or lapse of time) (i)
contravene, conflict with, or result in a violation of (A) any provision of the
Organizational Documents of the Seller, or (B) any resolution adopted by the
board of directors or equivalent body or the equity owners of the Seller, (ii)
except for filings required to be made by Seller and its Affiliates under the
Securities Exchange Act with respect to the transactions contemplated hereby,
contravene, conflict with, or result in a violation of any Legal Requirement,
Government Authorization or any Order to which the Seller may be subject that
would adversely affect the Buyer or (iii) result in the imposition or creation
of any Encumbrance upon or with respect to any of the Shares.
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3.5 NO CLAIMS AGAINST THE SELLER AND THE COMPANY
Neither the Seller nor any Seller Related Persons (other than
Promecap, S.C., Madera, LLC and their respective Affiliates) have any pending
claims, actions, causes of action, demands, obligations and charges whatsoever,
at law or in equity, whether in contract or otherwise, against the Seller and/or
the Company with respect to the ownership of the Shares by the Seller prior to
the Closing or arising out of, relating to, connected with, or in any way
pertaining to the Contemplated Transactions or otherwise arising out of any
agreement or other arrangement or relationship with the Seller and/or the
Company.
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3.6 NO CLAIM REGARDING OWNERSHIP OF SHARES OR SALE PROCEEDS
There are no pending claims which have been made nor, to Seller's
Knowledge, Threatened by any Person asserting that such Person (a) is the holder
or the beneficial owner of, or has the right to acquire or to obtain beneficial
ownership of the Shares (other than pursuant to this Agreement) or (b) is
entitled to all or any portion of the Purchase Price payable for the Shares.
3.7 LEGAL PROCEEDINGS
There is no pending Proceeding or applicable Legal Requirement that
challenges, or that will have the effect of preventing, making illegal any of
the Contemplated Transactions and, to the Knowledge of Seller, (1) no such
Proceeding has been Threatened, and (2) no event has occurred or circumstance
exists that may give rise to or serve as a basis for commencement of any such
Proceeding.
3.8 RELATIONSHIPS BETWEEN SELLER RELATED PERSONS AND THE COMPANY
Neither the Seller nor any Seller Related Persons (other than
Promecap, S.C., Madera, LLC and their respective Affiliates) (ii) have any
interest in any property (whether real, personal, or mixed and whether tangible
or intangible) used in or pertaining to the Company's businesses and/or the
business of its Affiliates, (ii) own an equity interest or any other financial
or profit interest in, a Person that has had substantial business dealings or a
material financial interest in any transaction with the Company and/or its
Affiliates or (iii) are parties to any Contract with the Company and/or its
Affiliates; provided, however, Madera, LLC will own approximately 12.5% of the
common stock of the Company after the Closing.
3.9 BROKERS OR FINDERS
The Seller and its agents have incurred no obligation or liability,
contingent or otherwise, for brokerage or finders' fees or agents' commissions
or other similar payment in connection with this Agreement.
3.10 FURTHER ASSURANCES
From and after the Closing, Seller shall at the Buyer's expense,
reasonably cooperate with the Buyer and shall execute and deliver such documents
and take such other actions as the Buyer may reasonably request, for the purpose
of putting the Buyer in possession and control of the Shares.
3.11 NO FURTHER REPRESENTATIONS
Except for the representations and warranties set forth in this
Article 3, the Shares are being sold and transferred "as is, where is," and
Seller is not making any other representations or warranties,
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written or oral, statutory, express or implied, concerning the Shares, the
Company, (or its business, operations, financial condition or otherwise),
including, in particular, any warranty of merchantability or fitness for a
particular purpose, all of which are hereby expressly excluded and disclaimed.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller as follows:
4.1 ORGANIZATION AND GOOD STANDING
Buyer is a limited partnership duly formed, validly existing, and in
good standing under the laws of the State of Delaware.
4.2 AUTHORITY; BINDING NATURE OF AGREEMENT
(a) Buyer has the absolute and unrestricted right, power and authority
to enter into and perform its obligations under this Agreement.
(b) The execution, delivery and performance of this Agreement by Buyer
has been duly authorized by all necessary action on the part of Buyer.
(c) This Agreement constitutes the legal, valid and binding obligation
of Buyer, enforceable against Buyer in accordance with its terms.
(d) The Buyer is not required to give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any Governmental Body
in order to consummate the transactions contemplated by this Agreement.
4.3 NO CONFLICT
Neither the execution and delivery of this Agreement nor the
consummation or performance of any of the Contemplated Transactions will,
directly or indirectly (with or without notice or lapse of time) (i) contravene,
conflict with, or result in a violation of (A) any provision of the
Organizational Documents of the Buyer, or (B) any resolution adopted by the
board of directors or equivalent body or the equity owners of the Buyer, (ii)
contravene, conflict with, or result in a violation of, or give any Governmental
Body or other Person the right to challenge any of the Contemplated Transactions
or to exercise any remedy or obtain any relief under, any Legal Requirement or
any Order to which the Buyer may be subject, or (iii) contravene, conflict with
or result in a violation of any of the terms or requirements of any Governmental
Authorization.
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4.4 INVESTMENT INTENT
Buyer is acquiring the Shares for its own account and not with a view
to their distribution within the meaning of Section 2(11) of the Securities Act.
Buyer understands that the Shares have not been registered under the Securities
Act or under the laws of any state of the U.S., and cannot be sold unless
subsequently registered under the Securities Act or pursuant to an exemption
therefrom and that the certificates representing the Shares delivered at Closing
will contain a legend to such effect.
4.5 CERTAIN PROCEEDINGS
There is no pending Proceeding that has been commenced against Buyer
and that challenges, or may have the effect of preventing, delaying, making
illegal, or otherwise interfering with, any of the Contemplated Transactions. To
Buyer's Knowledge, no such Proceeding has been Threatened.
4.6 BROKERS OR FINDERS
Except for fees or other sums payable by Buyer to Xxxxxxx Xxxxx and
Xxxxxx Capital Management, Inc. for which Seller shall have no responsibility,
Buyer and its officers and agents have incurred no obligation or liability,
contingent or otherwise, for brokerage or finders' fees or agents' commissions
or other similar payment in connection with this Agreement and will indemnify
and hold Sellers harmless from any such payment alleged to be due by or through
Buyer as a result of the action of Buyer or its officers or agents.
4.7 DUE DILIGENCE; ACCESS TO INFORMATION
(a) Buyer has (i) had the opportunity to meet with the Company's
officers and other representatives to discuss the business, assets, liabilities,
financial condition and operations of the Company, and (ii) received or had full
access to all materials, documents and other information that it deems necessary
or advisable to evaluate the Shares, the Company and the Contemplated
Transactions. Buyer hereby acknowledges that Seller is not making and has not
made, and Buyer is not relying upon, any representations or warranties of Seller
with respect to the Company, its business, assets, liabilities, financial
condition and operations.
(b) Buyer and its officers and agents have undertaken such due
diligence, including a review of the assets, properties, liabilities, books,
records and Contracts of the Company, as it deems adequate in order to
consummate the Contemplated Transactions.
(c) Buyer has made its own independent examination, investigation,
analysis and any other relevant evaluation of the Shares, including its own
estimate of the value of the Shares.
5. REMEDIES
As a result or upon the occurrence of a breach of any representation
or warranty made by
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either of the parties to this Agreement or any other certificate or document
delivered by either of the parties pursuant to this Agreement or of any covenant
or obligation of either of the parties in this Agreement or any of the other
Closing Documents, each of the parties hereto shall have all rights, powers and
remedies set forth in this Agreement, in any other written agreement or
instrument executed by the other party in connection with the transactions
contemplated hereunder, or as otherwise provided at law or in equity.
6. MISCELLANEOUS
6.1 EXPENSES.
Except as otherwise provided herein, neither party hereto shall be
responsible for paying any expenses incurred by the other party in connection
with this Agreement and in the preparation for and consummation of the
transactions provided for herein.
6.2 NOTICES.
All notices under this Agreement shall be in writing and shall be (i)
delivered in person, (ii) sent by telecopy, or (iii) mailed, postage prepaid,
either by registered or certified mail, return receipt requested, or overnight
express carrier, addressed in each case as follows:
If to Seller: Mexico Strategic Investment Fund Ltd.
c/x Xxxxx Fund Management LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx XX 00000
Attn: Xxxxxxx Belly, General Counsel
Facsimile: (000) 000-0000
with a copy to: Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
Attn: Xxxxxxx X. Xxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
If to Buyer, to: c/o Cardinal Growth, L.P.
Attn: Xxxxxx X. Xxxx
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
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with a copy to: Xxxxxxxx & Xxxxx
Attn: Xxxxxxx X. Xxxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
or to any other address or telecopy number as such party shall designate in a
written notice to the other. All notices sent pursuant to the terms of this
Section 6.2 shall be deemed received (i) if personally delivered, then on the
date of delivery; (ii) if sent by telecopy before 2:00 p.m. local time of the
recipient, on the day sent if a business day or if such day is not a business
day or if sent after 2:00 p.m. local time of the recipient, then on the next
business day; (iii) if sent by overnight, express carrier, on the next business
day immediately following the day sent; or (iv) if sent by registered or
certified mail, on the earlier of the third (3rd) business day following the day
sent or when actually received. Any notice by telecopy shall be followed by
delivery of a copy of such notice on the next business day by overnight express
carrier or by hand.
6.3 AMENDMENT
This Agreement may be amended only by an instrument in writing
executed by all of the Parties.
6.4 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and be enforceable against, the
parties hereto and their respective successors and permitted assigns and shall
inure to the benefit of parties hereto and their respective successors,
permitted assigns, heirs and representatives. Nothing in this Agreement, express
or implied, is intended to confer upon any person, other than the parties hereto
and their respective successors, heirs, permitted assigns and representatives,
any rights or remedies under or by reason of this Agreement. Except as set forth
below, no party hereto may assign its rights or obligations hereunder without
the prior written consent of the other parties to this Agreement;
6.5 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to conflicts of laws
principles thereof. The parties hereto agree that any dispute over this
Agreement shall be litigated in the courts having situs within the State of
Delaware and the parties hereto consent to jurisdiction and venue of such court.
6.6 CONSTRUCTION
The use of the word "including" means "including without limitation."
All references to sections, exhibits, and schedules are to sections, exhibits,
and schedules to this Agreement. All word used in this Agreement shall be
construed to be of such gender or number as the circumstances require.
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6.7 WAIVERS
Compliance with the provisions of this Agreement may be waived only by
an instrument in writing executed by the party granting the waiver. The failure
of any party at any time or times to require performance of any provisions of
this Agreement shall in no manner affect the right of such party at a later time
to enforce the same or any other provision of this Agreement. No waiver of any
condition or of the breach of any term contained in this Agreement in one or
more instances shall be deemed to be or be construed as a further or continuing
waiver of such condition or breach or of any other condition or of the breach of
any other term of this Agreement.
6.8 SIGNATURE IN COUNTERPARTS
This Agreement may be executed in separate counterparts, none of which
need contain the signatures of all of the Parties, each of which shall be deemed
to be an original, and both of which taken together constitute one and the same
instrument.
6.9 COMPLETE AGREEMENT
This Agreement and the Closing Documents contain the complete and entire
understanding and agreement of the Parties. Any and all prior negotiations
between the Buyer and the Sellers, whether oral, written, or both, are merged
herein.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties hereto have executed this Stock Purchase
Agreement as of the date first above written.
Seller: MEXICO STRATEGIC
INVESTMENT FUND, LTD.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Attorney-in-Fact
Buyer: CARDINAL-UNIMARK INVESTORS, L.P.
By: Cardinal Growth Corp.
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Chairman
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