SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
THE UNIMARK GROUP, INC.
---------------------------------------------
(Name of Issuer)
Common Stock, Par Value $0.01 Per Share
---------------------------------------------
(Title of Class of Securities)
904789104
------------------------
(CUSIP Number)
Stephen M. Vine, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
590 Madison Avenue
New York, New York 10022
(212) 872-1000
---------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 23, 1998
------------------------
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
Note:Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d- 1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter disclosure
provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Continued on following page(s)
Page 1 of 16 Pages
Exhibit Index: Page 8
<PAGE>
Page 2 of 16 Pages
SCHEDULE 13D
CUSIP No. 904789104
1 Name of Reporting Person
I.R.S. Identification No. of Above Persons (Entities Only)
MEXICO STRATEGIC ADVISORS LLC
2 Check the Appropriate Box If a Member of a Group*
a. [_]
b. [_]
3 SEC Use Only
4 Source of Funds*
AF
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) [_]
6 Citizenship or Place of Organization
Delaware
7 Sole Voting Power
Number of 4,305,500\1\
Shares
Beneficially 8 Shared Voting Power
Owned By 0
Each
Reporting 9 Sole Dispositive Power
Person 4,305,500\1\
With
10 Shared Dispositive Power
0
11 Aggregate Amount Beneficially Owned by Each Reporting Person
4,305,500\1\
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares*
[_]
13 Percent of Class Represented By Amount in Row (11)
33.28%
14 Type of Reporting Person*
OO; IA
*SEE INSTRUCTIONS BEFORE FILLING OUT!
\1\ See Item 6.
<PAGE>
Page 3 of 16 Pages
This Statement on Schedule 13D relates to Common Shares, par value
$0.01 per share (the "Shares"), of The UniMark Group, Inc. (the "Issuer"). This
Statement is being filed by the Reporting Person (as defined below) to report
that MSIF (as defined below) has entered into an arrangement with the Issuer to
acquire Shares and an option to acquire certain Shares (the "Option"), as a
result of which the Reporting Person may be deemed to be the beneficial owner of
more than 5% of the outstanding Shares.
Item 1. Security and Issuer.
This Statement relates to the Shares. The address of the
principal executive office of the Issuer is 124 McMakin Road, Bartonville,
Argyle, Texas 76226.
Item 2. Identity and Background.
This statement is being filed on behalf of Mexico Strategic
Advisors LLC (the "Reporting Person") and relates to Shares and the Option which
will be held for the account of M&M Nominee LLC, a Delaware limited liability
company ("M&M"). M&M is owned 80% by Mexico Strategic Investment Fund Ltd., a
Cayman Islands corporation ("MSIF"), and 20% by Madera LLC, a Delaware limited
liability company ("Madera"). M&M's principal business is investment in
securities.
The Reporting Person is a Delaware limited liability company
whose principal business is to serve, pursuant to contract, as the principal
investment manager to MSIF and Madera. The principal business of each of MSIF
and Madera is investment in securities. The address of the principal business
and principal office of each of the Reporting Person and M&M is located at 888
Seventh Avenue, 33rd Floor, New York, New York 10106. The address of the
principal business and principal office of MSIF is located at Kaya Flamboyan 9,
Willemstad, Curacao, Netherlands Antilles. The address of the principal business
and principal office of Madera is c/o Chase Manhattan Bank, 1211 Avenue of the
Americas, 39th Floor, New York, New York 10036. The Reporting Person's contract
with MSIF and Madera (the "Advisory Contract") provides that the Reporting
Person is responsible for making decisions relating to the acquisition, voting
and disposition of securities on behalf of MSIF and Madera, to the extent that
the assets of each have been allocated to the Reporting Person pursuant to the
Advisory Contract.
The business of the Reporting Person is managed by a Manager,
subject to the direction of a Board of Advisors, which is responsible for the
investment decisions made by the Reporting Person with respect to securities
held for the accounts of MSIF and Madera. Set forth in Annex A hereto and
incorporated by reference in response to this Item 2 and elsewhere in this
Schedule 13D as applicable is current information with respect to the members of
the Board of Advisors of the Reporting Person.
Pursuant to regulations promulgated under Section 13(d) of the
Act, the Reporting Person, pursuant to the provisions of the Advisory Contract,
may be deemed a beneficial owner of securities, including the Shares, held for
the account of M&M (as a result of the contractual authority of the Reporting
Person with MSIF and Madera to exercise voting and dispositive power with
respect to such securities).
<PAGE>
Page 4 of 16 Pages
During the past five years, neither the Reporting Person nor, to
the best of the Reporting Persons' knowledge, any other person identified in
response to this Item 2 has been (a) convicted in a criminal proceeding, or (b)
a party to any civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which he has been subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws, or finding
any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The securities which will be held for the account of M&M may be
held through margin accounts maintained with brokers, which extend margin credit
as and when required to open or carry positions in its margin accounts, subject
to applicable federal margin regulations, stock exchange rules and such firm's
credit policies. The positions which may be held in the margin accounts,
including the Shares, are pledged as collateral security for the repayment of
debit balances in the respective accounts.
Item 4. Purpose of Transaction.
All of the Shares reported herein which will be acquired for the
account of M&M will be acquired or disposed of for investment purposes. Neither
the Reporting Person nor, to the best of its knowledge, any of the other persons
identified in response to Item 2, has any plans or proposals that relate to or
would result in any of the transactions described in subparagraphs (a) through
(j) of Item 4 of Schedule 13D. The Reporting Person reserves the right to
acquire, or cause to be acquired, additional securities of the Issuer, to
dispose of, or cause to be disposed, such securities at any time or to formulate
other purposes, plans or proposals regarding the Issuer or any of its
securities, to the extent deemed advisable in light of general investment and
trading policies of the Reporting Person and/or M&M, market conditions or other
factors.
Item 5. Interest in Securities of the Issuer.
(a) The Reporting Person may be deemed the beneficial owner of
the 4,305,500 Shares which will be held for the account of M&M (approximately
33.28% of the total number of Shares outstanding assuming exercise of the Option
which will be held for the account of M&M). This number consists of (i)
3,305,500 Shares which will be held for the account of M&M and (ii) 1,000,000
Shares issuable upon exercise by M&M of the Option which will be held for the
account of M&M.
(b) The Reporting Person (by virtue of the Advisory Contract)
has the sole power to direct the voting and disposition of the Shares which will
be held for the account of M&M.
(c) Not applicable.
(d) (i) M&M and its members have the right to participate in the
receipt of dividends from, or proceeds from the sale of, securities, including
the Shares and Options, which will be held for the account of M&M in accordance
with their membership interests in M&M.
(e) Not applicable.
<PAGE>
Page 5 of 16 Pages
Item 6. Contracts, Arrangements, Understandings in Relationship with
Respect to Securities of the Issuer.
On June 23, 1998, MSIF, on behalf of M&M, entered into a Letter
Agreement (the "Letter Agreement") with the Issuer, a copy of which is attached
hereto as Exhibit A and incorporated by reference in response to this Item 6.
Pursuant to the terms of the Letter Agreement, MSIF will expend $14,998,706 of
the working capital of M&M to purchase 3,305,500 Shares at $4.5375 and the
Option to purchase 1,000,000 Shares at an exercise price of $4.5375 per Share.
The description of the terms of the Letter Agreement below is qualified in its
entirety by reference to the specific provisions of the Letter Agreement.
Pursuant to Section 3 of the Letter Agreement, the Purchaser (as
defined therein) will not sell the Option or any of the Shares for one year from
the time of acquisition of the Shares, other than to affiliates, each of which
shall be bound by the foregoing transfer restriction.
Pursuant to Section 13 of the Letter Agreement, Mr. Rafael
Vaquero Bazan and Mr. Fernando Camacho Casas have agreed not to transfer or
pledge any of their Shares of the Issuer until eighteen months following the
purchase by the Purchaser (as defined therein) of the Shares.
Pursuant to Section 14 of the Letter Agreement, the Purchaser
shall be entitled to designate a percentage of the Issuer's Board of Directors
at least equal to the percentage ownership of the Purchaser and its affiliates
of the outstanding common stock of the Issuer.
From time to time, each of the Reporting Person, MSIF, Madera
and/or M&M may lend portfolio securities to brokers, banks or other financial
institutions. These loans typically obligate the borrower to return the
securities, or an equal amount of securities of the same class, to the lender
and typically provide that the borrower is entitled to exercise voting rights
and to retain dividends during the term of the loan. From time to time, to the
extent permitted by applicable laws, each of the Reporting Person, MSIF, Madera
and/or M&M may borrow securities, including the Shares, for the purpose of
effecting, and may effect, short sale transactions, and may purchase securities
for the purpose of closing out short positions in such securities.
Except as described above, the Reporting Person, MSIF, Madera
and/or M&M do not have any contracts, arrangements, understandings or
relationships with respect to any securities of the Issuer.
Item 7. Material to be Filed as Exhibits.
A. Letter Agreement executed June 23, 1998 between the Issuer and MSIF.
<PAGE>
Page 6 of 16 Pages
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Date: July 2, 1998
MEXICO STRATEGIC ADVISORS LLC
By: /S/ FERNANDO CHICO PARDO
----------------------------------
Fernando Chico Pardo
Manager
<PAGE>
Page 7 of 16 Pages
<TABLE>
<CAPTION>
ANNEX A
Board of Advisors of Mexico Strategic Advisors LLC
Name/Citizenship Principal Occupation Business (or Residence) Address
- ---------------- -------------------- -------------------------------
<S> <C> <C>
Mr. Fernando Chico Pardo Manager of Mexico Strategic Andres Bello 45, 14o. piso
(Mexico) Advisors LLC and Partner of Colonia Polanco
Promecap, S.C. 11550 Mexico, Distrito Federal
Mr. Jose Ignacio de Associate of Promecap, S.C. Andres Bello 45, 14o. piso
Abeiga Pons Colonia Polanco
(Mexico) 11550 Mexico, Distrito Federal
Mr. Juan Marco Gutierrez Associate of Promecap, S.C. Andres Bello 45, 14o. piso
Wanless Colonia Polanco
(Mexico) 11550 Mexico, Distrito Federal
Mr. Gary Gladstein Managing Director of Soros 888 Seventh Avenue, 33rd Floor,
(United States) Fund Management LLC New York, New York 10106
Mr. Richard Katz Private Investor Villa La Sirena, Vico dell'
(England) Olivetta 12, 18039 Mortola
Inferiore, Ventimiglia, Italy
(Residence)
</TABLE>
<PAGE>
Page 8 of 16 Pages
EXHIBIT INDEX
A. Letter Agreement executed June 23, 1998 between the Issuer and MSIF.
Page 9 of 16 Pages
EXHIBIT A
MEXICO STRATEGIC INVESTMENT FUND, LTD.
CONFIDENTIAL
------------
June 22, 1998
The UniMark Group, Inc.
UniMark House
Bartonville
Argyle, TX 76226
Gentlemen:
1. This letter is to confirm our agreement that we or an affiliate of
ours to be designated by us ("Purchaser") will purchase, and The UniMark Group,
Inc. ("you" or the "Company") will issue to Purchaser, 3,305,500 shares of
Common Stock (the "Primary Shares") of the Company for a purchase price of
U.S.$4.5375 per share, or an aggregate purchase price of U.S.$14,998,706.25, in
cash (subject to adjustment for stock splits, stock dividends and similar
transactions that occur between the date hereof and the date such transaction is
consummated). The purchase price for the Primary Shares will be payable in U.S.
dollars . The definitive purchase agreement for the Primary Shares (the
"Agreement") will grant to Purchaser and its assigns an option (the "Option") to
acquire 1,000,000 shares of Common Stock of the Company at an exercise price of
$4.5375 per share (subject to anti-dilution protections and adjustment), which
option will be exercisable on or before the first anniversary of the date the
Primary Shares are acquired.
2. The Agreement will contain customary terms, including customary
representations and warranties, indemnities, conditions and covenants (including
covenants not to do the matters addressed on Annex A hereto, which negative
covenants will be applicable so long as Purchaser and its affiliates either own
<PAGE>
Page 10 of 16 Pages
(i) 10% or more of the outstanding Common Stock of the Company, or (ii) have not
transferred to third-parties 50% or more of the Primary Shares).
3. The Agreement will include or be accompanied by an agreement
satisfactory to the Company and to Purchaser providing for customary
registration rights (with three demand registrations and unlimited piggyback
rights) for the Primary Shares, the Option and the Common Stock obtained upon
exercise of the Option (the Primary Shares and such Common Stock being
hereinafter referred to collectively as the "Shares"). The Agreement will also
provide that Purchaser will not sell the Option or any of the Shares for one
year from the time the Primary Shares are acquired (other than to affiliates,
each of which shall be bound by the foregoing transfer restriction).
4. From the date hereof until August 1, 1998, the Company shall not, and
the Company shall cause its affiliates and representatives not to, initiate,
solicit, enter into or conduct any discussions or negotiations, or enter into
any agreement, whether written or oral, with any person with respect to the sale
of all or any significant portion of the stock or assets of the Company (other
than in connection with the transactions contemplated hereby).
5. The Company shall pay all of our costs and expenses (including fees
and expenses of counsel and accountants) in connection with our due diligence
review of the Company, the negotiation, execution and delivery of this letter,
the Agreement and all other documents in connection therewith, and the closing
of the transactions contemplated hereby, up to a maximum of $100,000, as well as
our costs and expenses (including fees and expenses of counsel and accountants)
of our enforcement of the foregoing.
6. You and we shall consult with one another before issuing any press
release or otherwise making any public statements with respect to the
transactions contemplated hereby. You and we will not issue any such press
release or make any such public statement without the prior approval of the
other except as may be required by law.
7. Purchaser represents to the Company that this letter has been duly
authorized, executed and delivered by it and constitutes the valid, binding and
enforceable obligation of Purchaser and that no further authorization by
<PAGE>
Page 11 of 16 Pages
partners, directors or shareholders of Purchaser is required (by law, contract,
rule of any securities authority or exchange or otherwise). Purchaser will have,
at the time required by the Agreement, sufficient funds to effect the closing of
the transactions contemplated hereby.
8. The Company represents to Purchaser that this letter has been duly
authorized, executed and delivered by it and constitutes the valid, binding and
enforceable obligation of the Company and that no further authorization by
directors or shareholders of Purchaser is required (by law, contract, rule of
any securities authority or exchange or otherwise). The Shares will be eligible
for NASDAQ NMS trading without further consents or actions (other than
registration under the federal securities laws).
9. The Company further represents to Purchaser as follows: the Company
has timely filed with the Securities and Exchange Commission all forms, reports,
schedules, statements and other documents required to be filed by it (other than
the Company's proxy statement in respect of its annual shareholders' meeting to
be held in 1998) since January 1, 1996 under the Exchange Act (as defined below)
or the Securities Act (as defined below) (such documents, as supplemented and
amended since the time of filing, collectively, the "SEC Documents"). The 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 the 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 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
its subsidiaries as at the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended. All projections previously
(or hereafter) provided to Purchaser in connection with the transactions
contemplated hereby are (or will be) bona fide projections of the Company and
<PAGE>
Page 12 of 16 Pages
the Company believes that such projections are reasonable. All other information
previously (or hereafter) furnished by the Company to Purchaser is (or shall be)
true and correct in all material respects does not (and will not) contain any
material misstatements or omissions. No subsidiary of the Company 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). The "Securities
Act" shall mean the Securities Act of 1933, as amended, including the rules and
regulations promulgated thereunder. The "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended including the rules and regulations promulgated
thereunder.
10. You and we agree to use our respective best efforts to negotiate and
enter into the Agreement by July 15, 1998, subject to compliance with the
conditions referred to in this letter.
11. Your obligation to sell the Shares and grant the Option referred to in
Paragraph 3 hereof is subject to the compliance by Purchaser of the terms of
this letter applicable to it (including the continued truth of the
representations and warranties of Purchaser contained herein) and to the
execution and delivery of the Agreement.
12. Our obligation to purchase the Shares is subject to completion of our
due diligence review (and the results of which being satisfactory to us), to our
structuring the transaction in a tax-efficient manner, to compliance by the
Company and the Principals as defined below) with the terms of this letter
(including the continued truth of the representations and warranties of the
Company contained herein) and to the execution and delivery of the Agreement and
the documentation referred to in Section 13 below, as well as to the continued
truth of the following: (i) since the date of the last SEC Document prior to the
date hereof, there has been no material adverse change in the business,
operations, results of operations, assets, prospects or condition (financial or
otherwise) of the Company and its subsidiaries, (ii) since the date hereof, none
of Mr. Rafael Vaquero Bazan and Mr. Fernando Camacho Casas (collectively, the
"Principals") has sold or otherwise disposed of any of their respective holdings
of Common Stock of the Company, (iii) the Company has not, after the date
hereof, done or caused to be done any of the matters set forth on Annex A hereto
without our consent, and (iv) except as specifically disclosed in the SEC
Documents filed prior to the date of this Agreement, there is no suit, claim,
action, proceeding, audit or investigation pending or, to the knowledge of the
Company, threatened against the Company which, individually or in the aggregate,
would reasonably be expected to have a material adverse effect on the business,
operations, results of operations, assets, prospects or condition (financial or
otherwise) of the Company or a material adverse effect on the ability of the
Company to consummate the transactions contemplated hereby.
<PAGE>
Page 13 of 16 Pages
13. The Principals shall not transfer or pledge any of their shares of
Common Stock of the Company (the "Principal Shares") until eighteen months
following the purchase by Purchaser of the Primary Shares. The Principals shall
enter into mutually satisfactory non-competition agreements with Purchaser and
the Company. In addition, the Principals and Purchaser shall enter into an
agreement pursuant to which at any time after the second anniversary of
Purchaser's purchase of the Primary Shares and for so long as Purchaser and its
affiliates are entitled to exercise the veto rights in Annex A, (i) the
Principals or Purchaser and its affiliates may propose a price per share of
Common Stock and (ii) the non-proposing group may elect either (x) to sell all
of its shares of Common Stock (including the Option and the shares obtainable
upon exercise of the Option) of the Company at such price per share or (y) to
purchase for cash the proposing group's shares of Common Stock (including the
Option and the shares obtainable upon exercise of the Option) of the Company at
such price per share.
14. Purchaser shall be entitled to designate a percentage of the Company's
Board of Directors at least equal to the percentage ownership of Purchaser and
its affiliates of the outstanding Common Stock of the Company.
15. This letter shall be governed by and construed in accordance with the
laws of the State of Delaware, without giving effect to any conflict of law
provision. You and we each hereby consent to submit to the exclusive
jurisdiction of the courts of the State of Delaware and of the United States in
each case located in Wilmington for any litigation arising out of or relating to
this letter and the transactions contemplated hereby (and agree not to commence
any litigation relating thereto except in such courts). You and we each hereby
irrevocably and unconditionally waive any objection to the laying of venue of
any such litigation in the courts of the State of Delaware or of the United
States of America in each case located in Wilmington and hereby further
irrevocably and unconditionally waive and agree 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.
16. This letter may be terminated (i) at any time by mutual agreement of
the parties, or (ii) at any time after August 1, 1998 by either party (by
written notice to the other), provided that the terminating party is not in
material breach of the terms hereof. Notwithstanding the foregoing, the
provisions of Paragraphs 5 and 15 and this Paragraph 16 shall survive any
termination of this letter.
<PAGE>
Page 14 of 16 Pages
Very truly yours,
MEXICO STRATEGIC
INVESTMENT FUND, LTD.
By: /s/ Peter Streinger
-----------------------------
Name: Peter Streinger
Title: Attorney-in-fact
AGREED TO AND ACCEPTED
as of the date first
above written
THE UNIMARK GROUP, INC.
By: /s/ Rafael Vaquero
----------------------------
Name: Rafael Vaquero
Title: CEO and President
<PAGE>
Page 15 of 16 Pages
SECTION 13 AGREED TO
AND ACCEPTED as of the
date first above
written by the
PRINCIPALS
- --------------------------
Rafael Vaquero Bazan
- --------------------------
Fernando Camacho Casas
<PAGE>
Annex A
* (i) Incur or maintain any indebtedness other than bank line of credit for
working capital not in excess of $18 million, (ii) be party to capital
leases in amounts in excess of $30 million (in the aggregate), and (iii) at
any time, allow the amounts of the indebtedness/obligations under items (i)
and (ii) to be greater than $42 million
* Incur liens or encumbrances other than liens to secure the indebtedness
permitted above (Diamond) Incur contingent obligations or guaranties other
than in the ordinary course of business (Diamond) Take actions which would
result in the Company being classified as a United States Real Property
Holding Company
* Make or maintain any investment in or capital contribution or advance to
any other person, other than investments in wholly-owned subsidiaries; or
enter into joint ventures or partnerships or establish non-wholly owned
subsidiaries
* Enter into any commitment or amend any existing commitment with a value in
excess of five percent of total assets (as set forth on the immediately
preceding year's audited financial statements) or enter any commitment or
transaction or amend any existing commitment or transaction with any
affiliate or related party or significant shareholder
* Incur capital expenditures in excess of 110% of the amount budgeted for
such items (based on the budgets delivered to Purchaser)
* Approve increases in any item in each year's annual budget in excess of 5%
over the amount budgeted for such item during the preceding year
* Appoint or remove any member of senior management
* Amend the Certificate of Incorporation or the Bylaws
* Change the number of directors (without maintaining at least proportionate
representation by Purchaser on the Board)
* Approve any merger or consolidation or similar reorganization or other
fundamental change in the business of the Company
* Acquire assets (other than in the ordinary course) or common stock, debt or
other securities of any third party (Diamond) Sell or dispose of assets of
the Company or any of its subsidiaries having a value in excess of 10% per
year of the value of the total fixed assets of the Company (nor shall the
Company allow any facility of the Company to sell or dispose of assets
having a value in excess of 5% per year of the value of such facility's
total fixed assets)
* Liquidate the Company
* Issue any securities of the Company (including, without limitation, common
stock, convertible securities, rights, warrants or options to one or more
persons (including through a public offering)), other than pursuant to an
employee benefit plan consistent with past practice
* Register Securities under the Securities Act of 1933 (except as provided in
Registration Rights Agreements disclosed to Purchaser) or grant any
registration rights
* Declare or pay dividends
* Effect any debt or equity repurchase or redemption or other restricted
payment
* Adopt or amend benefit plans (Diamond) Enter into new businesses
* Change the Company's independent accountants
* Settle any material litigation
* Permit the Company to fail to comply with customary affirmative covenants,
including: (i) compliance with financial and other reporting requirements;
(ii) compliance with laws; (iii) limitation on conflicting agreements; (iv)
preservation of franchises and existence; (v) maintenance of insurance;
(vi) payment of taxes and other charges; (vii) ERISA compliance; and (vii)
access and inspection rights and maintenance of books and records.
