<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): October 11, 1999
THE UNIMARK GROUP, INC.
(Exact name of Registrant as specified in charter)
<TABLE>
<S> <C> <C>
Texas 000-26096 75-2436543
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
UniMark House
124 McMakin Road
Bartonville, Texas 76226
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code: (817) 491-2992
------------------------
<PAGE> 2
ITEM 5. Other Events.
SALE OF LES PRODUITS DELI-BON, INC.
On October 11, 1999, The UniMark Group, Inc., a Texas corporation (the
"Company"), issued a press release announcing that the Company, had sold all of
the issued and outstanding shares of capital stock of Les Produits Deli-Bon,
Inc., a Quebec corporation ("Deli-Bon"), to Francois Gravil - Guy Picard, in
trust for the company to be owned and operated by Francois Gravil and Guy Picard
("Francois Gravil - Guy Picard").
The sale price for the Deli-Bon shares included approximately: (1)
$320,00 (U.S.) in immediately available funds; (2) a $400,000 (U.S.) no interest
secured note due November 10, 1999; (3) a $400,000 (U.S.) no interest secured
note due December 10, 1999; and (4) a $303,932 (U.S.) secured note bearing
interest at a rate of 8.75% per annum due October 11, 2004.
Deli-Bon, a fruit processing company located in the city of Quebec,
primarily sells fruit salads to the foodservice industry and warehouse clubs in
the Province of Quebec, Canada.
ITEM 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(b) Pro Forma Financial Information.
Not applicable.
(c) Exhibits.
Exhibit 99.1 - Press Release, dated October 11, 1999, announcing
that the Company had sold all of the issued and outstanding shares
of capital stock of Deli-Bon.
Exhibit 99.2 - Stock Purchase Agreement dated October 11, 1999, by
and between the Company and Francois Gravil - Guy Picard.
Exhibit 99.3 - $400,000 (U.S.) 30 Day Secured Note payable to the
order of the Company.
Exhibit 99.4 - $400,000 (U.S.) 60 Day Secured Note payable to the
order of the Company.
Exhibit 99.5 - $303,392 (U.S.) Five Year Secured Note payable to the
order of the Company.
Exhibit 99.6 - Short-term Pledge Agreement dated October 11, 1999,
by and between the Company and Francois Gravil - Guy Picard.
<PAGE> 3
Exhibit 99.7 - Long-term Pledge Agreement dated October 11, 1999, by
and between the Company and Francois Gravil - Guy Picard.
Exhibit 99.8 - Supply Agreement dated October 11, 1999, by and
between the Company and Deli-Bon.
Exhibit 99.9 - Exclusive Distribution Agreement dated October 11,
1999, by and between the Company and Deli-Bon.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE UNIMARK GROUP, INC.
(Registrant)
Date: October 26, 1999 By: /s/ Soren Bjorn
-----------------------------
Soren Bjorn
President, Chief Executive
Officer and Secretary
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
99.1 - Press Release, dated October 11, 1999, announcing that
the Company had sold all of the issued and outstanding
shares of capital stock of Deli-Bon.
99.2 - Stock Purchase Agreement dated October 11, 1999, by and
between the Company and Francois Gravil - Guy Picard.
99.3 - $400,000 (U.S.) 30 Day Secured Note payable to the order
of the Company.
99.4 - $400,000 (U.S.) 60 Day Secured Note payable to the order
of the Company.
99.5 - $303,392 (U.S.) Five Year Secured Note payable to the
order of the Company.
99.6 - Short-term Pledge Agreement dated October 11, 1999, by
and between the Company and Francois Gravil - Guy
Picard.
99.7 - Long-term Pledge Agreement dated October 11, 1999, by
and between the Company and Francois Gravil - Guy
Picard.
99.8 - Supply Agreement dated October 11, 1999, by and between
the Company and Deli-Bon.
99.9 - Exclusive Distribution Agreement dated October 11, 1999,
by and between the Company and Deli-Bon.
</TABLE>
<PAGE> 1
EXHIBIT 99.1
[THE UNIMARK GROUP LOGO}
THE UNIMARK GROUP
- --------------------------------------------------------------------------------
FOR IMMEDIATE RELEASE For Further Information, Contact:
October 12, 1999 Soren Bjorn, President & CEO
Charles A. Horne, CFO/Investor
Relations
817-491-2992
THE UNIMARK GROUP, INC.
ANNOUNCES THE SALE OF
CANADIAN SUBSIDIARY
Bartonville, TX October 12, 1999 - The UniMark Group, Inc. (NASDAQ NMS symbol:
"UNMG"), producer and marketer of Sunfresh(R) brand citrus and tropical fruit
products, announced today that it has sold its Canadian subsidiary, Les
Produits Deli-Bon Inc. in a transaction valued at approximately $1.4 million.
Deli-Bon, a fruit processing company located in Quebec City, primarily sells
fruit salads to the foodservice industry and warehouse clubs in the Province of
Quebec. For the year ended December 31, 1998, Deli-Bon had net sales of US
$4.2 million. In connection with the transaction, UniMark entered into a
supply and distribution agreement that will allow for the continued supply of
existing UniMark products in Canada.
Also, UniMark announced that it is discontinuing its Fruit Jelite product
line, which was being produced at Deli-Bon. The discontinuation of this
product line is expected to result in a one-time charge of approximately
$400,000.
"The Deli-Bon divestiture represents a significant step in furthering the
strategic objective for our packaged food segment, which is to leverage our
Sunfresh(R) brand to build a leading branded packaged food company with
production based in Mexico. We believe that the supply and distribution
agreements will allow for continued production in our Mexican facilities for
export to Canada. Since our Sunfresh(R) product lines have historically
performed well, we believe that by consolidating our operations in Mexico and
increasing sales and marketing efforts for Sunfresh(R) products, we are
strategically positioning our company for future growth and profitability," said
Soren Bjorn, President and CEO.
Certain of the above information is forward-looking and as such, only reflects
the Company's best assessment at this time. Investors are cautioned that
forward-looking statements involve risks and uncertainty, that actual results
may differ materially from such statements, and that investors should not
place undue reliance on such statements. For discussion of factors that may
affect actual results, investors should refer to the Company's filings with the
Securities and Exchange Commission.
-END-
<PAGE> 1
EXHIBIT 99.2
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") dated as of October 11,
1999, by and among The UniMark Group, Inc., a Texas corporation ("Seller") and
Francois Gravil - Guy Picard, in trust for the company to be owned and operated
by Francois Gravil and Guy Picard ("Purchaser").
RECITALS
WHEREAS, Seller owns the shares of Les Produits Deli-Bon, Inc., a
Quebec corporation (the "Company") listed in Exhibit A hereto (the "Deli-Bon
Shares"), being all of the issued and outstanding shares of the capital stock of
the Company;
WHEREAS, Seller desires to sell, and the Purchaser desires to purchase,
the Deli-Bon Shares pursuant to the terms and conditions set forth in this
Agreement; and
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants, agreements, undertakings, representations, and warranties contained
herein, the parties hereto agree as follows:
1. Sale and Purchase of Stock. Seller hereby agrees to sell, and Purchaser
hereby agrees to purchase, the Deli-Bon Shares for $1,423,932 payable as
follows:
(a) by delivering $320,000 (U.S.) in immediately available funds
on the closing date (as set forth in Section 4 of this
Agreement);
(b) by executing and delivering a 30 day non-interest bearing
promissory note in the original principal amount of $400,000
(U.S.), in substantially the same form as Exhibit B hereto
(the "30 Day Note"). The note shall be secured by all the
Deli-Bon Shares in accordance with the terms of two pledge
agreements in substantially the same form as Exhibit C hereto
(the "Short-term Pledge Agreement") and Exhibit F hereto (the
"Long-term Pledge Agreement");
(c) by executing and delivering a 60 day non-interest bearing
promissory note in the original principal amount of $400,000
(U.S.), in substantially the same form as Exhibit D hereto
(the "60 Day Note"). The note shall be secured by all the
Deli-Bon Shares in accordance with the terms of two pledge
agreements in substantially the same form as the Short-term
Pledge Agreement and the Long-term Pledge Agreement;
(d) by executing and delivering a five year promissory note in the
original principal amount of $303,932 (U.S.). The note shall
bear interest at 8.75% per annum, with interest and principal
payable in monthly installments of $6,272 and shall be in
substantially the same form as Exhibit E hereto (the "5 Year
Note"). The note shall be secured by the Deli-Bon Shares. The
note shall be secured by 51% of the
<PAGE> 2
outstanding Deli-Bon Shares in accordance with the terms of
the Long-term Pledge Agreement.
2. Supply Agreement. At the closing, the Company and Seller will enter
into a supply agreement pursuant to which Seller will supply bulk fruits and
Fruits of Four Seasons products from Mexico to Purchaser until December 31,
2000, as per established prices, in substantially the same form as Exhibit G
hereto (the "Supply Agreement").
3. Distribution Agreement. At the closing, the Company and Seller will
enter into an exclusive distribution agreement pursuant to which the Company
will have the right to act as the exclusive distributor in Canada for Seller's
Fruits of Four Seasons products for a period of four years, in substantially the
same form as Exhibit H hereto (the "Distribution Agreement").
4. Closing. The closing shall take place on the 11th day of October,
1999, at the offices of Jakes Jordaan, PLLC, 300 Crescent Court, Suite 1600,
Dallas, Texas 75201, or at such other time and place as agreed upon by the
parties hereto (the "Closing").
5. Representations and Agreements of Seller. Seller represents and
warrants to, and agrees with Purchaser that, at the Closing:
A. The issued and outstanding capital stock of the Company
consists of 1,450,000 shares of Common Stock and no other classes of
stock. At the closing there shall be no change in the issued and
outstanding stock of the Company.
B. All of the Deli-Bon Shares have been issued to Seller. The
remaining authorized shares have not been issued, and there is no
agreement to issue such shares.
C. The Company is validly existing under the laws of the
Province of Quebec and has lawfully transacted business.
D. The Deli-Bon Shares owned by Seller are held by Seller free
and clear of any liens or encumbrances.
E. To the best of its knowledge, the Company does not have any
liabilities except as reflected on Exhibit I.
H. To the best of its knowledge, there are no actions, suits,
or proceedings pending, or, threatened, in any court or any
governmental or administrative agency against the Company, their
properties or their assets.
I. To the best of its knowledge, the Company is not party to
any agree ment or instrument, or subject to any charter, bylaw or other
corporate restrictions
2
<PAGE> 3
materially or adversely effecting their business and operations,
present or perspective, or their property, assets or conditions,
financial or otherwise.
6. Representations and Warranties by Purchaser. The Purchaser
represents and warrants to Seller and the Company with respect to itself as
follows:
A. The Purchaser has the power and authority to execute,
deliver and perform this Agreement and any other documents to which it
is a party, including the 30 Day Note, the 60 Day Note, the Short-term
Pledge Agreement, the 5 Year Note, the Long-term Pledge Agreement, the
Supply Agreement and the Distribution Agreement (collectively, the
"Transaction Documents").
B. This Agreement and the Transaction Documents constitute the
legal, valid and binding obligation of the Purchaser enforceable
against it in accordance with their respective terms and when executed
by the Purchaser will constitute a valid and binding obligation of the
Purchaser, enforceable against it in accordance with its terms.
7. Documents to be Delivered by Seller. At the closing Seller shall
deliver to the Purchaser the following documents in form and substance
satisfactory to Purchaser's counsel:
A. A certificate or certificates for the 210,000 shares of
Common Stock in the Company to be transferred duly endorsed for
transfer to Purchaser.
B. An affidavit that all representations and warranties made
by Seller herein are true and correct as of the date of closing if the
closing is not simultaneous with the execution of the Agreement.
8. Documents to be Delivered by Purchaser. At the closing Purchaser
shall deliver to the Seller the following documents in form and substance
satisfactory to Purchaser's counsel:
A. An affidavit that all representations and warranties made
by Purchaser herein are true and correct as of the date of closing if
the closing is not simultaneous with the execution of the Agreement.
B. An opinion of counsel to the effect that this Agreement and
the Transaction Documents have been duly and validly authorized,
executed and delivered by the Purchaser and, assuming the due
authorization, execution and delivery of this Agreement by the
Purchaser, are the valid and legally binding obligations of the
Purchaser, enforceable in accordance with their terms.
9. Documents to be Executed by Parties. At the closing the parties, as
applicable, shall execute the following documents:
3
<PAGE> 4
A. 30 Day Note;
B. Short-term Pledge Agreement;
C. 60 Day Note;
D. Long-term Pledge Agreement;
E. 5 Year Note;
F. Supply Agreement; and
G. Distribution Agreement.
10. Survival of Representations. All representations made herein by
Seller and Purchaser shall survive the closing for a period of one year.
11. Negotiation. Each party hereto declares that the provisions of this
Agreement and of all documents annexed thereto or referred to therein, have been
freely negotiated and declares having read this Agreement and those documents
and having understood their scope and nature.
12. Language. The parties hereto have required that this Agreement and
all documents annexed thereto or referred to therein, be written in the English
language. Les parties ont requis que cette convention et tous documents y
annexes ou auxquels elle refere soient rediges en langue anglaise.
13. Effective Time. The closing of the transactions contemplated hereby
shall be effective October 2, 1999.
14. Governing Law; Binding Arbitration. This Agreement shall be
construed in accordance with the laws of the State of Texas. The parties hereto
agree that any dispute pertaining to this Agreement and the transactions
contemplated hereby must be submitted to the British Columbia International
Commercial Arbitration Centre (the Vancouver Centre for Commercial Disputes) in
Vancouver, Canada for binding arbitration, to the exclusion of courts of law, in
accordance with its General Commercial Arbitration Rules in force at the time of
this Agreement. The parties hereto have required that any arbitration proceeding
be conducted in the English language. Les parties ont requis que tous
l'arbitrage soient en langue anglaise.
15. Assignment. Neither this Agreement nor any interest of any party
herein may be assigned, pledged or transferred without the prior written consent
of the parties hereto.
16. Binding Effect. This Agreement shall inure to the benefit of and is
binding upon the parties hereto and their respective heirs, representatives,
successors, and assigns but nothing herein shall be construed as an
authorization or right of any party to assign their rights and obligations under
this Agreement.
17. Waiver. No waiver of any provision hereof shall be valid unless it
is in writing and signed by the party against whom it is charged.
4
<PAGE> 5
18. Entire Agreement. This Agreement and the exhibits, together with
the additional agreements between the Seller and Purchaser, all executed
simultaneously herewith, constitute the entire agreement among the parties
hereto with respect to the subject matter hereof.
19. Legal Expenses. Seller and Purchaser shall each pay their own costs
and expenses incurred in connection with due diligence, the negotiation,
preparation, and execution of the necessary documentation and closing of this
transaction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
SELLER:
THE UNIMARK GROUP, INC.
A Texas corporation
/s/ Soren Bjorn
----------------------------------------
Soren Bjorn
Chief Executive Officer, President and Secretary
PURCHASER:
FRANCOIS GRAVIL - GUY PICARD
In trust for the company to be owned and operated by
Francois Gravil and Guy Picard
/s/ Francois Gravil
----------------------------------------
Francois Gravil
/s/ Guy Picard
----------------------------------------
Guy Picard
5
<PAGE> 6
EXHIBIT LIST
<TABLE>
<CAPTION>
Exhibit Document
------- --------
<S> <C>
A. Deli-Bon Shares
B. 30 Day Note
C. Short-term Pledge Agreement
D. 60 Day Note
E. 5 Year Note
F. Long-term Pledge Agreement
G. Supply Agreement
H. Distribution Agreement
I. Liabilities
</TABLE>
<PAGE> 7
EXHIBIT A
DELI-BON SHARES
<TABLE>
<CAPTION>
Stock Number of Shares Certificate Number.
----- ---------------- -------------------
<S> <C> <C>
Common Stock 1,240,000 C-1
Common Stock 210,000 C-2
</TABLE>
<PAGE> 8
EXHIBIT B
30 DAY NOTE
<PAGE> 9
30 DAY SECURED NOTE
$400,000 (U.S.) Dallas, Texas October 11, 1999
FOR VALUE RECEIVED, the undersigned, Francois Gravil - Guy Picard, in
trust for the company to be owned and operated by Francois Gravil and Guy Picard
("Maker"), promises to pay to the order of The UniMark Group, Inc., a Texas
corporation ("Payee"), whose principal office is located at 124 McMakin Road,
Bartonville, Texas 76226, the principal sum of Four Hundred Thousand Dollars
($400,000), payable as provided herein, without interest.
The principal shall be due and payable by the Maker to the Payee on
November 10, 1999 (30 days from October 11, 1999).
Principal under this Note, or any portion thereof, may be prepaid
without penalty.
This Note is issued and delivered under and in subject to the terms and
provisions of that certain Stock Purchase Agreement (the "Stock Purchase
Agreement") dated of even date herewith, by and among Payee and Maker. This Note
is secured by a Short-term Pledge Agreement and a Long-term Pledge Agreement
(collectively, the "Pledge Agreements"), each dated October 11, 1999, executed
by the undersigned in favor of the holder hereto, covering all of the issued and
outstanding shares of capital stock of Les Produits Deli-Bon, Inc., a Quebec
corporation ("Deli-Bon") more fully described in Exhibit A hereto attached
hereto (the "Deli-Bon Shares"). Reference is made to the Pledge Agreements for a
statement of the rights and obligations of the Payee, a description of the
nature and extent of the security and the rights of the parties in respect to
such security.
Maker, and any endorser or guarantors of this Note and all other
persons who may become liable for all or any part of the obligations represented
by this Note, severally waive presentment for payment, protest, notice of
protest and of nonpayment, notice of intention to accelerate, and notice of
acceleration.
The following shall constitute Events of Default ("Event(s) of
Default"):
(a) default in the due and punctual payment of the principal
of the Note when and as such payment shall become due and payable,
whether at maturity or by acceleration or otherwise if such payment is
not made within ten (10) days of written notice mailed by Payee to
Maker; or
(b) default in the performance or observance of any covenant
or agreement of Maker in this Note or the Pledge Agreements other than
as described in paragraph (a) above and the continuance of such default
for a period of seven (7) days after the Payee has sent Maker written
notice specifying such default and requiring that it be remedied,
provided that no such default shall be deemed to occur if such default
may not be cured within seven (7) days, if within said period the Maker
has commenced and thereafter
<PAGE> 10
diligently and continuously pursues to cure such default, and the
default is cured, in any event, within fourteen (14) days; or
(c) the filing by the Maker of a petition instituting any
state or federal insolvency, bankruptcy, reorganization, arrangement,
composition, or other debtor relief proceeding; the petition of or
application to any tribunal for a receiver or trustee for itself or for
any substantial part of any of its property; or
(d) the sale or transfer of all or substantially all of the
assets of Deli-Bon or Maker.
If an Event of Default occurs, then and in any such case Payee may
declare the outstanding principal amount of the Note to be due and payable
immediately, upon written notice to the Maker, and, upon any such declaration,
the outstanding principal amount of the Note, together with all costs of
collection, including reasonable attorneys' fees if collected by law or through
an attorney at law, shall immediately become due and payable.
Not withstanding anything to the contrary contained herein, no
provisions of this Note shall require the payment or permit the collection of
interest in excess of the maximum rate permitted by applicable law. If any
interest in excess of such maximum rate is herein provided for, or shall be
adjudicated to be so provided, in this Note or otherwise in connection with this
transaction giving rise to the execution hereof, the provisions of this
paragraph shall govern and prevail, and neither Maker nor the sureties,
guarantors, successors or assigns of the Maker shall be obligated to pay the
excess amount of such interest or any other excess sum paid for the use,
forbearance or detention of sums loaned pursuant hereto. If for any reason
interest in excess of the maximum rate of interest permitted by applicable law
shall be deemed, charged, required or permitted by a court of competent
jurisdiction, any such excess shall be applied as a payment and reduction of the
principal of indebtedness evidenced by this Note; and, if the principal amount
hereof has been paid in full, any remaining excess shall forthwith be paid to
Maker.
This note is made and is performable in Bartonville, Denton County,
Texas, and Maker waives the right to be sued hereon elsewhere. This Note shall
be governed by and construed in accordance with the laws of the State of Texas
and the applicable laws of the United States of America.
<PAGE> 11
IN WITNESS WHEREOF, the undersigned has executed this Note as of the
11th day of October, 1999.
MAKER:
FRANCOIS GRAVIL - GUY PICARD
In trust for the company to be owned and operated
by Francois Gravil and Guy Picard
------------------------------------------------
Francois Gravil
------------------------------------------------
Guy Picard
<PAGE> 12
EXHIBIT A
ALL OF THE DELI-BON SHARES
<TABLE>
<CAPTION>
Stock Number of Shares Certificate Number.
----- ---------------- -------------------
<S> <C> <C>
Common Stock 710,500 C-3
Common Stock 739,500 C-4
</TABLE>
<PAGE> 13
EXHIBIT C
SHORT-TERM PLEDGE AGREEMENT
<PAGE> 14
SHORT-TERM PLEDGE AGREEMENT
THIS SHORT-TERM PLEDGE AGREEMENT (this "Agreement"), dated as of
October 11, 1999, between Francois Gravil - Guy Picard, in trust for the company
to be owned and operated by Francois Gravil and Guy Picard (the "Pledgor"), and
The UniMark Group, Inc., a Texas corporation (the "Secured Party").
W I T N E S S E T H:
WHEREAS, the Pledgor, has entered into that certain Stock Purchase
Agreement dated October 11, 1999 (the "Purchase Agreement")(certain capitalized
terms used herein which are defined in the Purchase Agreement shall have the
same meanings when used herein, unless otherwise defined herein) with the
Secured Party, as Purchaser, pursuant to which, among other things, the Pledgor
has agreed to purchase from the Secured Party, and the Secured Party has agreed
to sell to the Pledgor, all of the issued and outstanding shares of capital
stock of Les Produits Deli-Bon, Inc., a Quebec corporation (the "Deli-Bon
Shares"); and
WHEREAS, it is a condition precedent to the obligation of the Secured
Party to sell the Deli-Bon Shares under the Purchase Agreement, that the Pledgor
execute and deliver this Agreement and grant the security interests contemplated
hereby; and
WHEREAS, this Agreement, the Purchase Agreement, the 30 Day Note and
the 60 Day Note are hereinafter sometimes referred to as the "Loan Documents".
NOW, THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged by it, and in order to induce the Secured Party to
sell the Deli-Bon Shares pursuant to the Purchase Agreement, Pledgor agrees with
the Secured Party, as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms when used in this
Agreement, including its preamble and recitals, shall have the following
meanings (such definitions to be equally applicable to the singular and plural
forms thereof):
"Collateral" is defined in Section 2.1.
"Deli-Bon" means Les Produits Deli-Bon, Inc., a Quebec corporation.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from stock splits, reclassifications, warrants,
options, non-cash dividends and other distributions (whether similar or
dissimilar to the foregoing) on or with respect to any Pledged Shares or other
shares of capital stock constituting Collateral, but shall not mean Dividends.
"Dividends" means cash dividends and cash distributions with respect to
any Pledged Shares made out of capital surplus.
<PAGE> 15
"Event of Default" means Pledgor is in default under this Agreement
upon the happening of any of the following events or conditions (each an "Event
of Default"): (a) any default in the timely performance of any covenant or
agreement contained in or secured by this Agreement; (b) the entry of a judgment
or levy against any part of the Collateral or any execution, attachment,
sequestration, distraint warrant or other like or similar writ is issued with
respect to any of the Collateral; (c) the title of Pledgor to the Collateral
becomes the subject of litigation which would or might, in Secured Party's
opinion, upon final determination result in substantial impairment or loss of
the security provided by this Agreement and upon notice by Secured Party to
Pledgor such litigation is not dismissed within 30 days of such notice; or (d)
the occurrence of an Event of Default under the 30 Day Note or the 60 Day Note.
"Initial Pledged Shares" means the capital stock of Deli-Bon more
particularly described in Attachment 1 hereto.
"Pledged Property" means all Pledged Shares, and all other pledged
shares of capital stock, all other securities, all assignments of any amounts
due or to become due, all other instruments which are now being delivered by the
Pledgor to the Secured Party or may from time to time hereafter be delivered by
the Pledgor to the Secured Party for the purpose of pledge under this Agreement
or any other Loan Document, and all proceeds of any of the foregoing.
"Pledged Shares" means the Initial Pledged Shares and all other shares
of capital stock of Deli-Bon, if any, which are delivered by the Secured Party
as Pledged Property hereunder.
"Pledgor" is defined in the preamble.
"Purchase Agreement" is defined in the first recital.
"Ratable" or "Ratably" means, in the context of a distribution of
Collateral or a distribution of proceeds of any of the Collateral, an allocation
of such Collateral or proceeds among the holders of the Deli-Bon Shares pro rata
in accordance with their respective portion of the aggregate dollar amount of
the Deli-Bon Shares to which the distribution is being applied.
"Secured Obligations" is defined in Section 2.2.
"U.C.C." means the Uniform Commercial Code as in effect in the State of
Texas.
SECTION 1.2 Purchase Agreement Definitions. Etc. Unless otherwise
defined herein or the context otherwise requires, terms used in this Agreement,
including its preamble and recitals, have the meanings provided in the Purchase
Agreement. References to the masculine gender shall include the feminine and
neuter genders unless the context otherwise requires.
SECTION 1.3 U.C.C. Definitions. Unless otherwise defined herein or the
context otherwise requires, terms for which meanings are provided in the U.C.C.
are used in this Agreement, including its preamble and recitals, with such
meanings.
<PAGE> 16
ARTICLE 2
PLEDGE
SECTION 2.1 Grant of Security Interest. Pledgor hereby pledges,
assigns, charges, mortgages, delivers and transfers to the Secured Party, and
hereby grants to the Secured Party, a continuing security interest in, all of
the following property (the "Collateral"):
(a) the Initial Pledged Shares;
(b) all Pledged Shares issued from time to time;
(c) all other Pledged Property, whether now or hereafter delivered
to the Secured Party in connection with this Agreement;
(d) all Dividends, Distributions, interest and other payments and
rights with respect to any Pledged Property; and
(e) all proceeds of any of the foregoing.
SECTION 2.2 Security for Secured Obligations. This Agreement secures
the payment in full of all obligations of the Pledgor now or hereafter existing
related to the following:
(a) the 30 Day Note; and
(b) the 60 Day Note.
whether for principal, costs, fees, expenses or otherwise, and all obligations
now or hereafter existing of Pledgor to the Secured Party (collectively, the
"Secured Obligations").
SECTION 2.3 Delivery of Pledged Property; Registration of Pledge,
Transfer, etc. All certificates and instruments representing or evidencing any
Collateral, including all Pledged Shares, shall be delivered to and held by or
on behalf of the Secured Party pursuant hereto, shall be in suitable form for
transfer by delivery, and shall be accompanied by all necessary instruments of
transfer or assignment, duly executed in blank. The Secured Party shall have the
right, at any time and without notice to Pledgor, to transfer to, or to register
in the name of the Secured Party or any of its nominees, any or all of the
Pledged Shares. In addition, the Secured Party shall have the right at any time
to exchange certificates or instruments representing or evidencing any Pledged
Shares for certificates or instruments of smaller or larger denominations.
<PAGE> 17
SECTION 2.4 Continuing Security Interest; Transfer of Note. This
Agreement shall
(a) create a continuing security interest in the Collateral;
(b) remain in full force and effect until payment in full of all
Secured Obligations;
(c) be binding upon Pledgor, its successors and assigns; provided
that Pledgor may not assign any of its rights or obligations
hereunder without the prior written consent of the Secured
Party; and
(d) inure to the benefit of the Secured Party and their respective
successors, transferees and assigns.
Without limiting the foregoing, any holder may assign or otherwise transfer any
other obligation, held by it to any other person, in accordance with the terms
of the Purchase Agreement, and such other person shall thereupon become vested
with all the benefits in respect thereof granted herein, in the other Loan
Documents or otherwise. Upon the payment in full of the Secured Obligations, the
security interest granted herein shall terminate and all rights to the
Collateral shall revert to Pledgor. Upon any such termination, the Secured Party
will, at Pledgor's expense, deliver all certificates and instruments
representing or evidencing all Pledged Shares, together with all other
Collateral held by the Secured Party hereunder, and execute and deliver to
Pledgor (without recourse or representation whatsoever), at Pledgor's expense,
such documents as Pledgor shall reasonably request to evidence such termination.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Warranties, etc. Pledgor represents and warrants unto the
Secured Party that as at the date of each pledge hereunder (including each
pledge of Pledged Shares) by Pledgor to the Secured Party of any Collateral,
(a) Pledgor has all requisite power and authority, and has taken all
necessary corporate action, to execute and deliver and perform its
obligations under this Pledge Agreement and to pledge the Collateral
hereunder.
(b) The execution, delivery and performance of this Agreement by
Pledgor, and the pledge of the Collateral hereunder do not and will not
conflict with, result in any violation of, or constitute any default
under, any provision of any contractual obligation of Pledgor or any
law or government regulation or court decree or order and will not
result in or require the creation or imposition of any lien on any of
Pledgor's properties pursuant to the provisions of any contractual
obligation. This Agreement is the legal, valid and binding obligation
of Pledgor enforceable in accordance with its terms subject to the
effect of
(i) any applicable bankruptcy, insolvency or similar
laws affecting creditors' rights generally; and
<PAGE> 18
(ii) general principles of equity (regardless of
whether considered in a proceeding in equity or at law).
(c) Except as disclosed in the Purchase Agreement, there is no pending
or, to the knowledge of Pledgor, threatened litigation, arbitration or
governmental investigation, proceeding or inquiry against Pledgor, or
to which any of its properties, assets or revenues is subject.
(d) Pledgor will be the legal and beneficial owner of, and will have
good and marketable title to (and will have full right and authority to
pledge and assign) all Collateral, free and clear of all liens or other
charges or encumbrances, except any lien or security interest granted
pursuant hereto in favor of the Secured Party.
(e) The delivery of the Collateral (including the delivery of the
Initial Pledged Shares) to the Secured Party will be effective to
create a valid, perfected, first priority security interest in such
Collateral and all proceeds thereof, securing the Secured Obligations,
and no filing or other action will be necessary to perfect or protect
such security interest.
(f) In the case of any Pledged Shares constituting Collateral, all of
such Pledged Shares will be duly authorized and validly issued, fully
paid, and non-assessable.
(g) No authorization, approval, or other action by, and no notice to or
filing with, any governmental authority will be required either
(i) for the pledge by Pledgor of any Collateral
pursuant to this Agreement or for the execution, delivery, or
performance of this Agreement by Pledgor, or
(ii) for the exercise by the Secured Party of the
voting or other rights provided for in this Agreement, or
(except, with respect to any Pledged Shares, as may be
required in connection with a disposition of such Pledged
Shares by laws affecting the offering and sale of securities
generally) the remedies in respect of the Collateral pursuant
to this Agreement.
ARTICLE 4
COVENANTS
SECTION 4.1 Protect Collateral; Further Assurances. etc. Pledgor will
not sell, assign, transfer, pledge or encumber in any other manner the
Collateral (except in favor of the Secured Party hereunder). Pledgor will
warrant and will use its best efforts to defend the right and title herein
granted unto the Secured Party in and to the Collateral (and all right, title
and interest represented by the Collateral) against the claims and demands of
all Persons whomsoever. Pledgor agrees that at any time, and from time to time,
at the expense of Pledgor, Pledgor will promptly execute and deliver all further
instruments, and take all further action, that may be necessary or desirable, or
that the Secured Party may reasonably request, in order to perfect and protect
any security interest granted or purported to be granted hereby or to enable the
Secured Party to exercise and enforce its rights and remedies hereunder with
respect to any Collateral.
<PAGE> 19
SECTION 4.2 Stock Powers, etc. Pledgor agrees that all Pledged Shares
(and all other shares of capital stock constituting Collateral) delivered by
Pledgor pursuant to this Agreement will be accompanied by duly executed undated
blank stock powers, or other equivalent instruments of transfer acceptable to
the Secured Party. Pledgor will, from time to time upon the request of the
Secured Party, promptly deliver to the Secured Party such stock powers,
instruments and similar documents, satisfactory in form and substance to the
Secured Party, with respect to the Collateral as the Secured Party may
reasonably request and will, from time to time upon the request of the Secured
Party after the occurrence of any default, promptly transfer any Pledged Shares
or other shares of stock constituting Collateral into the name of the Secured
Party or any nominee designated by the Secured Party.
SECTION 4.3 Continuous Pledge. Pledgor will, at all times, keep pledged
to the Secured Party pursuant hereto all Pledged Shares and all other shares of
stock constituting Collateral, all Dividends and Distributions with respect
thereto, and all other Collateral and other securities, instruments, proceeds
and rights from time to time received by or distributable to Pledgor in respect
of any Collateral.
SECTION 4.4 Voting Rights; Dividends, etc. Pledgor agrees to deliver
all Distributions at any time received by it to the Secured Party to be held as
Collateral hereunder and, in addition, to deliver (properly endorsed where
required hereby or requested by the Secured Party) to the Secured Party:
(a) after any Default shall have occurred and be continuing or if any
Default shall occur as a result thereof, promptly upon receipt thereof
by Pledgor and without any request therefor by the Secured Party, all
Dividends, all other cash payments and all proceeds of the Collateral,
all of which shall be held by the Secured Party as additional
collateral for use in accordance with Section 5.4; and
(b) after any Default shall have occurred and be continuing, promptly
upon request of the Secured Party, such proxies and other documents as
may be necessary to allow the Secured Party to exercise the voting
power with respect to any share of capital stock constituting
Collateral;
provided, however, that unless a default shall have occurred and be continuing
or result therefrom, Pledgor shall be entitled to exercise, in its reasonable
judgment, but in a manner not inconsistent with the terms of the Purchase
Agreement or any other Loan Document (including this Agreement), the voting
power and all other incidental rights of ownership with respect to any Pledged
Shares or other shares of capital stock constituting Collateral (subject to
Pledgor's obligation to deliver to the Secured Party such Pledged Shares and
other shares in pledge hereunder).
All Dividends, Distributions, cash payments and proceeds which may at any time
and from time to time be held by Pledgor but which Pledgor is then obligated to
deliver to the Secured Party, shall, until delivery to the Secured Party, be
held by Pledgor separate and apart from its other property in trust for the
Secured Party. The Secured Party agrees that unless a Default shall have
occurred and be continuing, the Secured Party shall, upon the written request of
Pledgor, promptly deliver such proxies and other documents, if any, as shall be
reasonably requested by Pledgor which are necessary to allow Pledgor to exercise
voting power with respect to any share of capital stock (including Pledged
Shares) constituting Collateral; provided, however that no vote shall be cast,
or consent,
<PAGE> 20
waiver or ratification given, or action taken by Pledgor that would impair any
Collateral or be inconsistent with or violate any provision of the Purchase
Agreement or any other Loan Document (including this Agreement).
SECTION 4.5 Sale of Assets. Pledgor will not sell, assign, transfer,
pledge or encumber all or substantially all of the assets that are necessary for
the operations of Deli-Bon as presently conducted.
SECTION 4.6 Payment of the Obligations. The Pledgor will pay each part
of the 30 Day Note and the 60 Day Note and obligations under the Purchase
Agreement when due.
SECTION 4.7 Agreements. Pledgor will comply with and duly and
punctually perform and observe all agreements, covenants, and obligations
contained in the Loan Documents and any other agreement between it and the
Secured Party.
SECTION 4.8 Books and Records; Inspection. Pledgor will maintain in a
secure place on the Pledgor's premises, complete proper and accurate books,
records, ledgers, correspondence, and other papers relating to Deli-Bon's
business and affairs. The Secured Party will at all reasonable times have the
right to examine, inspect, audit, verify, and copy such items, and to remove
copies thereof and to discuss any of same with appropriate officers,
accountants, and auditors of Pledgor.
SECTION 4.9 Notice of Default. Within twenty-four (24) hours of the
discovery by Pledgor of the occurrence of a Default or Event of Default
hereunder or under any of the other Transaction Documents or an event which
could reasonably be expected to result in a Default or Event of Default
hereunder or under any other Loan Document, the Pledgor will notify the Secured
Party and will deliver a certificate signed by the president, chief executive
officer or the chief financial officer of the Pledgor concerning the nature and
period of existence thereof and the steps, if any, being taken to cure such
Default or Event of Default.
SECTION 4.10 Maintenance of Existence, Approvals, and Licenses. Pledgor
will preserve and maintain Deli-Bon's existence, rights, privileges, operations
and franchises in its jurisdiction of creation, qualify and remain qualified in
each jurisdiction in which, under then applicable law, the nature of its
business or the ownership of its properties requires such qualification and
obtain and maintain in full force all approvals, licenses (governmental and
private) permits, and authorizations necessary to conduct its business and
comply with its obligations under the Loan Documents. Pledgor will continue to
operate Deli-Bon in a prudent and businesslike manner.
SECTION 4.11 Compliance with Laws, Material Agreements, and Licenses.
Pledgor will comply with all foreign and domestic laws, rules, regulations,
ordinances, orders, judgments, and decrees applicable to it or any of its
property, a breach of which (when considered alone or when aggregated with the
effect of other breaches) could have a material adverse effect, will comply in
all respects with all material agreements, indentures, mortgages, leases, and
other documents to which it is a party or by which it or any of its property is
bound and will keep in full force and effect all material licenses, permits, and
franchises necessary or useful for the conduct of its business.
SECTION 4.12 Maintenance of Assets and Insurance. Pledgor will keep all
assets which are useful and necessary in the business in good working order and
condition, make all necessary replacements and maintain, or cause to be
maintained, such insurance as is customarily maintained
<PAGE> 21
by other businesses of comparable type and size with such financially sound and
reputable insurers, in such amounts and covering such risks as shall be
satisfactory and acceptable to the Secured Party.
SECTION 4.13 Financial Information. Pledgor will furnish to the Secured
Party with seven (7) days (a) such financial information and information
regarding Payee and Deli-Bon as the Secured Party may from time to time
reasonably request and (b) written notice of the occurrence of any event which
would make any representation contained in Article III untrue at such time.
ARTICLE 5
REMEDIES
SECTION 5.1 Actions upon Event of Default. In addition to its rights
and remedies provided hereunder, whenever an Event of Default shall have
occurred and be continuing, the Secured Party shall have all rights and remedies
of a secured party upon default under the U.C.C. or other applicable law. Any
notification required by law of any intended disposition by the Secured Party of
any of the Collateral shall be deemed reasonably and properly given if given at
least 15 days before such disposition. Without limitation of the above, the
secured Party may, whenever an Event of Default shall have occurred and be
continuing, without prior notice to Pledgor, take all or any of the following
actions:
(a) transfer all or any part of the Collateral into the name of the
Secured Party or its nominee, with or without disclosing that such
Collateral is subject to the lien and security interest hereunder;
(b) notify the parties obligated on any of the Collateral to make
payment to the Secured Party of any amount due or to become due
thereunder;
(c) enforce collection of any of the Collateral by suit or otherwise,
and surrender, release or exchange all or any part thereof, or
compromise or extend or renew for any period (whether or not longer
than the original period) any obligations of any nature of any party
with respect thereto;
(d) endorse any checks, drafts, or other writings in Pledgor's name to
allow collection of the Collateral;
(e) take control of any proceeds of the Collateral; and
(f) execute (in the name, place and stead of Pledgor) endorsements,
assignments, stock powers and other instruments of conveyance or
transfer with respect to all or any of the Collateral.
SECTION 5.2 Attorney-in-Fact. Pledgor hereby irrevocably appoints the
Secured Party its attorney-in-fact, with full authority in the place and stead
of Pledgor and in the name of Pledgor, the Secured Party, or otherwise, from
time to time in the Secured Party's discretion, to take any action and to
execute any instrument which the Secured Party may deem necessary or advisable
to
<PAGE> 22
accomplish the purposes of this Agreement, including, upon the occurrence and
continuance of an Event of Default, all actions described in Section 5.1.
SECTION 5.3 Private Sales.
(a) Pledgor recognizes that the Secured Party may be unable to effect a
public sale of any or all the Pledged Shares by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act") and applicable state securities laws or otherwise,
and may be compelled to resort to one or more private sales thereof to
a restricted group of purchasers that will be obliged to agree, among
other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof.
Pledgor acknowledges and agrees that any such private sale may result
in prices and other terms less favorable than if such sale were a
public sale and, notwithstanding such circumstances, agrees that any
such private sale shall be deemed to have been made in a commercially
reasonable manner. The Secured Party shall be under no obligation to
delay sale of any of the Pledged Shares for the period of time
necessary to permit the Pledgor to register such securities for public
sale under the Securities Act, or under applicable state securities
laws, even if Deli-Bon would agree to do so.
(b) Pledgor further agrees to use its best efforts to do or cause to be
done all such acts as may be necessary to make such sale or sales of
all or any portion of the Pledged Shares pursuant to this Section 5.3
valid and binding and in compliance with any and all other applicable
requirements of law.
SECTION 5.4 Application of Proceeds. All cash proceeds received by the
Secured Party in respect of any sale of, collection from, or other realization
upon, all or any part of the Collateral may, in the discretion of the Secured
Party, be held by the Secured Party as additional collateral security for, or
then or at any time thereafter be applied in whole or in part by the Secured
Party against, all or any part of the Secured Obligations in the following
order:
(a) first, Ratably, to the principal then due on the 30 Day Note;
(b) second, Ratably, to the principal then due on the 60 Day Note;
(c) third, to any other Secured Obligations then due or owing.
Any surplus of such cash or cash proceeds held by the Secured Party and
remaining after payment in full of all the Secured Obligations shall be paid
over to Pledgor or to whomsoever may be lawfully entitled to receive such
surplus.
SECTION 5.5 Indemnity and Expenses. Pledgor hereby indemnifies and
holds harmless the Secured Party from and against any and all claims, losses,
and liabilities growing out of or resulting from this Agreement (including
enforcement of this Agreement), except claims, losses, or liabilities resulting
from the Secured Party's gross negligence or wilful misconduct. Upon demand,
Pledgor will pay, or cause to be paid, to the Secured Party the amount of any
and all reasonable expenses, including the reasonable fees and disbursements of
its counsel and of any experts and agents, which the Secured Party may incur in
connection with:
<PAGE> 23
(a) the administration of this Agreement;
(b) the custody, preservation, use, or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral;
(c) the exercise or enforcement of any of the rights of the Secured
Party hereunder and any action taken by the Secured Party under Section
6.5; or
(d) the failure by Pledgor to perform or observe any of the provisions
hereof.
ARTICLE 6
MISCELLANEOUS
SECTION 6.1 Amendments, etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure by Pledgor herefrom shall in any
event be effective unless the same shall be in writing, signed by the Secured
Party and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it is given.
SECTION 6.2 Obligations Not Affected. The obligations of Pledgor under
this Agreement shall remain in full force and effect without regard to, and
shall not be impaired or affected by:
(a) any amendment or modification or addition or supplement to the
Purchase Agreement, any other Loan Document, any instrument delivered
in connection therewith or any assignment or transfer thereof;
(b) any exercise, non-exercise or waiver by the Secured Party of any
right, remedy, power or privilege under or in respect of, or any
release of any guaranty or collateral provided pursuant to this
Agreement, the Purchase Agreement or any Loan Document;
(c) any waiver, consent, extension, indulgence or other action or
inaction in respect of this Agreement, the Purchase Agreement or any
Loan Document or any assignment or transfer of any thereof; or
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like, death or
incompetency of the Pledgor or any other Person, whether or not Pledgor
shall have notice or knowledge of any of the foregoing.
SECTION 6.3 Protection of Collateral. The Secured Party may from time
to time, at its option, perform any act which Pledgor agrees hereunder to
perform and which Pledgor shall fail to perform after being requested in writing
to so perform (it being understood that no such request need be given after the
occurrence and during the continuance of an Event of Default) and the Secured
Party may from time to time take any other action which the Secured Party
reasonably deems necessary for the maintenance, preservation or protection of
any of the Collateral or of its security interest therein.
SECTION 6.4 Addresses for Notices. All notices and other communications
provided for hereunder to any party hereto under this Agreement shall be in
writing or by facsimile and addressed
<PAGE> 24
or delivered to it at the address set forth below its signature hereto, or as to
any party at such other address as shall be designated by such party in a
written notice to each other party complying as to delivery with the terms of
this Section. Any such notice, if mailed and properly addressed with postage
prepaid, shall be deemed given seven (7) calendar days after mailing; any
notice, if transmitted by facsimile shall be deemed given when transmitted on a
business day (with evidence of transmission confirmation).
SECTION 6.5 Governing Law; Jurisdiction.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
(b) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY TEXAS STATE OR FEDERAL COURT SITTING IN DALLAS, TEXAS IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR RELATED DOCUMENT (AND PLEDGOR AGREES THAT SUCH JURISDICTION
WILL BE EXCLUSIVE WITH RESPECT TO CLAIMS BROUGHT BY PLEDGOR AGAINST THE SECURED
PARTY), AND EACH HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH TEXAS STATE OR FEDERAL
COURT. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF ANY INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING.
(c) Pledgor hereby irrevocably designates, appoints and empowers C.T.
Corporation System, 350 N. St. Paul Street, Suite 2900, Dallas, Texas 75201, as
its authorized agent to receive, for and on its behalf and on behalf of its
property, service of process in the State of Texas when and as such legal
actions or proceedings may be brought in the courts of the State of Texas or of
the United States of America sitting in Texas, and such service of process shall
be deemed complete upon the date of delivery thereof to such agent whether or
not such agent gives notice thereof to Pledgor, or upon the earliest of any
other date permitted by applicable law. It is understood that a copy of said
process served on such agent will as soon as practicable be forwarded to
Pledgor, at its address set forth below, but Pledgor's failure to receive such
copy shall not affect in any way the service of said process on said agent as
the agent of Pledgor. Pledgor irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by the
mailing of the copies thereof by certified mail, return receipt requested,
postage prepaid, to Pledgor at its address set forth below, such service to
become effective upon the earlier of (i) the date 10 calendar days after such
mailing or (ii) any earlier date permitted by applicable law. Pledgor agrees
that it will at all times continuously maintain an agent to receive service of
process in the State of Texas and in the event that, for any reason, the agent
named above or its successor shall no longer serve as its agent to receive
service of process in the State of Texas on its behalf, it shall promptly
appoint a successor so to serve and shall advise the Secured Party. Nothing in
this Section 6.5 shall affect the right of the Secured Party to bring
proceedings against Pledgor in the courts of any other jurisdiction or to serve
process in any other manner permitted by applicable law.
SECTION 6.6 Waiver of Jury Trial. Etc. THE SECURED PARTY, AND PLEDGOR
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS
<PAGE> 25
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR RELATED DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE SECURED PARTY OR
PLEDGOR. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURED PARTY'S
ENTERING INTO THE PURCHASE AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
THE UNIMARK GROUP, INC.,
A Texas corporation
By:
--------------------------------------
Soren Bjorn
Chief Executive Officer, President and
Secretary
Address: P.O. Box 229
Bartonville, Texas 76226
Telecopy No.: (817) 491-1272
Attention: Soren Bjorn
<PAGE> 26
FRANCOIS GRAVIL - GUY PICARD
In trust for the company to be owned and
operated by Francois Gravil and Guy Picard
---------------------------------
Francois Gravil
---------------------------------
Guy Picard
Telecopy No.: (418) 842-8926
STATE OF TEXAS )
)
COUNTY OF DALLAS )
On the 11th day of October, 1999 before me personally came FRANCOIS
GRAVIL, to me known who, being sworn, did depose and say that he is to own and
operate the entity to be formed as Francois Gravil - Guy Picard with Guy Picard,
described in and which executed the foregoing instrument and that he signed his
name thereto in trust for, and on behalf of, said company to be owned and
operated by Francois Gravil and Guy Picard.
----------------------------------------------
Notary Public
STATE OF TEXAS )
)
COUNTY OF DALLAS )
On the 11th day of October, 1999 before me personally came GUY PICARD,
to me known who, being sworn, did depose and say that he is to own and operate
the entity to be formed as Francois Gravil - Guy Picard with Francois Gravil,
described in and which executed the foregoing instrument; and that he signed his
name thereto in trust for, and on behalf of, said company to be owned and
operated by Francois Gravil and Guy Picard.
----------------------------------------------
Notary Public
<PAGE> 27
ATTACHMENT 1
(to the Pledge Agreement)
INITIAL PLEDGED SHARES
49% OF OUTSTANDING DELI-BON SHARES
<TABLE>
<CAPTION>
Stock Number of Shares Pledged (49%) Certificate Number
----- ------------------------------ ------------------
<S> <C> <C>
Common Stock 710,500 C-3
</TABLE>
ATTACHMENT 1 - Solo Page
<PAGE> 28
EXHIBIT D
60 DAY NOTE
<PAGE> 29
60 DAY SECURED NOTE
$400,000 (U.S.) Dallas, Texas October 11, 1999
FOR VALUE RECEIVED, the undersigned, Francois Gravil - Guy Picard, in
trust for the company to be owned and operated by Francois Gravil and Guy Picard
("Maker"), promises to pay to the order of The UniMark Group, Inc., a Texas
corporation ("Payee"), whose principal office is located at 124 McMakin Road,
Bartonville, Texas 76226, the principal sum of Four Hundred Thousand Dollars
($400,000), payable as provided herein, without interest.
The principal shall be due and payable by the Maker to the Payee on
December 10, 1999 (60 days from October 11, 1999).
Principal under this Note, or any portion thereof, may be prepaid
without penalty.
This Note is issued and delivered under and in subject to the terms and
provisions of that certain Stock Purchase Agreement (the "Stock Purchase
Agreement") dated of even date herewith, by and among Payee and Maker. This Note
is secured by a Short-term Pledge Agreement and a Long-term Pledge Agreement
(collectively, the "Pledge Agreements"), each dated October 11, 1999, executed
by the undersigned in favor of the holder hereto, covering all of the issued and
outstanding shares of capital stock of Les Produits Deli-Bon, Inc., a Quebec
corporation ("Deli-Bon") more fully described in Exhibit A hereto attached
hereto (the "Deli-Bon Shares"). Reference is made to the Pledge Agreements for a
statement of the rights and obligations of the Payee, a description of the
nature and extent of the security and the rights of the parties in respect to
such security.
Maker, and any endorser or guarantors of this Note and all other
persons who may become liable for all or any part of the obligations represented
by this Note, severally waive presentment for payment, protest, notice of
protest and of nonpayment, notice of intention to accelerate, and notice of
acceleration.
The following shall constitute Events of Default ("Event(s) of
Default"):
(a) default in the due and punctual payment of the principal
of the Note, when and as such payment shall become due and payable,
whether at maturity or by acceleration or otherwise if such payment is
not made within ten (10) days of written notice mailed by Payee to
Maker; or
(b) default in the performance or observance of any covenant
or agreement of Maker in this Note or the Pledge Agreements other than
as described in paragraph (a) above and the continuance of such default
for a period of seven (7) days after the Payee has sent Maker written
notice specifying such default and requiring that it be remedied,
provided that no such default shall be deemed to occur if such default
may not be cured within seven (7) days, if within said period the Maker
has commenced and thereafter
<PAGE> 30
diligently and continuously pursues to cure such default, and the
default is cured, in any event, within fourteen (14) days; or
(c) the filing by the Maker of a petition instituting any
state or federal insolvency, bankruptcy, reorganization, arrangement,
composition, or other debtor relief proceeding; the petition of or
application to any tribunal for a receiver or trustee for itself or for
any substantial part of any of its property; or
(d) the sale or transfer of all or substantially all of the
assets of Deli-Bon or Maker.
If an Event of Default occurs, then and in any such case Payee may
declare the outstanding principal amount of the Note to be due and payable
immediately, upon written notice to the Maker, and, upon any such declaration,
the outstanding principal amount of the Note, together with all costs of
collection, including reasonable attorneys' fees if collected by law or through
an attorney at law, shall immediately become due and payable.
Not withstanding anything to the contrary contained herein, no
provisions of this Note shall require the payment or permit the collection of
interest in excess of the maximum rate permitted by applicable law. If any
interest in excess of such maximum rate is herein provided for, or shall be
adjudicated to be so provided, in this Note or otherwise in connection with this
transaction giving rise to the execution hereof, the provisions of this
paragraph shall govern and prevail, and neither Maker nor the sureties,
guarantors, successors or assigns of the Maker shall be obligated to pay the
excess amount of such interest or any other excess sum paid for the use,
forbearance or detention of sums loaned pursuant hereto. If for any reason
interest in excess of the maximum rate of interest permitted by applicable law
shall be deemed, charged, required or permitted by a court of competent
jurisdiction, any such excess shall be applied as a payment and reduction of the
principal of indebtedness evidenced by this Note; and, if the principal amount
hereof has been paid in full, any remaining excess shall forthwith be paid to
Maker.
This note is made and is performable in Bartonville, Denton County,
Texas, and Maker waives the right to be sued hereon elsewhere. This Note shall
be governed by and construed in accordance with the laws of the State of Texas
and the applicable laws of the United States of America.
<PAGE> 31
IN WITNESS WHEREOF, the undersigned has executed this Note as of the
11th day of October, 1999.
MAKER:
FRANCOIS GRAVIL - GUY PICARD
In trust for the company to be owned and operated
by Francois Gravil and Guy Picard
----------------------------------------
Francois Gravil
----------------------------------------
Guy Picard
<PAGE> 32
EXHIBIT A
ALL OF THE DELI-BON SHARES
<TABLE>
<CAPTION>
Stock Number of Shares Certificate Number.
----- ---------------- -------------------
<S> <C> <C>
Common Stock 710,500 C-3
Common Stock 739,500 C-4
</TABLE>
<PAGE> 33
EXHIBIT E
FIVE YEAR NOTE
<PAGE> 34
FIVE YEAR SECURED NOTE
$303,932 (U.S.) Dallas, Texas October 11, 1999
FOR VALUE RECEIVED, the undersigned, Francois Gravil - Guy Picard, in
trust for the company to be owned and operated by Francois Gravil and Guy Picard
("Maker"), promises to pay to the order of The UniMark Group, Inc., a Texas
corporation ("Payee"), whose principal office is located at 124 McMakin Road,
Bartonville, Texas 76226, the principal sum of Three Hundred Three Thousand Nine
Hundred Thirty-Two Dollars ($303,932), payable as provided herein, plus accrued
interest on the outstanding principal balance, at a rate of 8.75% per annum as
herein specified.
The principal plus accrued interest thereon shall be due and payable by
the Maker to the Payee over five years in monthly installments of $6,272,
beginning on November 15, 1999. All past due interest shall bear interest at the
highest rate permitted by applicable law.
Principal and accrued interest under this Note, or any portion thereof,
may be prepaid without penalty. All payments and prepayments shall be applied
first to accrued and unpaid interest, and the balance of any such payments or
prepayments shall be applied to outstanding principal in the order of maturity.
This Note is issued and delivered under and in subject to the terms and
provisions of that certain Stock Purchase Agreement (the "Stock Purchase
Agreement") dated of even date herewith, by and among Payee and Maker. This Note
is secured by a Long-term Pledge Agreement dated October 11, 1999, executed by
the undersigned in favor of the holder hereto, covering 51% of the issued and
outstanding shares of capital stock of Les Produits Deli-Bon, Inc., a Quebec
corporation ("Deli-Bon") more fully described in Exhibit A hereto attached
hereto (the "Deli-Bon Shares"). Reference is made to the Long-term Pledge
Agreement for a statement of the rights and obligations of the Payee, a
description of the nature and extent of the security and the rights of the
parties in respect to such security.
Maker, and any endorser or guarantors of this Note and all other
persons who may become liable for all or any part of the obligations represented
by this Note, severally waive presentment for payment, protest, notice of
protest and of nonpayment, notice of intention to accelerate, and notice of
acceleration.
The following shall constitute Events of Default ("Event(s) of
Default"):
(a) default in the due and punctual payment of the principal
of the Note, or any interest accrued thereon, when and as such payment
shall become due and payable, whether at maturity or by acceleration or
otherwise if such payment is not made within ten (10) days of written
notice has been mailed by Payee to Maker; or
(b) default in the performance or observance of any covenant
or agreement of the Company in this Note or the Long-term Pledge
Agreement other than as described in
<PAGE> 35
paragraph (a) above and the continuance of such default for a period of
thirty (30) days after the Payee has sent Maker written notice
specifying such default and requiring that it be remedied, provided
that no such default shall be deemed to occur if such default may not
be cured within thirty (30) days, if within said period the Maker has
commenced and thereafter diligently and continuously pursues to cure
such default, and the default is cured, in any event, within one
hundred twenty (120) days; or
(c) the filing by the Maker of a petition instituting any
state or federal insolvency, bankruptcy, reorganization, arrangement,
composition, or other debtor relief proceeding; the petition of or
application to any tribunal for a receiver or trustee for itself or for
any substantial part of any of its property; or
(d) the sale or transfer of all or substantially all of the
assets of Deli-Bon or Maker.
If an Event of Default occurs, then and in any such case Payee may
declare the outstanding principal amount of the Note to be due and payable
immediately, upon written notice to the Maker, and, upon any such declaration,
the outstanding principal amount of the Note, and the interest accrued thereon,
together with all costs of collection, including reasonable attorneys' fees if
collected by law or through an attorney at law, shall immediately become due and
payable.
Not withstanding anything to the contrary contained herein, no
provisions of this Note shall require the payment or permit the collection of
interest in excess of the maximum rate permitted by applicable law. If any
interest in excess of such maximum rate is herein provided for, or shall be
adjudicated to be so provided, in this Note or otherwise in connection with this
transaction giving rise to the execution hereof, the provisions of this
paragraph shall govern and prevail, and neither Maker nor the sureties,
guarantors, successors or assigns of the Maker shall be obligated to pay the
excess amount of such interest or any other excess sum paid for the use,
forbearance or detention of sums loaned pursuant hereto. If for any reason
interest in excess of the maximum rate of interest permitted by applicable law
shall be deemed, charged, required or permitted by a court of competent
jurisdiction, any such excess shall be applied as a payment and reduction of the
principal of indebtedness evidenced by this Note; and, if the principal amount
hereof has been paid in full, any remaining excess shall forthwith be paid to
Maker.
This note is made and is performable in Bartonville, Denton County,
Texas, and Maker waives the right to be sued hereon elsewhere. This Note shall
be governed by and construed in accordance with the laws of the State of Texas
and the applicable laws of the United States of America.
<PAGE> 36
IN WITNESS WHEREOF, the undersigned has executed this Note as of the
11th day of October, 1999.
MAKER:
FRANCOIS GRAVIL - GUY PICARD
In trust for the company to be owned and operated
by Francois Gravil and Guy Picard
----------------------------------------
Francois Gravil
----------------------------------------
Guy Picard
<PAGE> 37
EXHIBIT A
DELI-BON SHARES
<TABLE>
<CAPTION>
Stock Number of Shares Certificate Number.
----- ---------------- -------------------
<S> <C> <C>
Common Stock 739,500 C-4
</TABLE>
<PAGE> 38
EXHIBIT F
LONG-TERM PLEDGE AGREEMENT
<PAGE> 39
LONG-TERM PLEDGE AGREEMENT
THIS LONG-TERM PLEDGE AGREEMENT (this "Agreement"), dated as of October
11, 1999, between Francois Gravil - Guy Picard, in trust for the company to be
owned and operated by Francois Gravil and Guy Picard (the "Pledgor"), and The
UniMark Group, Inc., a Texas corporation (the "Secured Party").
W I T N E S S E T H:
WHEREAS, the Pledgor, has entered into that certain Stock Purchase
Agreement dated October 11, 1999 (the "Purchase Agreement")(certain capitalized
terms used herein which are defined in the Purchase Agreement shall have the
same meanings when used herein, unless otherwise defined herein) with the
Secured Party, as Purchaser, pursuant to which, among other things, the Pledgor
has agreed to purchase from the Secured Party, and the Secured Party has agreed
to sell to the Pledgor, all of the issued and outstanding shares of capital
stock of Les Produits Deli-Bon, Inc., a Quebec corporation (the "Deli-Bon
Shares"); and
WHEREAS, it is a condition precedent to the obligation of the Secured
Party to sell the Deli-Bon Shares under the Purchase Agreement, that the Pledgor
execute and deliver this Security Agreement and grant the security interests
contemplated hereby; and
WHEREAS, this Agreement, the Purchase Agreement, the 30 Day Note, the
60 Day Note and the 5 Year Note are hereinafter sometimes referred to as the
"Loan Documents".
NOW, THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged by it, and in order to induce the Secured Party to
sell the Deli-Bon Shares pursuant to the Purchase Agreement, Pledgor agrees with
the Secured Party, as follows:
ARTICLE 7
DEFINITIONS
SECTION 7.1 Certain Terms. The following terms when used in this
Agreement, including its preamble and recitals, shall have the following
meanings (such definitions to be equally applicable to the singular and plural
forms thereof):
"Collateral" is defined in Section 2.1.
"Deli-Bon" means Les Produits Deli-Bon, Inc., a Quebec corporation.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from stock splits, reclassifications, warrants,
options, non-cash dividends and other distributions (whether similar or
dissimilar to the foregoing) on or with respect to any Pledged Shares or other
shares of capital stock constituting Collateral, but shall not mean Dividends.
<PAGE> 40
"Dividends" means cash dividends and cash distributions with respect to
any Pledged Shares made out of capital surplus.
"Event of Default" means Pledgor is in default under this Agreement
upon the happening of any of the following events or conditions (each an "Event
of Default"): (a) any default in the timely performance of any covenant or
agreement contained in or secured by this Agreement; (b) the entry of a judgment
or levy against any part of the Collateral or any execution, attachment,
sequestration, distraint warrant or other like or similar writ is issued with
respect to any of the Collateral; (c) the title of Pledgor to the Collateral
becomes the subject of litigation which would or might, in Secured Party's
opinion, upon final determination result in substantial impairment or loss of
the security provided by this Agreement and upon notice by Secured Party to
Pledgor such litigation is not dismissed within 30 days of such notice; or (d)
the occurrence of an Event of Default under the 30 Day Note, the 60 Day Note, or
the 5 Year Note.
"Initial Pledged Shares" means the capital stock of Deli-Bon more
particularly described in Attachment 1 hereto.
"Pledged Property" means all Pledged Shares, and all other pledged
shares of capital stock, all other securities, all assignments of any amounts
due or to become due, all other instruments which are now being delivered by the
Pledgor to the Secured Party or may from time to time hereafter be delivered by
the Pledgor to the Secured Party for the purpose of pledge under this Agreement
or any other Loan Document, and all proceeds of any of the foregoing.
"Pledged Shares" means the Initial Pledged Shares and all other shares
of capital stock of Deli-Bon, if any, which are delivered by the Secured Party
as Pledged Property hereunder.
"Pledgor" is defined in the preamble.
"Purchase Agreement" is defined in the first recital.
"Ratable" or "Ratably" means, in the context of a distribution of
Collateral or a distribution of proceeds of any of the Collateral, an allocation
of such Collateral or proceeds among the holders of the Deli-Bon Shares pro rata
in accordance with their respective portion of the aggregate dollar amount of
the Deli-Bon Shares to which the distribution is being applied.
"Secured Obligations" is defined in Section 2.2.
"U.C.C." means the Uniform Commercial Code as in effect in the State of
Texas.
SECTION 7.2 Purchase Agreement Definitions. Etc. Unless otherwise
defined herein or the context otherwise requires, terms used in this Agreement,
including its preamble and recitals, have the meanings provided in the Purchase
Agreement. References to the masculine gender shall include the feminine and
neuter genders unless the context otherwise requires.
<PAGE> 41
SECTION 7.3 U.C.C. Definitions. Unless otherwise defined herein or the
context otherwise requires, terms for which meanings are provided in the U.C.C.
are used in this Agreement, including its preamble and recitals, with such
meanings.
ARTICLE 8
PLEDGE
SECTION 8.1 Grant of Security Interest. Pledgor hereby pledges,
assigns, charges, mortgages, delivers and transfers to the Secured Party, and
hereby grants to the Secured Party, a continuing security interest in, all of
the following property (the "Collateral"):
(a) the Initial Pledged Shares;
(b) all Pledged Shares issued from time to time;
(c) all other Pledged Property, whether now or hereafter delivered
to the Secured Party in connection with this Agreement;
(d) all Dividends, Distributions, interest and other payments and
rights with respect to any Pledged Property; and
(e) all proceeds of any of the foregoing.
SECTION 8.2 Security for Secured Obligations. This Agreement secures
the payment in full of all obligations of the Pledgor now or hereafter existing
related to the 30 Day Note, 60 Day Note and 5 Year Note, whether for principal,
interest, costs, fees, expenses or otherwise, and all obligations now or
hereafter existing of Pledgor to the Secured Party (collectively, the "Secured
Obligations").
SECTION 8.3 Delivery of Pledged Property; Registration of Pledge,
Transfer, etc. All certificates and instruments representing or evidencing any
Collateral, including all Pledged Shares, shall be delivered to and held by or
on behalf of the Secured Party pursuant hereto, shall be in suitable form for
transfer by delivery, and shall be accompanied by all necessary instruments of
transfer or assignment, duly executed in blank. The Secured Party shall have the
right, at any time and without notice to Pledgor, to transfer to, or to register
in the name of the Secured Party or any of its nominees, any or all of the
Pledged Shares. In addition, the Secured Party shall have the right at any time
to exchange certificates or instruments representing or evidencing any Pledged
Shares for certificates or instruments of smaller or larger denominations.
SECTION 8.4 Continuing Security Interest; Transfer of Note. This
Agreement shall
(a) create a continuing security interest in the Collateral;
(b) remain in full force and effect until payment in full of all
Secured Obligations;
<PAGE> 42
(c) be binding upon Pledgor, its successors and assigns; provided
that Pledgor may not assign any of its rights or obligations
hereunder without the prior written consent of the Secured
Party; and
(d) inure to the benefit of the Secured Party and their respective
successors, transferees and assigns.
Without limiting the foregoing, any holder may assign or otherwise transfer any
other obligation, held by it to any other person, in accordance with the terms
of the Purchase Agreement, and such other person shall thereupon become vested
with all the benefits in respect thereof granted herein, in the other Loan
Documents or otherwise. Upon the payment in full of the Secured Obligations, the
security interest granted herein shall terminate and all rights to the
Collateral shall revert to Pledgor. Upon any such termination, the Secured Party
will, at Pledgor's expense, deliver all certificates and instruments
representing or evidencing all Pledged Shares, together with all other
Collateral held by the Secured Party hereunder, and execute and deliver to
Pledgor (without recourse or representation whatsoever), at Pledgor's expense,
such documents as Pledgor shall reasonably request to evidence such termination.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES
SECTION 9.1 Warranties, etc. Pledgor represents and warrants unto the
Secured Party that as at the date of each pledge hereunder (including each
pledge of Pledged Shares) by Pledgor to the Secured Party of any Collateral,
(a) Pledgor has all requisite power and authority, and has taken all
necessary corporate action, to execute and deliver and perform its
obligations under this Pledge Agreement and to pledge the Collateral
hereunder.
(b) The execution, delivery and performance of this Agreement by
Pledgor, and the pledge of the Collateral hereunder do not and will not
conflict with, result in any violation of, or constitute any default
under, any provision of any contractual obligation of Pledgor or any
law or government regulation or court decree or order and will not
result in or require the creation or imposition of any lien on any of
Pledgor's properties pursuant to the provisions of any contractual
obligation. This Agreement is the legal, valid and binding obligation
of Pledgor enforceable in accordance with its terms subject to the
effect of
(i) any applicable bankruptcy, insolvency or similar
laws affecting creditors' rights generally; and
(ii) general principles of equity (regardless of
whether considered in a proceeding in equity or at law).
(c) Except as disclosed in the Purchase Agreement, there is no pending
or, to the knowledge of Pledgor, threatened litigation, arbitration or
governmental investigation,
<PAGE> 43
proceeding or inquiry against Pledgor, or to which any of its
properties, assets or revenues is subject.
(d) Pledgor will be the legal and beneficial owner of, and will have
good and marketable title to (and will have full right and authority to
pledge and assign) all Collateral, free and clear of all liens or other
charges or encumbrances, except any lien or security interest granted
pursuant hereto in favor of the Secured Party.
(e) The delivery of the Collateral (including the delivery of the
Initial Pledged Shares) to the Secured Party will be effective to
create a valid, perfected, first priority security interest in such
Collateral and all proceeds thereof, securing the Secured Obligations,
and no filing or other action will be necessary to perfect or protect
such security interest.
(f) In the case of any Pledged Shares constituting Collateral, all of
such Pledged Shares will be duly authorized and validly issued, fully
paid, and non-assessable.
(g) No authorization, approval, or other action by, and no notice to or
filing with, any governmental authority will be required either
(i) for the pledge by Pledgor of any Collateral
pursuant to this Agreement or for the execution, delivery, or
performance of this Agreement by Pledgor, or
(ii) for the exercise by the Secured Party of the
voting or other rights provided for in this Agreement, or
(except, with respect to any Pledged Shares, as may be
required in connection with a disposition of such Pledged
Shares by laws affecting the offering and sale of securities
generally) the remedies in respect of the Collateral pursuant
to this Agreement.
ARTICLE 10
COVENANTS
SECTION 10.1 Protect Collateral; Further Assurances. etc. Pledgor will
not sell, assign, transfer, pledge or encumber in any other manner the
Collateral (except in favor of the Secured Party hereunder). Pledgor will
warrant and will use its best efforts to defend the right and title herein
granted unto the Secured Party in and to the Collateral (and all right, title
and interest represented by the Collateral) against the claims and demands of
all Persons whomsoever. Pledgor agrees that at any time, and from time to time,
at the expense of Pledgor, Pledgor will promptly execute and deliver all further
instruments, and take all further action, that may be necessary or desirable, or
that the Secured Party may reasonably request, in order to perfect and protect
any security interest granted or purported to be granted hereby or to enable the
Secured Party to exercise and enforce its rights and remedies hereunder with
respect to any Collateral.
SECTION 10.2 Stock Powers, etc. Pledgor agrees that all Pledged Shares
(and all other shares of capital stock constituting Collateral) delivered by
Pledgor pursuant to this Agreement
<PAGE> 44
will be accompanied by duly executed undated blank stock powers, or other
equivalent instruments of transfer acceptable to the Secured Party. Pledgor
will, from time to time upon the request of the Secured Party, promptly deliver
to the Secured Party such stock powers, instruments and similar documents,
satisfactory in form and substance to the Secured Party, with respect to the
Collateral as the Secured Party may reasonably request and will, from time to
time upon the request of the Secured Party after the occurrence of any default,
promptly transfer any Pledged Shares or other shares of stock constituting
Collateral into the name of the Secured Party or any nominee designated by the
Secured Party.
SECTION 10.3 Continuous Pledge. Pledgor will, at all times, keep
pledged to the Secured Party pursuant hereto all Pledged Shares and all other
shares of stock constituting Collateral, all Dividends and Distributions with
respect thereto, and all other Collateral and other securities, instruments,
proceeds and rights from time to time received by or distributable to Pledgor in
respect of any Collateral.
SECTION 10.4 Voting Rights; Dividends, etc. Pledgor agrees to deliver
all Distributions at any time received by it to the Secured Party to be held as
Collateral hereunder and, in addition, to deliver (properly endorsed where
required hereby or requested by the Secured Party) to the Secured Party:
(a) after any Default shall have occurred and be continuing or if any
Default shall occur as a result thereof, promptly upon receipt thereof
by Pledgor and without any request therefor by the Secured Party, all
Dividends, all other cash payments and all proceeds of the Collateral,
all of which shall be held by the Secured Party as additional
collateral for use in accordance with Section 5.4; and
(b) after any Default shall have occurred and be continuing, promptly
upon request of the Secured Party, such proxies and other documents as
may be necessary to allow the Secured Party to exercise the voting
power with respect to any share of capital stock constituting
Collateral;
provided, however, that unless a default shall have occurred and be continuing
or result therefrom, Pledgor shall be entitled to exercise, in its reasonable
judgment, but in a manner not inconsistent with the terms of the Purchase
Agreement or any other Loan Document (including this Agreement), the voting
power and all other incidental rights of ownership with respect to any Pledged
Shares or other shares of capital stock constituting Collateral (subject to
Pledgor's obligation to deliver to the Secured Party such Pledged Shares and
other shares in pledge hereunder).
All Dividends, Distributions, cash payments and proceeds which may at any time
and from time to time be held by Pledgor but which Pledgor is then obligated to
deliver to the Secured Party, shall, until delivery to the Secured Party, be
held by Pledgor separate and apart from its other property in trust for the
Secured Party. The Secured Party agrees that unless a Default shall have
occurred and be continuing, the Secured Party shall, upon the written request of
Pledgor, promptly deliver such proxies and other documents, if any, as shall be
reasonably requested by Pledgor which are necessary to allow Pledgor to exercise
voting power with respect to any share of capital stock (including Pledged
Shares) constituting Collateral; provided, however that no vote shall be cast,
or consent,
<PAGE> 45
waiver or ratification given, or action taken by Pledgor that would impair any
Collateral or be inconsistent with or violate any provision of the Purchase
Agreement or any other Loan Document (including this Agreement).
SECTION 10.5 Sale of Assets. Pledgor will not sell, assign, transfer,
pledge or encumber all or substantially all of the assets that are necessary for
the operations of Deli-Bon as presently conducted.
SECTION 10.6 Payment of the Obligations. The Pledgor will pay each part
of the 30 Day Note, 60 Day Note, 5 Year Note and obligations under the Purchase
Agreement when due.
SECTION 10.7 Agreements. Pledgor will comply with and duly and
punctually perform and observe all agreements, covenants, and obligations
contained in the Loan Documents and any other agreement between it and the
Secured Party.
SECTION 10.8 Books and Records; Inspection. Pledgor will maintain in a
secure place on the Pledgor's premises, complete proper and accurate books,
records, ledgers, correspondence, and other papers relating to Deli-Bon's
business and affairs. The Secured Party will at all reasonable times have the
right to examine, inspect, audit, verify, and copy such items, and to remove
copies thereof and to discuss any of same with appropriate officers,
accountants, and auditors of Pledgor.
SECTION 10.9 Notice of Default. Within twenty-four (24) hours of the
discovery by Pledgor of the occurrence of a Default or Event of Default
hereunder or under any of the other Transaction Documents or an event which
could reasonably be expected to result in a Default or Event of Default
hereunder or under any other Loan Document, the Pledgor will notify the Secured
Party and will deliver a certificate signed by the president, chief executive
officer or the chief financial officer of the Pledgor concerning the nature and
period of existence thereof and the steps, if any, being taken to cure such
Default or Event of Default.
SECTION 10.10 Maintenance of Existence, Approvals, and Licenses.
Pledgor will preserve and maintain Deli-Bon's existence, rights, privileges,
operations and franchises in its jurisdiction of creation, qualify and remain
qualified in each jurisdiction in which, under then applicable law, the nature
of its business or the ownership of its properties requires such qualification
and obtain and maintain in full force all approvals, licenses (governmental and
private) permits, and authorizations necessary to conduct its business and
comply with its obligations under the Loan Documents. Pledgor will continue to
operate Deli-Bon in a prudent and businesslike manner.
SECTION 10.11 Compliance with Laws, Material Agreements, and Licenses.
Pledgor will comply with all foreign and domestic laws, rules, regulations,
ordinances, orders, judgments, and decrees applicable to it or any of its
property, a breach of which (when considered alone or when aggregated with the
effect of other breaches) could have a material adverse effect, will comply in
all respects with all material agreements, indentures, mortgages, leases, and
other documents to which it is a party or by which it or any of its property is
bound and will keep in full force and effect all material licenses, permits, and
franchises necessary or useful for the conduct of its business.
<PAGE> 46
SECTION 10.12 Maintenance of Assets and Insurance. Pledgor will keep
all assets which are useful and necessary in the business in good working order
and condition, make all necessary replacements and maintain, or cause to be
maintained, such insurance as is customarily maintained by other businesses of
comparable type and size with such financially sound and reputable insurers, in
such amounts and covering such risks as shall be satisfactory and acceptable to
the Secured Party.
SECTION 10.13 Financial Information. Pledgor will furnish to the
Secured Party within seven (7) days (a) such financial information and
information regarding Payee and Deli-Bon as the Secured Party may from time to
time reasonably request and (b) written notice of the occurrence of any event
which would make any representation contained in Article III untrue at such
time.
ARTICLE 11
REMEDIES
SECTION 11.1 Actions upon Event of Default. In addition to its rights
and remedies provided hereunder, whenever an Event of Default shall have
occurred and be continuing, the Secured Party shall have all rights and remedies
of a secured party upon default under the U.C.C. or other applicable law. Any
notification required by law of any intended disposition by the Secured Party of
any of the Collateral shall be deemed reasonably and properly given if given at
least 15 days before such disposition. Without limitation of the above, the
secured Party may, whenever an Event of Default shall have occurred and be
continuing, without prior notice to Pledgor, take all or any of the following
actions:
(a) transfer all or any part of the Collateral into the name of the
Secured Party or its nominee, with or without disclosing that such
Collateral is subject to the lien and security interest hereunder;
(b) notify the parties obligated on any of the Collateral to make
payment to the Secured Party of any amount due or to become due
thereunder;
(c) enforce collection of any of the Collateral by suit or otherwise,
and surrender, release or exchange all or any part thereof, or
compromise or extend or renew for any period (whether or not longer
than the original period) any obligations of any nature of any party
with respect thereto;
(d) endorse any checks, drafts, or other writings in Pledgor's name to
allow collection of the Collateral;
(e) take control of any proceeds of the Collateral; and
(f) execute (in the name, place and stead of Pledgor) endorsements,
assignments, stock powers and other instruments of conveyance or
transfer with respect to all or any of the Collateral.
<PAGE> 47
SECTION 11.2 Attorney-in-Fact. Pledgor hereby irrevocably appoints the
Secured Party its attorney-in-fact, with full authority in the place and stead
of Pledgor and in the name of Pledgor, the Secured Party, or otherwise, from
time to time in the Secured Party's discretion, to take any action and to
execute any instrument which the Secured Party may deem necessary or advisable
to accomplish the purposes of this Agreement, including, upon the occurrence and
continuance of an Event of Default, all actions described in Section 5.1.
SECTION 11.3 Private Sales.
(a) Pledgor recognizes that the Secured Party may be unable to effect a
public sale of any or all the Pledged Shares by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act") and applicable state securities laws or otherwise,
and may be compelled to resort to one or more private sales thereof to
a restricted group of purchasers that will be obliged to agree, among
other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof.
Pledgor acknowledges and agrees that any such private sale may result
in prices and other terms less favorable than if such sale were a
public sale and, notwithstanding such circumstances, agrees that any
such private sale shall be deemed to have been made in a commercially
reasonable manner. The Secured Party shall be under no obligation to
delay sale of any of the Pledged Shares for the period of time
necessary to permit the Pledgor to register such securities for public
sale under the Securities Act, or under applicable state securities
laws, even if Deli-Bon would agree to do so.
(b) Pledgor further agrees to use its best efforts to do or cause to be
done all such acts as may be necessary to make such sale or sales of
all or any portion of the Pledged Shares pursuant to this Section 5.3
valid and binding and in compliance with any and all other applicable
requirements of law.
SECTION 11.4 Application of Proceeds. All cash proceeds received by the
Secured Party in respect of any sale of, collection from, or other realization
upon, all or any part of the Collateral may, in the discretion of the Secured
Party, be held by the Secured Party as additional collateral security for, or
then or at any time thereafter be applied in whole or in part by the Secured
Party against, all or any part of the Secured Obligations in the following
order:
(a) first, Ratably, to the principal then due on the 30 Day Note;
(b) second, Ratably, to the principal then due on the 60 Day Note;
(c) third, Ratably, to the unpaid interest accrued and then due on the
5 Year Note (including any premium thereon); and
(d) fourth, to any other Secured Obligations then due or owing.
Any surplus of such cash or cash proceeds held by the Secured Party and
remaining after payment in full of all the Secured Obligations shall be paid
over to Pledgor or to whomsoever may be lawfully entitled to receive such
surplus.
<PAGE> 48
SECTION 11.5 Indemnity and Expenses. Pledgor hereby indemnifies and
holds harmless the Secured Party from and against any and all claims, losses,
and liabilities growing out of or resulting from this Agreement (including
enforcement of this Agreement), except claims, losses, or liabilities resulting
from the Secured Party's gross negligence or wilful misconduct. Upon demand,
Pledgor will pay, or cause to be paid, to the Secured Party the amount of any
and all reasonable expenses, including the reasonable fees and disbursements of
its counsel and of any experts and agents, which the Secured Party may incur in
connection with:
(a) the administration of this Agreement;
(b) the custody, preservation, use, or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral;
(c) the exercise or enforcement of any of the rights of the Secured
Party hereunder and any action taken by the Secured Party under Section
6.5; or
(d) the failure by Pledgor to perform or observe any of the provisions
hereof.
ARTICLE 12
MISCELLANEOUS
SECTION 12.1 Amendments, etc. No amendment or waiver of any provision
of this Agreement nor consent to any departure by Pledgor herefrom shall in any
event be effective unless the same shall be in writing, signed by the Secured
Party and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it is given.
SECTION 12.2 Obligations Not Affected. The obligations of Pledgor under
this Agreement shall remain in full force and effect without regard to, and
shall not be impaired or affected by:
(a) any amendment or modification or addition or supplement to the
Purchase Agreement, any other Loan Document, any instrument delivered
in connection therewith or any assignment or transfer thereof;
(b) any exercise, non-exercise or waiver by the Secured Party of any
right, remedy, power or privilege under or in respect of, or any
release of any guaranty or collateral provided pursuant to this
Agreement, the Purchase Agreement or any Loan Document;
(c) any waiver, consent, extension, indulgence or other action or
inaction in respect of this Agreement, the Purchase Agreement or any
Loan Document or any assignment or transfer of any thereof; or
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like, death or
incompetency of the Pledgor or any other Person, whether or not Pledgor
shall have notice or knowledge of any of the foregoing.
<PAGE> 49
SECTION 12.3 Protection of Collateral. The Secured Party may from time
to time, at its option, perform any act which Pledgor agrees hereunder to
perform and which Pledgor shall fail to perform after being requested in writing
to so perform (it being understood that no such request need be given after the
occurrence and during the continuance of an Event of Default) and the Secured
Party may from time to time take any other action which the Secured Party
reasonably deems necessary for the maintenance, preservation or protection of
any of the Collateral or of its security interest therein.
SECTION 12.4 Addresses for Notices. All notices and other
communications provided for hereunder to any party hereto under this Agreement
shall be in writing or by facsimile and addressed or delivered to it at the
address set forth below its signature hereto, or as to any party at such other
address as shall be designated by such party in a written notice to each other
party complying as to delivery with the terms of this Section. Any such notice,
if mailed and properly addressed with postage prepaid, shall be deemed given
seven (7) calendar days after mailing; any notice, if transmitted by facsimile
shall be deemed given when transmitted on a business day (with evidence of
transmission confirmation).
SECTION 12.5 Governing Law; Jurisdiction.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
(b) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY TEXAS STATE OR FEDERAL COURT SITTING IN DALLAS, TEXAS IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR RELATED DOCUMENT (AND PLEDGOR AGREES THAT SUCH JURISDICTION
WILL BE EXCLUSIVE WITH RESPECT TO CLAIMS BROUGHT BY PLEDGOR AGAINST THE SECURED
PARTY), AND EACH HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH TEXAS STATE OR FEDERAL
COURT. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF ANY INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING.
(c) Pledgor hereby irrevocably designates, appoints and empowers C.T.
Corporation System, 350 N. St. Paul Street, Suite 2900, Dallas, Texas 75201, as
its authorized agent to receive, for and on its behalf and on behalf of its
property, service of process in the State of Texas when and as such legal
actions or proceedings may be brought in the courts of the State of Texas or of
the United States of America sitting in Texas, and such service of process shall
be deemed complete upon the date of delivery thereof to such agent whether or
not such agent gives notice thereof to Pledgor, or upon the earliest of any
other date permitted by applicable law. It is understood that a copy of said
process served on such agent will as soon as practicable be forwarded to
Pledgor, at its address set forth below, but Pledgor's failure to receive such
copy shall not affect in any way the service of said process on said agent as
the agent of Pledgor. Pledgor irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by the
<PAGE> 50
mailing of the copies thereof by certified mail, return receipt requested,
postage prepaid, to Pledgor at its address set forth below, such service to
become effective upon the earlier of (i) the date 10 calendar days after such
mailing or (ii) any earlier date permitted by applicable law. Pledgor agrees
that it will at all times continuously maintain an agent to receive service of
process in the State of Texas and in the event that, for any reason, the agent
named above or its successor shall no longer serve as its agent to receive
service of process in the State of Texas on its behalf, it shall promptly
appoint a successor so to serve and shall advise the Secured Party. Nothing in
this Section 6.5 shall affect the right of the Secured Party to bring
proceedings against Pledgor in the courts of any other jurisdiction or to serve
process in any other manner permitted by applicable law.
SECTION 12.6 Waiver of Jury Trial. Etc. THE SECURED PARTY, AND PLEDGOR
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
RELATED DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE SECURED PARTY OR PLEDGOR. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURED PARTY'S ENTERING INTO THE
PURCHASE AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
THE UNIMARK GROUP, INC.,
A Texas corporation
By:
--------------------------------------------
Soren Bjorn
Chief Executive Officer, President and
Secretary
Address: P.O. Box 229
Bartonville, Texas 76226
Telecopy No.: (817) 491-1272
Attention: Soren Bjorn
<PAGE> 51
FRANCOIS GRAVIL - GUY PICARD
In trust for the company to be owned and
operated by Francois Gravil and Guy Picard
----------------------------------------
Francois Gravil
----------------------------------------
Guy Picard
Telecopy No.: (418) 842-8926
STATE OF TEXAS )
)
COUNTY OF DALLAS )
On the 11th day of October, 1999 before me personally came FRANCOIS
GRAVIL, to me known who, being sworn, did depose and say that he is to own and
operate the entity to be formed as Francois Gravil - Guy Picard with Guy Picard,
described in and which executed the foregoing instrument and that he signed his
name thereto in trust for, and on behalf of, said company to be owned and
operated by Francois Gravil and Guy Picard.
----------------------------------------
Notary Public
STATE OF TEXAS )
)
COUNTY OF DALLAS )
On the 11th day of October, 1999 before me personally came GUY PICARD,
to me known who, being sworn, did depose and say that he is to own and operate
the entity to be formed as Francois Gravil - Guy Picard with Francois Gravil,
described in and which executed the foregoing instrument; and that he signed his
name thereto in trust for, and on behalf of, said company to be owned and
operated by Francois Gravil and Guy Picard.
----------------------------------------
Notary Public
<PAGE> 52
ATTACHMENT 1
(to the Pledge Agreement)
INITIAL PLEDGED SHARES
51% OF OUTSTANDING DELI-BON SHARES
<TABLE>
<CAPTION>
Stock Number of Shares Pledged Certificate Number.
----- ------------------------ -------------------
<S> <C> <C>
Common Stock 739,500 C-4
</TABLE>
ATTACHMENT 1 - Solo Page
<PAGE> 53
EXHIBIT G
SUPPLY AGREEMENT
<PAGE> 54
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT ("Agreement") dated as of October 11, 1999, by
and among The UniMark Group, Inc., a Texas corporation ("UniMark") and Les
Produits Deli-Bon, Inc., a Quebec corporation (the "Deli-Bon").
WITNESSETH:
WHEREAS, UniMark produces those certain raw materials and finished
goods as identified on Exhibit A hereto (collectively, the "Products"); and
WHEREAS, Deli-Bon desires to purchase the Products from UniMark;
WHEREAS, UniMark is willing to sell the Products to Deli-Bon in
accordance with and subject to the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged;
IT IS AGREED:
a. AGREEMENT TO SUPPLY; TERMS OF PURCHASE
UniMark hereby agrees to sell to Deli-Bon the respective Products for
such prices as identified on Exhibit A hereto. The purchase price shall be "FOB
McAllen, Texas" and payment shall be due within net 21 days.
b. TERM
The term of this Agreement shall be until December 31, 2000.
c. SEVERABILITY
If any part of this Agreement for any reason be declared invalid, such
declaration shall not affect the validity of the remaining portion, which
remaining portion shall remain in force and effect as if this Agreement had been
executed with the invalid portion thereof eliminated, and it is hereby declared
the intention of the parties hereto that they would exercise the remaining
portion of this Agreement without including therein any such part, parts or
portions that may, for any reason, be hereafter declared invalid.
<PAGE> 55
d. GOVERNING LAW
This Agreement shall be interpreted and construed in accordance with
and shall be governed by the laws of the State of Texas.
e. TERMINATION
In the event Deli-Bon shall breach or fail to perform any of the terms
or conditions of this Agreement, and provided that such breach or
non-performance is not cured within such thirty (30) days then, UniMark may
terminate this Agreement thirty (30) days after written notice of the nature of
such breach or non-performance is delivered to the defaulting party.
f. DISPUTES BETWEEN PARTIES
All controversies that may arise between the parties hereto including,
but not limited to, those arising out of or related to this Agreement, shall be
determined by binding arbitration applying the laws of the State of Texas. Any
arbitration pursuant to this Agreement must be submitted to the British Columbia
International Commercial Arbitration Centre (the Vancouver Centre for Commercial
Disputes) in Vancouver, Canada for binding arbitration, to the exclusion of
courts of law, in accordance with its arbitration rules. The parties hereto have
required that any arbitration proceeding be conducted in the English language.
Les parties ont requis que tous l'arbitrage soient en langue anglaise. The
arbitration shall be final and binding upon all the parties (so long as the
award was not procured by corruption, fraud nor undue means), and the
arbitrators award shall not be required to include factual findings or legal
reasoning.
g. TITLES NOT LIMITING
Titles to paragraphs of this Agreement are for the purpose of
information and guidance only, are not part of this Agreement, and shall in no
way be deemed to limit the effect of any language to which they relate.
h. INTEGRATION OF AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all prior negotiations, understandings and agreements, if any,
between the parties. This Agreement may not be amended or modified orally but
may be amended or modified only by written instrument signed by the parties
hereto.
i. SUCCESSION
All rights of the parties under this Agreement shall accrue to the
benefit of their successors and assigns.
<PAGE> 56
j. CONSENT TO ASSIGNMENT
Deli-Bon must obtain the prior written consent of UniMark before
assigning any of its rights, title or interest under this Agreement. Any
assignment without such prior written consent shall be null and void.
IN WITNESS WHEREOF, this Agreement has been duly executed in duplicate
by a duly authorized officer of the parties hereto.
THE UNIMARK GROUP, INC.,
A Texas corporation
By:
----------------------------------------
Soren Bjorn
Chief Executive Officer, President and
Secretary
Address: P.O. Box 229
Bartonville, Texas 76226
Telecopy No.: (817) 491-1272
Attention: Soren Bjorn
DELI-BON:
--------------------------------------------------
By: Francois Gravil
Title:
---------------
Telecopy No.: (418) 842-8926
<PAGE> 57
EXHIBIT H
DISTRIBUTION AGREEMENT
<PAGE> 58
EXCLUSIVE DISTRIBUTION AGREEMENT
THIS EXCLUSIVE DISTRIBUTION AGREEMENT ("Agreement") dated as of October
11, 1999, by and among The UniMark Group, Inc., a Texas corporation ("UniMark")
and Les Produits Deli-Bon, Inc., a Quebec corporation (the "Deli-Bon").
WITNESSETH:
WHEREAS, UniMark is the owner of the entire rights, title and interest
in and to the name "Fruits of Four Seasons" and related trade names, marks and
symbols, and with regard to such names, marks and symbols Deli-Bon hereby
expressly recognizes and concedes that Licensor is presently the exclusive owner
of same; and
WHEREAS, Deli-Bon desires to be granted an exclusive right to
distribute and sell "Fruits of Four Seasons" products produced by UniMark's
subsidiaries (the "Products") in Canada;
WHEREAS, UniMark is willing to grant an exclusive right to Deli-Bon in
accordance with and subject to the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged;
IT IS AGREED:
k. GRANT
UniMark hereby grants to Deli-Bon the exclusive right to distribute and
sell the Products in Canada.
l. TERM
The term of this Agreement shall be for a period of four (4) years
commencing on the effective date of this Agreement and ending on the anniversary
date of such commencement (the "Anniversary Date"). This Agreement shall be
renewed on the Anniversary Date of each successive year thereafter unless (i)
UniMark or Deli-Bon shall give to the other party a notice of cancellation at
least thirty (30) days prior to any Anniversary Date, to be effective on such
Anniversary Date, or (ii) it is earlier terminated as set forth in Paragraph 7
hereof.
m. PURCHASE PRICE FOR PRODUCTS
The purchase price for the Products shall be negotiated annually in
good faith between UniMark and Deli-Bon at least 30 days prior the commencement
of the next calendar year. The purchase price shall be "FOB McAllen, Texas" and
payment shall be due within net 21 days.
<PAGE> 59
n. RELATIONSHIP OF THE PARTIES
This Agreement does not create nor is it to be construed as creating a
partnership, joint venture or the relationship of principal and agent between
UniMark and Deli-Bon. Deli-Bon is and shall at all times be deemed to be a
separate entity. No representations shall be made by either party that would
create an agency, partnership or joint venture, and neither party shall have
authority to act for the other in any manner to create obligations or debts that
purport to be binding on the other, except as expressly provided in this
Agreement. There shall be no liability on the part of UniMark to any person for
any debts, liabilities or other obligations incurred on behalf of Deli-Bon and
its business unless UniMark expressly agrees in writing to pay such debts.
o. SEVERABILITY
If any part of this Agreement for any reason be declared invalid, such
declaration shall not affect the validity of the remaining portion, which
remaining portion shall remain in force and effect as if this Agreement had been
executed with the invalid portion thereof eliminated, and it is hereby declared
the intention of the parties hereto that they would exercise the remaining
portion of this Agreement without including therein any such part, parts or
portions that may, for any reason, be hereafter declared invalid.
p. GOVERNING LAW
This Agreement shall be interpreted and construed in accordance with
and shall be governed by the laws of the State of Texas.
q. TERMINATION
In the event Deli-Bon shall:
(a) breach or fail to perform any of the terms or conditions of
this Agreement, and provided that such breach or
non-performance is not cured within such thirty (30) days; or
(b) does not purchase at least $100,000 (US) of Product during any
calendar year; or
(c) engages in gross negligence or willful misconduct with respect
to the distribution and sale of the Product;
then, UniMark may terminate this Agreement thirty (30) days after written notice
of the nature of such breach or non-performance is delivered to the defaulting
party.
<PAGE> 60
r. DISPUTES BETWEEN PARTIES
All controversies that may arise between the parties hereto including,
but not limited to, those arising out of or related to this Agreement, shall be
determined by binding arbitration applying the laws of the State of Texas. Any
arbitration pursuant to this Agreement must be submitted to the British Columbia
International Commercial Arbitration Centre (the Vancouver Centre for Commercial
Disputes) in Vancouver, Canada for binding arbitration, to the exclusion of
courts of law, in accordance with its arbitration rules. The parties hereto have
required that any arbitration proceeding be conducted in the English language.
Les parties ont requis que tous l'arbitrage soient en langue anglaise. The
arbitration shall be final and binding upon all the parties (so long as the
award was not procured by corruption, fraud nor undue means), and the
arbitrators award shall not be required to include factual findings or legal
reasoning.
s. TITLES NOT LIMITING
Titles to paragraphs of this Agreement are for the purpose of
information and guidance only, are not part of this Agreement, and shall in no
way be deemed to limit the effect of any language to which they relate.
t. INTEGRATION OF AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all prior negotiations, understandings and agreements, if any,
between the parties. This Agreement may not be amended or modified orally but
may be amended or modified only by written instrument signed by the parties
hereto.
u. SUCCESSION
All rights of the parties under this Agreement shall accrue to the
benefit of their successors and assigns.
v. CONSENT TO ASSIGNMENT
Deli-Bon must obtain the prior written consent of UniMark before
assigning any of its rights, title or interest under this Agreement. Any
assignment without such prior written consent shall be null and void.
<PAGE> 61
IN WITNESS WHEREOF, this Agreement has been duly executed by a duly
authorized officer of the parties hereto on the day and year first above
written..
THE UNIMARK GROUP, INC.,
A Texas corporation
By:
----------------------------------------
Soren Bjorn
Chief Executive Officer, President and
Secretary
Address: P.O. Box 229
Bartonville, Texas 76226
Telecopy No.: (817) 491-1272
Attention: Soren Bjorn
DELI-BON:
--------------------------------------------------
By: Francois Gravil
Title:
---------------
Telecopy No.: (418) 842-8926
<PAGE> 62
EXHIBIT I
LIABILITIES
<PAGE> 63
EXHIBIT I
LES PRODUITS DELI-BON INC.
As requested and for your information; in the best of our knowledge, as of
October 4, 1999, the liabilities of Les Produits Deli-Bon Inc. are:
<TABLE>
<CAPTION>
CANADIAN FUNDS US FUNDS
(CONVERSION)
<S> <C> <C> <C>
Line of credit (authorized): 500,000 340,000
(used): 0 0
Loan (Caisse Populaire Les Saules): 140,558 98,761
Advance from UniMark Group: 450,540 300,000(1)
Advance from UniMark Foods: 450,097 299,705(2)
Current liabilities
- Accounts payable: 400,000 273,000
- Accrued liabilities: 230,000 157,000
- GST & QST payable: 66,000 45,000
- Income tax payable: 100,000 63,000
Deferred income tax: 35,000 26,000
</TABLE>
/s/ GISELE CHOUINARD
- -------------------------
Gisele Chouinard, CA
Secretary, Les Produits Deli-Bon Inc.
- ----------------
(1) This amount had been converted into the 5 Year Note at the Closing.
(2) This amount will be canceled at the Closing.
<PAGE> 1
Exhibit 99.3
30 DAY SECURED NOTE
$400,000 (U.S.) Dallas, Texas October 11, 1999
FOR VALUE RECEIVED, the undersigned, Francois Gravil - Guy Picard, in
trust for the company to be owned and operated by Francois Gravil and Guy Picard
("Maker"), promises to pay to the order of The UniMark Group, Inc., a Texas
corporation ("Payee"), whose principal office is located at 124 McMakin Road,
Bartonville, Texas 76226, the principal sum of Four Hundred Thousand Dollars
($400,000), payable as provided herein, without interest.
The principal shall be due and payable by the Maker to the Payee on
November 10, 1999 (30 days from October 11, 1999).
Principal under this Note, or any portion thereof, may be prepaid
without penalty.
This Note is issued and delivered under and in subject to the terms and
provisions of that certain Stock Purchase Agreement (the "Stock Purchase
Agreement") dated of even date herewith, by and among Payee and Maker. This Note
is secured by a Short-term Pledge Agreement and a Long-term Pledge Agreement
(collectively, the "Pledge Agreements"), each dated October 11, 1999, executed
by the undersigned in favor of the holder hereto, covering all of the issued and
outstanding shares of capital stock of Les Produits Deli-Bon, Inc., a Quebec
corporation ("Deli-Bon") more fully described in Exhibit A hereto attached
hereto (the "Deli-Bon Shares"). Reference is made to the Pledge Agreements for a
statement of the rights and obligations of the Payee, a description of the
nature and extent of the security and the rights of the parties in respect to
such security.
Maker, and any endorser or guarantors of this Note and all other
persons who may become liable for all or any part of the obligations represented
by this Note, severally waive presentment for payment, protest, notice of
protest and of nonpayment, notice of intention to accelerate, and notice of
acceleration.
The following shall constitute Events of Default ("Event(s) of
Default"):
(a) default in the due and punctual payment of the principal
of the Note when and as such payment shall become due and payable,
whether at maturity or by acceleration or otherwise if such payment is
not made within ten (10) days of written notice mailed by Payee to
Maker; or
(b) default in the performance or observance of any covenant
or agreement of Maker in this Note or the Pledge Agreements other than
as described in paragraph (a) above and the continuance of such default
for a period of seven (7) days after the Payee has sent Maker written
notice specifying such default and requiring that it be remedied,
provided that no such default shall be deemed to occur if such default
may not be cured within seven (7) days, if within said period the Maker
has commenced and thereafter diligently and
<PAGE> 2
continuously pursues to cure such default, and the default is cured, in
any event, within fourteen (14) days; or
(c) the filing by the Maker of a petition instituting any
state or federal insolvency, bankruptcy, reorganization, arrangement,
composition, or other debtor relief proceeding; the petition of or
application to any tribunal for a receiver or trustee for itself or for
any substantial part of any of its property; or
(d) the sale or transfer of all or substantially all of the
assets of Deli-Bon or Maker.
If an Event of Default occurs, then and in any such case Payee may
declare the outstanding principal amount of the Note to be due and payable
immediately, upon written notice to the Maker, and, upon any such declaration,
the outstanding principal amount of the Note, together with all costs of
collection, including reasonable attorneys' fees if collected by law or through
an attorney at law, shall immediately become due and payable.
Not withstanding anything to the contrary contained herein, no
provisions of this Note shall require the payment or permit the collection of
interest in excess of the maximum rate permitted by applicable law. If any
interest in excess of such maximum rate is herein provided for, or shall be
adjudicated to be so provided, in this Note or otherwise in connection with this
transaction giving rise to the execution hereof, the provisions of this
paragraph shall govern and prevail, and neither Maker nor the sureties,
guarantors, successors or assigns of the Maker shall be obligated to pay the
excess amount of such interest or any other excess sum paid for the use,
forbearance or detention of sums loaned pursuant hereto. If for any reason
interest in excess of the maximum rate of interest permitted by applicable law
shall be deemed, charged, required or permitted by a court of competent
jurisdiction, any such excess shall be applied as a payment and reduction of the
principal of indebtedness evidenced by this Note; and, if the principal amount
hereof has been paid in full, any remaining excess shall forthwith be paid to
Maker.
This note is made and is performable in Bartonville, Denton County,
Texas, and Maker waives the right to be sued hereon elsewhere. This Note shall
be governed by and construed in accordance with the laws of the State of Texas
and the applicable laws of the United States of America.
<PAGE> 3
IN WITNESS WHEREOF, the undersigned has executed this Note as of the
11th day of October, 1999.
MAKER:
FRANCOIS GRAVIL - GUY PICARD
In trust for the company to be
owned and operated by Francois
Gravil and Guy Picard
/s/ Francois Gravil
-----------------------------------
Francois Gravil
/s/ Guy Picard
-----------------------------------
Guy Picard
<PAGE> 4
EXHIBIT A
ALL OF THE DELI-BON SHARES
<TABLE>
<CAPTION>
Stock Number of Shares Certificate Number
----- ---------------- ------------------
<S> <C> <C>
Common Stock 710,500 C-3
Common Stock 739,500 C-4
</TABLE>
<PAGE> 1
EXHIBIT 99.4
60 DAY SECURED NOTE
$400,000 (U.S.) Dallas, Texas October 11, 1999
FOR VALUE RECEIVED, the undersigned, Francois Gravil - Guy Picard, in
trust for the company to be owned and operated by Francois Gravil and Guy
Picard ("Maker"), promises to pay to the order of The UniMark Group, Inc., a
Texas corporation ("Payee"), whose principal office is located at 124 McMakin
Road, Bartonville, Texas 76226, the principal sum of Four Hundred Thousand
Dollars ($400,000), payable as provided herein, without interest.
The principal shall be due and payable by the Maker to the Payee on
December 10, 1999 (60 days from October 11, 1999).
Principal under this Note, or any portion thereof, may be prepaid
without penalty.
This Note is issued and delivered under and in subject to the terms
and provisions of that certain Stock Purchase Agreement (the "Stock Purchase
Agreement") dated of even date herewith, by and among Payee and Maker. This
Note is secured by a Short-term Pledge Agreement and a Long-term Pledge
Agreement (collectively, the "Pledge Agreements"), each dated October 11, 1999,
executed by the undersigned in favor of the holder hereto, covering all of the
issued and outstanding shares of capital stock of Les Produits Deli-Bon, Inc.,
a Quebec corporation ("Deli-Bon") more fully described in Exhibit A hereto
attached hereto (the "Deli-Bon Shares"). Reference is made to the Pledge
Agreements for a statement of the rights and obligations of the Payee, a
description of the nature and extent of the security and the rights of the
parties in respect to such security.
Maker, and any endorser or guarantors of this Note and all other
persons who may become liable for all or any part of the obligations
represented by this Note, severally waive presentment for payment, protest,
notice of protest and of nonpayment, notice of intention to accelerate, and
notice of acceleration.
The following shall constitute Events of Default ("Event(s) of
Default"):
(a) default in the due and punctual payment of the principal
of the Note, when and as such payment shall become due and payable,
whether at maturity or by acceleration or otherwise if such payment is
not made within ten (10) days of written notice mailed by Payee to
Maker; or
(b) default in the performance or observance of any covenant
or agreement of Maker in this Note or the Pledge Agreements other than
as described in paragraph (a) above and the continuance of such
default for a period of seven (7) days after the Payee has sent Maker
written notice specifying such default and requiring that it be
remedied, provided that no such default shall be deemed to occur if
such default may not be cured within seven (7) days, if within said
period the Maker has commenced and thereafter diligently and
<PAGE> 2
continuously pursues to cure such default, and the default is cured,
in any event, within fourteen (14) days; or
(c) the filing by the Maker of a petition instituting any
state or federal insolvency, bankruptcy, reorganization, arrangement,
composition, or other debtor relief proceeding; the petition of or
application to any tribunal for a receiver or trustee for itself or
for any substantial part of any of its property; or
(d) the sale or transfer of all or substantially all of the
assets of Deli-Bon or Maker.
If an Event of Default occurs, then and in any such case Payee may
declare the outstanding principal amount of the Note to be due and payable
immediately, upon written notice to the Maker, and, upon any such declaration,
the outstanding principal amount of the Note, together with all costs of
collection, including reasonable attorneys' fees if collected by law or through
an attorney at law, shall immediately become due and payable.
Not withstanding anything to the contrary contained herein, no
provisions of this Note shall require the payment or permit the collection of
interest in excess of the maximum rate permitted by applicable law. If any
interest in excess of such maximum rate is herein provided for, or shall be
adjudicated to be so provided, in this Note or otherwise in connection with
this transaction giving rise to the execution hereof, the provisions of this
paragraph shall govern and prevail, and neither Maker nor the sureties,
guarantors, successors or assigns of the Maker shall be obligated to pay the
excess amount of such interest or any other excess sum paid for the use,
forbearance or detention of sums loaned pursuant hereto. If for any reason
interest in excess of the maximum rate of interest permitted by applicable law
shall be deemed, charged, required or permitted by a court of competent
jurisdiction, any such excess shall be applied as a payment and reduction of
the principal of indebtedness evidenced by this Note; and, if the principal
amount hereof has been paid in full, any remaining excess shall forthwith be
paid to Maker.
This note is made and is performable in Bartonville, Denton County,
Texas, and Maker waives the right to be sued hereon elsewhere. This Note shall
be governed by and construed in accordance with the laws of the State of Texas
and the applicable laws of the United States of America.
<PAGE> 3
IN WITNESS WHEREOF, the undersigned has executed this Note as of the
11th day of October, 1999.
MAKER:
FRANCOIS GRAVIL - GUY PICARD
In trust for the company to be owned
and operated by Francois Gravil and
Guy Picard
/s/ Francois Gravil
------------------------------------
Francois Gravil
/s/ Guy Picard
------------------------------------
Guy Picard
<PAGE> 4
EXHIBIT A
ALL OF THE DELI-BON SHARES
<TABLE>
<CAPTION>
Stock Number of Shares Certificate Number
----- ---------------- ------------------
<S> <C> <C>
Common Stock 710,500 C-3
Common Stock 739,500 C-4
</TABLE>
<PAGE> 1
Exhibit 99.5
FIVE YEAR SECURED NOTE
$303,932 (U.S.) Dallas, Texas October 11, 1999
FOR VALUE RECEIVED, the undersigned, Francois Gravil - Guy Picard, in
trust for the company to be owned and operated by Francois Gravil and Guy Picard
("Maker"), promises to pay to the order of The UniMark Group, Inc., a Texas
corporation ("Payee"), whose principal office is located at 124 McMakin Road,
Bartonville, Texas 76226, the principal sum of Three Hundred Three Thousand Nine
Hundred Thirty-Two Dollars ($303,932), payable as provided herein, plus accrued
interest on the outstanding principal balance, at a rate of 8.75% per annum as
herein specified.
The principal plus accrued interest thereon shall be due and payable by
the Maker to the Payee over five years in monthly installments of $6,272,
beginning on November 15, 1999. All past due interest shall bear interest at the
highest rate permitted by applicable law.
Principal and accrued interest under this Note, or any portion thereof,
may be prepaid without penalty. All payments and prepayments shall be applied
first to accrued and unpaid interest, and the balance of any such payments or
prepayments shall be applied to outstanding principal in the order of maturity.
This Note is issued and delivered under and in subject to the terms and
provisions of that certain Stock Purchase Agreement (the "Stock Purchase
Agreement") dated of even date herewith, by and among Payee and Maker. This Note
is secured by a Long-term Pledge Agreement dated October 11, 1999, executed by
the undersigned in favor of the holder hereto, covering 51% of the issued and
outstanding shares of capital stock of Les Produits Deli-Bon, Inc., a Quebec
corporation ("Deli-Bon") more fully described in Exhibit A hereto attached
hereto (the "Deli-Bon Shares"). Reference is made to the Long-term Pledge
Agreement for a statement of the rights and obligations of the Payee, a
description of the nature and extent of the security and the rights of the
parties in respect to such security.
Maker, and any endorser or guarantors of this Note and all other
persons who may become liable for all or any part of the obligations represented
by this Note, severally waive presentment for payment, protest, notice of
protest and of nonpayment, notice of intention to accelerate, and notice of
acceleration.
The following shall constitute Events of Default ("Event(s) of
Default"):
(a) default in the due and punctual payment of the principal
of the Note, or any interest accrued thereon, when and as such payment
shall become due and payable, whether at maturity or by acceleration or
otherwise if such payment is not made within ten (10) days of written
notice has been mailed by Payee to Maker; or
(b) default in the performance or observance of any covenant
or agreement of the Company in this Note or the Long-term Pledge
Agreement other than as described in
<PAGE> 2
paragraph (a) above and the continuance of such default for a period of
thirty (30) days after the Payee has sent Maker written notice
specifying such default and requiring that it be remedied, provided
that no such default shall be deemed to occur if such default may not
be cured within thirty (30) days, if within said period the Maker has
commenced and thereafter diligently and continuously pursues to cure
such default, and the default is cured, in any event, within one
hundred twenty (120) days; or
(c) the filing by the Maker of a petition instituting any
state or federal insolvency, bankruptcy, reorganization, arrangement,
composition, or other debtor relief proceeding; the petition of or
application to any tribunal for a receiver or trustee for itself or for
any substantial part of any of its property; or
(d) the sale or transfer of all or substantially all of the
assets of Deli-Bon or Maker.
If an Event of Default occurs, then and in any such case Payee may
declare the outstanding principal amount of the Note to be due and payable
immediately, upon written notice to the Maker, and, upon any such declaration,
the outstanding principal amount of the Note, and the interest accrued thereon,
together with all costs of collection, including reasonable attorneys' fees if
collected by law or through an attorney at law, shall immediately become due and
payable.
Not withstanding anything to the contrary contained herein, no
provisions of this Note shall require the payment or permit the collection of
interest in excess of the maximum rate permitted by applicable law. If any
interest in excess of such maximum rate is herein provided for, or shall be
adjudicated to be so provided, in this Note or otherwise in connection with this
transaction giving rise to the execution hereof, the provisions of this
paragraph shall govern and prevail, and neither Maker nor the sureties,
guarantors, successors or assigns of the Maker shall be obligated to pay the
excess amount of such interest or any other excess sum paid for the use,
forbearance or detention of sums loaned pursuant hereto. If for any reason
interest in excess of the maximum rate of interest permitted by applicable law
shall be deemed, charged, required or permitted by a court of competent
jurisdiction, any such excess shall be applied as a payment and reduction of the
principal of indebtedness evidenced by this Note; and, if the principal amount
hereof has been paid in full, any remaining excess shall forthwith be paid to
Maker.
This note is made and is performable in Bartonville, Denton County,
Texas, and Maker waives the right to be sued hereon elsewhere. This Note shall
be governed by and construed in accordance with the laws of the State of Texas
and the applicable laws of the United States of America.
<PAGE> 3
IN WITNESS WHEREOF, the undersigned has executed this Note as of the
11th day of October, 1999.
MAKER:
FRANCOIS GRAVIL - GUY PICARD
In trust for the company to be owned
and operated by Francois Gravil and Guy
Picard
/s/ Francois Gravil
---------------------------------------
Francois Gravil
/s/ Guy Picard
---------------------------------------
Guy Picard
<PAGE> 4
EXHIBIT A
DELI-BON SHARES
<TABLE>
<CAPTION>
Stock Number of Shares Certificate Number.
----- ---------------- -------------------
<S> <C> <C>
Common Stock 739,500 C-4
</TABLE>
<PAGE> 1
Exhibit 99.6
SHORT-TERM PLEDGE AGREEMENT
THIS SHORT-TERM PLEDGE AGREEMENT (this "Agreement"), dated as of
October 11, 1999, between Francois Gravil - Guy Picard, in trust for the company
to be owned and operated by Francois Gravil and Guy Picard (the "Pledgor"), and
The UniMark Group, Inc., a Texas corporation (the "Secured Party").
W I T N E S S E T H:
WHEREAS, the Pledgor, has entered into that certain Stock Purchase
Agreement dated October 11, 1999 (the "Purchase Agreement")(certain capitalized
terms used herein which are defined in the Purchase Agreement shall have the
same meanings when used herein, unless otherwise defined herein) with the
Secured Party, as Purchaser, pursuant to which, among other things, the Pledgor
has agreed to purchase from the Secured Party, and the Secured Party has agreed
to sell to the Pledgor, all of the issued and outstanding shares of capital
stock of Les Produits Deli-Bon, Inc., a Quebec corporation (the "Deli-Bon
Shares"); and
WHEREAS, it is a condition precedent to the obligation of the Secured
Party to sell the Deli-Bon Shares under the Purchase Agreement, that the Pledgor
execute and deliver this Agreement and grant the security interests contemplated
hereby; and
WHEREAS, this Agreement, the Purchase Agreement, the 30 Day Note and
the 60 Day Note are hereinafter sometimes referred to as the "Loan Documents".
NOW, THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged by it, and in order to induce the Secured Party to
sell the Deli-Bon Shares pursuant to the Purchase Agreement, Pledgor agrees with
the Secured Party, as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms when used in this
Agreement, including its preamble and recitals, shall have the following
meanings (such definitions to be equally applicable to the singular and plural
forms thereof):
"Collateral" is defined in Section 2.1.
"Deli-Bon" means Les Produits Deli-Bon, Inc., a Quebec corporation.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from stock splits, reclassifications, warrants,
options, non-cash dividends and other distributions (whether similar or
dissimilar to the foregoing) on or with respect to any Pledged Shares or other
shares of capital stock constituting Collateral, but shall not mean Dividends.
-1-
<PAGE> 2
"Dividends" means cash dividends and cash distributions with respect to
any Pledged Shares made out of capital surplus.
"Event of Default" means Pledgor is in default under this Agreement
upon the happening of any of the following events or conditions (each an "Event
of Default"): (a) any default in the timely performance of any covenant or
agreement contained in or secured by this Agreement; (b) the entry of a judgment
or levy against any part of the Collateral or any execution, attachment,
sequestration, distraint warrant or other like or similar writ is issued with
respect to any of the Collateral; (c) the title of Pledgor to the Collateral
becomes the subject of litigation which would or might, in Secured Party's
opinion, upon final determination result in substantial impairment or loss of
the security provided by this Agreement and upon notice by Secured Party to
Pledgor such litigation is not dismissed within 30 days of such notice; or (d)
the occurrence of an Event of Default under the 30 Day Note or the 60 Day Note.
"Initial Pledged Shares" means the capital stock of Deli-Bon more
particularly described in Attachment 1 hereto.
"Pledged Property" means all Pledged Shares, and all other pledged
shares of capital stock, all other securities, all assignments of any amounts
due or to become due, all other instruments which are now being delivered by the
Pledgor to the Secured Party or may from time to time hereafter be delivered by
the Pledgor to the Secured Party for the purpose of pledge under this Agreement
or any other Loan Document, and all proceeds of any of the foregoing.
"Pledged Shares" means the Initial Pledged Shares and all other shares
of capital stock of Deli-Bon, if any, which are delivered by the Secured Party
as Pledged Property hereunder.
"Pledgor" is defined in the preamble.
"Purchase Agreement" is defined in the first recital.
"Ratable" or "Ratably" means, in the context of a distribution of
Collateral or a distribution of proceeds of any of the Collateral, an allocation
of such Collateral or proceeds among the holders of the Deli-Bon Shares pro rata
in accordance with their respective portion of the aggregate dollar amount of
the Deli-Bon Shares to which the distribution is being applied.
"Secured Obligations" is defined in Section 2.2.
"U.C.C." means the Uniform Commercial Code as in effect in the State of
Texas.
SECTION 1.2 Purchase Agreement Definitions, etc. Unless otherwise
defined herein or the context otherwise requires, terms used in this Agreement,
including its preamble and recitals, have the meanings provided in the Purchase
Agreement. References to the masculine gender shall include the feminine and
neuter genders unless the context otherwise requires.
-2-
<PAGE> 3
SECTION 1.3 U.C.C. Definitions. Unless otherwise defined herein or the
context otherwise requires, terms for which meanings are provided in the U.C.C.
are used in this Agreement, including its preamble and recitals, with such
meanings.
ARTICLE 2
PLEDGE
SECTION 2.1 Grant of Security Interest. Pledgor hereby pledges,
assigns, charges, mortgages, delivers and transfers to the Secured Party, and
hereby grants to the Secured Party, a continuing security interest in, all of
the following property (the "Collateral"):
(a) the Initial Pledged Shares;
(b) all Pledged Shares issued from time to time;
(c) all other Pledged Property, whether now or hereafter delivered
to the Secured Party in connection with this Agreement;
(d) all Dividends, Distributions, interest and other payments and
rights with respect to any Pledged Property; and
(e) all proceeds of any of the foregoing.
SECTION 2.2 Security for Secured Obligations. This Agreement secures
the payment in full of all obligations of the Pledgor now or hereafter existing
related to the following:
(a) the 30 Day Note; and
(b) the 60 Day Note.
whether for principal, costs, fees, expenses or otherwise, and all obligations
now or hereafter existing of Pledgor to the Secured Party (collectively, the
"Secured Obligations").
SECTION 2.3 Delivery of Pledged Property; Registration of Pledge,
Transfer, etc. All certificates and instruments representing or evidencing any
Collateral, including all Pledged Shares, shall be delivered to and held by or
on behalf of the Secured Party pursuant hereto, shall be in suitable form for
transfer by delivery, and shall be accompanied by all necessary instruments of
transfer or assignment, duly executed in blank. The Secured Party shall have the
right, at any time and without notice to Pledgor, to transfer to, or to register
in the name of the Secured Party or any of its nominees, any or all of the
Pledged Shares. In addition, the Secured Party shall have the right at any time
to exchange certificates or instruments representing or evidencing any Pledged
Shares for certificates or instruments of smaller or larger denominations.
-3-
<PAGE> 4
SECTION 2.4 Continuing Security Interest; Transfer of Note. This
Agreement shall
(a) create a continuing security interest in the Collateral;
(b) remain in full force and effect until payment in full of all
Secured Obligations;
(c) be binding upon Pledgor, its successors and assigns; provided
that Pledgor may not assign any of its rights or obligations
hereunder without the prior written consent of the Secured
Party; and
(d) inure to the benefit of the Secured Party and their respective
successors, transferees and assigns.
Without limiting the foregoing, any holder may assign or otherwise transfer any
other obligation, held by it to any other person, in accordance with the terms
of the Purchase Agreement, and such other person shall thereupon become vested
with all the benefits in respect thereof granted herein, in the other Loan
Documents or otherwise. Upon the payment in full of the Secured Obligations, the
security interest granted herein shall terminate and all rights to the
Collateral shall revert to Pledgor. Upon any such termination, the Secured Party
will, at Pledgor's expense, deliver all certificates and instruments
representing or evidencing all Pledged Shares, together with all other
Collateral held by the Secured Party hereunder, and execute and deliver to
Pledgor (without recourse or representation whatsoever), at Pledgor's expense,
such documents as Pledgor shall reasonably request to evidence such termination.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Warranties, etc. Pledgor represents and warrants unto the
Secured Party that as at the date of each pledge hereunder (including each
pledge of Pledged Shares) by Pledgor to the Secured Party of any Collateral,
(a) Pledgor has all requisite power and authority, and has taken all
necessary corporate action, to execute and deliver and perform its
obligations under this Pledge Agreement and to pledge the Collateral
hereunder.
(b) The execution, delivery and performance of this Agreement by
Pledgor, and the pledge of the Collateral hereunder do not and will not
conflict with, result in any violation of, or constitute any default
under, any provision of any contractual obligation of Pledgor or any
law or government regulation or court decree or order and will not
result in or require the creation or imposition of any lien on any of
Pledgor's properties pursuant to the provisions of any contractual
obligation. This Agreement is the legal, valid and binding obligation
of Pledgor enforceable in accordance with its terms subject to the
effect of
(i) any applicable bankruptcy, insolvency or similar
laws affecting creditors' rights generally; and
-4-
<PAGE> 5
(ii) general principles of equity (regardless of
whether considered in a proceeding in equity or at law).
(c) Except as disclosed in the Purchase Agreement, there is no pending
or, to the knowledge of Pledgor, threatened litigation, arbitration or
governmental investigation, proceeding or inquiry against Pledgor, or
to which any of its properties, assets or revenues is subject.
(d) Pledgor will be the legal and beneficial owner of, and will have
good and marketable title to (and will have full right and authority to
pledge and assign) all Collateral, free and clear of all liens or other
charges or encumbrances, except any lien or security interest granted
pursuant hereto in favor of the Secured Party.
(e) The delivery of the Collateral (including the delivery of the
Initial Pledged Shares) to the Secured Party will be effective to
create a valid, perfected, first priority security interest in such
Collateral and all proceeds thereof, securing the Secured Obligations,
and no filing or other action will be necessary to perfect or protect
such security interest.
(f) In the case of any Pledged Shares constituting Collateral, all of
such Pledged Shares will be duly authorized and validly issued, fully
paid, and non-assessable.
(g) No authorization, approval, or other action by, and no notice to or
filing with, any governmental authority will be required either
(i) for the pledge by Pledgor of any Collateral
pursuant to this Agreement or for the execution, delivery, or
performance of this Agreement by Pledgor, or
(ii) for the exercise by the Secured Party of the
voting or other rights provided for in this Agreement, or
(except, with respect to any Pledged Shares, as may be
required in connection with a disposition of such Pledged
Shares by laws affecting the offering and sale of securities
generally) the remedies in respect of the Collateral pursuant
to this Agreement.
ARTICLE 4
COVENANTS
SECTION 4.1 Protect Collateral; Further Assurances, etc. Pledgor will
not sell, assign, transfer, pledge or encumber in any other manner the
Collateral (except in favor of the Secured Party hereunder). Pledgor will
warrant and will use its best efforts to defend the right and title herein
granted unto the Secured Party in and to the Collateral (and all right, title
and interest represented by the Collateral) against the claims and demands of
all Persons whomsoever. Pledgor agrees that at any time, and from time to time,
at the expense of Pledgor, Pledgor will promptly execute and deliver all further
instruments, and take all further action, that may be necessary or desirable, or
that the Secured Party may reasonably request, in order to perfect and protect
any security interest granted
-5-
<PAGE> 6
or purported to be granted hereby or to enable the Secured Party to exercise and
enforce its rights and remedies hereunder with respect to any Collateral.
SECTION 4.2 Stock Powers, etc. Pledgor agrees that all Pledged Shares
(and all other shares of capital stock constituting Collateral) delivered by
Pledgor pursuant to this Agreement will be accompanied by duly executed undated
blank stock powers, or other equivalent instruments of transfer acceptable to
the Secured Party. Pledgor will, from time to time upon the request of the
Secured Party, promptly deliver to the Secured Party such stock powers,
instruments and similar documents, satisfactory in form and substance to the
Secured Party, with respect to the Collateral as the Secured Party may
reasonably request and will, from time to time upon the request of the Secured
Party after the occurrence of any default, promptly transfer any Pledged Shares
or other shares of stock constituting Collateral into the name of the Secured
Party or any nominee designated by the Secured Party.
SECTION 4.3 Continuous Pledge. Pledgor will, at all times, keep pledged
to the Secured Party pursuant hereto all Pledged Shares and all other shares of
stock constituting Collateral, all Dividends and Distributions with respect
thereto, and all other Collateral and other securities, instruments, proceeds
and rights from time to time received by or distributable to Pledgor in respect
of any Collateral.
SECTION 4.4 Voting Rights; Dividends, etc. Pledgor agrees to deliver
all Distributions at any time received by it to the Secured Party to be held as
Collateral hereunder and, in addition, to deliver (properly endorsed where
required hereby or requested by the Secured Party) to the Secured Party:
(a) after any Default shall have occurred and be continuing or if any
Default shall occur as a result thereof, promptly upon receipt thereof
by Pledgor and without any request therefor by the Secured Party, all
Dividends, all other cash payments and all proceeds of the Collateral,
all of which shall be held by the Secured Party as additional
collateral for use in accordance with Section 5.4; and
(b) after any Default shall have occurred and be continuing, promptly
upon request of the Secured Party, such proxies and other documents as
may be necessary to allow the Secured Party to exercise the voting
power with respect to any share of capital stock constituting
Collateral;
provided, however, that unless a default shall have occurred and be continuing
or result therefrom, Pledgor shall be entitled to exercise, in its reasonable
judgment, but in a manner not inconsistent with the terms of the Purchase
Agreement or any other Loan Document (including this Agreement), the voting
power and all other incidental rights of ownership with respect to any Pledged
Shares or other shares of capital stock constituting Collateral (subject to
Pledgor's obligation to deliver to the Secured Party such Pledged Shares and
other shares in pledge hereunder).
All Dividends, Distributions, cash payments and proceeds which may at any time
and from time to time be held by Pledgor but which Pledgor is then obligated to
deliver to the Secured Party, shall, until delivery to the Secured Party, be
held by Pledgor separate and apart from its other property in
-6-
<PAGE> 7
trust for the Secured Party. The Secured Party agrees that unless a Default
shall have occurred and be continuing, the Secured Party shall, upon the written
request of Pledgor, promptly deliver such proxies and other documents, if any,
as shall be reasonably requested by Pledgor which are necessary to allow Pledgor
to exercise voting power with respect to any share of capital stock (including
Pledged Shares) constituting Collateral; provided, however that no vote shall be
cast, or consent, waiver or ratification given, or action taken by Pledgor that
would impair any Collateral or be inconsistent with or violate any provision of
the Purchase Agreement or any other Loan Document (including this Agreement).
SECTION 4.5 Sale of Assets. Pledgor will not sell, assign, transfer,
pledge or encumber all or substantially all of the assets that are necessary for
the operations of Deli-Bon as presently conducted.
SECTION 4.6 Payment of the Obligations. The Pledgor will pay each part
of the 30 Day Note and the 60 Day Note and obligations under the Purchase
Agreement when due.
SECTION 4.7 Agreements. Pledgor will comply with and duly and
punctually perform and observe all agreements, covenants, and obligations
contained in the Loan Documents and any other agreement between it and the
Secured Party.
SECTION 4.8 Books and Records; Inspection. Pledgor will maintain in a
secure place on the Pledgor's premises, complete proper and accurate books,
records, ledgers, correspondence, and other papers relating to Deli-Bon's
business and affairs. The Secured Party will at all reasonable times have the
right to examine, inspect, audit, verify, and copy such items, and to remove
copies thereof and to discuss any of same with appropriate officers,
accountants, and auditors of Pledgor.
SECTION 4.9 Notice of Default. Within twenty-four (24) hours of the
discovery by Pledgor of the occurrence of a Default or Event of Default
hereunder or under any of the other Transaction Documents or an event which
could reasonably be expected to result in a Default or Event of Default
hereunder or under any other Loan Document, the Pledgor will notify the Secured
Party and will deliver a certificate signed by the president, chief executive
officer or the chief financial officer of the Pledgor concerning the nature and
period of existence thereof and the steps, if any, being taken to cure such
Default or Event of Default.
SECTION 4.10 Maintenance of Existence, Approvals, and Licenses. Pledgor
will preserve and maintain Deli-Bon's existence, rights, privileges, operations
and franchises in its jurisdiction of creation, qualify and remain qualified in
each jurisdiction in which, under then applicable law, the nature of its
business or the ownership of its properties requires such qualification and
obtain and maintain in full force all approvals, licenses (governmental and
private) permits, and authorizations necessary to conduct its business and
comply with its obligations under the Loan Documents. Pledgor will continue to
operate Deli-Bon in a prudent and businesslike manner.
SECTION 4.11 Compliance with Laws, Material Agreements, and Licenses.
Pledgor will comply with all foreign and domestic laws, rules, regulations,
ordinances, orders, judgments, and decrees applicable to it or any of its
property, a breach of which (when considered alone or when aggregated with the
effect of other breaches) could have a material adverse effect, will comply in
all
-7-
<PAGE> 8
respects with all material agreements, indentures, mortgages, leases, and other
documents to which it is a party or by which it or any of its property is bound
and will keep in full force and effect all material licenses, permits, and
franchises necessary or useful for the conduct of its business.
SECTION 4.12 Maintenance of Assets and Insurance. Pledgor will keep all
assets which are useful and necessary in the business in good working order and
condition, make all necessary replacements and maintain, or cause to be
maintained, such insurance as is customarily maintained by other businesses of
comparable type and size with such financially sound and reputable insurers, in
such amounts and covering such risks as shall be satisfactory and acceptable to
the Secured Party.
SECTION 4.13 Financial Information. Pledgor will furnish to the Secured
Party with seven (7) days (a) such financial information and information
regarding Payee and Deli-Bon as the Secured Party may from time to time
reasonably request and (b) written notice of the occurrence of any event which
would make any representation contained in Article III untrue at such time.
ARTICLE 5
REMEDIES
SECTION 5.1 Actions upon Event of Default. In addition to its rights
and remedies provided hereunder, whenever an Event of Default shall have
occurred and be continuing, the Secured Party shall have all rights and remedies
of a secured party upon default under the U.C.C. or other applicable law. Any
notification required by law of any intended disposition by the Secured Party of
any of the Collateral shall be deemed reasonably and properly given if given at
least 15 days before such disposition. Without limitation of the above, the
secured Party may, whenever an Event of Default shall have occurred and be
continuing, without prior notice to Pledgor, take all or any of the following
actions:
(a) transfer all or any part of the Collateral into the name of the
Secured Party or its nominee, with or without disclosing that such
Collateral is subject to the lien and security interest hereunder;
(b) notify the parties obligated on any of the Collateral to make
payment to the Secured Party of any amount due or to become due
thereunder;
(c) enforce collection of any of the Collateral by suit or otherwise,
and surrender, release or exchange all or any part thereof, or
compromise or extend or renew for any period (whether or not longer
than the original period) any obligations of any nature of any party
with respect thereto;
(d) endorse any checks, drafts, or other writings in Pledgor's name to
allow collection of the Collateral;
(e) take control of any proceeds of the Collateral; and
-8-
<PAGE> 9
(f) execute (in the name, place and stead of Pledgor) endorsements,
assignments, stock powers and other instruments of conveyance or
transfer with respect to all or any of the Collateral.
SECTION 5.2 Attorney-in-Fact. Pledgor hereby irrevocably appoints the
Secured Party its attorney-in-fact, with full authority in the place and stead
of Pledgor and in the name of Pledgor, the Secured Party, or otherwise, from
time to time in the Secured Party's discretion, to take any action and to
execute any instrument which the Secured Party may deem necessary or advisable
to accomplish the purposes of this Agreement, including, upon the occurrence and
continuance of an Event of Default, all actions described in Section 5.1.
SECTION 5.3 Private Sales.
(a) Pledgor recognizes that the Secured Party may be unable to effect a
public sale of any or all the Pledged Shares by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act") and applicable state securities laws or otherwise,
and may be compelled to resort to one or more private sales thereof to
a restricted group of purchasers that will be obliged to agree, among
other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof.
Pledgor acknowledges and agrees that any such private sale may result
in prices and other terms less favorable than if such sale were a
public sale and, notwithstanding such circumstances, agrees that any
such private sale shall be deemed to have been made in a commercially
reasonable manner. The Secured Party shall be under no obligation to
delay sale of any of the Pledged Shares for the period of time
necessary to permit the Pledgor to register such securities for public
sale under the Securities Act, or under applicable state securities
laws, even if Deli-Bon would agree to do so.
(b) Pledgor further agrees to use its best efforts to do or cause to be
done all such acts as may be necessary to make such sale or sales of
all or any portion of the Pledged Shares pursuant to this Section 5.3
valid and binding and in compliance with any and all other applicable
requirements of law.
SECTION 5.4 Application of Proceeds. All cash proceeds received by the
Secured Party in respect of any sale of, collection from, or other realization
upon, all or any part of the Collateral may, in the discretion of the Secured
Party, be held by the Secured Party as additional collateral security for, or
then or at any time thereafter be applied in whole or in part by the Secured
Party against, all or any part of the Secured Obligations in the following
order:
(a) first, Ratably, to the principal then due on the 30 Day Note;
(b) second, Ratably, to the principal then due on the 60 Day Note;
(c) third, to any other Secured Obligations then due or owing.
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<PAGE> 10
Any surplus of such cash or cash proceeds held by the Secured Party and
remaining after payment in full of all the Secured Obligations shall be paid
over to Pledgor or to whomsoever may be lawfully entitled to receive such
surplus.
SECTION 5.5 Indemnity and Expenses. Pledgor hereby indemnifies and
holds harmless the Secured Party from and against any and all claims, losses,
and liabilities growing out of or resulting from this Agreement (including
enforcement of this Agreement), except claims, losses, or liabilities resulting
from the Secured Party's gross negligence or wilful misconduct. Upon demand,
Pledgor will pay, or cause to be paid, to the Secured Party the amount of any
and all reasonable expenses, including the reasonable fees and disbursements of
its counsel and of any experts and agents, which the Secured Party may incur in
connection with:
(a) the administration of this Agreement;
(b) the custody, preservation, use, or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral;
(c) the exercise or enforcement of any of the rights of the Secured
Party hereunder and any action taken by the Secured Party under Section
6.5; or
(d) the failure by Pledgor to perform or observe any of the provisions
hereof.
ARTICLE 6
MISCELLANEOUS
SECTION 6.1 Amendments, etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure by Pledgor herefrom shall in any
event be effective unless the same shall be in writing, signed by the Secured
Party and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it is given.
SECTION 6.2 Obligations Not Affected. The obligations of Pledgor under
this Agreement shall remain in full force and effect without regard to, and
shall not be impaired or affected by:
(a) any amendment or modification or addition or supplement to the
Purchase Agreement, any other Loan Document, any instrument delivered
in connection therewith or any assignment or transfer thereof;
(b) any exercise, non-exercise or waiver by the Secured Party of any
right, remedy, power or privilege under or in respect of, or any
release of any guaranty or collateral provided pursuant to this
Agreement, the Purchase Agreement or any Loan Document;
(c) any waiver, consent, extension, indulgence or other action or
inaction in respect of this Agreement, the Purchase Agreement or any
Loan Document or any assignment or transfer of any thereof; or
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<PAGE> 11
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like, death or
incompetency of the Pledgor or any other Person, whether or not Pledgor
shall have notice or knowledge of any of the foregoing.
SECTION 6.3 Protection of Collateral. The Secured Party may from time
to time, at its option, perform any act which Pledgor agrees hereunder to
perform and which Pledgor shall fail to perform after being requested in writing
to so perform (it being understood that no such request need be given after the
occurrence and during the continuance of an Event of Default) and the Secured
Party may from time to time take any other action which the Secured Party
reasonably deems necessary for the maintenance, preservation or protection of
any of the Collateral or of its security interest therein.
SECTION 6.4 Addresses for Notices. All notices and other communications
provided for hereunder to any party hereto under this Agreement shall be in
writing or by facsimile and addressed or delivered to it at the address set
forth below its signature hereto, or as to any party at such other address as
shall be designated by such party in a written notice to each other party
complying as to delivery with the terms of this Section. Any such notice, if
mailed and properly addressed with postage prepaid, shall be deemed given seven
(7) calendar days after mailing; any notice, if transmitted by facsimile shall
be deemed given when transmitted on a business day (with evidence of
transmission confirmation).
SECTION 6.5 Governing Law; Jurisdiction.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
(b) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY TEXAS STATE OR FEDERAL COURT SITTING IN DALLAS, TEXAS IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR RELATED DOCUMENT (AND PLEDGOR AGREES THAT SUCH JURISDICTION
WILL BE EXCLUSIVE WITH RESPECT TO CLAIMS BROUGHT BY PLEDGOR AGAINST THE SECURED
PARTY), AND EACH HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH TEXAS STATE OR FEDERAL
COURT. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF ANY INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING.
(c) Pledgor hereby irrevocably designates, appoints and empowers C.T.
Corporation System, 350 N. St. Paul Street, Suite 2900, Dallas, Texas 75201, as
its authorized agent to receive, for and on its behalf and on behalf of its
property, service of process in the State of Texas when and as such legal
actions or proceedings may be brought in the courts of the State of Texas or of
the United States of America sitting in Texas, and such service of process shall
be deemed complete upon the date of delivery thereof to such agent whether or
not such agent gives notice thereof to Pledgor, or upon the earliest of any
other date permitted by applicable law. It is understood that a
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<PAGE> 12
copy of said process served on such agent will as soon as practicable be
forwarded to Pledgor, at its address set forth below, but Pledgor's failure to
receive such copy shall not affect in any way the service of said process on
said agent as the agent of Pledgor. Pledgor irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of the copies thereof by certified mail, return
receipt requested, postage prepaid, to Pledgor at its address set forth below,
such service to become effective upon the earlier of (i) the date 10 calendar
days after such mailing or (ii) any earlier date permitted by applicable law.
Pledgor agrees that it will at all times continuously maintain an agent to
receive service of process in the State of Texas and in the event that, for any
reason, the agent named above or its successor shall no longer serve as its
agent to receive service of process in the State of Texas on its behalf, it
shall promptly appoint a successor so to serve and shall advise the Secured
Party. Nothing in this Section 6.5 shall affect the right of the Secured Party
to bring proceedings against Pledgor in the courts of any other jurisdiction or
to serve process in any other manner permitted by applicable law.
SECTION 6.6 Waiver of Jury Trial, etc. THE SECURED PARTY, AND PLEDGOR
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
RELATED DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE SECURED PARTY OR PLEDGOR. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURED PARTY'S ENTERING INTO THE
PURCHASE AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
THE UNIMARK GROUP, INC.,
A Texas corporation
By: /s/ Soren Bjorn
-------------------------------------
Soren Bjorn
Chief Executive Officer,
President and Secretary
Address: P.O. Box 229
Bartonville, Texas 76226
Telecopy No.: (817) 491-1272
Attention: Soren Bjorn
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<PAGE> 13
FRANCOIS GRAVIL - GUY PICARD
In trust for the company to be owned
and operated by Francois Gravil and Guy
Picard
/s/ Francois Gravil
---------------------------------------
Francois Gravil
/s/ Guy Picard
---------------------------------------
Guy Picard
Telecopy No.: (418) 842-8926
STATE OF TEXAS )
)
COUNTY OF DALLAS )
On the 11th day of October, 1999 before me personally came FRANCOIS
GRAVIL, to me known who, being sworn, did depose and say that he is to own and
operate the entity to be formed as Francois Gravil - Guy Picard with Guy Picard,
described in and which executed the foregoing instrument and that he signed his
name thereto in trust for, and on behalf of, said company to be owned and
operated by Francois Gravil and Guy Picard.
---------------------------------------
Notary Public
STATE OF TEXAS )
)
COUNTY OF DALLAS )
On the 11th day of October, 1999 before me personally came GUY PICARD,
to me known who, being sworn, did depose and say that he is to own and operate
the entity to be formed as Francois Gravil - Guy Picard with Francois Gravil,
described in and which executed the foregoing instrument; and that he signed his
name thereto in trust for, and on behalf of, said company to be owned and
operated by Francois Gravil and Guy Picard.
---------------------------------------
Notary Public
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<PAGE> 14
ATTACHMENT 1
(to the Pledge Agreement)
INITIAL PLEDGED SHARES
49% OF OUTSTANDING DELI-BON SHARES
<TABLE>
<CAPTION>
Stock Number of Shares Pledged (49%) Certificate Number
----- ------------------------------ ------------------
<S> <C> <C>
Common Stock 710,500 C-3
</TABLE>
<PAGE> 1
Exhibit 99.7
LONG-TERM PLEDGE AGREEMENT
THIS LONG-TERM PLEDGE AGREEMENT (this "Agreement"), dated as of October
11, 1999, between Francois Gravil - Guy Picard, in trust for the company to be
owned and operated by Francois Gravil and Guy Picard (the "Pledgor"), and The
UniMark Group, Inc., a Texas corporation (the "Secured Party").
W I T N E S S E T H:
WHEREAS, the Pledgor, has entered into that certain Stock Purchase
Agreement dated October 11, 1999 (the "Purchase Agreement")(certain capitalized
terms used herein which are defined in the Purchase Agreement shall have the
same meanings when used herein, unless otherwise defined herein) with the
Secured Party, as Purchaser, pursuant to which, among other things, the Pledgor
has agreed to purchase from the Secured Party, and the Secured Party has agreed
to sell to the Pledgor, all of the issued and outstanding shares of capital
stock of Les Produits Deli-Bon, Inc., a Quebec corporation (the "Deli-Bon
Shares"); and
WHEREAS, it is a condition precedent to the obligation of the Secured
Party to sell the Deli-Bon Shares under the Purchase Agreement, that the Pledgor
execute and deliver this Security Agreement and grant the security interests
contemplated hereby; and
WHEREAS, this Agreement, the Purchase Agreement, the 30 Day Note, the
60 Day Note and the 5 Year Note are hereinafter sometimes referred to as the
"Loan Documents".
NOW, THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged by it, and in order to induce the Secured Party to
sell the Deli-Bon Shares pursuant to the Purchase Agreement, Pledgor agrees with
the Secured Party, as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms when used in this
Agreement, including its preamble and recitals, shall have the following
meanings (such definitions to be equally applicable to the singular and plural
forms thereof):
"Collateral" is defined in Section 2.1.
"Deli-Bon" means Les Produits Deli-Bon, Inc., a Quebec corporation.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from stock splits, reclassifications, warrants,
options, non-cash dividends and other distributions (whether similar or
dissimilar to the foregoing) on or with respect to any Pledged Shares or other
shares of capital stock constituting Collateral, but shall not mean Dividends.
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<PAGE> 2
"Dividends" means cash dividends and cash distributions with respect to
any Pledged Shares made out of capital surplus.
"Event of Default" means Pledgor is in default under this Agreement
upon the happening of any of the following events or conditions (each an "Event
of Default"): (a) any default in the timely performance of any covenant or
agreement contained in or secured by this Agreement; (b) the entry of a judgment
or levy against any part of the Collateral or any execution, attachment,
sequestration, distraint warrant or other like or similar writ is issued with
respect to any of the Collateral; (c) the title of Pledgor to the Collateral
becomes the subject of litigation which would or might, in Secured Party's
opinion, upon final determination result in substantial impairment or loss of
the security provided by this Agreement and upon notice by Secured Party to
Pledgor such litigation is not dismissed within 30 days of such notice; or (d)
the occurrence of an Event of Default under the 30 Day Note, the 60 Day Note, or
the 5 Year Note.
"Initial Pledged Shares" means the capital stock of Deli-Bon more
particularly described in Attachment 1 hereto.
"Pledged Property" means all Pledged Shares, and all other pledged
shares of capital stock, all other securities, all assignments of any amounts
due or to become due, all other instruments which are now being delivered by the
Pledgor to the Secured Party or may from time to time hereafter be delivered by
the Pledgor to the Secured Party for the purpose of pledge under this Agreement
or any other Loan Document, and all proceeds of any of the foregoing.
"Pledged Shares" means the Initial Pledged Shares and all other shares
of capital stock of Deli-Bon, if any, which are delivered by the Secured Party
as Pledged Property hereunder.
"Pledgor" is defined in the preamble.
"Purchase Agreement" is defined in the first recital.
"Ratable" or "Ratably" means, in the context of a distribution of
Collateral or a distribution of proceeds of any of the Collateral, an allocation
of such Collateral or proceeds among the holders of the Deli-Bon Shares pro rata
in accordance with their respective portion of the aggregate dollar amount of
the Deli-Bon Shares to which the distribution is being applied.
"Secured Obligations" is defined in Section 2.2.
"U.C.C." means the Uniform Commercial Code as in effect in the State of
Texas.
SECTION 1.2 Purchase Agreement Definitions. Etc. Unless otherwise
defined herein or the context otherwise requires, terms used in this Agreement,
including its preamble and recitals, have the meanings provided in the Purchase
Agreement. References to the masculine gender shall include the feminine and
neuter genders unless the context otherwise requires.
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<PAGE> 3
SECTION 1.3 U.C.C. Definitions. Unless otherwise defined herein or the
context otherwise requires, terms for which meanings are provided in the U.C.C.
are used in this Agreement, including its preamble and recitals, with such
meanings.
ARTICLE 2
PLEDGE
SECTION 2.1 Grant of Security Interest. Pledgor hereby pledges,
assigns, charges, mortgages, delivers and transfers to the Secured Party, and
hereby grants to the Secured Party, a continuing security interest in, all of
the following property (the "Collateral"):
(a) the Initial Pledged Shares;
(b) all Pledged Shares issued from time to time;
(c) all other Pledged Property, whether now or hereafter delivered
to the Secured Party in connection with this Agreement;
(d) all Dividends, Distributions, interest and other payments and
rights with respect to any Pledged Property; and
(e) all proceeds of any of the foregoing.
SECTION 2.2 Security for Secured Obligations. This Agreement secures
the payment in full of all obligations of the Pledgor now or hereafter existing
related to the 30 Day Note, 60 Day Note and 5 Year Note, whether for principal,
interest, costs, fees, expenses or otherwise, and all obligations now or
hereafter existing of Pledgor to the Secured Party (collectively, the "Secured
Obligations").
SECTION 2.3 Delivery of Pledged Property; Registration of Pledge,
Transfer, etc. All certificates and instruments representing or evidencing any
Collateral, including all Pledged Shares, shall be delivered to and held by or
on behalf of the Secured Party pursuant hereto, shall be in suitable form for
transfer by delivery, and shall be accompanied by all necessary instruments of
transfer or assignment, duly executed in blank. The Secured Party shall have the
right, at any time and without notice to Pledgor, to transfer to, or to register
in the name of the Secured Party or any of its nominees, any or all of the
Pledged Shares. In addition, the Secured Party shall have the right at any time
to exchange certificates or instruments representing or evidencing any Pledged
Shares for certificates or instruments of smaller or larger denominations.
SECTION 2.4 Continuing Security Interest; Transfer of Note. This
Agreement shall
(a) create a continuing security interest in the Collateral;
(b) remain in full force and effect until payment in full of all
Secured Obligations;
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<PAGE> 4
(c) be binding upon Pledgor, its successors and assigns; provided
that Pledgor may not assign any of its rights or obligations
hereunder without the prior written consent of the Secured
Party; and
(d) inure to the benefit of the Secured Party and their respective
successors, transferees and assigns.
Without limiting the foregoing, any holder may assign or otherwise transfer any
other obligation, held by it to any other person, in accordance with the terms
of the Purchase Agreement, and such other person shall thereupon become vested
with all the benefits in respect thereof granted herein, in the other Loan
Documents or otherwise. Upon the payment in full of the Secured Obligations, the
security interest granted herein shall terminate and all rights to the
Collateral shall revert to Pledgor. Upon any such termination, the Secured Party
will, at Pledgor's expense, deliver all certificates and instruments
representing or evidencing all Pledged Shares, together with all other
Collateral held by the Secured Party hereunder, and execute and deliver to
Pledgor (without recourse or representation whatsoever), at Pledgor's expense,
such documents as Pledgor shall reasonably request to evidence such termination.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Warranties, etc. Pledgor represents and warrants unto the
Secured Party that as at the date of each pledge hereunder (including each
pledge of Pledged Shares) by Pledgor to the Secured Party of any Collateral,
(a) Pledgor has all requisite power and authority, and has taken
all necessary corporate action, to execute and deliver and perform its
obligations under this Pledge Agreement and to pledge the Collateral
hereunder.
(b) The execution, delivery and performance of this Agreement by
Pledgor, and the pledge of the Collateral hereunder do not and will not
conflict with, result in any violation of, or constitute any default
under, any provision of any contractual obligation of Pledgor or any
law or government regulation or court decree or order and will not
result in or require the creation or imposition of any lien on any of
Pledgor's properties pursuant to the provisions of any contractual
obligation. This Agreement is the legal, valid and binding obligation
of Pledgor enforceable in accordance with its terms subject to the
effect of
(i) any applicable bankruptcy, insolvency or similar
laws affecting creditors' rights generally; and
(ii) general principles of equity (regardless of
whether considered in a proceeding in equity or at law).
(c) Except as disclosed in the Purchase Agreement, there is no
pending or, to the knowledge of Pledgor, threatened litigation,
arbitration or governmental investigation,
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<PAGE> 5
proceeding or inquiry against Pledgor, or to which any of its
properties, assets or revenues is subject.
(d) Pledgor will be the legal and beneficial owner of, and will have
good and marketable title to (and will have full right and authority to
pledge and assign) all Collateral, free and clear of all liens or other
charges or encumbrances, except any lien or security interest granted
pursuant hereto in favor of the Secured Party.
(e) The delivery of the Collateral (including the delivery of the
Initial Pledged Shares) to the Secured Party will be effective to
create a valid, perfected, first priority security interest in such
Collateral and all proceeds thereof, securing the Secured Obligations,
and no filing or other action will be necessary to perfect or protect
such security interest.
(f) In the case of any Pledged Shares constituting Collateral, all of
such Pledged Shares will be duly authorized and validly issued, fully
paid, and non-assessable.
(g) No authorization, approval, or other action by, and no notice to or
filing with, any governmental authority will be required either
(i) for the pledge by Pledgor of any Collateral
pursuant to this Agreement or for the execution, delivery, or
performance of this Agreement by Pledgor, or
(ii) for the exercise by the Secured Party of the
voting or other rights provided for in this Agreement, or
(except, with respect to any Pledged Shares, as may be
required in connection with a disposition of such Pledged
Shares by laws affecting the offering and sale of securities
generally) the remedies in respect of the Collateral pursuant
to this Agreement.
ARTICLE 4
COVENANTS
SECTION 4.1 Protect Collateral; Further Assurances. etc. Pledgor will
not sell, assign, transfer, pledge or encumber in any other manner the
Collateral (except in favor of the Secured Party hereunder). Pledgor will
warrant and will use its best efforts to defend the right and title herein
granted unto the Secured Party in and to the Collateral (and all right, title
and interest represented by the Collateral) against the claims and demands of
all Persons whomsoever. Pledgor agrees that at any time, and from time to time,
at the expense of Pledgor, Pledgor will promptly execute and deliver all further
instruments, and take all further action, that may be necessary or desirable, or
that the Secured Party may reasonably request, in order to perfect and protect
any security interest granted or purported to be granted hereby or to enable the
Secured Party to exercise and enforce its rights and remedies hereunder with
respect to any Collateral.
SECTION 4.2 Stock Powers, etc. Pledgor agrees that all Pledged Shares
(and all other shares of capital stock constituting Collateral) delivered by
Pledgor pursuant to this Agreement will be
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<PAGE> 6
accompanied by duly executed undated blank stock powers, or other equivalent
instruments of transfer acceptable to the Secured Party. Pledgor will, from time
to time upon the request of the Secured Party, promptly deliver to the Secured
Party such stock powers, instruments and similar documents, satisfactory in form
and substance to the Secured Party, with respect to the Collateral as the
Secured Party may reasonably request and will, from time to time upon the
request of the Secured Party after the occurrence of any default, promptly
transfer any Pledged Shares or other shares of stock constituting Collateral
into the name of the Secured Party or any nominee designated by the Secured
Party.
SECTION 4.3 Continuous Pledge. Pledgor will, at all times, keep pledged
to the Secured Party pursuant hereto all Pledged Shares and all other shares of
stock constituting Collateral, all Dividends and Distributions with respect
thereto, and all other Collateral and other securities, instruments, proceeds
and rights from time to time received by or distributable to Pledgor in respect
of any Collateral.
SECTION 4.4 Voting Rights; Dividends, etc. Pledgor agrees to deliver
all Distributions at any time received by it to the Secured Party to be held as
Collateral hereunder and, in addition, to deliver (properly endorsed where
required hereby or requested by the Secured Party) to the Secured Party:
(a) after any Default shall have occurred and be continuing or if any
Default shall occur as a result thereof, promptly upon receipt thereof
by Pledgor and without any request therefor by the Secured Party, all
Dividends, all other cash payments and all proceeds of the Collateral,
all of which shall be held by the Secured Party as additional
collateral for use in accordance with Section 5.4; and
(b) after any Default shall have occurred and be continuing, promptly
upon request of the Secured Party, such proxies and other documents as
may be necessary to allow the Secured Party to exercise the voting
power with respect to any share of capital stock constituting
Collateral;
provided, however, that unless a default shall have occurred and be continuing
or result therefrom, Pledgor shall be entitled to exercise, in its reasonable
judgment, but in a manner not inconsistent with the terms of the Purchase
Agreement or any other Loan Document (including this Agreement), the voting
power and all other incidental rights of ownership with respect to any Pledged
Shares or other shares of capital stock constituting Collateral (subject to
Pledgor's obligation to deliver to the Secured Party such Pledged Shares and
other shares in pledge hereunder).
All Dividends, Distributions, cash payments and proceeds which may at any time
and from time to time be held by Pledgor but which Pledgor is then obligated to
deliver to the Secured Party, shall, until delivery to the Secured Party, be
held by Pledgor separate and apart from its other property in trust for the
Secured Party. The Secured Party agrees that unless a Default shall have
occurred and be continuing, the Secured Party shall, upon the written request of
Pledgor, promptly deliver such proxies and other documents, if any, as shall be
reasonably requested by Pledgor which are necessary to allow Pledgor to exercise
voting power with respect to any share of capital stock (including Pledged
Shares) constituting Collateral; provided, however that no vote shall be cast,
or consent,
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<PAGE> 7
waiver or ratification given, or action taken by Pledgor that would impair any
Collateral or be inconsistent with or violate any provision of the Purchase
Agreement or any other Loan Document (including this Agreement).
SECTION 4.5 Sale of Assets. Pledgor will not sell, assign, transfer,
pledge or encumber all or substantially all of the assets that are necessary for
the operations of Deli-Bon as presently conducted.
SECTION 4.6 Payment of the Obligations. The Pledgor will pay each part
of the 30 Day Note, 60 Day Note, 5 Year Note and obligations under the Purchase
Agreement when due.
SECTION 4.7 Agreements. Pledgor will comply with and duly and
punctually perform and observe all agreements, covenants, and obligations
contained in the Loan Documents and any other agreement between it and the
Secured Party.
SECTION 4.8 Books and Records; Inspection. Pledgor will maintain in a
secure place on the Pledgor's premises, complete proper and accurate books,
records, ledgers, correspondence, and other papers relating to Deli-Bon's
business and affairs. The Secured Party will at all reasonable times have the
right to examine, inspect, audit, verify, and copy such items, and to remove
copies thereof and to discuss any of same with appropriate officers,
accountants, and auditors of Pledgor.
SECTION 4.9 Notice of Default. Within twenty-four (24) hours of the
discovery by Pledgor of the occurrence of a Default or Event of Default
hereunder or under any of the other Transaction Documents or an event which
could reasonably be expected to result in a Default or Event of Default
hereunder or under any other Loan Document, the Pledgor will notify the Secured
Party and will deliver a certificate signed by the president, chief executive
officer or the chief financial officer of the Pledgor concerning the nature and
period of existence thereof and the steps, if any, being taken to cure such
Default or Event of Default.
SECTION 4.10 Maintenance of Existence, Approvals, and Licenses. Pledgor
will preserve and maintain Deli-Bon's existence, rights, privileges, operations
and franchises in its jurisdiction of creation, qualify and remain qualified in
each jurisdiction in which, under then applicable law, the nature of its
business or the ownership of its properties requires such qualification and
obtain and maintain in full force all approvals, licenses (governmental and
private) permits, and authorizations necessary to conduct its business and
comply with its obligations under the Loan Documents. Pledgor will continue to
operate Deli-Bon in a prudent and businesslike manner.
SECTION 4.11 Compliance with Laws, Material Agreements, and Licenses.
Pledgor will comply with all foreign and domestic laws, rules, regulations,
ordinances, orders, judgments, and decrees applicable to it or any of its
property, a breach of which (when considered alone or when aggregated with the
effect of other breaches) could have a material adverse effect, will comply in
all respects with all material agreements, indentures, mortgages, leases, and
other documents to which it is a party or by which it or any of its property is
bound and will keep in full force and effect all material licenses, permits, and
franchises necessary or useful for the conduct of its business.
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<PAGE> 8
SECTION 4.12 Maintenance of Assets and Insurance. Pledgor will keep all
assets which are useful and necessary in the business in good working order and
condition, make all necessary replacements and maintain, or cause to be
maintained, such insurance as is customarily maintained by other businesses of
comparable type and size with such financially sound and reputable insurers, in
such amounts and covering such risks as shall be satisfactory and acceptable to
the Secured Party.
SECTION 4.13 Financial Information. Pledgor will furnish to the Secured
Party within seven (7) days (a) such financial information and information
regarding Payee and Deli-Bon as the Secured Party may from time to time
reasonably request and (b) written notice of the occurrence of any event which
would make any representation contained in Article III untrue at such time.
ARTICLE 5
REMEDIES
SECTION 5.1 Actions upon Event of Default. In addition to its rights
and remedies provided hereunder, whenever an Event of Default shall have
occurred and be continuing, the Secured Party shall have all rights and remedies
of a secured party upon default under the U.C.C. or other applicable law. Any
notification required by law of any intended disposition by the Secured Party of
any of the Collateral shall be deemed reasonably and properly given if given at
least 15 days before such disposition. Without limitation of the above, the
secured Party may, whenever an Event of Default shall have occurred and be
continuing, without prior notice to Pledgor, take all or any of the following
actions:
(a) transfer all or any part of the Collateral into the name of the
Secured Party or its nominee, with or without disclosing that such
Collateral is subject to the lien and security interest hereunder;
(b) notify the parties obligated on any of the Collateral to make
payment to the Secured Party of any amount due or to become due
thereunder;
(c) enforce collection of any of the Collateral by suit or otherwise,
and surrender, release or exchange all or any part thereof, or
compromise or extend or renew for any period (whether or not longer
than the original period) any obligations of any nature of any party
with respect thereto;
(d) endorse any checks, drafts, or other writings in Pledgor's name to
allow collection of the Collateral;
(e) take control of any proceeds of the Collateral; and
(f) execute (in the name, place and stead of Pledgor) endorsements,
assignments, stock powers and other instruments of conveyance or
transfer with respect to all or any of the Collateral.
-8-
<PAGE> 9
SECTION 5.2 Attorney-in-Fact. Pledgor hereby irrevocably appoints the
Secured Party its attorney-in-fact, with full authority in the place and stead
of Pledgor and in the name of Pledgor, the Secured Party, or otherwise, from
time to time in the Secured Party's discretion, to take any action and to
execute any instrument which the Secured Party may deem necessary or advisable
to accomplish the purposes of this Agreement, including, upon the occurrence and
continuance of an Event of Default, all actions described in Section 5.1.
SECTION 5.3 Private Sales.
(a) Pledgor recognizes that the Secured Party may be unable to effect a
public sale of any or all the Pledged Shares by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act") and applicable state securities laws or otherwise,
and may be compelled to resort to one or more private sales thereof to
a restricted group of purchasers that will be obliged to agree, among
other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof.
Pledgor acknowledges and agrees that any such private sale may result
in prices and other terms less favorable than if such sale were a
public sale and, notwithstanding such circumstances, agrees that any
such private sale shall be deemed to have been made in a commercially
reasonable manner. The Secured Party shall be under no obligation to
delay sale of any of the Pledged Shares for the period of time
necessary to permit the Pledgor to register such securities for public
sale under the Securities Act, or under applicable state securities
laws, even if Deli-Bon would agree to do so.
(b) Pledgor further agrees to use its best efforts to do or cause to be
done all such acts as may be necessary to make such sale or sales of
all or any portion of the Pledged Shares pursuant to this Section 5.3
valid and binding and in compliance with any and all other applicable
requirements of law.
SECTION 5.4 Application of Proceeds. All cash proceeds received by the
Secured Party in respect of any sale of, collection from, or other realization
upon, all or any part of the Collateral may, in the discretion of the Secured
Party, be held by the Secured Party as additional collateral security for, or
then or at any time thereafter be applied in whole or in part by the Secured
Party against, all or any part of the Secured Obligations in the following
order:
(a) first, Ratably, to the principal then due on the 30 Day Note;
(b) second, Ratably, to the principal then due on the 60 Day Note;
(c) third, Ratably, to the unpaid interest accrued and then due on the
5 Year Note (including any premium thereon); and
(d) fourth, to any other Secured Obligations then due or owing.
Any surplus of such cash or cash proceeds held by the Secured Party and
remaining after payment in full of all the Secured Obligations shall be paid
over to Pledgor or to whomsoever may be lawfully entitled to receive such
surplus.
-9-
<PAGE> 10
SECTION 5.5 Indemnity and Expenses. Pledgor hereby indemnifies and
holds harmless the Secured Party from and against any and all claims, losses,
and liabilities growing out of or resulting from this Agreement (including
enforcement of this Agreement), except claims, losses, or liabilities resulting
from the Secured Party's gross negligence or wilful misconduct. Upon demand,
Pledgor will pay, or cause to be paid, to the Secured Party the amount of any
and all reasonable expenses, including the reasonable fees and disbursements of
its counsel and of any experts and agents, which the Secured Party may incur in
connection with:
(a) the administration of this Agreement;
(b) the custody, preservation, use, or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral;
(c) the exercise or enforcement of any of the rights of the Secured
Party hereunder and any action taken by the Secured Party under Section
6.5; or
(d) the failure by Pledgor to perform or observe any of the provisions
hereof.
ARTICLE 6
MISCELLANEOUS
SECTION 6.1 Amendments, etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure by Pledgor herefrom shall in any
event be effective unless the same shall be in writing, signed by the Secured
Party and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it is given.
SECTION 6.2 Obligations Not Affected. The obligations of Pledgor under
this Agreement shall remain in full force and effect without regard to, and
shall not be impaired or affected by:
(a) any amendment or modification or addition or supplement to the
Purchase Agreement, any other Loan Document, any instrument delivered
in connection therewith or any assignment or transfer thereof;
(b) any exercise, non-exercise or waiver by the Secured Party of any
right, remedy, power or privilege under or in respect of, or any
release of any guaranty or collateral provided pursuant to this
Agreement, the Purchase Agreement or any Loan Document;
(c) any waiver, consent, extension, indulgence or other action or
inaction in respect of this Agreement, the Purchase Agreement or any
Loan Document or any assignment or transfer of any thereof; or
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like, death or
incompetency of the Pledgor or any other Person, whether or not Pledgor
shall have notice or knowledge of any of the foregoing.
-10-
<PAGE> 11
SECTION 6.3 Protection of Collateral. The Secured Party may from time
to time, at its option, perform any act which Pledgor agrees hereunder to
perform and which Pledgor shall fail to perform after being requested in writing
to so perform (it being understood that no such request need be given after the
occurrence and during the continuance of an Event of Default) and the Secured
Party may from time to time take any other action which the Secured Party
reasonably deems necessary for the maintenance, preservation or protection of
any of the Collateral or of its security interest therein.
SECTION 6.4 Addresses for Notices. All notices and other communications
provided for hereunder to any party hereto under this Agreement shall be in
writing or by facsimile and addressed or delivered to it at the address set
forth below its signature hereto, or as to any party at such other address as
shall be designated by such party in a written notice to each other party
complying as to delivery with the terms of this Section. Any such notice, if
mailed and properly addressed with postage prepaid, shall be deemed given seven
(7) calendar days after mailing; any notice, if transmitted by facsimile shall
be deemed given when transmitted on a business day (with evidence of
transmission confirmation).
SECTION 6.5 Governing Law; Jurisdiction.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
(b) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY TEXAS STATE OR FEDERAL COURT SITTING IN DALLAS, TEXAS IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR RELATED DOCUMENT (AND PLEDGOR AGREES THAT SUCH JURISDICTION
WILL BE EXCLUSIVE WITH RESPECT TO CLAIMS BROUGHT BY PLEDGOR AGAINST THE SECURED
PARTY), AND EACH HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH TEXAS STATE OR FEDERAL
COURT. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF ANY INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING.
(c) Pledgor hereby irrevocably designates, appoints and empowers C.T.
Corporation System, 350 N. St. Paul Street, Suite 2900, Dallas, Texas 75201, as
its authorized agent to receive, for and on its behalf and on behalf of its
property, service of process in the State of Texas when and as such legal
actions or proceedings may be brought in the courts of the State of Texas or of
the United States of America sitting in Texas, and such service of process shall
be deemed complete upon the date of delivery thereof to such agent whether or
not such agent gives notice thereof to Pledgor, or upon the earliest of any
other date permitted by applicable law. It is understood that a copy of said
process served on such agent will as soon as practicable be forwarded to
Pledgor, at its address set forth below, but Pledgor's failure to receive such
copy shall not affect in any way the service of said process on said agent as
the agent of Pledgor. Pledgor irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by the
-11-
<PAGE> 12
mailing of the copies thereof by certified mail, return receipt requested,
postage prepaid, to Pledgor at its address set forth below, such service to
become effective upon the earlier of (i) the date 10 calendar days after such
mailing or (ii) any earlier date permitted by applicable law. Pledgor agrees
that it will at all times continuously maintain an agent to receive service of
process in the State of Texas and in the event that, for any reason, the agent
named above or its successor shall no longer serve as its agent to receive
service of process in the State of Texas on its behalf, it shall promptly
appoint a successor so to serve and shall advise the Secured Party. Nothing in
this Section 6.5 shall affect the right of the Secured Party to bring
proceedings against Pledgor in the courts of any other jurisdiction or to serve
process in any other manner permitted by applicable law.
SECTION 6.6 Waiver of Jury Trial. Etc. THE SECURED PARTY, AND PLEDGOR
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
RELATED DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE SECURED PARTY OR PLEDGOR. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURED PARTY'S ENTERING INTO THE
PURCHASE AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
THE UNIMARK GROUP, INC.,
A Texas corporation
By: /s/ Soren Bjorn
-------------------------------------
Soren Bjorn
Chief Executive Officer,
President and Secretary
Address: P.O. Box 229
Bartonville, Texas 76226
Telecopy No.: (817) 491-1272
Attention: Soren Bjorn
-12-
<PAGE> 13
FRANCOIS GRAVIL - GUY PICARD
In trust for the company to be owned and
operated by Francois Gravil and Guy
Picard
/s/ Francois Gravil
----------------------------------------
Francois Gravil
/s/ Guy Picard
----------------------------------------
Guy Picard
Telecopy No.: (418) 842-8926
STATE OF TEXAS )
)
COUNTY OF DALLAS )
On the 11th day of October, 1999 before me personally came FRANCOIS
GRAVIL, to me known who, being sworn, did depose and say that he is to own and
operate the entity to be formed as Francois Gravil - Guy Picard with Guy Picard,
described in and which executed the foregoing instrument and that he signed his
name thereto in trust for, and on behalf of, said company to be owned and
operated by Francois Gravil and Guy Picard.
----------------------------------------
Notary Public
STATE OF TEXAS )
)
COUNTY OF DALLAS )
On the 11th day of October, 1999 before me personally came GUY PICARD,
to me known who, being sworn, did depose and say that he is to own and operate
the entity to be formed as Francois Gravil - Guy Picard with Francois Gravil,
described in and which executed the foregoing instrument; and that he signed his
name thereto in trust for, and on behalf of, said company to be owned and
operated by Francois Gravil and Guy Picard.
----------------------------------------
Notary Public
-13-
<PAGE> 14
ATTACHMENT 1
(to the Pledge Agreement)
INITIAL PLEDGED SHARES
51% OF OUTSTANDING DELI-BON SHARES
<TABLE>
<CAPTION>
Stock Number of Shares Pledged Certificate Number.
----- ------------------------ -------------------
<S> <C> <C>
Common Stock 739,500 C-4
</TABLE>
<PAGE> 1
Exhibit 99.8
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT ("Agreement") dated as of October 11, 1999, by
and among The UniMark Group, Inc., a Texas corporation ("UniMark") and Les
Produits Deli-Bon, Inc., a Quebec corporation (the "Deli-Bon").
WITNESSETH:
WHEREAS, UniMark produces those certain raw materials and finished
goods as identified on Exhibit A hereto (collectively, the "Products"); and
WHEREAS, Deli-Bon desires to purchase the Products from UniMark;
WHEREAS, UniMark is willing to sell the Products to Deli-Bon in
accordance with and subject to the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged;
IT IS AGREED:
1. AGREEMENT TO SUPPLY; TERMS OF PURCHASE
UniMark hereby agrees to sell to Deli-Bon the respective Products for
such prices as identified on Exhibit A hereto. The purchase price shall be "FOB
McAllen, Texas" and payment shall be due within net 21 days.
2. TERM
The term of this Agreement shall be until December 31, 2000.
3. SEVERABILITY
If any part of this Agreement for any reason be declared invalid, such
declaration shall not affect the validity of the remaining portion, which
remaining portion shall remain in force and effect as if this Agreement had been
executed with the invalid portion thereof eliminated, and it is hereby declared
the intention of the parties hereto that they would exercise the remaining
portion of this Agreement without including therein any such part, parts or
portions that may, for any reason, be hereafter declared invalid.
1
<PAGE> 2
4. GOVERNING LAW
This Agreement shall be interpreted and construed in accordance with
and shall be governed by the laws of the State of Texas.
5. TERMINATION
In the event Deli-Bon shall breach or fail to perform any of the terms
or conditions of this Agreement, and provided that such breach or
non-performance is not cured within such thirty (30) days then, UniMark may
terminate this Agreement thirty (30) days after written notice of the nature of
such breach or non-performance is delivered to the defaulting party.
6. DISPUTES BETWEEN PARTIES
All controversies that may arise between the parties hereto including,
but not limited to, those arising out of or related to this Agreement, shall be
determined by binding arbitration applying the laws of the State of Texas. Any
arbitration pursuant to this Agreement must be submitted to the British Columbia
International Commercial Arbitration Centre (the Vancouver Centre for Commercial
Disputes) in Vancouver, Canada for binding arbitration, to the exclusion of
courts of law, in accordance with its arbitration rules. The parties hereto have
required that any arbitration proceeding be conducted in the English language.
Les parties ont requis que tous l'arbitrage soient en langue anglaise. The
arbitration shall be final and binding upon all the parties (so long as the
award was not procured by corruption, fraud nor undue means), and the
arbitrators award shall not be required to include factual findings or legal
reasoning.
7. TITLES NOT LIMITING
Titles to paragraphs of this Agreement are for the purpose of
information and guidance only, are not part of this Agreement, and shall in no
way be deemed to limit the effect of any language to which they relate.
8. INTEGRATION OF AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all prior negotiations, understandings and agreements, if any,
between the parties. This Agreement may not be amended or modified orally but
may be amended or modified only by written instrument signed by the parties
hereto.
9. SUCCESSION
All rights of the parties under this Agreement shall accrue to the
benefit of their successors and assigns.
2
<PAGE> 3
10. CONSENT TO ASSIGNMENT
Deli-Bon must obtain the prior written consent of UniMark before
assigning any of its rights, title or interest under this Agreement. Any
assignment without such prior written consent shall be null and void.
IN WITNESS WHEREOF, this Agreement has been duly executed in duplicate
by a duly authorized officer of the parties hereto.
THE UNIMARK GROUP, INC.,
A Texas corporation
By: /s/ Soren Bjorn
-------------------------------------
Soren Bjorn
Chief Executive Officer,
President and Secretary
Address: P.O. Box 229
Bartonville, Texas 76226
Telecopy No.: (817) 491-1272
Attention: Soren Bjorn
DELI-BON:
/s/ Francois Gravil
----------------------------------------
By: Francois Gravil
Title: President
Telecopy No.: (418) 842-8926
3
<PAGE> 1
EXHIBIT 99.9
EXCLUSIVE DISTRIBUTION AGREEMENT
THIS EXCLUSIVE DISTRIBUTION AGREEMENT ("Agreement") dated as of October
11, 1999, by and among The UniMark Group, Inc., a Texas corporation ("UniMark")
and Les Produits Deli-Bon, Inc., a Quebec corporation (the "Deli-Bon").
WITNESSETH:
WHEREAS, UniMark is the owner of the entire rights, title and interest
in and to the name "Fruits of Four Seasons" and related trade names, marks and
symbols, and with regard to such names, marks and symbols Deli-Bon hereby
expressly recognizes and concedes that Licensor is presently the exclusive owner
of same; and
WHEREAS, Deli-Bon desires to be granted an exclusive right to
distribute and sell "Fruits of Four Seasons" products produced by UniMark's
subsidiaries (the "Products") in Canada;
WHEREAS, UniMark is willing to grant an exclusive right to Deli-Bon in
accordance with and subject to the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged;
IT IS AGREED:
1. GRANT
UniMark hereby grants to Deli-Bon the exclusive right to distribute and
sell the Products in Canada.
2. TERM
The term of this Agreement shall be for a period of four (4) years
commencing on the effective date of this Agreement and ending on the anniversary
date of such commencement (the "Anniversary Date"). This Agreement shall be
renewed on the Anniversary Date of each successive year thereafter unless (i)
UniMark or Deli-Bon shall give to the other party a notice of cancellation at
least thirty (30) days prior to any Anniversary Date, to be effective on such
Anniversary Date, or (ii) it is earlier terminated as set forth in Paragraph 7
hereof.
3. PURCHASE PRICE FOR PRODUCTS
The purchase price for the Products shall be negotiated annually in
good faith between UniMark and Deli-Bon at least 30 days prior the commencement
of the next calendar year. The purchase price shall be "FOB McAllen, Texas" and
payment shall be due within net 21 days.
<PAGE> 2
4. RELATIONSHIP OF THE PARTIES
This Agreement does not create nor is it to be construed as creating a
partnership, joint venture or the relationship of principal and agent between
UniMark and Deli-Bon. Deli-Bon is and shall at all times be deemed to be a
separate entity. No representations shall be made by either party that would
create an agency, partnership or joint venture, and neither party shall have
authority to act for the other in any manner to create obligations or debts that
purport to be binding on the other, except as expressly provided in this
Agreement. There shall be no liability on the part of UniMark to any person for
any debts, liabilities or other obligations incurred on behalf of Deli-Bon and
its business unless UniMark expressly agrees in writing to pay such debts.
5. SEVERABILITY
If any part of this Agreement for any reason be declared invalid, such
declaration shall not affect the validity of the remaining portion, which
remaining portion shall remain in force and effect as if this Agreement had been
executed with the invalid portion thereof eliminated, and it is hereby declared
the intention of the parties hereto that they would exercise the remaining
portion of this Agreement without including therein any such part, parts or
portions that may, for any reason, be hereafter declared invalid.
6. GOVERNING LAW
This Agreement shall be interpreted and construed in accordance with
and shall be governed by the laws of the State of Texas.
7. TERMINATION
In the event Deli-Bon shall:
(a) breach or fail to perform any of the terms or conditions of
this Agreement, and provided that such breach or
non-performance is not cured within such thirty (30) days; or
(b) does not purchase at least $100,000 (US) of Product during any
calendar year; or
(c) engages in gross negligence or willful misconduct with respect
to the distribution and sale of the Product;
then, UniMark may terminate this Agreement thirty (30) days after written notice
of the nature of such breach or non-performance is delivered to the defaulting
party.
2
<PAGE> 3
8. DISPUTES BETWEEN PARTIES
All controversies that may arise between the parties hereto including,
but not limited to, those arising out of or related to this Agreement, shall be
determined by binding arbitration applying the laws of the State of Texas. Any
arbitration pursuant to this Agreement must be submitted to the British Columbia
International Commercial Arbitration Centre (the Vancouver Centre for Commercial
Disputes) in Vancouver, Canada for binding arbitration, to the exclusion of
courts of law, in accordance with its arbitration rules. The parties hereto have
required that any arbitration proceeding be conducted in the English language.
Les parties ont requis que tous l'arbitrage soient en langue anglaise. The
arbitration shall be final and binding upon all the parties (so long as the
award was not procured by corruption, fraud nor undue means), and the
arbitrators award shall not be required to include factual findings or legal
reasoning.
9. TITLES NOT LIMITING
Titles to paragraphs of this Agreement are for the purpose of
information and guidance only, are not part of this Agreement, and shall in no
way be deemed to limit the effect of any language to which they relate.
10. INTEGRATION OF AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all prior negotiations, understandings and agreements, if any,
between the parties. This Agreement may not be amended or modified orally but
may be amended or modified only by written instrument signed by the parties
hereto.
11. SUCCESSION
All rights of the parties under this Agreement shall accrue to the
benefit of their successors and assigns.
12. CONSENT TO ASSIGNMENT
Deli-Bon must obtain the prior written consent of UniMark before
assigning any of its rights, title or interest under this Agreement. Any
assignment without such prior written consent shall be null and void.
3
<PAGE> 4
IN WITNESS WHEREOF, this Agreement has been duly executed by a duly
authorized officer of the parties hereto on the day and year first above
written..
THE UNIMARK GROUP, INC.,
A Texas corporation
By: /s/ Soren Bjorn
-------------------------------------
Soren Bjorn
Chief Executive Officer,
President and Secretary
Address: P.O. Box 229
Bartonville, Texas 76226
Telecopy No.: (817) 491-1272
Attention: Soren Bjorn
DELI-BON:
/s/ Francois Gravil
----------------------------------------
By: Francois Gravil
Title: President
Telecopy No.: (418) 842-8926
4
