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EXHIBIT 10.43
THE UNIMARK GROUP, INC.
000 XXXXXXX XXXX
XXXXXXXXXXX, XXXXX 00000
April 17, 2000
Promecap, S.C.
Bosque de Alisos Xx. 00X, 0xx xxxx
Xxxxxxx Xxxxxxx xx las Xxxxx
X.X. 00000 Xxxxxx, X.X.
Xxxxxx
Attention: Xxxxxxxx Xxxxx Xxxxx
RE: The UniMark Group, Inc.-- Stand-by Funding Commitment
Dear Xxxxxxxx:
This letter confirms the firm commitment of Promecap, S.C., either
directly or through one or more affiliated or related entities (collectively,
"Promecap"), to purchase, at the election of The UniMark Group, Inc.
("UniMark"), on or before July 1, 2000, $2,500,000 of convertible subordinated
debentures (the "Convertible Debenture"), subject only to the terms and
conditions outlined below.
1. Terms of the Convertible Debentures. The terms of the Convertible
Debentures are outlined in Exhibit"A" hereto.
2. Subscription Agreement. Promecap's purchase of the Convertible Debenture
will be consummated pursuant to a Subscription Agreement with UniMark,
which will contain customary terms and provisions.
3. Consents. It is understood that Promecap's obligation to purchase the
Convertible Debenture will be subject only to UniMark receiving the
necessary consents, approvals and authorizations required in connection
with the issuance of the Convertible Debentures and subject to paragraph 4
below.
4. Termination of Funding Commitment. This Agreement shall automatically
terminate upon the earlier of:
a) If, prior to July 1, 2000, or the purchase of the Convertible
Debenture as provided herein, there shall be (i) a merger or
consolidation of UniMark, or either of UniMark's two primary
subsidiaries, with or into another corporation, (ii) the sale of
all, or substantially all, of the properties or assets or stock
of either of UniMark's two primary business segments, or (iii) a
joint venture with any other entity involving all or
substantially all of the assets of, or revenue from, either of
UniMark's two primary business segments (collectively, an
"Extraordinary Transaction"); or
b) if, prior to July 1, 2000 or the purchase of the Convertible
Debenture as provided herein, UniMark sells equity securities
(common stock, preferred stock, convertible debt securities or
subordinated debt) with gross proceeds to UniMark in excess of
$2.5 million (a "Significant Equity Financing"); or
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c) if, UniMark refinances all of its outstanding indebtedness with
Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., "RaboBank
Nederland," New York Branch ("Refinancing").
5. Closing: In the event that neither an Extraordinary Transaction, a
Significant Equity Financing nor a Refinancing has occurred on or before
May 31, 2000, the purchase and sale of the Debenture shall occur within 5
business days after UniMark gives Promecap written notice of its election
to sell the Convertible Debenture to Promecap. It is agreed that UniMark
will not give such notice until May 31, 2000.
6. No Obligation To Sell: It is expressly understood and agreed that UniMark,
in its sole discretion, may elect not to sell the Convertible Debenture to
Promecap and nothing set forth herein creates an obligation on behalf of
UniMark to sell the Convertible Debenture Promecap.
7. Facility Fee: UniMark will pay Promecap a facility fee of $100,000 as
consideration for facilitating this Stand-by Funding Commitment, out of
available and unrestricted cash flow.
8. Governing Law: This Agreement will be governed by and construed in
accordance with the laws of the State of Texas, without regard to
principles of conflicts of laws.
9. Counterparts: This Agreement may be executed by the parties hereto in one
or more counterparts, and such counterparts, taken together, shall
constitute one and the same agreement of such parties. Any facsimile
signature of any party will constitute an original.
If the foregoing is acceptable to you, please execute and return the
enclosed copy of this Agreement to me by 5:00 P.M. on Monday, April 17, 2000.
Very truly yours,
THE UNIMARK GROUP, INC.
By: Soren Bjorn
Chief Executive Officer
AGREED AND ACCEPTED AS OF
THE DATE FIRST ABOVE WRITTEN:
PROMECAP, S.C.
By:
Xxxxxxxx Xxxxx Xxxxx
Title: President
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EXHIBIT A
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CONVERTIBLE SUBORDINATED DEBENTURE TERM SHEET
Issuer: The UniMark Group, Inc. (Nasdaq NMS: UNMG) ("UniMark").
Issue: $2,500,000 principal amount of 12% Convertible Subordinated Debenture
(the "Debenture").
Closing Date: As soon as possible after UniMark gives Promecap written notice of its
intention to sell to Promecap the Convertible Debentures.
Maturity Date of
Debentures: 3 years from date of issuance.
Interest Payment Dates: The Debenture bears interest at a rate of 12% per annum, payable annually in
arrears in cash.
Conversion Feature: At any time, the purchaser may convert the Debenture into common stock at the
Conversion Price in effect.
Conversion Price: 75% of the average of the closing sales prices for the UNMG Common Stock for the
thirty (30) consecutive trading days ending the trading day before UniMark
gives Promecap written notice of its intention to sell to Promecap the
Convertible Debenture.
Anti-dilution Protection: Proportional adjustments for splits, dividends, recapitalization, rights
offerings and the like.
Optional Redemption: At any time, UniMark may redeem the Debenture, at its option, in whole or in part, with 20
trading days notice, at the following redemption prices:
(a) Through the first anniversary date of the issuance, at 113% of the
principal amount of the Debenture outstanding.
(b) After the second anniversary date
through the third anniversary date
of the issuance, at 108% of the
principal amount of the Debenture
outstanding.
Payment for redemption of the Debenture will
include amounts due for accrued and unpaid
interest, if any, to the date of redemption.
Ranking of Debenture: The Debenture will be a general unsecured obligations, fully
and completely subordinated in right and payment to all
existing and future senior debt of UniMark, including all
principal, interest, fees, expenses, penalties, overdrafts
and swap obligations, under a subordination agreement
satisfactory in form and content to the holder of the senior debt.
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Voting Rights: No voting rights until conversion.
Registration Rights: UniMark will grant Promecap one
demand registration and unlimited number of
customary piggyback registration rights with
respect to shares of UNMG common stock
underlying the Debenture.
Indemnification: Normal indemnification.
