EXHIBIT 1
CONFIDENTIAL
SUPPORT AGREEMENT
(CONFORMED TO INCORPORATE
AMENDMENTS THROUGH APRIL 9, 2002)
FASKEN XXXXXXXXX XxXXXXXX LLP
Barristers and Solicitors
Xxxxx 0000
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
R. Xxxxxx Xxxxx
(000) 000-0000
THIS SUPPORT AGREEMENT entered into as of the 8th day of October, 2001
BETWEEN:
ASIA PACIFIC RESOURCES LTD., a corporation existing under the
laws of the Province of British Columbia
(the "COMPANY")
- and -
OLYMPUS CAPITAL HOLDINGS ASIA I, L.P., a limited partnership
formed under the laws of the Cayman Islands
("OLYMPUS")
RECITALS
WHEREAS:
A. The Company has outstanding US $24,460,000 in 10% Secured
Convertible Debentures, Series 1, due on October 13, 2001 (the "CONVERTIBLE
DEBENTURES") issued pursuant to a trust indenture between the Company and
Pacific Corporate Trust Company (the "TRUSTEE") dated as of July 24, 1998 and
amended pursuant to a first supplemental indenture dated August 6, 1998, a
second supplemental indenture dated May 14, 1999 and a third supplemental
indenture made as of July 17, 2000 (collectively, the "INDENTURE"), and Olympus
holds US $17,560,000 of the Convertible Debentures;
B. The board of directors of the Company (the "BOARD") has determined
that it would be in the best interests of the Company to provide for the
conversion (the "CONVERSION") of the Convertible Debentures into common shares
("SHARES") of the Company on the terms and subject to the conditions set out
below as it pursues other financing and strategic partnership alternatives for
the Company; and
C. Olympus has agreed to support the Conversion on the terms and
subject to the conditions set forth herein.
NOW THEREFORE IN CONSIDERATION of the mutual covenants hereinafter set out, the
parties hereto hereby agree as follows:
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ARTICLE 1
THE CONVERSION
1.1 THE CONVERSION.
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(a) Subject to the terms and conditions of this Agreement, Olympus agrees
to vote in favour of the approval of an amendment to the Indenture
providing for the conversion of all principal, accrued interest to the
date of conversion and premium in respect of the Convertible
Debentures provided for in the Indenture into Shares of the Company at
an adjusted conversion price of C$0.20 per Share in a meeting (the
"MEETING") of all the holders of the Convertible Debentures
(collectively, the "DEBENTUREHOLDERS") duly called and constituted or,
at the request of the Company, to sign a written instrument which
shall constitute an extraordinary resolution without the necessity of
holding the Meeting, in either case pursuant to the terms of the
Indenture.
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(b) Provided that the conditions set out in Sections 1.2 and 1.3 have been
fulfilled or waved by Olympus or the Company, as the case may be, the
Conversion pursuant to the extraordinary resolution referred to
paragraph (a) above shall occur on April 1, 2002.
(c) Other than the adjustment in the conversion price, the Conversion
shall be made pursuant to the Indenture, and, except as otherwise
expressly provided in this Agreement, all provisions of the Indenture
shall continue in full force and effect, unamended.
1.2 CONDITIONS FOR THE BENEFIT OF OLYMPUS. The obligation of Olympus
------------------------------------------
described in Section 1.1 hereof shall be subject to the fulfilment, or the
waiver by Olympus, of the following conditions, each of which is for the
exclusive benefit of Olympus and may be waived by Olympus at any time, in whole
or in part, in its sole discretion without prejudice to any other rights that it
may have:
(a) the Company shall have completed on or before April 1, 2002, a rights
issue to raise up to CDN$30,000,000 in additional capital for the
Company to meet its medium term development obligations (the
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"RIGHTS ISSUE") but which, subject to the subscription commitments in
Section 3.4 and the Darch Support Agreement and the Crew Support
Agreement (as defined below), shall not be conditional upon any
minimum amount being raised. The rights issue shall consist of rights
to subscribe for units (the "UNITS"), with each Unit comprising two
and one-half (2.5) Shares and one Warrant (a "WARRANT") to purchase on
or before April 1, 2003 two and one-half (2.5) Shares;
(b) each of Xxxx Xxxxx ("XXXXX") and Crew Development Corporation ("CREW")
shall have entered into amending agreements in respect of their
respective Support Agreements dated October 8, 2001 with Olympus and
the Company in the form of the amending agreements set forth in
Schedule "F" and "G", respectively, hereto (as amended by the amending
agreements, the "DARCH SUPPORT AGREEMENT" and the "CREW SUPPORT
AGREEMENT", respectively);
(c) (deleted);
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(d) the Board shall initially comprise five members, and all necessary
steps shall have been taken to cause:
(i) from and after the Conversion until the next ensuing annual
shareholders' meeting, the Board to include three nominees of
Olympus and two nominees of management of the Company (which
shall include the nominee of Crew put forward pursuant to
paragraph 1 of Schedule "C" as amended by Schedule G); and
(ii) all committees of the Board to include at least one director
nominated by Olympus;
(e) the Debentureholders other than Olympus shall have entered into a
voting agreement with Olympus substantially in the form of Schedule
"D" hereto whereby the former covenant that they will vote, and will
cause all Shares held by or for them or their subsidiaries or over
which they otherwise exercise direction or control, including any
Shares
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acquired upon exercise of Warrants, to be voted, as directed by
Olympus in respect of:
(i) the slate of directors put forward by Olympus for election at
shareholders' meetings from time to time, a majority of which
slate shall be Olympus' nominees;
(ii) any proposed amendments to the memorandum or articles of the
Company (or equivalent constitutional documents);
(iii) the approval of any stock option or other executive compensation
plan for the Company;
(iv) the election of the auditors for the Company; and
(v) any other fundamental changes in the Company requiring
shareholders' approval, including without limitation
amalgamation, continuance, arrangement, liquidation,
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dissolution or sale of all or substantially all of the Company's
assets,
and which voting agreement shall also contain an undertaking by the
Debentureholders directed to Olympus and the Company assenting to
restrictions on transfers of Shares substantially equivalent to those
set forth in Section 3.1(b) hereof.
(f) on or before January 15, 2002, the Company shall have received the
conditional approval of The Toronto Stock Exchange (the "TSE") for the
Conversion, the Rights Issue (to the extent that it may be deemed to
be a private placement) and, if necessary, the Interim Funding (as
defined in Section 4.4) in form and substance satisfactory to Olympus
and shall have satisfied all conditions imposed by the TSE for the
completion of the Conversion, the Rights Issue (to the extent that it
may be deemed to be a private placement) and the Interim Funding,
including but not limited to securing shareholder approval therefor;
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(g) the Company shall have received all necessary regulatory and
government approvals for the completion of the Conversion;
(h) no litigation, investigation or proceeding of or before any
governmental authority, arbitrator, court or administrative agency
shall be pending or, to the best knowledge of the Company, threatened
seeking to enjoin or restrain or otherwise materially affect the
ability of the parties to consummate the transactions contemplated
herein, including the Conversion;
(i) the shareholders of the Company shall have approved, conditional upon
the Conversion taking place, to continue the Company into New
Brunswick or such other Canadian jurisdiction as Olympus may
reasonably approve;
(j) receipt of an undertaking from the Company in form and substance
satisfactory to Olympus that, so long as:
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(i) the Debentureholders hold or exercise control or direction over
no less than 25% of the outstanding Shares of the Company; and
(ii) the voting agreement contemplated by Section 1.2(e) remains in
force,
the Company will cause management of the Company to put forward for
election as directors at each shareholders' meeting following the
Conversion, and solicit and vote proxies for, those qualified nominees
for election to the Board put forward by Olympus and other parties
from time to time as contemplated in Section 1.2(e)(i);
1.3 CONDITIONS FOR THE BENEFIT OF THE COMPANY. The obligation of the
-----------------------------------------------
Company to complete the Conversion shall be subject to the fulfilment, or the
waiver by the Company, of the following conditions, each of which is for the
exclusive benefit of the Company and may be waived by the Company at any time,
in whole or in part, in its sole discretion without prejudice to any other
rights that it may have:
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(a) prior to January 15, 2002, the Conversion shall have been
conditionally approved by extraordinary resolution of the
Debentureholders pursuant to the Indenture;
(b) on or before January 15, 2002, the Company shall have received the
conditional approval of The Toronto Stock Exchange (the "TSE") for the
Conversion, the Rights Issue (to the extent that it may be deemed to
be a private placement) and, if necessary, the Interim Funding and
shall have satisfied all conditions imposed by the TSE for the
completion of the Conversion, the Rights Issue (to the extent that it
may be deemed to be a private placement) and the Interim Funding
including but not limited to securing shareholder approval therefor;
(c) the Company shall have received all necessary regulatory and
government approvals for the completion of the Conversion;
(d) to the best knowledge of the Company, no litigation, investigation or
proceeding of or before any governmental authority, arbitrator, court
or administrative agency shall be pending seeking to enjoin or
restrain
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or otherwise materially affect the ability of the parties to
consummate the transactions contemplated herein, including the
Conversion; and
(e) (deleted).
1.4 (deleted)
ARTICLE 2
COVENANTS OF THE COMPANY
2.1 TRADES. The Company agrees that, for the period this Agreement remains
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in force, it shall make commercially reasonable efforts to cause the members of
the Board to, and to cause the members of the Board to cause their respective
associates and affiliates or any persons acting jointly or in concert with them
to, refrain from trading in the Shares, other than through participation in the
Rights Issue, pursuant to Sections 4.3 and 4.4 or with the prior written
approval of Olympus which shall not be unreasonably withheld or delayed.
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2.2 FEES AND EXPENSES. Upon request by Olympus and presentation of
--------------------
supporting documentation therefor, the Company shall promptly reimburse Olympus
for all reasonable expenses incurred by it in connection with the preparation,
negotiation and execution of this Agreement and of the Conversion to a maximum
of US$300,000, including without limitation, fees and disbursements of legal and
accounting advisors, fees and expenses of the consultants retained in accordance
with Section 2.7 and out-of-pocket expenses, including search fees, incurred in
participating in any executive searches referred to in Section 2.3(a) hereof.
This Section 2.2 shall survive the termination of this Agreement pursuant to
Article 5.
2.3 POST-CONVERSION COVENANTS. If the Conversion is completed, the Company
--------------------------
agrees:
(a) that it will be a priority of the new Board to strengthen the
management team through the addition of new senior managers and the
creation of a management stock option plan consisting of up to 10% of
the fully diluted outstanding shares of the Company, subject to stock
exchange requirements;
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(b) to make commercially reasonable efforts to cause the members of the
Board to give not less than five days' prior written notice to the
Company of any proposed acquisition or disposition by them, their
associates and affiliates or any persons acting jointly or in concert
with them, of Shares; and
(c) that, upon Olympus' request, the Board shall be increased to seven
members, in which event the provisions of Sections 1.2(d) and of the
undertaking referred to in Section 1.2(j) shall continue to apply
provided that Olympus shall be entitled to nominate four qualified
individuals and management of the Company shall be entitled to
nominate three qualified individuals for election or appointment to
seats on the Board, including, if applicable, one nominee of Crew.
2.4 STRATEGIC ALTERNATIVES. As soon as practicable after the date of this
-----------------------
Agreement, the Company will commence to explore all strategic alternatives open
to the Company to promote development of the Company's potash projects or to
otherwise maximize shareholder value, including without limitation the
initiation, solicitation, promotion and encouragement (including by way of
furnishing
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information or entering into any agreement, arrangement or understanding) of the
initiation, directly or indirectly, of enquiries or the submission of proposals
or offers from any person with respect to any one or more of the following
(each, a "TRANSACTION"): a merger, amalgamation, statutory arrangement, takeover
bid, sale or joint venture of the Somboon or Udon potashproperties in northern
Thailand, sale of other substantial assets, issuance of shares or similar
transaction involving the Company. The Company has the sole and exclusive
responsibility for the initiation, pursuit and conduct of any Transaction.
Olympus agrees to advise the Company of any approaches or solicitations it may
receive relating to a Transaction, and the Company agrees to advise Olympus of
any progress it makes in implementing a Transaction. A Transaction shall
constitute an "ALTERNATIVE TRANSACTION" for the purposes of this Agreement if:
(a) the Company shall have provided to Olympus on a timely basis such
details of the proposed terms of such Transaction as Olympus may have
reasonably requested and which Olympus shall have agreed to keep and
cause to be kept strictly confidential, except that Olympus may
disclose such details to the other Debentureholders if:
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(i) Olympus has obtained the Company's prior written consent to such
disclosure, such consent not to be unreasonably withheld or
delayed; and
(ii) the Debentureholders have furnished an undertaking of
confidentiality in respect of the same;
(b) the Transaction shall comprise a bona fide offer evidenced by binding
documentation subject only to commercially reasonable closing
conditions;
(c) the Transaction shall be entered into prior to the Conversion and
either:
(i) provide for the payment in full, pursuant to the Indenture, of
all principal, interest and premium due to the Debentureholders
on the date of Maturity;
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(ii) provide for the payment in full of all principal, interest and
premium due to the Debentureholders on such date following the
date of Maturity (as then defined in the Indenture) as may be
approved by Olympus; or
(iii) be subject to the prior approval of Olympus on behalf of the
Debentureholders.
2.5 CONSIDERATION OF ALTERNATIVE TRANSACTION. The parties agree to consider
-------------------------------------------
any Alternative Transactions which may arise prior to the Conversion and to
negotiate in good faith any amendments to the terms of the transaction
contemplated herein which may be proposed as a result of such Alternative
Transaction, provided that Olympus' agreement to any such proposed amendments
shall be in its sole discretion.
2.6 TIMETABLE FOR INITIATIVES. As soon as practicable after the date of
---------------------------
this Agreement, the Company shall provide to Olympus in writing a timetable for
undertaking the Rights Issue together with details of the steps it has and will
be taking to seek to implement the Rights Issue, which timetable shall be
subject to
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Olympus' approval, acting reasonably. The Company shall use all commercially
reasonable efforts to implement the Rights Issue in accordance with such
approved timetable.
2.7 CONSULTING ARRANGEMENTS. Contemporaneous with the execution and delivery
------------------------
of this Agreement the Company shall have executed and delivered a consulting
agreement between the Company and Olympus substantially in the form of Schedule
"E" hereto and at all times prior to the Conversion shall have complied with the
provisions of such agreement.
2.8 APPROVAL OF MATERIAL MATTERS. Prior to the Conversion and for so long as
------------------------------
this Agreement is in effect and so long as such action is not taken pursuant to
an Alternative Transaction, the Company shall not, and shall cause its
subsidiaries to not, without the prior approval of Olympus:
(i) make any expenditures or incur any liabilities, in either case
having a value in excess of C$25,000 or the equivalent thereof in
any other currency;
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(ii) dispose in one or more transaction of any assets having a value,
either alone or collectively, in excess of C$100,000 or the
equivalent thereof in any other currency;
(iii) grant any form of security over any of their respective assets;
(iv) enter into, amend the terms of or terminate any material
agreement or license;
(v) appoint or remove any senior management personnel;
(vi) enter into any transactions with any persons not at arm's-length
or which are not in the ordinary course of business on normal
commercial terms;
(vii) amend any provisions of their constitutional documents; or
(viii) issue or agree to issue any equity or debt securities or rights,
options or warrants to acquire any such securities other than
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pursuant to the Rights Issue or Sections 4.3 or 4.4 or
outstanding warrants or incentive stock options of the Company on
their current terms.
2.9 DISSENTS TO CONTINUANCE. If the Company receives any dissent to the
-----------------------
continuance resolution referred to in Section 1.2(i), it shall not act on the
resolution without the prior written consent of Olympus.
2.10 PRICING OF RIGHTS ISSUE. The Company will not price the Rights Issue
-----------------------
at a price of less than CDN$0.50 per Unit nor will the Warrants be outstanding
for a period ending later than April 1, 2003, nor at an exercise price lower
than CDN$0.40 per Share without, in the case of any of the foregoing, Olympus'
prior written consent.
ARTICLE 3
COVENANTS OF OLYMPUS
3.1 DISPOSITION OF CONVERTIBLE DEBENTURES AND SHARES. Olympus agrees that:
-------------------------------------------------
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(a) for the period that this Agreement remains in force, except pursuant
to any offer or proposal made to shareholders of the Company generally
or an Alternative Transaction or to another entity under common
control with Olympus, it shall not sell any of its Convertible
Debentures or Shares held at the date hereof without the prior
approval of the Board of the Company;
(b) following the completion of the Conversion, except pursuant to any
offer or proposal made to shareholders of the Company generally, it
shall not:
(i) for a period of two months, sell any Shares it receives upon the
Conversion;
(ii) for a period of 18 months, in any six month period, sell any more
than one-third of the Shares it receives upon the Conversion; and
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(iii) for a period of 18 months, sell Shares comprising 10% or more of
the outstanding Shares to any purchaser or group of purchasers
acting jointly or in concert, unless the trade is effected
through a stock exchange and does not constitute a pre-arranged
trade to any of the foregoing.
3.2 ENFORCEMENT. Olympus agrees that, so long as this Agreement remains in
-----------
force, it will take no steps, and will ensure that the Trustee takes no steps,
to obtain or enforce payment of any principal, premium or interest on the
Convertible Debentures or any other money owing pursuant to the Indenture.
3.3 APPOINTMENT TO THE BOARD. Olympus agrees to use reasonable efforts to
--------------------------
locate a suitable independent candidate as one of its nominees to the Board
provided however that such candidate shall be deemed to be independent for
--------
purposes of this Section 3.3 notwithstanding that, as a condition of his or her
serving on the Board, he or she receives the payment of an additional stipend,
the provision of additional insurance or indemnity or other compensation from
Olympus or its affiliates.
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3.4 STANDBY COMMITMENT. Olympus shall provide a standby commitment to the
-------------------
Company to subscribe for up to CDN$5,000,000 of Units not otherwise taken up
pursuant to the Rights Issue (the "COMMITTED AMOUNT"). Olympus' standby
commitment in this Section 3.4 is conditional upon performance in full of the
subscription commitments provided for in the Darch Support Agreement and the
Crew Support Agreement. Olympus' obligations to pay the Committed Amount is
subject to set-off of Interim Funding as provided in Section 4.4. If the Rights
Issue raises more than CDN$20,000,000 (exclusive of the standby and subscription
commitments being provided by Olympus and Crew) the standby and subscription
commitments of Olympus and Crew shall be reduced pro rata.
ARTICLE 4
MUTUAL COVENANTS
4.1 (deleted)
4.2 (deleted)
4.3 (deleted)
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4.4 INTERIM FINANCING. Upon the request of the Company made in writing at
------------------
any time after January 7, 2002 and prior to completion of the Rights Issue,
Olympus shall advance to the Company up to CDN$800,000 in the aggregate as
interim funding (the "INTERIM FUNDING"). Olympus' obligations under this
Section 4.4 shall be conditional upon:
(i) Crew concurrently advancing the Company not less than an amount
equal to 25% of the funds advanced by Olympus;
(ii) Crew agreeing that all funds advanced by it as interim funding
shall be set-off against its standby commitment in the Rights
Issue provided for in the Crew Support Agreement; and
(iii) the Interim Funding and interim funding provided by Crew
becoming due and payable by the Company on April 1, 2002.
Interim Funding provided by Olympus shall be satisfied and discharged,
firstly, by set-off against Olympus' obligation, if any, to
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pay the Committed Amount; with the balance, if any, being paid by the
Company to Olympus in cash.
The interim funding provided by Olympus and Crew shall bear interest
from the date of each advance until payment in full by the Company at
a rate of 10% per annum, compounded semi-annually and not in advance.
4.5 VACANCIES ON THE BOARD. Each of Olympus and the Company agree that, in
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the event of a casual vacancy arising on the Board, the party who appointed the
departing director shall be entitled to nominate the replacement director to be
appointed in his or her place.
4.6 PUBLIC STATEMENTS. Each of Olympus and the Company agree to obtain the
------------------
approval of the other party prior to issuing press releases or otherwise making
public statements with respect to the Conversion and in making any filings with
any federal or provincial governmental or regulatory agency or with any
securities exchange with respect thereto, except when the release, statement or
filings is
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required by law, in which case it shall make reasonably commercial efforts to
obtain such approval.
4.7 FURTHER ASSURANCE. Subject to the terms and conditions hereof, Olympus
------------------
and the Company agree to use their respective reasonable efforts to take, or
cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations, to
consummate the transactions contemplated by this Agreement and the Conversion.
The Company and Olympus will use their reasonable efforts (i) to obtain all
necessary consents, approvals, and authorizations as are required to be obtained
under any Canadian federal or provincial laws or regulations with respect to
this Agreement or the Conversion, (ii) to lift or rescind any injunction or
restraining order or other order adversely affecting the ability of the parties
to consummate the transactions contemplated hereby or by the Conversion, and
(iii) to fulfil all conditions and satisfy all provisions of this Agreement and
the Conversion.
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ARTICLE 5
TERMINATION
5.1 TERMINATION. This Agreement may be terminated:
-----------
(a) at any time by mutual written consent of Olympus and the Company;
(b) (deleted);
(c) by Olympus providing 10 business days' written notice if, in its
reasonable opinion, the Company is not making commercially reasonable
efforts to satisfy the conditions set forth in paragraphs ERROR!
REFERENCE SOURCE NOT FOUND., (f), (g) and (h) of Section 1.2;
(d) by the Company providing 10 business days' written notice if, in its
reasonable opinion, it is not possible using commercially reasonable
efforts to satisfy the conditions set forth in paragraphs (b), (c) and
(d) of Section 1.3;
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(e) by Olympus if the shareholders of the Company and the TSE have not
approved the terms of the Conversion on the terms set out in Section
1.1, the Rights Issue (to the extent it may be deemed to be a private
placement) and, if necessary, the Interim Financing on the terms set
out in Section 4.4, on or before January 15, 2002;
(f) by either Olympus or the Company by written notice delivered at any
time prior to the Conversion if the Company shall have entered into an
Alternative Transaction;
(g) by Olympus, if an Event of Default (as defined in the Indenture) or an
event which with the giving of notice or the passage of time or both
would constitute an Event of Default shall have occurred;
(h) by Olympus if in its reasonable opinion, the Company or, as the case
may be, Crew has not complied with their respective obligations
provided for or contemplated in Sections 2.6, 2.7, 2.8, 2.9, 2.10, 3.4
or 4.4; or
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(i) by Olympus if an Alternative Transaction is not completed in
accordance with the terms approved by Olympus pursuant to 2.4(c)(ii)
or (iii).
ARTICLE 6
MISCELLANEOUS
6.1 AMENDMENT OR WAIVER. This Agreement may be amended, modified or
---------------------
superseded, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, but only by written instrument executed by
Olympus and the Company; provided, however, that either Olympus or the Company
may in its discretion waive a condition herein which is solely for its benefit
without the consent of the other. No waiver of any nature, in any one or more
instances, shall be deemed or construed as a further or continued waiver of any
condition or any breach of any other term, representation or warranty in this
Agreement.
6.2 ENTIRE AGREEMENT. This Agreement and the documents referred to herein
-----------------
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior agreements, arrangements or understandings
with respect thereto.
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6.3 HEADINGS. The descriptive headings are for convenience of reference
--------
only and shall not control or affect the meaning or construction of any
provisions of this Agreement.
6.4 NOTICES. Any notice or other communication (each in this section, a
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"NOTICE") which is required or permitted hereunder shall be communicated
confidentially, shall be in writing and shall be sufficiently given or made if
delivered by hand and left with a receptionist or other responsible employee of
the relevant party at the address set forth below, or sent by facsimile
transmission, in each case during normal business hours on a business day
addressed as follows:
To the Company:
Asia Pacific Resources Ltd.
Suite 615 - 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
-00-
Xxxxxx X0X 0X0
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Fasken Xxxxxxxxx XxXxxxxx LLP
Suite 2100
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Attention: R. Xxxxxx Xxxxx
Facsimile: (000) 000-0000
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To Olympus:
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx 0000
Xxxx Xxxx, Xxxxx
Attention: Xxxx Xxx
Facsimile: (000) 0000 0000
-and-
000 Xxxx 00xx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx
XXX 00000
Attention: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
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With a copy to:
Stikeman Elliott
Suite 0000
Xxxxxxxx Xxxxx Xxxx
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
Each Notice sent in accordance with this section shall be deemed to have been
received on the day of delivery, if delivered as aforesaid, and on the day of
sending by facsimile transmission as aforesaid, or on the first business day
thereafter if delivered or sent otherwise than during normal business hours of
the recipient on a business day. In this Section 6.4 business day means any day
other than a Saturday, Sunday or statutory or bank holiday in Toronto (Ontario),
Vancouver (British
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Columbia), Hong Kong (PRC) or New York (New York). Either party may change its
address for Notice by giving notice to the other party pursuant to this Section
6.4.
6.5 EXPENSES. Subject to Section 2.2 hereof, each party will pay its own
--------
expenses. The Company represents and warrants that no broker, finder or
investment banker is entitled to any brokerage, finder's or other fee or
commission, or to the reimbursement of any of its expenses, in connection with
the Conversion.
6.6 ASSIGNMENT. This Agreement shall not be assignable by either party
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without the prior written consent of the other party, except that Olympus may
assign this Agreement to another entity under common control with Olympus.
6.7 TIME. Time shall be of the essence of this Agreement.
----
6.8 SEVERABILITY. If any term, covenant or restriction of this Agreement is
------------
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be effected,
impaired or invalidated and
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the parties shall negotiate in good faith to modify the Agreement to preserve
each party's anticipated benefits under the Agreement.
6.9 CHOICE OF LAW. This Agreement shall be governed by, construed and
---------------
interpreted in accordance with the laws of the Province of British Columbia
including the federal law of Canada applicable therein. Each party hereto
irrevocably submits to the non-exclusive jurisdiction of the Courts of British
Columbia with respect to any matter arising hereunder or relating hereto.
6.10 INTERPRETATION. For purposes of this Agreement, the terms "affiliates",
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"associates" and "subsidiary" shall have the meaning given to them by the
British Columbia Company Act;
6.11 COUNTERPARTS. This Agreement may be executed in any number of
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counterparts. An executed counterpart may be delivered by facsimile
transmission as contemplated in Section 6.4. The sending party shall be deemed
to have executed this Agreement at the time notice is sent. In such event, the
sending party shall forthwith deliver to each other party a manually executed
counterpart of this Agreement.
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IN WITNESS THEREOF the parties hereto have caused this Agreement to be
executed on their behalf by their officers thereunto duly authorized as of the
date first written above.
ASIA PACIFIC RESOURCES LTD.
BY:
------------------------------------
Xxxxxx X. Xxxxxxxxx
Chairman, President and
Chief Executive Officer
BY:
------------------------------------
Xxxx Xxxxx
Director
-37-
OLYMPUS CAPITAL HOLDINGS
ASIA I, L.P.
BY: OLYMPUS CAPITAL HOLDINGS
ASIA, L.L.C., ITS GENERAL PARTNERS
BY: OLYMPUS CAPITAL HOLDINGS ASIA,
ITS MANAGING MEMBER
/s/ Xxxxxx Xxxxx
------------------------------------
Authorized Signatory
SCHEDULE "A"
(deleted)
SCHEDULE "B"
DARCH SUPPORT AGREEMENT
CONFIDENTIAL
SUPPORT AGREEMENT
(CONFORMED TO INCORPORATE
AMENDMENTS THROUGH APRIL 9, 2002)
FASKEN XXXXXXXXX XxXXXXXX LLP
Barristers and Solicitors
Xxxxx 0000
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
R. Xxxxxx Xxxxx
(000) 000-0000
THIS SUPPORT AGREEMENT entered into as of the 8th day of October, 2001
BETWEEN:
ASIA PACIFIC RESOURCES LTD., a corporation existing under the laws of
the Province of British Columbia
(the "Company")
- and -
XXXX XXXXX, a business person having an address at Suite 400, 837 West
Hastings Street, Vancouver, British Columbia
("Darch")
- and -
OLYMPUS CAPITAL HOLDINGS ASIA I, L.P., a limited partnership formed
under the laws of the Cayman Islands
("Olympus")
RECITALS
WHEREAS:
A. The Company has outstanding US $24,460,000 in 10% Secured
Convertible Debentures, Series 1, due on October 13, 2001 (the "Convertible
Debentures") issued pursuant to a trust indenture between the Company and
Pacific Corporate Trust Company (the "Trustee") dated as of July 24, 1998 and
amended pursuant to a first supplemental indenture dated August 6, 1998, a
second supplemental indenture dated May 14, 1999 and a third supplemental
indenture made as of July 17, 2000 (collectively, the "Indenture"), and Olympus
Capital Holdings Asia I, L.P. ("Olympus" and, together with the balance of the
holders of the Convertible Debentures, the "Debentureholders") holds US
$17,560,000 of the Convertible Debentures;
B. The board of directors of the Company (the "Board") has determined
that it would be in the best interests of the Company to provide for the
conversion (the "Conversion") of the Convertible Debentures into common shares
("Shares") of the Company on the terms and subject to the conditions set out in
the Support Agreement between the Company and Olympus dated October 8, 2001, as
amended, (the "Support Agreement") as it pursues other financing and strategic
partnership alternatives for the Company;
C. Pursuant to Support Agreement, Olympus has conditionally agreed to
support the Conversion, with its support to be conditional upon, inter alia, the
Company seeking to raise up to CDN$30,000,000 (the "Rights Issue") by way of a
rights offering, the entry by Olympus and the Debentureholders into a voting
agreement (the "Voting Agreement") in the form contemplated by the Support
Agreement, and the entry by Darch into this Agreement; and
X. Xxxxx has acknowledged that Olympus' support of the Conversion is of
direct value to the protection of his stake in the Company.
NOW THEREFORE in consideration of the entry by Olympus into the Support
Agreement, the payment of $10.00 by the Company to Darch, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto hereby agree as follows:
ARTICLE 1
COVENANTS OF THE COMPANY
1.1 CONVERSION. The Company will make reasonable efforts to:
----------
(a) effect the Conversion, subject to its exploration of strategic
alternatives as described in Section 1.1(b) hereof; and
(b) commence to explore all strategic alternatives open to the Company to
promote development of the Company's potash projects or to otherwise
maximize shareholder value, including without limitation the
initiation, solicitation, promotion and encouragement (including by
way of furnishing information or entering into any agreement,
arrangement or understanding) of the initiation, directly or
indirectly, of enquiries or the submission of proposals or offers from
any person with respect to any one or more of the following (each, a
"Transaction"): a merger, amalgamation, statutory arrangement,
takeover bid, sale or joint venture of the Somboon or Udon potash
properties in northern Thailand, sale of other substantial assets,
issuance of shares or similar transaction involving the Company. A
Transaction shall constitute an "Alternative Transaction" if it so
qualifies for the purposes of the Support Agreement.
ARTICLE 2
COVENANTS OF DARCH
2.1 DIRECTORSHIP. Darch agrees that, until the earliest of (a) the date
------------
which is two years from the date hereof, (b) the effective date of any
Alternative Transaction, and (c) the date that Darch, Crew Development
Corporation and their respective affiliates hold less than 8% of the outstanding
Shares of the Company, he shall continue to act as a director of the Company and
of Asia Pacific Potash Corporation Ltd. if requested to do so by Olympus.
2.2 POTASH INVESTMENTS. Darch agrees that, for so long as he holds Shares
------------------
of the Company, neither he nor any of his associates or affiliates shall invest
in any potash projects other than through the Company and its subsidiaries.
2.3 DISPOSITION OF SHARES. Darch agrees that, following the completion of
---------------------
the Conversion, except pursuant to an offer or proposal made to shareholders of
the Company generally, neither he nor any of his associates or affiliates shall:
(a) for a period of two months, sell any Shares;
(b) for a period of 18 months, in any six month period, sell any more than
one-third of the Shares he or they hold following the completion of
the Rights Issue (excluding any Shares which may be acquired on the
exercise of Warrants); and
(c) for a period of 18 months, sell Shares comprising 10% or more of the
outstanding Shares to any purchaser or group of purchasers acting
jointly or in concert, unless the trade is effected through a stock
exchange and does not constitute a pre-arranged trade to any of the
foregoing.
For the avoidance of doubt, the restrictions on transfers of Shares in this
paragraph shall not affect Shares held by or for Xxxxxx Xxxxxx or members
of his family.
2.4 PARTICIPATION IN RIGHTS ISSUE. Darch may exercise or cause the
-----------------------------
exercise of all of the rights he or any of his affiliates or associates receives
in the proposed rights issue of Units by the Company (the "RIGHTS ISSUE") other
than any of such rights transferred to Crew Development Corporation ("CREW") for
exercise as contemplated in Section 2.1(a) of the support agreement of even
date herewith between Crew, Olympus and the Company. Darch undertakes that
neither he nor his associates and affiliates will, together with Crew and its
associates and affiliates, subscribe for more than CDN$5,000,000 of Units in the
Rights Issue in the aggregate unless Olympus has been required to perform its
CDN$5,000,000 standby commitment (as provided in the Support Agreement) in full.
2.5 VOTING SUPPORT. Darch covenants and agrees to vote or caused to be
--------------
voted all Shares held by him or by any of his associates or affiliates at the
extraordinary general meeting of shareholders of the Company to be held pursuant
to the Support Agreement (the "EGM") in favour of the resolution to continue the
Company to New Brunswick and, in favour of approval of the other terms of the
recapitalization of the Company, including the Conversion and, if permitted by
The Toronto Stock Exchange, the Rights Issue, as set out in the management proxy
circular for the EGM.
ARTICLE 3
TERMINATION
3.1 TERMINATION. This Agreement shall terminate automatically upon the
-----------
termination of the Voting Agreement.
ARTICLE 4
MISCELLANEOUS
4.1 AMENDMENT OR WAIVER. This Agreement may be amended, modified or
-------------------
superseded, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, but only by written instrument executed by the
Company, Darch and Olympus. No waiver of any nature, in any one or more
instances, shall be deemed or construed as a further or continued waiver of any
condition or any breach of any other term, representation or warranty in this
Agreement.
4.2 ENTIRE AGREEMENT. This Agreement and the documents referred to herein
----------------
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior agreements, arrangements or understandings
with respect thereto.
4.3 HEADINGS. The descriptive headings are for convenience of reference
--------
only and shall not control or affect the meaning or construction of any
provisions of this Agreement.
4.4 NOTICES. Any notice or other communication (each in this section, a
-------
"Notice") which is required or permitted hereunder shall be communicated
confidentially, shall be in writing and shall be sufficiently given or made if
delivered by hand and left with a receptionist or other responsible employee of
the relevant party at the address set forth below, or sent by facsimile
transmission, in each case during normal business hours on a business day
addressed as follows:
To the Company:
Asia Pacific Resources Ltd.
Suite 615 - 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Fasken Xxxxxxxxx XxXxxxxx LLP
Suite 2100
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Attention: R. Xxxxxx Xxxxx
Facsimile: (000) 000-0000
To Darch:
Xxxxx 000
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Facsimile: (000) 000-0000
To Olympus:
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx 0000
Xxxx Xxxx, Xxxxx
Attention: Xxxx Xxx
Facsimile: (000) 0000 0000
-and-
000 Xxxx 00xx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx
XXX 00000
Attention: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
With a copy to:
Stikeman Elliott
Suite 0000
Xxxxxxxx Xxxxx Xxxx
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
Each Notice sent in accordance with this section shall be deemed to have been
received on the day of delivery, if delivered as aforesaid, and on the day of
sending by facsimile transmission as aforesaid, or on the first business day
thereafter if delivered or sent otherwise than during normal business hours of
the recipient on a business day. In this Section 4.4 business day means any day
other than a Saturday, Sunday or statutory or bank holiday in Toronto (Ontario),
Vancouver (British Columbia), Hong Kong (PRC) or New York (New York). Either
party may change its address for Notice by giving notice to the other party
pursuant to this Section 4.4.
4.5 EXPENSES. Each party will pay its own expenses.
--------
4.6 ASSIGNMENT. This Agreement shall not be assignable by any party without
----------
the prior written consent of the other parties, except that Olympus may assign
this Agreement to another entity under common control with Olympus.
4.7 TIME. Time shall be of the essence of this Agreement.
----
4.8 SEVERABILITY. If any term, covenant or restriction of this Agreement is
------------
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be effected,
impaired or invalidated and the parties shall negotiate in good faith to modify
the Agreement to preserve each party's anticipated benefits under the Agreement.
4.9 CHOICE OF LAW. This Agreement shall be governed by, construed and
-------------
interpreted in accordance with the laws of the Province of British Columbia
including the federal law of Canada applicable therein. Each party hereto
irrevocably submits to the non-exclusive jurisdiction of the Courts of British
Columbia with respect to any matter arising hereunder or relating hereto.
4.10 INTERPRETATION. For purposes of this Agreement, the terms "associate",
--------------
"affiliate" and "subsidiary" shall have the meanings given to them by the
British Columbia Company Act;
4.11 COUNTERPARTS. This Agreement may be executed in any number of
-------------
counterparts. An executed counterpart may be delivered by facsimile
transmission as contemplated in Section 4.4. The sending party shall be deemed
to have executed this Agreement at the time notice is sent. In such event, the
sending party shall forthwith deliver to each other party a manually executed
counterpart of this Agreement.
IN WITNESS THEREOF the parties hereto have caused this Agreement to be
executed on their behalf by their officers thereunto duly authorized as of the
date first written above.
ASIA PACIFIC RESOURCES LTD.
BY:
------------------------------------
Xxxxxx X. Xxxxxxxxx
Chairman, President and
Chief Executive Officer
BY:
------------------------------------
Xxxx Xxxxx
Director
------------------------------------
Xxxx Xxxxx
OLYMPUS CAPITAL HOLDINGS
ASIA I, L.P.
BY: OLYMPUS CAPITAL HOLDINGS
ASIA, L.L.C., ITS GENERAL PARTNERS
BY: OLYMPUS CAPITAL HOLDINGS ASIA,
ITS MANAGING MEMBER
/s/ Xxxxxx Xxxxx
------------------------------------
Authorized Signatory
SCHEDULE "C"
CREW DEVELOPMENT CORPORATION SUPPORT AGREEMENT
CONFIDENTIAL
SUPPORT AGREEMENT
(CONFORMED TO INCORPORATE
AMENDMENTS THROUGH APRIL 9, 2002)
FASKEN XXXXXXXXX DuMOULIN LLP
Barristers and Solicitors
Xxxxx 0000
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
R. Xxxxxx Xxxxx
(000) 000-0000
THIS SUPPORT AGREEMENT entered into as of the 8th day of October, 2001
BETWEEN:
ASIA PACIFIC RESOURCES LTD., a corporation existing under the laws of
the Province of British Columbia
(the "Company")
- and -
CREW DEVELOPMENT CORPORATION, a corporation existing under the laws of
British Columbia
("Crew")
- and -
OLYMPUS CAPITAL HOLDINGS ASIA I, L.P., a limited partnership formed
under the laws of the Cayman Islands
("Olympus")
RECITALS
WHEREAS:
A. The Company has outstanding US $24,460,000 in 10% Secured
Convertible Debentures, Series 1, due on October 13, 2001 (the "Convertible
Debentures") issued pursuant to a trust indenture between the Company and
Pacific Corporate Trust Company (the "Trustee") dated as of July 24, 1998 and
amended pursuant to a first supplemental indenture dated August 6, 1998, a
second supplemental indenture dated May 14, 1999 and a third supplemental
indenture made as of July 17, 2000 (collectively, the "Indenture"), and Olympus
Capital Holdings Asia I, L.P. ("Olympus" and, together with the balance of the
holders of the Convertible Debentures, the "Debentureholders") holds US
$17,560,000 of the Convertible Debentures;
B. The board of directors of the Company (the "Board") has determined
that it would be in the best interests of the Company to provide for the
conversion (the "Conversion") of the Convertible Debentures into common shares
("Shares") of the Company on the terms and subject to the conditions set out in
the support agreement between the Company and Olympus dated October 8, 2001, as
amended (the "Support Agreement") as it pursues other financing and strategic
partnership alternatives for the Company;
C. Pursuant to the Support Agreement, Olympus has conditionally agreed
to support the Conversion, with its support to be conditional upon, inter alia,
the Company
seeking to raise up to CDN$30,000,000 (the "Rights Issue") by way of a rights
offering, the entry by Olympus and the Debentureholders into a voting agreement
(the "Voting Agreement") in the form contemplated by the Support Agreement, and
the entry by Crew into this Agreement; and
D. Crew has acknowledged that Olympus' support of the Conversion is of
direct value to the protection of its stake in the Company.
NOW THEREFORE in consideration of the entry by Olympus into the Support
Agreement, the payment of $10.00 by the Company to Crew, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto hereby agree as follows:
ARTICLE 1
COVENANTS OF THE COMPANY
1.1 CONVERSION. The Company will make reasonable efforts to:
----------
(a) effect the Conversion, subject to its exploration of strategic
alternatives as described in Section 1.1(b) hereof; and
(b) commence to explore all strategic alternatives open to the Company to
promote development of the Company's potash projects or to otherwise
maximize shareholder value, including without limitation the
initiation, solicitation, promotion and encouragement (including by
way of furnishing information or entering into any agreement,
arrangement or understanding) of the initiation, directly or
indirectly, of enquiries or the submission of proposals or offers from
any person with respect to any one or more of the following (each, a
"Transaction"): a merger, amalgamation, statutory arrangement,
takeover bid, sale or joint venture of the Somboon or Udon potash
properties in northern Thailand, sale of other substantial assets,
issuance of shares or similar transaction involving the Company. A
Transaction shall constitute an "Alternative Transaction" if it so
qualifies for the purposes of the Support Agreement.
ARTICLE 2
COVENANTS OF CREW
2.1 RIGHTS ISSUE. Crew agrees that it shall participate in the Rights Issue
------------
provided that:
(a) Crew shall exercise or cause the exercise of all rights (including any
oversubscription privileges) it or any of its affiliates or associates
receive in the proposed Rights Issue, any rights transferred to it by
Xxxx Xxxxx and his affiliates and associates and, if The Toronto Stock
Exchange deems the Rights Issue to be a private placement and
consequently limits Crew's ability to exercise any oversubscription or
similar privileges, Crew shall acquire in the market and exercise
rights, sufficient to subscribe for an aggregate amount of
CDN$5,000,000 of Units in the Rights Issue provided that Crew's
--------
commitment to subscribe for Units in the Rights Issue pursuant to this
Section 2.1(a) shall be reduced, on a dollar-for-dollar basis, by an
amount equal to the amount, if any, by which Olympus' CDN$5,000,000
standby commitment under the Support Agreement is not required to be
performed due to subscriptions in the Rights Issue by persons other
than Olympus, Crew, Xxxx Xxxxx and their respective associates and
affiliates. In addition, Crew undertakes that neither it nor its
associates or affiliates will, together with Xxxx Xxxxx and his
associates and affiliates, subscribe for more than CDN$5,000,000 of
Units in the aggregate unless Olympus has been required to perform its
CDN$5,000,000 standby commitment in full.
(b) Crew shall satisfy a portion of its obligations under Section 2.1(a)
hereof by setting-off any Interim Funding (as defined in Section 2.3)
it may have provided to the Company against the subscription price
payable upon its exercise of rights in the Rights Issue.
(c) (deleted)
(d) (deleted); and
(e) if the Support Agreement is terminated for any reason, Crew's
obligations under this Section 2.1 shall also terminate.
2.2 (deleted)
2.3 INTERIM FUNDING. Upon the request in writing of the Company at any time
---------------
after January 7, 2002 and prior to completion of the Rights Issue, Crew shall
advance to the Company up to CDN$200,000 in the aggregate as interim funding
(the "INTERIM FUNDING"). Crew's obligations under this Section 2.3 shall be
conditional upon
(i) Olympus concurrently advancing to the Company not less than an
amount, not to exceed CDN$800,000 in total, equal to 400% of the
funds advanced by Crew pursuant to this Section 2.3;
(ii) the Interim Funding and interim funding provided by Olympus
becoming due and payable by the Company on February 28, 2002 and
bearing interest at the rate of 10% per annum, compounded
semi-annually not in advance.
Interim Funding provided by Crew shall be satisfied and
discharged, firstly, by setting off such amount against Crew's
subscription obligation in the Rights Issue as contemplated in
Sections 2.01(a) and 2.01(b) of this Agreement with the balance,
if any, being paid by the Company to Crew in cash.
2.4 POTASH INVESTMENTS. Crew agrees that, for so long as it holds Shares of
------------------
the Company, neither it nor any of its associates or subsidiaries shall invest
in any potash projects other than the Company and its subsidiaries.
2.5 (deleted)
2.6 DISPOSITION OF SHARES. Crew agrees that, following the completion of
---------------------
the Conversion, except pursuant to an offer or proposal made to the shareholders
of the Company generally, neither it nor any of its associates or affiliates
shall:
(a) for a period of two months, sell any Shares;
(b) for a period of 18 months, in any six month period, sell any more than
one-third of the Shares it or they hold following the completion of
the Rights Issue (excluding any Shares which may be acquired on the
exercise of Warrants); and
(c) for a period of 18 months, sell Shares comprising 10% or more of the
outstanding Shares to any purchaser or group of purchasers acting
jointly or in concert, unless the trade is effected through a stock
exchange and does not constitute a pre-arranged trade to any of the
foregoing.
2.7 VOTING SUPPORT. Crew covenants and agrees to vote, or cause to be
--------------
voted, all Shares held by it or by its affiliates or associates at the
extraordinary general meeting of shareholders of the Company to be held pursuant
to this Agreement and the Support Agreement (the "EGM") in favour of the
resolution to continue the Company to New Brunswick and in favour of approval of
the terms of the recapitalization of the Company, including the Conversion and,
if Crew is permitted to do so by The Toronto Stock Exchange, the Rights Issue,
as set out in the management proxy circular for the EGM.
2.8 REPRESENTATION. Crew represents and warrants to the Company and Olympus
--------------
that:
(i) the only regulatory restriction which may be imposed on its
ability to participate in the Rights Issue pursuant to Section
2.1(a) relates to its ability to participate in any
oversubscription or similar privilege if the Rights Issue is
deemed to be a private
placement by The Toronto Stock Exchange, in which circumstances
it will purchase rights in the market and exercise them in order
to ensure that the aggregate subscriptions on the exercise of
rights by it and its associates and affiliates provided for under
Section 2.1(a) are not less than CDN$5,000,000 in the aggregate;
and
(ii) except as set out in paragraph (i) of this Section 2.8, there are
no other restrictions or limitations, regulatory or otherwise,
which will prevent or limit Crew's ability to perform its
obligations under Section 2.1(a).
ARTICLE 3
COVENANTS OF OLYMPUS
3.1 (deleted)
ARTICLE 4
TERMINATION
4.1 TERMINATION. This Agreement shall terminate automatically upon the
-----------
termination of the Voting Agreement.
ARTICLE 5
MISCELLANEOUS
5.1 AMENDMENT OR WAIVER. This Agreement may be amended, modified or
-------------------
superseded, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, but only by written instrument executed by
Crew, the Company and Olympus. No waiver of any nature, in any one or more
instances, shall be deemed or construed as a further or continued waiver of any
condition or any breach of any other term, representation or warranty in this
Agreement.
5.2 ENTIRE AGREEMENT. This Agreement and the documents referred to herein
----------------
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior agreements, arrangements or understandings
with respect thereto.
5.3 HEADINGS. The descriptive headings are for convenience of reference
--------
only and shall not control or affect the meaning or construction of any
provisions of this Agreement.
5.4 NOTICES. Any notice or other communication (each in this section, a
-------
"Notice") which is required or permitted hereunder shall be communicated
confidentially, shall be in writing and shall be sufficiently given or made if
delivered by hand and left with a receptionist or other responsible employee of
the relevant party at the address set forth below, or sent by facsimile
transmission, in each case during normal business hours on a business day
addressed as follows:
To the Company:
Asia Pacific Resources Ltd.
Suite 615 - 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Fasken Xxxxxxxxx XxXxxxxx LLP
Suite 2100
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Attention: R. Xxxxxx Xxxxx
Facsimile: (000) 000-0000
To Crew:
Crew Development Corporation
Xxxxx 000
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Facsimile: (000) 000-0000
To Olympus:
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx 0000
Xxxx Xxxx, Xxxxx
Attention: Xxxx Xxx
Facsimile: (000) 0000 0000
-and-
000 Xxxx 00xx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx
XXX 00000
Attention: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
With a copy to:
Stikeman Elliott
Suite 0000
Xxxxxxxx Xxxxx Xxxx
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
Each Notice sent in accordance with this section shall be deemed to have been
received on the day of delivery, if delivered as aforesaid, and on the day of
sending by facsimile transmission as aforesaid, or on the first business day
thereafter if delivered or sent otherwise than during normal business hours of
the recipient on a business day. In this Section 5.4 business day means any day
other than a Saturday, Sunday or statutory or bank holiday in Toronto (Ontario),
Vancouver (British Columbia), Hong Kong (PRC) or New York (New York). Either
party may change its address for Notice by giving notice to the other party
pursuant to this Section 5.4.
5.5 EXPENSES. Each party will pay its own expenses.
--------
5.6 ASSIGNMENT. This Agreement shall not be assignable by any party without
----------
the prior written consent of the other parties, except that Olympus may assign
this Agreement to another entity under common control with Olympus.
5.7 TIME. Time shall be of the essence of this Agreement.
----
5.8 SEVERABILITY. If any term, covenant or restriction of this Agreement is
------------
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain
in full force and effect and shall in no way be effected, impaired or
invalidated and the parties shall negotiate in good faith to modify the
Agreement to preserve each party's anticipated benefits under the Agreement.
5.9 CHOICE OF LAW. This Agreement shall be governed by, construed and
-------------
interpreted in accordance with the laws of the Province of British Columbia
including the federal law of Canada applicable therein. Each party hereto
irrevocably submits to the non-exclusive jurisdiction of the Courts of British
Columbia with respect to any matter arising hereunder or relating hereto.
5.10 INTERPRETATION. For purposes of this Agreement, the terms "associate",
--------------
"affiliate" and "subsidiary" shall have the meanings given to them by the
British Columbia Company Act;
5.11 COUNTERPARTS. This Agreement may be executed in any number of
------------
counterparts. An executed counterpart may be delivered by facsimile
transmission as contemplated in Section 5.4. The sending party shall be deemed
to have executed this Agreement at the time notice is sent. In such event, the
sending party shall forthwith deliver to each other party a manually executed
counterpart of this Agreement.
IN WITNESS THEREOF the parties hereto have caused this Agreement to be
executed on their behalf by their officers thereunto duly authorized as of the
date first written above.
ASIA PACIFIC RESOURCES LTD.
BY:
------------------------------------
Xxxxxx X. Xxxxxxxxx
Chairman, President and
Chief Executive Officer
BY:
------------------------------------
Xxxx Xxxxx
Director
CREW DEVELOPMENT
CORPORATION
Per:
--------------------------------
Authorized Signatory
OLYMPUS CAPITAL HOLDINGS
ASIA I, L.P.
BY: OLYMPUS CAPITAL HOLDINGS
ASIA, L.L.C., ITS GENERAL PARTNERS
BY: OLYMPUS CAPITAL HOLDINGS ASIA,
ITS MANAGING MEMBER
/s/ Xxxxxx Xxxxx
------------------------------------
Authorized Signatory
SCHEDULE "D"
(see Exhibit 2 to Schedule 13D)
SCHEDULE "E"
(deleted)
