EXHIBIT 10.34
SECURITYHOLDER AGREEMENT
THIS SECURITYHOLDER AGREEMENT (this "Agreement") is made and entered
into as of the 19th day of March 2004, among AMERALIA, INC., a Utah corporation
("AmerAlia"), NATURAL SODA, INC., a Colorado corporation (the "Subsidiary"),
SENTIENT EXECUTIVE GP I, LIMITED, ACTING ON BEHALF OF THE GENERAL PARTNER OF
SENTIENT GLOBAL RESOURCES FUND I, L.P. and SENTIENT (AUST) PTY. LIMITED, ACTING
ON BEHALF OF SENTIENT GLOBAL RESOURCES TRUST NO. 1. (collectively the "Sentient
Entities") (collectively AmerAlia, the Subsidiary and the Sentient Entities are
referred to herein as the "Securityholders"), , and NATURAL SODA HOLDINGS, INC.,
a Colorado corporation (the "Company").
RECITALS:
A. AmerAlia owns 100 shares of the Company's Common Stock, and is
purchasing a principal amount of $3,775,000 Series A Debentures, 4,949 shares of
the Series A Preferred Stock, 50,900 shares of the Company's Common Stock, and
Series C Debentures with a principal amount of $12,000,000, pursuant to the
Debenture Purchase Agreement.
B. The Sentient Entities are purchasing Series A Debentures with
a principal amount of $5,000,000, Series B1 Debentures with a total principal
amount of $11,300,000, Series B2 Debentures with a total principal amount of
$9,700,000, and 1 share of Common Stock of the Company, pursuant to the
Debenture Purchase Agreement.
C. The Subsidiary is purchasing Series A Debentures with a
principal amount of $750,000 pursuant to the Debenture Purchase Agreement.
D. AmerAlia has agreed to pledge its Series A Debentures, Series
C Debentures and Series A Preferred Stock to its creditors. The Subsidiary has
agreed to pledge its Series A Debentures to its creditors.
E. The Securityholders desire to enter into this Agreement to set
forth certain understandings they each have with respect to the future operation
of the Company, corporate governance of the Company, rights and restrictions on
their securities in the Company and their respective voting rights and
responsibilities.
NOW, THEREFORE, intending to be legally bound and for good and adequate
consideration, the receipt and sufficiency of which the Company and AmerAlia,
the Subsidiary and each of the Sentient Entities acknowledge, the parties hereto
agree as follows:
ARTICLE I CERTAIN DEFINITIONS. For purposes of this Agreement:
Section 1.01 Affiliate means, with respect to any Person, (i) any Person
directly or indirectly controlling, controlled by, or under common control with
such Person, (ii) any Person owning or controlling ten percent (10%) or more of
the outstanding voting interests of such Person, (iii) any officer, director, or
general partner of such Person, or (iv) any Person who is an officer, director,
general partner, trustee, or holder of ten percent (10%) or more of the voting
interests of any Person described in clauses (i) through (iii) of this sentence.
For purposes of this definition, the term "controls," "is controlled by," or "is
under common control with" shall mean the possession, direct or indirect, of the
power to direct or
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cause the direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
Section 1.02 Adjusted EBITDA means the Subsidiary's earnings (calculated in
accordance with generally accepted accounting principles, consistently applied)
(A) before any deduction for (i) interest, taxes, depreciation, write downs,
revaluations and amortization and (ii) payments to the Company for payment by
the Company under the Management Cost and Reimbursement Agreement dated as of
the date hereof and to be effective as of October 1, 2003 (the "Management Cost
and Reimbursement Agreement"), and (B) but including amortization of well-field
capital expense.
Section 1.03 AmerAlia Common Stock means the $.01 par value common stock issued
or issuable by AmerAlia.
Section 1.04 Annual Budget shall have the meaning set forth in Section 3.05.
Section 1.05 CBCA shall mean Colorado Business Corporation Act (as amended from
time-to-time), which is currently found at Title 7 of the Colorado Revised
Statutes, Articles 101 through 117.
Section 1.06 Chargee shall have the meaning set forth in Section 2.02.
Section 1.07 Company Securities means the Debentures, the shares of Series A
Preferred Stock, the shares of the Company's Common Stock, including the one
share of the Company's Common Stock issued to the Sentient Entities,
collectively and individually.
Section 1.08 Debenture Purchase Agreement shall mean that agreement dated March
19, 2004 by which the Sentient Entities are purchasing Series A Debentures,
Series B Debentures, Warrants and 1 share of Common Stock of the Company,
AmerAlia is purchasing Series A Debentures, Series C Debentures, and Series A
Preferred Stock and the Subsidiary is purchasing Series A Debentures.
Section 1.09 Debentures mean collectively the Senior Secured Series A 10%
Debentures due September 30, 2005, the Secured Subordinated Series B1 Debentures
due February 19, 2008, ("Series B1 Debentures"), the Secured Subordinated Series
B2 Convertible Debentures due February 19, 2008 ("Series B2 Debentures"), the
Unsecured Subordinated Series C Debentures due February 19, 2008 Debentures (the
"Series C Debentures"), or any of them as the context may require.
Section 1.10 Directors mean the members of the board of directors of the Company
or the Subsidiary, as appropriate.
Section 1.11 Encumbrance means any charge, claim, community property interest,
condition, equitable interest, lien, option, pledge, security interest,
mortgage, right of way, easement, encroachment, servitude, right of first
refusal, or restriction of any kind, including any restriction on use, voting,
transfer, receipt of income, or exercise of any other attribute of ownership.
Section 1.12 Exchange Date shall have the meaning set forth in Section
3.15(b)(v).
Section 1.13 Exchange Price shall equal 85% of the average between the bid and
asked prices of the AmerAlia Common Stock as quoted by the OTC Bulletin Board,
Nasdaq Stock Market or the principal exchange on which AmerAlia Common Stock is
then trading during the 30 calendar days preceding the date of the written
notice required by Section 3.15(b)(v). If the AmerAlia Common Stock is not
quoted
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on the OTC Bulletin Board, the Nasdaq Stock Market or trading on a stock
exchange at that time, the average price will be established by the board of
directors of AmerAlia in its good faith judgment.
Section 1.14 Exchange Rights shall have the meaning set forth in Section
3.15(b).
Section 1.15 Expiration Date shall mean December 31, 2011; or sooner if the
Parties agree.
Section 1.16 Management shall mean the president, any vice president, secretary
or treasurer of the Company or the Subsidiary, as applicable, acting within the
scope of their authority on behalf of the Company or the Subsidiary, as
applicable.
Section 1.17 Minimum Price shall mean the repayment amount of the Series B2
Debentures that the Company would have paid if those Series B2 Debentures had
not been converted to NSI Common Stock, including Contingent Interest.
Section 1.18 NSI Common Stock shall mean the $.01 par value per share common
stock of the Subsidiary authorized by its articles of incorporation.
Section 1.19 NSI Share Value shall have the meaning set forth in Section
3.15(b)(ii).
Section 1.20 Person shall mean any individual, sole proprietorship, corporation,
business trust, unincorporated organization, association, company, partnership,
joint venture, governmental authority (whether a national, federal, state,
county, municipality or otherwise, and shall include without limitation any
instrumentality, division, agency, body or department thereof), or other entity
of any type or nature.
Section 1.21 Pledged Securities shall have the meaning set forth in Section
2.01(b).
Section 1.22 Rock School Lease shall mean the sodium lease that the U.S. Bureau
of Land Management (Department of the Interior) issued to the Company on June
29, 2001 (serial no. C-0119985), and further includes the permits and other
government approvals related to that sodium lease.
Section 1.23 Selling Securityholder shall have the meaning set forth in Section
2.04(a). When one or both of the Sentient Entities is a Selling Securityholder,
the term shall include both Sentient Entities.
Section 1.24 Sentient Entities shall have the meaning set forth in the preamble,
and it shall also include their Affiliates and investors to the extent that any
Affiliate of or an investor in one or both of the Sentient Entities acquires a
direct interest in the Debentures or the NSI Common Stock.
Section 1.25 Series A Preferred Stock shall mean the Series A Preferred Stock of
the Company.
Section 1.26 Transfer. A Person shall be deemed to have effected a "Transfer" of
a designated security if such Person directly or indirectly: (i) sells, pledges,
encumbers, grants an option with respect to, transfers or disposes of such
security or any interest in such security, or (ii) enters into an agreement or
commitment providing for the sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein.
Section 1.27 Two-Thirds Director Approval shall mean the approval of not less
than two-thirds of the members of the board of directors of the Company or the
Subsidiary, as applicable, at the time such approval is sought. When the board
of directors consists of five members, Two-Thirds Director Approval requires the
approval of at least four members of the applicable board of directors.
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Section 1.28 Warrants shall mean the warrants to purchase an aggregate of
600,000 shares of common stock of AmerAlia.
ARTICLE II. TRANSFER OF COMPANY SECURITIES.
Section 2.01 Transferee of Company Securities to be Bound by This Agreement.
(a) Each Securityholder agrees that, during the period from the date of
this Agreement through the Expiration Date, each Securityholder shall
Transfer Company Securities only in accordance with the terms of this
Agreement, and each Securityholder shall not cause or permit any
Transfer of any Company Securities to be effected unless prior to any
such Transfer the Person to which any of such Company Securities, or
any interest in any of such Company Securities, is or may be
Transferred shall have: (i) executed a counterpart of this Agreement
(with such modifications as the Company may reasonably request) and
(ii) agreed in writing to hold such Company Securities (or interest in
such Company Securities) subject to all of the terms and provisions of
this Agreement. Transfers not completed strictly in accordance with
clauses (i) and (ii) of this Section 2.01 and Section 2.04 below,
shall be ineffective against the Company or any other Securityholder.
(b) Notwithstanding the foregoing, the Sentient Entities each consent to
(i) AmerAlia's collateral pledge of its Series C Debentures, Series A
Debentures, and its Series A Preferred Stock to Xxxxxxxxxx X. Mars, as
Trustee of the Xxxxxxxxxx Xxxxxx Mars Trust dated February 5, 1975, as
amended (the "Xxxxxxxxxx Xxxxxx Mars Trust"), to Blue Capital LLC, to
Xxxxxxx X. X'Xxxxxx, to Xxxxxx Xxxxxxx and any other accredited
investors subscribing for AmerAlia's Series A Debentures and (ii) the
Subsidiary's pledge of it's Series A Debentures to the Xxxxxxxxxx
Xxxxxx Mars Trust (collectively the "Pledged Securities"). The Pledged
Securities are not subject to the terms of this Agreement except to
the extent that AmerAlia or the Subsidiary reacquires possessory
rights with respect to the Pledged Securities, or any of them. (c)
Notwithstanding the foregoing, AmerAlia and the Subsidiary consents to
(i) a Transfer by the Sentient Entities among or between a Person
included within the definition of the Sentient Entities provided that
such transferee becomes a party to this Agreement and (ii) a Transfer
by the Sentient Entities to the Xxxxxxxxxx Xxxxxx Mars Trust pursuant
to the Agreement to Share Proceeds, dated as of the date hereof.
(d) Even though this provision and the provisions of Section 2.04 may
apply to the Pledged Securities, any Transfer of the Pledged
Securities (or any interest therein) is subject to compliance with all
of the requirements of applicable securities laws.
Section 2.02 Encumbrances. If a Securityholder Transfers its Company Securities
(or any portion thereof) by granting an Encumbrance to secure a loan or other
indebtedness of the Securityholder in a bona fide transaction, such Transfer
shall be subject to the terms of this Agreement. This provision may be waived by
Two-Thirds Director Approval. Any such Transfer shall be further subject to the
condition that the holder of such Encumbrance ("Chargee") first enter into a
written agreement with the other Securityholders in form satisfactory to such
Securityholders, acting reasonably and in good faith, binding upon the Chargee,
to the effect that:
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(a) except as set forth below, the Chargee shall not enter into possession
or institute any proceedings for foreclosure or partition of the
encumbering Securityholder's Company Securities; and
(b) the Chargee's remedies under the Encumbrance shall be limited to the
sale of the whole (but only of the whole) of the encumbering
Securityholder's Company Securities to the other Securityholders, or,
failing such a sale, at a public auction to be held at least 60 days
after prior notice to the other Securityholders, such sale to be
subject to the purchaser entering into a written agreement with the
other Securityholders whereby such purchaser assumes all obligations
of the encumbering Securityholder under the terms of this Agreement.
The price of any preemptive sale to the other Securityholders shall be
the remaining principal amount of the loan (or other obligation
collateralized by such Encumbrance) plus accrued interest and related
expenses on the terms set forth in the documents evidencing such loan
or other obligation, and such preemptive sale shall occur within 60
days of the Chargee's notice to the other Securityholders of its
intent to sell the encumbering Securityholder's Company Securities.
Failure of a sale to the other Securityholders to close by the end of
such period, unless such failure is caused by the encumbering
Securityholder or by the Chargee, shall permit the Chargee to sell the
encumbering Securityholder's Company Securities at a public sale to
the extent permitted by and in accordance with applicable law.
Section 2.03 Limited Transfer of Voting Rights. Each Securityholder agrees that,
during the period from the date of this Agreement through the Expiration Date,
no Securityholder shall deposit (or permit the deposit of) any shares of NSI
Common Stock or the Company's Common Stock in a voting trust or grant any proxy
or enter into any voting agreement or similar agreement in contravention of the
obligations of such Securityholder under this Agreement with respect to any of
the shares of NSI Common Stock or the Company's Common Stock.
Section 2.04 Restrictions on Transferability. Each Securityholder agrees that it
will not Transfer any of the Company Securities, whether now owned or hereafter
acquired, whether voluntarily or involuntarily, except through a Transfer which
meets the requirements of this Article II, and each Securityholder further
agrees that any Transfer which does not meet the requirements of this Article II
shall be null and void.
(a) VOLUNTARY SALES. If a Securityholder (the "Selling Securityholder")
wishes to dispose of all or a portion of its Company Securities (the
"Offered Company Securities") through a voluntary sale or other
disposition of the Common Stock or Debentures owned by the Selling
Securityholder, the Selling Securityholder will first offer the
Offered Company Securities to the other Securityholders in writing.
The Selling Securityholder and the other Securityholders will, in good
faith, engage in negotiations to complete the purchase and sale of the
Offered Company Securities on terms reasonably acceptable to the
Selling Securityholder and the other Securityholders. It is the
parties' current intent that if Series B2 Debentures are converted
into NSI Common Stock and no liquidity event, such as a public
offering involving the Subsidiary's shares, has occurred, that
AmerAlia will use commercially reasonable efforts, within a reasonable
period of time after the Maturity Date of the Series B Debentures, to
(i) purchase such shares, (ii) seek another investor to purchase such
shares, or (iii) solicit acquisition offers from third party entities.
If AmerAlia offers to buy the shares within 90 days of conversion,
AmerAlia shall offer to purchase such shares at the greater of (i) the
NSI Share Value multiplied by the number of shares of NSI Common Stock
held by Sentient or (ii) the Minimum Price.
(b) OFFER BEFORE PAYMENT OF THE SERIES B DEBENTURES. If the Sentient
Entities desire to sell all (and not less than all) of the Company
Securities they then own prior to the repayment in full of the
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Series B Debentures, the Sentient Entities shall make a written offer
to sell the Offered Company Securities to AmerAlia naming a price and
the terms of purchase (the "Written Offer"). If AmerAlia does not
irrevocably and in writing elect to purchase the Offered Company
Securities before the expiration of 30 days following its receipt of
the Written Offer, the Sentient Entities may complete the sale of the
Offered Company Securities to a third party on the same price and at
the same terms set forth in the Written Offer within the 90 days
following AmerAlia's receipt of the Written Offer.
(c) OFFER IF THE SENTIENT ENTITIES OWN NSI COMMON STOCK AND THE REMAINING
SERIES B DEBENTURES HAVE BEEN REPAID. If the Sentient Entities desire
to sell all (and not less than all) of the shares of NSI Common Stock
they own, the Sentient Entities shall make a written offer to sell the
Offered Company Securities to AmerAlia naming a price and the terms of
purchase (the "Written Offer"). If AmerAlia does not elect irrevocably
and in writing to purchase the Offered Company Securities before the
expiration of 30 days following its receipt of the Written Offer, the
Sentient Entities may complete the sale of the Offered Company
Securities to a third party on the same price and at the same terms
set forth in the Written Offer within the 90 days following AmerAlia's
receipt of the Written Offer. The Sentient Entities may further
require that AmerAlia or the Company sell all the shares of NSI Common
Stock it then owns to the third party on the same per share price
provided that (1) AmerAlia or the Company, as applicable, shall only
be required to make customary representations, warranties and
covenants which shall also be made by Sentient and (2) AmerAlia or the
Company, as applicable, shall only bear its proportionate share of any
escrow, holdback or price adjustment.
If the AmerAlia Shareholders are required to approve the sale of NSI
Common Stock by AmerAlia, and fail to do so, the Sentient Entities may
(i) appoint additional directors of the Subsidiary so that the
directors nominated by the Sentient Entities constitute two-thirds of
the members of the Board of Directors of the Subsidiary (which
appointment shall constitute an expansion of the Board) and (ii) the
Sentient Entities will have the right to purchase for $0.10 per share
additional shares of NSI Common Stock so that the Sentient Entities
will have a majority of the vote at any meeting of the shareholders.
The Sentient Entities shall then have 90 days to complete the sale of
its Company Securities to a third party. If the Sentient Entities are
unable to complete the sale of Company Securities within such time,
the Sentient Entities will rescind the actions above.
AMERALIA'S RIGHT TO OFFER COMPANY SECURITIES IF THE SENTIENT ENTITIES
OWN NSI COMMON STOCK AND THE REMAINING SERIES B DEBENTURES HAVE BEEN
REPAID. If AmerAlia desires to sell all (and not less than all) of the
Company Securities it owns, and if the Sentient Entities hold NSI
Common Stock and the remaining Series B Debentures have been repaid,
AmerAlia shall make a written offer to sell the Offered Company
Securities to the Sentient Entities naming a price and the terms of
purchase (the "Written Offer"). If the Sentient Entities do not elect
irrevocably and in writing to purchase the Offered Company Securities
before the expiration of 30 days following its receipt of the Written
Offer, AmerAlia may complete the sale of the Offered Company
Securities to a third party on the same price and at the same terms
set forth in the Written Offer within the 90 days following the
Sentient Entities' receipt of the Written Offer; provided, however
that the Sentient Entities may require that the purchaser purchase its
Company Securities in the transaction on the same terms as AmerAlia;
provided, further, that if the purchaser will not purchase the Company
Securities held by the Sentient Entities, AmerAlia may not sell its
Company Securities unless AmerAlia purchases the Company Securities
held by the Sentient Entities on the same terms and conditions.
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(d) The Company and the other Securityholders shall cooperate with
reasonable requests for due diligence investigations by prospective
purchasers, provided, however:
(i) The purchaser provides the Company, the Subsidiary and the other
Securityholders information reasonably satisfactory to the Company and
to the other Securityholders that it is financially capable (directly
or with borrowings) of completing the purchase of all of the
outstanding Company Securities; and
(ii) The purchaser enters into confidentiality and non-use agreements
as to any confidential or non-public information about the Company
and/or the Subsidiary that the purchaser may receive in its due
diligence investigation, which confidentiality and non-use agreements
must be satisfactory to the Company and to the other Securityholders
in their reasonable discretion.
(e) As a condition precedent to the effectiveness of any Transfer of the
Offered Company Securities to any Person that is not a party to this
Agreement, such transferee shall agree in writing to be bound by all
of the terms and conditions of this Agreement and to be included as a
"Securityholder" pursuant to the terms hereof. The purchaser of the
Offered Company Securities of either AmerAlia or the Sentient Entities
will enjoy all of the rights and be subject to the obligations under
this Agreement of the seller of those securities.
(f) Sections 2.04(a) and (b) do not apply to a voluntary sale where the
Person acquiring the Company Securities is an Affiliate of, or
otherwise under the control of, the Selling Securityholder or is
included within the definition of the term "Sentient Entities," and
where the Person acquiring the Company Securities pursuant to this
Section 2.04(f) does not propose to change the Directors designated by
the Selling Securityholder.
ARTICLE III. AGREEMENTS BETWEEN THE SECURITYHOLDERS.
Section 3.01 Agreement with Respect to Board Representation of the Company. The
Securityholders agree to vote their Company Securities so that the Board of
Directors of the Company will consist of five Persons as follows:
(a) (i) Two Persons nominated by the Sentient Entities voting as a
separate group who shall be reasonably acceptable to AmerAlia,
(ii) Two Persons nominated by AmerAlia voting as a separate group who
shall be reasonably acceptable to the Sentient Entities, and
(iii) One Person who shall be an industry representative not
affiliated with the Company, AmerAlia or the Sentient Entities (the
"Independent Director") who shall be nominated by any Securityholder
and reasonably acceptable to AmerAlia, the Subsidiary and the Sentient
Entities.
(b) Initially the Company's board of directors will consist of: (i) Xxxx
X. Xxxx and Xxxxxx xxx Xxxxxx (as Directors nominated by AmerAlia),
and (ii) Xxxx X. Xxxxxxx and Xxxxx Xxxxxxx (as Directors nominated by
the Sentient Entities). When he becomes available to serve on the
Board, the Securityholders agree to elect Xxxxx Xxxxx as the initial
Independent Director. If Xxxxx Xxxxx is not available to serve on the
Board of Directors within a reasonable time period or the Independent
Director position becomes vacant for any reason, the Securityholders
shall use their best efforts to find and elect a new Independent
Director pursuant to Section 3.01 in good faith.
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(c) Either the Sentient Entities or AmerAlia may remove any Director
nominated by it or them with or without cause upon notice in writing
sent to the Company, that Director, and the remaining Securityholders.
Any vote taken to fill any vacancy created by the resignation, removal
or death of a director elected pursuant to Section 3.01(a) shall be
subject to the provisions of Section 3.01.
(d) If either of the Sentient Entities declares an Event of Default under
any of the Debentures (as the term "Event of Default" is defined in
the Debentures), the Sentient Entities may, in their discretion: (i)
appoint additional directors of the Company so that the directors
appointed or nominated by the Sentient Entities constitute two-thirds
of the members of the Board of Directors (which appointment will
constitute an expansion of the Board), or (ii) the Sentient Entities
will have the right to purchase for $0.10 per share, shares of the
Company's common stock so that the Sentient Entities will have a
majority of the vote at any meeting of the shareholders of the
Company, for the purpose of curing the Event of Default. Upon the cure
or its written waiver of such Event of Default, the Sentient Entities
will resign the additional directors appointed pursuant to clause (i)
above and resell the shares of the Company's common stock to the
Company purchased pursuant to clause (ii) above.
Section 3.02 Agreement with Respect to Board Representation of the Subsidiary.
The Securityholders agree that the board of directors of the Subsidiary shall be
comprised of the individuals who are serving as the Company's Board of Directors
in accordance with Section 3.01. Each Securityholder agrees to vote its shares
of common stock of the Company or other Company Securities and to cause its
representatives or the Company's Board of Directors, subject to their fiduciary
duties, to vote and take other appropriate action to effect this Section 3.02.
Section 3.03 Agreement with Respect to Appointment of Management
(a) The Directors of the Company shall appoint a chairman of the board,
and the Directors of the Subsidiary shall appoint a chairman of the
board, in each case by Two-Thirds Director Approval.
(b) The Directors of the Company and the Subsidiary, respectively, shall
appoint officers, including, to the extent deemed appropriate: a
president, chief executive officer, chief operating officer, and chief
financial officer, for each of the Company and the Subsidiary by a
Two-Thirds Director Approval. The officers of the Subsidiary do not
have to be the same Persons as the officers of the Company unless the
Directors of the Subsidiary determine it appropriate to appoint the
same Persons to the same offices.
Section 3.04 Market Stand-Off Agreement. The Securityholders shall not sell,
dispose of, transfer, make any short sale of, grant any option for the purchase
of, or enter into any hedging or similar transaction with the same economic
effect as a sale, any NSI Common Stock held by Securityholder, for a period of
time specified by the managing underwriter(s) (not to exceed ninety (90) days)
following the effective date of a registration statement of the Subsidiary filed
under the Securities Act of 1933, as amended, related to the Subsidiary's
initial firm commitment underwritten public offering of NSI Common Stock.
Securityholder agrees to execute and deliver such other agreements as may be
reasonably requested by the Subsidiary and/or the managing underwriter(s) which
are consistent with the foregoing or which are necessary to give further effect
thereto. To enforce the foregoing covenant, the Subsidiary may impose
stop-transfer instructions with respect to such NSI Common Stock until the end
of such period. The underwriters of the Subsidiary's stock are intended third
party beneficiaries of this Section 3.04 and shall have the right, power and
authority to enforce the provisions hereof as though they were a party hereto.
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Section 3.05 Agreement with Respect to Budget Approvals.
(a) Management shall prepare for the approval of the Directors each
calendar year (no later than 90 days prior to the end of the
then-current calendar year) capital and operating budgets and
three-year operating plan for each of the Company and the Subsidiary
for the next calendar year (each an "Annual Budget"). Each Annual
Budget shall set forth for each of the Company and the Subsidiary at a
minimum: (i) the estimated receipts and revenue (including loan
proceeds and anticipated investment); (ii) the estimated expenditures
and obligations (capital, operating and other) of each of the Company
and the Subsidiary; and (iii) estimated Adjusted EBITDA (as defined in
Section 3.15(b)(iii)) of the Company and the Subsidiary.
Each respective Annual Budget shall set forth information in
sufficient detail to provide an estimate of cash flow, capital
proceeds and other financial requirements of the Company and the
Subsidiary for such year. Any such Annual Budget shall also include
such other information or other matters related to the Company's
business and the Subsidiary's business to enable the Directors to make
an informed decision with respect to their approval of such Annual
Budget. Any such Annual Budget shall also comply with the requirements
of any other agreement to which the Company or the Subsidiary (as
applicable) is a party.
(b) The Directors shall review any proposed Annual Budget and shall offer
any revisions thereto within 45 days of their receipt of the draft.
The Directors shall also ensure that the Annual Budget is consistent
with the requirements of any agreement to which the Company or the
Subsidiary may be a party.
(c) The Directors must approve the Annual Budget and any amendment thereto
for each of the Company and the Subsidiary by a Two-Thirds Director
Approval.
(d) Management shall implement the Annual Budget for each of the Company
and the Subsidiary after approval by the Directors. In implementing
the Annual Budget, Management shall be authorized to make only the
expenditures and incur only the obligations provided for therein.
(i) Notwithstanding the foregoing, Management may make any reasonably
necessary expenditure or incur any reasonably necessary obligation,
whether or not such expenditure or obligation is provided for in the
then-applicable Annual Budget, which is the legal obligation of the
Company or the Subsidiary and not within the reasonable control of
Management (including (without limitation) real or personal property
taxes), or which may be reasonably necessary to protect the assets of
the Company or the Subsidiary. If Management becomes aware of an
expenditure or obligation described in the preceding sentence, it will
notify the members of the board of directors prior to making such
expenditure or obligation.
(ii) If the Directors are not able to agree on an Annual Budget for any
year for either the Company or the Subsidiary (or both), each line
item in the Annual Budget for the prior year shall be increased by the
percentage increase in the CPI Index from the first day for which the
previous Annual Budget was in effect to the first day for which the
new Annual Budget is to be in effect. As used herein, "CPI Index"
shall mean the Consumer Price Index for All Items All Urban Consumers
(CPI-U) (1982-84 = 100) for the United States, as published by the
United States Department of Labor's Bureau of Labor Statistics (the
"Bureau") for the region that includes Denver, Colorado. Should the
Bureau discontinue the publication of the above index, or publish the
index less frequently, or alter the index in some other material
manner, then the president of the Company shall, from time to time,
adopt a substitute index or substitute
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procedure that reasonably reflects and monitors adjustments in
consumer prices in the region that includes Denver, Colorado.
(e) The Directors may consider and approve amendments, additions to, and
changes of the Annual Budget of either the Company or the Subsidiary
(or both) from time-to-time as such may be presented to the Directors
by Management. Any approval of amendments, additions to, and changes
of the Annual Budget must be approved by the Directors in the same
manner and by the same vote as the Directors must approve the Annual
Budget initially.
(f) Management will provide the Securityholders cash and other reports as
any of them may reasonably require.
Section 3.06 Limitations on Actions of the Company. Except as set forth in
Section 3.08, in addition to the other requirements of the CBCA, the Company may
not take any of the following actions without Two-Thirds Director Approval.
(a) Merge, reorganize, or consolidate with or into another Person;
(b) Sell the Company's interest in the Rock School Lease or its interest
in the Subsidiary, or otherwise Transfer 5% or more of the value of
the Company's assets (which limitation does not prevent the Company
from selling its inventory in the ordinary course of business);
(c) Borrow funds in a material amount;
(d) Enter into any material agreement with an Affiliate, regardless of the
terms of such agreement;
(e) Declare or pay any dividends on its capital stock;
(f) Approve amendments to any other agreement entered into between the
Company, AmerAlia and the Subsidiary;
(g) Issue any shares of Common Stock, any other series of preferred stock
or Debentures (or options, rights, or warrants to acquire Common
Stock, or any other series of preferred stock or Debentures) to any
Person;
(h) Approve amendments to agreements with any lender other than those
administrative or ministerial in nature;
(i) Approve a filing under the United States Bankruptcy Code or seek a
receivership under any state law;
(j) Vote the capital stock of the Subsidiary;
(k) Make prepayments of the Debentures (or any of them);
(l) Vote to amend the articles of incorporation or bylaws of the Company,
or vote to liquidate or dissolve the Company;
(m) Vote to redeem any outstanding capital stock of the Company;
Securityholder Agreement
Page 10 of 19
(n) Vote to change the terms of any employee benefits, or the change the
terms of any employment contract between the Company and any officer
of the Company; and
(o) Waive any corporate opportunity presented to the Board.
Section 3.07 Limitations on Actions of the Subsidiary. Except as set forth in
Section 3.08, in addition to the other requirements of the CBCA, the Subsidiary
may not take any of the following actions without Two-Thirds Director Approval
by the Directors of the Subsidiary.
(a) Merge, reorganize, or consolidate with or into another Person;
(b) Transfer 5% or more of the value of the Subsidiary's assets outside of
the ordinary course of business (which limitation does not prevent the
Subsidiary from selling its inventory or replacing or upgrading its
equipment in the ordinary course of business);
(c) Borrow funds in any material amount;
(d) Enter into any material agreement with an Affiliate, regardless of the
terms of such agreement;
(e) Declare or pay any dividends on its capital stock;
(f) Approve amendments to any other agreement entered into between the
Company, AmerAlia and the Subsidiary;
(g) Issuance of any shares of common stock or any series of preferred
stock of the Subsidiary (or options, rights, or warrants to acquire
common stock, or any series of preferred stock) to any Person;
(h) Approve amendments to agreements with any lender other than those
administrative or ministerial in nature;
(i) Approve a filing under the United States Bankruptcy Code or seek a
receivership under any state law;
(j) Vote to amend the articles of incorporation or bylaws of the
Subsidiary, or vote to liquidate or dissolve the Subsidiary;
(k) Vote to redeem any outstanding capital stock of the Subsidiary;
(l) Vote to change the terms of any employee benefits, or the change the
terms of any employment contract between the Subsidiary and any
officer of the Subsidiary; and
(m) Waive any corporate opportunity presented to the Board.
Section 3.08 Exceptions to Sections 3.06 and 3.07. Notwithstanding the above
Sections 3.06 and 3.07, the Securityholders agree that (i) the Company shall be
able to issue capital stock to AmerAlia and (ii) the Subsidiary shall be able to
declare and pay dividends on its capital stock, upon approval of a majority of
the members of the Board of Directors, if all the net proceeds of such
transactions are used to repay the Company Securities, or the interest thereon,
in full or in part, according to the terms of the Debentures, the Debenture
Purchase Agreement or the Articles of Incorporation. Further, notwithstanding
the above, the Subsidiary may borrow money on a secured or unsecured basis and
the
Securityholder Agreement
Page 11 of 19
Company may borrow money on a secured basis, for the purpose of repaying the
Company Securities, or interest thereon, in full. Following the conversion of
the Series B2 Debentures, the Sentient entities shall cause the members of the
Board of Directors of the Subsidiary representing the Sentient Entities to
abstain from any actions by the Subsidiary's Board of Directors with respect to
the cancellation, forgiveness or any other method of terminating, loans, if any,
made by the Subsidiary to the Company to allow the Company to repay any of the
Debentures or any amounts owed under the Management Cost and Reimbursement
Agreement, so long as there are no adverse tax consequences to the Subsidiary.
Section 3.09 Intentionally Omitted.
Section 3.10 Intentionally Omitted.
Section 3.11 Intentionally Omitted.
Section 3.12 Intentionally Omitted.
Section 3.13 Agreement with Respect to Indemnification and Advancement of
Expenses.
(a) Each Securityholder agrees that it will use its best efforts to cause
the Company or the Subsidiary, as applicable, to indemnify Persons who
are or who were directors, officers, authorized agents, and employees
of the Company or the Subsidiary, as applicable, to the maximum extent
permitted by the CBCA for acts taken by such Persons on behalf of the
Company or the Subsidiary, as applicable.
(b) Each Securityholder further agrees that it will use its best efforts
to cause the Company to advance expenses for the defense of any Person
for whom indemnification is contemplated under the preceding
subsection to the maximum extent that the advancement of expenses is
permitted under the CBCA.
(c) Each Securityholder further agrees that it will use its best efforts
to cause the Company and Subsidiary to maintain directors' and
officers' liability insurance to the extent that such insurance is
available to the Company and Subsidiary on commercially reasonable
terms.
Section 3.14 Intentionally Omitted.
Section 3.15 Agreements With Respect to the Debentures.
(a) Forbearance Agreement.
(i) The Sentient Entities agree that if the Company is not able to
pay interest accruing on all of the Series A Debentures, and if
the Series A Debentures held by AmerAlia remain subject to a
pledge to third parties, then the Sentient Entities hereby direct
the Company to pay interest on the Series A Debentures held by
persons other than the Sentient Entities.
(ii) If there is a Holder of the Series A Debentures other than
AmerAlia or the Subsidiary, the Sentient Entities each agree that
through September 30, 2004, neither of them will declare an Event
of Default on any Debentures they hold solely for the basis of
non-payment of amounts due under the Debentures unless one or
more other holders of Series A Debentures other than AmerAlia or
the Subsidiary declares an Event of Default under the Series A
Debentures such persons hold. If any other person gives the
Company notice of the existence of an Event of
Securityholder Agreement
Page 12 of 19
Default under the Series A Debentures, the Sentient Entities will
have all of the rights granted to them under any and all of the
Debentures they then hold, the security agreement pursuant to
which the Company and the Subsidiary have granted a security
interest to collateralize the Debentures, as well as their rights
under any other agreement relating to that indebtedness.
(iii) AmerAlia agrees that if it refinances its obligations that are
collateralized by the Series A Debentures, so that the Series A
Debentures are released from any pledge or other similar
obligation, AmerAlia will not declare an Event of Default on the
Series A Debentures unless and until the Sentient Entities first
declares an Event of Default with respect thereto. Nothing in
this paragraph prevents AmerAlia from granting a security
interest in the Series A Debentures it holds at any time
(provided that such grant complies with the provisions of Section
2.04 hereof), upon which grant the agreements set forth in this
paragraph are suspended until such time as the Series A
Debentures are released from such arrangement
(iv) The Subsidiary agrees that it will not declare an Event of
Default on the Series A Debentures unless and until the Sentient
Entities first declare an Event of Default with respect thereto.
Nothing in this paragraph prevents the Subsidiary from granting a
security interest in the Series A Debentures it holds at any time
(provided that such grant complies with the provisions of Section
2.04 hereof), upon which grant the agreements set forth in this
paragraph are suspended until such time as the Series A
Debentures are released from such arrangement.
(b) The Sentient Entities' Exchange Rights. Following the approval of a
majority of the shares of AmerAlia Common Stock voting at a meeting of
shareholders at which a quorum is present, the Holder will have the
right (and AmerAlia hereby grants such right to the Holder) to
exchange all of the Series B1 Debentures or all of the Series B2
Debentures, together with all of the certificates representing shares
of NSI Common Stock they hold or both for shares of AmerAlia Common
Stock as follows (the "Exchange Rights"):
(i) Right to Exchange. The Sentient Entities may exchange all (but
not less than all) of the principal amount of the Series B1
Debentures or the Series B2 Debentures or both, plus accrued and
unpaid interest on such Series B1 Debentures or Series B2
Debentures they then hold (or if the Sentient Entities have
converted the Series B2 Debentures into shares of NSI Common
Stock, the remaining Series B Debentures and all shares of NSI
Common Stock they then hold) and Contingent Interest on such
Series B1 Debentures or Series B2 Debentures (as defined therein)
at any time after the earlier of:
1) the Company provides notice that it intends to prepay the
Series B1 Debentures or the Series B2 Debentures, as
appropriate; and
2) September 30, 2004.
(ii) Exchange Rate for the Debenture. AmerAlia will issue shares of
AmerAlia Common Stock to the Sentient Entities when both of the
Sentient Entities present all of the Series B1 Debentures or all
of the Series B2 Debentures, or both, together with all of the
certificates representing shares of NSI Common Stock they hold at
the office of AmerAlia or any transfer agent for the AmerAlia
Common Stock, for that number of shares of AmerAlia Common Stock
that is equal to the quotient obtained by dividing the unpaid
principal amount of the Series B1 Debentures and/or Series B2
Debentures (plus accrued but unpaid interest and Contingent
Interest, if owed) by the Exchange Price.
Securityholder Agreement
Page 13 of 19
(iii)Exchange Rate for the NSI Common Stock. AmerAlia will issue
shares of AmerAlia Common Stock to the Sentient Entities when
both of the Sentient Entities present all of the shares of NSI
Common Stock they own together with all of the Series B2
Debentures they then hold to AmerAlia or any transfer agent for
the AmerAlia Common Stock, into that number of shares of AmerAlia
Common Stock that is equal to the quotient obtained by dividing
the NSI Share Value (as defined below), by the Exchange Price.
For the purposes of the preceding sentence, the "NSI Share Value"
means the product of:
- the number of shares of NSI Common Stock to be
exchanged
- divided by the total number of shares of the NSI Common
Stock issued and outstanding
- multiplied by the Subsidiary's Adjusted EBITDA
- multiplied by 5.
For purposes of this section, the Subsidiary's Adjusted EBITDA
shall be the higher of (i) the Subsidiary's Adjusted EBITDA for
the 12-month period prior to the exchange or (ii) the average of
the two 12-month periods prior to the exchange.
(iv) Adjusted EBITDA. If Sentient disagrees with the Adjusted EBITDA
amounts provided by the Subsidiary, Sentient shall provide notice
to the Subsidiary within 15 calendar days of receiving such
information that it disagrees with the Adjusted EBITDA amounts.
After providing notice, Sentient may then have the Subsidiary's
auditor audit the Adjusted EBITDA amounts at Sentient's expense.
(v) Mechanics of Exchange. In order to complete the exchange for
AmerAlia Common Stock, the Sentient Entities shall: (i) surrender
all of the Series B1 Debentures or all of the Series B2
Debentures and (if issued) the NSI Common Stock, or both, duly
endorsed, at the office of AmerAlia, or of any transfer agent for
the AmerAlia Common Stock, and (ii) give written notice to the
Subsidiary at such office that Sentient Entities elect to
exchange all of the Series B1 Debentures or all of the Series B2
Debentures and (if issued) the NSI Common Stock, or both, and
shall state therein the dollar amount of all of the Series B1
Debentures or all of the Series B2 Debentures or the NSI Share
Value of the NSI Common Stock being exchanged. Thereafter,
AmerAlia shall issue and deliver at such office to Sentient
Entities a certificate or certificates for the number of shares
of AmerAlia Common Stock to which each of the Sentient Entities
is entitled. Such exchange shall be deemed to have been made
immediately prior to the close of business on the date (the
"Exchange Date") that the Sentient Entities have accomplished
both the surrender of the certificate or certificates required by
clause (i) and the written notice required by clause (ii), and
the person entitled to receive the shares of AmerAlia Common
Stock issuable upon such exchange shall be treated for all
purposes as the record holder of such shares from that date
forward.
(vi) Cancellation of Exchanged Shares or Debentures. Upon exchange of
all of the Series B1 Debentures or all of the Series B2
Debentures and the NSI Common Stock, or both, for AmerAlia Common
Stock, the Series B Debentures or NSI Common Stock, as the case
may be, so exchanged will be cancelled and no longer outstanding.
(vii)Fractional Shares. No fractional shares of AmerAlia Common Stock
shall be issued in exchange for the Series B1 Debentures or
Series B2 Debentures or the NSI Common Stock. In lieu of any
fractional share to which the Sentient Entities would otherwise
be entitled, AmerAlia shall pay cash based on the Exchange Price.
Securityholder Agreement
Page 14 of 19
(viii) Obligation to Reserve Shares. AmerAlia shall reserve out of its
authorized but unissued shares of AmerAlia Common Stock
52,000,000 shares of AmerAlia Common Stock issuable upon exchange
of all of the Series B1 Debentures or all of the Series B2
Debentures, or both.
1) AmerAlia may reduce the number of reserved shares to that
amount reasonably deemed to be sufficient to satisfy the
exchange right under the Series B1 Debentures or Series B2
Debentures and the NSI Common Stock, based on the average
price of AmerAlia Common Stock during any 30 day period.
2) AmerAlia will increase the number of reserved shares at
the written request of the Sentient Entities if the average
price of AmerAlia Common Stock during any 30 day period
reduces to a price where the number of reserved shares is
not sufficient to meet the Exchange Rights.
Section 3.16 Agreement with Respect to Loans
On each of the dates below, at the request of the Sentient Entities, the Company
shall lend to Sentient Global Resources Fund I, L.P. up to the following maximum
amount:
$
-------
March 19, 2004 180,000
February 20, 2005 160,000
February 20, 2006 140,000
February 20, 2007 120,000
These loans shall be made at zero percent interest and shall be due February 19,
2008. To the extent that the Company makes a payment of principal pursuant to
the Debentures held by Sentient Global Resources Fund I, L.P., Sentient Global
Resources Fund I, L.P. shall repay a proportional amount of these loans and the
allowable loan amounts in subsequent years will be proportionately reduced. To
the extent there is an Event of Default under the Debentures, any amounts
outstanding under these loans shall be set off against amounts owed to the
Sentient Entities pursuant to the Debentures; provided, that such set off shall
first apply against the amounts owed to the Debentures held by Sentient Global
Resources Fund I, L.P. and subsequently against the amounts owed to the
Debentures held by Sentient Global Resources Trust No. I, if necessary.
ARTICLE IV. ADDITIONAL DOCUMENTS. Each Securityholder hereby covenants and
agrees to execute and deliver any additional documents necessary or desirable,
in the reasonable opinion of any Securityholder or two-thirds of the Directors
of the Company, to carry out the intent of this Agreement.
ARTICLE V. TERMINATION. This Agreement shall terminate and shall have no further
force or effect as of the Expiration Date, without further action or notice of
any Securityholder.
ARTICLE VI. MISCELLANEOUS.
Section 6.01 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then 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 affected, impaired or invalidated.
Securityholder Agreement
Page 15 of 19
Section 6.02 Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by any of
the parties without prior written consent of the others.
Section 6.03 Amendments and Modifications. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
Section 6.04 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that the Company and the Securityholders shall be irreparably harmed
and that there shall be no adequate remedy at law for a violation of any of the
covenants or agreements of a Securityholder set forth herein. Therefore, it is
agreed that, in addition to any other remedies that may be available to the
Company and the other Securityholders upon such violation, the Company and the
other Securityholders shall each have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to the Company or the other Securityholders at law or in equity.
Section 6.05 Dispute Resolution.
(a) Senior Officers to Resolve. All claims, disputes or other
controversies arising out of, or relating to, this Agreement and any
other claims, disputes or controversies arising out of or relating to
the management or operations of the Company or the Subsidiary
(hereinafter collectively referred to as a "Dispute") shall initially
be submitted to a senior officer or a member of the board of directors
from each party to a Dispute for resolution by mutual agreement
between said officers (which senior officers or director will not be a
Person who is involved in the regular operations of the Company or the
Subsidiary). Any mutual determination by the senior officers shall be
reduced to writing and become final and binding upon the parties.
However, should such senior officers fail to arrive at a mutual
decision as to the Dispute within 20 days after notice to the senior
officers of the Dispute, the parties shall then attempt to resolve
such Dispute by mediation in accordance with the terms and provisions
set forth in the following paragraph.
(b) Mediation Followed by Binding Arbitration. The parties agree that if
the Senior Officers are unable to resolve the Dispute pursuant to the
preceding paragraph, either party may submit the Dispute to JAMS, Inc.
(xxx.xxxxxxx.xxx and 000-000-0000, "JAMS"), or its successor, for
mediation, and if the Dispute is not resolved through mediation, then
it shall be submitted to JAMS, or its successor, for final and binding
arbitration. Any party to this Agreement may commence mediation by
providing to JAMS and the other parties a written request for
mediation, setting forth the subject of the Dispute and the relief
requested. The parties will cooperate with JAMS and with one another
in selecting a mediator from JAMS' panel of neutrals, and in
scheduling the mediation proceedings promptly, not later than 20 days
after such request for mediation. The parties covenant that they will
participate in the mediation in good faith, and that they will share
equally in its costs. All offers, promises, conduct and statements,
whether oral or written, made in the course of the mediation by any of
the parties, their agents, employees, experts and attorneys, and by
the mediator or any JAMS employees, are confidential, privileged and
inadmissible for any purpose, including impeachment, in any
arbitration or other proceeding involving the parties, provided that
evidence that is otherwise admissible or discoverable shall not be
rendered inadmissible or non-discoverable as a result of its use in
the mediation. Any party may initiate arbitration with respect to the
Disputes submitted to mediation by filing a written demand for
arbitration at any time following the initial mediation session or 45
days after
Securityholder Agreement
Page 16 of 19
the date of filing the written request for mediation, whichever occurs
first. The mediation may continue after the commencement of
arbitration if the parties so desire. Unless otherwise agreed by the
parties, the mediator shall be disqualified from serving as arbitrator
in the case. The provisions of this Clause may be enforced by any
court of competent jurisdiction, and the party seeking enforcement
shall be entitled to an award of all costs, fees and expenses,
including attorneys' fees, to be paid by the party against whom
enforcement is ordered.
Section 6.06 Notices. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by a nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice to the other parties hereto):
IF TO THE COMPANY: IF TO AMERALIA
Natural Soda Holdings, Inc. AmerAlia, Inc.
00000 X. Xxxxx Xxxx Xx 00000 X. Xxxxx Xxxx Xx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attn: President Attn: President
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
IF TO SUBSIDIARY:
Natural Soda, Inc.
00000 X. Xxxxx Xxxx Xx
Xxxxxxxxxx, XX 00000
Attn: President
Tel: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY (WHICH DOES NOT CONSTITUTE NOTICE) TO:
Holland & Xxxx, LLP
000 X. Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Sentient Entities (or either of them):
Sentient Executive GP I, Limited
(on behalf of the General Partner of Sentient Global
Resources Fund 0, X.X.)
Xxxxx Xxxxx, Xxxxxxx Xxxxxx
XX Xxx 00000XXX
Xxxxxx Xxxx, Xxxxx Xxxxxx
Xxxxxx Xxxxxxx
Securityholder Agreement
Page 17 of 19
Attn: Xxx XxXxxxxxxx
Tel: (000) 000 0000
Fax: (000) 000 0000
Sentient (Aust) Pty Limited Sentient Asset Management Canada Limited
Trustee of Sentient Global Resources
Trust Xx. 0
Xxxxx 0, 00 Xxxxxx Xxxxxx 0000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxx, XXX 0000 Xxxxx 0000
Xxxxxxxxx Xxxxxxxx, Xxxxxx X0X-0X0 Xxxxxx
Attn: Xxxxx Xxxxxxx, Director Attn: Xxxx Xxxxxxx, Director
Tel: (000) 0000-0000 Tel: (000) 000-0000
Fax: (000) 0000-0000 Fax: (000) 000-0000
WITH A COPY (WHICH DOES NOT CONSTITUTE NOTICE) TO:
Xxxxx & Xxxxxx LLP
0000 Xxxxxx Xxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
If any party sends any notice to the Company, it will also send a copy of such
notice to the other parties in order for such notice to be effective.
Section 6.07 Governing Law. This Agreement shall be governed by the laws of the
State of Colorado, without reference to rules of conflicts of law.
Section 6.08 Entire Agreement. This Agreement contains the entire understanding
of the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings between the parties with respect to such subject
matter.
Section 6.09 Effect of Headings. The section headings are for convenience only
and shall not affect the construction or interpretation of this Agreement.
Section 6.10 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
Section 6.11 Authority. Each of the signatories on behalf of the Parties hereto
represents and warrants to each of the other parties that he has executed this
Agreement on behalf of the party for whom such signature appears with all
necessary corporate, partnership, trust, or other authority (as the case may
be).
Securityholder Agreement
Page 18 of 19
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
NATURAL SODA HOLDINGS, INC. AMERALIA, INC.
By: /s/ XXXX X XXXX By: /s/ XXXX X XXXX
------------------------- --------------------------
Xxxx X Xxxx, Chairman Xxxx X Xxxx, Chairman
NATURAL SODA, INC.
By: /s/ XXXX X XXXX
-------------------------
Xxxx X Xxxx, Chairman
SENTIENT EXECUTIVE GP I, LIMITED, SENTIENT (AUST) PTY. LIMITED,
ON BEHALF OF THE GENERAL PARTNER OF AS TRUSTEE OF SENTIENT GLOBAL RESOURCES
SENTIENT GLOBAL RESOURCES FUND I, L.P. TRUST NO. 1
By /s/ XXXXX XXXXXXX
By: /s/ XXXX X. XXXXXXX -------------------------------
--------------------------- Xxxxx Xxxxxxx, Director
Xxxx X. Xxxxxxx, Director
SECURITYHOLDER AGREEMENT
Page 19 of 19
