Exhibit 10.31
VOTING TRUST AGREEMENT, made as of the 27th day of August, 1997, between
XXXXXX XXXXXX, with an address c/o Rosenman & Colin LLP, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attn.: Xxxxxx X. Xxxxxxxx, Esq., as Trustee
(hereinafter the "Trustee") and ARGENTUM LLC, a Limited Liability Company
incorporated and existing under the laws of the Cayman Islands (hereinafter the
"Beneficiary"), with an address c/o Xxxxxx X. Xxxxx & Co., Xx. 00 Xxxxxxx
Xxxxxx, P.O. Box N-4877, Nassau, Bahamas, Attn.: Xxxxx Xxxx Xxxxx, Esq..
W I T N E S S E T H :
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WHEREAS, the Beneficiary is the holder of Two Million Seven Hundred Thirty-
Nine Thousand One Hundred Fifty-Three and Ninety-Three One-Hundredths
(2,739,153.93) ordinary shares, par value US $0.01 per share (each a "Share" and
collectively the "Shares") of Apex Silver Mines Limited, a Cayman Islands
corporation (the "Company"); and
WHEREAS, in order to vest in the Trustee the sole right to vote the Shares
and all investment authority and power with respect to the Shares, the
Beneficiary is willing to deposit the Shares owned by it with the Trustee under
this Agreement for the period commencing on the date hereof and ending upon the
termination of this Agreement in accordance with its terms.
NOW, THEREFORE, the parties hereto agree as follows:
1. Delivery to Trustee of Certificates for Shares. Simultaneously with
the execution and delivery of this Agreement, the Beneficiary shall deliver to
the Trustee certificates representing an aggregate of Two Million Seven Hundred
Thirty-Nine Thousand One Hundred Fifty-Three and Ninety-Three One-Hundredths
(2,739,153.93) Shares, representing all of the Shares held by the Beneficiary,
endorsed in blank or accompanied by duly completed instruments of share transfer
executed by the Beneficiary. Immediately subsequent to the execution and
delivery of this Agreement and such instruments of share transfer, the Trustee
shall deliver a copy of this Agreement to the Company, shall surrender to the
Company said certificates and instruments of share transfer, and the Trustee and
Beneficiary shall take all further necessary or appropriate actions to cause the
Directors to enter the name of the Trustee in the register of Members in respect
thereof and to cancel said certificates and to issue to the Trustee a new
certificate, representing Two Million Seven Hundred Thirty-Nine Thousand One
Hundred Fifty-Three and Ninety-Three One-Hundredths (2,739,153.93) Shares, in
the name of the Trustee. Said new certificate shall be held by the Trustee, in
trust, for the benefit of the Beneficiary and the heirs, executors, successors
and/or assigns of the Beneficiary (each sometimes hereinafter referred to as a
"Beneficiary"), subject to the terms and conditions hereinafter set forth.
2. Delivery to Trustee of Certificates for Additional Shares. Any and all
certificates for additional shares of the Company issued to the Beneficiary
while it is the Beneficiary under this Agreement shall be in like manner
endorsed and delivered to the Trustee together with a duly completed and
executed form of share transfer to be held by him subject to the terms and
conditions hereof. All such additional shares shall be deemed to be "Shares"
for all purposes of this Agreement.
3. Delivery of Trustee's Certificates. Upon the delivery to the Trustee
of the certificates and forms of share transfer referred to in paragraph 1
hereof, the Trustee shall deliver to the Beneficiary a certificate (the
"Trustee's Certificate") for the number of Shares delivered to the Trustee by
the Beneficiary, substantially in the form hereinafter set forth. Upon each
receipt of certificates for additional shares issued to a Beneficiary, the
Trustee shall deliver to such Beneficiary a Trustee's Certificate for the number
of shares so deposited, substantially in the form hereinafter set forth.
The Trustee's Certificate (the terms and provisions of which are a part of
this Agreement) shall be substantially in the following form:
TRUSTEE'S CERTIFICATE
This is to certify that the undersigned Trustee has received a
certificate or certificates issued in the name of Xxxxxx Xxxxxx, Trustee,
evidencing the ownership of ___ shares of a nominal or par value of US
$0.01 each of Apex Silver Mines Limited, a Cayman Islands corporation (the
"Shares"), and that the Shares are held subject to all the terms and
conditions of that certain Agreement (the "Voting Trust Agreement"), dated
as of August 27, 1997, by and between Argentum LLC and Xxxxxx Xxxxxx, as
Trustee. During the term of the Voting Trust Agreement, the Trustee shall,
as provided in the Voting Trust Agreement, possess and be entitled to
exercise the right to vote and otherwise represent all of the Shares for
all purposes, and to exercise all investment authority and power with
respect to all of the Shares for all purposes, it being agreed that no
voting right and no investment authority or power shall pass to the holder
hereof by virtue of the ownership of this Certificate.
This Certificate is assignable with the right to issuance of a new
certificate of like tenor only upon the surrender to the Trustee of this
certificate properly endorsed. Upon the termination of the Voting Trust
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Agreement, this certificate shall be surrendered to the Trustee by the
holder hereof upon delivery to the holder hereof of a certificate
representing the Shares not sold or otherwise disposed of by the Trustee
pursuant to the Voting Trust Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
____ day of _______________, ____.
______________________
Xxxxxx Xxxxxx, Trustee
Each Trustee's Certificate may be transferred by endorsement by the person
to whom issued, or by his, her or its attorney-in-fact, or by the administrator
or executor of his, her or its estate, by delivery of such Trustee's Certificate
so endorsed to the Trustee; but such transfer shall not be evidence to or be
binding upon the Trustee until such Trustee's Certificate is surrendered to the
Trustee and the transfer is entered upon the "Trustee's Certificate Book", which
shall be kept by the Trustee to show the names of the parties by whom and to
whom transferred, the numbers of the certificates, the number of shares and the
date of transfer. No new Trustee's Certificate shall be issued until the
Trustee's Certificate for the shares represented thereby shall have been
surrendered to and cancelled by the Trustee, and the Trustee shall preserve the
certificates so cancelled as vouchers. In case any Trustee's Certificate shall
be claimed to be lost or destroyed, a new Trustee's Certificate may be issued in
lieu thereof, upon such proof of loss as may be required by the Trustee.
4. Voting and Investment Authority and Power of Trustee.
a. During the term of this Agreement, the Trustee shall have the
sole and exclusive voting and investment authority and power with respect to the
Shares held by the Trustee hereunder. The Trustee shall have the power to vote
the Shares held by the Trustee at all regular and special meetings of the
shareholders of the Company and may vote for, do or assent or consent to and
shall have all the powers, rights and privileges of a shareholder of the
Company.
b. The Trustee may vote in person or by proxy, and a proxy in
writing signed by the Trustee shall be sufficient authority to the person named
therein to vote all the Shares held by the Trustee hereunder at any meeting,
regular or special, of the shareholder of the Company.
c. The Trustee shall have complete investment authority and power
with respect to the Shares held by the Trustee hereunder, including, without
limitation, the authority and power to sell or otherwise dispose of any or all
of the Shares on such terms and subject to such conditions, as the Trustee in
his sole discretion
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shall deem appropriate. The Beneficiary and each holder of Trustee's
Certificates hereby appoints the Trustee as his, her or its attorney-in-fact to
execute any documents or instruments necessary (in the determination of the
Trustee) to effect such sale or disposition. Without limiting the foregoing,
each holder of Trustee's Certificates hereby agrees, following written
notification from the Trustee of any such contemplated sale or other disposition
of Shares, to surrender to the Trustee at the time and place indicated in such
notice, his, her or its Trustee's Certificates. The Trustee, promptly following
the closing of any such sale or other disposition of Shares, shall issue and
deliver to each such holder of Trustee's Certificates: (a) a replacement
Trustee's Certificate, reflecting such holder's pro rata interest in the unsold
Shares, as shown on the books of the Trustee, and (b) such holder's pro rata
interest in the net proceeds of any such sale or other disposition of Shares
(after deduction of expenses incurred in connection with such sale or other
disposition), as shown on the books of the Trustee. Upon such surrender of such
Trustee's Certificates, and such payment of such net proceeds, this Agreement
shall terminate as to the shares so sold or otherwise disposed of.
5. Distribution of Cash Dividends.
(a) The Trustee shall distribute directly any cash dividends or
distributions declared and paid on the Shares deposited hereunder (other than
dividends or distributions made in the form of voting securities of the Company)
to the holders of Trustee's Certificates in proportion to their respective
interests therein as shown on the books of the Trustee, such distribution to be
equivalent to the dividends or distribution which each respective holder would
have been entitled to receive had the Shares not been deposited hereunder.
(b) The Trustee shall receive and hold, subject to the terms of this
Agreement, any voting securities of the Company issued in respect thereof by
reason of any dividend, distribution, capital reorganization, stock split,
combination or the like and shall issue and deliver Trustee's Certificates
therefor to the holders of the Trustee's Certificates in proportion to their
respective interests therein as shown on the books of the Trustee.
6. Term of Agreement. This Agreement and the trust hereby created shall
terminate on December 31, 1997. Until termination in accordance with the terms
of this Agreement, neither this Agreement nor the trust hereby created shall be
revocable or amendable, in whole or in part.
7. Liability for Willful Misconduct. The Trustee shall not be liable for
any error of judgment or mistake of fact or law, or for any act or omission
undertaken in good faith in connection with his powers and duties under this
Agreement, except for his own willful misconduct or gross negligence. The
Trustee shall not be
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liable for acts or omissions of any employee or agent of the Company. The
Trustee shall not be liable for acting in reliance on any notice, request,
consent, certificate, instruction, or other paper or document or signature
believed to be genuine and to have been signed by the proper party or parties.
The Trustee may consult with legal and other counsel of his choosing, and any
act or omission undertaken by the Trustee in good faith in accordance with the
opinion of legal or other counsel shall be binding and conclusive on the parties
to this Agreement.
8. Binding Agreement. Every registered holder of a Trustee's
Certificate, and every bearer of a Trustee's Certificate properly endorsed in
blank or properly assigned, by the acceptance or holding thereof, shall be
deemed conclusively for all purposes to have assented to this Agreement and to
all of its terms, conditions and provisions and shall be bound thereby with the
same force and effect as if such holder or bearer had executed this Agreement.
Without limiting the foregoing, this Agreement shall be binding upon and inure
to the benefit of each of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
9. Severability. The invalidity of any term or provision of this
Agreement shall not affect the validity of the remainder of this Agreement.
10. Governing Law. Regardless of the place of execution, delivery,
performance or any other aspect of this Agreement, this Agreement and all of the
rights of the parties under this Agreement shall be governed by, construed under
and enforced in accordance with the substantive law of New York without regard
to conflicts of law principles.
11. No Waiver. No waiver of any covenant or condition or the breach of
any covenant or condition of this Agreement shall be deemed to constitute a
waiver of any subsequent breach of such covenant or condition nor justify or
authorize a nonobservance upon any occasion of such covenant or condition or any
other covenant or condition of this Agreement.
12. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with regard to the subject matter thereof, and shall
not be modified or amended except in a writing executed by both of the parties
hereto.
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IN WITNESS WHEREOF, the Trustee and the Beneficiary have executed this
Agreement as of the date set forth above.
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, as Trustee
ARGENTUM LLC
By: /s/ Caledonian Bank & Trust Limited per
Vijayabalan Muregeshu
-----------------------------------------
Name and Title
Caledonian Bank & Trust Limited
Secretary
per Vijayabalan Muregeshu
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