EXHIBIT J
Shareholder Voting Agreement
This SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and
entered into as of March 19, 2004, by and among Xxxxxxxxxx X. Mars, as Trustee
for the Xxxxxxxxxx Xxxxxx Mars Trust, dated February 5, 1975, as amended (the
"Trust"), Xxxxxx X.X. xxx Xxxxxx, Xxxx X. Xxxx, Xxxx X. Xxxxxxxxx, Xxxxxx X.
Xxxxxxx, Xxxxxxxx X. Xxxxxx and Xxxxx X. Xxxxx (the "Shareholder Directors") and
AmerAlia, Inc. ("AmerAlia" and, together with the Trust and the Shareholder
Directors, the "Parties").
WHEREAS, AmerAlia, through its direct subsidiary, Natural Soda
Holdings, Inc., ("NSHI"), will obtain long term financing from 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")
and other entities, through NSHI's issuance of certain debentures, a portion of
the proceeds of which will be used to repay the short term financing received by
the Sentient Entities to acquire the assets and business of White River
Nahcolite Minerals Ltd. Liability Co. (the "Acquisition");
WHEREAS, the Shareholder Directors intend to enter into a
shareholder voting agreement between themselves after they have fully considered
the transaction and their duties with the intention that they will vote their
shares in accordance with that voting agreement; and
WHEREAS, the Trust intends to vote its shares of common stock of
AmerAlia in the same manner as each of the Shareholder Directors agrees to votes
his shares.
NOW, THEREFORE, in connection with the Acquisition and the
financing, in consideration therefor, and for other good and valuable
consideration, the receipt and adequacy whereof each of the Parties hereby
acknowledges:
1. Acquisition Transaction and Financing Vote by Trust. The Trust
shall vote one-sixth (1/6) of the aggregate number of shares of common stock of
AmerAlia, the Trust holds (directly or indirectly) either for or against the
ratification of the Acquisition and financing of the Acquisition (including any
aspect of the financing that is voted on separately) in the manner in which each
Shareholder Director is contractually obligated and approval of all related
matters to vote his own shares of common stock of AmerAlia with respect to the
Acquisition. Accordingly, the Trust shall vote one-sixth (1/6) of its holdings
of common stock of AmerAlia in the manner that Xxxxxx X.X. xxx Xxxxxx is
contractually obligated to vote his shares of common stock of AmerAlia,
one-sixth (1/6) of its holdings of common stock of AmerAlia in the manner that
Xxxx X. Xxxx is contractually obligated to vote his shares of common stock of
AmerAlia, one-sixth (1/6) of its holdings of common stock of AmerAlia in the
manner that Xxxx X. Xxxxxxxxx is contractually obligated to vote his shares of
common stock of AmerAlia, one-sixth (1/6) of its holdings of common stock of
AmerAlia in the manner that Xxxxxx X. Xxxxxxx is contractually obligated to vote
his shares of common stock of AmerAlia, one-sixth (1/6) of its holdings of
common stock of AmerAlia in the manner that Xxxxxxxx X. Xxxxxx is contractually
obligated to vote his shares of common stock of AmerAlia and one-sixth (1/6) of
its holdings of common stock of AmerAlia in the manner that Xxxxx X. Xxxxx is
contractually obligated to vote his shares of common stock of AmerAlia. As long
as the Shareholder Directors in named in this section have entered into an
agreement to vote each of their shares, the foregoing agreement of the Trust to
vote its shares shall not be affected if one or more of the Shareholder
Directors (i) ceases to be a director, (ii) sells all or any portion of his
shares in AmerAlia, or (iii) otherwise does not vote or is not eligible to vote
his shares at the meeting where any aspect of the Acquisition is voted on by the
shareholders of AmerAlia.
2. Irrevocable Proxy. If the Trust does not vote in accordance with
Section 1, the Trust hereby grants to, and is deemed to have executed in favor
of, Xxxx X. Xxxx and Xxxxxx X.X. xxx Xxxxxx, or either of them, an irrevocable
proxy to vote or to give written consent, in accordance with the provisions of
Section 1, with respect to the matters described in Section 1. This irrevocable
proxy is coupled with an interest (that interest shall include, but not be
limited to, this Shareholder Voting Agreement, as referenced in Section
16-10a-722(4) of the Utah Revised Business Corporation Act) and is intended to
last until September 19, 2005 as permitted by Section 16-10a-722(3) of the Utah
Revised Business Corporation Act.
3. Matters Other than the Acquisition. With respect to all matters
requiring a vote of the holders of shares of common stock of AmerAlia, other
than the Acquisition, for a period of 24 months from the date hereof: (a) if
directed by the board of directors of AmerAlia, the Trust shall attend such
meeting at which such vote is to be taken, in person or by proxy, for quorum
purposes and (b) the Trust agrees that it will abstain from voting any and all
shares of common stock of AmerAlia it holds (directly or indirectly); provided,
however that if during such period the Sentient Entities request that the Trust
vote its shares of common stock, the Trust agrees to vote any shares it owns for
or against any proposal submitted to the shareholders (except submissions
related to the Acquisition) in the same proportion as the other shareholders
vote their shares (both for and against any such proposal).
4. Specific Enforcement. The parties acknowledge that any violation
of this Agreement will cause irreparable harm to the parties hereto. As a
consequence, the parties agree that if any party fails to abide by the terms of
this Agreement, any other party will be entitled to specific performance,
including the immediate issuance of a temporary restraining order or preliminary
injunction enforcing this Agreement, and to judgment for damages caused by such
breach, and to any other remedies provided by applicable law. This agreement is
intended to and shall be specifically enforceable pursuant to Section 16-10a-731
of the Utah Revised Business Corporation Act.
5. Third Party Beneficiary. The parties hereto understand and agree
that this Agreement is entered into with the intent that the Sentient Entities
are intended third party beneficiaries and that they or either of them may
enforce the obligations described herein and that this Agreement may not be
modified or amended without the prior written consent of the Sentient Entities.
6. Law Governing. This Agreement shall be governed by and construed
in accordance with the laws of the State of Utah.
7. Attorney Fees. In the event an arbitration, suit or action is
brought by any person to enforce any of its terms, or in any appeal therefrom,
it is agreed that the prevailing party shall receive reasonable attorneys fees
to be fixed by the arbitrator, trial court, and/or appellate court.
8. Entire Agreement. This Agreement contains the entire
understanding between and among the parties and supersedes any prior
understandings and agreements among them respecting the subject matter of this
Agreement. The Shareholder Directors have entered into another Shareholder
Voting Agreement dated to be effective as of March 19, 2004 and that agreement
is not intended to be affected by the terms and conditions of this Agreement.
9. Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of this Agreement.
10. Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the
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application of such provision to persons or circumstances other than those as to
which it is held invalid, shall not be affected thereby.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute a single agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the day and year first above written.
XXXXXXXXXX X. MARS AS THE TRUSTEE OF THE
XXXXXXXXXX XXXXXX MARS TRUST DATED
FEBRUARY 5, 1975, AS AMENDED
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx Attorney in Fact for
Xxxxxxxxxx X. Mars, as Trustee of the
Xxxxxxxxxx Xxxxxx Mars Trust
XXXXXX X.X. XXX XXXXXX
/s/ XXXXXX X.X. XXX XXXXXX
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XXXX X. XXXX
/s/ XXXX X. XXXX
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XXXX X. XXXXXXXXX
/s/ XXXX X. XXXXXXXXX
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XXXXXX X. XXXXXXX
/s/ XXXXXX X. XXXXXXX
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XXXXXXXX X. XXXXXX
/s/ XXXXXXXX X. XXXXXX
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XXXXX X. XXXXX
/s/ XXXXX X. XXXXX
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AMERALIA, INC.
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: President
Voting Agreement
Mars Trust
