EXHIBIT 2
VOTING AGREEMENT
Voting Agreement dated as of October 8, 2001, between Olympus Capital
Holdings Asia I, L.P. ("OLYMPUS"), the other holders of the Convertible
Debentures (as defined herein) (the "DEBENTUREHOLDERS") and Asia Pacific
Resources Ltd. (the "COMPANY").
RECITALS:
(a) The Company has outstanding U.S. $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 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 U.S. $17,560,000 of the
Convertible Debentures.
(b) Olympus has negotiated a proposed restructuring of the share and loan
capital of the Company (the "RESTRUCTURING"), which would involve the conversion
(the "CONVERSION") of all principal, interest and premium due on the Convertible
Debentures into common shares of the Company and warrants to purchase shares or
other securities of the Company (the "WARRANTS").
(c) To facilitate the Restructuring, it is desirable for the
Debentureholders and Olympus to co-ordinate their actions as shareholders and to
provide for an orderly market in the common shares of the Company (the "SHARES")
following the Conversion.
(d) It is therefore a condition of the Conversion that the Debentureholders
enter into this Agreement with Olympus and the Company.
(e) The Debentureholders have agreed that they will and will cause all
Shares received pursuant to the Conversion (including any Shares which may be
acquired on the exercise of Warrants) held by or for them or by their
subsidiaries or over which they otherwise exercise direction or control (in
respect of each Debentureholder, collectively "THAT DEBENTUREHOLDER'S SHARES"),
to be voted in accordance with the terms set out below.
In consideration of the foregoing and the mutual agreements contained
herein (the receipt and adequacy of which are acknowledged), the parties agree
as follows:
ARTICLE 1
VOTING OF SHARES AND RELATED MATTERS
1.1 Voting of Shares.
Upon the terms and subject to the conditions set forth herein, each
Debentureholder agrees with Olympus that it will vote That Debentureholder's
Shares as directed by Olympus in respect of:
(a) the slate of directors put forward by Olympus for election at the
Company's shareholders' meetings from time to time, the majority of
which slate shall be Olympus' nominees and the balance any nominees
put forward by management of the Company (which may from time to time
include a nominee of Crew Development Corporation);
(b) any proposed amendments to the memorandum or articles (or equivalent
constitutional documents) of the Company;
(c) the approval of any stock option or other executive compensation plan
for the Company;
(d) the election of the auditors for the Company;
(e) any other fundamental changes in the Company requiring shareholders'
approval, including without limitation, amalgamation, continuance,
arrangement, liquidation, dissolution or sale of all or substantially
all of the Company's assets.
1.2 Shares held by Third Parties.
Each Debentureholder agrees with Olympus to direct or otherwise cause any
of That Debentureholder's Shares registered in the names of third parties, to be
voted in the manner prescribed in 1.1 above.
1.3 Number of Shares.
Upon the Conversion, each Debentureholder agrees with Olympus that it will
advise Olympus of the number of That Debentureholder's Shares. Each
Debentureholder agrees with Olympus that it will inform Olympus of any change in
the number of That Debentureholder's Shares within three (3) business days of
such change. Each Debentureholder acknowledges and agrees that Olympus may
disclose such information to the Company for purposes of administering and
enforcing this Agreement. The Company acknowledges and agrees that, absent its
actual knowledge to the contrary, it will accept such details of Share ownership
as conclusive for purposes of this Agreement.
1.4 Olympus Undertaking.
In consideration of each Debentureholder entering into this Agreement,
Olympus covenants and agrees with each Debentureholder that, in exercising its
rights, privileges and powers under this Agreement, Olympus shall act with a
view to the best interests of the Debentureholders and Olympus collectively and
shall ensure that Olympus and the Debentureholders are treated equally in all
material respects.
ARTICLE 2
RESTRICTIONS ON TRANSFER
2.1 Disposition of Convertible Debentures.
Each Debentureholder agrees with Olympus and the Company that so long as
this Agreement remains in force the Debentureholder will not, and will not
permit, any Convertible Debentures beneficially held by it or its subsidiaries
or over which it otherwise exercises direction or control, to be transferred,
sold or assigned, except:
(a) pursuant to any offer or proposal made to the shareholders of the
Company generally or pursuant to an Alternative Transaction (as
defined in Article 3); or
(b) with the approval of the board of directors of the Company.
2.2 Disposition of Shares.
Each Debentureholder agrees with Olympus and the Company that, upon and
following the Conversion, the Debentureholder will not:
(a) for a period of two months, transfer, sell or assign any of That
Debentureholder's Shares;
(b) for a period of eighteen months, transfer, sell or assign within any
six months period any more than one-third of That Debentureholder's
Shares received upon the Conversion; or
(c) for a period of eighteen months, transfer, sell or assign That
Debentureholder's Shares comprising 10% or more of the fully diluted
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 a single
purchaser
unless the transfer, sale or assignment is made pursuant to an offer or proposal
made to shareholders of the Company generally.
ARTICLE 3
ALTERNATIVE TRANSACTIONS
3.1 Acknowledgement and Agreement
The parties acknowledge that prior to the Conversion, the Company may
propose a transaction which constitutes an "Alternative Transaction". For these
purposes, an "Alternative Transaction" would constitute one or more of the
following: a merger, amalgamation, statutory arrangement, takeover bid, sale or
joint venture of the Somboon or Udon potash properties in northern Thailand or
other substantial assets, issuance of shares or similar transaction involving
the Company provided that such transaction will only constitute an "Alternative
Transaction" 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 shall
disclose such details to a Debentureholder if:
(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 Debentureholder receiving such details has 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 reasonably 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 holders of
Convertible Debentures on the date of Maturity (as then defined
in the Indenture);
(ii) provide for the payment in full, pursuant to the Indenture, of
all principal, interest and premium due to the holders of the
Convertible Debentures by a date approved by Olympus, which date
shall not be earlier than the date of Maturity (as then defined
in the Indenture); or
(iii) be subject to the prior approval of Olympus on behalf of the
Debentureholders.
To facilitate the implementation of an Alternative Transaction, each
Debentureholder acknowledges and agrees that Olympus shall have the power and
authority to approve the terms of any Alternative Transaction on its behalf and
bind all Debentureholders to the terms of such Alternative Transaction by means
of an Extraordinary Resolution passed pursuant to the Indenture.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 Representations, Warranties and Covenants of the Debentureholders.
Each Debentureholder represents, warrants and covenants as follows to
Olympus and acknowledge and confirm that Olympus is relying on such
representations, warranties and covenants in connection with the entering into
of this Agreement:
(a) NO VOTING ARRANGEMENTS. Except as set out in this Agreement, no person
has any written or oral agreement, or any right or privilege (whether
by law, pre-emptive or contractual) capable of becoming an agreement
relating to or restricting the exercise of any of the voting rights
attaching to That Debentureholder's Shares and, for greater certainty,
the Debentureholder has and will have the unfettered and absolute
right to exercise the votes attaching to That Debentureholder's
Shares.
(b) NO CONTRAVENTION. The fulfilment of the Debentureholder's obligations
hereunder are not in contravention of any contracts or instruments to
which the Debentureholder is a party or by which it is bound.
(c) NO ACTIONS. The Debentureholder knows of no action, proceeding or
investigation pending or threatened involving the Debentureholder, or
which places in question the validity or enforceability of this
Agreement.
(d) NO SALES. The Debentureholder will not and will not permit during the
term of this Agreement its Debentures or That Debentureholder's Shares
to be sold, assigned, transferred or disposed of, directly or
indirectly, except pursuant to the terms of this Agreement.
ARTICLE 5
MISCELLANEOUS
5.1 Further Assurances.
From time to time after the date hereof, each party hereto shall, at the
request of any other party co-operate with and do all other things as may be
reasonably required to implement the transaction and to effectively carry out
the intent of this Agreement provided that in no circumstances shall this
Agreement
be construed as requiring a Debentureholder to provide a proxy in respect of
That Debentureholder's Shares to Olympus.
5.2 Disclosure Matters.
The Debentureholders agree to a summary of the number of Shares subject to
this Agreement being set out in any information circular or prospectus produced
by the Company and to this voting agreement being available for inspection until
the date of termination of this Agreement.
5.3 Amendments.
This Agreement may only be amended, supplemented or otherwise modified by
written agreement signed by the parties hereto.
5.4 Waiver.
(a) No waiver of any of the provisions of this Agreement shall be deemed
to constitute a waiver of any other provision (whether or not
similar), nor shall such waiver be binding unless executed in writing
by the party to be bound by the waiver.
(b) No failure on the part of a party to exercise, and no delay in
exercising any right under this Agreement shall operate as a waiver of
such right; nor shall any single or partial exercise of any such right
preclude any other or further exercise of such right or the exercise
of any right.
5.5 Successors and Assigns.
This Agreement shall become effective when executed by each of the parties
hereto and after that time shall be binding upon and enure to the benefit of the
parties and their respective successors and permitted assigns. Neither this
Agreement nor any of the rights or obligations under this Agreement shall be
assignable or transferable by a Debentureholder without the prior written
consent of the other parties hereto.
5.6 Severability.
If any provision of this Agreement shall be determined by an arbitrator or
any court of competent jurisdiction to be illegal, invalid or unenforceable,
that provision shall be severed from this Agreement and the remaining provisions
shall continue in full force and effect.
5.7 Attornment.
The parties agree that the courts of the Province of British Columbia will
have non-exclusive jurisdiction to determine all disputes and claims arising
between the parties.
5.8 Governing Law.
This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the Province of British Columbia and the federal
laws of Canada applicable therein.
5.9 Counterparts.
This Agreement may be executed in any number of counterparts (including
counterparts by facsimile) and all such counterparts taken together shall be
deemed to constitute one and the same instrument.
5.10 Interpretation.
For purposes of this Agreement, the term "subsidiary" and "subsidiaries"
shall have the meaning attributed to them in the Companies Act (British
Columbia).
5.11 Specific Performance.
Each Debentureholder hereby recognizes and acknowledges that a breach by it
of any covenants or agreements contained in this Agreement will cause the other
parties to sustain damages for which they would not have adequate remedy at law
for money damages, and therefore each Debentureholder agrees that in the event
of any such breach the aggrieved party shall be entitled to the remedy of
specific performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be entitled, at
law or in equity.
5.12 Termination.
This Agreement shall be binding upon each Debentureholder until the earlier
of 1. the date following the Conversion when no Shares constitute That
Debentureholders Shares in respect of such Debentureholder, 2. the date the
Shares held by Olympus and all Shares that are That Debentureholder's Shares in
respect of each Debentureholder party to this Agreement, in the aggregate,
represent less than 25% of the Shares of the Company issued and outstanding at
such time and 3. the date the agreement between Olympus and the Company relating
to the Restructuring is terminated. In addition, at any time after the
Conversion Olympus may by written notice to each Debentureholder and the
Company, terminate the application of Article 1 of this Agreement.
IN WITNESS WHEREOF the parties have executed this Voting Agreement as of
the date first written above.
SIAM INVESTMENT FUND
By:
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Authorized Signing Officer
NCL INVESTMENTS LIMITED
By:
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Authorized Signing Officer
CITY MERCHANTS HIGH YIELD TRUST
By:
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Authorized Signing Officer
NORDGESTION S.A.
By:
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Authorized Signing Officer
TD ASSET MANAGEMENT INC.
By:
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Authorized Signing Officer
OLYMPUS CAPITAL HOLDINGS ASIA I, L.P.
By: Olympus Capital Holdings Asia,
L.L.C., its General Partner
By: Olympus Capital Holdings Asia,
its Managing Member
By: /s/ Xxxxxx Xxxxx
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Authorized Signing Officer
ASIA PACIFIC RESOURCES LTD.
By:
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Authorized Signing Officer
