Exhibit 1
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
ss.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 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.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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
-------------------------
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
--------------------------------
XXXX X. XXXX
/s/ Xxxx X. Xxxx
--------------------------------
XXXX X. XXXXXXXXX
/s/ Xxxx X. Xxxxxxxxx
--------------------------------
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
--------------------------------
XXXXXXXX X. XXXXXX
/s/ Xxxxxxxx X. Xxxxxx
--------------------------------
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
--------------------------------
AMERALIA, INC.
By: /s/ Xxxx X. Xxxx
----------------------------
Name: Xxxx X. Xxxx
Title: President
