VOTING AGREEMENT
THIS VOTING AGREEMENT is made and dated for reference effective as of
the _ day of January, 1999.
BETWEEN:
AZCO MINING INC., a company duly incorporated under the laws of the
State of Delaware, U.S.A., and having an executive office and an
address for notice and delivery located at Suite 1250, 000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Company");
OF THE FIRST PART
AND:
ARIZONA MICA PROPERTIES, INC., a company duly incorporated under the
laws of the State of Arizona, U.S.A., and having an address for notice
and delivery located at c/x Xxxxx & Xxxxxx, P.L.C., of 0000 Xxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxx, X.X.X., 00000
("Arizona Mica");
OF THE SECOND PART
AND:
XXXXXXXX X. XXXXX, XXXX 0. XXX and XXXXX X XXXXX, the UNDERSIGNED
SHAREHOLDERS OF ARIZONA MICA, each having an address for notice and
delivery also located at c/x Xxxxx & Xxxxxx, P.L.C., of 0000 Xxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxx, X.X.X., 00000
(each such individual being a "Shareholder");
OF THE THIRD PART
AND:
XXXX X. XXXXXXX and XXXXXXX X. XXXXXX, each being a shareholder of the
Company and having an address for notice and delivery located at Suite
1250, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(each such individual being,a "Company Shareholder");
OF THE FOURTH PART
(The Company, Arizona Mica, the Shareholders and the Company
Shareholders being hereinafter singularly also referred to as a
"Party" and collectively referred to as the "Parties" as the context
so requires).
WHEREAS:
A. In accordance with the terms and conditions of a certain "Agreement And Plan
Of Merger" dated of even date herewith (the "Plan of Merger"), as entered into
among the Company, Arizona Mica, the Shareholders and the Company's wholly-owned
subsidiary, Xxxxxxx Mining, Inc. ("Xxxxxxx"), the Company and the Shareholders
have therein determined to merge Arizona Mica with and into Xxxxxxx, as the
surviving corporation, and, thereby, provide for the Company's acquisition,
through Xxxxxxx, of all of the rights of Arizona Mica and its Shareholders to
develop 43 unpatented lode mining claims located in Yavapai County, Arizona, in
consideration for the issuance from treasury by the Company to the Shareholders
of an aggregate of 4,500,000 common shares of the Company (collectively, the
"Shares");
B. It is a condition of the Plan of Merger that the Shareholders thereby grant
to management of the Company the right to vote in respect of the Shares for a
period of five years from their date of issuance (the "Term") wherein the
Shareholders shall vote in favour of nominees of management to the Board of
Directors of the Company at any meeting of the shareholders of the Company (the
"Voting Agreement"),
C. It is a further condition of the Plan of Merger that during the Term of the
Voting Agreement the Company shall appoint one nominee of the Shareholders to
the Board of Directors of the Company (the "Shareholders' Nominee"); and
D. The Parties hereto have agreed to enter into this agreement (the "Agreement")
which formalizes the existing agreement, as set forth in the Plan of Merger, to
grant the Voting Agreement and to appoint the Shareholders' Nominee during the
Term and on the terms and conditions hereinafter contained;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
mutual covenants and provisos herein contained, THE PARTIES HERETO AGREE AS
FOLLOWS:
Article I
INTERPRETAT10N
1.1 Definitions. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the following words
and phrases shall have the following meanings:
(a) "Arizona Mica" means Arizona Mica Properties, Inc., a company duly
incorporated under the laws of the State of Arizona, U.S.A., or any
successor company, however formed, whether as a result of merger,
amalgamation or other action;
(b) "Agreement" means this Voting Agreement as from time to time
supplemented or amended by one or more agreements entered into
pursuant to the applicable provisions hereof-,
(c) "associate" and/or "affiliate" mean any associate and/or affiliate of
any of the Shareholders hereto as those terms are broadly defined
under all applicable corporate and securities laws;
(d) "Board of Directors" means the Board of Directors of the Company as
duly constituted from time to time;
(e) "Company" means Azco Mining Inc., a company duly incorporated under
the laws of the State of Delaware, U.S.A., or any successor company,
however formed, whether as a result of merger, amalgamation or other
action;
(f) "Company Shareholders" means Xxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxx,
being shareholders and Directors of the Company and who have become
Parties to this Agreement for the sole purpose of ensuring more
complete compliance by the Company with the voting agreement
provisions of Delaware's general corporation laws;
(g) "Party" or "Parties" means the Company, Arizona Mica, the Shareholders
and/or the Company Shareholders hereto, as the context so requires,
and their respective successors and permitted assigns as the context
so requires;
(h) "Plan of Merger" has the meaning ascribed to it in recital "A."
hereinabove;
(i) "Regulatory Approval" means the acceptance for filing, if required, of
the transactions contemplated by this Agreement by the Regulatory
Authorities,
(j) "Regulatory Authorities" means The Toronto Stock Exchange, The
American Stock Exchange and such other regulatory agencies who have
jurisdiction over the affairs of the Parties hereto and including,
without limitation, and where applicable, the British Columbia
Securities Commission, the Ontario Securities Commission, the United
States Securities and Exchange Commission and all regulatory
authorities from whom any such authorization, approval or other action
is required to be obtained or to be made in connection with the
transactions contemplated by this Agreement;
(k) "Shareholder" or "Shareholders" means each of Xxxxxxxx X. Xxxxx, Xxxx
0. Xxx and/or Xxxxx X. Bleak, being all of the Shareholders of Arizona
Mica, together with each of their respective successors and permitted
assigns as the context so requires;
(1) "Shareholders' Nominee" has the meaning ascribed to it in recital "C."
hereinabove;
(m) "Shares" has the meaning ascribed to it in recital "A." hereinabove;
(n) "Term" has the meaning ascribed to it in recital "B." hereinabove; and
(o) "Voting Agreement" has the meaning ascribed to it in recital "B."
hereinabove.
1.2 Interpretation. For the purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires,:
(a) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, section or other subdivision of this Agreement;
(b) the headings are for convenience only and do not form a part of this
Agreement nor are they intended to interpret, define or limit the
scope or extent of this or any provision of this Agreement;
(c) any reference to an entity shall include and shall be deemed to be a
reference to any entity that is a permitted successor to such entity;
and
(d) words in the singular include the plural and words in the masculine
gender include the feminine and neuter genders, and vice versa.
Article II
VOTING AGREEMENT AND SHAREHOLDERS' NOMINEE
2.1 Establishment of the Voting Agreement. Subject to any prior and required
Regulatory Approval from any Regulatory Authorities, during the Term the
Shareholders hereby irrevocably grant and declare the Voting Agreement in
respect of the Shares and in favour of management of the Company, as such
management may exist from time to time, and hereby irrevocably appoint such
member of the Board of Directors of the Company as such Board of Directors of
the Company may determine, from time to time and in its sole and absolute
discretion, to vote on behalf of the Shareholders and in favour of the Company's
management's nominees for the Board of Directors of the Company and including,
without limitation, the Shareholders' Nominee, at any meeting of the
shareholders of the Company during the Term.
2.2 Establishment of the Shareholders' Nominee. Subject to any prior and
required Regulatory Approval ftom any Regulatory Authorities, during the Term
the Company hereby agrees to appoint the Shareholders' Nominee to the Board of
Directors of the Company and, in this regard, hereby agrees to include the
Shareholders' Nominee as a nominee for the Board of Directors of the Company at
any meeting of the shareholders of the Company during the Term.
2.3 Voting Agreement as a condition of the Plan of Merger. Each of the
Shareholders hereby acknowledges and agrees that the within Voting Agreement has
been entered into as a term and condition of the Plan of Merger and,
accordingly, that this Agreement is binding for all purposes in consideration of
such and that the terms hereof may not be changed and the Voting Agreement may
not be challenged without the consent of the Company, which shall have sole and
unfettered discretion as to how it considers any request for amendment.
2.4 Assignment or Transfer of any of the Shares underlying the Voting Agreement.
Notwithstanding the terms of the within Voting Agreement, it is hereby
acknowledged and agreed that, subject at all times to all existing resale
restrictions under applicable securities legislation affecting the Shares, the
Shareholders may sell, deal in, assign, transfer in any manner whatsoever or
agree to sell, deal in, assign or transfer in any
manner whatsoever any of the said Shares or beneficial ownership of or any
interest in them without the consent of any other Party hereto; provided,
always, that any such sale, assignment or transfer is made to a party which is
neither an affiliate nor an associate of the Shareholder failing which any such
sale, assignment or transfer, in addition to being subject to the consent of all
other Parties hereto, will be subject to such affiliate or associate becoming
bound in writing to the terms and conditions of this Agreement. In this regard
it hereby further acknowledged and agreed that any Shares which become the
subject of any sale, assignment or transfer to a party which is neither an
affiliate nor an associate of a Shareholder will no longer be subject to the
terms and conditions of this Agreement.
Article III
GENERAL PROVISIONS
3.1 Entire Agreement. This Agreement constitutes the entire agreement to date
between the Parties hereto and supersedes every previous agreement, expectation,
negotiation, representation or understanding, whether oral or written, express
or implied, statutory or otherwise, between the Parties with respect to the
subject matter of this Agreement.
3.2 Notice. Each notice, demand or other communication required or permitted to
be given under this Agreement shall be in writing and shall be sent by prepaid
registered mail deposited in a recognized post office and addressed to the Party
entitled to receive the same, or delivered to such Party, at the address for
such Party specified on the front page of this Agreement. The date of receipt of
such notice, demand or other communication shall be the date of delivery thereof
if delivered, or, if given by registered mail as aforesaid, shall be deemed
conclusively to be the third day after the same shall have been so mailed,
except in the case of interruption of postal services for any reason whatsoever,
in which case the date of receipt shall be the date on which the notice, demand
or other communication is actually received by the addressee. Each Party may at
any time and from time to time notify the other Parties in writing of a change
of address and the new address to which notice shall be given to it thereafter
until further change.
3.3 No Assignment. This Agreement may not be assigned by either Party except
with the prior written consent of the other Party.
3.4 Time of the Essence. Time will be of the essence of this Agreement.
3.5 Regulatory Authorities. This Agreement is subject to the prior Regulatory
Approval, if required, of each of the Regulatory Authorities.
3.6 Further Assurances. The Parties will from time to time after the execution
of this Agreement make, do, execute or cause or permit to be made, done or
executed, all such further and other acts, deeds, things, devices and assurances
in law
whatsoever as may be required to carry out the true intention and to give full
force and effect to this Agreement.
3.7 Representation and Costs. It is hereby acknowledged by each of the Parties
hereto that, as among the Company, Arizona Mica and the Shareholders herein,
Xxxxxx Xxxxxx, Barristers and Solicitors, acts solely for the Company, and that
Arizona Mica and the Shareholders have been advised by Xxxxxx Xxxxxx to obtain
independent legal advice with respect to their respective reviews and execution
of this Agreement. In addition, it is hereby further acknowledged and agreed by
the Parties hereto that each Party to this Agreement will bear and pay its own
costs, legal and otherwise, in connection with its respective preparation,
review and execution of this Agreement and, in particular, that the costs
involved in the preparation of this Agreement, and all documentation necessarily
incidental thereto, by Xxxxxx Xxxxxx shall be at the cost of the Company.
3.8 Applicable Law. This Agreement will be governed exclusively by and construed
and enforced in accordance with the laws prevailing in the State of Arizona,
U.S.A.
3.9 Severability and Construction. Each Article, section, paragraph, term and
provision of this Agreement, and any portion thereof, shall be considered
severable, and if, for any reason, any portion of this Agreement is determined
to be invalid, contrary to or in conflict with any applicable present or future
law, rule or regulation in a final unappealable ruling issued by any court,
agency or tribunal with valid jurisdiction in a proceeding to which any Party
hereto is a party, that ruling shall not impair the operation of, or have any
other effect upon, such other portions of this Agreement as may remain otherwise
intelligible (all of which shall remain binding on the Parties and continue to
be given full force and effect as of the date upon which the ruling becomes
final).
3.10 Captions. The captions, section numbers and Article numbers appearing in
this Agreement are inserted for convenience of reference only and shall in no
way define, limit, construe or describe the scope or intent of this Agreement
nor in any way affect this Agreement.
3.11 Counterparts. This Agreement may be signed by the Parties hereto in as many
counterparts as may be necessary, and via facsimile if necessary, each of which
so signed being deemed to be an original, and such counterparts together shall
constitute one and the same instrument and notwithstanding the date of execution
will be deemed to bear the execution date as set forth on the front page of this
Agreement.
3.12 No Partnership or Agency. The Parties have not created a partnership and
nothing contained in this Agreement shall in any manner whatsoever constitute
any Party the partner, agent or legal representative of the other Party, nor
create any fiduciary relationship between them for any purpose whatsoever. No
Party shall have any authority to act for, or to assume any obligations or
responsibility on behalf of, the other Party
except as may be, from time to time, agreed upon in writing between the Parties
or as otherwise expressly provided.
3.13 Consents and Waivers. No consent or waiver expressed or implied by either
Party in respect of any breach or default by the other in the performance by
such other of its obligations hereunder shall:
(a) be valid unless it is in writing and stated to be a consent or waiver
pursuant to this section;
(b) be relied upon as a consent to or waiver of any other breach or
default of the same or any other obligation;
(c) constitute a general waiver under this Agreement; or
(d) eliminate or modify the need for a specific consent or waiver pursuant
to this section in any other or subsequent instance.
IN WITNESS WHEREOF the Parties hereto have hereunto set their respective
hands and seals in the presence of their duly authorized signatories effective
as at the date first above written.
The CORPORATE SEAL of )
AZCO MINING, INC. )
was hereunto fixed in the presence of )
)
/s/ Xxxx Xxxxxxx ) (C/S)
------------------------------------- )
Authorized Signatory )
The CORPORATE SEAL of )
ARIZONA MICA PROPERTIES, INC. )
was hereunto fixed in the presence of )
)
/s/ Xxxxxxxx X. Xxxxx ) (C/S)
------------------------------------- )
Authorized Signatory )
SIGNED, SEALED and DELIVERED by ) NUMBER OF SHARES
XXXXXXXX X. XXXXX ) IN VOTING AGREEMENT
a Shareholder herein, in the presence of )
) 1,500,000
/s/ Xxxxxxx X. Xxxxxxx ) ---------
---------------------- )
Witness Signature )
)
0000 X. Xxxxxxxxx, Xxx, XX ) /s/ Xxxxxxxx X. Xxxxx
-------------------------- ) ---------------------
Witness Address ) Xxxxxxxx X. Xxxxx
)
Xxxxxxx X. Xxxxxxx, Paralegal )
----------------------------- )
Wintess Name and Occupation )
SIGNED, SEALED and DELIVERED by ) NUMBER OF SHARES
XXXX 0. XXX ) IN VOTING AGREEMENT
a Shareholder herein, in the presence of )
) 1,500,000
/s/ Xxxxxxx X. Xxxxxxx ) ---------
---------------------- )
Witness Signature )
)
0000 X. Xxxxxxxxx, Xxx, XX ) /s/ Xxxx X. Xxx
-------------------------- ) ---------------
Witness Address ) Xxxx X. Xxx
)
Xxxxxxx X. Xxxxxxx, Paralegal )
----------------------------- )
Wintess Name and Occupation )
SIGNED, SEALED and DELIVERED by ) NUMBER OF SHARES
XXXXX X. BLEAK ) IN VOTING AGREEMENT
a Shareholder herein, in the presence of )
) 1,500,000
/s/ Xxxxxxx X. Xxxxxxx ) ---------
---------------------- )
Witness Signature )
)
0000 X. Xxxxxxxxx, Xxx, XX ) /s/ Xxxxx X. Bleak
-------------------------- ) ------------------
Witness Address ) Xxxxx X. Bleak
)
Xxxxxxx X. Xxxxxxx, Paralegal )
----------------------------- )
Wintess Name and Occupation )
SIGNED, SEALED and DELIVERED by )
XXXX X. XXXXXXX, a Company Shareholder )
herein, in the presence of )
)
/s/ Xxxxxxx X. Xxxxx )
-------------------- )
Witness Signature )
)
307-1275 X. 00xx Xxx Xxx XX X0X 0X0 )
----------------------------------- )
Witness Address )
)
Xxxxxxx X. Xxxxx, Executive Assistant )
------------------------------------- )
Witness Name and Occupation )
SIGNED, SEALED and DELIVERED by )
XXXXXXX X. XXXXXX, a Company )
Shareholder herein, in the presence of )
)
/s/ Xxxxxxx X. Xxxxx )
-------------------- )
Witness Signature )
)
307-1275 X. 00xx Xxx Xxx XX X0X 0X0 )
----------------------------------- )
Witness Address )
)
Xxxxxxx X. Xxxxx, Executive Assistant )
------------------------------------- )
Witness Name and Occupation )
