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VOTING TRUST AGREEMENT, entered into as of the 31st day of March, 2000
(this "Agreement"), between THOMAS KAPLAN, with an address c/o Rosenman & Colin
LLP, 575 Madison Avenue, New York, New York 10022-2585, Attn.: William Natbony,
Esq., as Trustee (hereinafter the "Trustee"), and ELECTRUM LLC, a limited
liability company incorporated and existing under the laws of the Cayman Islands
(hereinafter the "Beneficiary"), with an address c/o Arthur D. Hanna & Co., No.
10 Deveaux Street, P.O. Box N-4877, Nassau, Bahamas, Attn.: David Sean Hanna,
Esq.
W I T N E S S E T H :
WHEREAS, the Beneficiary is the holder of THREE MILLION FIVE HUNDRED
THOUSAND (3,500,000) common shares, par value $0.01 per share (each a "Share"
and collectively the "Shares") of Trend Mining Limited, a Montana 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 THREE MILLION FIVE HUNDRED
THOUSAND (3,500,000) 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 Shareholders in respect thereof and to cancel said certificates and to issue
to the Trustee a new certificate, representing THREE MILLION FIVE HUNDRED
THOUSAND (3,500,000) 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, including without limitation
shares acquired by Beneficiary pursuant to warrant, 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.
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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 Thomas Kaplan,
Trustee, evidencing the ownership of _______ shares of a nominal or par
value of $0.01 each of Trend Mining Company, a Montana corporation (the
"Shares"), and that the Shares are held subject to all the terms and
conditions of that certain Agreement (the "Voting Trust Agreement"), as
of March 31, 2000, by and between Electrum LLC and Thomas Kaplan, 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
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 _______________, ____.
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Thomas Kaplan, 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
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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 shareholders 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 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.
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(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 March 31, 2001. 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, except as provided in Section 12,
below.
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 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 the State of Montana
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.
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Thomas Kaplan, as Trustee
ELECTRUM LLC
By:
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President
