Voting And Exchange Trust Agreement

Exhibit 9


VOTING AND EXCHANGE TRUST AGREEMENT


MEMORANDUM OF AGREEMENT dated for reference the 28th day of March, 2001.


AMONG:


ICHOR CORPORATION, a corporation organized under the laws of the State
of Delaware in the United States (hereinafter referred to as
"ParentCo")


AND:


6543 LUXEMBOURG S.A., a corporation organized under the laws of
Luxembourg (hereinafter referred to as "LuxCo")


AND:


MFC MERCHANT BANK S.A., a bank organized under the laws of Switzerland
(hereinafter referred to as "Trustee")


WHEREAS in connection with a share exchange agreement (the "Share Exchange Agreement") dated for reference December 13, 2000 among ParentCo and certain shareholders of Hippocampe S.A., ParentCo agreed to execute and deliver and cause LuxCo to execute and deliver a voting and exchange trust agreement substantially in the form of this Agreement which contemplates that ParentCo will cause LuxCo to issue exchangeable preferential non voting shares of class B to certain holders of securities of Hippocampe S.A. contemplated in the Share Exchange Agreement;


NOW THEREFORE in consideration of the respective covenants and agreements provided in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto covenant and agree as follows:


ARTICLE 1
DEFINITIONS AND INTERPRETATION


1.1 DEFINITIONS


In this Agreement, the following terms shall have the following meanings:


"AFFILIATE" of any person means any other person directly or indirectly controlled by, or under control of, that person. For the purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control of"), as applied to any person, means the possession by another person, directly or indirectly, of the power to direct or cause the direction of the management and policies of that first mentioned person, whether through the ownership of voting securities, by contract or otherwise.


"AUTOMATIC EXCHANGE RIGHTS" means the benefit of the obligation of ParentCo to effect the automatic exchange of LuxCo Exchangeable Preferred Shares for ParentCo Common Shares pursuant to section 5.12.


"BENEFICIARIES" means the registered holders from time to time of LuxCo Exchangeable Preferred Shares, other than ParentCo and its Affiliates.


"BENEFICIARY VOTES" has the meaning ascribed thereto in section 4.2.


"CURRENT MARKET PRICE" means, in respect of a ParentCo Common Share on any date, the Luxembourg Franc Equivalent of the average of the closing bid and asked prices of ParentCo Common Shares during a period of 20


consecutive trading days ending not more than three trading days before such date on the OTC B.B., or, if the ParentCo Common Shares are not then quoted on the OTC B.B., on such other stock exchange or automated quotation system on which the ParentCo Common Shares are listed or quoted, as the case may be, as may be selected by the board of directors of LuxCo for such purpose; provided, however, that if in the opinion of the board of directors of LuxCo the public distribution or trading activity of ParentCo Common Shares during such period does not create a market which reflects the fair market value of a ParentCo Common Share, then the Current Market Price of a ParentCo Common Share shall be determined by the board of directors of LuxCo, in good faith and in its sole discretion, and provided further that any such selection, opinion or determination by the board of directors of LuxCo shall be conclusive and binding.


"EXCHANGE RIGHT" has the meaning ascribed thereto in section 5.1.


"INDEMNIFIED PARTIES" has the meaning ascribed thereto in section 9.1


"INSOLVENCY EVENT" means the institution by LuxCo of any proceeding to be adjudicated a bankrupt or insolvent or to be wound up, or the consent of LuxCo to the institution of bankruptcy, insolvency or winding-up proceedings against it, or the filing of a petition, answer or consent seeking dissolution or winding-up under any bankruptcy, insolvency or analogous laws, and the failure by LuxCo to contest in good faith any such proceedings commenced in respect of LuxCo within 30 days of becoming aware thereof, or the consent by LuxCo to the filing of any such petition or to the appointment of a receiver, or the making by LuxCo of a general assignment for the benefit of creditors, or the admission in writing by LuxCo of its inability to pay its debts generally as they become due, or LuxCo not being permitted, pursuant to solvency requirements of applicable law, to redeem any Retracted Shares pursuant to section 7.6 of the Shareholder Agreement.


"LIQUIDATION CALL RIGHT" has the meaning ascribed thereto in the Shareholder Agreement.


"LIQUIDATION EVENT" has the meaning ascribed thereto in section 5.12(b).


"LIQUIDATION EVENT EFFECTIVE DATE" has the meaning ascribed thereto in section 5.12(c).


"LIST" has the meaning ascribed thereto in section 4.6.


"LUXCO EXCHANGEABLE PREFERRED SHARES" means the exchangeable preferential non voting shares of class B in the capital of LuxCo;


"LUXEMBOURG FRANC EQUIVALENT" means, in respect of an amount expressed in a currency other than Luxembourg Francs (the "Foreign Currency Amount") at any date, the product obtained by multiplying: (a) the Foreign Currency Amount; by (b) the noon spot exchange rate on such date for such foreign currency expressed in Luxembourg Francs as reported by the U.S. Federal Reserve Bank or, in the event such spot exchange rate is not available, such exchange rate on such date for such foreign currency expressed in Luxembourg Francs as may be deemed by the board of directors of LuxCo to be appropriate for such purpose.


"NOTICE EVENT" has the meaning ascribed thereto in section 7.17.


"OFFICER'S CERTIFICATE" means, with respect to ParentCo or LuxCo, as the case may be, a certificate signed by any officer or director of ParentCo or LuxCo, as the case may be.


"OTC B.B." means the over-the-counter Bulletin Board, a quotation system operated by The National Association of Securities Dealers, Inc.


"PARENTCO COMMON SHARE" means a share of common stock in the capital of ParentCo.


"PARENTCO CONSENT" has the meaning ascribed thereto in section 4.2.


"PARENTCO MEETING" has the meaning ascribed thereto in section 4.2.


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"PARENTCO SPECIAL VOTING SHARE" means the one share of Special Voting Stock of ParentCo which entitles the holder of record to a number of votes at meetings of holders of ParentCo Common Shares equal to 1,066.44, subject to adjustment in accordance with Article 14 of the Shareholder Agreement, multiplied by the number of LuxCo Exchangeable Preferred Shares outstanding from time to time (other than LuxCo Exchangeable Preferred Shares held by ParentCo and Affiliates of ParentCo), which share is to be issued to, deposited with, and voted by, the Trustee as described herein.


"PARENTCO SUCCESSOR" has the meaning ascribed thereto in section 11.1(a).


"PERSON" includes any individual, firm, partnership, joint venture, venture capital fund, limited liability company, unlimited liability company, association, trust, trustee, executor, administrator, legal personal representative, estate, group, body corporate, corporation, unincorporated association or organization, government body, syndicate or other entity, whether or not having legal status.


"REDEMPTION CALL RIGHT" has the meaning ascribed thereto in the Shareholder Agreement.


"RETRACTED SHARES" has the meaning ascribed thereto in section 5.7.


"RETRACTION CALL RIGHT" has the meaning ascribed thereto in the Shareholder Agreement.


"SHAREHOLDER AGREEMENT" means a shareholder agreement dated for reference March 28, 2001 among ParentCo, LuxCo and the holders of the LuxCo Exchangeable Preferred Shares.


"SUPPORT AGREEMENT" means the support agreement dated for reference March 28, 2001 between ParentCo and LuxCo.


"TRUST" means the trust created by this Agreement.


"TRUST ESTATE" means the ParentCo Special Voting Share, any other securities, the Exchange Right, the Automatic Exchange Rights and any money or other property which may be held by the Trustee from time to time pursuant to this Agreement.


"TRUSTEE" means MFC Merchant Bank S.A. and, subject to the provisions of Article 10, includes any successor trustee.


"VOTING RIGHTS" means the voting rights attached to the ParentCo Special Voting Share.


1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.


The division of this Agreement into Articles, sections and other portions and the insertion of headings are for convenience of reference only and should not affect the construction or interpretation of this Agreement. Unless otherwise indicated, all references to an "Article" or "section" followed by a number and/or a letter refer to the specified Article or section of this Agreement. The terms "this Agreement", "hereof", "herein" and "hereunder" and similar expressions refer to this Agreement and not to any particular Article, section or other portion hereof and include any agreement or instrument supplementary or ancillary hereto.


1.3 NUMBER, GENDER, ETC.


Words importing the singular number only shall include the plural and vice versa. Words importing any gender shall include all genders.


1.4 DATE FOR ANY ACTION


If any date on which any action is required to be taken under this Agreement is not a business day, such action shall be required to be taken on the next succeeding business day.


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ARTICLE 2
PURPOSE OF AGREEMENT


2.1 ESTABLISHMENT OF TRUST


The purpose of this Agreement is to create the Trust for the benefit of the Beneficiaries, as herein provided. The Trustee will hold the ParentCo Special Voting Share in order to enable the Trustee to exercise the Voting Rights and will hold the Exchange Right and the Automatic Exchange Rights in order to enable the Trustee to exercise such rights, in each case as trustee for and on behalf of the Beneficiaries as provided in this Agreement.


ARTICLE 3
PARENTCO SPECIAL VOTING SHARE


3.1 ISSUE AND OWNERSHIP OF THE PARENTCO SPECIAL VOTING SHARE


ParentCo will issue to and deposit with the Trustee on the date that ParentCo files a Certificate of Amendment to Certificate of Incorporation to increase the authorized number of ParentCo Common Shares from 30,000,000 to 80,000,000, the ParentCo Special Voting Share to be held of record by the Trustee from and after such date as trustee for and on behalf of, and for the use and benefit of, the Beneficiaries and in accordance with the provisions of this Agreement. ParentCo acknowledges receipt from the Trustee as trustee for and on behalf of the Beneficiaries of good and valuable consideration (and the adequacy thereto for the issuance of the ParentCo Special Voting Share by ParentCo to the Trustee. During the term of the Trust and subject to the terms and conditions of this Agreement, the Trustee shall possess and be vested with full legal ownership of the ParentCo Special Voting Share and shall be entitled to exercise all of the rights and powers of an owner with respect to the ParentCo Special Voting Share provided that the Trustee shall:


(a) hold the ParentCo Special Voting Share and the legal title
thereto as trustee solely for the use and benefit of the
Beneficiaries in accordance with the provisions of this
Agreement; and


(b) except as specifically authorized by this Agreement, have no
power or authority to sell, transfer, vote or otherwise deal
in or with the ParentCo Special Voting Share and the ParentCo
Special Voting Share shall not be used or disposed of by the
Trustee for any purpose other than the purposes for which this
Trust is created pursuant to this Agreement.


3.2 LEGENDED SHARE CERTIFICATES


LuxCo will cause each certificate representing LuxCo Exchangeable Preferred Shares to bear an appropriate legend notifying the Beneficiaries of their right to instruct the Trustee with respect to the exercise of the Voting Rights in respect of the LuxCo Exchangeable Preferred Shares of the Beneficiaries.


3.3 SAFE KEEPING OF CERTIFICATE


The certificate representing the ParentCo Special Voting Share shall at all times be held in safe keeping by the Trustee.


ARTICLE 4
EXERCISE OF VOTING RIGHTS


4.1 VOTING RIGHTS


The Trustee, as the holder of record of the ParentCo Special Voting Share, shall be entitled to all of the Voting Rights, including the right to vote in person or by proxy the ParentCo Special Voting Share on any matters, questions, proposals or propositions whatsoever that may properly come before the shareholders of ParentCo at a ParentCo Meeting or in connection with a ParentCo Consent. The Voting Rights shall be and remain vested in and exercised by the Trustee. Subject to section 7.15:


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(a) the Trustee shall exercise the Voting Rights only on the basis
of instructions received pursuant to this Article 4 from
Beneficiaries entitled to instruct the Trustee as to the
voting thereof at the time at which the ParentCo Meeting is
held or a ParentCo Consent is sought; and


(b) to the extent that no instructions are received from a
Beneficiary with respect to the Voting Rights to which such
Beneficiary is entitled, the Trustee shall not exercise or
permit the exercise of such Voting Rights.


4.2 NUMBER OF VOTES


With respect to all meetings of shareholders of ParentCo at which holders of ParentCo Common Shares are entitled to vote (each, a "PARENTCO MEETING") and with respect to all written consents sought by ParentCo from its shareholders including the holders of ParentCo Common Shares (each, a "PARENTCO CONSENT"), each Beneficiary shall be entitled to instruct the Trustee to cast and exercise 1,066.44 of the votes comprised in the Voting Rights, subject to adjustment in accordance with Article 14 of the Shareholder Agreement, for each LuxCo Exchangeable Preferred Share owned of record by such Beneficiary on the record date established by ParentCo or by applicable law for such ParentCo Meeting or ParentCo Consent, as the case may be (the "BENEFICIARY VOTES"), IN RESPECT OF EACH matter, question, proposal or proposition to be voted on at such ParentCo Meeting or in connection with such ParentCo Consent.


4.3 MAILINGS TO SHAREHOLDERS


With respect to each ParentCo Meeting and ParentCo Consent, the Trustee will use its reasonable efforts promptly to mail or cause to be mailed (or otherwise communicate in the same manner as ParentCo utilizes in communications to holders of ParentCo Common Shares subject to applicable regulatory requirements and provided such manner of communications is reasonably available to the Trustee) to each of the Beneficiaries named in the List referred to in section 4.6, such mailing or communication to commence on the same day as the mailing or notice (or other communication) with respect thereto is commenced by ParentCo to its shareholders:


(a) a copy of such notice, together with any related materials to
be provided to shareholders of ParentCo;


(b) a statement that such Beneficiary is entitled to instruct the
Trustee as to the exercise of the Beneficiary Votes with
respect to such ParentCo Meeting or ParentCo Consent or,
pursuant to section 4.7, to attend such ParentCo Meeting and
to exercise personally the Beneficiary Votes thereat;


(c) a statement as to the manner in which such instructions may be
given to the Trustee, including an express indication that
instructions may be given to the Trustee to give:


(i) a proxy to such Beneficiary or his designee to
exercise personally the Beneficiary Votes; or


(ii) a proxy to a designated agent or other representative
of the management of ParentCo to exercise such
Beneficiary Votes;


(d) a statement that if no such instructions are received from the
Beneficiary, the Beneficiary Votes to which such Beneficiary
is entitled will not be exercised;


(e) a form of direction whereby the Beneficiary may so direct and
instruct the Trustee as contemplated herein; and


(f) a statement of the time and date by which such instructions
must be received by the Trustee in order to be binding upon
it, which in the case of a ParentCo Meeting shall not be
earlier than the close of business on the second business day
prior to such meeting, and of the method for revoking or
amending such instructions.


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The materials referred to in this section 4.3 are to be provided to the Trustee by ParentCo and the materials referred to in section 4.3(c), (e) and (f) shall be subject to reasonable comment by the Trustee in a timely manner. ParentCo shall ensure that the materials to be provided to the Trustee are provided in sufficient time to permit the Trustee to comment as aforesaid and to send all materials to each Beneficiary at the same time as such materials are first sent to holders of ParentCo Common Shares. ParentCo agrees not to communicate with holders of ParentCo Common Shares with respect to the materials referred to in this section 4.3 otherwise than by mail unless such method of communication is also reasonably available to the Trustee for communication with the Beneficiaries.


For the purpose of determining Beneficiary Votes to which a Beneficiary is entitled in respect of any ParentCo Meeting or ParentCo Consent, the number of LuxCo Exchangeable Preferred Shares owned of record by the Beneficiary shall be determined at the close of business on the record date established by ParentCo or by applicable law for purposes of determining shareholders entitled to vote at such ParentCo Meeting or consent in respect of such ParentCo Consent. ParentCo will notify the Trustee of any decision of the board of directors of ParentCo with respect to the calling of any ParentCo Meeting or the seeking by ParentCo of any such ParentCo Consent and shall provide all necessary information and materials to the Trustee in each case promptly and in any event in sufficient time to enable the Trustee to perform its obligations contemplated by this section 4.3.


4.4 COPIES OF SHAREHOLDER INFORMATION


ParentCo will deliver to the Trustee copies of all proxy materials (including notices of ParentCo Meetings but excluding proxies to vote ParentCo Common Shares), information statements, reports (including without limitation, all interim and annual financial statements) and other written communications that, in each case, are to be distributed from time to time to holders of ParentCo Common Shares in sufficient quantities and in sufficient time so as to enable the Trustee to send those materials to each Beneficiary at the same time as such materials are first sent to holders of ParentCo Common Shares. The Trustee will mail or otherwise send to each Beneficiary, at the expense of ParentCo, copies of all such materials (and all materials specifically directed to the Beneficiaries or to the Trustee for the benefit of the Beneficiaries by ParentCo) received by the Trustee from ParentCo contemporaneously with the sending of such materials to holders of ParentCo Common Shares. The Trustee will also make available for inspection by any Beneficiary, during the regular business hours of the Trustee, at the Trustee's principal office in Geneva, Switzerland, all reports and other written communications that are:


(a) received by the Trustee as the registered holder of the
ParentCo Special Voting Share and made available by ParentCo
generally to the holders of ParentCo Common Shares; or


(b) specifically directed to the Beneficiaries or to the Trustee
for the benefit of the Beneficiaries by ParentCo.


4.5 OTHER MATERIALS


As soon as reasonably practicable after receipt by ParentCo or shareholders of ParentCo (if such receipt is known by ParentCo) of any material sent or given by or on behalf of a third party to holders of ParentCo Common Shares generally, ParentCo shall use its reasonable efforts to obtain and deliver to the Trustee copies thereof in sufficient quantities so as to enable the Trustee to forward such material (unless the same has been provided directly to Beneficiaries by such third party) to each Beneficiary as soon as possible thereafter. As soon as reasonably practicable after receipt thereof, the Trustee will mail or otherwise send to each Beneficiary, at the expense of ParentCo, copies of all such materials received by the Trustee from ParentCo. The Trustee will also make available for inspection by any Beneficiary, during the regular business hours of the Trustee, at the Trustee's principal office in Geneva, Switzerland, copies of all such materials.


4.6 LIST OF PERSONS ENTITLED TO VOTE


LuxCo shall: (i) prior to each annual, general and special ParentCo Meeting or the seeking of any ParentCo Consent; and (ii) forthwith upon each request made at any time by the Trustee in writing, prepare or cause to be prepared a list (a "LIST") of the names and addresses of the Beneficiaries arranged in alphabetical order and showing the number of LuxCo Exchangeable Preferred Shares held of record by each such Beneficiary, in each case at the close of business on the date specified by the Trustee in such request or, in the case of a List prepared in connection with a ParentCo


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Meeting or a ParentCo Consent, at the close of business on the record date established by ParentCo or pursuant to applicable law for determining the holders of ParentCo Common Shares entitled to receive notice of and/or to vote at such ParentCo Meeting or to give consent in connection with such ParentCo Consent. Each such List shall be delivered to the Trustee promptly after receipt by LuxCo of such request or the record date for such meeting or seeking of consent, as the case may be, and in any event within sufficient time as to permit the Trustee to perform its obligations under this Agreement. ParentCo agrees to give LuxCo notice (with a copy to the Trustee) of the calling of any ParentCo Meeting or the seeking of any ParentCo Consent, together with the record dates therefor, sufficiently prior to the date of the calling of such meeting or seeking of such consent so as to enable LuxCo to perform its obligations under this section 4.6.


4.7 ENTITLEMENT TO DIRECT VOTES


Any Beneficiary named in a List prepared in connection with any ParentCo Meeting or ParentCo Consent will be entitled: (i) to instruct the Trustee in the manner described in section 4.3 with respect to the exercise of the Beneficiary Votes to which such Beneficiary is entitled; or (ii) to attend such meeting and personally exercise thereat, as the proxy of the Trustee, the Beneficiary Votes to which such Beneficiary is entitled.


4.8 VOTING BY TRUSTEE AND ATTENDANCE OF TRUSTEE REPRESENTATIVE AT MEETING


(a) In connection with each ParentCo Meeting and ParentCo Consent,
the Trustee shall exercise, either in person or by proxy, in
accordance with the instructions received from a Beneficiary
pursuant to section 4.3, the Beneficiary Votes as to which
such Beneficiary is entitled to direct the vote (or any lesser
number thereof as may be set forth in the instructions);
provided, however, that such written instructions are received
by the Trustee from the Beneficiary prior to the time and date
fixed by the Trustee for receipt of such instruction in the
notice given by the Trustee to the Beneficiary pursuant to
section 4.3.


(b) The Trustee shall cause a representative who is empowered by
it to sign and deliver, on behalf of the Trustee, proxies for
Voting Rights to attend each ParentCo Meeting. Upon submission
by a Beneficiary (or its designee) of identification
satisfactory to the Trustee's representative, and at the
Beneficiary's request, such representative shall sign and
deliver to such Beneficiary (or its designee) a proxy to
exercise personally the Beneficiary Votes as to which such
Beneficiary is other-wise entitled hereunder to direct the
vote, if such Beneficiary either: (i) has not previously given
the Trustee instructions pursuant to section 4.3 in respect of
such meeting; or (ii) submits to such representative written
revocation of any such previous instructions. At such meeting,
the Beneficiary exercising such Beneficiary Votes shall have
the same rights as the Trustee to speak at the meeting in
favor of any matter, question, proposal or proposition, to
vote by way of ballot at the meeting in respect of any matter,
question, proposal or proposition, and to vote at such meeting
by way of a show of hands in respect of any matter, question
or proposition.


4.9 DISTRIBUTION OF WRITTEN MATERIALS


Any written materials distributed by the Trustee pursuant to this Agreement shall be sent by mail (or otherwise communicated in the same manner as ParentCo utilizes in communications to holders of ParentCo Common Shares subject to applicable regulatory requirements and provided such manner of communications is reasonably available to the Trustee) to each Beneficiary at its address as shown on the books of LuxCo. ParentCo agrees not to communicate with holders of ParentCo Common Shares with respect to such written materials otherwise than by mail unless such method of communication is also reasonably available to the Trustee for communication with the Beneficiaries. LuxCo shall provide or cause to be provided to the Trustee for purposes of communication, on a timely basis and without charge or other expense:


(a) a current List; and


(b) upon the request of the Trustee, mailing labels to enable the
Trustee to carry out its duties under this Agreement.


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4.10 TERMINATION OF VOTING RIGHTS


All of the rights of a Beneficiary with respect to the Beneficiary Votes exercisable in respect of the LuxCo Exchangeable Preferred Shares held by such Beneficiary, including the right to instruct the Trustee as to the voting of or to vote personally such Beneficiary Votes, shall be deeme ...