Support/Voting Agreement
June 21, 2000
Newmont Mining Corporation
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Re: Support/Voting Agreement
Dear Sirs:
The undersigned understands that Newmont Mining Corporation
("Parent"), Bounty Merger Corp., a wholly owned subsidiary of Parent ("Sub"),
and Battle Mountain Gold Company (the "Company") are entering into an Agreement
and Plan of Merger, dated the date hereof (the "Agreement"), providing for,
among other things, a merger between Sub and the Company (the "Merger") in which
all of the outstanding shares of common stock, par value $0.10 per share, of the
Company will be exchanged for shares of common stock, par value $1.60 per share,
of Parent. The undersigned further understands that Parent and the Company have
proposed a plan of arrangement (the "Plan of Arrangement") providing for the
transfer (the "Transfer") of certain exchangeable shares (the "Exchangeable
Shares") in the capital of Battle Mountain Gold Company, a subsidiary of the
Company ("Canadian Co."). At the election of Parent, such transfer may be
effected through a wholly owned subsidiary of Parent to be formed by Parent
("ULC"),
The undersigned is a stockholder of Canadian Co. (the
"Stockholder") and is entering into this letter agreement to induce you to enter
into the Agreement, to support the Plan of Arrangement and to consummate the
transactions contemplated by the Agreement and the Plan of Arrangement.
The Stockholder confirms its agreement with you as follows:
1. The Stockholder represents, warrants and agrees that Schedule I annexed
hereto sets forth the shares of the capital stock of the Company or any Company
subsidiary of which the Stockholder or any of its controlled affiliates (its
"Controlled Affiliates"; "controlled" and "affiliate" as defined under the
Securities Exchange Act of 1934, as amended) is the record or beneficial owner
(collectively, the "Shares") and that the Stockholder and its Controlled
Affiliates are on the date hereof the lawful owners of the number of Shares set
forth in Schedule I, free and clear of all liens, charges, encumbrances, voting
agreements and commitments of every kind, except as disclosed in Schedule I.
Except for the Shares set forth in Schedule I, neither the Stockholder nor any
of its Controlled Affiliates own or hold any other securities of the Company or
any Company subsidiary, or any rights to acquire any additional shares of the
capital stock of the Company or any Company subsidiary or any interest therein,
or any voting rights with respect to any additional shares.
2. The Stockholder shall vote, and shall cause any holder of record of its
Shares to vote, all of the Shares beneficially owned by the Stockholder or its
Controlled Affiliates, or over which the Stockholder or any of its Controlled
Affiliates has voting power or control, directly or indirectly (including any
shares of capital stock of the Company or any Company subsidiary acquired after
the date hereof), at the record date:
(a) to approve the Merger, the Agreement and the transactions
contemplated thereby, or
(b) to approve the Plan of Arrangement and the transactions
contemplated thereby,
at any meeting of stockholders of the Company or any meeting of the shareholders
of Canadian Co. at which any such matters are considered and at every
adjournment thereof. Any such vote shall be cast or consent shall be given in
accordance with such procedures relating thereto as shall ensure that it is duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. The Stockholder shall deliver to
Parent upon request a proxy substantially in the form attached hereto as Exhibit
B, which proxy shall be irrevocable to the extent permitted under Nevada law
(but subject to termination in the event this letter agreement is terminated),
with the total number of such Stockholder's Shares correctly indicated thereon.
The Stockholder shall also use its reasonable efforts to take, or cause to be
taken, all action, and do, or cause to be done, all things necessary or
advisable in order to consummate and make effective the transactions
contemplated by this letter agreement.
3. After the date hereof, the Stockholder agrees that the obligations under this
letter agreement may not be avoided by the Stockholder or any of its
subsidiaries by depositing any Shares in a voting trust or otherwise
transferring any voting interest in any Shares, by agreement or otherwise,
except for transfers subject to the terms of this letter agreement, and any such
Shares shall be voted in compliance with the terms of this letter agreement.
4. The Stockholder agrees that in the event (a) of any stock dividend, stock
split, recapitalization, reclassification, combination or exchange of shares of
stock of the Company or any Company subsidiary on, of or affecting the Shares of
such Stockholder, (b) such Stockholder purchases or otherwise acquires
beneficial ownership of any shares of capital stock of the Company or any
Company subsidiary after the execution of this letter agreement (including by
conversion), or (c) such Stockholder voluntarily acquires the right to vote or
share in the voting of any shares of capital stock of the Company or any Company
subsidiary other than the Shares (collectively, "New Shares"), such Stockholder
shall deliver promptly to Parent upon request an irrevocable proxy substantially
in the form attached hereto as Exhibit B (but subject to termination in the
event this letter agreement is terminated) with respect to such New Shares. The
Stockholder also agrees that any New Shares acquired or purchased by him shall
be subject to the terms of this Agreement and shall constitute Shares to the
same extent as if they were owned by such Stockholder on the date hereof.
5. The Stockholder shall execute and deliver on a timely basis a letter
agreement substantially in the form of Exhibit B to the Merger Agreement, when
and if requested by you prior to the Effective Time (as defined in the Merger
Agreement).
-2-
6. The Stockholder agrees to, will cause any company, trust or other entity
controlled by the Stockholder to, and will cause its Controlled Affiliates to,
cooperate fully with you in connection with the Agreement, the Plan of
Arrangement and the transactions contemplated thereby. The Stockholder agrees
that, during the term of this letter agreement, it will not, and will not permit
any such company, trust or other entity to, and will not permit any of its
Controlled Affiliates to, directly or indirectly (including through its
directors, officers, employees, investment bankers, attorneys, accountants or
other advisors or representatives), solicit, initiate, knowingly encourage or
facilitate, or furnish or disclose non-public information in furtherance of, any
inquiries or the making of any proposal with respect to any Company Takeover
Proposal or negotiate, explore or otherwise engage in any discussions with any
person (other than Parent, Sub or their respective directors, officers,
employees, agents and representatives) with respect to any Company Takeover
Proposal or enter into any agreement, arrangement or understanding with respect
to any Company Takeover Proposal or agree to or otherwise assist in the
effectuation of any Company Takeover Proposal; provided, however, that nothing
herein shall prevent the Stockholder from taking any action, after having
notified Parent thereof, or omitting to take any action solely as a member of
the Board of Directors of the Company required so as not to violate such
Stockholder's fiduciary obligations as a director of the Company after
consultation with outside counsel.
7. The Stockholder has all necessary power and authority to enter into this
letter agreement. This letter agreement is the legal, valid and binding
agreement of the Stockholder, and is enforceable against the Stockholder in
accordance with its terms.
8. This letter agreement shall be governed by, and construed in accordance with,
the laws of the State of New York, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
9. The Stockholder agrees that irreparable damage would occur in the event that
any of the provisions of this letter agreement were not performed in accordance
with their specific terms or were otherwise breached. The Stockholder agrees
that Parent shall be entitled to a temporary restraining order and a preliminary
and permanent injunction or injunctions to prevent breaches of this letter
agreement and to enforce specifically the terms and provisions of this letter
agreement in any court of the United States located in the State of New York or
in New York state court, this being in addition to any other remedy to which
they are entitled at law or in equity. In addition, the Stockholder (a) consents
to submit itself to the personal jurisdiction of any Federal court located in
the State of New York or any New York state court in the event any dispute
arises out of this agreement or any of the transactions contemplated by this
letter agreement, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court
and (c) agrees that it will not initiate any action relating to this letter
agreement or any of the transactions contemplated by this letter agreement in
any court other than a Federal court sitting in the State of New York or a New
York state court.
10. This letter agreement may be terminated at the option of any party at any
time upon the earlier of (i) the date on which the Agreement is terminated in
accordance with its terms, (ii) the Effective Time of the Merger and (iii)
January 31, 2001.
-3-
11. This letter agreement constitutes the entire agreement among the parties
hereto with respect to the matters covered hereby and supersedes all prior
agreements, understandings or representations among the parties written or oral,
with respect to the subject matter hereof.
12. The parties agree that the Company shall be a third party beneficiary of the
provisions of Sections 2, 3, 4, 5, 7 and 9 of this letter agreement, provided
that the Company's consent shall not be necessary or required for any amendment
or waiver to this letter agreement.
13. Any successor, assignee or transferee (including a successor, assignee or
transferee as a result of the death of the Stockholder, such as an executor or
heir) shall be bound by the terms hereof, and the Stockholder shall take any and
all actions necessary to obtain and deliver to Parent the written confirmation
from such successor, assignee or transferee that it is bound by the terms
hereof.
14. Capitalized terms not defined in this letter agreement shall have the
meaning assigned to them in the Agreement.
-4-
Please confirm that the foregoing correctly states the
understanding between us by signing and returning to me a counterpart hereof.
Very truly yours,
NORANDA INC.
/s/ Xxxxx Xxxx
By: /s/ A. Regent
--------------
Name:
Confirmed on the date first above written.
NEWMONT MINING CORPORATION
By: /s/ Xxxxx X. Xxxxx
------------------
Name:
Title:
BATTLE MOUNTAIN GOLD COMPANY
By: /s/ Xxxx X. Xxxxx
----------------------
Name:
Title:
