EXHIBIT 1
Support/Voting Agreement
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June 21, 2000
Newmont Mining Corporation
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Re: Support/Voting Agreement
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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).
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.
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.
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.
By: /s/ Xxxxx Xxxx
/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:
SCHEDULE I
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Ownership of Capital Stock of the Company
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Owned of Record
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1,000 shares of Common Stock of Battle Mountain Gold Company
65,241,526 shares of Exchangeable Shares of Battle Mountain Canada Ltd.
EXHIBIT B
IRREVOCABLE PROXY
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Whereas, the Board of Directors of ____________ [NAME OF CORPORATION]
at a special meeting of the Board on _____________ [DATE], adopted the
following Resolution:
"Resolved that ______________ [NAME OF PROXY HOLDER] be and hereby is
appointed agent of _________________ [NAME OF CORPORATION] pursuant to NRS
78.355 for the purpose of attending any general or special meetings of the
stockholders of Battle Mountain Gold Corporation, a Nevada corporation, in
which this company owns or holds, or may hereafter from time to time own or
hold, any portion of the capital stock, and to vote the shares of
__________________ [NAME OF CORPORATION] in favor of the resolution to
merge Battle Mountain Gold Corporation with Bounty Merger, Inc., a Nevada
Corporation. It is the intent of this Board that the proxy shall continue
until the Support/Voting Agreement, dated June 21, 2000, between
_________________ [NAME OF CORPORATION] and [NAME OF PROXY HOLDER] is
terminated.
___________________ [NAME OF CORPORATION] hereby nominates and
appoints ______________ [NAME OF PROXY HOLDER] its true and lawful
attorney, for it and in its name, place and stead to vote at any regular or
special meeting of the stockholders of Battle Mountain Gold Corporation all
of the stock of the corporation now or hereafter standing the name of
__________________ [NAME OF CORPORATION].
In witness whereof, __________________ [NAME OF CORPORATION] has, by
its duly authorized officer or director, hereunto subscribed its name and
affixed its seal on the ________ day of June, 2000.
-----------------------------------
NAME
Duly authorized officer or director
[Comparable Canadian version to be
developed for Battle Mountain Canada Ltd.]
