ARRANGEMENT AGREEMENT
made among
BATTLE MOUNTAIN CANADA LTD.
and
BATTLE MOUNTAIN GOLD COMPANY
and
NEWMONT MINING CORPORATION
and
BOUNTY MERGER CORP.
DATED as of June 21, 2000
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ARRANGEMENT AGREEMENT
THIS ARRANGEMENT AGREEMENT is made as of the 21st day of June, 2000
A M O N G:
BATTLE MOUNTAIN CANADA LTD., a corporation existing
under the laws of the Province of Ontario
(hereinafter referred to as the "Corporation")
OF THE FIRST PART,
- and -
BATTLE MOUNTAIN GOLD COMPANY, a corporation
existing under the laws of the State of Nevada
(hereinafter referred to as "BMG")
OF THE SECOND PART,
- and -
NEWMONT MINING CORPORATION, a corporation existing
under the laws of the State of Delaware
(hereinafter referred to as "Newmont")
OF THE THIRD PART,
- and -
BOUNTY MERGER CORP., a corporation existing under
the laws of the State of Nevada and a wholly-owned
subsidiary of Newmont
(hereinafter referred to as "MergerCo.")
OF THE FOURTH PART.
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WHEREAS Newmont, MergerCo. and BMG have entered into an agreement and
plan of merger made as of June 21, 2000 (the "Merger Plan") whereby MergerCo.
would be merged with and into BMG;
AND WHEREAS, in connection with the Merger Plan, the parties hereto
wish to carry out a transaction pursuant to which the outstanding exchangeable
shares in the capital of the Corporation will be exchanged for shares of common
stock, par value U.S.$1.60 per share, of Newmont;
AND WHEREAS it has been determined that the most expeditious means of
effecting such transaction is pursuant to an arrangement under section 182 of
the Business Corporations Act (Ontario) involving the parties hereto and the
shareholders of the Corporation;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT, in consideration of the
mutual covenants and agreements hereinafter contained and other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the Parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions. In this Agreement and in the recitals hereto, unless there
is something in the context or subject matter inconsistent therewith,
the following words and phrases shall have the meanings hereinafter set
out:
"Affiliate Agreement" means an agreement in the form annexed as Exhibit
B to the Merger Plan;
"Arrangement" means the arrangement under section 182 of the OBCA
contemplated herein, as more particularly described in the Plan of
Arrangement;
"Articles of Arrangement" means the articles of arrangement of the
Corporation relating to the Arrangement;
"BMG Group Shares" means, collectively, those Exchangeable Shares
legally or beneficially owned by any of BMG, the Corporation or any
wholly-owned subsidiary of BMG or the Corporation;
"Business Day" means a day which is not a Saturday, Sunday or a civic
or statutory holiday in Toronto, Ontario or New York, N.Y.;
"Certificate of Arrangement" means the certificate of arrangement
giving effect to the Arrangement, endorsed by the Director on the
Articles of Arrangement pursuant to subsection 183(2) of the OBCA;
"Common Shares" means common shares in the capital of the Corporation;
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"Conversion Number" means the "Conversion Number", as such term is
defined in the Merger Plan;
"Court" means the Ontario Superior Court of Justice;
"Director" means the Director appointed under section 278 of the OBCA;
"Dissent Rights" means the right to dissent from the Arrangement in the
manner described in the Interim Order and Part 5 of the Plan of
Arrangement;
"Dissenting Shares" means Exchangeable Shares in respect of which
Dissent Rights are validly exercised by the holders thereof such that
the holders thereof become entitled to be paid the fair value thereof;
"Effective Date" means the date on which the Effective Time occurs;
"Effective Time" means the "Effective Time of the Merger", as such term
is defined in the Merger Plan;
"Exchange Agent" shall have the meaning ascribed thereto in the Merger
Plan;
"Exchangeable Shares" means exchangeable shares in the capital of the
Corporation;
"Final Order" means the final order made by the Court pursuant to
subsection 182(5) of the OBCA, if issued, approving the Arrangement;
"Information Circular" means, collectively, the information circular,
notice of meeting, proxy form and letter of transmittal to be prepared
and sent by the Corporation to the Shareholders soliciting approval of
the Arrangement;
"Interim Order" means the order of the Court providing for those things
contemplated in section 5.1;
"Laws" means all statutes, regulations, rules, orders, published
policies and guidelines and the terms and conditions of any grant of
approval, permission, authority or licence of any court, government,
governmental authority or agency, statutory body or self-regulatory
body (including the TSE and the NYSE), and the terms "applicable" with
respect to such Laws and a context that refers to one or more persons,
means that such Laws apply to such person or persons or its or their
business, undertaking, property or securities and emanate from a person
having jurisdiction over the person or persons or its or their
business, undertaking, property or securities;
"Meeting" means the special meeting of Shareholders called for the
purpose of considering, among other things, the Arrangement, including
any adjournments thereof;
"Merger Plan" has the meaning ascribed thereto in the recitals to this
Agreement;
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"Newmont Shares" means shares of common stock, par value US$1.60 per
share, of Newmont;
"NYSE" means the New York Stock Exchange;
"OBCA" means the Business Corporations Act (Ontario), as amended;
"Parties" means the parties to this Agreement (including, if the ULC
Election is made, ULC);
"Plan of Arrangement" means the formal plan of arrangement attached as
Exhibit A to this Agreement, setting forth the specific terms and
conditions of the Arrangement;
"Shareholders" means the holders of (i) the Exchangeable Shares, and
(ii) the Common Shares;
"subsidiary" has the meaning ascribed thereto in the OBCA;
"TSE" means The Toronto Stock Exchange;
"ULC" means, if the ULC Election is made, an unlimited liability
company that will be incorporated and organized under the laws of the
Province of Nova Scotia as a direct or indirect wholly-owned subsidiary
of Newmont for the purpose of participating in this Arrangement;
"ULC Election" means an election by Newmont, in its sole discretion, to
incorporate and organize ULC and to cause ULC to participate in the
Arrangement, as contemplated in the Plan of Arrangement;
"U.S. Securities Act" means the United States Securities Act of 1933,
as amended;
"U.S. Securities Exchange Act" means the United States Securities
Exchange Act of 1934, as amended; and
"U.S. Commission" means the United States Securities and Exchange
Commission.
All initially capitalized words and phrases used herein that are not
expressly defined herein and that are defined in the OBCA shall have
the same meaning herein as in the OBCA unless the context otherwise
requires.
1.2 Currency. All sums of money which are referred to in this Agreement are
expressed in lawful money of Canada unless otherwise stated.
1.3 Interpretation Not Affected by Headings. The division of this Agreement
into articles, sections and the further division thereof and the
insertion of headings are for convenience of reference only and shall
not affect the construction or interpretation of this Agreement.
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1.4 References to Agreement. The terms "this Agreement", "hereof",
"herein", "hereunder" and similar expressions refer to this Arrangement
Agreement and not to any particular section or other portion hereof and
include any agreement or instrument supplementary or ancillary hereto
and, unless otherwise indicated, a reference herein to an article or
section is to the appropriate article or section of this Agreement.
1.5 Number and Gender. In this Agreement words importing the singular
number only shall include the plural and vice versa, words importing
the use of any gender shall include all genders and words importing
persons shall include firms and corporations and vice versa.
1.6 Actions to be Taken on Business Days. In the event that any date on
which any action is required to be taken hereunder by any of the
Parties is not a Business Day, such action shall be required to be
taken on the next succeeding day which is a Business Day.
1.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the federal
laws of Canada applicable therein.
1.8 Exhibit. The following exhibit is hereby incorporated in and forms part
of this Agreement:
Exhibit A - Plan of Arrangement
ARTICLE 2
PURPOSE AND COVENANTS
2.1 Purpose. The Parties have entered into this Agreement for the purpose
of effecting the Arrangement on the Effective Date.
2.2 Covenants of Newmont. Newmont shall act in good faith in completing the
Arrangement as soon as reasonably practicable and, without limiting the
generality of the foregoing, shall:
(a) co-operate with the Corporation and the other Parties in
making an application, as soon as reasonably practicable after
the execution of this Agreement, to the Court for the Interim
Order on the terms set out in section 5.1;
(b) co-operate with the Corporation and the other Parties in the
preparation of the Information Circular for distribution to
the Shareholders in connection with the Meeting, and ensure
that the information contained in the Information Circular
with respect to and provided by Newmont and MergerCo. (and, if
the ULC Election is made, ULC) will not contain any untrue
statement of a material fact and will not omit to state a
material fact that is required to be stated or that is
necessary to make a statement therein contained not misleading
in light of the circumstances in which it was made;
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(c) subject to the approval of the Arrangement by the
Shareholders, co-operate with the Corporation and the other
Parties in making the appropriate application to the Court for
the Final Order;
(d) use all reasonable efforts in a timely and expeditious manner
to cause each of the conditions precedent set out in Part 4
hereof which requires action by it to be satisfied on a timely
basis and in any event no later than December 31, 2000;
(e) as soon as reasonably practicable, determine whether to make
the ULC Election and give prompt notice of such determination
to the other Parties;
(f) if it makes the ULC Election, take all action necessary to
cause ULC (i) to be incorporated and organized, (ii) to agree
in writing with the other Parties to become bound by this
Agreement as if it were an original signatory hereto and to
meet its obligations under the Plan of Arrangement, and (iii)
to meet each of ULC's obligations under the Plan of
Arrangement;
(g) on or prior to the Effective Date, conditionally allot and
reserve for issuance the number of Newmont Shares that are to
be exchanged for Exchangeable Shares under the Plan of
Arrangement;
(h) use all reasonable efforts (including, if necessary, applying
for discretionary relief from regulatory authorities), in a
timely and expeditious manner, to ensure that the Newmont
Shares that will be issued in connection with the Arrangement
may be resold following completion of the Arrangement:
(i) on the NYSE by Canadian residents who are not
affiliates (as such term is used in the U.S.
Securities Act) of Newmont, subject only to any
restrictions imposed under provincial securities
legislation relating to sales of securities from the
holdings of "control persons", market preparations
and consideration payments; and
(ii) in the United States, subject only to any
restrictions imposed by Rules 144 and 145 under the
U.S. Securities Act relating to sales of such Newmont
Shares by "affiliates" of Newmont;
(i) maintain its status as a registrant under the U.S. Securities
Exchange Act and file in a timely manner all documents
required to be filed with the U.S. Commission as a result of
such status or as a result of the Arrangement;
(j) deliver to the other Parties such other documents and
certificates as may be reasonably required by the other
Parties in connection with the completion of the Arrangement;
and
(k) take all action necessary to cause MergerCo. to comply with
its obligations under this Agreement.
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2.3 Covenants of MergerCo. MergerCo. shall act in good faith in completing
the Arrangement as soon as reasonably practicable and, without limiting
the generality of the foregoing, shall:
(a) co-operate with the Corporation and the other Parties in
making an application, as soon as reasonably practicable after
the execution of this Agreement, to the Court for the Interim
Order on the terms set out in section 5.1;
(b) co-operate with the Corporation and the other Parties in the
preparation of the Information Circular for distribution to
the Shareholders in connection with the Meeting;
(c) subject to the approval of the Arrangement by the
Shareholders, co-operate with the Corporation and the other
Parties in making the appropriate application to the Court for
the Final Order;
(d) use all reasonable efforts in a timely and expeditious manner
to cause each of the conditions precedent set out in Part 4
hereof which requires action by it to be satisfied on a timely
basis and in any event no later than December 31, 2000; and
(e) deliver to the other Parties such other documents and
certificates as may be reasonably required by the other
Parties in connection with the completion of the Arrangement.
2.4 Covenants of the Corporation. The Corporation shall act in good faith
in completing the Arrangement as soon as reasonably practicable and,
without limiting the generality of the foregoing, shall:
(a) in co-operation with the other Parties, make an application,
as soon as reasonably practicable after the execution of this
Agreement, to the Court for the Interim Order on the terms set
out in section 5.1;
(b) in co-operation with the other Parties, prepare the
Information Circular for distribution to the Shareholders in
connection with the Meeting, which circular shall be prepared
and distributed to the Shareholders in accordance with
applicable Laws and which circular shall contain a
recommendation of the board of directors of the Corporation
that the Shareholders vote in favour of the Arrangement at the
Meeting, and ensure that the Information Circular shall comply
as to form and content in all material respects with the
requirements of applicable Law and that the information
contained in the Information Circular (other than the
information referred to in paragraphs 2.2(b) and 2.5(b)) will
not contain any untrue statement of a material fact and will
not omit to state a material fact that is required to be
stated or that is necessary to make a statement therein
contained not misleading in light of the circumstances in
which it was made;
(c) file the Information Circular in all jurisdictions where the
same is required and convene the Meeting in accordance with
the Interim Order in a timely and expeditious manner and
solicit proxies to be voted at the Meeting in favour of the
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Arrangement and conduct the Meeting in accordance with the
articles and by-laws of the Corporation and as otherwise may
be required by applicable Laws;
(d) subject to the approval of the Arrangement by the
Shareholders, in co-operation with the other Parties, make the
appropriate application to the Court for the Final Order and
in so doing advise the Court, prior to the granting of the
Final Order that, if the Arrangement is approved, the Newmont
Shares to be issued and exchanged pursuant to the Arrangement
shall not require registration under the U.S. Securities Act
by virtue of section 3(a)(10) thereof and the Final Order;
(e) subject to obtaining the Final Order and the satisfaction or
waiver of the other conditions contained herein in favour of
each Party, send to the Director, pursuant to section 183 of
the OBCA, the Articles of Arrangement and such other documents
as may reasonably be required in connection therewith under
the OBCA to give effect to the Arrangement and take all
further steps, including obtaining the Certificate of
Arrangement, as may reasonably be required to complete the
Arrangement;
(f) use all reasonable efforts in a timely and expeditious manner
to cause each of the conditions precedent set out in Part 4
hereof which requires action by it to be satisfied on a timely
basis and in any event no later than December 31, 2000;
(g) deliver to BMG and Newmont, no later than 30 days prior to the
Meeting, a letter identifying all persons who are, or may be
deemed to be, at the time of the Meeting, "affiliates" of the
Corporation within the meaning of Rule 145(c) and Rule
144(a)(1) under the U.S. Securities Act and shall use its
reasonable best efforts to cause each person who is identified
as an "affiliate" to execute and deliver to BMG and Newmont,
prior to the Effective Date, an Affiliate Agreement; and
(h) deliver to the other Parties such other documents and
certificates as may be reasonably required by the other
Parties in connection with the completion of the Arrangement.
2.5 Covenants of BMG. BMG shall act in good faith in completing the
Arrangement as soon as reasonably practicable and, without limiting the
generality of the foregoing, shall:
(a) co-operate with the Corporation and the other Parties in
making an application, as soon as reasonably practicable after
the execution of this Agreement, to the Court for an Interim
Order on the terms set out in section 5.1;
(b) co-operate with the Corporation and the other Parties in the
preparation of the Information Circular for distribution to
the Shareholders in connection with the Meeting, and ensure
that the information contained in the Information Circular
with respect to and provided by BMG and the Corporation will
not contain any untrue statement of a material fact and will
not omit to state a material fact that is required to be
stated or that is necessary to make a statement therein
contained not misleading in light of the circumstances in
which it was made;
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(c) subject to the approval of the Arrangement by the
Shareholders, co-operate with the Corporation and the other
Parties in making the appropriate application to the Court for
the Final Order;
(d) use all reasonable efforts in a timely and expeditious manner
to cause each of the conditions precedent set out in Part 4
hereof which requires action by it to be satisfied on a timely
basis and in any event no later than December 31, 2000;
(e) until the Effective Time, maintain its status as a registrant
under the U.S. Securities Exchange Act and file in a timely
manner all documents required to be filed with the U.S.
Commission as a result of such status or as a result of the
Arrangement;
(f) deliver to the other Parties such other documents and
certificates as may be reasonably required by the other
Parties in connection with the completion of the Arrangement;
and
(g) take all steps necessary to cause the Corporation to comply
with its covenants and to meet its obligations under this
Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Newmont. Newmont represents and
warrants to and in favour of each other Party as follows and
acknowledges that such Parties are relying upon such representations
and warranties:
(a) Newmont is a corporation duly incorporated and validly
existing under the laws of the State of Delaware and has all
necessary corporate power and capacity and qualifications to
own or lease its property and assets, to conduct its business
as now conducted by it and to perform its obligations under
this Agreement;
(b) the authorized and issued share capital of Newmont is as
described in section 3.2(c) of the Merger Plan;
(c) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly approved by the board of directors of Newmont and this
Agreement constitutes a valid and binding obligation of
Newmont enforceable against it in accordance with its terms,
subject to bankruptcy and similar laws affecting the
enforcement of creditors' rights generally and to equitable
remedies being in the discretion of the court;
(d) the execution of this Agreement and the performance of the
terms hereof shall not result in any breach of, be in conflict
with, constitute a default under (whether after notice or
lapse of time or both) or result in the acceleration of
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indebtedness pursuant to any contract, lease, agreement,
instrument or other commitment, written or oral, to which
Newmont is a party or by which Newmont is bound or any
judgment, decree, order, statute, rule, licence or regulation
applicable to Newmont;
(e) the issued and outstanding Newmont Shares are listed on the
NYSE; and
(f) the representations and warranties of MergerCo. in section 3.2
are true and correct.
3.2 Representations and Warranties of MergerCo. MergerCo. represents and
warrants to and in favour of each other Party as follows and
acknowledges that such Parties are relying upon such representations
and warranties:
(a) MergerCo. is a corporation duly incorporated and validly
existing under the laws of the State of Nevada and has all
necessary corporate power and capacity and qualifications to
own or lease its property and assets, to conduct its business
as now conducted by it and to perform its obligations under
this Agreement;
(b) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly approved by the board of directors of MergerCo. and this
Agreement constitutes a valid and binding obligation of
MergerCo. enforceable against it in accordance with its terms,
subject to bankruptcy and similar laws affecting the
enforcement of creditors' rights generally and to equitable
remedies being in the discretion of the court; and
(c) the execution of this Agreement and the performance of the
terms hereof shall not result in any breach of, be in conflict
with, constitute a default under (whether after notice or
lapse of time or both) or result in the acceleration of
indebtedness pursuant to any contract, lease, agreement,
instrument or other commitment, written or oral, to which
MergerCo. is a party or by which MergerCo. is bound or any
judgment, decree, order, statute, rule, licence or regulation
applicable to MergerCo.
3.3 Representations and Warranties of the Corporation. The Corporation
represents and warrants to and in favour of each other Party as follows
and acknowledges that such Parties are relying upon such
representations and warranties:
(a) the Corporation is a corporation duly incorporated and validly
existing under the laws of the Province of Ontario and has all
necessary corporate power and capacity and qualifications to
own or lease its property and assets, to conduct its business
as now conducted by it and to perform its obligations under
this Agreement;
(b) the authorized and issued share capital of the Corporation is
as described in section 3.1(c) of the Merger Plan;
(c) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly approved by the board of directors of the Corporation and
this Agreement constitutes a valid and binding obligation of
the Corporation enforceable against it in accordance with its
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terms, subject to bankruptcy and similar laws affecting the
enforcement of creditors' rights generally and to equitable
remedies being in the discretion of the court; and
(d) the execution of this Agreement and the performance of the
terms hereof shall not result in any breach of, be in conflict
with, constitute a default under (whether after notice or
lapse of time or both) or result in the acceleration of
indebtedness pursuant to any contract, lease, agreement,
instrument or other commitment, written or oral, to which the
Corporation is a party or by which the Corporation is bound or
any judgment, decree, order, statute, rule, licence or
regulation applicable to the Corporation.
3.4 Representations and Warranties of BMG. BMG represents and warrants to
and in favour of each other Party as follows and acknowledges that such
Parties are relying upon such representations and warranties:
(a) BMG is a corporation duly incorporated and validly existing
under the laws of the State of Nevada and has all necessary
corporate power and capacity and qualifications to own or
lease its property and assets, to conduct its business as now
conducted by it and to perform its obligations under this
Agreement;
(b) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly approved by the board of directors of BMG and this
Agreement constitutes a valid and binding obligation of BMG
enforceable against it in accordance with its terms, subject
to bankruptcy and similar laws affecting the enforcement of
creditors' rights generally and to equitable remedies being in
the discretion of the court;
(c) the execution of this Agreement and the performance of the
terms hereof shall not result in any breach of, be in conflict
with, constitute a default under (whether after notice or
lapse of time or both) or result in the acceleration of
indebtedness pursuant to any contract, lease, agreement,
instrument or other commitment, written or oral, to which BMG
is a party or by which BMG is bound or any judgment, decree,
order, statute, rule, licence or regulation applicable to BMG;
and
(d) the representations and warranties of the Corporation in
section 3.3 are true and correct.
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ARTICLE 4
CONDITIONS PRECEDENT
4.1 Mutual Conditions Precedent. The respective obligations of the Parties
to complete the transactions contemplated hereby shall be subject to
the satisfaction, on or before the Effective Date, of each of the
following conditions:
(a) the Arrangement, with or without amendment, and the
transactions contemplated thereby shall have been approved by
the Shareholders at the Meeting in accordance with the Interim
Order;
(b) the Final Order shall have been granted by the Court, which
order shall reflect the intent of the Parties as expressed by
this Agreement and shall be in form and substance satisfactory
to the Parties, acting reasonably and having regard to this
Agreement;
(c) the Final Order, together with the Articles of Arrangement,
shall have been received and accepted by the Director;
(d) there shall not be in force any order or decree of a court of
competent jurisdiction, any federal, provincial, municipal or
other governmental department or any commission, board, agency
or regulatory body restraining, interfering with or enjoining
the consummation of the transactions contemplated by this
Agreement including, without limitation, the Arrangement;
(e) each person (other than the Parties) that is to do any act or
thing contemplated in the Arrangement shall have agreed to do
each such act or thing pursuant to an agreement with the
appropriate Party or Parties, in form and substance
satisfactory to the Parties;
(f) the Parties shall have received all required regulatory
approvals in respect of the Arrangement;
(g) the Merger Plan shall not have been terminated pursuant to
section 7.1 thereof; and
(h) this Agreement shall not have been terminated pursuant to
section 6.4 or section 6.5.
4.2 Conditions to Obligations of Newmont and MergerCo. The obligations of
each of Newmont and MergerCo. to complete the transactions contemplated
hereby is subject to the satisfaction, on or before the Effective Date,
of each of the following conditions, which conditions are for its sole
benefit and may be waived by it in whole or in part by notice in
writing to the other Parties, without prejudice to its rights to rely
on any other or others of such conditions:
(a) except as affected by the transactions contemplated by this
Agreement, the representations and warranties of the
Corporation and BMG contained in sections 3.3 and 3.4 shall be
true and correct in all material respects on the Effective
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Date with the same effect as though such representations and
warranties had been made at and as of such date and it shall
have received a certificate to that effect, in form and
substance satisfactory to it, acting reasonably, dated the
Effective Date, of two officers of each of the Corporation and
BMG; and
(b) each of the covenants, acts and undertakings of the
Corporation and BMG to be performed pursuant to the terms of
this Agreement shall have been duly performed.
4.3 Conditions to Obligations of the Corporation and BMG. The obligations
of each of the Corporation and BMG to complete the transactions
contemplated hereby is subject to the satisfaction, on or before the
Effective Date, of each of the following conditions, which conditions
are for its sole benefit and may be waived by it in whole or in part by
notice in writing to the other Parties, without prejudice to its rights
to rely on any other or others of such conditions:
(a) except as affected by the transactions contemplated by this
Agreement, the representations and warranties of each of
Newmont and MergerCo. contained in sections 3.1 and 3.2 shall
be true and correct in all material respects on the Effective
Date with the same effect as though such representations and
warranties had been made at and as of such date and it shall
have received a certificate to that effect, in form and
substance satisfactory to it, acting reasonably, dated the
Effective Date, of two officers of each of Newmont and
MergerCo.; and
(b) each of the covenants, acts and undertakings of Newmont and
MergerCo. (and, if the ULC Election is made, ULC) to be
performed pursuant to the terms of this Agreement shall have
been duly performed.
ARTICLE 5
IMPLEMENTATION OF TRANSACTIONS
5.1 Interim Order. The notice of motion for the application for the Interim
Order shall request that the Interim Order provide:
(a) for the classes of persons to whom notice is to be provided in
respect of the Arrangement and the Meeting and for the manner
in which such notices are to be provided;
(b) that the holders of Exchangeable Shares (other than the
holders of BMG Group Shares) shall be entitled to vote on the
Arrangement separately as a class and not together with the
holders of any other class of shares of the Corporation, and
that the sole holder of the Common Shares shall be entitled to
vote by consent resolution;
(c) that the requisite Shareholder approval for the Arrangement
shall be two-thirds of the votes cast in respect thereof by
the holders of Exchangeable Shares (other than the BMG Group
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Shares) in person or by proxy at the Meeting and by the
consent of the sole holder of the Common Shares by consent
resolution;
(d) that, in all other respects, the terms, restrictions and
conditions of the articles and by-laws of the Corporation,
including quorum requirements, shall apply in respect of the
Meeting; and
(e) for the grant of Dissent Rights.
5.2 Articles of Arrangement. The Articles of Arrangement shall, with such
other matters as are necessary to effect the Arrangement, and subject
to the provisions of the Plan of Arrangement, provide that each
Exchangeable Share (other than Dissenting Shares and BMG Group Shares)
shall be exchanged for the Conversion Number of a fully paid and
non-assessable Newmont Share (or cash in lieu of a fractional Newmont
Share, in accordance with section 2.3(e) of the Merger Plan) pursuant
to the Plan of Arrangement.
5.3 Delivery of Newmont Shares by the Exchange Agent. The exchange of
certificates representing Exchangeable Shares for certificates
representing the Newmont Shares (or cash in lieu of fractional Newmont
Shares) to which holders of the Exchangeable Shares become entitled
under the Arrangement shall be made in accordance with the provisions
set out in section 2.3 of the Merger Plan.
5.4 Filing of Final Order. After the Final Order is issued by the Court,
and immediately prior to the Effective Time, a certified copy of the
Final Order and Articles of Arrangement shall be sent to the Director
pursuant to subsection 183(1) of the OBCA with a request that the
Director endorse the Certificate of Arrangement thereon. The
Corporation shall promptly advise the other Parties forthwith after the
Corporation has obtained the Certificate of Arrangement.
ARTICLE 6
GENERAL
6.1 Notice. Any notice, direction or other instrument required or permitted
to be given hereunder shall be in writing and may be given by
delivering the same or sending the same by facsimile transmission
addressed as follows:
(a) To Newmont or MergerCo.:
1700 Lincoln Street
Denver, Colorado 80203
Attention: Joy E. Hansen, General Counsel
Telephone: (303) 863-7414
Fax: (303) 837-5810
<PAGE>
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with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: David A. Katz
Telephone: (212) 403-1000
Fax: (212) 403-2000
and a copy to:
Donahue Ernst & Young
Ernst & Young Tower
222 Bay Street, Suite 1800
P.O. Box 197, T-D Centre
Toronto, Ontario
M5K 1H6
Attention: Grant R.M. Haynen
Telephone: (416) 943-3413
Fax: (416) 943-2735
(b) To the Corporation or BMG:
333 Clay Street, 4th Floor
Houston, Texas 77002
Attention: Greg Etter, Vice-President
Telephone: (713) 650-6400
Fax: (713) 650-0600
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Robert B. Schumer
Telephone: (212) 373-3000
Fax: (212) 757-3990
<PAGE>
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and a copy to:
Goodman Philips & Vineberg
250 Yonge Street
Suite 2400
Toronto, Ontario
M5B 2M6
Attention: Stephen H. Halperin
Telephone: (416) 597-4115
Fax: (416) 979-1234
Any such notice, direction or other instrument, whether delivered or
transmitted by facsimile transmission, shall be deemed to have been
given at the time and on the date on which it was delivered to or
received in the office of the addressee, as the case may be, if
delivered or transmitted prior to 5:00 p.m. (at the place of the
addressee) on a Business Day or if transmitted later, at 9:00 a.m. (at
the place of the addressee) on the subsequent Business Day if delivered
or transmitted subsequent to such time. Any Party may change its
address for service from time to time by notice given to the other
Party in accordance with the foregoing. Any notice, direction or other
instrument delivered under this Agreement shall be signed by one or
more duly authorized officers of the Party delivering it.
The delivery of any notice, direction or other instrument, or a copy
thereof, to a Party hereunder shall be deemed to constitute the
representation and warranty of the Party who has delivered it to the
other Party that such delivering Party is authorized to deliver such
notice, direction or other instrument at such time under this Agreement
(unless the receiving Party has actual knowledge to the contrary) and
the receiving Party shall not be required to make any inquiry to
confirm such authority.
6.2 Amendment. This Agreement may, at any time, and from time to time
before and after the holding of the Meeting but not later than the
Effective Date, be amended by written agreement of the Parties (or, in
the case of a waiver, by written instrument of the Party giving the
waiver) without, subject to applicable law, further notice to or
authorization on the part of the Shareholders or the Court. Without
limiting the generality of the foregoing, any such amendment may:
(a) change the time for performance of any of the obligations or
acts of the Parties;
(b) waive any inaccuracies or modify any representation contained
herein or in any documents to be delivered pursuant hereto;
and
(c) waive compliance with or modify any of the covenants herein
contained or waive or modify performance of any of the
obligations of the Parties,
provided, however, that, notwithstanding the foregoing, the terms of
the Arrangement and this Agreement shall not be amended in a manner
prejudicial to the Shareholders without the approval of such
<PAGE>
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Shareholders given in the same manner as required for the approval of
the Arrangement or as may be ordered by the Court.
6.3 Amendment Resulting from Final Order. This Agreement and the
Arrangement may be amended in accordance with the Final Order by
written agreement of the Parties but if the terms of the Final Order
require any such amendment, the rights of the Parties under Article 4
and under the Merger Plan shall remain unaffected.
6.4 Termination of Merger Plan. This Agreement shall terminate
automatically if, and at the same time as, the Merger Plan is
terminated.
6.5 Other Termination. This Agreement may be terminated at any time on or
prior to the Effective Date, whether before or after approval by the
Shareholders of matters presented in connection with the Arrangement,
by the unanimous agreement of the Parties.
6.6 Binding Effect. This Agreement shall be binding upon and enure to the
benefit of the Parties and their respective successors.
6.7 Prohibition Against Assignment. No Party may assign its rights or
obligations under this Agreement.
6.8 Equitable Remedies. All covenants herein as to the enforceability of
any covenant, agreement or document shall be qualified as to applicable
bankruptcy and other laws affecting the enforcement of creditors'
rights generally and to the effect that specific performance, being an
equitable remedy, may not be ordered by a court in any particular
circumstances.
6.9 Non-Survival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Effective Date.
This section 6.9 shall not limit any covenant or agreement of the
Parties which by its terms contemplates performance after the Effective
Date.
6.10 Disclosure. The Parties shall consult with each other before issuing
any press release or making any other public disclosure with respect to
the Arrangement or any other transactions contemplated by this
Agreement.
6.11 Entire Agreement. This Agreement, together with the Merger Plan,
constitutes the whole of the agreement between the Parties with respect
to the transactions and matters herein contemplated and supersedes all
other prior agreements, whether written or oral, in connection
herewith.
6.12 Time of Essence. Time shall be of the essence of this Agreement.
6.13 Severability. If any provision of this Agreement, or the application
thereof, is determined for any reason and to any extent to be invalid
or unenforceable, the remainder of this Agreement and the application
of such provision to other persons and circumstances shall remain in
full force and effect, provided that the legal or economic substance of
the transactions contemplated hereby is not thereby affected in a
manner adverse to any Party.
<PAGE>
-18-
6.14 Specific Performance. The Parties agree that, if any covenant under
this Agreement is not performed in accordance with its specific terms
or is otherwise breached, irreparable damages would result, no adequate
remedy at law, including the payment of damages, would exist, and
damages would, in any event, be difficult to determine, so that the
Party in favour of whom such covenant is made shall be entitled to
specific performance of the terms of this Agreement in addition to any
other remedy at law or in equity.
6.15 Assurances. Each of the Parties will execute and deliver such further
agreements and other documents and do such further acts and things as
any other Party reasonably requests to evidence, carry out and give
full force and effect to the intent of this Agreement.
6.16 Counterpart Executions. This Agreement may be executed in counterparts,
each of which when delivered shall be deemed to be an original and all
of which together shall constitute one and the same document.
<PAGE>
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IN WITNESS WHEREOF this Agreement has been signed, sealed and delivered
by the Parties as of the date first above written.
NEWMONT MINING CORPORATION
By: /s/ Ronald C. Cambre
---------------------
Name: Ronald C. Cambre
Title: Chief Executive Officer
By /s/ Wayne W. Murdy
-------------------
Name: Wayne W. Murdy
Title: President
BOUNTY MERGER CORP.
By /s/ Wayne W. Murdy
-------------------
Name: Wayne W. Murdy
Title: President and Chief
Executive Officer
BATTLE MOUNTAIN GOLD COMPANY
By /s/ John A. Keyes
------------------
Name: John A. Keyes
Title: President and Chief
Operating Officer
By /s/ Greg V. Etter
------------------
Name: Greg V. Etter
Title: Vice President and
General Counsel
<PAGE>
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BATTLE MOUNTAIN CANADA LTD.
By /s/ John A. Keyes
------------------
Name: John A. Keyes
Title: President and Chief
Executive Officer
By /s/ Greg V. Etter
------------------
Name: Greg V. Etter
Title: Vice President
<PAGE>
EXHIBIT A
PLAN OF ARRANGEMENT
IN THE MATTER OF AN ARRANGEMENT involving Battle Mountain Canada Ltd.
and its shareholders, Battle Mountain Gold Company, Newmont Mining
Corporation and Bounty Merger Corp. pursuant to section 182 of the
Business Corporations Act (Ontario)
PART 1
INTERPRETATION
1.1 Definitions. In this Arrangement, unless the context otherwise
requires, the following words and phrases shall have the meanings
hereinafter set out:
"Arrangement Agreement" means the agreement made as of the 21st day of
June, 2000 among the Corporation, BMG, Newmont and MergerCo., entered
into for the purpose of effecting the Arrangement;
"Articles of Arrangement" means the articles of arrangement of the
Corporation relating to this Arrangement;
"BMG" means Battle Mountain Gold Company, a corporation existing under
the laws of the State of Nevada;
"BMG Group Shares" means, collectively, those Exchangeable Shares
legally or beneficially owned by any of BMG, the Corporation or any
wholly-owned subsidiary of BMG or the Corporation;
"Business Day" means a day which is not a Saturday, Sunday or a civic
or statutory holiday in Toronto, Ontario or New York, N.Y.;
"Certificate of Arrangement" means the certificate of arrangement
giving effect to the Arrangement, endorsed by the Director on the
Articles of Arrangement pursuant to subsection 183(2) of the OBCA;
"Common Shares" means the common shares in the capital of the
Corporation;
"Conversion Number" means the "Conversion Number", as such term is
defined in the Merger Plan;
"Corporation" means Battle Mountain Canada Ltd., a corporation existing
under the laws of the Province of Ontario;
<PAGE>
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"Court" means the Ontario Superior Court of Justice;
"Director" means the Director appointed under section 278 of the OBCA;
"Dissent Right" means the right of dissent pursuant to Part 5 hereof;
"Dissenting Shareholder" means a Shareholder who has exercised his or
her Dissent Rights;
"Dissenting Shares" has the meaning ascribed thereto in section 5.1;
"Effective Date" means the date on which the Effective Time occurs;
"Effective Time" means the "Effective Time of the Merger", as such term
is defined in the Merger Plan;
"Exchangeable Shares" means exchangeable shares in the capital of the
Corporation;
"Final Order" means the final order made by the Court pursuant to
subsection 182(5) of the OBCA, if issued, approving this Arrangement;
"Information Circular" means the information circulation, notice of
meeting, proxy form and letter of transmittal to be prepared and sent
by the Corporation to the Shareholders soliciting approval of this
Arrangement;
"Meeting" means the special meeting of the Shareholders called for the
purpose of considering, among other things, this Arrangement, including
any adjournments thereof;
"MergerCo." means Bounty Merger Corp., a corporation existing under the
laws of the State of Nevada;
"Merger Plan" means the agreement and plan of merger made as of June
21, 2000 among Newmont, MergerCo. and BMG;
"Newmont" means Newmont Mining Corporation, a corporation existing
under the laws of the State of Delaware;
"Newmont Shares" means shares of common stock, par value U.S.$1.60 per
share, of Newmont;
"OBCA" means the Business Corporations Act (Ontario), as amended from
time to time;
"Parties" means the parties to the Arrangement Agreement (including, if
the ULC Election is made, ULC);
"Shareholders" means the holders of (i) the Exchangeable Shares, and
(ii) the Common Shares;
"subsidiary" has the meaning ascribed thereto in the OBCA;
<PAGE>
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"ULC" means, if the ULC Election is made, an unlimited liability
company that will be incorporated and organized under the laws of the
Province of Nova Scotia as a direct or indirect wholly-owned subsidiary
of Newmont for the purpose of participating in this Arrangement; and
"ULC Election" means an election by Newmont, in its sole discretion, to
incorporate and organize ULC and to cause ULC to participate in this
Arrangement as contemplated in this Arrangement.
1.2 References to Plan of Arrangement. The terms "this Arrangement",
"hereof", "herein", "hereunder", and similar expressions refer to this
Plan of Arrangement and not to any particular section or other portion
hereof and include any agreement or instrument supplementary or
ancillary hereto and, unless otherwise indicated, a reference herein to
a section is to the appropriate section of this Arrangement.
1.3 Number and Gender. In this Arrangement, words importing the singular
number only shall include the plural and vice versa, words importing
the use of any gender shall include all genders and words importing
persons shall include firms and corporations and vice versa.
1.4 Actions to be Taken on Business Days. In the event that any date on
which any action is required to be taken hereunder by any of the
parties is not a Business Day, such action shall be required to be
taken on the next succeeding day which is a Business Day.
1.5 Governing Law. This Arrangement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the federal
laws of Canada applicable therein.
All initially capitalized words and phrases used herein but not defined herein
shall have the meaning attributed thereto in the OBCA, unless the context
otherwise requires.
PART 2
ARRANGEMENT AGREEMENT
2.1 Arrangement Agreement. This Arrangement is made pursuant to and subject
to the provisions of the Arrangement Agreement.
PART 3
ARRANGEMENT
3.1 Binding Effect. This Arrangement will become effective on the Effective
Date, and on and after the Effective Date shall be binding on each of
the Parties and the Shareholders.
3.2 Effect of Arrangement. The following shall occur and shall be deemed to
occur in the following order without any further act or formality:
<PAGE>
-4-
(a) if Newmont has made the ULC Election, prior to the Effective Time:
(i) ULC shall issue to Newmont that number of common shares of ULC
agreed upon between Newmont and ULC, in consideration for an
aggregate cash subscription price in an amount agreed upon
between Newmont and ULC (the "ULC Cash Amount"), and
(ii) Newmont shall issue to ULC, in consideration for an aggregate
cash subscription price equal to the ULC Cash Amount, that
number of Newmont Shares agreed upon between Newmont and ULC,
provided that such number of Newmont Shares shall not be fewer
than the number of Newmont Shares required to be delivered by
ULC in exchange for Exchangeable Shares pursuant to section
3.2(b) of this Arrangement.
(b) At the Effective Time, each outstanding Exchangeable Share (other than
Dissenting Shares and BMG Group Shares) shall be transferred, without
any act or formality on the part of the holder thereof, to Newmont (or,
if Newmont has made the ULC Election, to ULC) in exchange for the
Conversion Number of a fully paid and non-assessable Newmont Share (or
cash in lieu of a fractional Newmont Share, in accordance with section
2.3(e) of the Merger Plan) and the name of each such holder will be
removed from the register of holders of Exchangeable Shares and added
to the register of holders of Newmont Shares, and Newmont (or, if
Newmont has made the ULC Election, ULC) will be recorded as the
registered holder of such Exchangeable Shares so transferred and will
be deemed to be the legal and beneficial owner thereof. Each BMG Group
Share shall continue to be owned by the holder thereof and shall not be
exchanged for Newmont Shares as hereinbefore provided.
(c) At the Effective Time, Newmont, BMG and MergerCo. shall complete the
Merger (as defined in the Merger Plan) in accordance with the terms of
the Merger Plan.
(d) Immediately following the Effective Time, the definition of "Battle
Mountain Common Stock" as it appears in the articles of the Corporation
shall be deleted and replaced by the following:
"Battle Mountain Common Stock" means the shares of Common Stock of
Battle Mountain, par value US$0.10 per share, having voting rights of
one vote per share, as such Common Stock exists after having given full
effect to the merger (the "Battle Mountain Merger") contemplated by the
Agreement and Plan of Merger among Newmont Mining Corporation, Bounty
Merger Corporation and Battle Mountain dated June 21, 2000 and properly
adjusted to reflect the change in the number of such shares resulting
from the Battle Mountain Merger, and thereafter shall include any other
securities into which such shares may be changed or for which such
shares may be exchanged after the Battle Mountain Merger (whether or
not Battle Mountain shall be the issuer of such other securities) or
any other consideration which may be received by the holders of such
shares pursuant to a recapitalization, reconstruction, reorganization
<PAGE>
-5-
or reclassification of, or an amalgamation, merger or liquidation or
similar transaction affecting, such shares after the Battle Mountain
Merger.
3.3 Further Assurances. Notwithstanding that the transactions or events set
out in section 3.2 shall occur and shall be deemed to occur in the
order therein set out without any act or formality, each of the Parties
shall make, do and execute or cause and procure to be made, done and
executed all such further acts, deeds, agreements, transfers,
assurances, instruments or documents as may be required by it in order
to further document or evidence any of the transactions or events set
out in section 3.2.
PART 4
CERTIFICATES
4.1 Effect of Certificate. From and after the Effective Time, certificates
formerly representing Exchangeable Shares (other than Dissenting Shares
and BMG Group Shares) which are held by a Shareholder shall represent
only the right to receive certificates representing Newmont Shares and
the right, subject to section 4.3, to receive cash in lieu of receiving
a fractional Newmont Share.
4.2 Delivery of Newmont Shares. The exchange of certificates representing
Exchangeable Shares for certificates representing the Newmont Shares to
which Shareholders are entitled under the Arrangement shall be
concluded in accordance with the provisions set out in section 2.3 of
the Merger Plan.
4.3 Distributions, etc. The declaration of dividends and the making of all
payments or distributions at or after the Effective Time with respect
to shares of the Corporation, BMG and Newmont, as well as the treatment
of any fractional Newmont Shares arising as a result of the
transactions contemplated hereby, shall be governed in accordance with
the provisions of Article Two of the Merger Plan.
PART 5
RIGHTS OF DISSENT
5.1 Dissent Rights. In connection with this Arrangement, holders of
Exchangeable Shares (other than holders of BMG Group Shares) may
exercise Dissent Rights pursuant to the Interim Order and this section
5.1. The Dissent Rights shall be similar in all material respects to
the rights of dissent provided for in section 185 of the OBCA, provided
that Shareholders who duly exercise such Dissent Rights and who:
(a) are ultimately entitled to be paid fair value for their
Exchangeable Shares (the "Dissenting Shares"), shall be deemed
to have transferred their Dissenting Shares to Newmont (or, if
the ULC Election is made, to ULC) at the Effective Time and
<PAGE>
-6-
shall be entitled to be paid the fair value of their
Dissenting Shares by Newmont or ULC, as the case may be; or
(b) for any reason are ultimately not entitled to be paid fair
value for their Exchangeable Shares, shall be deemed to have
participated in this Arrangement on the same basis as if such
holders of Exchangeable Shares did not endeavour to exercise
Dissent Rights;
but in no case shall the Corporation be required to recognize such
persons as holding Exchangeable Shares at or after the Effective Time.
