ESCROW AGREEMENT Exhibit 10(z)
THIS AGREEMENT made as of this 14th day of November, 2001.
AMONG:
Seymour Schulich, an individual of the City of Toronto, in the
Province of Ontario ("Schulich")
- and -
NEVADA CAPITAL CORPORATION LIMITED ("the Security Holder")
- and -
Gowling Lafleur Henderson LLP, a limited liability partnership
under the laws of the Province of Ontario
(hereinafter called the "Escrow Agent")
- and -
NEWMONT MINING CORPORATION, a corporation incorporated under the
laws of Delaware
(hereinafter called "Newmont")
WHEREAS Newmont and Franco-Nevada Mining Corporation Limited, a
corporation incorporated under the laws of Canada ("Franco-Nevada") are entering
into an arrangement agreement (the "Agreement"), dated the date hereof,
providing for, among other things, the acquisition of all of the outstanding
securities in the capital of Franco-Nevada in exchange for Newmont Shares and
Exchangeable Shares (exchangeable into Newmont Shares) by way of a plan of
arrangement under the Canada Business Corporations Act;
AND WHEREAS the Security Holder currently owns common shares in
Franco-Nevada (the "Franco-Nevada Shares") as set forth in Schedule "I";
AND WHEREAS, as a result of the completion of the transactions
contemplated by the Agreement, the Security Holder, either directly or
indirectly, will own common shares in the capital of Newmont ("Newmont Shares")
and/or Exchangeable Shares as set forth in Schedule "I" (the "Newmont
Securities");
AND WHEREAS to induce Newmont to enter into the Agreement, the
Security Holder has deposited (or has agreed to deposit), in escrow,
certificates representing the Franco-Nevada Shares (the "Escrowed Franco-Nevada
Shares") duly endorsed for transfer and, upon receipt thereof, certificates
representing the Newmont Securities (the "Escrowed
-2-
Newmont Shares") (collectively, the "Escrowed Franco-Nevada Shares", the
"Escrowed Newmont Shares", together with any replacement or substituted
securities therefor, the "Escrowed Shares");
AND WHEREAS the Escrow Agent has agreed to undertake and perform its
duties according to the terms and conditions hereof;
AND WHEREAS the foregoing statements of fact and recitals are made by
the parties hereto except the Escrow Agent;
NOW THEREFORE THIS AGREEMENT WITNESSES that for and in consideration
of the aforesaid agreements, and of the sum of one dollar ($1.00) now paid by
the parties hereto each to the other (receipt of which sum the parties do hereby
respectively acknowledge each to the other) Schulich, the Security Holder,
Newmont and the Escrow Agent covenant and agree each with the other as follows:
1. All capitalized terms used but not defined herein, including in the
recitals and schedule hereto, shall have the same meaning as in the Agreement.
2. Each of the Security Holder hereby undertakes and agrees forthwith to
deliver certificates representing:
(a) the Escrowed Franco-Nevada Shares not delivered with this agreement,
and
(b) the Escrowed Newmont Shares when certificates therefor are issued,
(including, without limitation, any replacement certificates if and when such
are issued) to the Escrow Agent for deposit in escrow.
3. Other than as provided for in Section 4 of this agreement, the
Escrowed Shares and the beneficial ownership of or any interest in them and the
certificates representing them (including, without limitation, any replacement
certificates) shall not be sold, assigned, transferred, mortgaged, hypothecated,
charged, pledged, alienated, released from escrow, transferred within escrow, or
otherwise dealt with (including, without limitation, by way of a hedge or
derivative securities transaction) except:
(a) as may be required by reason of the death or bankruptcy of the
Security Holder, in which case the Escrow Agent shall hold the
Escrowed Shares to which such Security Holder is entitled, subject to
this agreement, for whatever person, firm or corporation as shall be
legally entitled to be or to become the registered owner thereof;
(b) pursuant to the transactions contemplated by the Agreement to permit
the delivery of the certificates for the Escrowed Franco-Nevada Shares
in accordance with the Plan of Arrangement for the purposes of
receiving into escrow the Escrowed Newmont Shares; or
(c) with the prior written consent of Newmont, which consent may be
unreasonably withheld.
-3-
4. Notwithstanding anything to the contrary contained in Section 3 of
this agreement, it is agreed that Escrowed Shares will be released from escrow
from time to time as set forth in Schedule "I" hereto.
5. The Security Holder hereby directs the Escrow Agent to retain its
Escrowed Shares and the certificates (including, without limitation, any
replacement certificates) representing the same and not to do or cause anything
to be done to release the same from escrow or to allow any sale, assignment,
hypothecation, pledge, charge, or alienation thereof except in accordance with
the terms of this agreement. The Escrow Agent accepts the responsibilities
placed on it hereby and agrees to perform the same in accordance with the terms
hereof.
6. The Escrow Agent shall be protected in acting and relying reasonably
upon any written notice, direction, instruction, order, certificate,
confirmation, request, waiver, consent, receipt, statutory declaration or other
paper or document (collectively referred to as "Documents") furnished to it and
signed by any person required to or entitled to execute and deliver to the
Escrow Agent any such Documents in connection with this agreement, not only as
to its due execution and validity and effectiveness of its provisions, but also
as to the truth and accuracy of any information therein contained, which it in
good faith believes to be genuine.
7. If during the period in which any of the Escrowed Shares are retained
in escrow pursuant hereto, any dividend is received by the Escrow Agent in
respect of the Escrowed Shares, any such dividend shall be forthwith paid or
transferred to the Security Holder.
8. The Security Holder has all necessary power and authority to enter
into this agreement. This agreement is the legal, valid and binding agreement of
the Security Holder and is enforceable against the Security Holder in accordance
with its terms.
9. Any notices or other communications to be made or given hereunder
shall be in writing and shall reference this agreement and may, subject as
hereinafter provided, be made or given by personal delivery or by facsimile
transmission (provided such transmission is recorded as being successfully
transmitted) addressed to the respective parties as follows:
(a) if to the Security Holder: Mr. Seymour Schulich
c/o Franco-Nevada Mining
Corporation Limited
Suite 1900, Box 2005
20 Eglinton Avenue West
Toronto, Ontario
M4R 1K8
Tel: (416) 480-6496
Fax: (416) 488-6598
(b) if to the Escrow Agent: Gowling Lafleur Henderson LLP
Attn: Leslie T. Gord
Suite 5800, Scotia Plaza
40 King Street West
Toronto, Ontario
M5H 3Z7
Canada
Tel: (416) 369-7309
Fax: (416) 369-7250
-4-
(c) if to Newmont: Newmont Mining Corporation
Attn: Britt D. Banks
1700 Lincoln Street
Denver, Colorado 80203
United States of America
Tel: (303) 837-5998
Fax: (303) 837-5810
with a copy to:
Wachtell, Lipton, Rosen & Katz
Attn: David A. Katz
51 West 52nd Street
New York, New York 10019
United States of America
Tel: (212) 403-1000
Fax: (212) 403-2000
All such notices and communications shall be deemed to have been received on the
date of such delivery or sending.
10. All voting rights attached to the Escrowed Shares shall at all times
be exercised by the registered owners thereof and the Escrow Agent shall take
all necessary steps from time to time to permit such registered owners to
exercise such rights.
11. Newmont and the Security Holder jointly and severally agree to
indemnify and hold the Escrow Agent harmless from and against any and all
liabilities, causes of action, claims, demands, judgments, damages, costs and
expenses (including, without limitation, legal fees and expenses) that may arise
out of or in connection with the Escrow Agent's good faith acceptance of and
performance of its duties and obligations under this agreement. The Escrow Agent
shall be under no duty to institute any suit, or to take any remedial procedures
under this agreement, or to enter any appearance or in any way defend any suit
in which it may be made a defendant hereunder until it shall be indemnified as
provided above. This provision shall survive the resignation or removal of the
Escrow Agent and/or the termination of this agreement.
12. In the event that the Escrow Agent shall be uncertain as to its duties
or rights hereunder or shall receive instructions with respect to the Escrowed
Shares which, in its sole discretion, are in conflict either with other
instructions received by it or with any provision of this agreement, the Escrow
Agent shall have the absolute right to suspend all further performance under
this agreement (except for the safekeeping of the Escrowed Shares) until such
uncertainty or conflicting instructions have been resolved to the Escrow Agent's
sole satisfaction by final judgment of a court of competent jurisdiction, joint
written instructions from all of the other parties hereto, or otherwise. In the
event that any controversy arises between one or more of the parties hereto or
any other party with respect to this agreement or the Escrowed Shares, the
Escrow Agent shall not be required to determine the proper resolution of such
controversy and shall have the absolute right, in its sole discretion, to
deposit the Escrowed Shares with the clerk of a court of competent jurisdiction,
file a suit in interpleader in that court and obtain an order from that court
requiring all parties involved to resolve their respective claims or to litigate
their respective claims arising out of or in connection with the Escrowed Shares
in that court. Upon the deposit by the Escrow Agent of the Escrowed Shares with
the clerk of that court in
-5-
accordance with this provision, the Escrow Agent shall be relieved of all
further obligations and released from all liability hereunder.
13. Newmont hereby acknowledges the terms and conditions of this agreement
and agrees to take all reasonable steps to facilitate its performance.
14.
(a) If the Escrow Agent should wish to resign, it shall give at least 30
days' notice to Newmont and the Security Holder of the effective date
of resignation or removal, whereupon Newmont may, with the written
consent of the Security Holder, by writing appoint another Escrow
Agent in its place and such appointment shall be binding on the
Security Holder. Upon the appointment of a successor escrow agent, the
Escrow Agent shall be discharged from all further duties and
obligations hereunder and the new escrow agent shall assume and be
bound by the obligations of the Escrow Agent hereunder.
(b) Upon the effective date of resignation or removal, if Newmont has not
appointed a successor escrow agent, the Security Holder may appoint a
successor escrow agent. Failing such appointment by the Security
Holder within 30 days from the effective date, the Escrow Agent shall
return the Escrowed Shares to Newmont to be held in trust for the
Security Holder and the duties and obligations of the Escrow Agent
under this agreement shall cease immediately.
15. The Escrow Agent may retain legal counsel and advisors as may be
reasonably required for the purpose of discharging its duties or determining its
rights under this agreement, and may rely and act upon the advice of such
counsel or advisors. Newmont shall pay or reimburse the Escrow Agent for any
reasonable fees, expenses and disbursements of such counsel or advisors.
16. The Escrow Agent shall have no duties or responsibilities except as
expressly provided in this agreement and shall have no liability or
responsibility arising under any other agreement, including, without limitation,
any agreement referred to in this agreement, to which the Escrow Agent is not a
party.
17. The written consent, order or direction of Newmont as to a release
from escrow of all or any part of the Escrowed Shares shall terminate this
agreement only in respect of those Escrowed Shares so released. For greater
certainty, this clause does not apply to Escrowed Shares transferred within
escrow.
18. This agreement may be executed in several parts in the same form and
such parts as so executed shall together form one original agreement, and such
parts if more than one shall be read together and construed as if all the
signing parties hereto had executed one copy of this agreement. The signature of
any of the parties hereto may be evidenced by a facsimile copy of this agreement
bearing such signature.
19. Wherever the singular or masculine are used throughout this agreement,
the same shall be construed as being the plural or feminine or neuter where the
context so requires.
20. This agreement shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the laws of the Province of
Ontario and the federal laws of Canada applicable therein. Each of the parties
hereto irrevocably submits to the non-exclusive
-6-
jurisdiction of the courts of the Province of Ontario with respect to any matter
arising hereunder or related hereto.
21. Any term of this Agreement which is invalid or unenforceable will not
affect any other term of this agreement.
22. Where a notice, waiver, permit, consent, direction, authorization or
instruction is to be delivered or given by or to the Security Holder, such
notice, waiver, permit, consent, direction, authorization or instruction may be
provided by or to Schulich on behalf of and in the name of the Security Holder,
and the Security Holder shall have been deemed to have authorized and consented
to or to have received, as the case may be, such delivery.
23. This agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators, successors
and permitted assigns.
IN WITNESS WHEREOF the parties hereto have executed these presents the
day and year first above written.
SIGNED, SEALED AND DELIVERED
in the presence of
/s/ Sharon E. Dowdall /s/ Seymour Schulich
- ---------------------------------- -------------------------------
Witness SEYMOUR SCHULICH
NEVADA CAPITAL CORPORATION
LIMITED
By: /s/ Seymour Schulich
---------------------------
Name:
Title: President
By: ___________________________
Name:
Title:
GOWLING LAFLEUR HENDERSON LLP
By: /s/ Leslie Gord
---------------------------
Name:
Title: Partner
By: ___________________________
Name:
Title:
NEWMONT MINING CORPORATION
By: /s/ Wayne W. Murdy
---------------------------
Name:
Title: Chairman of the
Board, President
and Chief Executive
Officer
By: ___________________________
Name:
Title:
SCHEDULE I
ESCROWED SHARES
Escrowed Franco-Nevada Shares
======================================================================================================
Number of
Registered Owner Franco-Nevada Shares Release Date
- -----------------------------------------------------------------------------------------------------
Nevada Capital Corporation Limited 10,200,492 Three months following the
termination of the Agreement
======================================================================================================
Escrowed Newmont Shares
=================================================================================================================
Type of Shares
Registered or Indirect (Newmont Shares/ Number of
Owner Exchangeable Shares) Shares Release Date
- -----------------------------------------------------------------------------------------------------------------
Nevada Capital Exchangeable Shares 5,712,275 2,448,118 shares to be
Corporation Limited released on the first
anniversary of the completion
(the "Closing") of the
transactions contemplated by
the Agreement.
An additional 1,632,079 shares
to be released on the second
anniversary of the Closing.
An additional 1,632,078 shares
to be released on the third
anniversary of the Closing.
====================================================================================================================