<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
NEWMONT MINING CORPORATION
(Name of Issuer)
Common Stock, $1.60 Par Value
(Title of Class of Securities)
651639106
(CUSIP Number)
Stephen M. Vine, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
65 East 55th Street
New York, New York 10022
(212) 872-1000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 22, 1995
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement / /. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter disclosure
provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Continued on following page(s)
Page 1 of 22 Pages
Exhibit Index: Page 8
<PAGE> 2
SCHEDULE 13D
CUSIP NO. 651639106 PAGE 2 OF 22 PAGES
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
GEORGE SOROS (doing business as SOROS FUND MANAGEMENT)
2 Check the Appropriate Box If a Member of a Group*
a. /x/
b. / /
3 SEC Use Only
4 Source of Funds*
AF
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) / /
6 Citizenship or Place of Organization
UNITED STATES
7 Sole Voting Power
Number of 0
Shares
Beneficially 8 Shared Voting Power
Owned By 10,194,692
Each
Reporting 9 Sole Dispositive Power
Person 10,183,426
With
10 Shared Dispositive Power
11,266
11 Aggregate Amount Beneficially Owned by Each Reporting Person
10,194,692
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares*
/x/
13 Percent of Class Represented By Amount in Row (11)
11.85%
14 Type of Reporting Person*
IA; IN
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SCHEDULE 13D
CUSIP NO. 651639106 PAGE 3 OF 22 PAGES
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
STANLEY F. DRUCKENMILLER
2 Check the Appropriate Box If a Member of a Group*
a. /x/
b. / /
3 SEC Use Only
4 Source of Funds*
OO
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) / /
6 Citizenship or Place of Organization
UNITED STATES
7 Sole Voting Power
Number of 840,595
Shares
Beneficially 8 Shared Voting Power
Owned By 0
Each
Reporting 9 Sole Dispositive Power
Person 1,301,143
With
10 Shared Dispositive Power
0
11 Aggregate Amount Beneficially Owned by Each Reporting Person
1,301,143
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares*
/x/
13 Percent of Class Represented By Amount in Row (11)
1.51%
14 Type of Reporting Person*
IN
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SCHEDULE 13D
CUSIP NO. 651639106 PAGE 4 OF 22 PAGES
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
DUQUESNE CAPITAL MANAGEMENT INCORPORATED
2 Check the Appropriate Box If a Member of a Group*
a. /x/
b. / /
3 SEC Use Only
4 Source of Funds*
OO
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) / /
6 Citizenship or Place of Organization
PENNSYLVANIA
7 Sole Voting Power
Number of 0
Shares
Beneficially 8 Shared Voting Power
Owned By 0
Each
Reporting 9 Sole Dispositive Power
Person 0
With
10 Shared Dispositive Power
0
11 Aggregate Amount Beneficially Owned by Each Reporting Person
0
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares*
/x/
13 Percent of Class Represented By Amount in Row (11)
0%
14 Type of Reporting Person*
IA:CO
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Page 5
ITEM 1. SECURITY AND ISSUER.
This Amendment No. 3 to Schedule 13D relates to shares of
Common Stock, $1.60 par value (the "Shares"), of Newmont Mining Corporation (the
"Issuer"). This Amendment No. 3 amends the initial statement on Schedule 13D
dated April 30, 1993 and all amendments thereto (collectively, the "Initial
Statement"). This Amendment No. 3 is being filed to report the pledge by the SFM
Clients of certain of the Shares held by such SFM Clients pursuant to pledge
agreements (each, a "Pledge Agreement") which secure the obligations of the SFM
Clients under a revolving credit facility with a syndicate of lenders. As
reported in the Initial Statement and herein, Mr. Soros may be deemed to be the
beneficial owner of the Shares pledged pursuant to the Pledge Agreements.
Capitalized terms used herein and not otherwise defined herein shall have the
meaning given to them in the Initial Statement. The Initial Statement is
supplementally amended as set forth herein.
ITEM 2. IDENTITY AND BACKGROUND.
As a result of the transfer of the Shares held by Duquesne to
Priority as described in Amendment No. 2, Duquesne is no longer the beneficial
owner of any of the Shares and has ceased to be a Reporting Person.
Information concerning the identity and background of the
Managing Directors of SFM is set forth in Annex A hereto, which has been amended
since the last filing and is incorporated by reference in response to this Item
2.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
On March 22, 1995 each of the SFM Clients executed a Pledge
Agreement pursuant to which certain of the Shares held by each of the SFM
Clients were pledged as collateral to secure the respective obligations of the
SFM Clients under a revolving credit facility dated March 22, 1995 (the "Credit
Agreement") with a syndicate of lenders. Subject to the terms of the Pledge
Agreements, a copy of the form of which is attached hereto as Exhibit G and is
incorporated herein by reference, each of the SFM Clients is entitled to
exercise any and all voting rights pertaining to its Shares and is entitled to
receive any and all dividends paid in respect of its Shares unless and until the
occurrence of an event of default under the Credit Agreement.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
(g) Form of Pledge Agreement dated as of March 22, 1995 to be
executed individually by each of Quota Fund N.V., Quasar International Partners
C.V., Quantum Partners LDC and Quantum Fund N.V.
(h) Power of Attorney dated March 23, 1994 granted by Stanley F.
Druckenmiller in favor of Michael A. Shay.
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Page 6
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
Date: March 23, 1995 GEORGE SOROS
By: /s/ Sean C. Warren
------------------------
Sean C. Warren
Attorney-in-Fact
STANLEY DRUCKENMILLER
Date: March 23, 1995 By: /s/ Michael Shay
----------------------------
Michael Shay
Attorney-In-Fact
DUQUESNE CAPITAL MANAGEMENT INCORPORATED
Date: March 23, 1995 By: /s/ Michael Shay
----------------------------
Michael Shay
Vice President
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Page 7
ANNEX A
The following is a list of all of the persons who serve as Managing
Directors of Soros Fund Management ("SFM"):
Scott K. H. Bessent
Walter Burlock
Stanley Druckenmiller
Arminio Fraga
Gary Gladstein
Robert K. Jermain
Donald H. Krueger
Elizabeth Larson
Gabriel S. Nechamkin
Steven Okin
Dale Precoda
Lief D. Rosenblatt
Mark D. Sonnino
Sean C. Warren
Each of the above-listed persons is a United States citizen whose principal
occupation is serving as Managing Director of SFM, and each has a business
address c/o Soros Fund Management, 888 Seventh Avenue, New York, New York 10106.
During the past five years, none of the above-listed persons has been (i)
convicted in a criminal proceeding, or (ii) a party to any civil proceeding as a
result of which any of such persons has been subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws, or finding any
violations with respect to such laws.
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Page 8
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT PAGE
------- ----
<S> <C>
G Form of Pledge Agreement dated as of March 22, 1995 to be executed 9
individually by each of Quota Fund N.V., Quasar International
Partners C.V., Quantum Partners LDC and Quantum Fund N.V.
H Power of Attorney dated March 23, 1994 granted by 22
Stanley F. Druckenmiller in favor of Michael A Shay
</TABLE>
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EXHIBIT G
BORROWER PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "AGREEMENT") is dated as of March 22,
1995 and entered into by and between [ ] ("PLEDGOR"), and [ ], in its capacity
as collateral agent for the Lenders and the Loan Agents under the Credit
Agreement (all such capitalized terms being used as defined below) (in such
capacity, together with all successors from time to time acting in such
capacity, "COLLATERAL AGENT"; and the Lenders and the Loan Agents (including the
Collateral Agent) being the "SECURED PARTIES").
PRELIMINARY STATEMENTS
A. Pledgor and each of [ ], as borrowers, the financial
institutions described therein (the "Lenders"), and [ ], as administrative
agent, agent and collateral agent for the Lenders, are parties to that certain
Revolving Credit Agreement of even date herewith (said Revolving Credit
Agreement, as it may hereafter be modified, supplemented or amended from time to
time, being the "CREDIT AGREEMENT"); capitalized terms used herein without
definition shall have the meanings set forth in the Credit Agreement.
B. Pledgor is the beneficial owner of the shares of stock (the
"NEWMONT PLEDGED SHARES") described in Schedule I annexed hereto issued by
Newmont Mining Corporation, a Delaware corporation ("Newmont") (which total
number of shares represents those shares the certificates for which will be
delivered hereunder on the Effective Date) and may, from time to time, become
the legal and beneficial owner of Borrower's Other Margin Stock (the Newmont
Pledged Shares, together with any Borrower's Other Margin Stock, being the
"PLEDGED SHARES") and/or Borrower's U.S. Government Securities.
C. It is a condition precedent to the effectiveness of the Credit
Agreement that Pledgor, among other things, shall have executed and delivered
this Agreement pledging the Pledged Shares to secure Pledgor's obligations under
the Loan Documents.
NOW, THEREFORE, in consideration of the premises and in order to
induce Collateral Agent, the other Loan Agents and the Lenders to enter into the
Credit Agreement and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Pledgor hereby agrees with Collateral
Agent as follows:
SECTION 1. PLEDGE OF SECURITY. Pledgor hereby pledges and assigns
to Collateral Agent, and hereby grants to Collateral Agent a security interest
in, all of Pledgor's right, title and interest in and to the following (the
"PLEDGED COLLATERAL"):
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(a) the Newmont Pledged Shares and the certificates
representing the Pledged Shares and any interest of Pledgor in the entries on
the books of any financial intermediary pertaining to the Newmont Pledged
Shares, and all dividends, cash, warrants, rights, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Newmont Pledged
Shares;
(b) all shares of stock of any issuer of Borrower's Other
Margin Stock listed in any Pledge Amendment (as defined in Section 6(b) below)
executed and delivered from time to time by Pledgor to Collateral Agent (which
shares shall be deemed to be part of the Pledged Shares and the Pledged
Collateral and shall so continue to secure payment of the Secured Obligations
(as defined below) notwithstanding that at any moment such shares may be the
subject of notification or other withdrawal of approval by the Administrative
Agent or any Lender under Section 1.01(c)(i) of the Credit Agreement), in the
event that any of the foregoing are certificated, the certificates or other
instruments representing such shares, and any interest of Pledgor in the
entries on the books of any financial intermediary pertaining to such shares,
and all dividends, cash, warrants, rights, instruments and other property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such shares;
(c) all securities or obligations being Borrower's U.S.
Government Securities listed in any Pledge Amendment executed and delivered
from time to time by Pledgor to Collateral Agent (which securities and
obligations shall be deemed to be part of the Pledged Collateral and shall so
continue to secure payment of the Secured Obligations notwithstanding that at
any moment such securities or obligations may be the subject of notification or
other withdrawal of approval by the Administrative Agent or any Lender under
Section 1.01(c)(i) of the Credit Agreement), in the event that any of the
foregoing are certificated, the certificates or other instruments representing
such securities or obligations, and any interest of Pledgor in the entries on
the books of any financial intermediary pertaining to such securities or
obligations, and all interest, cash, instruments and other property or proceeds
from time to time received, receivable or otherwise distributed in respect of
or in exchange for any or all of such securities or obligations; and
(d) to the extent not covered by clauses (a), (b) and (c)
all proceeds of any or all of the foregoing Pledged Collateral. For purposes
of this Agreement, the term "PROCEEDS" includes whatever is receivable or
received when Pledged Collateral or proceeds are sold, exchanged, collected or
otherwise disposed of, whether such disposition is voluntary or involuntary,
and includes, without limitation, proceeds of any indemnity or guaranty payable
to Pledgor or Collateral Agent from time to time with respect to any of the
Pledged Collateral.
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement secures,
and the Pledged Collateral is collateral security for, the prompt payment or
performance in full when due, whether by demand, by required prepayment,
declaration, acceleration or otherwise (including the payment of amounts that
would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11
9
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Page 11
U.S.C. Section 362(a)), of all obligations and liabilities of every nature of
Pledgor now or hereafter existing under or arising out of or in connection with
the Credit Agreement and all extensions or renewals thereof, whether for
principal, interest (including without limitation interest that, but for the
filing of a petition in bankruptcy with respect to Pledgor, would accrue on
such obligations), or otherwise, whether or not owed alone or jointly with any
other Person on any account, whether current or otherwise, whether actual or
contingent and whether as principal debtor, guarantor, surety or otherwise, and
whether or not from time to time decreased or extinguished and later increased,
created or incurred, and all or any portion of such obligations or liabilities
that are paid, to the extent all or any part of such payment is avoided or
recovered directly or indirectly from Collateral Agent or any Secured Party as
a preference, fraudulent transfer or otherwise, (all such obligations and
liabilities being the "UNDERLYING DEBT"), and all obligations of every nature
of Pledgor now or hereafter existing under this Agreement (all such obligations
of Pledgor, together with the Underlying Debt, being the "SECURED
OBLIGATIONS").
SECTION 3. DELIVERY OF PLEDGED COLLATERAL; PERFECTION. (a)
All certificates or instruments representing or evidencing the Pledged
Collateral shall be delivered to and held by or on behalf of Collateral Agent
pursuant hereto and shall be in suitable form for transfer by delivery or, as
applicable, shall be accompanied by Pledgor's endorsement, where necessary, or
duly executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to Collateral Agent. Collateral Agent shall have the
right, at any time after the occurrence and during the continuation of a
Default or Event of Default in its discretion and without notice to Pledgor, to
transfer to or to register in the name of Collateral Agent or any of its
nominees any or all of the Pledged Collateral, subject only to the revocable
rights specified in Section 7(a), and in the case of the Newmont Pledged
Shares, any applicable restrictions set forth in the Standstill Agreement
(which, for purposes of this Agreement, shall have the meaning set forth in the
Credit Agreement but as such Standstill Agreement is in effect on the Effective
Date or as it may be amended or otherwise varied in accordance with Section
6.03 (b) of the Credit Agreement). In addition, Collateral Agent shall have
the right at any time to exchange certificates or instruments representing or
evidencing Pledged Collateral for certificates or instruments of smaller or
larger denominations.
(b) Pursuant to Sections 8-301, 8-313, 8-320 and 8-321 of
the Uniform Commercial Code (the same, in effect in the State of New York or
any other relevant jurisdiction being the "Code") and any provisions of the
Code of Federal Regulations which are applicable to securities the transfer of
which is effected by a notation on the books of a Federal Reserve Bank or a
financial intermediary, Pledgor shall take all steps as may be required to
effect the transfer of such Pledged Collateral to the account of Collateral
Agent (or its custodian or other agent) and to ensure the validity and
perfection of Secured Parties' security interest in such Pledged Collateral.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Pledgor
represents and warrants as follows:
(a) Due Authorization, etc. of Pledged Collateral. All
of the Pledged Shares have been duly authorized and validly issued and are
fully paid and non-assessable.
10
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(b) Description of Pledged Collateral. The Newmont
Pledged Shares constitute certain of the issued and outstanding shares of stock
of Newmont beneficially owned by Pledgor as of the date hereof. Except as set
forth in the Standstill Agreement, there are no outstanding warrants, options
or other rights to purchase, or other agreements outstanding with respect to,
or property that is now or hereafter convertible into, or that requires the
issuance or sale of, any Pledged Shares.
(c) Ownership of Pledged Collateral. Pledgor is the
beneficial owner of all of the Newmont Pledged Shares and Quantum Parent is the
legal and record owner of all such shares and Pledgor is not the legal owner of
any Newmont Pledged Shares. Pledgor is the legal, record and beneficial owner
of all of the other Pledged Collateral. All of the Pledged Collateral is owned
by Pledgor (as described in this Section 4(c)) free and clear of any Liens,
except for the security interest created by this Agreement and, in the case of
the Newmont Pledged Shares, the restrictions created by the Standstill
Agreement.
(d) Governmental Authorizations. No authorization,
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or Newmont or any other issuer of the Pledged
Shares is required for either (i) the pledge by Pledgor of the Pledged
Collateral pursuant to this Agreement and the grant by Pledgor of the security
interest granted hereby or for the execution, delivery or performance of this
Agreement by Pledgor or (ii) the exercise by Collateral Agent of the voting or
other rights, or the remedies in respect of the Pledged Collateral, provided
for in this Agreement (except as may be required in connection with a
disposition of Pledged Collateral by laws affecting the offering and sale of
securities generally).
(e) Perfection. Upon performance by Pledgor of its
covenants set forth in Section 3 and compliance by Collateral Agent (or its
custodian or agent) with any steps which only it (rather than Pledgor) may take
necessary for the perfection of a security interest in any of the Pledged
Collateral, the pledge of the Pledged Collateral pursuant to this Agreement
will create a valid and perfected first priority security interest in the
Pledged Collateral, securing the payment of the Secured Obligations.
(f) Margin Regulations. The pledge of the Pledged
Collateral pursuant to this Agreement does not violate Regulation G, T, U or X
of the Board of Governors of the Federal Reserve System.
(g) Other Information. All information heretofore,
herein or hereafter supplied to Collateral Agent by or on behalf of Pledgor
with respect to the Pledged Collateral is accurate and complete in all
respects.
SECTION 5. TRANSFERS AND OTHER LIENS; ETC. Pledgor shall:
(a) not (i) sell, transfer, assign (by operation of law
or otherwise) or otherwise dispose of, or grant any option with respect to, any
of the Pledged Collateral, except as permitted in Section 6.04 of the Credit
Agreement, or (ii) create or suffer to exist any Lien upon or with respect to
any of the Pledged
11
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Collateral, except for the security interest under this Agreement and any other
Lien permitted under the Credit Agreement (including, without limitation, the
restrictions of the Standstill Agreement); provided that in the event Pledgor
makes an asset disposition permitted by the Credit Agreement, Collateral Agent
shall release the Pledged Collateral that is the subject of such asset
disposition to Pledgor free and clear of the Lien and security interest under
this Agreement concurrently with the consummation of such disposition;
provided further that, as a condition precedent to such release, Collateral
Agent shall have received evidence that arrangements satisfactory to it have
been made either for delivery to Collateral Agent or Administrative Agent of
the Net Cash Proceeds of Sale of such disposition or for the delivery of
substitute collateral as described in the proviso to Section 3.02(c) of the
Credit Agreement;
(b) promptly deliver to Collateral Agent all written
notices received by it with respect to the Pledged Collateral; and
(c) pay promptly when due all taxes, assessments and
governmental charges or levies imposed upon, and all claims against, the
Pledged Collateral, except to the extent the validity thereof is being
contested in good faith; provided that Pledgor shall in any event pay such
taxes, assessments, charges, levies or claims not later than five days prior to
the date of any proposed sale under any judgement, writ or warrant of
attachment entered or filed against Pledgor or any of the Pledged Collateral as
a result of the failure to make such payment.
SECTION 6. FURTHER ASSURANCES; PLEDGE AMENDMENTS. (a)
Pledgor agrees that from time to time, at the expense of Pledgor, Pledgor will
promptly execute and deliver all further instruments and documents, and take
all further action, that may be necessary or desirable, or that Collateral
Agent may request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable Collateral Agent to
exercise and enforce its rights and remedies hereunder with respect to any
Pledged Collateral. Notwithstanding any provision of this Agreement or any
other Loan Document, neither the Collateral Agent nor any agent appointed by it
shall execute or file (nor shall it permit any other person to execute or
file), in the name of Pledgor, any Uniform Commercial Code financing statements
or similar instruments in any jurisdiction of the United States without the
prior written consent of Pledgor.
(b) Pledgor further agrees that it will, as a condition
precedent to any shares of stock becoming Borrower's Other Margin Stock or any
securities or obligations becoming Borrower's U.S. Government Securities,
deliver to Collateral Agent a Pledge Amendment, duly executed by Pledgor, in
substantially the form of Schedule II annexed hereto (each a "PLEDGE
AMENDMENT"), in respect of such Pledged Shares or such securities or
obligations to be pledged pursuant to this Agreement. Pledgor hereby
authorizes Collateral Agent to attach each Pledge Amendment to this Agreement
and agrees that all Pledged Shares and all U.S. Borrower's U.S. Government
Securities listed on any Pledge Amendment delivered to Collateral Agent shall
for all purposes hereunder be considered Pledged Collateral.
12
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SECTION 7. VOTING RIGHTS; DIVIDENDS; ETC.
(a) Subject to Section 7(b):
(i) Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Pledged
Collateral or any part thereof for any purpose not inconsistent with
the terms of this Agreement or the Credit Agreement or otherwise in a
manner prejudicial to the interests of the Secured Parties under this
Agreement. It is understood, however, that none of (A) the voting by
Pledgor of any Pledged Shares for or Pledgor's consent to the election
of directors at a regularly scheduled annual or other meeting of
stockholders or with respect to incidental matters at any such
meeting, or (B) Pledgor's consent to or approval of any action
otherwise permitted under this Agreement and the Credit Agreement, or
(C) in the case of the Newmont Pledged Shares, the voting by Pledgor
of any Newmont Pledged Shares consistent with Pledgor's obligations
set forth in the Standstill Agreement shall be deemed inconsistent
with the terms of this Agreement or the Credit Agreement within the
meaning of this Section 7(a)(i);
(ii) Pledgor shall be entitled to receive and retain, and
to utilize free and clear of the Lien of this Agreement, any and all
dividends, interest and similar earnings paid in respect of the
Pledged Collateral; provided that any and all (A) dividends, interest
and similar earnings paid or payable other than in cash in respect of,
and instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any Pledged Collateral,
and (B) dividends paid or payable in cash in respect of any Pledged
Collateral in connection with a partial or total liquidation or
dissolution of the issuer thereof or in connection with a reduction of
capital, capital surplus or paid-in- surplus of the issuer thereof and
cash paid, payable or otherwise distributed in respect of principal or
in redemption of or in exchange for any Pledged Collateral, shall, in
each case, be, and shall forthwith be delivered to Collateral Agent to
hold as Pledged Collateral and shall, if received by Pledgor, be
received in trust and/or on behalf of and for the benefit of
Collateral Agent,shall be segregated from the other property or funds
of Pledgor and shall forthwith be paid over to Collateral Agent as
Pledged Collateral in the same form as so received (with all necessary
endorsements); and
(iii) Collateral Agent shall promptly execute and deliver
(or cause to be executed and delivered) to Pledgor all such proxies,
dividend payment orders and other instruments as Pledgor may from time
to time reasonably request for the purpose of enabling Pledgor to
exercise the voting and other consensual rights which it is entitled
to exercise pursuant to Section 7(a)(i) above and to receive the
dividends, principal, interest or other earnings payments which it is
authorized to receive and retain pursuant to Section 7(a)(ii) above.
(b) Upon the occurrence and during the continuation of an
Event of Default, but subject, in the case of the Newmont Pledged Shares, to
the delivery of the letter described in Section 4.01(h)(ii) of the
13
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Credit Agreement wherein it is agreed that the Secured Parties will be bound by
the terms of the Standstill Agreement:
(i) all rights of Pledgor to exercise the voting and
other consensual rights which it would otherwise be entitled to
exercise pursuant to Section 7(a)(i) shall cease, and all such rights
shall thereupon become vested in Collateral Agent who shall thereupon
have the sole right to exercise such voting and other consensual
rights, subject, in the case of the Newmont Pledged Shares, to any
applicable restrictions set forth in the Standstill Agreement;
(ii) all rights of Pledgor to receive the dividends,
interest or other earnings payments which it would otherwise be
authorized to receive and retain pursuant to Section 7(a)(ii) shall
cease, and all such rights shall thereupon become vested in Collateral
Agent who shall thereupon have the sole right to receive and hold as
Pledged Collateral such dividends, interest and other earnings
payments; and
(iii) all dividends, principal, interest or other earnings
payments which are received by Pledgor contrary to the provisions of
Section 7(b)(ii) shall be received in trust and/or on behalf of and
for the benefit of Collateral Agent, shall be segregated from the
other property or funds of Pledgor and shall forthwith be paid over to
Collateral Agent as Pledged Collateral in the same form as so received
(with any necessary endorsements).
(c) In order to permit Collateral Agent to exercise the
voting and other consensual rights which it may be entitled to exercise
pursuant to Section 7(b)(i) and to receive all dividends and other
distributions which it may be entitled to receive under Section 7(b)(ii),
Pledgor shall promptly execute and deliver (or cause to be executed and
delivered) to Collateral Agent all such proxies, dividend payment orders and
other instruments as Collateral Agent may from time to time reasonably request.
SECTION 8. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT.
Pledgor hereby irrevocably appoints Collateral Agent as Pledgor's
attorney-in-fact, with full authority in the place and stead of Pledgor and in
the name of Pledgor, Collateral Agent or otherwise, from time to time in
Collateral Agent's discretion to take any action and to execute any instrument
that Collateral Agent may deem necessary or advisable to accomplish the
purposes of this Agreement.
SECTION 9. COLLATERAL AGENT MAY PERFORM. If Pledgor fails to
perform any agreement contained herein, Collateral Agent may itself perform, or
cause performance of, such agreement, and the expenses of Collateral Agent
incurred in connection therewith shall be payable by Pledgor under Section
13(b).
SECTION 10. STANDARD OF CARE. The powers conferred on
Collateral Agent hereunder are solely to protect its interest in the Pledged
Collateral and shall not impose any duty upon it to exercise any such powers.
Except for the exercise of reasonable care in the custody of any Pledged
Collateral in its
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possession, the accounting for moneys actually received by it hereunder and, in
the case of the Newmont Pledged Shares (so long as there has been no amendment
or variation or other action of the kind described in Section 7.08(b) of the
Credit Agreement of the acknowledgement of Newmont described in Section
4.01(h)(iii) of the Credit Agreement) Collateral Agent's compliance with
applicable restrictions set forth in the Standstill Agreement, Collateral Agent
shall have no duty as to any Pledged Collateral. Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation of
Pledged Collateral in its possession if such Pledged Collateral is accorded
treatment substantially equal to that which Collateral Agent accords its own
property consisting of negotiable securities, it being understood that (a)
Collateral Agent shall have no responsibility for (i) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relating to any Pledged Collateral, whether or not Collateral
Agent has or is deemed to have knowledge of such matters (other than providing
Pledgor with notice thereof if Collateral Agent actually receives notice of any
such action), (ii) taking any necessary steps (other than steps taken in
accordance with the standard of care set forth above to maintain possession of
the Pledged Collateral) to preserve rights against any parties with respect to
any Pledged Collateral, (iii) taking any necessary steps to collect or realize
the Secured Obligations or any guarantee therefor, or any part thereof, or any
of the Pledged Collateral or (iv) initiating any action to protect the Pledged
Collateral against the possibility of a decline in market value and (b)
certificates or instruments representing the Pledged Shares may be delivered to
and held by other Persons as agents of Collateral Agent; provided that
Collateral Agent shall not be relieved of its duty of care hereunder in any
such case.
SECTION 11. REMEDIES.
(a)(i) If any Event of Default shall have occurred and be
continuing, Collateral Agent may (subject, in the case of the Newmont Pledged
Shares, to any applicable restrictions set forth in the Standstill Agreement)
exercise in respect of the Pledged Collateral, in addition to all other rights
and remedies provided for herein or otherwise available to it, all the rights
and remedies of a secured party on default under the Code (whether or not the
Code applies to the affected Pledged Collateral), and Collateral Agent may also
in its sole discretion, without notice except as specified in Section 11(a)(iv)
and, in the case of the Newmont Pledged Shares, as required by the Standstill
Agreement, sell the Pledged Collateral or any part thereof in one or more
parcels at public or private sale, at any exchange or broker's board or at any
of Collateral Agent's offices or elsewhere, for cash, on credit or for future
delivery, at such time or times and at such price or prices and upon such other
terms as Collateral Agent may deem commercially reasonable, irrespective of the
impact of any such sales on the market price of the Pledged Collateral.
(ii) Collateral Agent may be the purchaser of any or all
of the Pledged Collateral at any such sale and Collateral Agent, as agent for
and representative of Secured Party (but not any Secured Parties or Secured
Parties in its or their respective individual capacities unless Required
Lenders shall otherwise agree in writing), shall be entitled, for the purpose
of bidding and making settlement or payment of the purchase price for all or
any portion of the Pledged Collateral sold at any such public sale, to use and
apply any of
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the Secured Obligations as a credit on account of the purchase price for any
Pledged Collateral payable by Collateral Agent at such sale.
(iii) Each purchaser at any such sale shall hold the property
sold absolutely free from any claim or right on the part of Pledgor, and
Pledgor hereby waives (to the extent permitted by applicable law) all rights of
redemption, stay and/or appraisal which it now has or may at any time in the
future have under any rule of law or statute now existing or hereafter enacted.
(iv) Pledgor agrees that, to the extent notice of sale shall be
required by law, at least ten days' notice to Pledgor of the time and place of
any public sale or the time after which any private sale is to be made shall
constitute reasonable notification. Collateral Agent shall not be obligated to
make any sale of Pledged Collateral regardless of notice of sale having been
given. Collateral Agent may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
(v) Pledgor hereby waives any claims against Collateral Agent
arising by reason of the fact that the price at which any Pledged Collateral
may have been sold at such a private sale was less than the price which might
have been obtained at a public sale, even if Collateral Agent accepts the first
offer received and does not offer such Pledged Collateral to more than one
offeree. If the proceeds of any sale or other disposition of the Pledged
Collateral are insufficient to pay all the Secured Obligations, Pledgor shall
be liable for the deficiency and the fees of any attorneys employed by
Collateral Agent to collect such deficiency.
(b) (i) In the case of the Newmont Pledged Shares, Collateral
Agent recognizes that there may be certain restrictions on the rights and
remedies otherwise available to it and the Secured Parties due to the operation
of the Standstill Agreement. Collateral Agent, on behalf of itself and each
other Secured Party, hereby further acknowledges that, in connection with the
exercise by Collateral Agent of rights under this Agreement with respect to
such Pledged Collateral, Collateral Agent has reviewed the Standstill
Agreement, and agrees to be bound by the terms of the Standstill Agreement in
connection with the exercise of any and all rights with respect to the voting
or disposition of, or in any other way relating to, such of the Pledged
Collateral as constitutes or relates to the Newmont Pledged Shares.
(ii) Pledgor recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933, as from time to time
amended (the "SECURITIES ACT"), and applicable state securities laws,
Collateral Agent may be compelled, with respect to any sale of all or any part
of the Pledged Collateral conducted without prior registration or qualification
of such Pledged Collateral under the Securities Act and/or such state
securities laws, to limit purchasers to those who will agree, among other
things, to acquire the Pledged Collateral for their own account, for investment
and not with a view to the distribution or resale thereof. Pledgor
acknowledges that any such private sales may be at prices and on terms less
favorable than those obtainable through a public sale without such restrictions
(including, without
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limitation, a public offering made pursuant to a registration statement under
the Securities Act) and, notwithstanding such circumstances, Pledgor agrees
that any such private sale shall be deemed to have been made in a commercially
reasonable manner and that Collateral Agent shall have no obligation to engage
in public sales and no obligation to delay the sale of any Pledged Collateral
for the period of time necessary to permit the issuer thereof to register it
for a form of public sale requiring registration under the Securities Act or
under applicable state securities laws, even if such issuer would, or should,
agree to so register it.
(c) If Collateral Agent determines to exercise its right to sell
any or all of the Pledged Collateral, upon written request, Pledgor shall from
time to time furnish to Collateral Agent all such information as Collateral
Agent may request in order to determine the number of shares and other
instruments included in the Pledged Collateral which may be sold by Collateral
Agent in exempt transactions under the Securities Act and the rules and
regulations of the Securities and Exchange Commission thereunder, as the same
are from time to time in effect.
SECTION 12. APPLICATION OF PROCEEDS. Except as expressly
provided elsewhere in this Agreement, all proceeds received by Collateral Agent
in respect of any sale of, collection from, or other realization upon all or
any part of the Pledged Collateral may, in the discretion of Collateral Agent,
be held by Collateral Agent as Pledged Collateral for, and/or then, or at any
time thereafter, applied in full or in part by Collateral Agent against, the
Secured Obligations in the following order of priority:
FIRST: To the payment of all costs and expenses of such sale,
collection or other realization, including reasonable compensation to
Collateral Agent and its agents and counsel, and all other expenses,
liabilities and advances made or incurred by Collateral Agent in connection
therewith, and all amounts for which Collateral Agent is entitled to
indemnification hereunder and all advances made by Collateral Agent
hereunder for the account of Pledgor, and to the payment of all costs and
expenses paid or incurred by Collateral Agent in connection with the
exercise of any right or remedy hereunder, all in accordance with Section
13;
SECOND: To the payment of all other Secured Obligations in such
order as Collateral Agent shall elect; and
THIRD: To the payment to or upon the order of Pledgor, or to
whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct, of any surplus then remaining from such
proceeds.
SECTION 13. INDEMNITY AND EXPENSES.
(a) Pledgor agrees to indemnify Collateral Agent and each
Secured Party from and against any and all claims, losses and liabilities in
any way relating to, growing out of or resulting from this Agreement and the
transactions contemplated hereby (including, without limitation, enforcement of
this Agreement),
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except to the extent such claims, losses or liabilities result solely from
Collateral Agent's or such Secured Party's gross negligence or wilful
misconduct as finally determined by a court of competent jurisdiction.
(b) Pledgor will pay to Collateral Agent upon demand the amount
of any and all reasonable costs and expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, that Collateral Agent
may incur in connection with (i) the administration of this Agreement (subject
to the proviso to Section 10.01 of the Credit Agreement), (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon,
any of the Pledged Collateral, (iii) the exercise or enforcement of any of the
rights of Collateral Agent hereunder or (iv) the failure by Pledgor to perform
or observe any of the provisions hereof.
SECTION 14. CONTINUING SECURITY INTEREST; TRANSFERS BY SECURED
PARTIES. This Agreement shall create a continuing security interest in the
Pledged Collateral and shall (a) remain in full force and effect until the
indefeasible payment in full of all Secured Obligations and the cancellation or
termination of Pledgor's respective Borrower's Total Facility, (b) be binding
upon Pledgor, its successors and assigns, and (c) inure, together with the
rights and remedies of Collateral Agent hereunder, to the benefit of Collateral
Agent and its successors, transferees and assigns; provided that any assignment
by Collateral Agent is made in accordance with the provisions of the Credit
Agreement. Without limiting the generality of the foregoing clause (c), but
subject to the provisions of Sections 1.11(d)(ii) and 10.16 of the Credit
Agreement, any Secured Party may assign or otherwise transfer all or any part
of its rights and obligations under the Loan Documents to any other Person, and
such other Person shall thereupon become vested with all the benefits in
respect thereof granted to Secured Parties herein or otherwise. Upon the
indefeasible payment in full of all Secured Obligations and the cancellation or
termination of Pledgor's respective Borrower's Total Facility, the security
interest granted hereby shall terminate and all rights to the Pledged
Collateral shall revert to Pledgor. Upon any such termination Collateral Agent
will, at Pledgor's expense, execute and deliver to Pledgor such documents as
Pledgor shall reasonably request to evidence such termination and Pledgor shall
be entitled to the return, upon its request and at its expense, against receipt
and without recourse to Collateral Agent, of such of the Pledged Collateral as
shall not have been sold or otherwise applied pursuant to the terms hereof.
SECTION 15. AMENDMENTS; ETC. No amendment of this Agreement
(other than a Pledge Amendment) shall be effective unless the same shall be in
writing and signed by all of the parties hereto. No waiver of any provision of
this Agreement, or consent to any departure by Pledgor herefrom, shall in any
event be effective unless the same shall be in writing and signed by Collateral
Agent, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given.
SECTION 16. NOTICES. Any notice or other communication herein
required or permitted to be given shall be given in the manner provided for in
Section 10.03 of the Credit Agreement, in each case addressed to the parties at
their respective address set forth on the signature pages thereto or at such
other
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address as either of them may designate by written notice to the other in
accordance with the Credit Agreement.
SECTION 17. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES
CUMULATIVE. No failure or delay on the part of Collateral Agent in the
exercise of any power, right or privilege hereunder shall impair such power,
right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude any other or further exercise thereof or of
any other power, right or privilege. All rights and remedies existing under
this Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
SECTION 18. SEVERABILITY. In case any provision in or
obligation under this Agreement shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 19. HEADINGS. Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect.
SECTION 20. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES, EXCEPT TO THE EXTENT THAT THE CODE PROVIDES THAT THE VALIDITY OR
PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN
RESPECT OF ANY PARTICULAR PLEDGED COLLATERAL ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK. Unless otherwise defined herein
or in the Credit Agreement, terms used in Article 9 of the Uniform Commercial
Code in the State of New York are used herein as therein defined.
SECTION 21. COUNTERPARTS. This Agreement may be executed in one
or more counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple separate counterparts
and attached to a single counterpart so that all signature pages are physically
attached to the same document.
[Remainder of page intentionally left bank]
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IN WITNESS WHEREOF, Pledgor and Collateral Agent have caused
this Agreement to be duly executed and delivered as of the date first written
above.
EXECUTED and DELIVERED )
as a Deed for and on behalf of )
)
)
)
by )
in the presence of: )
)
)
)
)
,
AS COLLATERAL AGENT
By: ______________________________
Name:
Title: Director
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Exhibit H
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that I, STANLEY F. DRUCKENMILLER, hereby make
constitute and appoint MICHAEL A SHAY, as my agent and attorney-in-fact for the
limited purpose of executing in my name and my personal capacity: (i) all
documents relating to the beneficial ownership of securities required to be
filed with the Securities and Exchange Commission (the "SEC") pursuant to
Section 13(d) or Section 16(a) of the Securities Exchange Act of 1934 (the
"Act") including, without limitation: (a) any acquisition statements on
Schedule 13D, and any amendments thereto, (b) any joint filing agreements
pursuant to Rule 13d-1(f) and (c) any initial statements of, statements of
changes in, beneficial ownership fo securities or Form 3 or Form 4 and (ii) any
information statements on Form 13F required to be filed with the SEC pursuant to
Section 13(f) of the Act.
This power of attorney shall be valid from the date hereof until revoked by me.
IN WITNESS WHEREOF, I have executed this instrument this 23rd day of March,
1994.
Stanley F. Druckenmiller
