Form 8-K NEWMONT GOLDCORP CORP For: Jun 30

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported):

June 30, 2019

Newmont Goldcorp Corporation

(Exact name of Registrant as Specified in Its Charter)

Delaware

(State or Other Jurisdiction of Incorporation)

001-31240

(Commission File Number)

84-1611629

(I.R.S. Employer Identification No.)

6363 South Fiddlers Green Circle, Greenwood Village, Colorado 80111

(Address of principal executive offices) (zip code)

(303) 863-7414

(Registrant’s telephone number, including area code)

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):

o                 Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o                   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o                 Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o                 Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered or to be registered pursuant to Section 12(b) of the Act.

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company o

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o

Item 1.01                                           Entry into a Material Definitive Agreement.

First Amendment to Implementation Agreement

As previously disclosed in the Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission (the “SEC”) on March 12, 2019, Newmont Goldcorp Corporation (formerly known as Newmont Mining Corporation) (“Newmont Goldcorp” or the “Company”) entered into an implementation agreement (the “Implementation Agreement”) with Barrick Gold Corporation (“Barrick”) on March 10, 2019 to establish a joint venture to combine certain of Newmont Goldcorp’s and Barrick’s respective Nevada operations and assets located in the Area of Interest (as defined in the Implementation Agreement) (the “Joint Venture Transaction”). On June 30, 2019, Newmont Goldcorp and Barrick entered into a First Amendment to Implementation Agreement (the “First Amendment”) to amend certain provisions of the Implementation Agreement.

The First Amendment, among other things, modifies certain employee-related provisions to provide that certain Newmont Goldcorp employees and certain Barrick employees will provide services to the joint venture — Nevada Gold Mines LLC (“Nevada Gold Mines”) — pursuant to employee lease agreements (the “Employee Lease Agreements”) between Newmont Goldcorp and Nevada Gold Mines and between Barrick and Nevada Gold Mines, respectively, and that Nevada Gold Mines will make offers of employment to such employees upon the expiration of the terms of the Employee Lease Agreements. Pursuant to the First Amendment, Nevada Gold Mines will assume responsibility for all Employment Expenses (as defined in the First Amendment) related to such employees accrued from and after closing of the Joint Venture Transaction.

In addition, the First Amendment, among other things, (a) clarifies the treatment of certain contracts that relate both to Newmont Goldcorp’s and its affiliates’ operations within and outside of the Area of Interest, (b) adds specificity to and clarifies the schedule describing and depicting the Area of Interest and the exclusions therefrom, and (c) removes Newmont Nevada Energy Investment LLC (“NNEI”), an indirect subsidiary of Newmont Goldcorp, from the list of Newmont Goldcorp affiliates contributing assets to Nevada Gold Mines, and provides that the limited liability company interests in NNEI will instead be assigned to Nevada Gold Mines following receipt of all necessary regulatory approvals applicable to such assignment, including the approval of the Federal Energy Regulatory Commission.

The foregoing description of the First Amendment does not purport to be a complete description of the First Amendment and is qualified in its entirety by reference to the First Amendment, a copy of which is filed as Exhibit 2.2 hereto and is incorporated herein by reference.

Nevada Gold Mines LLC — Amended and Restated Limited Liability Company Agreement

On July 1, 2019, Newmont Goldcorp and Barrick consummated the Joint Venture Transaction.  Pursuant to the Implementation Agreement, as amended, each of Newmont Goldcorp, Barrick, and their respective affiliates that held properties in the Area of Interest contributed to Nevada Gold Mines its respective right, title and interest in, to or under all properties located in the Area of Interest and any other assets, properties or rights located in the State of Nevada and relating primarily to such properties, subject to specific exclusions.

In connection with the closing of the Joint Venture Transaction, Newmont Goldcorp, Newmont USA Limited, a wholly-owned subsidiary of Newmont Goldcorp (“Newmont Member” or “NUSA”), Barrick, and Barrick Nevada Holding LLC (“Barrick Member” and, each of Newmont Member and Barrick Member, a “Member”), entered into an Amended and Restated Limited Liability Company Agreement of Nevada Gold Mines (the “LLC Agreement”), which is the primary operating document governing Nevada Gold Mines.

Membership Interests and Right of First Refusal

Newmont Member holds a 38.5% membership interest, and Barrick Member holds a 61.5% membership interest, in Nevada Gold Mines, which membership interests are governed by the terms of the LLC Agreement. Each of Newmont Member and Barrick Member has a right of first refusal over any proposed transfer by the other Member of its membership interest in Nevada Gold Mines, other than transfers to a wholly-owned subsidiary of the transferring Member.

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Board of Managers

Under the LLC Agreement, Nevada Gold Mines will have a five-person board of managers (the “Board”), comprised of three managers appointed by Barrick Member and two managers appointed by Newmont Member. The chairman of the Board will be appointed by Barrick Member. Newmont Goldcorp and Barrick will have an equal number of representatives on Nevada Gold Mines’ advisory committees, including its advisory technical, finance and exploration committees. Newmont Goldcorp will support and oversee Nevada Gold Mines through its participation on the advisory technical, finance and exploration committees and the Board. Barrick Member will be the operating member (the “Operating Member”) with overall management responsibility for operations of Nevada Gold Mines, subject to the supervision and direction by the Board. Decisions of the Board will generally be determined by a majority vote, with the directors appointed by each of Barrick Member and Newmont Member having voting power in proportion to such Member’s economic interests in Nevada Gold Mines. However, pursuant to the LLC Agreement, 100% Board approval is required for certain activities including, but not limited to, (a) issuing to third parties membership interests in Nevada Gold Mines, (b) changing the rights, privileges and preferences of the holders of membership interests in Nevada Gold Mines, (c) disposing of assets (including the granting of royalties but excluding sales of production or other dispositions in the ordinary course), in one or a series of related transactions, with a value exceeding $500 million, (d) incurring long-term liabilities outside of the ordinary course of business, and (e) causing Nevada Gold Mines to engage in certain activities outside of the Area of Interest, unless such activities are ancillary to Nevada Gold Mines’ activities within the Area of Interest or would reasonably be expected to have a significant economic benefit to the Nevada JV Business (as defined in the LLC Agreement). In addition, without the approval of Newmont Member and Barrick Member, Nevada Gold Mines may not, directly or indirectly, apply for or acquire mineral rights, surface rights or ancillary rights including water rights outside the State of Nevada.

Gold and Silver Purchase Agreement

The LLC Agreement requires Newmont Member and Barrick Member to purchase, or to cause their respective designated affiliates to purchase, from Nevada Gold Mines 100% of the refined gold and silver outturned following the refining of Doré (as defined in the LLC Agreement) on a pro rata basis according to their proportionate interests in Nevada Gold Mines, pursuant to the terms of a gold and silver bullion purchase agreement among Barrick, Newmont Member, and Nevada Gold Mines.

Retained Royalties

Pursuant to the LLC Agreement, (a) Newmont Member reserves a 1.5% of net smelters returns royalty on gold produced in excess of a specified threshold from the properties contributed by Newmont Goldcorp and its affiliates, and (b) Barrick Member reserves a 1.5% of net smelters returns royalty on gold produced in excess of a specified threshold by Nevada Gold Mines from the properties contributed by Barrick and its affiliates.

Surety and Guarantee Agreements

Pursuant to the LLC Agreement, in the event that any guaranty, letter or credit, indemnity agreement, surety bond or similar agreement or arrangement that relates to the ownership, operation, maintenance, reclamation, restoration or closure of any properties or other assets of Nevada Gold Mines or its subsidiaries, or any other obligation of Nevada Gold Mines or its subsidiaries (each, a “Surety Arrangement” and collectively, “Surety Arrangements”) is required by any governmental authority and is not provided solely by Nevada Gold Mines, each of Newmont Member (or, if required, Newmont Goldcorp) and Barrick Member (or, if required, Barrick) will undertake the obligations, or enable Nevada Gold Mines to undertake the obligations, required to provide such Surety Arrangement, in each case in proportion to its respective proportionate interests in Nevada Gold Mines.

Pursuant to the LLC Agreement, Newmont Goldcorp guarantees in favor of Barrick Member, Barrick and Nevada Gold Mines the prompt and complete payment on demand of all amounts due and owing under the LLC Agreement by Newmont Member and under any bonds or other Surety Arrangements provided by Newmont Member (and, if applicable, Newmont Goldcorp), and the observance and performance by Newmont Member of all the terms, covenants, conditions and provisions to be observed or performed by Newmont Member under the LLC Agreement and by Newmont Member (and, if applicable, Newmont Goldcorp) under such bonds or other Surety Arrangements, and Barrick makes a reciprocal guarantee in favor of Newmont Member, Newmont Goldcorp and Nevada Gold Mines.

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Funding Statements, Capital Contributions and Penalties

The Operating Member will prepare and submit to each Member monthly statements of account, which may include funding statements requesting additional Member capital contributions. In the event that Newmont Member fails to provide contributions as required by the LLC Agreement or Nevada Gold Mines is required to make any payment pursuant to the Guaranty (as defined herein), Newmont Member’s proportionate interest in Nevada Gold Mines will be subject to dilution in the manner described in the LLC Agreement.

Excluded Properties

Certain development and exploration properties of Newmont Goldcorp and Barrick within the Area of Interest were excluded from the contributions to Nevada Gold Mines made upon closing the Joint Venture Transaction, including Newmont Goldcorp’s Fiberline and Mike projects and Barrick’s Fourmile project. The LLC Agreement includes a mechanism for the potential contribution of such excluded properties to Nevada Gold Mines at a future time, which is further detailed in the LLC Agreement.

The foregoing summary of the LLC Agreement and the transactions contemplated thereby does not purport to be a complete description of all the parties’ rights and obligations under the LLC Agreement and is qualified in its entirety by reference to the LLC Agreement, a copy of which is filed as Exhibit 10.1 hereto and is incorporated herein by reference.

Guaranty

In connection with the transfer of certain assets, properties and rights of NUSA, to Nevada Gold Mines pursuant to the Joint Venture Transaction, Newmont Goldcorp, NUSA, as existing guarantor, Nevada Gold Mines, as new guarantor, and The Bank of New York Mellon Trust Company, N.A., as successor-in-interest to Citibank, N.A., as trustee (the “Trustee”), executed the First Supplemental Indenture, dated as of July 1, 2019 (the “First Supplemental Indenture”), to the indenture, dated as of March 22, 2005 (the “Indenture”), by and among Newmont, NUSA and the Trustee, pursuant to which the Company has issued $600.0 million in aggregate principal amount of its 5.875% Notes due 2035 (the “Notes”), which are currently outstanding. Pursuant to the First Supplemental Indenture, Nevada Gold Mines expressly assumed the due and punctual performance and observance of all of the covenants and conditions of NUSA under the Indenture and the Notes and agreed to provide a full and unconditional Guaranty (as defined in the Indenture) on the terms and subject to the conditions set forth in the Indenture, including Article Twelve thereof. Accordingly, upon the execution of the First Supplemental Indenture, NUSA and Nevada Gold Mines have jointly and severally guaranteed the obligations of Newmont Goldcorp under the Indenture and the Notes.

The foregoing description of the First Supplemental Indenture does not purport to be a complete description of all the parties’ rights and obligations under the First Supplemental Indenture and is qualified in its entirety by reference to the First Supplemental Indenture, a copy of which is filed as Exhibit 4.2 hereto and is incorporated herein by reference.

Item 2.01                                           Completion of Acquisition or Disposition of Assets.

The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated into this Item 2.01 by reference.

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Item 9.01                                           Financial Statements and Exhibits.

(d)       Exhibits.

*                 Certain schedules are omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish supplementally any omitted schedules to the SEC upon request.

**          Portions of this exhibit have been redacted pursuant to Item 601(b)(10) of Regulation S-K. The Company agrees to furnish supplementally an unredacted copy of the exhibit to the SEC upon request.

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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

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EXHIBIT 2.2

FIRST AMENDMENT TO IMPLEMENTATION AGREEMENT

THIS FIRST AMENDMENT (this “Amendment”) made the 30th day of June, 2019,

B E T W E E N:

BARRICK GOLD CORPORATION,
a corporation existing under the laws of
the Province of British Columbia,

(hereinafter referred to as “Barrick”),

— and —

NEWMONT GOLDCORP CORPORATION,
a corporation existing under the laws of
the State of Delaware, formerly known as
Newmont Mining Corporation,

(hereinafter referred to as “Newmont”),

to that certain Implementation Agreement (the “Agreement”), dated as of March 10, 2019, by and between Barrick and Newmont.  Barrick and Newmont sometimes are referred to in this Amendment collectively as the “Parties” and each individually as a “Party.”  Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Agreement.

WHEREAS the Agreement provides for the contribution by Barrick and Newmont of the Barrick Contributed Assets and the Newmont Contributed Assets, respectively, to the JV Company on the terms and conditions set forth therein;

AND WHEREAS the Parties desire to amend the Agreement to confirm agreements they have reached in relation to the Agreement.

NOW THEREFORE THIS AMENDMENT WITNESSES THAT in consideration of the respective covenants and agreements of the Parties hereinafter contained and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each Party), the Parties agree as follows:

ARTICLE 1
AMENDMENTS

A.                                                                                    Amendment to Section 1.1 — Definitions

Each of the defined terms in the lettered paragraphs (h), (k), (p), (r), (fff), (iii), (ooo), (qqq), (zzz) and (nnnn) under Section 1.1 of the Agreement is hereby deleted in its entirety and replaced with the following defined term set forth in the corresponding lettered paragraph:

(h)                                 “Barrick Assumed Liabilities” means all Liabilities of the Barrick Parties relating to or associated with the Barrick Contributed Assets, including Environmental Liabilities but excluding third party debt (other than short term ordinary course

liabilities), shareholder loans for borrowed money and the Barrick Retained Tax Liabilities;

(k)                                 “Barrick Excluded Assets” means: all (i) Excluded Inventory and accounts receivable resulting from the sale of mine site production prior to the Closing Date; (ii) cash and cash equivalents; (iii) insurance claims or proceeds; (iv) indebtedness owing by Barrick or an Affiliate of Barrick to a Barrick Party; (v) Tax refunds and rights to Tax refunds of the Barrick Parties; (vi) intercompany service agreements between or among one or more Barrick Parties, on the one hand, and any other Barrick Party or Affiliate of Barrick, on the other hand; and (vii) the assets set out in Section 1.1(k) of the Barrick Disclosure Letter;

(p)                                 “Barrick Parties” means, collectively, Barrick, Barrick Holdco, Barrick Gold Exploration Inc., Barrick Turquoise Ridge Inc., Turquoise Ridge Joint Venture, Barrick Cortez LLC (formerly known as Barrick Cortez Inc.), Cortez Joint Venture, NGM Cortez LLC, Barrick Gold Finance Inc., Barrick Gold U.S. Inc., Barrick Goldstrike Mines Inc., Homestake Mining Company of California, Lac Minerals (USA) LLC, Pinson Mining Company, Barrick Storm Inc., Barrick Holding Co., Barrick Gold of North America, Inc., Barrick Bullfrog Inc. and each other Affiliate of Barrick that holds properties located in the Area of Interest;

(r)                                    “Barrick Properties” means (i) all of the properties of the Barrick Parties located in the Area of Interest other than the Fourmile Project and the Buckhorn, Wood Gulch and Preble closure properties described in Schedule 1.1(e) and (ii) those properties of the Barrick Parties specifically described in Schedule 1.1(r);

(fff)                         “Newmont Assumed Liabilities” means all Liabilities of the Newmont Parties relating to or associated with the Newmont Contributed Assets, including Environmental Liabilities but excluding third party debt (other than short term ordinary course liabilities), shareholder loans for borrowed money, the Newmont Retained Tax Liabilities and the Copper Basin Retained Liabilities;

(iii)                               “Newmont Excluded Assets” means: all (i) Excluded Inventory and accounts receivable resulting from the sale of mine site production prior to the Closing Date; (ii) cash and cash equivalents; (iii) insurance claims or proceeds; (iv) indebtedness owing by Newmont or an Affiliate of Newmont to a Newmont Party; (v) Tax refunds and rights to Tax refunds of the Newmont Parties; (vi) intercompany service agreements between or among one or more Newmont Parties, on the one hand, and any other Newmont Party or Affiliate of Newmont, on the other hand; and (v) the assets set out in Section 1.1(iii) of the Newmont Disclosure Letter;

(ooo)                   “Newmont Parties” means, collectively, Newmont, Newmont Holdco, Pittston Nevada Gold Company, Ltd., West Pequop Project LLC, Newmont USA Limited, Newmont GTR LLC, Elko Land and Livestock Company, ELLC Grazing Membership LLC, Fronteer Development (USA) LLC, Fronteer Royalty LLC, Hospah Holdings Company, Nevada Eagle Resources LLC, Newmont Capital Limited, Newmont North America Exploration Limited and each other Affiliate of Newmont that holds properties located in the Area of Interest;

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(qqq)                   “Newmont Properties” means all of the properties of the Newmont Parties located in the Area of Interest other than the Fiberline Project, the Mike Project, and Mule Canyon, Buffalo Valley-Trenton Canyon and Ivanhoe-Hollister closure properties described in Schedule 1.1(e);

(zzz)                      “Permitted Encumbrances” means the following Encumbrances: (i) any inchoate right, lien or interest of a Governmental Authority; (ii) liens for Taxes not yet due and payable; (iii) zoning laws and ordinances and similar Laws; (iv) rights reserved to any Governmental Authority to regulate the affected assets or properties; (v) servitudes, easements, rights-of-way, restrictions, surface rights, permits, conditions, covenants, exceptions, reservations and other similar Encumbrances, as well as encroachments and other imperfections of title, which do not impair, detract from the value of or impair the use of the Barrick Contributed Assets or the Newmont Contributed Assets, as applicable, in any material respect; (vi) in the case of any leased assets or properties forming part of the Barrick Contributed Assets or the Newmont Contributed Assets, as applicable, the rights, titles and interests of the lessor thereof; (vii) the paramount title of the United States of America or any other Governmental Authority; (viii) any matter that is of record, or that would be apparent from a visual inspection of the subject property, or that would be revealed by a boundary and improvement survey of the subject property; (ix) the royalties or similar rights existing on the date of this Agreement affecting the Barrick Properties (which are listed on Section 1.1(zzz) of the Barrick Disclosure Letter) or the Newmont Properties (which are listed on Section 1.1(zzz) of the Newmont Disclosure Letter); (x) present or future obligations arising under applicable Law or any permit; (xi) the terms and conditions of, or obligations arising under or pursuant to, any unrecorded Contract (other than Contracts relating exclusively to debt for borrowed money) or any unrecorded instrument of title, other than a Barrick Material Unrecorded Instrument or a Newmont Material Unrecorded Instrument; and (xii) any other Encumbrances listed in the Barrick Disclosure Letter or the Newmont Disclosure Letter, as applicable;

(nnnn)            “Time of Closing” means 12:01 a.m. Pacific Daylight Time on the Closing Date or such other time on the Closing Date as agreed in writing by Barrick and Newmont;

The following new defined term is hereby added between existing paragraphs (n) and (o) of Section 1.1 of the Agreement:

(n.1)                       “Barrick Interests” has the meaning set out in Section 3.5;

The following new defined term is hereby added between existing paragraphs (o) and (p) of Section 1.1 of the Agreement:

(o.1)                       “Barrick Material Unrecorded Instrument” means any unrecorded Contract (other than Contracts relating exclusively to debt for borrowed money) or unrecorded instrument of title in respect of Barrick Properties on which publicly Disclosed Mineral Reserves exist as of the date hereof, and (i) to which any of the Barrick Parties is a party, or of which the Barrick Parties have knowledge;

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and (ii) which impairs, detracts from the value of, or impairs the use of the Barrick Properties, taken as a whole, in any material respect; and for purposes of this definition “knowledge” means to the actual knowledge, after due inquiry, of Robert L. Brock, Land Manager North America of Barrick;

The following new defined term is hereby added between existing paragraphs (s) and (t) of Section 1.1 of the Agreement:

(s.1)                         “Barrick Retained Tax Liabilities” means any income tax liabilities of any affiliated, combined, consolidated or unitary Tax group of which a Barrick Party was a member on or prior to the Closing Date;

The following new defined term is hereby added between existing paragraphs (bb) and (cc) of Section 1.1 of the Agreement:

(bb.1)                “Copper Basin Retained Liabilities” means, in respect of the Copper Basin closure property, all Liabilities (including Environmental Liabilities) related to reclamation, closure, monitoring and stabilization in excess of $1,000,000, in aggregate;

The following new defined term is hereby added between existing paragraphs (ee) and (ff) of Section 1.1 of the Agreement:

(ee.1)                  “Disclosed Mineral Reserves” means, in respect of a Barrick Property or a Newmont Property, as applicable, Mineral Reserves (as defined in National Instrument 43-101 — Standards of Disclosure for Mineral Projects) or Reserves (as defined in U.S. Securities and Exchange Commission Industry Guide 7) which are disclosed in the Barrick Public Record or Newmont Public Record, as the case may be;

The following new defined term is hereby added between existing paragraphs (nnn) and (ooo) of Section 1.1 of the Agreement:

(nnn.1)         “Newmont Material Unrecorded Instrument” means any unrecorded Contract (other than Contracts relating exclusively to debt for borrowed money) or unrecorded instrument of title in respect of Newmont Properties on which publicly Disclosed Mineral Reserves exist as of the date hereof, and (i) to which any of the Newmont Parties is a party, or of which the Newmont Parties have knowledge; and (ii) which impairs, detracts from the value of, or impairs the use of the Newmont Properties, taken as a whole, in any material respect; and for purposes of this definition “knowledge” means to the actual knowledge, after due inquiry, of Phillip S. Prince, Director, Land, Global Land Department of Newmont;

The following new defined term is hereby added between existing paragraphs (rrr) and (sss) of Section 1.1 of the Agreement:

(rrr.1)                  “Newmont Retained Tax Liabilities” means any income tax liabilities of any affiliated, combined, consolidated or unitary Tax group of which a Newmont Party was a member on or prior to the Closing Date;

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The following new defined term is hereby added between existing paragraphs (sss) and (ttt) of Section 1.1 of the Agreement:

(sss.1)               “NNEI” means Newmont Nevada Energy Investment LLC, a limited liability company existing under the laws of the State of Delaware;

B.                                                                                    Amendment to Section 1.5 — Schedules

The list of Schedules set forth in Section 1.5 of the Agreement is hereby deleted in its entirety and replaced with the following:

C.                                                                                    Amendment to Section 3.1 — Transfer of Barrick Contributed Assets to JV Company

The reference to “relating primarily to” in paragraph (a) under Section 3.1 of the Agreement is hereby deleted and replaced with “forming a part of (in the case of Mining Rights, Water Rights and ranches) or relating primarily to (in the case of all other assets, properties and rights)”.

Each reference to “relating to” in subparagraphs (i) and (ii) under Section 3.1(a) of the Agreement is hereby deleted and replaced with “forming a part of”.

Subparagraph (iii) under Section 3.1(a) of the Agreement is hereby deleted in its entirety and replaced with the following:

(iii)                               all ranches forming a part of the Barrick Properties;

The following subparagraph is hereby added between existing subparagraphs (xiii) and (xiv) under Section 3.1(a) of the Agreement, and existing subparagraph (xiv) is hereby changed to subparagraph “(xv)”:

(xiv)                       all of the Barrick Parties’ interests in Precious Metals Recovery LLC, a limited liability company existing under the laws of the State of Delaware; and

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D.                                                                                    Amendment to Section 3.3 — Transfer of Newmont Contributed Assets to JV Company

The reference to “relating primarily to” in paragraph (a) under Section 3.3 of the Agreement is hereby deleted and replaced with “forming a part of (in the case of Mining Rights, Water Rights and ranches) or relating primarily to (in the case of all other assets, properties and rights)”.

Each reference to “relating to” in subparagraphs (i) and (ii) under Section 3.3(a) of the Agreement is hereby deleted and replaced with “forming a part of”.

Subparagraph (iii) under Section 3.3(a) of the Agreement is hereby deleted in its entirety and replaced with the following:

(iii)                               all ranches forming a part of the Newmont Properties;

The following subparagraph is hereby added between existing subparagraphs (xiii) and (xiv) under Section 3.1(a) of the Agreement, and existing subparagraph (xiv) is hereby changed to subparagraph “(xv)”:

(xiv)                       all of the Newmont Parties’ interests in NNEI; and

E.                                                                                    Amendment to Section 3.6 — Contribution of Barrick and Newmont Interests

The text reading “and shall cause the other Newmont Parties to, contribute the Newmont Interests to Newmont Holdco in exchange for interests in the Newmont Holdco” in Section 3.6 of the Agreement is hereby deleted and replaced with “and shall cause the other Newmont Parties (other than Newmont Holdco) to, assign the portion of the Newmont Interests held by such Newmont Parties to Newmont Holdco”.

F.                                                                                     Amendment to Section 4.5 — Closing Cash Call

Section 4.5 of the Agreement is hereby deleted in its entirety and replaced with the following:

4.5                               Closing Cash Call

The Parties acknowledge and agree that at least 10 Business Days prior to Closing, Barrick, as the parent of the Operator, shall submit a Monthly Funding Statement to Newmont setting out its share (based upon its Proportionate Interest as of the Closing Date) of the cash needed to fund Cash Requirements of the joint venture for the first 21 days immediately following Closing. Such Monthly Funding Statement and the Cash Requirements set forth therein shall be reviewed and reasonably approved by the individuals proposed to be appointed to the Board of the JV Company.  Barrick and Newmont agree to pay, on Closing, their respective shares (based upon their respective Proportionate Interests as of the Closing Date) of the amounts set out in the Monthly Funding Statement as so reviewed and approved and that such Monthly Funding Statement shall be treated in accordance with the terms of the JV Agreement, mutatis mutandis. Within the first 90 days immediately following Closing, Barrick, as the parent of the Operator, will produce the first Program and Budget contemplated by the JV Agreement.  Capitalized terms in this Section not otherwise defined in this Agreement shall have the meanings given to them in the JV Agreement.

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G.                                                                                   Amendment to Section 5.10 — “As-Is, Where-Is” Condition of Assets; Non-Reliance

The reference to “Newmont Nevada Assets” in Section 5.10 of the Agreement is hereby deleted and replaced with “Newmont Contributed Assets”.

H.                                                                                   Amendment to Section 5.11 — Branding

The following text is hereby added to the end of Section 5.11 of the Agreement:

As soon as reasonably practicable after the Closing, but in no event later than December 31, 2019, Barrick shall cause Barrick Holdco, in its capacity as the Operating Member (as defined in the JV Agreement) of the JV Company, to remove “Barrick,” “Newmont” and all respective derivations thereof and any other related trademark, design or logo previously or currently used by a Party or any of its Affiliates from all of the Barrick Contributed Assets and Newmont Contributed Assets, including all buildings, signs, equipment and vehicles, and to cease using such marks in electronic databases, web sites and marketing, packaging and other materials, printed or otherwise, pertaining to the business and operations of the JV Company, and to otherwise cause the JV Company to cease making use of such names, trademarks, designs or logos for any purpose, it being agreed that the JV Company shall be entitled to temporarily use such names, trademarks, designs and logos following Closing until such use is timely discontinued in compliance with the terms of this Section 5.11.  For the avoidance of doubt, the ongoing use of the “Barrick” or “Newmont” names or logos by Barrick JV Personnel or Newmont JV Personnel, respectively, after December 31, 2019 on articles of clothing or other personal effects will not constitute a violation of this Section 5.11.

I.                                                                                        Amendment to Section 5.12 — Non-Assignable Assets

The following paragraph is hereby added after existing paragraph (b) under Section 5.12 of the Agreement:

(c)                                  For the avoidance of doubt, Contracts that, as of the Time of Closing, are applicable to the operations of both the Newmont Contributed Assets and other operations of Newmont, including but not limited to the Contracts described in Section 5.12(c) of the Newmont Disclosure Letter, but specifically excluding all Contracts that form part of the Newmont Excluded Assets (other than those Contracts described in Section 5.12(c) of the Newmont Disclosure Letter, which Contracts shall, for the avoidance of doubt, be governed by this Section 5.12(c)), shall, to the extent not split, replaced, or otherwise modified and conveyed in part to the JV Company as of Closing, be Non-Assignable Assets to the extent related to the operations of the Newmont Contributed Assets, subject to the terms of Section 5.12(a) and Section 5.12(b), mutatis mutandis, until such time as such Contracts are split, replaced, or otherwise modified and conveyed in part to the JV Company.

(d)                                 The Parties acknowledge that the transfer of the Newmont Parties’ interests in NNEI to the JV Company is subject to the prior approval of the Federal Energy Regulatory Commission (“FERC”), and agree to use their respective commercially reasonable efforts to obtain such approval. Until such time as such approval is obtained, the Newmont Parties’ interests in NNEI, all power assets

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and operations of NNEI and all Contracts and Permits to which NNEI or any Newmont Party is a party and which relate primarily to NNEI and such power assets and operations shall continue to be held by the Newmont Parties and NNEI in trust for the benefit of the JV Company, and the Newmont Parties shall provide, and shall cause NNEI to provide, the benefit of NNEI’s power assets and operations to the JV Company pursuant to an agreement in form and substance satisfactory to each of the Parties, acting reasonably, governing the interim operations of the TS Power Plant held by NNEI until FERC approval is obtained.

J.                                                                                      Amendment to Section 5.13 — Improper or Unintended Transfers

Paragraph (a) under Section 5.13 of the Agreement is hereby deleted in its entirety and replaced with the following:

(a)                                 Barrick or Newmont determine that there was inadvertently transferred to the JV Company one or more assets (including Contracts) or Liabilities that (i) does not relate primarily to a Barrick Property or a Newmont Property or (ii) immediately prior to the transfer to the JV Company, was shared in relation to (A) the Barrick Properties and other properties and assets of Barrick and its Affiliates not constituting Barrick Contributed Assets hereunder or (B) the Newmont Properties and other properties and assets of Newmont and its Affiliates not constituting Newmont Contributed Assets hereunder, as applicable, then such assets or Liabilities shall be (x) in the case of clause (i), transferred and conveyed by the JV Company to the applicable Barrick Party or Newmont Party, and (y) in the case of clause (ii), split or otherwise divided so that Barrick or its Affiliate or Newmont or its Affiliate, as applicable, will continue to have substantially the same benefit or burden under such shared asset or Liability as it had immediately prior to the transfer of such shared asset or Liability to the JV Company; and

K.                                                                                   Amendment to Section 5.14 — JV Company Employees

Paragraphs (a) through (f) under Section 5.14 of the Implementation Agreements are hereby deleted in their entirety and replaced with the following:

(a)                                 The Barrick Parties shall identify current employees of the Barrick Parties who shall be (i) offered the opportunity to provide services to the JV Company from and including the Closing Date pursuant to the terms and conditions of an employee lease agreement in form and substance satisfactory to each of the Parties, acting reasonably (the “Barrick Employee Lease Agreement” and the period of time during which such agreement is in effect, the “Barrick Employee Lease Period”), and (ii) offered employment by the JV Company effective as at and from the expiration or termination of the Barrick Employee Lease Period (such employees, the “Barrick JV Personnel”).

(b)                                 All employees of Newmont and its Affiliates that are employed specifically and exclusively in connection with the Newmont Contributed Assets and the operations conducted thereon (and not in connection with any other operations of Newmont), other than:

(i)                                     Management Employees, and

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(ii)                                  any salaried employees who the Parties agree, after good faith consultation and due consideration of the needs of the JV Company, may remain employed with Newmont at locations other than those included in the Barrick Properties and the Newmont Properties,

shall be (x) offered the opportunity to provide services to the JV Company from and including the Closing Date pursuant to the terms and conditions of an employee lease agreement in form and substance satisfactory to each of the Parties, acting reasonably (the “Newmont Employee Lease Agreement” and the period of time during which such agreement is in effect, the “Newmont Employee Lease Period”), and (y) offered employment with the JV Company effective as at and from the expiration or termination of the Newmont Employee Lease Period (such employees, the “Newmont JV Personnel”).

(c)                                  The Newmont Parties shall provide to Barrick within 15 Business Days from the date hereof a list of the current Management Employees of the Newmont Parties who are employed specifically and exclusively with or at the Newmont Contributed Assets and the operations conducted thereon (“Proposed Management Personnel”), excluding any Management Employees that Newmont intends to employ at locations other than those included in the Barrick Properties and the Newmont Properties.  At least 10 Business Days prior to the Closing Date, Barrick acting reasonably and in good faith, shall provide written notice to Newmont identifying the Management Employees and other employees whose services will not be leased to the JV Company pursuant to the Newmont Employee Lease Agreement, and who will not be made an offer to be subsequently employed by the JV Company following the expiration or termination of the Newmont Employee Leasing Period (the “Excluded Personnel”).  The services of all Management Employees on the list of Proposed Management Personnel that are not Excluded Personnel will be leased to the JV Company pursuant to the Newmont Employee Lease Agreement and such Management Employees will be considered Newmont JV Personnel for purposes of this Agreement.  Notwithstanding the foregoing, Newmont JV Personnel that are employed specifically and exclusively in connection with the operation of NNEI’s power plant assets shall remain employed by, and under the direction and control of, Newmont and its Affiliates until the transfer of the Newmont Parties’ interests in NNEI to the JV Company, at which time such Newmont JV Personnel shall (i) if the Newmont Employee Lease Period is then in effect, provide services to the JV Company pursuant to the terms and conditions of the Newmont Employee Lease Agreement and become Newmont Leased Employees in accordance with the terms of the Newmont Employee Lease Agreement until the expiration or termination of the Newmont Employee Lease Period, and thereafter become employees of the JV Company, and (ii) if the Newmont Employee Lease Period has expired or been terminated, become employees of the JV Company.

(d)                                 During the Newmont Employee Lease Period, Newmont shall cause Newmont USA Limited to comply with that certain 2019 Agreement between Newmont USA Limited and Operating Engineers Local Union #3 of the International Union of Operating Engineers AFL-CIO (“2019 Agreement”) with respect to Newmont JV Personnel that are covered by the 2019 Agreement.  Upon the expiration or termination of the Newmont Employee Lease Period, the JV Company shall be

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permitted to assess its own legal obligations and goals with respect to any obligations that it may have, if any, under the 2019 Agreement or other applicable Law.

(e)                                  The Barrick JV Personnel and the Newmont JV Personnel will be entitled to continue their employment with the Barrick Parties and the Newmont Parties, respectively, during the Barrick Employee Lease Period and the Newmont Employee Lease Period, as applicable, on terms substantially identical to their existing terms of employment. The offers of employment with the JV Company, effective as at and from the expiration or termination of the Barrick Employee Lease Period or the Newmont Employee Lease Period, as applicable, made to Barrick JV Personnel and Newmont JV Personnel shall be on terms consistent with any requirements of Law and which, in the aggregate, provide similar financial and other benefits to their existing terms of employment regardless of the components of the overall compensation package. Each of the Barrick JV Personnel’s service with the Barrick Parties and the Newmont JV Personnel’s service with the Newmont Parties shall be treated as service with the JV Company for all purposes, including determining eligibility to participate, level of benefits, vesting and benefit accruals with respect to JV Company benefit plans.

(f)                                   Each of Barrick and Newmont, respectively, shall continue to be fully responsible for and will discharge all obligations and liabilities for wages, severance pay, termination pay, notice of termination of employment or pay in lieu of such notice, damages for wrongful dismissal, life insurance and similar plans, accident insurance, hospitalization, health, welfare, disability, medical or dental treatment or expenses, unemployment insurance benefits, pension, retirement, supplementary retirement, savings, stock option, stock purchase, stock appreciation, deferred compensation, incentive compensation, employee loans, profit sharing or other employee or employment-related benefit plans, arrangements or practices (including vacation, holiday, personal and sick day accruals) (collectively, the “Employment Expenses”) accrued up to the close of business on the Closing Date in respect of their respective employees. For all Excluded Personnel that are not Management Employees, the Newmont Parties shall bear 38.5% of all severance costs and the Barrick Parties shall bear 61.5% of all severance costs.  The Newmont Parties shall bear all severance costs for Excluded Personnel that are Management Employees.

(g)                                  Following the Closing Date, the JV Company shall assume responsibility for all Employment Expenses accrued from and after the Time of Closing related to the Barrick JV Personnel and the Newmont JV Personnel whose services are leased to the JV Company pursuant to the Barrick Employee Lease Agreement and the Newmont Employee Lease Agreement, respectively.

L.                                                                                    Amendment to Section 9.2 — Indemnification by Barrick

The following paragraph is hereby added after existing paragraph (b) under Section 9.2 of the Agreement, and the period at the end of existing paragraph (b) is hereby replaced with “; and”:

(c)                                  the Barrick Retained Tax Liabilities.

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M.                                                                                 Amendment to Section 9.3 — Indemnification by Newmont

The following paragraphs are hereby added after existing paragraph (b) under Section 9.3 of the Agreement, and the period at the end of existing paragraph (b) is hereby replaced with “;”:

(c)                                  the Copper Basin Retained Liabilities; and

(d)                                 the Newmont Retained Tax Liabilities.

N.                                                                                    Amendment to Section 11.1(a) — Notices

The reference to

“Attention:                                   Stephen Gottesfeld, Executive Vice President and General Counsel

Email:                                                            [email protected]”

in clause (ii) of Section 11.1(a) of the Agreement is hereby deleted and replaced with

“Attention:                                   Nancy Lipson, Executive Vice President and General Counsel
Email:                                                            [email protected]”.

O.                                                                                   Replacement of Schedule 1.1(e) (Area of Interest)

Schedule 1.1(e) to the Agreement is hereby deleted in its entirety and replaced with Schedule 1.1(e) to this Amendment.

P.                                                                                     Replacement of Schedule 2.1 (Barrick Pre-Closing Transactions)

Schedule 2.1 to the Agreement is hereby deleted in its entirety and replaced with Schedule 2.1 to this Amendment.

ARTICLE 2
GENERAL PROVISIONS

A.                                                                                    Effect

Except as specifically amended pursuant to Article 1 of this Amendment, the Agreement shall not be amended or modified hereby.  As amended as provided in Article 1 of this Amendment, the Agreement shall continue in full force and effect, and from and after the date hereof, all references in the Agreement to the “Agreement” shall be deemed to mean the Agreement as amended by this Amendment.  A Party’s entry into this Amendment shall not constitute a waiver or release of any rights or claims of such Party under the Agreement as may exist as of the date of this Amendment.

B.                                                                                    Conformed Agreement

On or after the date of this Amendment, the Parties may prepare a conformed copy of the Agreement incorporating the amendments set forth herein (a “Conformed Agreement”).  Any Conformed Agreement so prepared shall be for ease of reference only, and in the event of any conflict between a Conformed Agreement, on the one hand, and the Agreement as specifically amended by the amendments set forth in Article 1 of this Amendment, on the other hand, the

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terms of the Agreement as specifically amended by the amendments set forth in Article 1 of this Amendment shall control.

C.                                                                                    Counterparts

(a)                                 This Amendment may be executed in any number of counterparts each of which when so executed will be deemed to be an original and when taken together shall constitute the entire and same agreement.

(b)                                 Delivery of an executed signature page to this Amendment by any Party by electronic transmission will be as effective as delivery of a manually executed copy of this Amendment by such Party.

[Signature Page Follows]

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IN WITNESS WHEREOF this Amendment has been executed by the Parties as of the date first written above.

First Amendment to Implementation Agreement

SCHEDULE 1.1(E)

AREA OF INTEREST

All property within the area extending from and including Township 22 North, Mount Diablo Principal Meridian, north to the northern boundary of the State of Nevada, and extending from and including Range 38 East to the eastern boundary of Range 68 East of the Mount Diablo Principal Meridian, situated within Churchill, Elko, Eureka, Humboldt, Lander, Pershing and White Pine Counties, Nevada; excepting and excluding the following described property:

1.              Four Mile Excluded Property in Eureka County, Nevada:

Township 26 North, Range 48 East

Section 3:                                          SW1/4SE1/4; NE1/4SW1/4

Township 27 North, Range 48 East

Section 34:                                        All

Portions of Sections 14, 15, 22, 23, 26, 27, 28, 33, 34 and 35

Township 26 North, Range 48 East

Portions of Sections 2, 3, 4, 9 and 10

As to those areas encompassed by the following unpatented mining claims:

2.              Buckhorn Excluded Property in Eureka County, Nevada:

Township 27 North, Range 49 East

Section 17:                                   All

Section 19:                                   All

Section 30:                                   All

Section 31:                                   All

Portions of Sections: 7, 8, 9, 16, 18, 20, 29 and 32

Township 26 North, Range 49 East

Portion of Section: 6

Township 27 North, Range 48 East

Portions of Sections: 13 & 25

As to those areas encompassed by the following unpatented mining claims and patented mining claims:

Unpatented Claims

Patented Claims

3.              Preble Excluded Property in Humboldt County, Nevada:

Township 36 North, Range 41 East

Section 17:            All

Section 18:            All

Section 19:            All

Section 20:            S1/2; NW1/4; W1/2NE1/4

As to those areas encompassed by the following unpatented mining claims:

4.              Woodgulch Excluded Property in Elko County, Nevada:

Township 44 North, Range 53 East

Section 23:        All

Section 24:        All

Section 25:        All

Section 26:        All

5.              Fiberline Excluded Property in Humboldt County, Nevada:

The Fiberline Project consists of (i) those portions of Sections 17 - 20, 29 and 30, Township 39 North, Range 43 East, MDM situated within the Fiberline Excluded Property Outline, other than areas within the Fiberline Excluded Property Carve-Out, lying below the elevation 20 feet above the contact between the surface alluvium and bedrock; and (ii) those portions of Sections 18 and 19, Township 39 North,

Range 43 East,MDM situated within the Fiberline Excluded Property Carve-Out lying below the elevation of 4500 feet above MSL. For clarification, the Newmont Parties and their Affiliates, successors and assigns shall have the right to use the surface and other contributed portions of the properties situated within the Fiberline Excluded Property Boundary in accordance with Section 4.9 of the JV Agreement.

The Fiberline Excluded Property Boundary and the Fiberline Excluded Property Carve-Out are described in the tables set forth above in this Schedule and generally depicted in the figure set forth above. To the extent there is any conflict between the descriptions in the table and the areas generally depicted on the figure, the descriptions in the tables will govern.

6.              Mike Excluded Property in Eureka County, Nevada:

Township 34 North, Range 51 East, MDM

Section 20:                                   The area encompassed by the following unpatented lode mining claims:

Section 21:                                   All

Section 28:                                   All

Section 29:                                   E/2

Section 32:                                   NW/4NE/4, and the area encompassed by the following unpatented lode mining claims:

Section 33:                                   N/2NW/4, and the area encompassed by the following unpatented lode mining claims:

7.              Buffalo Valley-Trenton Canyon Excluded Property in Humboldt and Lander County, Nevada:

Township 31 North, Range 42East, MDM

Section 03:                                   All

Section 04:                                   All

Section 05:                                   All

Section 06:                                   All

Township 32 North, Range 42East, MDM

Section 09:                                   All

Section 10:                                   All

Section 11:                                   All

Section 12:                                   S/2, NW/4, S/2NE/4, NW/4NE/4

Section 13:                                   All

Section 14:                                   All

Section 15:                                   All

Section 16:                                   All

Section 20:                                   All

Section 21:                                   All

Section 22:                                   All

Section 23:                                   All

Section 24:                                   All

Section 25:                                   All

Section 27:                                   All

Section 28:                                   All

Section 29:                                   All

Section 30:                                   All

Section 31:                                   All

Section 32:                                   All

Section 33:                                   All

Section 34:                                   All

Township 32 North, Range 43East, MDM

Section 07:                                   All

Section 08:                                   All

Section 09:                                   All

Section 17:                                   All

Section 18:                                   All

Section 19:                                   All

Section 20:                                   All

Section 21:                                   All

Section 29:                                   All

Section 30:                                   All

8.              Ivanhoe-Hollister Excluded Property in Elko County, Nevada:

Township 37 North, Range 48 East, MDM

Section 03:                                   All

Section 04:                                   All

Section 05:                                   E/2

Section 08:                                   All

Section 09:                                   All

Section 10:                                   All

9.              Mule Canyon Excluded Property in Lander County, Nevada:

Township 31 North, Range 47 East, MDM

Section 2:                                          The area encompassed by the following unpatented lode mining claims:

Section 3:                                          All

Section 4:                                          All

Section 5:                                          All

Section 8:                                          All

Section 9:                                          All

Section 10:                                   All

Section 11:                                   All

Section 12:                                   The area encompassed by the following unpatented lode mining claims: